Summary: Miss X complains the Council did not deliver the provision for her child as set out in their EHCP, and delayed reassessing their needs. The Ombudsman finds fault with the Council for failing to ensure the provision in the EHCP was delivered, and for delaying the reassessment of the EHCP. The Council has agreed to make a financial payment for the missed provision and the distress caused, as well as service improvements.

The complaint

1. Miss X complains the Council unreasonably delayed reviewing her child’s EHCP.
2. Miss X complains that by delaying the review and the amended EHCP, the Council delayed ensuring provision for her child, which impacted his learning and development.
3. Miss X also complains about the Councils handling of her complaint.

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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.
5. 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. 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)
7. 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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How I considered this complaint

8. I considered Miss X’s complaint and information she provided. I also considered information from the Council.
9. I considered comments from Miss X and the Council on a draft of my decision.
10. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

Legislation and guidance

Education, Health and Care Plan (EHC Plan)

11. A child with special educational needs may have an EHC Plan. This sets out the child’s needs and arrangements for meeting them.
12. Local authorities (councils) have a duty to arrange the special educational provision set out in an EHC Plan. (Children and Families Act 2014 section 42)
13. 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 child with an EHC Plan. We consider councils should be able to demonstrate due diligence in discharging its duty to make sure the arrangements in the EHC Plan are put in place, and as a minimum have systems in place to:
14. Check the special education provision is in place when a new EHC Plan is issued or there is a change in placement;
15. Check the provision at least annually via the review process; and
16. Investigate complaints or concerns the provision is not in place at any time.

Reviewing an EHCP

17. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHCP.
18. Where a council proposes to amend an EHCP, 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.
19. 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”.
20. 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 EHCP as soon as practicable and within eight weeks of the date it sent the EHCP and proposed amendments to the parents.
21. 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 EHCP. The right of appeal is only engaged when the final amended plan is issued.

What happened

22. Miss X has a child, Child Y, with several special educational needs. Child Y has an EHCP from the Council.
23. The Council at first named a mainstream school to deliver the provision in the EHCP.
24. The Council issued a final EHCP for Child Y in June 2020. This set out the provision Child Y should have been receiving in the mainstream school. The provision included one to one support for Child Y during lessons.
25. Mrs X complained to the Council in July 2022. In her complaint she said

• The Council had delayed the annual review until February 2022
• The mainstream school could not support Child Y with the agreed provision, and as a result Child Y had been out of school.

26. The Councils stage one response apologised for the delay in annual review and said the school had requested a change of placement for Child Y. The Council said it needed to start the consultation process to do this.
27. Miss X escalated her complaint to stage two, as she felt the stage one response did not fully recognise and address her complaint.
28. The Councils stage two response said there had been two annual reviews for Child Y since the last final EHCP in June 2020. The Council was concerned the mainstream school could not meet the needs of Child Y and it would consider an alternative placement at panel.
29. The Council sent a notice to amend in April 2022 with a proposed EHCP
30. It apologised for still having not provided the final EHCP and said it would finalise the EHCP by October 2022.
31. The Council issued a final EHCP in September 2022. Miss X felt the EHCP did not reflect Child Y’s needs and the provision was not suitable. She escalated her complaint to stage three. The SEND panel reheard the case in November 2022 and ordered a reassessment of Child Y.
32. At stage three the Council said apologised for the delay in issuing the EHCP and said the service recognised it needed to track the timescales for reviews more closely. The Council accepted the EHCP issued in September 2022 still needed updating and the SEND panel had agreed to carry out an EHCP reassessment for Child Y.

Analysis

EHCP Provision

33. As part of my investigation, I sought several pieces of information from the Council. The Council did not provide all the information requested.
34. I asked the Council to show how it delivered the provision for Child Y in the mainstream school. The Council evidenced an email from the school showing some support the SENCO could provide, as well as a room available for Child Y if they could not engage with education due to the lack of provision.
35. However, Council records show the school had several contacts with the Council say that it could not deliver the provision for Child Y. Specifically, it could not deliver the full one to one support that was in Child Y’s EHCP provision.
36. The Council said it considered this at panel in August 2022 where it decided the school could meet Child Y’s needs. There are no records to show how the Council decided this or communicated with the School how it could deliver the provision. The Council says it was of the view Child Y could access an alternative room in the school during the time they did not have the one-to-one provision. There is no explanation from the Council how this alternative meets the provision set out in Child Y’s EHCP.
37. Additionally, the Councils later acknowledgements and decision to reassess show that it accepts the arrangement that was in place was not suitable for Child Y.
38. Child Y continued to struggle to attend school because the mainstream school could not deliver the provision.
39. The Council has said there were two annual reviews held between June 2020 and April 2022, however it has only evidence one annual review in February 2022. As I have seen no evidence of another annual review, and the Council failed to provide the requested chronology of its actions, I am inclined to say an earlier annual review did not take place.
40. Failure to review the EHCP in a timely manner is fault by the Council. Miss X and the School were communicating with the Council that Child Y was not receiving the provision. This should have prompted an annual review. Failure to do so was fault causing Child Y injustice.
41. If the Council had held the annual review in a timely manner in June 2021, it likely would have identified that Child Y was not receiving their full provision. This would have been the opportunity to amend the provision or seek alternative provision. Failure to do so was fault by the Council, meaning that Child Y did not receive the provision they should have.
42. The Council held the annual review in February 2022, and sent a notice to amend the EHCP in April 2022. It sent a finalised EHCP in September 2022. The September 2022 EHCP kept the provision the same, despite the school communicating it could not deliver the provision. The stage three complaint recognised the September 2022 EHCP did not reflect the current needs of Child Y and that a reassessment was needed.
43. On balance, I am satisfied the Council should have identified that Child Y was not accessing their provision from June 2021. Therefore, Child Y was without the agreed provision for the school year September 2021 to July 2022.

Reassessment of the EHCP

44. The Council issued an EHCP in September 2022, with the same previous provision. It accepted in November 2022 that a new assessment was needed which would update the provision. The Council completed the reassessment and issued the EHCP in July 2023. Until that point, the previous EHCP and provision were in place. As the Council has already accepted the provision is not being delivered, Child Y has also been without provision for the school year September 2022 to July 2023. This was fault by the Council causing Child Y further injustice.
45. The Councils complaint response recognises there has been delay in reviewing the EHCP, carrying out the reassessment and issuing the EHCP. The Council has apologised to Miss X for this. However, the complaint response does not consider the impact of this on Child Y or Miss X and gives no consideration of a remedy in line with the Ombudsman’s guidance on remedies. It also delays Miss X’s right to appeal the provision at tribunal. I find fault with the Council for its delay in the reassessment which has caused Child Y further injustice.
46. The Council records show the alternative available to Child Y in the interim was support from the SENCO, and access to a resource room for the lessons they did not have one to one support. The lack of provision resulted in Child Y struggling in their lessons, exclusions for their behaviour, and a significant drop in attendance. I consider the distress caused to Child Y in their transition years to secondary school significant.

Child In Need

47. As part of my investigation, I asked the Council about any social services action that was taken for Child Y. The Council confirmed Child Y is on a child in need plan and provided a copy of the recent plan.
48. The Plan clearly sets out that Child Y remains on a child in need plan until his EHCP and provision is finalised. The documents show the Councils delay in finalising the EHCP is having a huge impact on the family and Child Y, as well as having a negative impact on its own services.
49. Emails from the Council show that social care staff continue to be frustrated with the lack of action from the SEN department and its constant delay in supporting Child Y.
50. I consider this to be further fault by the Council causing Child Y and their family injustice.

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Agreed action

51. Within four weeks the Council has agreed to

• Complete the reassessment and issue the finalised EHCP without delay.
• Pay Child Y £9600 for the missed provision. This is calculated at £1600 per term that Child Y was without provision between September 2021 and July 2023.
• Pay Child Y £500 for the significant distress caused to them.
• Pay Miss X £500 for the distress and uncertainty caused to her.

52. Within 12 weeks the Council has agreed to

• Put in place a process to monitor its progress of EHC assessments and EHCP reviews so a senior manager is promptly made aware of any delay and can act accordingly.
• Provide training or guidance to complaint handling staff to ensure they consider whether a payment is a suitable remedy on any upheld complaint.

53. The Council should provide us with evidence it has complied with the above actions.

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Final decision

54. I have completed my investigation. I find fault with the Council for failing to deliver the provision in Child Y’s EHCP, and for delaying the EHCP reassessment.

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Investigator's decision on behalf of the Ombudsman