Summary: Mrs X complained the Council delayed its review of her daughter’s EHCP, delayed notifying her right of appeal and failed to arrange all the educational provision specified, resulting in missed education and distress. We found the Council at fault. We recommended it apologise, pay £1000 for distress, pay £5200 for missed provision; fund provision that remains outstanding and; provide training to staff to prevent recurrence.

The complaint

1. Mrs X complains the Council delayed completing her daughter’s Education Health and Care Plan (“EHCP”) review, delayed notifying her right to appeal then failed to provide the educational provision set out in the final EHCP.
2. Mrs X says her and her daughter, Miss Y, have suffered distress. Miss Y has missed out on provision. Mrs X has incurred costs in paying for some provision herself, meaning the family has struggled financially. And Mrs X has had to change her work patterns to supervise her daughter.

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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. 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.
6. 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

7. I spoke to Mrs X and I reviewed documents provided by Mrs X and the Council.
8. I gave Mrs X and the Council an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Duty to secure provision

9. A council has a duty to secure the specified special educational provision in an EHCP (Section 42 Children and Families Act). The Courts have said this duty to 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)

Annual Reviews

10. Councils must review an Education Health and Care Plan (“EHCP”) at least every 12 months.
11. Within 2 weeks of the review meeting the school must provide a report to the council with any recommended amendments.
12. Within four weeks of the meeting, the council must decide whether it will keep the EHCP as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school. If it needs to amend the plan, the council should start the process of amendment without delay.
13. The council must send the draft EHCP to the child’s parent and give them at least 15 days to give views on the content.
14. If a child’s parent asks for a particular school the council must name the school in the EHCP unless:
• it would be unsuitable for the age, ability, aptitude or SEN of the child or young person, or
• the attendance of the child or young person there would be incompatible with the efficient education of others, or the efficient use of resources
15. When the parent suggests changes that the council agrees, it should amend the draft plan and issue the final EHCP as quickly as possible.
16. Where the council does not agree the suggested changes it may still issue the final EHCP.
17. In any event the Council should issue a final EHCP to the parent and name an educational placement within 8 weeks of issuing the amendment notice. It must also notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so.

What happened

18. Miss Y was on roll at a non maintained independent specialist school, (“School A”). However, Mrs X says Miss Y had not attended school since February 2020 due to anxiety.
19. Miss Y has an Autistic Spectrum condition, pathological demand avoidance, and social, emotional and mental health needs.
20. Miss Y’s EHCP, in effect in March 2021 (the “March 2021 EHCP”), provided for specialist teaching methods and strategies. It also provided for:
• A Speech and Language Therapy (“SALT”) programme including weekly SALT sessions
• 1:1 teaching assistant (“TA”) support
• Small group setting (5 children maximum)
• Options for activities to work alongside older peers, daily
• Social skills activities with peers at least three times a week
• Access to a computer and also a scribe
• An outdoor provision
• 30 minutes physical activity per day
21. An annual review meeting took place on 9 March 2021. School A gave notice to take effect in 28 days, because they could no longer meet her needs. School A agreed to continue to offer a home learning program until the end of the school year. Miss Y was 17 at this time.
22. The Council says between April 2021 and July 2021 Miss Y continued to receive provision from the school. It has provided a letter from School A dated 14 July 2021 confirming this. This says during the annual review it made clear it could not meet all of Miss Y’s needs but it would continue home learning until the end of the school year. It refers to home tuition alongside other services as identified by Mrs X.
23. Mrs X says School A provided a tutor for a few hours a week until July 2021. She says Miss Y did not receive any SALT during this period and then no provision at all from July 2021.
24. Mrs X says she received a notice to amend the EHCP on 1 June.
25. Records show Mrs X later chased the Council for updates but received no reply.
26. On 7 September the Council’s Education Panel approved education other than at school (“EOTAS”) for Miss Y to be funded through a personal budget. Details remained subject to further discussion.
27. Correspondence shows Mrs X chased the Council as it had not issued a final EHCP or agreed a personal budget.
28. On 21 September the Council told Mrs X it had agreed to fund tuition and resources through a personal budget and she would receive payment in two weeks. It said remaining items were under discussion or not agreed.
29. On 15 October the Council confirmed it would also fund the dog training and horse riding.
30. From 19 October Mrs X received funding to arrange those services agreed.
31. On 5 November the Council finalised Miss Y’s EHCP but did not send this to Mrs X.
32. On 13 January 2022 Mrs X complained to the Council about:
• Delay in completing the EHCP review process;
• Failure to respond to her;
• Failure to issue a final EHCP and provide her right to appeal;
• Only part of the EOTAS package was agreed and in place;
• Miss Y was suffering increased stress as a result.
33. On 18 January 2022 the Council sent Mrs X the final EHCP by email with a copy to follow by post. However, it said funding for some health and social care items were not agreed. I have not seen any record to suggest the Council also sent a letter notifying Mrs X of her appeal rights.
34. The section F educational provision within the Final EHCP included teaching methods and strategies. It also included:
• SALT programme including weekly salt sessions
• Resources for education outside of school up to a maximum of £750
• 1:1 TA support
• Social skills activities with peers at least three times a week
• Education out of school via specialist tutors until Miss Y can access traditional learning; at least 15 hours per week
• At least 4 hours’ per week social activities
• 1 horse riding lesson per week
• Monthly membership at dog training academy
• 1 lesson per fortnight dog training
• Work experience once a week
• Transport to attend activities
• Sensory programme
• A minimum of 30 minutes physical exercise and 30 minutes physiotherapy twice a day
• A minimum of 4 hours physical activities per week
• 12 one hour weekly occupational therapy (“OT”) sessions
• Occupation therapy programme
• £250 for sensory equipment
• A part share in a horse at a local stable (allowing access at least twice a week)
35. Mrs X queried why the Council did not include driving lessons and a travel allowance. The Council explained it did not consider these special educational provision.
36. Mrs X said the Council had not put all provision in place and it needed to send her a letter giving appeal rights.
37. The Council provided a complaint response on 7 February. The Council:
• Apologised for poor communication, due to staff vacancies and said it was working on recruitment;
• Apologised for its delay in sending the final EHCP;
• Confirmed it would send the decision letter;
• Said it would follow up with services on provision.
38. On 16 February Mrs X asked to escalate her complaint. She added:
• Provision in section f was not fully budgeted or provided;
• She had still not received a letter giving her appeal rights;
• The Council should have completed the EHCP review before the end of summer term.
39. The Council provided its stage 2 response on 16 March. In summary:
• It had sent the EHCP final letter to her;
• It had not agreed with health and social care who would provide the funding for the outstanding provision. This had since been agreed;
• It apologised;
• It referred her to the Ombudsman.
40. Mrs X wrote further to the Council that she had still not received the letter giving appeal rights and funding was not in place for the remaining provision.
41. Internal Council emails show staff believed issuing the final EHCP was sufficient to provide appeal rights.
42. In response to the Ombudsman’s enquiries the Council said:
• There was slight delay in considering the request for a personal budget but this did not prevent agreement being reached by the start of September 2021;
• Due to an administrative error there was a delay in sending Mrs Y the final EHCP. It understood the covering letter giving appeal rights was posted alongside a copy of the final plan in January 2022, but it could not locate a copy of the letter;
• In response to a request for the Council to explain how it ensured Miss Y received educational provision while out of school; the Council explained it agreed a personal budget for Mrs X to pay for provision on 7 September.
43. When I spoke to Mrs X in July 2022 she said:
• The Council sent her the letter notifying of appeal rights in March 2022;
• Some section f provision was still not in place including 1:1 support and 4 hours per week social activities;
• She was unhappy the Council would not agree to pay for other items she wanted such as driving lessons. However a solicitor told her she was out of time to appeal;
• She had incurred costs paying for provision herself;
• She had faced inconvenience due to having to support her daughter herself;
• Her daughter had suffered distress.
44. When I spoke to Mrs X in September she said:
• Some therapies were in place from November or December 2021 but no SALT was provided at all. Miss Y’s first OT session was 8 December 2021;
• A support worker was in place from August 2022 and the NHS reimbursed costs she incurred in providing this back to April 2021;
• Miss Y still did not receive 4 hours per week social activities and she had incurred costs paying for this herself. These varied week by week but she gave some examples with supporting receipts;
• Miss Y still had no physiotherapy;
• The Council refused driving lessons.
45. In response to a draft decision the Council gave the following comments:
• Miss Y said she did not want SALT directly and it considered the school could provide indirect support. The Council enclosed SALT reports.
• The Annual review paperwork did not refer to the school serving notice. It now provided minutes of the meeting.
• Miss Y was shielding and was therefore unable to receive the provision outlined in her plan as referred in the Annual Review.
• Mrs X asked for a delay to the process to comment on the draft EHCP. She commented on 8 July 2021.
• It funded a support worker from 7 September 2021.
• Social activities are covered by the part share in a horse and stables the Council paid for and would also be provided through the dog training academy.
• It agreed the personal budget on 7 September.

Findings

EHCP review process

46. The Council should have issued an EHCP amendment notice by 6 April 2021 and a final EHCP by 1 June 2021. However, the Council did not issue the notice to amend until 1 June and it did not issue a final EHCP until 18 January 2022. The Council did not meet the statutory timescales for reviewing Miss Y’s EHCP. This is fault. Because of this fault Mrs X was put to time and trouble chasing the Council and her right to appeal was delayed. Miss Y had delayed access to the provision of the final EHCP. Mrs X incurred costs on provision and the family suffered distress, uncertainty and inconvenience.
47. The Council finalised the EHCP in November but did not issue this until January 2022 due to an oversight. The Council has not otherwise acknowledged its failure to meet its statutory duties and has not otherwise provided any good explanation for its delays or outlined any action to prevent recurrence. I will therefore make a service improvement recommendation to prevent injustice to others in future.
48. The Council should have notified Mrs X of her appeal rights alongside the final EHCP. It did not do this. This is fault. Mrs X did not receive appeal rights until March 2022. This further delay of Mrs X’s right to appeal is injustice. The documents show the Council was unaware of its duties in this regard. I will make a service improvement recommendation to prevent injustice to others in future.
49. Mrs X was unhappy with the provision detailed in the final EHCP however she had a right to appeal and it was reasonable to expect her to use this right. I therefore cannot consider any dispute about the content of the final EHCP. I note it is up to the tribunal to consider whether to accept any late appeal.

Educational provision

50. The Council knew in March 2021 that Y was out of school and that School A was unable to meet all her needs. While School A agreed to continue some provision, it remained for the Council to ensure Miss Y received the educational provision detailed in section f of her EHCP. Mrs X says a TA supported Miss Y for a few hours per week to July 2021 but no other provision was in place. And the Council has not evidenced any other provision. I am therefore satisfied on balance that the Council did not ensure Y received EHCP provision in full from March 2021 to June 2021. This is fault. Miss Y missed out on SALT and social skills activities due under the March 2021 EHCP up to June 2021. This is injustice. Taking into account some education was provided I consider a remedy of £200 per month over this three month period is appropriate.
51. From June 2021 to 18 July 2021 Miss Y missed out on provision that would have been available under the new EHCP (if issued in time). The documents provided show she missed out on 15 hours education per week, 1:1 support, SALT, OT, physiotherapy, social skills, dog training, and horse riding. This is injustice. I consider a remedy of £600 is appropriate.
52. From September 2021 the Council remained responsible to ensure Miss Y received section f educational provision. However, the documents provided show it did not fulfil its statutory duties. This is fault. Again, Miss Y would have received the provision detailed in the January 2022 EHCP had this been issued in time.
53. From 5 September to 19 October Miss Y had no educational provision at all. This is injustice. I consider a remedy of £600 is appropriate.
54. From 19 October to December 2021 Miss Y received tuition and some additional provision but missed out on 1:1 support, SALT, OT, physiotherapy, and social skills activities. This is injustice. I consider a remedy of £400 per month over two months is appropriate.
55. From December 2021 to August 2022 Miss Y missed out on 1:1 support, SALT, physiotherapy and social activities. This is injustice. I consider a remedy of £400 per month over six months (term time only) is appropriate.
56. From August 2022 to date Miss Y has missed out on SALT, physiotherapy, social skills activities. This is injustice. I consider a remedy of £200 per month from September 2022 to October 2022 is appropriate (term time only). Further that the Council should arrange and fund these going forward or pay Mrs X the equivalent cost of this service provision.
57. I am satisfied Mrs X incurred costs herself on arranging social activities for Miss Y. I acknowledge this was not a consistent programme of activities and so it is difficult to evidence. Therefore, in calculating a remedy for distress, I will take into account the distress caused to Mrs X due to the financial burden she suffered. In addition, I am satisfied Mrs X and Miss Y have suffered distress throughout this period due to the missed education and additional inconvenience due to Miss Y being at home.
58. To address the Council’s comments:
• During the annual review the school says because it was “not meeting need we would recommend ending the placement”. The Council knew Miss Y was not in school and that the school could not meet all her needs. It therefore should have stepped in.
• SALT reports show Miss Y refused direct SALT support and in February 2021 the school intended to offer indirect support. However, there is no evidence this was offered or provided at the time. Though there is evidence of an offer in November 2021.

• Annual Review records refer to Miss Y’s reduced attendance at school due to COVID-19. There is no evidence the Council attempted to put provision in place from March 2021 and that Miss Y refused this due to shielding or otherwise.
• The Council sent a notice to amend on 1 June. On 16 June Mrs X asked for time to put forward her own suggested changes. She provided these on 8 July. This does not evidence Mrs X was the cause of any substantive delay in the review process.
• There remains a lack of evidence the Council agreed to fund a support worker and provided funding for this from 7 September 2021. I refer to paragraphs 26 to 29 above.
• The EHCP refers to a “package of social activities” separately and distinct from the horse and dog training referred elsewhere. It specifies 4 hours’ social activities. Nowhere does it suggest this is included within other provision. If that was the Council’s intention it should have stated so in the EHCP.
• The Council agreed a personal budget on 7 September. Mrs X asked for clarity on what exactly it had agreed to fund. The Council responded as referred at paragraphs 28 and 29 above. If the Council intended funding to be used for other purposes it did not make this clear to Mrs X and she did not use the funding for such.

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Agreed action

59. To remedy the injustice set out above the Council should take the following actions:
60. Within one month:
• Provide Mrs X with an apology;
• Pay Mrs X £1000 for distress and uncertainty;
• Pay Mrs X £5200 for missed educational provision;
• Arrange and fund SALT, physiotherapy, and social skills activities as detailed in Miss Y’s EHCP or ensure Mrs X has sufficient funding to arrange this herself and;
61. Within three months:
• Provide training or guidance to staff working in Children’s Services on the Council’s statutory duties, including timescales for the EHCP review process; notifying rights of appeal with a final EHCP and the duty to secure section f provision.
62. The Council has accepted my recommendations.

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Final decision

63. I find the Council at fault because it did not meet its statutory duties in progressing Miss Y’s EHCP review; notifying her right of appeal and securing educational provision. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman