Summary: Mrs D complained the Council caused delays in the EHC Plan process for her son, and in providing his SEN provision. We found the council at fault for causing delays in the EHC Plan process which meant Mrs D’s son did not receive some SEN provision he was entitled to. The Council agreed to apologise and make payment to acknowledge the injustice this caused Mrs D and her son.

The complaint

1. The complainant, whom I shall refer to as Mrs D, complained about the Council’s handling of her son’s (child X) special educational needs provision (SEN). She said it failed to:
• ensure child X has had annual reviews since issuing his education, health and care plan (EHC Plan) in 2018, and to send it decision letters following the reviews;
• issue child X’s EHC plan in time for his transition to post-16 education within statutory timescales;
• ensure that he received all of the provision specified in his EHC Plan since 2019; and
• consider her request for an EHC needs reassessment in late 2021 and share its decision.
2. Mrs D also complained the Council wrongly refused her request for child X’s post-16 transport assistance to school.
3. As a result, Mrs D said child X experienced a loss of SEN provision and distress. She also said she experienced distress and had costs to provide some of child X’s SEN provision.

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The Ombudsman’s role and powers

4. 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)
5. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
6. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. 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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
8. 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

9. As part of my investigation, I have:
• considered Mrs D complaints and the Council’s responses;
• discussed the complaints with Mrs D and considered the information she provided;
• considered the law and guidance relevant to the complaint.
10. Mrs D 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

Administrative law and guidance

EHC Plans

11. 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. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
12. The Council is responsible for making sure that arrangements specified in 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.

Reviewing EHC Plans

13. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
14. 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)
15. 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)
16. 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)
17. 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)
18. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.
19. As part of the assessment councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes:

• the child’s education placement;
• medical advice and information from health care professionals involved with the child;
• psychological advice and information from an Educational Psychologist (EP);
• social care advice and information;
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and
• any other advice and information the council considers appropriate for a satisfactory assessment.

20. The council must not seek further advice if it already has advice and “the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process”. In making this decision the council and the person providing the advice should ensure the advice remains current.
21. Those consulted have a maximum of six weeks to provide the advice.
22. The council should consider with the child’s parent and the parties listed the range of advice required to enable a full EHC needs assessment to take place. (The Code 9.47)

Provision in EHC Plans

23. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). 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)

Post-16 EHC Plan reviews

24. For young people moving from secondary school to a post-16 institution or apprenticeship, 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. 

Council’s Complaint Policy

25. The Council Policy says it will investigate and respond to the complaints it receives under stage one of its complaints process within 10 working days, or within 20 working days when this relates to children or young people with special needs and disabilities.
26. If a person remains dissatisfied with the Council’s response, a manager who was not involved with the stage one investigation will investigate the complaint and respond within 20 working days.

Background

27. Mrs D’s son, child X, has a diagnosis of Asperger’s Syndrome, a sensory disorder and experienced bullying in school.
28. In 2018 the Council issued an EHC Plan for child X which set out the SEN provision he should receive.
29. In early 2019 child X moved to his current school (School Y). This was because he had experienced some further bullying and School Y could deliver subjects he preferred.
30. In 2019 child X’s EHC Plan was reviewed and School Y found it should be maintained without changes.
31. In late 2020 School Y reviewed child X EHC Plan. This was his post-16 transfer review.
32. In summer 2021 child X’s GP referred him for speech and language therapy (SaLT). The SaLT service spoke with the School Y, which agreed to put in place some SEN provision to meet child X’s communication needs.
33. In Autumn 2021:
• Mrs D and child X’s GP also asked the Council to consider providing post-16 travel assistance for child X as he could not travel independently to school;
• Mrs D asked the Council to reassess child X’s needs; and
• the Council shared a draft amended EHC Plan for child X which named his post-16 school (School Y).

Mrs D’s complaint

34. In Autumn 2021 Mrs D complained to the Council. She said it had failed to:
• ensure child X had annual reviews since issuing his EHC Plan in 2018, and send its decision letters following the reviews;
• issue child X’s EHC plan in time for his transition to post-16 education within statutory timescales;
• ensure that he received all of the provision specified in his EHC Plan since 2019; and
• consider her request for an EHC needs reassessment in late 2021 and share its decision;
35. Mrs D also told the Council child X needed transport assistance as he could not travel independently.
36. In response the Council apologised for the delay in completing the EHC Plan review process for child X. It said it had arranged for its EHC Plan officer to work with School Y and Mrs D to amend the Plan and finalise the process.
37. Mrs D was not satisfied with the Council’s response as it had not addressed her concerns. She also arranged for a private SaLT assessment and shared the report with the Council.
38. In late 2021 the Council provided a further complaint response to Mrs D. It explained it:
• did not receive child X’s annual review documents from School Y in 2019, and the school did not find amendments were needed in 2020. It agreed the annual reviews should have taken place, but found child X had his SEN met as School Y understood his needs;
• agreed it had not met the statutory timescales to finalise child X’s post-16 EHC Plan. However, as he was to remain at School Y, it found the delay did not adversely affect his education;
• and School Y, were unaware of any SEN provision had not been in place since 2019. It asked Mrs D to share more information so it could look into this. However, it was satisfied child X was progressing towards the outcomes of his EHC Plan; and
• had not received a formal request for reassessment of child X’s needs, which it may refuse. However, it would need to understand which areas of need Mrs D believes required reassessment.
39. The following day the Council shared its draft EHC Plan for child X with Mrs D.
40. Mrs D asked the Council to escalate her complaint. She explained:
• annual reviews had been held by School Y since 2018, but had not been completed properly and she had not received the documents and the Council’s final decisions;
• no SaLT had been appointed and the related therapy and programme had therefore not been implemented. She also said School Y’s timetable had never included any information about special provision sessions and a visual timetable to meet his needs;
• the Council’s draft amended EHC Plan for child X had now been issued, but she did not believe this was in line with her private SaLT report; and
• she had formally requested a reassessment on two occasions in October 2021.
41. In early 2022 the Council issued its final amended EHC Plan for child X to Mrs D.
42. The Council also responded to Mrs D’s complaint. It said it had arranged for an NHS SaLT to assess Child X, and suggested she worked with its EHC Plan Officer as School Y was supportive to provide whatever programme child X needed.
43. Mrs D told the Council she was not satisfied with its response. She also said a further SaLT assessment was unnecessary as she had shared child X’s recent private assessment with the Council.
44. Child X was assessed by the NHS SaLT in March 2022. The assessment was limited and used information from Mrs D’s private SaLT report. It found direct SaLT support would not be helpful but set out a range of tools and methods which should be used to support child X in and around school to meet his SEN.
45. In Summer 2022 the Council provided a further complaint response to Mrs D. It apologised for the delay in responding to her complaint and said it found:
• there had been some minor delays to provide child X’s SEN since the start of the 2021/2022 academic year, but the School and Mrs D had been in regular contact;
• other provision had been put in place in Autumn 2021. This included daily 1:1 and ad hoc designated mentor support and group sessions in non-verbal communication; and
• Mrs D has refused some SEN support in Autumn 2021, and it was restarted when she asked for it.
46. Mrs D asked the Ombudsman to consider her complaint as she remains unhappy with the Council’s handling of child X’s SEN support, EHC Plan Process and its handling of her complaints. She agreed some SEN provision had started in Autumn 2021 but said this should have started in 2019. She also said she had never asked for provision to stop, but child X could not attend a specific social group skills meeting. In addition, she said the SaLT provision set out in child X’s final amended EHC Plan in 2022 was not put in place until May 2022.
47. Mrs D told the Ombudsman she asked for travel assistance in Autumn 2021 and applied to the Council for the support in early 2022. The Council refused the support, but she did not appeal its decision.

Analysis and findings

48. Mrs D complained about the Council’s handling of the EHC Plan process since 2018 and the provision of child X’s SEN provision since 2019. Her complaint is therefore late.
49. Mrs D first complained to the Ombudsman in late 2021, but we could not consider her complaint as it had not completed the Council’s internal complaints process. I have therefore found it appropriate to consider her complaint from late 2020.

EHC Plan process

50. The Council agreed child X’s EHC Plan was not properly reviewed, or the review documents were not shared with Mrs D in 2019 and 2020. It also agreed the 2021 annual and post-16 review should have been completed in March 2021 but was first finalised in early 2022.
51. I understand School Y did do annual reviews with Mrs D and child X, but the Council was not involved in the 2019 and 2020 reviews. Mrs D feels her and child X’s views on SEN provision and SaLT input were not properly included.
52. The Council was responsible for child X’s annual EHC Plan review processes throughout. It should have ensured the reviews took place, Mrs D’s views were recorded and actioned as appropriate, and its documents and decisions were shared with her.
53. It is clear the Council failed to do so in 2019 and 2020, and it caused a 10-month delay in finalising his 2021 post-16 review. It was therefore at fault for following the statutory process for child X’s EHC Plan reviews.
54. This caused Mrs D distress and uncertainty as she did not have the opportunity to use her right to appeal the suitability of child X’s SEN provision to a tribunal.

Reassessment of child X’s needs

55. Mrs D asked the Council on two occasions to reassess child X’s SEN in autumn 2021. This was because the 2020 post-16 transfer review had still not been finalised in an EHC Plan and she believed he had further specific needs to meet his social, emotional and communication skills.
56. While the Council said it had not received her requests, she had sent this to the Council’s officer who had been responding to her concerns. I am therefore satisfied Mrs D had made a request for a reassessment of child X’s needs.
57. The Council was entitled to reach its own view on whether a reassessment was needed. However, as it had not logged her request, no decision was made. This was fault, which caused Mrs D some further distress and uncertainty.

Child X’s SEN provision

58. Child X had an EHC Plan in place since 2018 which set out his SEN provision. The School and Mrs D were in regular contact, and it remained child X’s post-16 educational provider.
59. Based on the evidence available, child X was able to attend school and receive a full-time education. School Y also had a good understanding of his SEN.
60. The Council and Mrs D agrees some SEN provision was provided from Autumn 2021, and some Provision was put in place with a short delay before and after his final EHC Plan was issued in early 2022.
61. However, Mrs D believes some SEN provision to support him with social, emotional and communication skills were not delivered as set out in the EHC Plan, and the Council caused further delays to put these in place in Autumn 2021.
62. I found child X’s EHC Plan may not have been suitable for his needs since March 2021. This is because when the Council received Mrs D’s private SaLT and the NHS SaLT reports some specific SEN provision was included in his EHC Plan.
63. On balance, I have seen no reason this provision should not have been identified and put in place by March 2021 when child X’s post-16 final amended EHC Plan should have been issued. Therefore, while child X received a full-time education, he missed out on some SEN provision which affected his ability to fully engage with his education and peers.
64. I understand child X has progressed well in school in line with his EHC Plan outcomes. However, this was partly due to Mrs D’s decisions to hire a private tutor and SaLT support to support him with his needs which had not been put in place by the Council or School Y.
65. We do not normally recommend for private assessment to be refunded to parent who do not agree with a Council’s decision. However, in this case, the Council had failed to respond to her reassessment request and to issue an appealable EHC Plan for child X since 2019. Mrs D could therefore not appeal to tribunal until one year after the Post-16 EHC Plan should have been issued. It was therefore not unreasonable for her to arrange for a private SaLT assessment, which was subsequently used as the basis for the SEN provision which the Council included in child X’s Post-16 EHC Plan in 2022. I therefore found the Council should refund her the cost of her private SaLT assessment.

Travel assistance

66. The Council allows parents to apply for post-16 transport assistance and its transport Policy is available on its website. This says it may refuse applications if a young person or their parents are not eligible for transport assistance. Its decisions can be appealed through its internal process.
67. Mrs D asked the Council for transport support in Autumn 2021 but did not apply for the support until early 2022. I understand the Council refused her request for transport assistance, but she has not appealed its decision through its internal process.
68. As the Council’s internal review process has not been completed, I cannot consider this part of Mrs D’s complaint.

Complaint’s handling

69. Mrs D complained to the Council in Autumn 2021, which the Council responded to within the timescales set out in its Complaints Policy.
70. However, I found the Council at fault for how it handled Mrs D’s complaint. This is because:
• Mrs D told the Council she was not satisfied with its response and raised further concerns about its handling of her requests and the EHC Plan process. While the Council did provide a response, this was not a stage two response;
• Mrs D therefore had to ask the Council again to escalate her complaint, and a stage two response was received three months after her initial request;
• the Council’s stage two response did not address her concerns, as it only referred to its arranged NHS SaLT assessment; and
• its final response to Mrs D in summer 2022 was also not a stage two response, although it largely addressed her concerns.
71. The Council’s complaints handling did therefore not follow its Complaints Policy and caused delays, it also did not respond to each of Mrs D’s concerns and the details provided were vague.
72. Its responses also failed to direct Mrs D to the Ombudsman which would be expected following a stage two response. Although, I do acknowledge it did tell Mrs D about the Ombudsman in separate emails in 2022.
73. I am satisfied the Council’s complaints handling caused Mrs D some additional uncertainty and time and trouble to get her concerns addressed, which also delayed her ability to bring her concerns to our attention.

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Agreed action

74. To remedy the injustice the Council caused to Mrs D and child X, the Council should, within one month of the final decision:
1. apologise in writing to Mrs D and child X, and pay Mrs D £700 to acknowledge the distress and uncertainty the Council’s fault caused, including the time and trouble she had to bring her concerns to its attention;
2. pay Mrs D £1,300 to acknowledge the loss of SEN provision child would have received from April 2021 had it not been for the Council’s delays; and
3. pay Mrs D £600 for the cost of her private SaLT assessment for child X, which should have been arranged by the Council in early 2021.
75. Within three months of the final decision the Council should also:
1.  
2.  
3.  
4. review how it monitors annual reviews for children with EHC Plans, which are conducted by schools. This is to ensure reviews takes place annually, and its decisions and final EHC Plans are shared with parents without delay.
5. remind its staff to log and respond to all requests for reassessments of EHC Plans to ensure parents can exercise their right of appeal to a tribunal if a decision is disputed;
6. remind it staff of the timescales and purposes of the Council’s complaints policy. This is to ensure complaints are properly responded to without delay for both stage one complaints and escalated complaints under its stage two process as set out in its policy, and complainants are informed about the right to complaint to the Ombudsman as part of the process.

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Final decision

76. I found fault by the Council which caused Mrs D and child X an injustice. The Council has agreed with my recommendations, it is on this basis I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman