Summary: The Council’s delay completing an annual review of B’s Education, Health, and Care Plan and failure to issue an amended Plan within statutory timescales was fault. The Council was also at fault for failing to ensure the education provision in B’s Plan was in place. As a result, B started post-16 education without an up-to-date Plan and missed six months of Speech and Language Therapy. To remedy this injustice, the Council has agreed to apologise, pay £1,750, and act to improve its services.

The complaint

1. Mr X complained about the Council’s delivery of Special Education Needs (SEN) support for his child, whom I shall call B. In particular, that the Council:

• delayed completing a phase transfer review of B’s Education Health and Care (EHC) plan.
• failed to issue an amended EHC plan within the statutory timescales, and so delayed providing for B’s Special Education Needs.
• Failed, and continues to fail, to deliver provision detailed in B’s EHC plan.

2. As a result, B has missed necessary provision and Mr X has been to avoidable time and trouble pursuing the matter with the Council.

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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 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

5. I spoke to Mr X about the complaint.
6. I made written enquiries of the Council and considered its response along with relevant law and guidance.
7. I referred to the Ombudsman’s Guidance on Remedies, a copy of which can be found on our website.
8. Mr X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
9. 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

Education, Health, and Care Plans

10. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them.
11. The EHC plan is set out in sections which include:

• Section B: The child or young person’s special educational needs. 
• Section F: The special educational provision needed by the child or the young person.  
• Section I: The name and/or type of school. 

12. The Council is responsible for making sure that arrangements specified in Section F of the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
13. The Ombudsman recognises it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. The Ombudsman considers councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:

• check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.

Annual reviews of EHC Plans

14. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
15. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
16. Where a council proposes to amend an EHC plan, the law says 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. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
17. The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
18. Following comments 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 soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)

Phase transfers

19. An EHC plan must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education, to allow for planning for and, where necessary, commissioning of support and provision at the new institution.
20. For young people moving from secondary school to a post-16 institution the review and any amendments to the EHC plan – including specifying the post-16 provision and naming the institution – must be completed by the 31 March in the calendar year of the transfer. 

What happened

21. B has special education needs. In September 2021, B was due to start post-16 education. This is a phase transfer. Therefore, the annual review of B’s Plan should have been completed by the end of March 2021.
22. The Council’s records show that Mr X and the school had agreed to hold the annual review in January 2021. However, this did not happen.
23. In March, the Council contacted B’s parents to ask which post-16 settings B would be applying to. The Council then wrote to these settings to ask if they could meet B’s needs.
24. The annual review took place in June. In July, the Council wrote to B’s parents confirming its decision to amend B’s plan.
25. The Council sent out a draft Plan in October naming a Further Education College in section I. The Council issued the final EHC Plan in January 2022.
26. In January, the College contacted the Council. It said it needed to review its funding for B’s provision. The College said this was because the new Plan was different from the provision in the Plan the Council consulted with.
27. Part of the provision in B’s Plan is for a weekly group session delivered by a SaLT (Speech and Language Therapist). In February, the College asked the Council to “take the lead” in arranging this.
28. B’s Plan also included a requirement for college staff to receive training from the SaLT and B’s OT (Occupational Therapist). In May, the College contacted the Council to ask about funding for this. The Council told the College it was expected to arrange the provision in the Plan and then claim the cost back from the Council.

My findings

Annual review and amended Plan

29. The Council should have completed a review of B’s EHC Plan by March 2021. The review meeting did not happen until June. This delay was fault.
30. In its stage one and stage two responses, the Council accepted it was at fault for delay completing the phase transfer annual review. It apologised for this in its stage two response.
31. The Council issued its decision to amend the plan in July 2021. Amendment must start ‘without delay’. The Council’s records show no evidence of any work amending the plan from July until September, when Mr X asked for an update and solicitors instructed by Mr X wrote to the Council threatening legal action. This was fault. The evidence in the records does not support the Council’s assertion in its stage one response that during July to September the Council “was in communication with [the College], the speech therapist and parents about EHCP amendments and outcomes.”
32. As a result, the Council did not issue a draft amended Plan until October. From issuing the draft plan, the Council had eight weeks to issue the final Plan. This was late November. The Council did not issue the final Plan until January 2022.
33. I accept that B’s parents commenting on and seeking changes to multiple versions of the plan prolonged the process. However, had the Council followed the statutory timescales, it should have completed the annual review by the end of March. It would therefore have issued a decision to amend by the end of April. Even considering the time taken to agree the content of the final Plan, B’s final EHC Plan should have been issued by July 2021. I therefore find the Council delayed issuing the Plan by 6 months. This was fault.
34. The Council started consulting with post-16 settings in March. Because it had not completed the annual review, it had to use B’s old EHC Plan for this. Therefore, the College eventually named in the Plan did not have an up-to-date picture of B’s needs. It also could not plan and prepare to make sure the correct provision was in place when B started College in September. This is an injustice to B.
35. Mr X contacted the Council several times to chase the annual review and the new plan. This put him to avoidable time and trouble. This is an injustice to Mr X.

SEN provision

36. It is the Council’s duty to secure the provision in an EHC Plan. It can ask an education setting to deliver this on its behalf. However, we expect councils to check the provision is in place, especially following phase transfers and after it issues an amended Plan.
37. In September 2021, the College contacted the Council with questions about funding for the SaLT and OT provision in B’s plan. The Council told the College it should fund the provision and then claim the costs back from the Council. The records show that the SaLT was in contact with the Council to advise that the funding for B’s provision was not in place. The College did not confirm the funding and the SaLT could not keep B’s time-slot open. The SaLT provision did not start until March 2022, when the service had availability again.
38. Given that B was in a phase transfer, I consider it was particularly important that the Council ensure the College put all the provision in place for B in September. Its failure to do so was fault. As a result, B missed six months of SaLT provision. This is an injustice to B.
39. In January 2022, after receiving the final amended Plan, the College told the Council it needed to review the cost for the provision because of the changes in the amended plan. This should have caused the Council to check that all provision was in place and, if necessary, act to secure it. It did not do so. This was fault.
40. The amended Plan included provision for staff at the College to receive training from B’s SaLT and OT. The records show the College contacted the Council in May 2022 to ask about funding for this training. This should have alerted the Council to the fact that there were parts of B’s provision not yet in place. This should have caused it to take steps to confirm the rest of the provision was in place and meeting B’s needs. In the circumstances, I consider its failure to do so was fault.
41. As a result, B completed a full academic year without College staff having the training identified in his Plan as necessary to meet his needs. This is a significant injustice to B.

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Agreed action

42. To remedy the injustice from the faults I have identified the Council has agreed to:
• Apologise to B and Mr and Mrs X in writing
• Pay Mr X £250 in recognition of his avoidable time and trouble
• Pay B £1,500 in recognition of the loss of educational provision and delay completing the annual review.
43. The Council should take this action within four weeks of my final decision.
44. The Council will also take the following action to improve its services:
• Identify and implement a mechanism to ensure the Council checks SEN provision is in place following a phase transfer and/or issuing a new or amended EHC Plan.
45. The Council should tell the Ombudsman about the action it has taken within three months of my final decision.
46. I have not recommended improvements to the timeliness of annual reviews because the Council has already committed to such improvements following a previous complaint to the Ombudsman.

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Final decision

47. I have completed my investigation. There is fault by the Council. The action I have recommended is a suitable remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman