Summary: We upheld Mrs X’s complaint about a lack of special educational needs provision for her son, Y. The Council failed to take steps to secure the provision Y needed. We also found fault with how the Council oversaw Y’s annual review, and how it handled Mrs X’s complaints. The Council agreed to take action to remedy the injustice to Mrs X and Y.

The complaint

1. Mrs X complains the Council failed to secure the provision in her son’s education, health and care plan. She says it also failed to follow the correct process to review and amend the plan. She says as a result her son has missed out on provision he was entitled to and this has affected his well-being. She has also experienced stress, frustration and financial loss. She would like the Council to secure the provision in her son’s plan and review it correctly, reimburse the costs she incurred and ensure it responds to complaints on time.

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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. SEND is a tribunal that considers special educational needs. We cannot investigate a complaint when someone can appeal to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
4. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
6. 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

7. I have considered the complaint made by Mrs X and the documents she provided.
8. I considered the Council’s comments about the complaint and the documents it provided in response to my enquiries.
9. I took account of the following Ombudsman’s focus reports:
• ‘Education, Health and Care Plans: our first 100 investigations’ published in October 2017.
• ‘Not going to plan? Education, Health and Care Plans two years on’ published in October 2019.
10. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
11. Under our information sharing agreement, I will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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What I found

Law and guidance

Education, health and care plans

12. The Children and Families Act 2014 sets out how support will be provided to children with special educational needs and disabilities (SEND). The ‘Special education needs and disability code of practice’ (‘the Code’) gives more details about how councils, schools and others should carry out their duties.
13. Most children and young people will have their SEND needs met within early years settings, schools or colleges without any need for involvement from a council. Children with more complex needs might instead need an education, health and care (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 SEND tribunal can do this.
14. Councils have a duty to secure the special educational provision in an EHC plan for the child or young person. We can look at complaints about this, including where support set out in the EHC plan has not been provided. 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. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
15. The Ombudsman expects councils to have systems in place to check that provision in an EHC plan has been secured and is being provided to a child or young person (‘Not going to plan? Education, Health and Care Plans two years on’). We usually expect straightforward provision to be in place within no more than four weeks and complex provision to be available within no more than half a term.

Reviewing EHC plans

16. Councils must review EHC plans at least annually. The first review must be held within 12 months of the date the EHC plan was issued, and then within 12 months of any previous review.
17. The review should focus on the child’s progress towards achieving the outcomes specified in the plan and consider whether the outcomes and supporting targets remain appropriate. Professionals across education, health and care must cooperate with councils during reviews. Councils can consider holding an early review if there is a change in the child’s circumstances.
18. When a child attends a school, councils can require the school to arrange and hold the review meeting. The school must give those invited at least two weeks’ notice of the date of the meeting. It must also seek advice and information about the child from all parties invited, including the child’s parent, and send any advice and information gathered to all those invited at least two weeks before the meeting.
19. The school must prepare and send a report to everyone invited within two weeks of the meeting, setting out recommendations on any amendments required to the plan.
20. Within four weeks of the review meeting, the council must decide whether it will keep the EHC plan as it is, amend it, or cease to maintain it, and tell the child’s parents. If the council intends to amend the plan, it should start this without delay.
21. When a council proposes to amend a plan, it must send the child’s parents a copy of the existing plan and a notice explaining the proposed amendments. Parents may ask for a meeting with the council to discuss the proposed changes.
22. Councils must give parents at least 15 calendar days to comment and make representations on the proposed changes to a plan. The Council has eight weeks from its amendment notice to issue the final amended plan.

Preparation for Adulthood

23. For young people with an EHC plan, preparation for transition to adulthood must begin from year 9 (age 13 to 14). Transition planning must consider the young person’s needs as they move towards adulthood. It should plan to support their choices for further education, employment, career planning, financial support, accommodation and personal budgets where appropriate.

Impact of the COVID-19 pandemic

24. This complaint involves events that occurred during the COVID-19 pandemic. The government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published ‘Good Administrative Practice during the response to Covid-19’.
25. The Coronavirus Act 2020 allowed the Secretary of State to temporarily change existing legal requirements and issue guidance about provision of education for children with special educational needs and disabilities.
26. On 1 May 2020 the Secretary of State issued a notice under the Coronavirus Act to give more flexibility to councils in dealing with EHC Plans and provision. It changed councils’ absolute duty to ‘secure’ the education provision in an EHC plan to one of using ‘reasonable endeavours’ to do so. This was a temporary change applying from 1 May to 31 July 2020. At the end of this period, councils’ usual duties returned.
27. The temporary changes in the law also gave councils greater flexibility in the timing of annual reviews where it was not practicable to complete one in the required timescales for a reason related to COVID-19. This change applied from 1 May to 25 September 2020.

Complaint handling

28. The Council’s complaint policy has two stages. At stage one the Council aims to respond within 20 working days, and at stage two a response should be sent within 25 working days, with an option to extend to 65 working days for particularly complex cases.
29. The Ombudsman publishes guidance about effective complaint handling for councils. This reminds councils to investigate the issues, taking into account all the available facts and evidence. It says a good decision letter will set out the statement of complaint, what steps have been taken to investigate the complaint, what the investigating officer has taken account of, their decision and reasons for it, and any actions to be taken next.

What happened

30. Mrs X’s son, Y, has several health and learning needs and has an education, health and care (EHC) plan. His plan, amended in October 2019 following a review in May 2019, set out the provision he should receive including: a weekly social communication programme; use of assistive technology; touch-typing lessons; reading intervention; mentoring; weekly speech and language and occupational therapy; and dyslexia and dysgraphia testing.

2020

31. In January 2020, Mrs X told the Council Y was not receiving the provision identified in his plan and that she had been raising this with his school since 2018. She asked the Council if there was anything it could do to secure Y’s provision as he was becoming upset about attending school. The Council did not respond.
32. Mrs X contacted the Council again in February. She suggested holding an early annual review for Y and the Council agreed. On 13 March, the Council told Mrs X an annual review meeting had been agreed and “set in the calendar” and the Council would attend to work through her concerns about how the school was meeting the provision in the EHC plan. The Council did not confirm the date of the meeting with Mrs X.
33. On 20 March schools closed to most pupils in response to the COVID-19 pandemic. Y did not attend school during this period.
34. In May, Y’s school invited Mrs X to attend an annual review meeting for Y in June. Mrs X asked the school to invite Y’s SEN caseworker, occupational therapist, speech and language therapist and the practitioner supporting him with his social and emotional wellbeing. She asked whether there was anything further that needed to be done as this would be Y’s first preparation for adulthood review.
35. In the week before the meeting, Mrs X asked the school if there were any reports available for the annual review as she had not received anything. The day before the annual review meeting, Mrs X received an updated report from Y’s school and his occupational therapist.
36. Mrs X says the time of the annual review was changed at short notice on the day of the meeting, so she was unable to fully prepare. There were problems with the video conferencing and some attendees were only available for part of the meeting. Mrs X says there was no discussion about preparation for adulthood and the meeting did not review whether Y’s provision was suitable.
37. Y’s occupational therapist’s report for the review said it had been difficult to deliver therapy in recent months and suggested a review of Y’s support as soon as he returned to school. The therapist also recommended an ICT assessment so Y could use a laptop for longer pieces of work.
38. Following the meeting, Mrs X circulated the occupational therapist’s report and her own notes to those who attended. Two weeks later she asked Y’s school if it had completed its report following the annual review. The school said it sent the report to the Council on the day of the meeting. Mrs X emailed the Council with her concerns about how the annual review had been handled but did not receive a response.
39. In the school’s report of the annual review, it said Y would need access to a laptop and assistive technology to produce his written work and would have the opportunity to learn to touch-type in school. It did not refer to the other provision outlined in paragraph 30.
40. In mid-July the Council told Mrs X it had received notes of the annual review at the end of June. It said the school did not make any recommendations about amending Y’s plan. Mrs X responded setting out her understanding of the amendments which were needed to the plan. The Council agreed to make some amendments and issued an amended draft plan in August followed by a final amended plan in October.
41. In October, Y’s school referred him for an ICT assessment. It said his EHC plan said he did not “fit the profile of a pupil with dyslexia” so it was reluctant to fund an assessment. Mrs X advised the school that dyslexia testing was included as provision in Y’s plan to be completed as soon as possible.
42. Mrs X made her first complaint to the Council in October. She detailed the provision she said had not been delivered and asked the Council to confirm the steps it would take to put it in place. She also complained about the handling of Y’s most recent annual review. She asked the Council to hold another review meeting, ensuring all professionals provided advice and attended.
43. The Council responded in November, slightly later than its 20-working day deadline. It said Mrs X should complain directly to Y’s school about the handling of the annual review. It said Y’s caseworker had contacted the school and was seeking a meeting to discuss how they planned to deliver the provision in Y’s plan going forward. It said the caseworker would explore why the dyslexia assessment was still outstanding and discuss with the school the Council’s expectations for involving Y in preparing for adulthood and making decisions about his future. The Council said its quality assurance team would be contacting the school to remind it of the expectations relating to provision and annual reviews.
44. By November, Y’s occupational therapy provision had started, he had a laptop to use in class and staff members he could speak to if he needed to. Mrs X commissioned a private assessment for Y which found he did have dyslexia. She shared a copy of the assessment with the Council which said it would review the report and update Y’s EHC plan.
45. Mrs X asked the Council to consider her complaints at the next stage of its complaint procedure. She asked the Council to refund the cost of the private assessment for dyslexia. She said rather than complain to the school about the annual review, she would exercise her right of appeal and request mediation to update the plan.
46. In early December, Mrs X asked the Council to hold an early annual review for Y to incorporate the dyslexia assessment into his EHC plan. She also decided to seek mediation. On the same day, the Council issued an amended draft plan following Y’s dyslexia assessment. Although a date was set for mediation, this had to be cancelled because there was an amended draft plan in circulation. The Council offered to hold a co-production meeting with Mrs X to review her requested changes to the plan.
47. In mid-December, Y’s school produced an individual education plan. This referred to some of the provision in his plan but did not include a weekly social communication programme; use of assistive technology; touch-typing lessons; reading intervention; weekly speech and language therapy; or dysgraphia testing.

2021

48. The Council carried out an ICT assessment in January 2021. This recommended different types of software and equipment to assist Y with his learning. Y also underwent a speech and language assessment which confirmed he still needed the provision set out in his plan.
49. In February Mrs X wrote to the Council again. She said some provision had now been put in place, but Y was still without most of the digital items he needed, such as an e-reader, tablet and Dictaphone, and had not received touch-typing lessons. She said he also had not been provided with speech and language therapy, mentoring or a dysgraphia assessment as required by his plan. Mrs X also told the Council the social communication group had not yet restarted. She asked the Council to arrange these as soon as possible. The Council said it would request a written response from the school about the provision that was not being delivered and if necessary, would offer guidance about how they can make the provision. Mrs X says she did not receive anything more from the Council about this.
50. The Council responded to Mrs X’s stage two complaint in February 2021, after Mrs X had to request an update. It acknowledged the annual review took place outside the twelve-month period required by the Code. It apologised for the delay and inconvenience caused and said this was due to the challenges being faced by schools in relation to COVID-19 and taking time to set up alternative ways of holding reviews.
51. The Council also accepted the review did not run smoothly but said it was satisfied the school made best endeavours to gather Mrs X and Y’s views and include them in the EHC plan. The Council confirmed it would arrange an earlier annual review if required. The Council said a co-production meeting was scheduled for March and it hoped this would reassure Mrs X that the school was delivering appropriate provision. It said a manager would speak to the school to find out if it would reimburse the costs of the private dyslexia assessment.
52. The Council held two co-production meetings with Mrs X in March and April 2021. Mrs X asked the Council to arrange an annual review for Y before his caseworker was due to leave in early May. She said if this could not be arranged, she wanted the Council to finalise the plan as she did not want to lose her right of appeal.
53. Mrs X contacted the Council in late April to advise she had not received a date for the annual review or an updated draft of Y’s EHC plan. She contacted the same officer again in early May to ask if there was a date for an early annual review. The officer said it was the school’s responsibility to set a date. The school arranged a review for early June, a year since Y’s last review.
54. At the end of April, Mrs X asked the Council again about completing a dysgraphia assessment for Y. The Council said it would liaise with its dyslexia outreach team about any further assessment needs.
55. In May 2021, Mrs X complained to the Council again about its handling of Y’s EHC plan. She said the Council’s decision to reissue a draft plan removed her right to mediation. She said it then took six months to hold an annual review despite suggesting it should be held early. She said as a result Y was left for several months without a final plan which accurately reflected his needs and continued to miss provision he was entitled to. The lack of final amended plan also frustrated Mrs X’s right to appeal to the SEND tribunal if she disagreed with the content of it.
56. In mid-June, Y’s social communication group began meeting again. Y’s school tried to amalgamate touch-typing lessons, reading intervention and mentoring into one provision but Mrs X said this did not work well for Y.
57. Mrs X submitted detailed views for the annual review meeting including provision that was still missing for Y. The school completed its report of the annual review meeting within two weeks.
58. In July, the Council issued another amended draft plan for Y. Mrs X requested a co-production meeting to go through the amendments. As she did not receive a response, she sent in the amendments she proposed to the plan. By the end of July Mrs X had still not heard from Y’s caseworker about his draft plan.
59. Mrs X complained to Y’s school and the Council about an ongoing lack of provision. She asked for a provision map setting out how Y would receive the provision in his plan from the start of the next academic year but she has not yet received one. Mrs X made a further complaint in July about the Council’s communication and failure to secure Y’s provision.
60. The Council issued a final amended plan in August. Mrs X says Y’s school did not receive a copy and continued to work to the plan issued in October 2020.
61. The Council responded to Mrs X’s complaint in September, outside its extended deadline of 65 working days. It apologised for its poor communication. It said it would ensure that work took place with the school to review and address the points she had made about lost provision. It said there was no evidence a dysgraphia assessment was required but would ask an educational psychologist to include Y’s handwriting in an upcoming assessment.
62. The Council said it did not agree a personal budget because Y already had a laptop for use at home and school and his school confirmed it would install the software he needed. The Council said it should have put its decision about the personal budget in writing and apologised that it had not done so.
63. The Council accepted Y’s plan had remained in draft for a long time and apologised for this. It said an annual review was due in the autumn term and the Council wanted to work with Mrs X and the school to ensure the provision was in place and any recommendations from the review were responded to promptly.

Analysis

Concerns about provision

64. Despite being aware of Mrs X’s concerns about Y’s provision since January 2020, the Council has been unable to evidence all the provision being delivered or what steps it took to secure the provision in the period under investigation. This is fault.
65. In response to my enquiries, the Council says the school advised it was supplying the provision in the plan. However, the Council has not provided evidence of its communication with the school. The annual review report completed by the school in 2020 referred to a lack of access to ICT and assistive technology, a lack of improvement with Y’s handwriting and a need for touch-typing lessons. The school’s report following the 2021 review referred to a lack mentoring and touch-typing and recorded that a dysgraphia assessment was outstanding.
66. The Council also said provision was affected due to COVID-19. However, the Council had a duty to secure the provision throughout the period under investigation, including making reasonable endeavours to do so in the period May to July 2020. The Council has not been able to evidence it did so, despite Mrs X consistently sharing her concerns. This is fault.
67. Y’s plan contained a requirement for dyslexia and dysgraphia testing to be carried out as soon as possible. The Council failed to arrange the testing required. This is fault. In response to our enquires, the Council accepted the recommendations from the assessment Mrs X commissioned were included in Y’s amended EHC plan. It agreed to reimburse Mrs X for the cost of the assessment. Y has now had a dysgraphia assessment.
68. Y has also been without equipment he needs and support to use this equipment such as touch-typing lessons. There were also delays in securing his social communication sessions, mentoring and reading intervention. This is fault and means Y has not received all the provision he was entitled to.

Annual reviews and amended plans

69. The Council told Mrs X a date had been set for Y’s annual review in March 2020, but there is no record of further communication about this until Y’s school contacted Mrs X in May to invite her to the meeting. This poor communication caused confusion and frustration for Mrs X. However, the Council’s email about the annual review was sent one week before school closures because of the COVID-19 pandemic. While flexibility about the timing of reviews was not formally introduced until 1 May 2020, there was likely to have been some disruption to arrangements for the review before then because of these closures. Therefore, I cannot say that Y’s annual review would have taken place sooner.
70. I cannot consider the actions of Y’s school or therapists from outside the Council in arranging and participating in Y’s annual review in 2020. As the body arranging the meetings the school was responsible for obtaining advice and information about Y and circulating it in advance of the meeting. Education, health and care professionals are required to cooperate with the review process. The actions of the school and professionals external to the Council are not in the Ombudsman’s jurisdiction.
71. In response to my enquiries, the Council said the timing of the annual review in 2021 was agreed between Mrs X and the school. However, the Council told Mrs X it would arrange an early review for Y. It did not do so, and this is fault.
72. I asked the Council whether it had issued any guidance to Y’s school about holding annual reviews, given the concerns expressed by Mrs X and the fact the Council told her its quality assurance team would contact the school to remind it of its duties. The Council could not provide any evidence of contact with the school about this, saying it provides information online about carrying out reviews. This is fault. It undermines Mrs X’s confidence in how the Council followed up her concerns about the annual review process with the school to prevent errors occurring in the future.
73. Mrs X exercised her right to mediation over the final amended plan issued in October 2020. The Council decided to issue an amended draft plan in December 2020 following Y being identified as having dyslexia. This is a decision the Council was entitled to make. However, the Council did not issue a final amended plan until August 2021, nine months later. This was fault.
74. In response to our enquiries, the Council said it had worked with Mrs X to amend Y’s plan and had issued several drafts for her approval but on each occasion Mrs X had requested further changes. Mrs X disputes this; she says she was consistent about the amendments needed to the plan from the start, but the Council failed to carry them out. The provision set out in the plans issued in October 2020 and August 2021 is similar, with most of the proposed changes relating to Y’s needs, therefore it is unclear why it took the Council so long to finalise the plan.
75. The Council is responsible for ensuring plans are amended and finalised within the timescales set out in the Code and not doing so is fault. This delay meant Y had an EHC plan that did not accurately reflect his needs, and he missed out on the extra provision in the amended plan for longer than he should have.
76. In response to our draft decision the Council said its SEND service had been independently reviewed in June 2021 and several areas for development identified including annual reviews, a lack of co-production with families and poor communication. In response to the review the Council has developed an action plan to address the recommendations made. It said “work is underway to tighten processes and increase capacity in relation to annual reviews… In addition, training and recruitment to improve co-production with children, young people and families is underway.”

Complaint handling

77. Some of the Council’s responses to Mrs X were provided outside of the timescales set out in its complaints policy. This is fault.
78. The Council also failed to engage with the substance of Mrs X’s complaints. It should have been able to explain to Mrs X what provision was in place for Y, and what steps it would take to secure any provision that was outstanding. It did not do so, and this was fault.
79. The Council made commitments to Mrs X to act in response to her complaints, including arranging meetings with Y’s school to confirm his provision was in place and holding an early review. However, there is no record of these meetings taking place and the review did not take place early. This was fault.
80. The Council’s failure to provide detailed responses to Mrs X’s complaints caused her frustration as well as time and trouble in pursuing her complaint to the Ombudsman.

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Agreed action

81. Within one month of the final decision, to remedy the injustice caused, the Council will:
• apologise to Mrs X and Y for the injustice caused by the faults identified in this investigation.
• pay Mrs X £500 to recognise the time and trouble taken in pursuing her complaint and the frustration caused by the Council’s faults.
• remedy the injustice to Y of his lost specialist educational needs provision between January 2020 and July 2021 by making a payment of £2,250. In calculating this remedy I have considered the Ombudsman’s guidance on remedies, and have considered what provision Y received in this period, and the lack of evidence of reasonable endeavours. Mrs X can use this for Y’s educational benefit to ensure he catches up, as far as possible, on provision he missed.
• on the production of evidence, reimburse Mrs X for the cost of Y’s dyslexia assessment.
• either secure the ICT equipment set out in Y’s EHC plan or provide Mrs X with a personal budget to purchase the equipment.
• provide Mrs X and Y with a provision map setting out how all the provision in the EHC plan will be delivered.
• issue a final amended EHC plan for Y to prepare him for the transfer from secondary school to post-16 provision.
82. Within one month of this decision, the Council will:
• provide the Ombudsman with an update on its progress with the action plan referred to in paragraph 76; and
• remind officers investigating complaints about the Ombudsman’s ‘Guidance on Effective Complaint Handling in Local Authorities’ which gives advice on what to include in decision letters.

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Final decision

83. I have completed my investigation with a finding of fault for the reasons set out in this statement. Mrs X and Y were caused an injustice by the actions of the Council and it has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman