Summary: Mrs C complained the Council caused delays when it reviewed her son’s Education, Health and Care plan, and it failed to put in place some agreed special educational needs provision. We found the Council caused unnecessary delays in reviewing the final amended EHC plan and to put in place the agreed provision for Mrs C’s son, including delays in arranging her direct payment. The Council agreed to apologise to Mrs C and make payment to acknowledge the distress and costs she had, including the loss of educational provision her son experienced.

The complaint

1. The complainant, whom I shall refer to as Mrs C, complained about the Council’s handling of her son’s (Child X) amended Education, Health and Care (EHC) plan following an annual review. She said it:
• wrongly removed agreed provision in Child X’s EHC plan and caused delays in issuing a plan which met his needs;
• failed to comply with agreed actions in the spring 2021 mediation meeting;
• caused delays in setting up its direct payment for some of Child X’s SEN provision;
• failed to tell her about concerns raised by Child X school; and
• wrongly shared Child X’s EHC plan with a Health Trust.
2. As a result, Mrs C said she and Child X experienced distress, and he had a loss of special educational needs (SEN) provision. She also said she had time and trouble, and costs to get the Council to set out the agreed SEN provision in Child X’s EHC plan.

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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. We cannot question whether an organisation’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)
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
6. 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)
7. If we are satisfied with an organisation’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. As part of my investigation, I have:
• considered Mrs C’s complaint and the Council’s responses;
• discussed the complaint with Mrs C;
• considered the Council’s amended draft and final EHC plans for Child X;
• considered the law and guidance relevant to the complaint.
9. Mrs C 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

Relevant law and guidance

Education, Health and Care (EHC) Plan

10. A child with special educational needs may have an EHC plan. This 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. When reviewing an EHC plan, a council must:
• ensure a school has sought advice and information about the child or young person before the meeting from all the parties invited, and share the information gathered at least two weeks before the meeting;
• within four weeks of a review meeting, notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. If a council decides to amend the plan, it should start the process of amendment “without delay”;
• send a draft EHC plan to the parent or young person for comment after it has made its amendments. The parent or young person has at least fifteen calendar days to suggest changes and express a preference for a school;
• issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the draft plan to the parents;
• after issuing it final amended EHC plan, give parents the 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.
12. 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.
13. Section F of an EHC plan sets out the special provision the child needs. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person. 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)

What happened

14. Mrs C’s son, Child X, has complex needs which was set out in his EHC plan in 2019. He has been attending a mainstream school (the School), which provided his SEN provision.
15. Child X’s EHC plan was due to be reviewed in Spring 2020. Mrs C told the Council she believed he had further SEN. She said an occupational therapy (OT) and an educational psychologist (EP) assessment were needed to properly review and establish Child X’s needs.
16. In early 2020, Mrs C arranged for an OT and an EP assessment of Child X. She said this was because the Council had not arranged for any assessments before the annual review.
17. In spring 2020 the Council held Child X’s annual review and Mrs C provided the Council the OT and EP reports. A meeting was also held in which the Council agreed to include the report’s recommended provision for Child X to have further SEN provision included in his EHC plan. This included the OT and EP should work with Child X and they would provide training for School staff.
18. In July 2020 the Council issued Child X’s amended draft EHC plan to Mrs C. However, two days later it issued its final amended EHC plan before Mrs C had the opportunity to make any comments. The plan included the agreed OT and EP provision.
19. Mrs C told the Council it had failed to allow her to comment on its draft EHC plan for Child X, which she overall agreed with. However, this meant she had not been able to request a personal budget for some of his SEN provision.
20. However, Mrs C did not get a response. So, she asked a solicitor to contact the Council to reissue its draft plan to enable her to request a personal budget. This also included their intent on seeking a judicial review of the Council’s actions.
21. Shortly after, the Council reissued its draft EHC plan for Child X and Mrs C made her comments on the plan, including her request for a personal budget.
22. Two months later the Council told Mrs C’s solicitor the School had said it was unable to meet Child X’s SEN which was set out in his draft EHC plan. The Council asked Mrs C if she had an alternative preference for a school for Child X.
23. Mrs C did not want her son to attend an alternative school and told the Council the School was able to deliver similar SEN provision for other children. She also shared another child’s EHC plan with parental permission to evidence this.
24. After a meeting with the School and further correspondence with Mrs C and her solicitor, the Council agreed not to name another school in Child X’s EHC plan and hold another annual review.
25. In late 2020, the Council issued a further amended draft EHC plan for Child X. However, Mrs C was not happy with the plan as key SEN provision had been removed such as the OT and EP involvement with Child X.
26. The Council issued its final amended EHC plan for Child X in early 2021.
27. Mrs C and her solicitor again told the Council key provision had been removed from the EHC plan compared with the agreed provision in 2020. So, the Council agreed to issue another draft EHC plan for Child X, which it provided a month later.
28. In spring 2021 the Council issued its third final amended EHC plan for Child X, which Mrs C and her solicitor again told the Council did not include all the agreed provision from 2020.
29. The Council arranged a mediation meeting with Mrs C and her solicitor to agree on the SEN provision needed for Child X’s EHC plan. Mrs C said the mediation agreement included the Council would issue a further final amended EHC plan. It would also arrange an implementation meeting with the School in early May 2021 to ensure the changes were put in place.
30. The Council issued Child X’s final amended EHC plan in late May 2021. Its implementation meeting with the School took place in part in July 2021, and was completed in late September 2021.
31. In autumn 2021 Mrs C and her solicitor also told the Council it had failed to set up her direct payment for the OT and EP provision set out in Child X’s EHC plan for the start of the academic year.
32. A month after, the Council apologised to Mrs C and put the direct payment in place. It explained its error was due to an administrative oversight.

Mrs C’s complaint

33. Mrs C and her solicitor complained to the Council about its handling of Child X’s amended EHC plans following the annual review. She said it:
• wrongly removed agreed provision in Child X’s EHC plan and caused delays in issuing a plan which met his needs;
• failed to comply with agreed actions in the spring 2021 mediation meeting;
• caused delays in setting up its direct payment for some of Child X’s SEN provision;
• failed to tell her about concerns raised by Child X’s school as early as May 2020; and
• wrongly shared Child X’s EHC plan with a Health Trust.
34. In response, the Council apologised and agreed it had failed to give Mrs C the opportunity to comment on its draft EHC plan for Child X in July 2020. It also agreed it had caused a delay in arranging her direct payment. It found it had acted swiftly in correcting its errors. However, it did not agree it was at fault for:
• causing delays in issuing Child X’s EHC plan. It found it had given Mrs C appeal rights throughout the process, it acted in good faith and agreed to engage in mediation;
• failing to comply with the actions agreed during mediation. It explained there were disagreements about what had been agreed, but it accepted its communication with Mrs C could have been better. It also said the delays to arrange the implementation meeting was unavoidable due to the school holidays and availability of the persons involved;
• failing to share the School’s concerns about whether it could deliver Child X’s EHC plan. It explained it had worked with the School and it remained in his EHC plan. Mrs C had therefore not been impacted by the Council not sharing this information; and
• for sharing Child X’s EHC plan with the Health Trust. It suggested Mrs C could bring her concern to the Information Commissioner (ICO).
35. Mrs C was not satisfied with the Council’s response. So, she asked the Ombudsman to consider her complaint.

Analysis

36. Mrs C is complaining about matters which occurred more than 12 months ago. Her complaint is therefore late. However, I am satisfied it is appropriate to exercise my discretion to consider her complaint from 2020. This is because she has continued to work with the Council, engaged in mediation, and then brought her complaint to the Council’s attention without delay.

Annual review of Child X’s EHC plan

37. When a council reviews an EHC plan, it can decide if further information or assessments are necessary for it to decide what provision should be included in the plan. Once it has reached its view, it should set this out in a draft plan and give the parents the opportunity to comment.
38. In this case, Mrs C told the Council Child X had further needs and an OT and EP assessment was necessary for his annual review. The Council was satisfied it had contacted relevant parties for comment before the annual review, and it was not necessary for reassessments by an OT and an EP. In reaching its decision it took account of the views of Mrs C, the School, the OT service, Child X progress and the information shared in his previous annual review.
39. I understand Mr C disagrees with the Council’s view. However, the Council was not required under the SEND Code of Practice to commission further assessments and considered the views it had received. It therefore reached a decision it was entitled to make, and I cannot criticise the merits of its decision.
40. Mrs C did not challenge the Council on this point or wait for a final EHC Plan to be issued, which she could then appeal to the SEND tribunal. Instead, she arranged for her own OT and EP assessment. It is clear these led to substantial changes in Child X’s final EHC Plan which included direct delivery of SEN provision by the professionals.
41. Mrs C asked for the Council to repay her for the cost of the OT and EP reports. However, without fault in the process, I cannot recommend for the Council to do. This is because it acted in line with the SEND Code of Practice and Mrs C’s information from her self-funded assessments came after it had reached its decision not to commission further assessments.
42. The Council agreed it was failed to give Mrs C the opportunity to comment on its July 2020 draft EHC plan. This was fault, which caused a short delay and some limited distress to Mrs C.
43. In the following nine months the Council issued a further three draft EHC plans and final amended EHC plans. Normally, I would expect Mrs C to appeal her concerns about the provision in the final EHC plans to the SEND Tribunal. However, I found it was appropriate for her to ask the Council to put in place the provision it agreed to in its final amended EHC plan in July 2020 and allow her to request a personal budget for the relevant SEN provision. In reaching my view, I am conscious:
• the Council had already agreed to the SEN provision as it was set out in the July 2020 final EHC plan, which included the OT and EP involvement with Child X;
• a tribunal appeal would cause unnecessary delay; and
• the Council agreed to work with Mrs C and her solicitor to address the concerns in the EHC plan.
44. However, key provision in Child X’s July 2020 final amended EHC plan was not included in the subsequent amended EHC plans. It was not until the May 2021 final amended EHC plan this was reinstated.
45. I acknowledge the School raised further concerns to the Council about its ability to deliver Child X’s SEN. However, it was the Council’s responsibility to ensure the School could and would deliver the agreed provision. This is because the School was listed in Child X’s EHC plan. In addition, it is also evident the School could and continues to be able to deliver Child X’s SEN provision.
46. I therefore found the Council at fault. It should have provided the SEN provision in Child X’s July 2020 final amended EHC Plan from the start of the 2020/2021 academic year, and this should have been set out in a revised EHC plan following Mrs C’s comments without delay at the time. I found this caused Child X a loss of SEN provision from the start of the academic year until May 2021. It also caused Mrs C distress, and time and trouble to get the Council to put in place the agreed SEN provision.

Mediation and implementing the May 2021 EHC plan

47. Based on the evidence available, I cannot say when the Council agreed to provide Child X’s final amended EHC Plan in May 2021. I have therefore not found the Council at fault for causing a short delay at that time.
48. However, the Council agreed it were to arrange an implementation meeting with the School to ensure Child X’s EHC provision was delivered without delay. It took four months for the Council to do so.
49. I found this to be fault by the Council. While I accept there were delays due to the school holidays and the availability of the OT and EP, I am not satisfied the Council did enough to ensure this was in place at the start of the 2021/2022 academic year. This therefore caused a short further delay before Child X were receiving the agreed SEN provision. It also caused Mrs C some additional distress.

Direct payment delays

50. Mrs C and her solicitor asked, and chased, the Council about her direct payment to provide some of Child X’s SEN provision before the start of the 2021/2022 academic year.
51. The Council agreed it caused a delay in setting up Mrs C’s direct payment as agreed due to an administrative error. This was fault, which caused short delay in Child X receiving the relevant SEN provision for the start of the 2021/2022 academic year. Mrs C also had some further distress due to the Council’s handling of this.

Sharing of information

52. Mrs C complained the Council should have shared the School’s concerns about its ability to deliver Child X’s EHC plan in May 2020, and the Council’s decision to share his plan with a Health Trust.
53. I acknowledge Mrs C feels the School’s concerns were important and should have been shared with her. However, issues about sharing of information and data should normally be brought to the attention of the Information Commissioner, who is best placed to consider such issues. I understand Mrs C has already done so.
54. In addition, my view is it was immaterial for Child X’s EHC plan review whether or not the Council should have shared the School’s concerns with her. This is because the School was listed in Child X’s EHC plan and he continues to attend the School. It was therefore not the sharing of information which caused delays or a loss of SEN provision for Child X.

Mrs C’s legal costs

55. Mrs C said she has had extensive solicitor’s costs to help her with her dispute with the Council. We only ask councils to contribute towards such fees in exceptional circumstances. This is because people do not usually need a professional to bring a complaint to us.
56. I acknowledge Mrs C found it challenging to get the Council to address her concerns, and she was advised a judicial review of the Council was an appropriate option by her solicitor. However, I have seen no exceptional reasons why she could not have come to the Ombudsman without the help of a solicitor. I have therefore not asked the Council to contribute towards her solicitor’s costs.

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Agreed action

57. To remedy the injustice the Council caused to Mrs C, the Council should, within one month of the final decision:
1. apologise in writing to Mrs C, and pay her £300 for the distress and uncertainty its unnecessary delays its handling of her son’s EHC Plan review caused her, and £250 for the time and trouble she had to pursue her complaint;
2. pay Mrs C £1,650 to acknowledge the loss of special educational needs provision her son missed out on due to the Council’s faults and delays; and

In total the Council should therefore pay Mrs C £2,200.

58. Within three months of the final decision the Council should also:
1.  
2.  
3.  
4. review its procedures for when it will agree to make changes to finalised EHC plans and how long the process should take. This is to ensure the appeal’s process and SEN provision is not unnecessarily delayed; and
5. train, or provide guidance, to its staff to ensure its procedures for making changes to finalised EHC plans are applied at all times, and only includes the changes agreed with parents.

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Final decision

59. There was fault which caused an injustice. The Council has agreed to my recommendations, it is on this basis I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman