Summary: Ms X complains the Council failed to ensure her son was receiving the provision named in his Education, Health, and Care Plan causing distress. We found no evidence of fault in the way the Council responded to Ms X’s concerns about the provision being made. We found fault as the Council delayed in responding to Ms X’s complaints about the matter. The Council accepted it was at fault. It has already apologised to Ms X and offered payment in recognition of the delay and her time and trouble in pursing her complaints. We consider it a suitable remedy in this case and so have completed our investigation.

The complaint

1. I have called the complainant Ms X. She complains about the way the Council dealt with her concerns about her son Y’s Education Health and Care Plan (EHCP). In particular Ms X says the Council
• Removed some EHCP provision in error, failed to ensure the EHCP provision was in place especially the 1-1 support required, and failed to recognise his school placement was unsuitable.
• Failed to take safeguarding action following incidents at school where she feared for Y’s safety.
• Failed to act on her request for a new education psychologist assessment.
• Delayed carrying out an annual review of Y’s EHCP in January 2022.
• Delayed responding to her complaints about the matter.
2. Ms X also complains about the actions of the school in making the provision and dealing with her concerns.
3. Ms X says this has caused her and Y distress and she has spent time and trouble in pursuing the matter.

Back to top

What I have investigated

4. I have investigated Ms X’s complaints about the EHCP provision being made including the 1-1 support. I have considered Ms X’s concerns about the Council failing to take safeguarding action and the delays in responding to her complaints. I have not investigated Ms X’s complaints about the Council removing some provision from the EHCP and delay in carrying out the annual review. I have also not considered Ms X’s concerns about the request for a new education psychologist assessment, Ms X’s views on the suitability of the school and actions of the school. I explain the reasons for not investigating these issues within the draft decision statement.

Back to top

The Ombudsman’s role and powers

5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’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)
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. 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). We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
8. 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. Where the Tribunal orders a council to amend an EHC Plan, the council shall amend the EHC plan within five weeks of the order being made. ( The Special Educational Needs and Disability Regulations 2014)
9. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
10. 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)

Back to top

How I considered this complaint

11. I have read the papers submitted by Ms X and discussed the complaint with her. I considered the Council’s comments on the complaint and the supporting documents it provided. I considered relevant law and guidance on special educational needs.
12. Ms X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
13. 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.

Back to top

What I found

Education, Health and Care Plan (EHCP)

14. A child with special educational needs (SEN) may have an EHCP. This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the SEND Tribunal can do this.
15. Parents have a right to appeal to the SEND Tribunal if a council refuses to carry out an assessment, or they disagree with the special education provision, or the school named in the child’s EHCP.
16. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC Plan we cannot seek a remedy for lack of education after the date the appeal was submitted if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).

Annual Reviews

17. Councils must review EHCP’s at least every 12 months.
18. Councils must decide whether to maintain the EHCP in its current form, amend it, or cease to maintain it within four weeks of the review meeting. The Council should issue the final EHCP or decide not to amend the EHCP at all as soon as practicable and within eight weeks of the date it sent the plan to the parents/young person with the proposed amendments. Decisions to amend or cease a plan can be appealed to the Tribunal.

What happened in this case

19. This section sets out the key events in this case and is not intended to be a detailed chronology
20. Ms X’s son Y has a range of complex needs and diagnoses including ADHD and Autistic Spectrum Disorder. Y was due to start at secondary school in September 2021. The Council issued Y with an EHCP naming School B, a mainstream secondary school with specialist provision as Y’s placement. Ms X accepted the place at School B but appealed to the SEND Tribunal about the provision in the EHCP.
21. The SEND Tribunal considered Ms X’s appeal in June 2021. Y started at school B in September 2021 and Ms X complained to the Council Y was not receiving the provision specified in his EHCP. This included full time 1-1 support by a teaching assistant (TA) and other interventions. On 10 September 2021 the Council received the Tribunal Final Order from the SEND Tribunal naming School B as Y’s school placement.
22. The Head of School B spoke to Ms X about delivering Y’s timetable and explained they would use an intervention timetable to help meet Y’s needs. The Council contacted Ms X and explained it could not fully respond as she complained about matters still in the latter stages of the SEND appeal process. This was because the Council had five weeks from receiving the Order to amend the EHCP and ensure all additional provision ordered by SEND was in place. The Council said as it received the Order on 10 September it was working towards a deadline of 15 October 2021 to have all provision in place.
23. Ms X complained again that not all of Y’s EHCP provision was in place including the 1-1 support. The Council told Ms X officers meet with the school to discuss Y’s EHCP. Although the plan was not yet been finalised officers were satisfied the school had a comprehensive plan of how it was delivering Y’s provision in the form of an intervention timetable.
24. Ms X remained unhappy with the provision being made. School B confirmed to Ms X it was delivering timetabled interventions within Y’s academic/social timetable which differed from the way they were delivered in primary school. Y was given 1-1 support each day by different staff due to staff supply. But it was recruiting a permanent member of staff as a TA. The school confirmed it made a new referral for Y’s Speech and Language Therapy (SALT) as Y’s case had been closed. The school also said it would refer Y to their onsite occupational therapy (OT) service. The school considered Y had settled well and offered to meet with Ms X to discuss any concerns.
25. Ms X responded she did not wish to meet with the school, and she considered it an unsuitable setting for Y. But would wait until the October half term for all the provision to be in place.
26. In October 2021 the school held a meeting to ensure there was no further confusion about Y’s intervention and timetable. The Council responded to emails from Ms X raising concerns about Y’s provision and advised she could make a stage 1 complaint if not satisfied with the outcome. The Council issued Y’s final amended EHCP to Ms X and School B on 13 October 2021.
27. School B offered Ms X further meetings to discuss Y’s provision as she continued to raise concerns. But Ms X declined, and she formally complained to the school about how it was meeting Y’s needs. School B responded providing assurances of the support being provided to Y.
28. Ms X formally complained to the Council at the end of October 2021 School B was not meeting the provision in Y’s EHCP. Ms X made complaints to the school about incidents at school, Y’s safety, and the suitability of the placement. Ms X asked for an emergency annual review. The Council advised Ms X to allow Y time to settle in at School B with his new support, allowing him to make progress and adapt to his new school. But advised Ms X she could write to Y’s caseworker explain why she wanted an early review, and it would consider her request.
29. The Council contacted Ms X about mediation in December 2021 after issuing the EHCP in October 2021. It also apologised for the delay in responding to her complaint and confirmed it would investigate. School B contacted the Council about arranging Y’s annual review due in January 2022. It was not possible to hold the review meeting at the end of December 2021 due to the notice needed so arranged it for 19 January 2022.
30. In January 2022 Ms X asked the Council to postpone the review as she considered the school had not followed the correct procedures. The Council arranged and held the review on 8 February 2022. Ms X registered a further appeal to the SEND Tribunal on 14 January 2022 about the suitability of Y’s placement at School B.
31. Ms X exercised her right of appeal to the SEND Tribunal. As paragraph seven says we cannot investigate a complaint where a person has appealed to a tribunal. So, I cannot investigate any concerns Ms X may have about the EHCP provision and outcome of the annual review from the point Ms X exercised her right of appeal in January 2022.
32. The Council issued the outcome of Y’s annual review in March 2022. The Council proposed no changes to the EHCP. The Council responded to Ms X’s stage 1 complaint in March 2022. Ms X remained unhappy with the outcome and raised a stage 2 complaint. The Council responded in June 2022.

Ms X’s complaints

Complaints about school B

33. Ms X complains about the actions of the school as it did not advertise its complaints procedure and did not deal with an issue at school resulting in fears for Y’s safety. Ms X says Y’s TA left the school and so he is left unattended. Ms X says her relationship with School B has now broken down completely.

My assessment

34. As paragraph nine explains we cannot investigate what happens in schools so I cannot investigate any concerns Ms X has about the actions of the school. My investigation focuses on the actions of the Council.

Y not receiving 1- 1 support

35. Ms X complained Y was not reliably receiving the planned 1-1 support at School B. Ms X says she was told the support would be in place when Y started at the school, but the school were unaware of it. The Council confirmed there had been 1-1 support in place at the school since 6 September 2021 and it remained continually in place since then with some unavoidable staff changes. The Council says the Tribunal had not issued the decision until after term started so the school had not appointed a specific person as Y’s 1-1 support. This was because it was waiting for the final amended plan following the Tribunal so they could appoint the appropriate person to match Y’s EHCP. As the Council had five weeks to amend the plan and put provision in place this delay took School B past week one of the new September term in arranging the provision. But it ensured it had agency staff in place until it appointed a permanent TA.

My assessment

36. The documents show that once the SEND Tribunal issued its decision on 10 September 2021 the Council acted to ensure it had Y’s provision in place within the 5 weeks of the Final Order. This included the school making the 1-1 support available for Y. It is unfortunate the Tribunal decision was not issued before the start of term, but the evidence shows the school arranged support for Y as soon as it could. As this was within the five weeks allowed by legislation there is no evidence of fault by the Council in ensuring the support was in place.

Y not reliably receiving the support detailed in the intervention timetable

37. Ms X complained Y did not reliably receive the support detailed in the intervention timetable. The Council says it was satisfied from the evidence provided the school was delivering the provision in Y’s EHCP using an intervention timetable. The Council has no evidence that Y has missed any provision from September 2021 onwards.

My assessment

38. We do 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. We do 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.
39. The documents provided show the Council has demonstrated due diligence and responded to Ms X’s concerns about Y’s provision at School B. Council officers met with school staff and were satisfied from the evidence provided by the school it was making the provision required. The school provided an intervention timetable identifying how it was meeting Y’s needs. There is no evidence of fault in the way the Council has clarified and checked the provision being made. And satisfying itself it is being provided by School B.

The Council removing provision in error from the EHCP

40. Ms X alleged the Council removed provision from the EHCP in error after the Tribunal decision in September 2021. This was specifically social thinking and Lego therapy. The Council confirmed the Tribunal ruled Lego therapy should be removed as it was out of date. The Council considered there was some room for interpretation of this part of the Tribunal Order. And while it followed the recommendations to remove Lego therapy as outdated, there were further recommendations to include the subgoals from SALT which note Lego therapy.
41. The Council acknowledges it should have included the SALT subgoals in the EHCP issued in October 2021, but considers it has not caused any injustice to Y. This is because School B was delivering Lego therapy, social thinking, and SALT interventions in line with the subgoals. As Ms X has appealed to the SEND Tribunal again the Council is preparing a working document for a hearing and have agreed to include the confirmed subgoals in the documents. The Council has decided to allow the Tribunal judge to provide further clarity on the issue moving forwards to avoid any further confusion or uncertainty.

My assessment

42. The Council has explained it removed Lego therapy from the EHCP in line with the Tribunal Order which required the document to be updated now Y was attending secondary school. The Council accepts it did not include all the SALT subgoals in the EHCP as the Tribunal Order was open to interpretation. However, these have been provided by the school in its provision and it is now being considered as part of the forthcoming Tribunal hearing. I do not consider I can comment on this issue as it forms part of the upcoming Tribunal hearing and so the law prevents us from considering any concerns Ms X may have.

Delay in carrying out the EHCP Annual Review

43. Ms X alleged the EHCP annual review did not take place on time. The Council acknowledged the annual review should have taken place by January 2022, so it was late. The Council apologised for the delay.

My assessment

44. The documents I have seen show the Council and school tried to commence the annual review in December 2021 but there was insufficient time to give notice. So, it was set for January 2022. Ms X raised concerns and it was rearranged for February 2022. It is unfortunate the annual review was delayed; however, the Council has apologised which is suitable action for it to take. I do not intend to pursue the matter further. This is because Ms X has appealed to the Tribunal and the outcome of the annual review is inextricably linked with the Tribunal hearing.

Failure to deal with a safeguarding incident at the school

45. The Council confirms it was aware of Ms X’s complaints Y’s safety at school due to some incidents with other pupils. The Council responded it was aware of the incidents Ms X referred to and it had been in contact with the school. The Council was satisfied the school investigated the incidents and dealt with the matter.

My assessment

46. The evidence provided shows the Council considered the concerns Ms X raised about incidents at the school. The Council investigated and decided not to pursue the issues further. This is a decision the Council is entitled to make. There is no evidence of fault in the way the Council reached its decision. This is because it investigated Ms X’s concerns and was satisfied it needed to take no further action.

Education psychology assessment and suitability of the school

47. The Council confirms Ms X requested an education psychology assessment as part of the recent tribunal appeal and it has agreed to the request. The Council confirms Ms X requested a different school as part of her tribunal appeal as she does not consider School B is suitable.

My assessment

48. The issues form part of the forthcoming tribunal hearing so the law prevents us from considering Ms X’s concerns on these matters.

Delays in responding to her complaints

49. The Council accepts it delayed in dealing with and responding to Ms X’s stage 1 complaint. It has apologised and offered Ms X £250 in recognition of her time and trouble and inconvenience.

My assessment

50. The Council acknowledged it delayed in dealing with Ms X’s complaint. This is fault by the Council, and it has offered Ms X a payment of £250 in recognition of her time, trouble, and inconvenience in pursuing her concerns. This is a suitable offer for the Council to make. I do not consider I can achieve anything more for Ms X on this point.

Back to top

Final decision

51. I am completing my investigation. I have found no evidence of fault in the way the Council responded to Ms X’s concerns her son Y was not receiving the provision outlined in his EHCP. I have found fault in the way the Council dealt with Ms X’s Stage 1 complaint about the matter. The Council has already offered a suitable remedy in this case.
52. Ms X has appealed to the SEND Tribunal again and so the law prevents us from considering Ms X’s concerns about the annual review of Y’s EHCP and the suitability of the school

Back to top

Investigator's decision on behalf of the Ombudsman