The Ombudsman's final decision
Summary: Miss X complained the Council failed to provide the support set out in her son’s Education Health and Care Plan and failed to provide the Education other than at School (EOTAS) provision he needed. There was fault that warranted a remedy.
The complaint
Miss X complains: the Council failed to provide her son, Y, with the ‘Education other than at School’ (EOTAS) package set out in his Education Health and Care Plan (EHC Plan) in November 2022.
the Council failed to provide Speech and Language Therapy (SALT) and Occupational Therapy (OT) provision set out in Lewis’ EHC plan from November 2022.
the Council failed to provide free school meal vouchers within a timely manner.
The Ombudsman’s role and powers
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 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) 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)
What I have and have not investigated In addition to the complaint about provision following the November 2022 Tribunal Order, Miss X told us that Y had been out of school since April 2022. So, she complained that Y had not received an appropriate education between April 2022 and November 2022.
We cannot investigate whether Y was receiving a suitable education during this period. This is because the courts have established that if someone has appealed to a Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207). The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person.
As a result, my investigation can only consider the Council’s actions from when the Tribunal process was completed and a final tribunal order was issued in November 2022.
How I considered this complaint
I spoke to Miss X and considered the complaint she made and information she provided. I asked the Council for information and considered its response to the complaint.
Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
SALT and OT Provision Miss X’s son, Y, first had an Education Health and Care Plan (EHC Plan) in 2018.
In August 2021 Miss X lodged an appeal about content in Y’s EHC Plan. Mrs X challenged Section B (what Y’s needs were), Section F (the provision set out in the plan) and she appealed about the suitability of the school named in Section I.
There were a number of tribunal hearings between October 2021 and November 2022. The final tribunal decision on the appeal was made on 30 November 2022.
The Tribunal ordered changes to sections B, F and I of the EHC Plan. This included making arrangements for Education Otherwise Than at School (EOTAS) for Y.
The Council issued a new EHC Plan on 20 December 2022 based on the Tribunal decision.
The Council says that when ordering EOTAS, the Tribunal did not alter sections of the EHC Plan that set out Y’s needs. It stated the provision in these sections was written on the basis it would be delivered in a school environment, so it was undeliverable for Y, when receiving in an EOTAS package. The Council says, as a result, it was necessary for the Council to reassess Y’s Occupational Health (OT), Speech and Language (SALT) and communication needs.
The Council stated the OT provision that was ordered by the Tribunal was based on a private OT assessment presented to the Tribunal in November 2022.
The Council began instigating the reassessments it considered necessary in February 2023. The Council stated the SALT and OT providers that it commissioned could not assess Y because they were directly commissioned to work within schools. The Council says officers made efforts to engage multiple other SALT and OT providers between February 2023 and August 2023 without success.
In September 2023 the Council received a SALT assessment on 4 September and it began the provision this assessment recommended on 10 October 2023. An OT assessment was received on 11 August. Delivery of the provision recommended in this assessment started on 16 October 2023.
I understand that although the Council considered it was necessary to reassess and change the SALT and OT provision set out in the EHC Plan ordered by Tribunal, it did not issue another EHC Plan to document the changes in the provision. I understand it is the Council’s intention to update the EHC Plan at the 2024 annual review to reflect the OT and SALT actually now being provided.
Tutoring & Activities In the months leading up to November 2022 the Council arranged for an alternative education provider to provide tutoring and activities. This continued until Christmas 2022. It ceased due to the provider having staffing issues. There is evidence that provision was put in place up to this time.
However, despite attempts to find tutors and activity providers in 2023, the 10 hours of tutoring were not provided between December 2022 and mid-July 2023. The 18 hours of activities were not provided between December 2022 and September 2023. As at September 2023, the Council began providing Miss X with a personal budget to secure her own activities provision.
School Meal Vouchers The Council confirmed that it had provided free school meal vouchers in mid-August 2023. These covered the whole of the period 2022/2023. The Council noted these had not been accessed by Miss X. It believed it was possible they had been placed in a junk mail folder, as Miss X had not used them. The Council agreed to contact Miss X to help ensure they could be accessed and used.
Was there fault by the Council SALT & OT The Council issued the final EHC Plan promptly following the appeal decision. However, there was fault by the Council. There was an avoidable delay in acting to put in place the provision the EHC Plan specified.
I note the Council felt that reassessments were necessary, however, it only began seeking providers to carry out this work in February 2023, around two months after it issued the EHC Plan and three months after the Tribunal decision.
The Council had no commissioned providers in its area who could carry out reassessments for children not in school. Despite efforts by the Council to find a provider, the unavailability of commissioned providers represents service failure. It led to a long delay between February and August 2023 before SALT and OT assessments could be done.
Overall, there was an avoidable delay of around 10-11 months in providing SALT and OT due to the issues set out above.
Tutoring and Activities Although I note the Council had made efforts to find tutors and activity providers without success during 2023, the failure to provide the EHC provision Y needed represents fault by the Council. The delays led to 7 months of missing tuition and 9 months of missing activity provision.
EHC Plan Process It is unusual for a Council to need to reconsider the content of an EHC Plan and how it is delivered so soon after a Tribunal has determined the precise content of an EHC Plan. In Y’s case the specific wording of the EHC plan provision was considered as part of the appeal. While I understand the Council’s reasoning for seeking a further reassessment of Y’s needs, the purpose of an EHC Plan is to set out what provision is needed and the Council is under a duty to provide that which is set out in the plan. So, it follows that any change to provision should be reflected in an updated EHC Plan promptly rather than left for the next review.
Agreed action
Within four weeks of my final decision: The Council should apologise to Miss X and Y for the failure to make the appropriate Education Health and Care Plan provision. Its apology should adhere to the guidance on making meaningful apologies set out in in guidance on remedy. This is available on our website.
To recognise the lack of Speech and Language Therapy, Occupational Therapy, Tutoring and Activity provision, the Council should make a payment of £5000 to Mrs X for Y’s benefit.
The Council agreed to contact Miss X to ensure she could access the free school meal vouchers it had sent to her.
The Council should provide us with evidence it has complied with the above actions.
Final decision
There was fault that warranted a remedy. The Council agreed to take the action the Ombudsman recommended.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman