Summary: Mrs F complains the Council has delayed providing her daughter with a final Education, Health and Care Plan, and she has therefore lost out on special educational needs provision. The Council has accepted there was fault. It has agreed to make a payment to Mrs F for her daughter’s educational benefit.

The complaint

1. Mrs F complains the Council delayed providing her daughter, J, with a final Education, Health and Care Plan, and her daughter has therefore lost out on special educational needs provision.
2. Mrs F says this has caused inconvenience, stress, ill health and depression. It has put a strain on the family and has affected her daughter’s learning.

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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. 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)
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. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
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(if), as amended)
7. 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

8. I spoke to Mrs F about her complaint and considered the Council’s response to my enquiries and:
• the Special Educational Needs and Disability Code of Practice 2015 ("the Code")
• the Special Educational Needs and Disability Regulations 2014 (“the Regulations”)
9. Mrs F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Special educational needs

10. A child with special educational needs may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
11. Some children and young people may require an EHC needs assessment for the council to decide whether an EHC plan is necessary. When carrying out an EHC needs assessment, councils must gather advice and information from relevant professionals such as educational psychologists.
12. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision, the school named in their child's plan, or the fact that no school or other provider is named.
13. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.

Annual reviews

14. The annual review of an EHC plan considers whether the provision remains appropriate and whether progress is being made towards the targets in the EHC plan. Schools are responsible for convening a review. They must invite a local authority SEN officer and a local authority social care representative. The Code says councils must attend the review when requested to do so. (SEND Code of Practice 2015, paras 9.173 & 9.176)
15. Following the review, the school must send a report of the meeting to everyone invited within two weeks. The report must set out recommendations on any amendments required to the EHC plan.

EHC plan timescales

16. The Code says that within four weeks of the review, the council must decide whether it proposes to keep the EHC plan as it is, amend the plan, or cease to maintain the plan. It must then tell the child's parent and the school its decision.
17. If the plan needs to be amended, the council should start the process without delay. It must send the child's parent a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. The parent must be given at least 15 calendar days to comment on the proposed changes.
18. If the council decides to continue to make amendments, it must issue the final amended EHC plan as quickly as possible and within eight weeks of the amendment notice.
19. Parents can appeal to the SEND Tribunal about EHC needs assessments and the special educational element of an EHC plan. Before they do so, they must consider whether to go to mediation. The Regulations set time limits for local authorities to implement any agreements made at mediation. If mediation has agreed to amend the EHC plan, the local authority must issue the amended EHC plan within five weeks.

What happened

20. Mrs F’s daughter, J, has an acquired brain injury which has affected her balance, motor skills, speech and learning. She attended a mainstream primary school (School 1). Following an appeal to Tribunal, the Council issued an EHC plan in February 2018 when J was seven years old.
21. There was an annual review of J’s EHC plan in October 2018. The Council did not attend. Mrs F was concerned about the SEN provision for J and that School 1 was not meeting her needs. It was agreed the EHC plan would be amended and that Mrs F would be involved in the production of the new plan. Mrs F asked for an independent educational psychologist assessment to be done. She also asked for J to have private tuition. I have seen no evidence the Council wrote to Mrs F following the review with its decision to amend the EHC plan.
22. Mr F complained in November 2018 about delay in finalising the EHC plan, and that the Council had not attended the annual review.
23. The Council issued a draft amended EHC plan on 14 December 2018. Mrs F was unhappy with it. She asked for private speech and language and occupational therapists to assess J. The Council agreed to this. Mrs F also asked for J to move to School 2, another mainstream primary school. She started there in February 2019.
24. The Council responded to Mrs F’s complaint on 15 February 2019. It apologised for the delay in issuing the final EHC plan. It said there was no statutory duty to attend all annual reviews and the local authority had not attended J’s as there were no issues relating to funding or change of placement.
25. The Council sent a further draft plan to Mrs F on 19 February 2019 and issued a final EHC plan on 26 March 2019. This named School 2 and said J required:
• private tuition four times a week
• a designated key worker and daily support in class
• interventions three times a week advised by speech and language and occupational therapists
• small group work, for example for maths and handwriting
• 10 minutes of physiotherapy per day
• extra breaks
26. Mrs F remained unhappy with the plan and sought mediation. At the mediation meeting on 22 May 2019 the Council agreed:
• to include the recommendations of the SALT report; the daily 20 minutes provision would remain.
• to record that currently nearly 9 hours of interventions are included in the plan meaning that J might miss nearly 2 days of lessons.
• to record that Mrs F would prefer that J was allocated her own teaching assistant which might reduce the amount of time out of lessons.
• to post the new final draft plan to Mrs F by 7 June 2019.
27. Mrs F did not accept the amended plan; she wanted J to have one-to-one provision. The Council met Mrs F on 22 July 2019 to discuss and she also requested a social care assessment. The Council issued two more draft plans in August and October 2019.
28. Mrs F complained to the Ombudsman but it was too soon for us to consider as she had not yet completed the Council’s complaint procedure.

The Council’s response to Mrs F’s complaint

29. The Council sent a final complaint response on 3 December 2019. It accepted there had been delays to some of J’s SEN support being provided and apologised for this. This had been caused by problems with staffing levels and the need to complete assessments, including SALT, Occupation Therapy, ADHD, Children and Families Assessment and a Carers Assessment. The Council acknowledged there had been inconsistent case management, poor communication and a breakdown in trust. The Council said it had taken time to deal with Mrs F’s complaint partly due to having to clarify the complaint with Mrs F. The Council said it had:
• implemented the mediation recommendations
• agreed a short break for J
• arranged a multi-agency meeting in December 2019 to agree the plan
• proposed to hold the next annual review after 6 months
30. The school had amended J’s timetable and added some additional interventions and adjustments. The Council said one-to-one support was being provided by the private tutor. The Council had restructured the EHC team, trained staff, and introduced a quality assurance framework. It would also provide a formal summary for all key meetings and identify EHC coordinators for each young person.
31. Mrs F remained dissatisfied. She said J did not get any one-to-one support, the school had not changed the timetable and there was no speech and language therapy or OT support in place. Mrs F complained to the Ombudsman in January 2020. The length of our investigation was affected by the coronavirus pandemic.

Events since the complaint

32. Mrs F says she then insisted the Council issue a final plan, and this was done on 17 February 2020. Mrs F appealed to the Tribunal and the hearing was held in October 2020.

My findings

33. The Council has accepted there was delay in issuing the final EHC plan. I have found two periods of delay.
34. Following the October 2018 annual review, the Council should have written to Mrs F within four weeks to say whether it intended to amend the EHC plan. I have seen no evidence it did so, which is fault. However, I consider the injustice is limited, as Mrs F was aware the EHC plan was to be amended.
35. The Council started to amend the plan and issued a draft EHC plan on 14 December 2018. This was the notice of amendment and the Code says the Council should have issued a final plan within eight weeks i.e. by 8 February 2019. It was not sent until 26 March 2019. This first period of delay was fault.
36. The second delay occurred after mediation. Following the meeting on 22 May 2019, a further draft EHC plan was issued on 7 June 2019. Although this was agreed with Mrs F, this was fault. The Regulations say that an amended EHC plan should be issued within five weeks of mediation, this means a final plan not a draft. The final EHC plan was not sent until 17 February 2020.
37. I appreciate the Council was working with Mrs F to amend the plan and that Mrs F asked for a number of assessments. But the Council did not need to wait until Mrs F was happy to issue the plan. The Code and Regulations are clear about when final plans should be issued, this enables parents to use their appeal rights if they choose to do so.
38. Mrs F complains J was not receiving the SEN support she needed. It is not the Ombudsman's role to determine the suitability of the education provision, either quality or amount, that J should receive. My role is to consider whether the Council provided education and the support set out in J's EHC plan.
39. In response to my enquiries, the Council sent information from School 2 about the provision it was making for J. This shows it was not providing all the support set out in the March 2019 EHC plan. For example, J was not receiving OT or SALT input or all the small group sessions. This is fault; the Council must ensure the arrangements specified in the EHC plan are put in place.

Did the fault cause injustice?

40. After J started at School 2 in February 2019, it was working to the February 2018 EHC plan until the new one was issued in March 2019. The provision in the March 2019 plan was significantly different to the previous, including private tuition and input from SALT and OT. As the final EHC plan was delayed, this meant J did not receive the support she should have for about one school month, that is her injustice. It also meant Mrs F’s opportunity to appeal to Tribunal was delayed, although I must consider that she did not appeal when she received the final plan.
41. Following mediation, a final amended EHC plan should have been issued in June 2019 and J potentially lost out on provision until it was issued in February 2020. I do not consider there was a significant difference between the March 2019 plan and the June 2019 plan. I therefore do not find this delay caused significant injustice to J.
42. However, as I have found in paragraph 39, J missed out on SEN provision from March 2019 to February 2020, a period of about eight school months, and as the EHC plan was not finalised, she also missed out on an annual review in October 2019. This is her injustice. The lack of support for J has also caused distress to Mrs F and her family.
43. The Ombudsman's guidance on remedies says where fault has resulted in a loss of educational provision, we will usually recommend a payment to acknowledge the impact of that loss. The monies should be used for J's educational benefit and to arrange whatever additional provision is necessary to make up for the provision she has missed out on. In determining the amount, I have considered that J was in school receiving education and some SEN support, and whether additional provision now can remedy some or all of the loss.

Agreed action

44. Within a month of my final decision, the Council has agreed to:
• Write to Mrs F to apologise for the failure to provide all J’s SEN provision.
• Pay Mrs F £200 to acknowledge the avoidable distress this caused her.
• Pay Mrs F a further £2,700, for J’s educational benefit, in recognition of the loss of some SEN provision for nine school months (February to March 2019 and March 2019 to February 2020).

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Final decision

45. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman