Summary: There was a delay in completing the process of amending Y’s Education, Health and Care Plan and issuing an amendment notice in 2022. There was also a missed annual review in 2021 and a failure to complete the amendment process following an annual review meeting in July 2020. There was also fault in complaint handling. This caused avoidable frustration, confusion and a loss of or delay to appeal rights. The Council will apologise and make a symbolic payment of £150.

The complaint

1. Mr and Mrs X complained about their daughter Y’s Education, Health and Care plan (EHC plan). They said the Council:
1. failed to take action when it became aware the school was not delivering all the provision on the EHC plan
2. delayed carrying out an annual review in September 2022 and failed to issue an amended plan
3. failed to carry out annual reviews in previous years
4. Failed to fully investigate their complaint
2. Mr and Mrs X said this caused a loss of education provision for Y, avoidable confusion and time and trouble complaining.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this statement.
6. There is a right of appeal to the Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Paren. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
7. 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)
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)
9. 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.
10. 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 have and have not investigated

11. The timeframe of my investigation is between July 2020 and October 2022.
12. Mr and Mrs X complained to us in October 2022. So, complaints about events between October 2021 and October 2022 are not late and are included in this investigation.
13. Although matters from July 2020 to September 2021 are late, I have exercised discretion to investigate them. I consider Ms and Mrs X had good reasons for complaining late. Mrs X told us she only became aware of the alleged failings in 2022 and this led to her complaint to the Council. I have taken into account her second complaint to the Council in September 2022 referred to annual reviews not taking place and not receiving final plans in previous years.

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How I considered this complaint

14. I considered the complaint to us, the Council’s response to the complaint and documents set out in this statement. A colleague discussed the complaint with Mrs X. The parties received two drafts of this statement and I took their comments and further evidence into account before making this final decision.

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What I found

What should have happened

15. A child with special educational needs may have an 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.

16. 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 2014).
17. The Courts have said the 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)
18. We 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. However, we 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.
19. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance (the Special Educational Needs and Disability Code of Practice or ‘SEND Code’).
20. 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 SEND Code paragraph 9.176)
21. 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 SEND Code paragraph 9.194)
22. If a council decides to amend the plan, it should start the process of amendment “without delay”. (SEND Code paragraph 9.176)
23. 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)

What happened

Y’s EHC plan

24. Y has a language disorder and learning disabilities and has an EHC plan. She was in Year seven in 2019/2020. The final EHC plan in place in 2020 is dated January 2019. Section F says Y needed/would have:
• Weekly speech and language therapy.
• Advice and input should be sought from Knowsley Speech and Language Therapy services as appropriate (the NHS service)
• Structured practice in a small group to plan how to respond to social situations, small group friendship skills sessions
• Half-termly input from a specialist advisory teacher to assess her needs and devise a bespoke programme. At least three sessions of 10 minutes a week from a teacher to deliver the bespoke programme
• Small group literacy and numeracy for 20 minutes three times a week delivered by a high-level teaching assistant within a group of three. Support to read for pleasure three times a week with an adult in school. Daily reading with an adult

2020 and 2021

25. There was an on-line annual review meeting in July 2020. Mr and Mrs X and a member of staff from Y’s school attended. The school sent its report to the Council following the annual review.
26. The report of the annual review contained a section called “Recommendations for change.” This said “weekly specialist SALT sessions following advice and input from Knowsley SALT team.”
27. The report went on to say:

“Y requires SALT specialist input in order to ascertain where her difficulties currently are and where further support is identified. Knowsley SALT are named within the provision of the EHCP and another referral to this service has been made in line with this annual review. Parents are sceptical as to the support that will be offered from this service and that it will not be in line with her EHCP provision as agreed by Health and Education. We ask that the LA SEN Team support our referral through their legislative document.”

28. The Council has not shared an amended EHC plan for 2020. So it appears no action was taken to amend the EHC plan following the annual review meeting in July 2020. There is no evidence the Council issued a decision notice following the review. It would appear the Council decided to maintain the existing plan without amending it.
29. Records from Y’s school indicate it made a referral to the NHS SALT service in July 2020. School and Y’s parents were sent an acknowledgement letter from that team.
30. Information from the school indicates Mr and Mrs X did not send Y to school from September 2020 and she did not resume school again until June 2021. The school’s records indicate staff made regular welfare calls to Mr and Mrs X to check on Y’s progress and home learning that had been set. Staff reiterated during the welfare calls that Y’s place at school was available for her. Mrs X said she did not want to send Y to school because of concerns about catching COVID-19 and her low immune system.
31. The school’s records indicate it held an annual review meeting with Mr and Mrs Y and the SEND co-ordinator in June 2021. The intention was to send the papers to the Council. The Council has not disclosed any review paperwork from 2021 and it told me there had not been an annual review in 2021.
32. The school’s records indicate its SEND co-ordinator spoke to Mrs X at the end of June 2021. Mrs X reported not receiving any communication from the school. Mrs X said she did not want Y to use Knowsley SALT (the NHS service) and wanted the school to fund private SALT using Y’s SEND funding. Mrs X gave details of the private SALT Y had at primary school.
33. The school’s SEND co-ordinator noted she had spoken to Knowsley SALT service and was told Mr and Mrs X had been sent a letter in December 2020 to confirm they wanted to go ahead with a SALT appointment in January 2021, but Mr and Mrs X did not reply to the letter and so Y had been removed from the waiting list.
34. An email from a private SALT service to school at the start of July confirmed an appointment in school for an initial assessment with a senior Speech and Language Therapist. An internal note by the school’s SEND co-ordinator confirmed Y would have hourly sessions to be invoiced termly.
35. The private SALT’s report in September 2021 set out recommendations for input. The plan was to provide one term of weekly sessions with the senior therapist in school. Staff training and implementation of advice would also be considered.
36. The private therapist devised a communication profile in January 2022 for use by those working with Y in school.

2022

37. Mr and Mrs X complained to the Council in July 2022. They said they had contacted the Council’s SEN team about Y at the end of June and had not had a response. They said there was no review of Y’s EHC plan during the academic year 2021/22 and Y’s school was not following the plan. Y’s SEN casework officer spoke to Mrs X on 18 August. The casework officer emailed Mr and Mrs X after the call saying:
• Y did not have an annual review in 2021/22 and so he would contact the school to arrange one for September.
• The school would produce the review documentation and share it with the Council and at the meeting participants would agree amendments to the plan.
• The school would need to secure Y’s speech and language therapy provision and this would be explained at the meeting.
38. The annual review meeting took place on 12 September. Mr and Mrs X and the school’s SEND co-ordinator attended. The school did not recommend any amendments to the EHC plan and ticked a box on the review form to say the proposal was to maintain the plan and no amendments were needed. The minutes said Y still needed speech and language therapy intervention.
39. A few days after the review meeting, Mr and Mrs X complained to the Council raising similar issues as in their complaint to us. Mr and Mrs X referred to this as a stage 2 complaint. The Council told me it had not responded to a complaint at stage 1 of the complaint procedure.
40. A SEND casework officer from the Council spoke with Mr and Mrs X about their complaint and then a senior casework officer emailed them at the beginning of October. The email said the Council would organise a (further) review meeting with the school to consider amendments to the EHC plan and ensure there was clear agreement for delivering Y's provision. The email said Mr and Mrs X’s complaint would be closed.
41. Mr and Mrs X complained to us in October 2022.

Events since the complaint to the LGSCO

42. Mr and Mrs X made a further complaint to the Council about the review and amendment process still being incomplete. A SEND case officer sent an initial email response in December 2022 with a timeline of events. It said:
• The Council had received the review paperwork in the last week of September and sent a proposal to amend notification. Although the review paperwork from the school said no amendments were recommended, the Council’s SEND casework officer was aware Mr and Mrs X wanted amendments and so issued a proposal to amend letter. The intention was for the casework officer, Mr and Mrs X and the parents to meet and discuss the necessary changes.
• At the start of November, there was a ‘review follow-up meeting’ where changes to the plan were discussed. The school was supposed to send in further paperwork but did not.
• The deadline for the notice to amend was 21 November (8 weeks from the proposal to amend). This was therefore late, but the reason was the officer was trying to wait for information from the school instead of issuing a decision to amend with few or no changes to the plan.
• As Mr and Mrs X had said the Council was preventing their right of appeal, the officer would send out a decision to amend. The Council was sorry for the delay, but it was because the SEND team were trying to secure a resolution.
43. The Council sent a letter to Mr and Mrs X in the middle of December 2022 enclosing an amended final EHC plan. It said this plan could be reviewed at any time if circumstances changed and Mrs and Mrs X could contact the SEND team if they were unhappy with anything in the plan and the team would arrange a further meeting to resolve this. The letter gave Mr and Mrs X their rights of appeal.

Information from Y’s school

44. The school set out the provision Y has been having or been offered since the Autumn Term of 2022:
• Literacy support sessions
• Numeracy support sessions
• Talkabout sessions
• Precision teaching sessions
• SENISS (the Council’s SEN Inclusion and Support Service) literacy sessions (from the advisory teaching service)
• Multi agency support sessions.

Comments from the Council

45. The Council’s position is:
• The provision of weekly speech and language therapy in Y’s EHC plan falls short of specifying a qualified speech and language therapist. SALT interventions or programmes can be delivered by school staff who are appropriately trained.
• Y had weekly SALT sessions from a qualified therapist in the autumn term of 2021 and for the first half term of 2022. The therapist completed a profile with strategies for school to continue to use.
• The Council did not have to keep a watching brief on delivery of all provision. Y received therapy between September 2021 and January 2022 and the Council did not receive further correspondence until the complaint letter later in 2022.
• It accepted there was no annual review in 2021.

Was there fault and if so did this cause injustice?

The Council failed to take action when it became aware the school was not delivering all the provision on the EHC plan

46. There is no fault. My reasons are set out in the next four paragraphs.
47. Councils devolve responsibility for day-to-day EHC plan provision to schools and we do not expect them to keep a watching brief. We do expect them to take action when a parent or school raise concerns. There is no evidence the Council was aware of any concerns until Mr and Mrs X’s complaint in June/July 2022.
48. The records indicate Y did not attend school between September 2020 and June 2021, although staff made it clear school was open and a school place was available for her. I understand Mr and Mrs X’s concerns about COVID-19, however, there was no requirement for the Council to secure the special educational provision at home when Y had a school place. There is no evidence the Council was aware in 2020-2021 that Y was not attending school/receiving provision, particularly as there was no annual review in 2021 (I deal with this complaint in the next section). And even if the Council was aware of Y’s non-attendance, my view is the provision was available for her at school and so there was no requirement for the Council to make other arrangements.
49. Mr and Mrs X had concerns about the NHS SALT service. The evidence indicates they objected to the NHS provision at the review meeting in 20202. And they declined an appointment. While it may have been their preference for Y to receive therapy from a private service, there was no obligation for the Council to secure private therapy.
50. The evidence from the school indicates from September 2022, Y has been offered a range of provision in line with the EHC plan.

The Council delayed carrying out an annual review in September 2022 and failed to issue an amended plan

51. The Council accepts there was a delay in completing the annual review and amendment process in 2022. This was fault causing avoidable distress and a delay in appeal rights.
52. The Council issued a decision notice in December 2022 after this investigation began. With this notice, Mr and Mrs X received an amended EHC plan which allowed them to appeal. This action, although late, completes the amendment process. We would expect Mr and Mrs X to use their appeal rights if they do not agree with the provision on the amended plan.

The Council failed to carry out annual reviews in previous years

53. The Council accepts it did not complete an annual review in 2021 (although the school’s records suggest it held a review meeting). This was fault. There was an annual review meeting held in July 2020, but no evidence the Council completed the review process by issuing a decision notice or amended plan. This meant Mr and Mrs X were denied their appeal rights. I cannot say whether or not Mr and Mrs X would have appealed or what the outcome would have been in terms of education provision for Y. This would be speculative.

The Council failed to fully investigate their complaint

54. The Council’s two email responses set out proposed action but do not fully answer the complaints raised. The Council says it did not consider the September 2022 complaint to be a stage two complaint. But I can see why Mr and Mrs X called their letter a stage two complaint – because they had complained previously in July and were not happy with the response or action proposed. The Council’s responses were unclear. The Council did not give enough detail or explanation about what had happened and whether or not there was fault causing injustice. Complaint handling was not in line with our expected standards and this caused avoidable frustration.

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Agreed action

55. The Council will, within one month of my final decision:
• Apologise for:
1. the for the avoidable frustration caused by poor complaint handling
2. the postponement of appeal rights caused by the delay issuing an amended EHC plan in 2022
3. the avoidable uncertainty caused by the lack of completed annual reviews in 2020 and 2021
• Make Mr and Mrs X a symbolic payment of £150 to reflect the above.
56. The Council should provide us with evidence it has complied with the above actions.

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Final decision

57. There was a delay in completing the process of amending Y’s Education, Health and Care Plan and issuing an amendment notice in 2022. There was also a missed annual review in 2021 and a failure to complete the amendment process following an annual review meeting in July 2020. There was also fault in complaint handling. This caused avoidable frustration, confusion and a loss of or delay to appeal rights. The Council will apologise and make a symbolic payment of £150.
58. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman