Summary: Mrs M complains her son B did not receive adequate support when he started college in September 2021. There was a delay amending his Education, Health and Care (EHC) Plan following the annual review in January 2022, and he did not receive any speech and language input for the whole of his first year. I have recommended a remedy for the injustice this caused.

The complaint

1. Mrs M complains her son B did not receive adequate support when he started college in September 2021. In particular, Mrs M complains B did not receive one-to-one tuition in maths which was recommended following his diagnosis of dyscalculia in May 2021. Mrs M paid for private maths tuition and wants the Council to refund the cost.
2. Mrs M complains B did not receive any speech and language input at college in 2021/2022.
3. Mrs M complains:
• the 2021 annual review of B’s Education, Health and Care (EHC) Plan was not held until 2022; and
• following the annual review, the Council took too long to amend B’s Plan.
4. She says this has delayed B’s transfer to a more suitable college placement.

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The Ombudsman’s role and powers

5. 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)
6. Once 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. I have considered information provided by Mrs M and information provided by the Council.
8. I have invited Mrs M and the Council to comment on my draft decision.

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What I found

9. Mrs M’s son, B, has an Education, Health and Care (EHC) Plan maintained by the Councill. He started his post-16 education at college in September 2021.

Maths

10. Mrs M complains about the maths tuition B received at college.
11. The Ombudsman’s role is to check B received the special educational provision set out in his EHC Plan. The Council has a duty to ensure this is provided. We cannot investigate complaints about education that is not part of an EHC Plan.
12. B’s March 2021 EHC Plan (the Plan which was ‘live’ at the time he started college in September 2021) said B should have,

“Opportunity to run the tuck shop (class based initially) to handle coins with support to calculate and count change. Visual cues and maths strategy cards to support. To be provided by class teachers / learning support assistants on a weekly basis.”

13. B was diagnosed with dyscalculia in May 2021 (after his EHC Plan was issued, but before he started college). Following the assessment, he received a report which recommended teaching strategies, including re-starting maths at KS1 with one-to-one support.
14. Mrs M contacted the college in September 2021 to raise concerns that the maths tuition B was receiving there was not meeting his needs. She included Council officers in the emails she sent to the college.
15. There is a clear difference between what B’s EHC Plan said (and the Council was required to provide), and what the dyscalculia report recommended.
16. Mrs M was concerned that the support he was receiving at college, based on his EHC Plan, was inadequate following his diagnosis of dyscalculia.
17. This is not a complaint I can investigate. We cannot make decisions about a young person’s special educational needs or the provision required to meet them.
18. B’s dyscalculia assessment might have been a reason for the Council to review his provision or even to reassess his special educational needs. The Council could have initiated the review itself, or Mrs M or the College could have requested a review.
19. The College held an annual review meeting for B’s EHC Plan on 20 January 2022. Mrs M raised her concerns about maths tuition and put forward the recommendations of the dyscalculia report at the meeting.
20. Following the review, the Council decided to amend B’s EHC Plan. The final amended Plan was not issued until 25 October 2022. In relation to maths, it says,

“Structured individualised programmes in basic literacy and numeracy. Programmes should be finely graded with tasks being broken down into small steps and each step being mastered before going onto the next one. There should be frequent opportunities for repetition and overlearning to facilitate the long-term retention of skills. This is to be provided by education staff in every session.”

21. I understand Mrs M is unhappy with the amended Plan and has appealed to the Tribunal. The Tribunal will decide the content of B’s Plan.
22. I note that while the disputed amended Plan does not specify B should re-start maths at KS1 with one-to-one support as recommended by the dyscalculia assessment, it does suggest a ‘structured individualised programme’. This appears to be more than B’s 2021 Plan.
23. The question for the Ombudsman, then, is whether there was delay in reviewing and amending B’s EHC Plan, and whether B was disadvantaged as a result.
24. Mrs M believes the Plan should have been reviewed sooner, and amended more quickly, to better reflect B’s needs.
25. The process and timetable for reviewing and amending EHC Plans is set out in legislation and regulations. It is essentially a two-stage process. The first stage is a review meeting which is usually organised on behalf of the Council by the school or college to review the pupil’s progress. Following the review, the school or college submits a report to the Council. The Council must then decide whether to amend the Plan.
26. The Council must review an EHC Plan:
1. in the period of 12 months starting with the date on which the plan was first made, and
2. in each subsequent period of 12 months starting with the date on which the plan was last reviewed. (Children and Families Act 2014, section 44)
27. Regulations make provisions about amending or replacing an EHC plan following a review or re-assessment.
28. Mrs M complains the annual review before B’s transfer to college, known as a “transition review”, took too long and this meant subsequent reviews were held later than they otherwise would have been and this further delayed updating B’s Plan to meet his needs following his diagnosis of dyscalculia.
29. The transition review meeting was held on 1 October 2020. The Council issued a final amended Plan in March 2021.
30. Mrs M believes that if B’s Plan had been amended in October 2020, it would have been reviewed in October 2021, shortly after B started college and when she first became concerned the maths provision was not meeting his needs.
31. Regulations set a deadline of 31 March for amending the EHC Plan of a young person who is within 12 months of a transfer between phases of education and will transfer to post-16 education in September. This is to ensure suitable plans are in place in time for the transfer.
32. Although six months passed between the 2020 annual review meeting and the final amended Plan, which is a long time, the Council complied with the regulations concerning phase transfer by issuing B’s final amended Plan before the end of March.
33. The college held an annual review meeting in January 2022. This was in good time to enable the Council to review B’s EHC Plan by the 31 March, the 12-month anniversary.
34. I do not find fault with the timetable so far.
35. However, the Council did not complete the review and issue an amended Plan until October 2022, six months after the review meeting. The Council accepts this was too long. A recent court judgement set a time limit of 4 weeks for issuing a draft amended Plan following the review meeting. The Government has said it considers this too short and intends to make regulations giving more time. The Council has said it will aim for eight weeks in anticipation of legislative changes.
36. On this basis, I conclude there was a four-month delay in amending B’s Plan following the January 2022 review meeting. The new plan should have been issued by May 2022 at the latest. This means B should have had access to the structured individualised programmes in basic numeracy in his amended Plan from May 2022.
37. I understand B received some additional one-to-one support in Maths at college from late April 2022 and achieved Entry Level 2 Functional Skills Maths. Mrs M believes B’s progress was the result of the private maths tuition she funded. I do not have the expertise to judge. All I can say is that while the amendments to B’s EHC Plan were delayed, it appears he did receive some tailored support at college before his final plan was issued. While I acknowledge Mrs M’s frustration at the delays, I cannot say they caused an injustice for which I could recommend the Council refund the cost of the private maths tuition she funded.
38. Following the review, Mrs M and the Council disagree about the provision required to meet B’s special educational needs and Mrs M has appealed to the Tribunal. The Tribunal will decide what provision the Council must provide. The delays issuing B’s amended Plan have delayed Mrs M’s right of appeal to the Tribunal. In these circumstances, I will recommend a symbolic payment to acknowledge the delay.

Speech and Language

39. B’s 2021 EHC Plan specified the following special educational provision,

“To work on a structured speech and language programme as provided by speech and language therapist. This was to be provided by key school staff on a daily basis. Targets were to be integrated into the school day and monitored by the speech and language therapist as required.”

40. The Council must secure the special educational provision specified in the Plan for the child or young person. (Children and Families Act 2014, section 42)
41. The Courts have made it clear the Council’s duty to arrange provision is owed personally to the young person and cannot be delegated. (R v London Borough of Harrow ex parte M [1997] ELR 62)
42. In its complaint response, the Council accepted the speech and language support described in B’s EHC Plan had not been provided for the 2021-22 academic year. The Council said it would “consider speech and language input” when securing provision for September 2022. I understand B has not returned to college pending the outcome of Mrs M’s appeal to the Tribunal, and he may not return before September 2023.
43. I asked Mrs M what the impact of missing a whole year of speech and language provision had been for B. Mrs M said B was reassessed in October 2022 and had regressed since he was last seen by the NHS Speech and Language Therapist in September 2020. Mrs M said B struggles day to day and has become less confident. He speaks less and less and refuses to socialise with people due to lack of confidence and the ability to communicate.
44. This is a significant injustice.

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Agreed action

45. We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred. When this is not possible, we may recommend the Council makes a symbolic payment.
46. I recommended the Council:
1. offers a symbolic payment of £300 to acknowledge the delay to Mrs M and B’s right of appeal to the Tribunal as a result of the delay issuing B’s amended EHC Plan in October 2022.
2. offers a symbolic payment of £1,000 for the impact on B of missing a whole year of speech and language therapy.
3. arranges speech and language therapy for B, to start immediately and to be provided for 12 months or until he returns to college, whichever is sooner.
47. The Council accepted my recommendations.
48. The Council should provide us with evidence it has complied with the above actions.

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Final decision

49. I have completed my investigation as the Council accepted my recommendations.

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Investigator's decision on behalf of the Ombudsman