Summary: Mr X complains that the Council has failed to make the provision listed in his son’s Education, Health and Care Plan (EHCP). The Council has accepted that some provision was missed and has offered a financial remedy and apology. It has advised that other aspects of the complaint have been addressed. Mr X has declined to discuss his complaint with us. We have discontinued our enquiries as Mr X has not engaged with us and on the basis of the Council’s comments, nothing would be achieved by further investigation.

The complaint

1. Failed to deliver therapy sessions specified in his son’s EHCP; and
2. Has failed to make suitable interim educational provision after the named school on the EHCP said it could no longer meet his son’s needs.

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The Ombudsman’s role and powers

2. 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)
3. We do not start or may decide not to continue with an investigation if we decide:

• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6))

4. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
5. If we are satisfied with a council’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)

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How I considered this complaint

6. I asked to speak to Mr X and sent him questions for response by email but he declined to engage with me. I considered information provided by the Council. I sent my draft decision to both parties and gave them the opportunity to comment before finalising my decision.

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What I found

Education, Health and Care Plans

7. A child with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. Part 3 of the Children and Families Act 2014, the Special Educational Needs and Disability Regulations 2014 and the SEND code of practice: 0 to 25 years give council’s information about its duties.  Councils must make sure the provision in a child’s EHCP is delivered.  

What happened

8. Mr X has a son, B, who has an EHCP dated October 2020. In 2021 Mr X complained that the Council had failed to arrange therapy detailed in the EHCP. In its final complaint response Council accepted that there was a shortfall in hydrotherapy and physiotherapy sessions and offered a financial remedy of £3,200 as well as an apology.
9. Mr X also complained that B’s school had advised in June 2021 that it could no longer meet his needs and that the Council had failed to arrange an alternative interim provider until a new placement was named. The Council responded that an emergency annual review was required to determine why the current school was no longer suitable for B and to discuss B’s current needs. It said this review had been booked for July 2021 but that Mr X had instructed the school not to go ahead with it. The Council said it had rescheduled the review meeting for the beginning of the new term and that Mr X would be able to appeal the review decision to the Special Educational Needs Tribunal. Mr X lastly complained that therapy at home had not been provided. The Council’s responded that B had been provided with indirect therapy at home between October 2020 and July 2021 while he was shielding from Covid.
10. Mr X then came to us. He disputed the Council’s claims as to the therapy provided. He also disagreed that the school’s actions triggered a review. He said the Council should have carried out a re-assessment rather than a review. Mr X declined to discuss his complaint with me further. In January the Council told us Mr X had gone to Tribunal and that the Council it had agreed with the school that it was able to meet B’s needs. B remained at the school. The Council said there were no elements of the complaint that had not already been remedied or resolved.
11. Mr X declined to speak to me by phone and did not provide a clear answer to my written questions. As Mr X has declined to engage with me and I am not able to clarify the complaint, I have discontinued my investigation.

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Final decision

12. I have discontinued my investigation as I have not been able to obtain the information I need to pursue my enquiries from Mr X and the Council has advised that his complaints have been remedied or resolved.

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Investigator's decision on behalf of the Ombudsman