Summary: Mrs X complained about the support the Council provided for her son, Y’s, special educational needs. There was fault with how the Council ensured that all the support Y should have had was provided and delays following a December 2021 annual review. This caused Y to miss out on support he needed and caused Mrs X avoidable distress, uncertainty and inconvenience. The Council agreed to apologise, issue the final Education Health and Care plan, pay Mrs X a financial remedy and issue reminders to its staff.

The complaint

1. Mrs X complains about the support the Council provided for her son, Y’s, special educational needs from January 2019 onwards. She says the Council:
• at first refused to assess Y’s needs;
• took too long to assess Y’s needs after it agreed to;
• took too long to issue an Education Health and Care (EHC) plan;
• failed to secure all the provision in Y’s EHC plans; and
• took too long to amend Y’s EHC plan after a review in December 2021.
2. As a result, Mrs X said Y went without support for his needs which caused distress to both her and Y. She wants the Council to apologise and properly recognise how it has failed Y.

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What I have and have not investigated

3. I have investigated how the Council secured the provision in Y’s EHC plan from May 2021 onwards and how the Council dealt with the annual review of Y’s EHC plan in December 2021.
4. I have not investigated events which happened before May 2021.
5. 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)
6. Mrs X knew about her concerns with the Council’s assessment of Y’s needs and the first EHC plan in 2019. Her complaint about these issues is therefore late.
7. Although Mrs X first contacted the Ombudsman in April 2021, she had not exhausted the Council’s complaints procedure at that time. After the Council sent Mrs X its final response to her complaint in late April 2021, Mrs X did not complain to the Ombudsman until May 2022.
8. I am satisfied Mrs X could have complained to the Ombudsman about her concerns from 2019 shortly after the Council sent its final response and there are no good reasons to consider her complaints about this period now.

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The Ombudsman’s role and powers

9. 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)
10. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
11. 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)
12. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
13. 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.
14. 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

15. I considered:
• the information Mrs X provided and discussed the complaint with her;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law and guidance.
16. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments I received before making a final decision.
17. 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

18. A child with special educational needs (SEN) 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.
19. 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.
20. 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)
21. The Ombudsman does recognise 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 does consider that 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.
22. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
• 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)
• 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)
• 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)
• 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)
23. 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.

What happened

24. Mrs X’s son, Y, has special educational needs relating to a diagnosis of epilepsy. He has had an EHC plan from the Council since December 2020. Y’s first EHC plan set out various education strategies and techniques which his school (a mainstream primary school) should use to support his learning.
25. Mrs X appealed the content of Y’s first EHC plan to the SEND Tribunal which issued its decision on her appeal in mid-July 2021. The Council issued an amended EHC plan, based on the tribunal’s order, in early August 2021. This key extra support for Y in the amended plan included:
• using ‘text to speech’ technology to support his reading of text and audio recording to capture his ideas;
• termly visits from a Speech and Language Therapist who would support school staff to develop a programme of activities for Y and advise the school on how to best support him; and
• one to one or small group language activities two to three times a week under the guidance of a Speech and Language Therapist.
26. Y’s school held the annual review of Y’s EHC plan in mid-December 2021. During the review meeting, Mrs X raised her concern that no Speech and Language Therapist had been arranged to support Y’s learning. According to Mrs X, this was because Y did not qualify for support through the local NHS therapy service and the school did not have funding to arrange this privately.
27. The Council sent Mrs X an amendment notice, based on the December 2021 annual review, in early March 2022.
28. A few weeks later, Mrs X complained to the Council about Y’s EHC plan, including that:
• the Council had failed to issue a final EHC plan after the December 2021 review;
• Y’s school was not providing all the support in his EHC plan, especially the support that needed the input from a Speech and Language Therapist; and
• the Council had failed to followed directions of the SEND Tribunal during the appeals process.
29. The Council replied to Mrs X’s complaint in mid-April 2022. It accepted there had been delays in amending Y’s EHC plan following the December 2021 review but said it would consider Mrs X’s concerns about missed provision while it worked with her to agree the amended plan. In its final response, the Council repeated its apology for the delays.
30. The Council said that, around July 2022, its SEN funding panel agreed to provide extra funds to Y’s school so it could arrange advice and support from a Speech and Language Therapist.
31. In mid-October 2022, the Council said it was still working on preparing a final amended EHC plan following the December 2021 annual review.

My findings

Securing the provision in Y’s EHC plan

32. The Council had a duty to arrange all the support included in Y’s EHC plan. While it can delegate this task to the placement named in the EHC plan, the responsibility for making sure that all the provision in Y’s EHC plan remained with the Council.
33. We do not expect councils to keep a ‘watching brief’ over EHC plans, although we do expect councils to investigate any concerns raised about whether provision is in place.
34. During the tribunal appeal, the Council had a duty to arrange the provision in Y’s first EHC plan. Although Mrs X had appealed about the content of Y’s EHC plan, there is no evidence Mrs X raised any concerns the provision in Y’s first EHC plan had been put in place. Therefore, I am satisfied the Council took reasonable steps to arrange the provision in the first EHC plan.
35. After the tribunal appeal, the Council issued an amended EHC plan which included several changes to the support Y should receive. Much of this was based on there being involvement of, or support from, a Speech and Language Therapist. I am satisfied that, at first, there was no fault with the Council’s expectation that Y’s school would arrange that support.
36. However, because Y did not meet the threshold for local NHS Speech and Language Therapy services, Y’s school could not arrange that support. Mrs X raised her concerns about this at the December 2021 annual review and the report from the review meeting explicitly mentioned her concerns. She also directly raised her concerns with the Council about the lack of Speech and Language Therapy in her March 2022 complaint.
37. I am satisfied the Council should have been aware of the lack of Speech and Language Therapy support from January 2022, within two weeks after the annual review meeting and was clearly aware when Mrs X complained in March 2022.
38. However, there is no evidence the Council made sure that support was being provided until it agreed extra funding for Speech and Language Therapy in July 2022. This was fault.
39. I am satisfied that much of the provision in Y’s amended EHC plan was dependant on or would have been enhanced by Y’s school receiving input from a Speech and Language Therapist. The failure to secure that provision meant that Y missed out on some of the support he should have received between January and July 2022.
40. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £200 and £600 a month to acknowledge the impact of that loss.
41. Taking into account Y’s needs detailed in his EHC plan, that Y continued to receive an education during that time and that Mrs X says Y would be unable to cope with extra provision now to make up for the missed support, I am satisfied that a remedy of £250 a month is appropriate.

Annual review

42. Y’s school carried out the annual review of his EHC plan in mid-December 2021. Therefore, the Council should have sent Mrs X its decision about whether to amend Y’s EHC plan by mid-January 2022. However, the Council did not do this until early April 2022; 12 weeks late. This was fault.
43. The Council then sent Mrs X its proposed changes to Y’s EHC plan in early May 2022. Therefore, the Council should have issued a final amended EHC plan by early July. However, as of October 2022, the Council had still not issued a final EHC plan.
44. The Council said the delays in issuing a final amended EHC plan was because it was negotiating about the content of the plan with Mrs X, including a change of school for Y. Mrs X told the Council which school she wanted Y to attend in May 2022. However, the Council did not consult with any schools until July 2022, around the time it should have issued the final plan.
45. I am satisfied the evidence shows there were significant delays in the annual review process. I appreciate the Council’s intent was to agree, as much as possible, any changes to Y’s EHC plan. However, it the law requires councils to undertake the amendment process “without delay” and to issue an amended plan within 8 weeks. The evidence shows the Council failed to do this, so this was fault.
46. Since the Council has not yet issued a final EHC plan, I cannot say what support Y might have received had the Council acted sooner. However, I am satisfied the delays meant that Y lost the opportunity to start at his preferred school earlier and there is a remaining uncertainty about what the outcome for Y would have been had the Council completed the amendment process within the required time. This caused avoidable distress to Mrs X and has also delayed her opportunity to appeal.

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Agreed action

47. Within one month of my final decision the Council will:
• issue a final amended EHC plan to provide Mrs X with clarity about the support Y should receive and allow her the opportunity to appeal if she wishes to;
• apologise to Mrs X for failing to secure some of the provision in Y’s EHC plan and for the delays in completing the annual review;
• pay Mrs X £400 to recognise the avoidable uncertainty, distress and inconvenience caused by those failures;
• pay Mrs X £1,750, intended for Y’s educational benefit, to recognise the support from Y’s EHC plan that he missed between January and July 2022;
• pay Mrs X £100 to fund a suitable gift for Y to recognise the impact of the failures on him of missing the support he needed and the effect this had on his ability to take part in school.
48. Within three months of my final decision the Council will remind its SEN staff that it is the Council’s responsibility to ensure that all provision in EHC plans is provided and that they should promptly investigate and intervene if they have reason to believe any provision is not being made.
49. The Council should provide us with evidence it has complied with the above actions.
50. I would normally have also recommended that the Council provide training to its SEN staff on their responsibilities to comply with the legal timescales for EHC plans. However, the Council has provided evidence it did this September 2022 and therefore I am satisfied such a further recommendation is unnecessary.

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Final decision

51. I have completed my investigation. There was fault with how the Council ensured that all the support in Y’s EHC plan was provided and delays following a December 2021 annual review. This caused Y to miss out on support he needed and caused Mrs X avoidable distress, uncertainty and inconvenience. The Council should apologise, issue the final EHC plan, pay Mrs X a financial remedy and issue reminders to its staff.

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Investigator's decision on behalf of the Ombudsman