Summary: Mrs X complained the Council failed to arrange the provision set out in her son’s Education, Health and Care Plan. The Council was at fault. This meant Mrs X’s son missed out on specialist support and Mrs X had to go to time and trouble contacting the Council and specialist providers. The Council has agreed to apologise, pay Mrs X £2400 in recognition of the lost provision and £150 for the time and trouble she went to. It will also make improvements to its service to prevent the fault occurring again.

The complaint

1. Mrs X complained the Council:
• failed to provide the Occupational Therapy (OT) and Speech and Language Therapy (SALT) set out in her son, W’s, Education, Health and Care (EHC) Plan;
• delayed in sending W’s school section K of his EHC plan; and
• took too long responding to her complaint.
2. Mrs X said this meant W’s education and development have been negatively affected and she had to go to time and trouble contacting the Council and specialist providers.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
5. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

6. I have considered:
• all the information Mrs X provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the Council’s policies, relevant law and guidance and the Ombudsman's guidance on remedies.
7. Mrs X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Special Educational Needs

8. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them.
9. The EHC plan is set out in sections which include:
• Section F: The special educational provision needed by the child or the young person.  
• Section K: The advice and information gathered during the EHC plan assessment process.
10. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. 
11. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:
• check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.
12. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan.

Complaints

13. The Council operates a two stage corporate complaints process. It says it will respond to stage one complaints within 20 working days.

What happened

OT and SALT provision

14. W previously had an EHC plan and in 2021, Mrs X appealed the contents of the plan to the SEND tribunal. She commissioned new assessments from an OT and a SALT and sent them to the Council. In late 2021, the Council and Mrs X agreed changes to W’s EHC plan and sought the appeal tribunal’s approval of that agreement. W moved to a new school in November 2021, in year 7.
15. In mid-December, the tribunal gave its consent to the agreed EHC plan and a couple of days later, the Council issued W’s final EHC plan. It sent a copy to Mrs X and W’s school. The plan included provision for OT and SALT involvement, including:
• six hours per term of SALT from a therapist experienced in working with children with complex needs like W;
• for a SALT therapist to develop a programme for use by staff at the school every day. The programme also required a half termly review by the therapist;
• time for the SALT to meet and work with staff and W’s parents regularly;
• three programmes of OT exercises to improve his coordination, balance, fine motor skills and handwriting. The OT would review two of the plans every half term;
• a programme of daily OT designed activities to improve his sensory regulation skills; and
• 30 minutes one to one OT sessions each term.
16. Mrs X contacted the Council in late January to say she was concerned the OT and SALT provision had not started. There is no evidence showing the Council responded to Mrs X.
17. In March 2022, Mrs X complained to the Council that it had still not arranged OT or SALT. The Council responded eleven weeks later in late May to say:
• it was the responsibility of the school to arrange the SALT and OT provision; and
• the school had contacted a Council run service which provided SALT and OT but it had no availability. It also tried a national provider for OT but that had no availability either.
18. Mrs X remained unhappy and asked for a stage two response.
19. Council records show that in early June, it was aware W was not receiving OT or SALT provision and that it needed to contact the school.
20. The Council sent its stage two response in late June. It said:
• it acknowledged Mrs X had managed to find some SALT and OT providers who could offer the provision in W’s EHC plan;
• Mrs X had told the school and it was now up to the school to contact those providers; and
• although it had a duty to ensure the provision in W’s EHC plan was offered, it was not for the Council to commission providers itself or recommend suitable ones.
21. The Council contacted W’s school several times starting in late September to seek costs for provision from a private OT and SALT. The Council approved the funding for the SALT, who began supporting W in mid-November 2022. The Council told me the school has not yet given it information about the cost for a private OT.

Response to my enquiries and previous Ombudsman investigations

22. As part of my enquiries, I asked the Council what systems it has in place to ensure it secures the provision in a child’s EHC plan after it issues a new plan or make an amendment to an existing plan. The Council said it expects the child’s school or parent to tell it if provision is not in place. Otherwise, it said the child’s annual review of their EHC plan would “hopefully” alert it to any issues.
23. The Council also said that when it gives schools funding to arrange EHC provision, as in W’s case, then “the onus is on the school to advise the [Council] if they cannot carry it out”.
24. The Ombudsman recently upheld two complaints about a failure to secure the provision in a child’s EHC plan. In the first (20 002 308 - Local Government and Social Care Ombudsman), the Council placed the onus to arrange the child’s OT support on the school and failed to act proactively to address the shortfall when it became aware the OT was not in place. The Council accepted our recommendations and agreed to review its procedures to ensure it actioned all the provision in a child’s EHC plan.
25. In the second, (20 004 934 - Local Government and Social Care Ombudsman) the Council failed to act promptly when it became aware the child’s SALT provision had stopped and failed to check the provision in their EHC plan was in place when the child moved to a new school. As a result of the Ombudsman's investigation, the Council agreed to ensure it has a robust process to ensure it meets its duty to secure the provision in a child’s EHC plan. The Ombudsman's recommendation clarified we would not consider a plan to put the onus solely on schools to alert it as sufficient and that we expected the Council to do its own due diligence.

Section K

26. In late January 2022, the Council sent W’s school documents it believed to be W’s new OT and SALT assessments. Mrs X contacted it in February to say it had sent the wrong documents. The Council sent the school the correct files in April.
27. In its response to Mrs X’s March complaint, the Council apologised for sending the wrong files initially but explained the school had already seen the correct files. The Council said it sent them prior to December 2021 when it was preparing to issue the EHC plan. Mrs X disputes this.

Findings

Failure to provide OT and SALT

28. From December 2021, when the Council issued W’s EHC plan, it had a duty to ensure the OT and SALT provision was delivered. In response to Mrs X’s complaint and my enquiries, the Council said it was the school’s responsibility to arrange the provision. It said this was because it gave funding to the school, and because it was not for the Council to commission providers. This was wrong. While schools are responsible for implementing day-to-day provision set out in a child’s EHC plan, the Council ultimately has the legal duty to ensure the provision is arranged. It cannot legally delegate that duty to schools.
29. This means councils should have a system in place to satisfy itself schools are arranging the provision in a child’s EHC plan. While the Ombudsman recognises councils cannot keep a ‘watching brief’ over whether schools are making the provision in a plan, we expect them to have an appropriate system in place to check provision at key points. This should include when a child moves school, when it issues a new or changed EHC plan and when a parent points out provision is not in place. When a council becomes aware provision is missing, it must take prompt action to secure that provision.
30. The Council has explained it does not carry out any proactive checks on whether a child is receiving the provision in their plan. It relies on the parents, the school and annual review process to alert it to any issues. This is not sufficient and is fault. This approach is concerning given the Ombudsman has previously found fault with the Council for failing to have adequate systems in place to check it is meeting its duty. Proactive checks need not be overly onerous; many councils’ email or phone a school to confirm if all the provision is being delivered a few weeks to a month after it issues an EHC plan or when the child moves school. This fault did not cause Mrs X or W an injustice because Mrs X told the Council the provision OT and SALT was not in place in January 2022. The Council became aware of the issue as soon as might otherwise have been.
31. However, when Mrs X contacted it in January 2022, the Council should have acted promptly to investigate and decide what action it needed to take to secure the OT and SALT provision. This could have included arranging the support itself. Instead, it placed responsibility for the provision on the school and did not take any substantive action to secure the provision until September 2022, when it contacted the school to seek costings for private OT and SALT. The Council was at fault for failing to meet its duty to secure the provision in W’s EHC plan. This caused a delay and W did not receive any SALT support until November 2022. He is still without the OT provision in his EHC plan. It also meant Mrs X had to go to time and trouble contacting private providers and the Council to try and secure the provision.

Delay in sending the new OT and SALT assessments

32. The Code states councils must send a child’s EHC plan to the school they are attending. This is all sections of the plan, including section K; advice and information gathered to inform the EHC plan. The Council accepted it delayed sending W’s new OT and SALT assessments after it issued W’s EHC plan in December 2021. This was fault.
33. The Council said that it had already sent the school all the documents included in section K before December 2021 but Mrs X disputes this. I have not investigated this matter further because either way, the school received a copy of W’s EHC plan in December 2021. This set out the information relevant to it; the section on W’s needs and what provision was to be put in place. The fault therefore did not cause W a significant personal injustice.

Delay in responding to Mrs X’s stage one complaint

34. The Council took seven weeks too long to respond to Mrs X’s stage one complaint. This delay amounts to fault. It caused Mrs X avoidable frustration.

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Agreed action

35. Within one month of the date of my final decision, the Council will:
• pay Mrs X £2400 to reflect the impact of the lost OT and SALT provision on W. I have calculated that amount based on the Ombudsman’s guidelines. Where fault has resulted in a loss of educational provision, we normally recommend a remedy payment of between £200 and £600 a month to acknowledge the impact of that loss. In this case I recommend £300 a month to take account of W’s special educational needs and that he was in his first year of secondary school, but also the fact that he was receiving education and the remainder of his special educational needs provision during the period. The sum should be used for the benefit of W’s education;
• arrange for an OT to begin providing the support in W’s EHC plan;
• if the Council is unable to arrange an OT within one month of my final decision, it will pay Mrs X £300 for every month of delay. It will do this until it is able to evidence to the Ombudsman that the provision is in place;
• apologise to Mrs X for the frustration she experienced as a result of its complaints delay and the time and trouble she had to go to in contacting OT and SALT providers; and
• pay Mrs X £150 in recognition of that injustice.
36. Within three months of the date of my final decision, the Council will:
• arrange training for relevant staff to ensure they understand the Council's obligation to ensure provision in an EHC plan is arranged; and
• provide the Ombudsman with evidence it has a mechanism in place for checking provision specified in an EHC plan is arranged from the start of a new or amended plan. This should not rely solely on parents or schools or on the annual review process.

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Final decision

37. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.

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Investigator's decision on behalf of the Ombudsman