Summary: Mrs B complained the Council delayed her son’s Education, Health and Care plan review process and did not deliver all the provision in her son’s plan. Mrs B said her son lost provision and she was put to time and trouble chasing the Council. The Council was at fault for failing to hold annual reviews and ensuring C received the provision he was entitled to. The Council has taken some steps to remedy the injustice caused by its faults. The Council has agreed to make a financial payment to Mrs B to remedy the outstanding injustice.

The complaint

1. Mrs B complained the Council delayed her son’s Education, Health and Care (EHC) plan review process. She also complained it did not deliver the speech and language and occupational therapy provision in her son’s EHC plan. I investigated the period between September 2019 and October 2020.
2. Mrs B said her son lost EHC provision. She also said she was put to time and trouble and caused stress by having to chase the Council to fulfil its statutory duties.

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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. 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)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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How I considered this complaint

6. I considered:
• Mrs B’s complaint and the information she provided;
• documents supplied by the Council;
• relevant legislation and guidelines; and
• the Council’s policies and procedures.
7. Mrs B and the Council had the opportunity to comment on a draft decision. I considered their comments before making a final decision.

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What I found

Legislation and guidance

8. A child with special educational needs may have an 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 which include.
• Section B: The child or young person’s special educational needs.
• Section E: The outcomes sought for the child or the young person.
• Section F: The special educational provision required by the child or the young person.
• Section I: The name and type of school.
9. We cannot direct changes to the sections about education or name a different school. Only the Special Educational Needs and Disability (SEND) tribunal can do this.
10. EHC plans should reviewed by the council at a minimum every 12 months.
11. The school must prepare and send a report of the meeting to everyone invited within two weeks of the meeting. The report must set out recommendations on any amendments required to the EHC plan and should refer to any difference between the school’s recommendations and those of others attending the meeting.
12. Within four weeks of the review meeting, the council must decide whether it proposes to keep the EHC plan as it is, amend the plan, or cease to maintain the plan, and notify the child’s parent or the young person and the school or other institution attended.
13. Where the council proposes to amend an EHC plan, it must send the child’s parent or the young person 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.
14. The council must give the parent or young person at least 15 days to comment and make representations on the proposed changes, including requesting a particular school or other institution be named in the EHC Plan.
15. Following representations from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC Plan as quickly as possible and within eight weeks of the original amendment notice.
16. Where an EHC plan is amended, the following review must be held within 12 months of the date of issue of the original EHC plan or previous review (not 12 months from the date the amended EHC plan is issued).
17. When sending the final amended EHC plan, the council must notify the child’s parent or the young person of their right to appeal and the time limit for doing so, of the requirement for them to consider mediation should they wish to appeal, and the availability of information, advice and support and disagreement resolution services.
18. The whole process of EHC needs assessment and EHC plan development, from the point when an assessment is requested (or a child or young person is brought to the council’s attention) until the final EHC plan is issued, must take no more than 20 weeks.
19. Where the SEND tribunal orders a council to amend an EHC Plan, the council shall amend the EHC Plan within five weeks of the order being made. (Special Educational Needs and Disability Regulations 2014)
20. On 1 May 2020, the Secretary of State issued a notice under the Coronavirus Act to give councils more flexibility 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.
21. Councils have a duty to ensure the special educational provision set out in an EHC plan is delivered. Reading Borough Council contracts out its education services to Brighter Futures for Children (BFfC). When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them.

What happened

22. This investigation considers matters from September 2019 to October 2020. To provide context, I have included some events that occurred before September 2019 in the chronology. The chronology includes key events in this case and does not cover everything that happened.
23. In May 2018, BFfC issued a final EHC plan for C. In August 2018, Mrs B appealed to the SEND tribunal. The SEND tribunal hearing was held in May 2019. The tribunal issued its final order in June 2019. The tribunal named a special school, School 1, in section I of C’s EHC plan. It also ordered the Council to provide C with:
• weekly hour-long speech and language therapy sessions; and
• fortnightly occupational therapy sessions.
24. BFfC issued C’s final EHC plan in July 2019. C started to attend School 1 in September 2019.
25. In January 2020, Mrs B told BFfC School 1 was not delivering the occupational and speech and language therapy in C’s plan.
26. BFfC wrote to School 1 in February 2020. It asked School 1 to confirm it was providing C with the provision detailed in his EHC plan. School delayed responding. The Council chased it for a response and told Mrs B it would write to the School’s Governors. School 1 replied in April 2020. It said C was receiving one 30-minute session with a speech and language therapist and a further 30 minutes with an assistant each week. It explained it could not provide hour-long sessions with a therapist because of staffing issues. It advised that since November 2019, C had received at least an hour and 15 minutes of occupational therapy each week.
27. School 1 held an annual review of C’s EHC plan in June 2020. Mrs B raised concerns about the speech and language therapy provided to C and the therapist’s report. The meeting was reconvened because of disputes between the parties. School 1 held another meeting in July 2020. Attendees recommended BFfC amend sections B, E and F of C’s EHC plan. Mrs B told the Council the meeting was not a legal EHCP review because it did not address the lack of provision.
28. Mrs B made a Subject Access Request to the speech and language therapy provider. She told BFfC these records showed the provider had only delivered two direct therapy sessions since C joined School 1. One of the recorded sessions was the EHC plan review meeting.
29. BFfC issued Mrs B with an amendment notice in July 2020. School 1 sent Mrs B minutes of the annual review meeting. In August 2020, BFfC issued an amended draft EHC plan. It removed the direct speech and language and occupational therapy the SEND tribunal ordered in June 2019. Mrs B asked for an extension to respond to the draft EHCP because she was on holiday. The Council gave her a one-day extension.
30. Mrs B challenged the plan. BFfC issued a second draft EHC plan in September 2020. This reinstated C’s speech and language and occupational therapy provision. In October 2020, it issued a final EHC plan.

Complaint

31. Under a Service Level Agreement, complaints about the services provided by BFfC are coordinated by the Council’s Customer Relations Team.
32. In July 2020, Mrs B formally complained to the Council. Her complaint included that the Council delayed C’s 2019 and 2020 annual reviews, did not secure the speech and language provision in his EHC plan and the speech and language report written for the 2020 review was not fit for purpose. She also complained she had not received minutes from C’s annual review meeting.
33. The Council responded in August 2020. It accepted C’s 2019 annual review was delayed. It did not uphold her other complaints. The Council asked School 1 to send Mrs B minutes of the annual review meeting, which it did.
34. Mrs B said the Council had misunderstood her complaints and its justifications did not make sense and were not consistent with policy and guidance. She asked it to escalate the matter to stage two.
35. BFfC arranged for Mrs B’s complaint to be investigated at stage two of its complaint procedure. The investigating officer upheld her complaint and found:
• “The annual review process has fallen short of expectations given that [Mrs B’s] experience has not felt like a collaborative process and she feels she has not been listened to and has had to fight to get her views understood.”
• “A decision to maintain provisions within the EHC plan in line with the previous tribunal could have been made sooner.”
• “The Annual Review process has not yet concluded as the EHC plan is yet to be finalised.”
36. The officer recommended BFfC:
• Arrange for an Independent Advocacy Service to provide mediation to Mrs B and BFfC.
• Work collaboratively with parents to develop clearer and accessible information about the local annual EHC plan review process.
• Work collaboratively with professionals and schools to develop a common understanding of expectations to improve practice relating to the annual review process.
• Reflect on any opportunities for further learning from this complaint and consider how this can be applied to improve practice.
37. BFfC wrote to Mrs B in October 2020. It confirmed it upheld her complaint and accepted the recommendations in the stage two report. It offered her £100 for the time and trouble she was put to having to complain. Mrs B brought her complaint to the Ombudsman.
38. In January 2021, BFfC agreed to give Mrs B a personal budget for her to pay for sessions to remedy C’s lost provision. It agreed to fund:
• 38 one-hour speech and language sessions; and
• 19 one-hour occupational therapy sessions.
39. As part of my enquiries, BFfC provided an update on its progress actioning the stage two complaint report recommendations. It confirmed:
• It offered Mrs B mediation and she declined this awaiting this decision.
• The Council has updated the information on its website about EHC plans and the annual review process.
• BFfC will send schools reminders three times a year about holding EHC plan reviews.
• BFfC will review its standard operating processes and incorporate the learning from this complaint.

Analysis

40. BFfC had a duty to ensure C received the provision in his final EHC plan from July 2019 to October 2020, when it issued a new EHC plan. In April 2020, School 1 advised BFfC it could not provide C with weekly hour-long sessions with a speech and language therapist. This was supported by the information Mrs B received when she made a Subject Access Request to the provider. C missed provision in his EHC plan. Not ensuring C received the provision in his plan was fault by BFfC.
41. It is unclear how much speech and language and occupational therapy provision C missed between September 2019 and October 2020. However, in January 2021 BFfC agreed to give Mrs B a personal budget to pay for an academic years’ worth of speech and language and occupational therapy. I consider this to have remedied any lost provision. It is positive that BFfC took assertive action to offer to remedy this injustice before the completion of my investigation.
42. BFfC should have arranged a review of C’s EHC plan at least yearly from the date of his first EHC plan, May 2018. BFfC did not hold a review until June 2020. Between May 2019 and June 2020 there was a delay of over a year; this was fault. BFfC accepted there was a delay in C’s EHC plan review at stage one and two of its complaint procedure.
43. School 1 held an annual review in June and July 2020. BFfC issued a notice to amend C’s EHC plan within four weeks of the review in July 2020. It then had eight weeks to issue C’s final EHC plan. BFfC delayed issuing C’s final EHC plan by five weeks, this delay was fault. Failure to meet the statutory timescales meant BFfC failed to regularly review C’s needs, provision, and progress. This caused injustice to C and Mrs B. If BFfC had undertaken EHC plan reviews on time, it would have picked up the problems with C’s provision earlier. It would have saved Mrs B from having to chase BFfC which put her to time and trouble and caused her stress. Delays also frustrated Mrs B’s appeal rights. C’s lost provision has already been remedied. The Council has agreed to make a financial payment to remedy the outstanding injustice to Mrs B.
44. The service improvement recommendations made at stage two of the complaint investigation and accepted by BFfC should ensure these faults do not occur again.

Agreed action

45. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with BFfC, I have made recommendations to the Council.
46. Within one month of the final decision, the Council will pay Mrs B £200 to recognise the time and trouble she was put to and the stress this caused.
47. The Council should provide the Ombudsman with evidence these actions have been completed.

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Final decision

I have completed my investigation and uphold Mrs B’s complaint. Mrs B was caused an injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman