Summary: Ms X complains about the Council’s actions in relation to her son’s special educational needs. She complains about the delays in the annual review process in 2019 and delay in the Council naming a special school in her son’s education, health and care (EHC) plan. We find fault as there was delay in the Council responding to the annual review report. We have made recommendations.

The complaint

1. Ms X complains about the Council’s actions in relation to her son’s special educational needs. She says the Council failed to provide her son with speech and language therapy and occupational therapy support when he was in primary school. She also complains about delays in the annual review process in 2019 and delay in the Council naming a special school in her son’s education, health and care (EHC) plan.
2. Ms X says the Council’s actions meant her son spent longer in an unsuitable school than necessary and lost out on education as his school placed him on a reduced timetable. She says the Council’s actions caused her distress and impacted on her ability to work as she had to collect her son from school early.
3. Ms X is represented by Ms P.

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What I have investigated

4. I have investigated Ms X’s complaints about the delay in the annual review process in 2019 and the delay in the Council naming a special school in her son’s EHC plan.

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The Ombudsman’s role and powers

5. 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)
6. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
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)

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How I considered this complaint

8. I spoke with Ms P and considered the information she provided.
9. I made enquiries with the Council and considered the information it provided.
10. I sent a draft decision to Ms X, Ms P, and the Council for their comments.
11. 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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What I found

Legislation and guidance

12. The special educational need and disability (SEND) code of practice sets out the duties of local authorities to provide for those with special educational needs under part 3 of the Children and Families Act 2014.
13. It notes EHC plans should be used to actively monitor children and young people’s progress towards their outcomes and longer-term aspirations. The local authority must review them every 12 months.
14. Within four weeks of the review meeting, the local authority must decide whether it proposes to keep the plan as it is, amend the plan, or cease to maintain the plan, and notify the child’s parents or the young person. If the plan needs to be amended, the local authority should start the process of amendment without delay.

What happened

15. Ms X’s son, A, has an Educations, Health, and Care (EHC) plan. The EHC plan in March 2018 named a mainstream secondary, School 1, as A’s placement.
16. The evidence available suggests School 1 was Ms X’s preferred school at the time. The Council provided Ms X with her appeal rights in March 2018 after the EHC plan was finalised which named School 1. There is no evidence Ms X appealed. A started at School 1 in September 2018.
17. In January 2019, School 1 completed an annual review. In the annual review report, the school noted it could not meet A’s complex needs. School 1 recommended A’s needs were more suited to a specialist education setting.
18. The annual review also noted the family had discussed the possibility of moving A to a specialist provision, but that Ms X was concerned this would be very unsettling and destabilising for A. For this reason, the family asked the Council amend A’s EHC plan to provide extra provisions to help the school support A.
19. The Council did not respond to the recommendations in the January 2019 annual review report.
20. In April 2019, School 1 contacted the Council to reiterate the points made in the annual review report. The school also noted Ms X was now in agreement a specialist placement would be preferable for A.
21. The Council responded to School 1 in May 2019. The Council said it agreed to commission the extra provisions requested in January 2019, but did not agree to seek a specialist placement for A.
22. In June 2019, Ms X appealed to the Tribunal about the Council’s decision to name School 1 in A’s EHC plan, rather than a specialist school.
23. School 1 introduced a reduced timetable for A at the end of June 2019. This continued until the end of July 2019. The Council was aware of the changes made to A’s school timetable.
24. In mid-July 2019, the Council agreed to consult with specialist schools about a placement for A. The Tribunal considered the Council had conceded the appeal as the issue underlying it was resolved in Ms X’s favour.
25. The Council amended A’s EHC plan at the beginning of October 2019. The EHC plan named a specialist school, School 2, as A’s placement. A started at School 2 at the end of October 2019.
26. In December 2019, Ms X made a complaint to the Council. The Council provided its final response to the complaint in April 2020. The Council accepted fault for the delay in responding to A’s annual review report in January 2019. The Council said if it had started the interventions asked for in the annual review within the statutory timescales, it was likely A would have received the extra provisions half a school year sooner than he did.
27. The Council also noted the delay had created some uncertainty as there were two potential outcomes had the Council acted without delay. The Council said A’s placement at School 1 could have been sustainable if it had introduced the extra provisions sooner. Alternatively, the Council could have agreed earlier that a specialist placement was preferable. The Council noted if this had happened, it was likely A could have started at a specialist school in September 2019 at the latest.
28. To recognise the injustice caused by the delay, the Council offered Ms X a payment of £500. The Council also offered to provide A with half a school year worth of extra speech and language therapy and occupational therapy support.
29. The Council confirmed it had commissioned an occupational therapist to deliver the extra session of occupational therapy for September 2020. However, when the school reopened followed lockdown due to the Covid-19 pandemic, the school adopted a policy of not allowing visitors. The Council offered A therapy virtually, but Ms X felt it would not be suitable for A. The Council said it had agreed the additional occupational therapy would take place once face to face sessions could be delivered.
30. The Council also confirmed School 2’s speech and language therapist would deliver the extra speech and language therapy sessions as part of their provision in school during the academic year.

Analysis

31. The Council has accepted fault for the delays in responding to A’s annual review report in January 2019.
32. I agree with the Council’s view there was fault. The Council should have decided within four weeks, in line with the code of practice, whether to keep the EHC plan as it is, amend the plan, or end the plan. The Council did not decide to amend the EHC plan until May 2019, this was a delay of around three months.
33. I note the evidence available suggests Ms X did not want A to move to a special school in January 2019 because of concerns about a move being unsettling and destabilising for A. The report instead noted the family’s request for the Council to update A’s EHC plan to provide extra provisions to help the school support A.
34. However, Ms X’s position had changed by April 2019, when the school contacted the Council again about the annual review report. Ms X now wanted the Council to name a specialist school in A’s EHC plan. When the Council responded in May 2019, it agreed to the extra provisions originally asked for in January 2019, but not to the request for a specialist school.
35. I do not feel I can decide, even on balance, what would have happened had the Council responded to the annual review report without delay. As highlighted by the Council, it is possible it could have agreed earlier that a specialist placement was preferable. This in turn could have led to the Council naming a specialist school in A’s EHC plan sooner. It is also possible A’s placement at School 1 could have been sustained with the extra special educational provisions requested. Therefore, the Council’s delay has caused some uncertainty.
36. I am also satisfied the delay meant it was likely, on balance, A lost out on the special educational provisions he needed. This is because he would have received the extra special educational provisions half a school year sooner than he did.
37. I have considered whether the Council’s remedy offer is appropriate given the circumstances. I consider the Council’s offer to provide half a school year worth of extra speech and language therapy and occupational therapy support appropriate.
38. With regards to the Council’s offer of £500, I note the Council, in reaching this figure, has considered the uncertainty and loss of special educational provision caused by the delay.
39. However, the Council has not properly considered the impact of the delay on A’s education. The evidence shows School 1 introduced a reduced timetable for A at the end of June 2019. While the reduced timetable was only in place for around a month, I am satisfied this meant A did lose out on some education because of the delay.
40. The Council has also not properly considered the impact of the delay on Ms X. Ms was caused some inconvenience as she had to work around A’s reduced timetable.

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Agreed actions

41. To remedy the injustice caused by the fault identified, the Council has agreed to complete the following:
• Apologise to Ms X for the delay in amending A’s EHC plan following the annual review in January 2019.
• Pay Ms X £600 to recognise the uncertainty, loss of special educational provision, and loss of education.
• Pay Ms X £100 to recognise the inconvenience caused to her by the fault identified.
42. The Council should complete the above within four weeks of the final decision.
• Provide half a school year worth of extra speech and language therapy and occupational therapy to A once face to face sessions can be provided.
43. The Council should provide the Ombudsman with an update on this recommendation within eight weeks of the final decision.

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Final decision

44. I find fault as there was delay in the Council responding to the annual review report. I consider the fault identified caused both A and Ms X an injustice. The Council has accepted my recommendations. Therefore, I have completed my investigation.

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Parts of the complaint that I did not investigate

45. I did not investigate Ms X’s complaint about the Council failing to provide her son with speech and language therapy and occupational support when he was in primary school. This is because the Council is out of time as Ms X could have complained about this in 2016. There are no good reasons for why Ms X could not have complained about the matter earlier.
46. Further, Ms X would also have had the right of appeal to the tribunal if she was unhappy with the special educational provision set out in her son’s EHC plan. There is no evidence to suggest Ms X appealed when the Council finalised her son’s EHC plan in 2016.

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Investigator's decision on behalf of the Ombudsman