Summary: Mr Y complained the Council failed to properly ensure his child X’s special educational provision under Section F of the Education Health and Care plan was provided, including that school staff were correctly trained. He also complained it failed to complete the annual review of the plan within the statutory timeframes. The Council’s fault meant the review of the plan was not completed until four months later than it should have been. This caused injustice to X because it delayed triggering appeal rights to the Tribunal. As the Tribunal required additional provision to be put in place X therefore probably missed out on appropriate special educational provision for four months. The Council has agreed to recognise the impact and injustice caused by making a payment of £2,100 to X and her family.

The complaint

1. Mr Y complained the Council failed to properly ensure the provision under Section F of his child’s (X) Education, Health and Care (EHC) plan was provided by the school, including that school staff were correctly trained and it failed to complete the annual review of the EHC plan within the statutory timeframes.
2. Mr Y said X has not received the provision under Section F which has affected X’s education and development. He also says the delay in completing the annual review led to further upset and uncertainty for his family and for X.

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What I have investigated

3. I have investigated Mr Y’s complaint about the Council’s actions in respect of the EHC plan and annual review. I have not investigated the actions of the school for the reasons set out in paragraph 42.

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The Ombudsman’s role and powers

4. 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)
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
6. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
7. 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)
8. 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

9. I spoke to Mr Y about his complaint initially. I gathered and considered the information provided by the complainant and Council about the complaint before reaching a draft decision.
10. I have considered the Ombudsman’s guidance on remedies.
11. I wrote to Mr Y and the Council with an earlier draft decision and given them an opportunity to comment. I considered the comments and revised the draft decision for Mr Y and the Council to comment further on. I have considered the further comments received before making this final decision.

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What I found

Education, Health and Care Plans

12. A child with special educational needs (SEN) 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.
13. The EHC plan is set out in sections. Section F sets out the special educational provision required to meet each need identified in Section B of the EHC plan. The Council has a statutory duty to provide provision in Section F.
14. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ sets out the process for carrying out EHC assessments and producing EHC Plans. This says:
• Councils must review an EHC Plan at least every 12 months. The first review must take place within 12 months of the date when the EHC plan was issued, and then within 12 months of any previous review.
• As part of the review the council must ensure there is a meeting. It must invite the child’s parent or the young person, a SEN officer from the council, and representatives from the health service and social care. It may invite others where relevant.
• The council must seek advice and information about the child or young person from all those invited before the meeting. It must send the information received to all those invited at least two weeks before the meeting.
• The council must write to the child’s parent or the young person within four weeks of the review meeting to give its decision to keep the EHC Plan as it is, amend it or end it. The review meeting decision must be notified to the child’s parent within 12 months of the initial plan or the last review of the plan.
• If the Plan needs to be amended the council should start the process of amending it “without delay”. It must:
1. send the child’s parent or the young person a copy of the EHC Plan with details of the proposed amendments and any evidence it has supporting the amendments;
2. tell them of their right to ask for a particular school or other placement to be named in the Plan and advise where they can find information about placements available;
3. give the parent or young person at least 15 days to make representations on the proposed changes or request a particular school.
• If the council decides to amend the EHC Plan following the representations it must issue the final amended EHC Plan within eight weeks of the original amendment notice. It must tell the parent or young person about their right of appeal.

(Special Educational Needs and Disability Regulations 2014, regulations 18-22)

What happened

15. Mr Y’s child, X has had an EHC plan since they were four years old. X has Down’s syndrome, developmental delays and an ongoing heart condition. X also has cognitive and communication difficulties.
16. X began infant school education in the school year 2017 – 2018. The EHC plan was due for an annual review in May 2018. In December 2017 the Council wrote to the school to ask them to arrange the review meeting and send the Council a report by May 2018.
17. The annual review meeting and the school’s report were not completed before the deadline. A meeting was held with the family to update the EHC plan, but not review it, in June 2018.
18. In emails to the Council in July, Mr Y said X was already struggling and needed the provision to be reviewed and changed to suitably meet her needs. He also said many areas in the existing EHC plan were not being delivered by the school.
19. An annual review meeting was held in July 2018 with the family, school, various professionals involved with X and the Council’s officer. The Council sent the family a letter confirming its decision following the review in September 2018. Further emails were exchanged between Mr Y, the Council and the school. These emails discussed and amended a drafted version of an updated EHC plan for X between September and November 2018.
20. In November 2018, the Council issued an updated EHC plan to reflect the progress made on Mr Y’s concerns. The Council also gave details on how Mr Y could challenge the content of the EHC plan at the SEND Tribunal.
21. Mr Y has since appealed to the Tribunal about the content of X’s EHC plan. Mr Y has continued to complain to the school that it was not fulfilling the provision set out in the EHC plan throughout.
22. Mr Y complained to the Council in mid-November 2018. Mr Y complained, amongst other issues, about the lack of provision being provided and the delay in the review being completed.
23. In response the Council asked the school to complete an EHC plan checklist, showing the provision to be made and when the school had implemented the provision with X. The school’s head teacher signed the checklist to declare that it was providing the provision set out in the EHC plan.
24. The Council responded, partially upholding the complaint in December 2018. The Council said that to investigate the delivery of the provision within the EHC plan the school had completed a provision checklist. The Council said the outcome of this checklist was that it was satisfied the school had implemented and delivered the EHC plan. However, it agreed the annual review was not held in a timely manner and the statutory deadline had been missed. The Council apologised for this. The Council repeated this response at Stage 2 of its complaints process.
25. In response to my enquiries, the Council provided a list of the training of the staff at the school had received and had planned for the academic year 2019/2020. It has also provided a summary of the support and training provided for the staff working with X in March and September 2018.
26. Since the start of this investigation, the SEND Tribunal has ordered the Council to amend the EHC plan to increase the provision significantly. It included 38 hours, rather than 10, for speech and language therapy and 1:1 support for X by a specific teaching assistant, trained specifically to understand Down’s syndrome and its impact on X. The order was made in July 2019.

Analysis

a) Delivery of provision required by X’s EHC plan

27. In November 2018 the Council checked with the school that it was delivering part F of the plan. It could have done so sooner, when Mr Y first drew its attention to the issue in July 2018. This delay did not disadvantage X. This is because, based on its assessment, it decided the school had been providing what was required by the plan.
28. The Council based this decision by appropriately gathering evidence from the school. The checklist it asked for was specific to X’s provision in its nature and timing of the delivery. The Council was entitled to rely on this evidence as the basis for exercising its professional judgement that the provision was being delivered.
29. The Council has also provided a summary of the training received by several members of staff at the school who have involvement with X. The checklist document also lists various courses of training that staff have undertaken relating to meeting X’s needs. This was, as explained above, enough to satisfy the Council that the training for staff was sufficient to deliver the provision in X’s EHC plan.
30. Mr Y disagrees with the Council and school’s decision, but there was no fault in how the Council reached its decision about the adequacy of provision and so I cannot question that decision. We cannot investigate the school’s actions or decisions.
31. As the Council made its enquiries, received evidence specific to the issue complained of, which it felt was sufficient, it was not fault for the Council to rely on this signed statement.

b) Timing of the annual review

32. Councils must carry out reviews of EHC plan at least every 12 months as a minimum. X’s annual review was due for completion, at the latest in May 2018. The Council failed to ensure this deadline was met with the decision following the review meeting not being provided in writing until September 2018. This delay led to the statutory duty not being met and was fault.
33. The fault led to a delay of approximately four months in Mr Y being able to use his right of appeal to the Tribunal. I have considered how this impacted Mr Y but most importantly how it impacted X. X’s family challenged the content of the EHC plan following it being issued in November 2018 in the SEND tribunal. But for the fault it is likely to have been issued four months earlier, triggering the right of appeal to SEND and, consequentially the SEND tribunal would probably have happened four months earlier.
34. During this time, while the provision was updated and later amended following the tribunal’s decision, X continued to receive the provision required by the EHC plan 2017 - 2018. However, the tribunal significantly increased the provision to be provided. This increased provision would likely, but for the fault, have been in place four months sooner.
35. The Ombudsman’s guidance on remedies sets out the principles we follow in accessing remedy payments for SEN complaints. It explains that, when fault has resulted in a loss of educational provision, we would usually recommend between £200-£600 for each month of that loss.
36. This remedy figure is impacted by several factors, such as whether additional provision can now remedy the loss of provision and whether the period affected was significant to the child’s schooling.
37. While X is still at the start of her education, the tribunal found X to be at a “crucial stage” of X’s education. The tribunal said, despite X being in a class a year younger than their year group, they were falling behind, with the gap between them and other children getting wider. This was particularly shown through X not being able to access the curriculum as others were, and still focusing on early years skills.
38. The impact of the lost provision for four months will therefore likely have been significant for X and have contributed to the increase of the gap for X. Having considered this I have concluded that a remedy payment should be offered at the higher end of the range, although because X can likely make up the gap, not the very highest. I therefore recommend the Council pays £500 for each of the four months of lost provision.
39. The delay in the annual review also affected X’s family, particularly their parents. X’s parents throughout their correspondence, express concern, worry and frustration about the delay, as well as the provision. The Council has apologised to the family and put in new checks to ensure the delay does not reoccur, this does not remedy the emotional impact on them. As the family’s focus has always been X, I am recommending a modest payment to recognise the impact to the family of £100.

Agreed action

40. To remedy the injustice I have identified, the Council has agreed, within one month of a final decision, pay a total of £2,100 to X’s family to recognise the impact of the delay in carrying out the annual review of X’s EHC plan.

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Final decision

41. Subject to further comments by Mr Y and the Council, I have completed my investigation to find the Council was at fault for delaying the annual review of X’s EHC plan for four months. The Council has agreed action to remedy the injustice caused.

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Parts of the complaint that I did not investigate

42. I have not investigated the actions of the school, the behaviour and approach of its headteacher. Mr Y has taken concerns about the adequacy of the EHC plan to the SEND tribunal. The Ombudsman cannot challenge the contents of the EHC plan.

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Investigator's decision on behalf of the Ombudsman