Summary: The Council was at fault for not ensuring Ms X’s children received all the special educational needs provision listed in their Education, Health and Care plans. There was also a delay in amending the children’s Education, Health and Care plans following their annual reviews. As a result, Ms X’s children have not received all the provision listed in their Education, Health and Care plans and have had to wait longer to receive amended Education, Health and Care plans. The Council agreed to apologise to Ms X and make a payment for the loss of provision and uncertainty caused.

The complaint

1. Ms X complains the Council failed to ensure her sons’ received all of the special educational needs provision listed in their Education, Health and Care plans.

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What I have and have not investigated

2. I have only investigated matters up to when the Council issued the new final Education, Health and Care plan in December 2022.
3. If Ms X has concerns about how the provision in the December 2022 Education, Health and Care plans has been implemented, after this time, she would need to raise a complaint with the Council in the first instance so it can have the opportunity to respond.

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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. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
6. 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

7. As part of this investigation, I considered the information provided by Ms X. I discussed the complaint over the telephone with Ms X. I made enquiries with the Council and considered the information received in response. I sent a draft of this decision to Ms X and the Council and considered comments received in response.
8. 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

9. 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.
10. 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.
11. 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)
12. 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.
13. A council can amend an existing EHC plan. EHC plans are not expected to be amended on a very frequent basis but may need to be amended at other times where a full review or re-assessment is not necessary.

Arrangements for reviewing an EHC Plan

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)
19. 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

20. There has been extensive correspondence between Ms X, and the Council since late 2021. In this section of the statement I summarise key events relevant to the investigation but I do not refer to every single contact and communication.
21. Ms X’s two children, Y and Z, started school in September 2021. They both had EHC plans.
22. Both children’s EHC plans stated they would have musical communication daily in small groups. Z’s EHC plan said Z would receive help with communication through cued articulation.
23. In October 2021, Ms X raised concerns with the Council that Y and Z were not receiving their full provision listed in their EHC plans and the school’s implementation of this provision. This was because Ms X received an email from the school which said the provision listed in section F of the EHC plans was guidance.
24. The Council responded and said its SEND Inclusion and Psychology Team would need to investigate this to consider what provision was in place for Y and Z. The Council sent Ms X consent forms to complete so it could instruct one of its Inclusion Partners (IP). Ms X decided she did not currently want this support and told the Council.
25. In early 2022, Ms X agreed the Council could instruct an IP to look at how the school was delivering the provision in Y and Z’s EHC plan.
26. In late March 2022, Ms X contacted the Council to complain that she did not believe Y and Z were receiving the provision listed in their EHC plans. Ms X said the children were getting less support with a teaching assistant than stated in their EHC plans. Y’s work book showed he was getting little support with activities he found difficult. Ms X also proposed amendments and updates to the wording of the children’s EHC plans and raised concerns about the teaching methods at the school.
27. The Council told Ms X its IP would consider her concerns but it would address the amendments she sought to Y and Z’s EHC plans at their annual reviews. The Council’s Strategic Lead for Language and Communication (SL) also looked at whether the school was delivering the provision.
28. On 5 April 2022, Ms X made a formal complaint to the Council about the failure to provide the provision in Y and Z’s EHC plans.
29. From the end of March 2022 to the end of May 2022, the IP considered how the school implemented the provision. The IP met with the head teacher, SENDCO and Y and Z’s teachers. The IP also heard from Ms X and her partner. The IP observed Y and Z in and out of a classroom setting, considered examples of their work and compared this to the work of their peers.
30. In late May 2022, the IP produced a report for Y and a report for Z. The IP found staff at Y and Z’s school were implementing the provision listed in their EHC plans and Y and Z were meeting the outcomes in their plans. The SL noted the school had not implemented cued articulation for Z as it had not accessed the resource available.
31. After receiving the reports from the IP Ms X and her partner sent further emails to the Council disagreeing with the IP’s findings.
32. The Council held annual reviews of Y and Z’s EHC plans in early June 2022.
33. The Council responded to Ms X in June 2022. The Council said the IP could provide further clarification to Ms X about how they decided the school was providing the provision in Y and Z’s EHC plans. The Council said it would not amend the IP reports if the concerns raised by Ms X just amounted to a disagreement with the conclusions of the IP. The Council said it would store Ms X’s feedback alongside the IP reports. The Council said it would consider concerns Ms X raised about the content of the EHC plans as part of the children’s annual reviews. The Council said it felt the EHC plan was being delivered.
34. Following this Ms X continued to raise concerns that Y and Z’s school were not providing the provision in their EHC plans.
35. In early July 2022, the Council wrote to Ms X and told her it was amending Y and Z’s EHC plans. The Council held a meeting with the school, Ms X and her partner to discuss the changes to the EHC plans. The Council also received comments from Ms X on the section F provision part of the EHC plans.
36. In September 2022, the Council provided its final response to Ms X’s complaint. The Council accepted there had been small parts of provision in Y and Z’s EHC plans which the school had not put in place. The Council said it did not consider this impacted on Y and Z due to the progress they had made.
37. On 15 September 2022, the Council sent out draft amended EHC plans for Y and Z after making amendments. The amendments to the special educational provision section of the plan removed references to specific learning strategies and instead referred to the SALT care plan for Y and Z. The plans also showed Y and Z would receive extra SALT provision such as 3 hours each half term with a SALT and daily 15 minute one to one speech practice sessions.
38. The Council also consulted with nine schools to see if places were available for Y and Z. This was after Ms X asked the Council to find a new school for Y and Z.
39. In early November 2022, Ms X asked the Council to delay finalising Y and Z’s EHC plan until it could name a new school in the plans. Ms X then contacted the Council at the beginning of December 2022 and asked it to issue final EHC plans for Y and Z so they could start to get the extra SALT provision in the updated EHC plans.
40. The Council issued final amended EHC plans for Y and Z, in December 2022, but did not name a school. The Council said once it could name a school it would issue updated EHC plans. Since this time Ms X has decided to keep Y and Z at their current school, because of the consultation responses from the nine schools the Council consulted with.
41. Ms X remained dissatisfied and complained to the Ombudsman.
42. In response to my enquiries, the Council said the school changed small parts of the provision in the EHC plans in response to the children’s progress at school. This included the frequency of small group work including musical communication sessions. The Council said it found the school had not implemented cued articulation for Z but had now accessed this resource.

Analysis

EHC plan provision

43. Ms X first raised concerns with the Council about Y and Z not receiving the provision listed in their EHC plans in October 2021. The Council did not start to investigate how the school was putting in place the provision for Y and Z until March 2022. The Council did offer help to Ms X shortly after she raised her concerns but she declined the Council’s offer for its IP to consider how the school was implementing the provision until March 2022. The Council was not at fault for the time taken to look into Ms X’s concerns.
44. The Council sent its IP and SL to consider how the school was putting in place the provision in Y and Z’s EHC plans. The Council was at fault for how it carried out its investigation. Over a two month period, the Council visited the school and met with the head teacher, SENDCO, teachers and teaching assistant supporting Y and Z. The investigation considered examples of Y and Z’s work and compared this to the work of their peers. The Council observed Y and Z in class both supported and unsupported and outside the classroom.
45. The Council found on the whole the outcomes and provision in the EHC plans were being met. It did acknowledge the school reduced some small group sessions for Y and Z, and Z was not receiving cued articulation to help with speech and language. While the amount of provision not being delivered was relatively small, the Council still must ensure all the provision in the EHC plans was in place. As some provision was not being delivered the Council was at fault.
46. The Council’s investigation found the children were making progress with the outcomes in their EHC plans. The fact they did not receive all of the provision they were entitled to does create uncertainty about whether they would have made more progress had all the provision been delivered. This is an injustice.

Annual review

47. Shortly after the Council’s investigation, it held annual reviews for both Y and Z and decided to amend their EHC plans. In July 2022, the Council told Ms X it was amending Y and Z’s EHC plans. It held a meeting with Ms X to discuss the amendments in July 2022 and received comments from Ms X about the provision in the EHC plans. The Council did not send draft amended EHC plans until 15 September 2022. There is a gap of around one month from early August 2022 to early September 2022, where no action seems to have been taken by the Council until Ms X contacts it asking for the draft EHC plans. This is fault.
48. After issuing the draft EHC plans in September 2022, the Council took longer than 8 weeks to send out final amended EHC plans. While I accept the Council was at fault for some delays in finalising the new EHC plans, Ms X has also contributed to the delay. Ms X asked the Council to find a new school place for Y and Z in September 2022. The Council consulted with nine schools in a relatively short timeframe to try to find an alternative school placement. Ms X also asked the Council to delay issuing final EHC plans for Y and Z in early November 2022 until it could name a school on the plans, however then changed her mind in late November 2022 and asked the Council to issue the final EHC plans.
49. The outcome of the annual reviews were that extra provision was included in the new EHC plans mainly relating to SALT. Had the Council finalised the new EHC plans sooner, Y and Z could have started to receive the new section F provision sooner. Ms X also may have wanted to appeal the EHC plans, therefore by delaying in issuing a final plan following the annual reviews delayed any right of appeal. On balance I am satisfied the delay from the Council amounts to around one month.

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Agreed action

50. Within one month of my final decision the Council agreed to carry out the following:
1. Provide Ms X with a written apology for the faults identified.
2. Pay Ms X £300 to recognise the uncertainty caused by not delivering all the provision in Y and Z’s EHC plans.
3. Pay Ms X £400 (£200 each for Y and Z) to acknowledge the loss of provision caused by the delays in finalising their new EHC plans.
51. The Council should provide us with evidence it has complied with the above actions.

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Final decision

52. I have completed my investigation and found the Council was at fault which caused injustice. The Council has agreed to the above actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman