Summary: There was fault in how the Council handled the special educational needs of Ms B’s daughter. It took too long to issue the final Education Health and Care plan and to notify the college; and it has failed to provide the therapies set out in the plan. The Council did not always keep Ms B informed and did not always make the reasonable adjustments she was entitled to under the Equality Act. The Council’s shortcomings mean that Ms B’s daughter has not always been able to access her education fully and they have both been caused distress and frustration.

The complaint

1. Ms B complains about how the Council handled her daughter’s education. In particular, she said the Council:
• Took too long to issue the final Education Health and Care (EHC) plan;
• failed to provide the special education provision set out in her daughter’s EHC plan, specifically it delayed providing her 1:1 support, and failed to provide the speech and language therapy (SALT), and her occupational therapy (OT);
• failed to pay the SALT and OT therapists arranged by Ms B on the Tribunal’s instruction for over 9 months, which caused Mrs B time and trouble;
• failed to take account of Ms B’s reasonable adjustments in its communication with her; and
• failed to respond to her properly or provide a named officer to deal with.
2. Ms B says the Council’s shortcomings caused her daughter distress. She was unsupported at college and the placement nearly failed. Ms B also says the Council caused her distress and frustration, and put her to additional time and trouble.

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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.
4. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)
5. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. 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)
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

8. I considered the information provided by Ms B and discussed the issues with her. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have taken account of all comments received before issuing this final decision.

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What I found

The law and guidance

EHC law and guidance

9. A child with special educational needs may have an EHC plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
10. Where the Tribunal orders a council to amend an EHC plan, the council shall amend the EHC plan within five weeks of the order being made. (Special Educational Needs and Disability Regulations 2014) 
11. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.

The Equality Act

12. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
13. Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.
14. The duty is ‘anticipatory’. This means service providers cannot wait until a disabled person wants to use their services, but must think in advance about what disabled people with a range of impairments might reasonably need.
15. We cannot find that an organisation has breached the Equality Act. However, we can find an organisation at fault for failing to take account of its duties under the Equality Act.
16. The Ombudsman published a focus report ‘Equal access: getting it right for people with disabilities’. The Ombudsman considers it good practice for local authorities to ask whether they need to make changes to the way they communicate. This can help the authority meet its anticipator duty to make reasonable adjustments. Where an authority is aware of a disability it should anticipate their needs and make any necessary reasonable adjustments. It should not wait for the person to tell them the adjustments they require.

What happened

17. Ms B’s child, K has a rare condition which means that stress impacts on her physical health and can have serious health consequences. K cannot reach her potential at college without special educational needs provision.
18. The Council issued an EHC plan and Ms B appealed to the tribunal. The tribunal asked the Council to submit OT and SALT reports, but when it failed to do so, it allowed Ms B to arrange these. Ms B says the Council did not pay either therapist for over nine months, and Ms B had to chase the Council about this as an intermediary.
19. On 28 March 2022, the Tribunal made recommendations to amend the educational provision, but the Council did not issue the final EHC plan until 20 September 2022. The Council said it needed clarification on some parts of the plan. It has since secured additional funding to expand its Special Educational Need and Disabilities team.
20. Ms B agrees with the provision set out in the EHC plan. However, the Council has not ensured the provision is made. In particular:
• It did not send the final plan to the child’s college or give the college the funding for the 1:1 teaching assistant support until December 2022. This meant there was no support until then, and K was unable to attend as she did not have the needed support in place.
• The Council did not commission the SALT or OT. This is despite that at the time of the tribunal (March 2022), both therapists Ms B had found had availability to work with K. Ms B says the Council failed to contact these for some months and by this time the therapists did not have capacity to work with K.
21. Ms B chased the Council to get the support in place. She says it did not always respond promptly to her contact about this and did not give her contact details for a case worker, despite the issues being unresolved. Ms B made a formal complaint on 17 November 2022 and asked the Council to deal with the provision urgently.
22. K’s clinical psychologist contacted the Council. She said that the 1:1 was not in place at college, and the child is becoming increasingly distressed. The community nurse also contacted the Council with concerns about the lack of provision.
23. In December, Ms B asked the college and the Council to attend an emergency review. The Council allocated K a named officer at this stage. They were unable to review the EHC plan as the provision was not in place. Instead they focused on making sure the provision is made.
24. On 20 December, the Council responded to Ms B’s complaint. It said that it had contacted the therapists that Ms B had suggested. The college confirmed that K now had support in every lesson but it is discreet in accordance with K’s wishes. The college had given K a timetable so she could see where she could find a support assistant at any time.
25. Mrs B asked it to consider the complaint at stage 2 of its process. She pointed out that the 1:1 support only started at the beginning of December, as the college did not have her EHC plan from the Council or the funding.
26. The Council responded further on 28 February 2023. It apologised that the Council had not acted on the EHC plan as soon as it was agreed. It said that it would learn from its shortcomings.
27. However, the SALT and OT provision was still not in place. The Council agreed to make direct payments for Ms B to commission this provision. The Council said it would backdate the payments to September 2022, the date it had issued the final EHC plan as soon as it had found therapists. Ms B does not feel that this is an appropriate remedy and it will not help her child to catch up. In any case, the Council has not found a SALT or OT and has not made any direct payments for this.
28. The Council knows that Mrs B is severely dyslexic and it is listed in her child’s EHC plan. She asked the Council to send her documents in a certain format to allow her to deal with these. However, Ms B says the Council repeatedly failed to do this. Ms B complained about this in February 2021. The Council said it could not send the documents in the agreed format as they were working documents.

Analysis

29. The Council has acknowledged that it took too long to issue the final EHC plan following the tribunal’s recommendations. It should have done this by 2 May 2022, within five weeks of the tribunal’s recommendation. Instead it took an additional 20 weeks to issue the final plan.
30. I have taken into account that the Council was waiting on details and clarification on parts of the plan, but its failure to issue the plan in time was service failure. This caused Ms B and K distress and uncertainty and also meant that K was not getting the provision to which she would have been entitled.
31. The Council took too long to send the EHC plan to K’s college. This meant that the college did not know the 1:1 requirements, and did not provide this until after November 2022. This is further provision that K missed out on, and Ms B has described how, without this support K could not go to college.
32. The Council did not start its search for SALT and OT provision soon enough. The case notes it has sent me say the search started in March 2023. Ms B says the Council started its search in January 2023. Either version of events is delay and fault by the Council. I cannot say that had the Council contacted the therapists who had assessed K for the EHC plan sooner, then they would have been able to implement the plan on an ongoing basis. However, the Council’s delay has left K and Ms B uncertain as to whether the therapists could have been commissioned and the provision in place. Overall of course, the result is the same: K has missed out on the provision she is entitled to and which she needs so she could properly access her education.
33. The Council has agreed it will backdate the funding to September 2022 to reflect when it issued the final decision. Its aim here is to allow enough funding for extra sessions to help K catch up with these therapies. However, these payments have not been made and K still has no OT or SALT. I appreciate that the Council could not find SALT and OT provision and it contacted a number of therapists and chased these for a response. However, its failure to commission this therapy for K is a service failure. This means that K is again missing provision, but also that there are no therapists to expertly inform the 1:1 support given by the college.
34. Ms B has dyslexia and this is known to the Council as it is part of the EHC plan process. She needs documents in an agreed format so that she can process the information. The Council did not engage with its duty to anticipate that she might need a reasonable adjustment. It also did not always make the adjustment once agreed. This caused Ms B frustration, and put her to unnecessary time and trouble getting information in the correct format.
35. Ms B complained that the Council did not give her a named officer until after she had complained. It is for the Council to decide how to organise its services. However, I can see that this caused Ms B frustration as she was trying to progress her daughter’s provision. The key issue here is that the Council did not always respond to Ms B in good time, when it was clear there was already a delay in getting the plan issued and the provision in place. Ms B was left having to chase the Council. Again this caused Ms B frustration and distress, and put her to unnecessary time and trouble.

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Agreed action

36. The Council will within one month of the date of this decision:
• Apologise to Ms B and separately, to K for the faults identified;
• Pay to Ms B £100 per academic week for the 1:1 provision that was missed between April 2022 (when the EHC plan should have been finalised) to the end of November, when the 1:1 was put in place;
• Pay to Ms B £50 per week to reflect the impact of the missed OT and SALT from April ongoing;
• If the Council has not been able to provide the therapies within six months of this decision, it should complete a fundamental review of the situation and share a plan of action with Ms B;
• Pay Ms B a symbolic payment of £300 in recognition of the distress and frustration the Council’s shortcomings have caused her, and an additional £300 in recognition of the time and trouble it put her to when it did not always respond to her contact, or did not take account of her reasonable adjustments; and
• Share this decision and the Ombudsman’s focus report ‘Equal access: getting it right for people with disabilities’, with the relevant staff.
37. Within three months of the date of this decision, the Council will develop an action plan to show how it intends to address the ongoing lack of OT and SALT availability in its area. This report should be taken to the relevant committee for democratic scrutiny and an update should be provided to the Ombudsman to set out the actions agreed to improve this area of provision.
38. The Council should provide us with evidence it has complied with the above actions.

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Final decision

39. I have completed my investigation. There was fault by the Council causing injustice.

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Investigator's decision on behalf of the Ombudsman