Summary: Mrs X complained the Council delayed finalising amendments to her child, W’s, Education, Health and Care plan and failed to ensure W received all the provision in their plan. The Council was at fault for unnecessary delay in issuing the EHC plan. It will apologise to Mrs X and pay her £200. The Council will also send the Ombudsman an action plan setting out how it will adapt to cope with the increased demand on its Special Educational Needs service.

The complaint

1. Mrs X complained:
• the Council delayed finalising amendments to her child, W’s, Education, Health and Care (EHC) plan; and
• the Council's funding decisions meant W was not receiving all the provision in their EHC plan.
2. She said this caused her distress and negatively affected W’s learning at a key time in their school career.

Back to top

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)
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.

Back to top

How I considered this complaint

6. I have considered:
• all the information Mrs X provided and discussed the complaint with her;
• the Council’s complaint responses and the supporting documents it provided; and
• the relevant law and guidance and the Ombudsman's guidance on remedies.
7. Mrs X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and guidance

Education, Health and Care plans and annual reviews

8. The responsibilities of councils towards children and young people with special educational needs (SEN) are set out in the Children and Families Act 2014 and associated Regulations and statutory guidance, the SEND Code of Practice 2015 (The Code). One of the ways to meet the needs of children with SEN is to issue an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them.
9. Councils must review EHC plans at least every 12 months. 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.
10. The Code says that where a council proposes to amend an EHC plan, it should begin the process of amendment ‘without delay’. 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 (an amendment notice; sometimes called a draft EHC plan).
11. 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 existing EHC plan and proposed amendments to the parents.
12. Caselaw from March 2022 clarified the timetable for annual reviews. The High Court decided that if a council intends to amend a child’s EHC plan, they must send the draft EHC plan (amendment notice) along with the notification they intend to amend the existing plan. This must happen within four weeks of the annual review meeting. Overall, it should take no more than twelve weeks from the annual review meeting to issuing the amended EHC plan.

Duty to secure provision

13. Councils have 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. 
14. 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 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.
15. Many councils allocate funding to local schools which use the money to meet the needs of children with special educational needs. Where a child’s EHC plan is in the process of amendment, councils will consider what funding is required to secure the provision set out in the amended plan. If, once the plan is finalised, the Council becomes aware the funding is not sufficient to allow the school to meet the child’s needs, it should act without delay to explore what action is needed in response.

What happened

16. In late 2021, the Council began reviewing W’s EHC plan ready for their transfer to secondary school.
17. In late January 2022, the Council held an annual review. By early February, the Council issued the EHC plan it had started amending in late 2021. It named a mainstream secondary school (the School) starting from September 2022. Specifically, the plan said that W ‘needs to eat [their] lunch and then have [their] medication’. It said that support would be provided by teaching and support staff at the school.
18. The Council sent Mrs X its decision to amend W’s plan following the January 2022 annual review in February.
19. Mrs X complained to the Council in March about the Council's annual review process. The Council responded in early April. In summary, it said:
• it would issue the amendment notice by late April; and
• it had seen a 50% increase in the number requests for assessments for EHC plans and was struggling to meet demand on its SEN department.
20. In early April, the Council's funding panel concluded it would provide part of the funding the School had requested to offer the provision in W’s EHC plan.
21. The Council sent Mrs X its amendment notice in late April. Mrs X was unhappy with its content and in mid-June 2022, the Council issued a new amendment notice. The Council told me it did this because it was trying to work with Mrs X to resolve her concerns about the plan.
22. In June, the Council's Advisory Teaching Service told a manager in the SEN department that the School needed an increase in funding. They said the panel had previously decided the person helping W at lunch did not need to be qualified. The School and Service disagreed and felt the person needed to be someone qualified, such as a teaching assistant, who had training in W’s type of needs. Mrs X says the Council agreed to reconsider the issue at its funding panel but did not do so.
23. The Council issued the amended EHC plan in August. The provision was similar to that in the plan issued in February 2022. The additions were strategies staff could use to support W. It noted under special educational provision that W needed help to eat their lunch and then take medication.
24. W began attending the School in early September 2022. In late September, the Council confirmed with the School that W was receiving all the provision in their EHC plan.
25. In late October, the Council held another funding panel. It agreed to increase the funding to cover the cost of the teaching assistant for W’s lunchtimes.
26. The panel hearing records show Mrs X said W’s transition to secondary school had been very challenging. She said W’s lack of knowledge of the school was affecting them and had caused them to miss days. She also said the teachers did not understand W’s needs properly. She asked for an emergency review of their EHC plan.
27. Mrs X told me the funding the Council agreed did not cover the support W needed. She said much of the provision in W’s EHC plan is not, and has never been, provided at the School. She also said the way the School was executing the provision was not adequate and meant she was having to collect W from school early. Most of the provision Mrs X says is missing is strategies for use by teaching staff and periods of specific learning such as 30-40 minutes individual sessions once a week to focus on developing W’s skills to manage their emotions. It does not include help eating lunch or taking medication. She also said the School has since put additional support in place for W and the Council funding did not cover this either.

Findings

Delay in issuing W’s final EHC plan

28. The Code says that after a council has issued its decision to amend an EHC plan they must make amendments ‘without delay’. They must then issue the amended EHC plan within eight weeks of sending the amendment notice to parents. Caselaw issued partway through the events complained about clarified that the process from annual review meeting to amended EHC plan should take no more than twelve weeks. The Council held the annual review meeting in late January 2022. It took around two months to issue its first amendment notice and did not issue the final EHC plan until August, four months after that.
29. The Council says the delay was the result of increased demand on its service and a desire to produce an EHC plan Mrs X agreed with. This led it to issue a second amendment notice in June 2022. While I recognise the pressures on the Council's SEN department and the rationale behind its efforts to come to an agreement with Mrs X, it is nonetheless fault for the Council to have taken eight months from the date of the annual review meeting to issuing the final plan.
30. The fault caused Mrs X avoidable frustration and uncertainty about whether the Council would issue the plan before W started School. However, the delay did not cause W an injustice because the Council still issued the EHC plan before the start of the school term. In addition, the EHC plan was not significantly different to the plan the Council issued in February 2022, which the School had access to in order to plan the support.

Provision in W’s EHC plan

31. Mrs X complained the Council's funding decisions meant W was not receiving all the provision in their EHC plan. The Council has a duty to secure the provision in a child’s EHC plan. But it is not for the Ombudsman to dictate how councils allocate their funding to meet this duty. W’s plan said they needed help to eat lunch and then take their medication. It did not specify who would support W. The Council's April 2022 panel decided this support did not have to come from a qualified teaching assistant and so did not agree to the full funding requested by the School. It was entitled to make this decision.
32. However, in June the Council became aware its advisory service and the School felt W would need a teaching assistant at lunchtimes. The Council told Mrs X it would reconsider the funding. The Council did not hold another panel until October 2022; a month after W started at the School. This delay was fault. It caused Mrs X frustration and distress. It did not cause W an injustice because the School ensured they had support to eat lunch and then take medication in accordance with their EHC plan, albeit not with a teaching assistant.
33. One of the ways we expect Council's to meet their duty to secure the provision in a child’s EHC plan is by checking the special educational provision is in place at the start of a new placement. We do not require councils to have ongoing detailed oversight of the provision. W started at the School in early September. By late September, the Council contacted the School, which confirmed all of the SEN provision was in place. The Council acted promptly to confirm it had secured the provision in W’s EHC plan so was not at fault.
34. Mrs X disputes that W is receiving the provision in their EHC plan. She says much is missing and has been since the beginning of the school year. However, the Council can only act on the information it has. The School said it was offering the provision so the Council relied on that information. It is apparent Mrs X is unhappy with how the School is executing the support in W’s EHC plan and no longer feels the placement is suitable for W. She has requested an emergency annual review. That is the appropriate route to seek a change in W’s special educational provision and school place.
35. Mrs X is also concerned the funding the Council has agreed does not cover the recent increase in support the School has put in place. It is not for the Ombudsman to comment on funding arrangements between councils and schools. If W needs more support to meet their SEN, this could be raised at the emergency annual review.

Back to top

Agreed action

36. Within one month of the date of my final decision, the Council will:
• apologise to Mrs X for the frustration, distress and uncertainty the delay in issuing W’s EHC plan and holding the second funding panel caused her; and
• pay Mrs X £200 in recognition of that injustice.
37. Within four months of the date of my final decision, the Council will:
• send the Ombudsman an action plan setting out how it will adapt to the increased demand on its SEN service. This should take account of the recent caselaw on timescales for annual reviews.

Back to top

Final decision

38. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.

Back to top

Investigator's decision on behalf of the Ombudsman