Summary: Mrs X complains the Council unreasonably delayed amending Child Y’s EHCP on separate occasions. She complains this meant Child Y did not have access to the provision they were entitled to. The Ombudsman finds fault with the Council for delaying the decision to amend the EHCP, and for delaying issuing the EHCP on two occasions. The Ombudsman also finds fault with the Council for failing to deliver the agreed provision. The Council has agreed to pay a financial remedy for the delay and lost provision.

The complaint

1. Mrs X complains the Council unnecessarily delayed amending her child’s EHCP following an annual review. This caused her child to be without the provision they were entitled to.
2. Mrs X complains the Council delayed arranging the occupational therapy (OT) provision which meant her child went without the agreed OT provision.
3. Mrs X also complains about the Council’s handling of parental comments on the EHCP and communication about the annual review and EHCP amendments.

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Parts of the complaint I have not investigated

4. Part of Mrs X’s complaint is that Child Y did not receive OT provision between December 2020 and September 2021. The Ombudsman previously considered what provision was delivered until the June 2021 EHCP was issued. The Ombudsman does not usually consider issues older than 12 months where there is no reason the complainant could not come to us sooner. I consider that Mrs X could have complained to us sooner about the issue of OT provision before the June 2021 EHCP. If Mrs X was unhappy about the lack of provision at the time, she could have raised it during the previous investigation. I am therefore only exercising discretion to consider issues from the June 2021 EHCP.
5. Additionally, Mrs X complains the EHCP in April 2022 did not include all the amendments to the provision. I have not investigated this part of Mrs X’s complaint, as the content of the EHCP was appealable to the first-tier tribunal.

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The Ombudsman’s role and powers

6. 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)
7. 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)
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)

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How I considered this complaint

9. I considered Mrs X’s complaint and information she provided. I also considered information from the Council.
10. I considered comments from Mrs X and the Council on draft versions of my decision.
11. 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

Legislation and guidance

EHCP

12. 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.

Consideration of sections of EHCP

13. We can consider the other sections of an EHC plan. We do this by checking the Council followed the correct process, and took account of all relevant information, in deciding what to include. If we find fault affected the outcome, we may ask the Council to reconsider. We will not usually substitute our judgement for the judgement of professionals.

Responsibility for making arrangements

14. 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.

Failure to secure provision

15. 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)
16. 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.

Arrangements for reviewing an EHC Plan

17. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
18. 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)
19. 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 within four weeks of the annual review meeting. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
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 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)
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 EHC plan. The right of appeal is only engaged when the final amended plan is issued.

What happened

22. Mrs X’s child, whom I shall refer to as Child Y, has several additional needs and disabilities. The Council assessed Child Y for an EHCP and agreed it would deliver provision.
23. Mrs X previously complained to the Ombudsman in 2021 and 2022 about the Councils handling of the EHCP, annual review process and missed provision. In 2021 the Ombudsman found the Council had delayed carrying out the EHC needs assessment and failed to provide education for 18 months. In 2022 the Ombudsman found the Council delayed amending Child Y’s EHCP which resulted in lost alternative provision between September 2019 – January 2021.
24. The Council issued an EHCP in June 2021. Child Y’s school arranged the annual review of Child Y’s EHCP in July 2021. The school sent the review documents and proposed amendments the Council shortly after the review meeting.
25. The Council wrote to Mrs X in September 2021 and said it would not be amending Child Y’s EHCP.
26. Mrs X complained in November 2021 that the Council would not be amending the EHCP, as the annual review had documented the provision needed amendments.
27. The Council wrote to Mrs X in December 2021 and said it had new information, and would therefore amend the EHCP. It provided Mrs X with a notice of intent to amend.
28. The Council provided Mrs X with a draft of the amended EHCP in March 2022. It finalised the EHCP and issued it in April 2022. Mrs X complained to the Council that it had not included all the amendments from the annual review in July 2021.
29. A further annual review was held in July 2022. The Council issued another notice to amend in August 2022. It issued a draft amended EHCP two weeks later. Further revised drafts of the amended EHCP were issued in October and November 2022.
30. Between January 2023 and March 2023 the Council had several discussions with Mrs X and the School about what provision would be available. It issued the final EHCP in March 2023.
31. The differences in the July 2021 EHCP and the April 2022 EHCP show an increase in support in school, as well as with Occupational Therapy (OT) and sensory support services. The difference between the April 2022 and the March 2023 EHCP show a change in OT and sensory support services.
32. Mrs X remained unhappy with the Councils actions and complained to the Council. In her complaint she said

• The Council failed to complete the initial EHCP review in timeframe(within statutory timescales,
• The Council initially issued a decision not to amend,
• The paperwork was not reviewed by the SEN team before the decision not to amend,
• There were delays in the OT report and commissioning between Dec 2020 and Sept 2021,
• The Council said it would not hold an annual review every year,
• The Council overturned the decision not to amend,
• The delay in the review meant the funding for spectrum space was delayed,
• The Council had not taken any action between Nov 2021 and March 2022,
• EHCP was issued 42 weeks after annual review.

33. In the Councils response said

• The annual review took place June 2021, and it accepted the notice to amend sent in September 2021 and not in timescale.
• The Council received new information which overturned the decision not to amend.
• The Council recognises there have been delays in the process which have impacted Child Y.
• The delays with the OT before June 2021 had been covered in a previous complaint response. There had been continuing discussions and consultations with OT services about how and when services could be delivered.

34. Mrs X remained unhappy with the Councils actions and bought her complaint to the Ombudsman.

Analysis

Delay in agreeing to amend the EHCP from July 2021

35. The Council issued Child Y’s EHCP in June 2021. Child Y’s school held the annual review in July 2021. The school then passed on the annual review information, with proposed amendments, for the Council to consider. The Council initially declined to amend the EHCP, but later changed its mind. The Council at first told Mrs X it had changed its mind because of new information.
36. Usually, the Ombudsman does not exercise discretion to consider matters which carry appeal rights to the tribunal. The decision not to amend carries such appeal rights. However, it would have been unreasonable to expect Mrs X to appeal the decision as the Council agreed to the remedy she was seeking when she complained. I am therefore exercising my discretion to consider this issue as it has not been considered by the tribunal.
37. As part of my investigation, I asked the Council to clarify what new information had come to light that had caused the Council to change its mind about amended the EHCP. The Council told me it could not locate the information that had resulted in it changing its position.
38. In response to a draft decision, the Council told me it had decided to amend following Mrs X’s complaint to the Council. This is contradictory to the information previously received, and the information communicated to Mrs X. I find fault with the Council not properly considering the information it had available and for how it communicated this decision to Mrs X.
39. However, this caused limited injustice to Child Y. It would be speculative to say what outcome would have been achieved if Miss X had exercised her appeal rights, and I would not be able to comment on a timeframe for this happening. Additionally, the tribunal would not have remedied any lost provision.
40. Miss X complained to the Council two months after its decision not to amend, and the Council overturned its decision within a month of her complaining. If Mrs X was unhappy she could have complained about the decision sooner, and ultimately her challenge to the Council resulted in the remedy she was seeking.

Finalising the March 2022 EHCP.

41. Councils have four weeks to decide it will amend an EHCP following the annual review. If Councils decide to amend the EHCP, it must finalise the EHCP within eight weeks of sending the notice to amend. I find fault with the Council for unnecessarily delaying agreeing to amend the EHCP for four months.
42. The Council told Mrs X in December 2021 that it would amend the EHCP. The Council sent Mrs X the amended EHCP in March 2022. The Council were at fault for not finalising the EHCP within eight weeks of sending the notice to amend.
43. I find fault with the Council in delaying issuing of the EHCP. The Council has said there were no significant changes in provision during this time, and therefore the injustice to Child Y is limited.
44. I reviewed both the 2021 and the 2022 EHCP’s and the annual review document for June 2021. The changes made to the EHCP from the 2021 document to the 2022 document were limited and the 2021 annual review recorded that Child Y was accessing most of the provision. The provision that was changed in Child Y’s EHCP was provision in their personal budget to access sensory holiday boxes.
45. The previous EHCP stated that Child Y could access holiday boxes, it did not state how many. The amended EHCP said Child Y could access ten holiday boxes. Mrs X has provided invoices which confirm Child Y accessed eight boxes between August 2021 and February 2022, with the EHCP in April 2022 finalising the amount of boxes. While there was box provision included in the previous EHCP, it was specifically for the holidays. The invoices show that Child Y did not have access to a holiday box during the April 2022 school holiday because the plan had not been finalised. I consider this to be caused by the delay in finalising the EHCP.
46. There was fault by the Council in delaying the process and delaying the EHCP. This caused distress and confusion to Mrs X and Child Y, and meant they were without their holiday box provision in April 2022.

Delay in the March 2023 EHCP

47. The school held a further annual review in July 2022. The Council issued a notice to amend in August 2022 and issued a draft amended EHCP two weeks later.
48. It issued a revised amended versions in October and November 2023 for comment to Mrs X and the professionals involved. The final plan was issued in March 2023.
49. Again, the Council had eight weeks to issue a finalised version of the EHCP after it sent Mrs X the notice to amend in August 2022. It should have issued the EHCP in October 2023. The Council did not issue the finalised version until March 2023, resulting in a five-month delay. This is fault by the Council in delaying the issuing of Child Y’s EHCP. This also delayed confirming the provision and Miss X’s appeal rights to tribunal.
50. While I accept there were some delays caused by the Council clarifying the support that Child Y needed, I do not accept that this would have caused such a significant delay in finalising the plan.
51. In this case I am satisfied the Council caused an unnecessary delay which meant Child Y’s EHCP and provision was delayed by five months.

Failure to provide agreed provision- OT

52. The Council issued an EHCP in June 2021 which set out that Child Y was due to receive OT support. OT records from the Council show that between September 2021 and April 2022, the OT tried to arrange 11 sessions for Child Y. Only four of these sessions were successful due to multiple cancellations from both sides.
53. Part of Mrs X’s complaint is the OT support was delayed from December 2020 until September 2021. For reasons previously set out in paragraph four, I am only considering the provision from the June 2021 EHCP. This set out that Child Y should have 6-12 OT sessions, with a further block of 6-12 sessions. The Council has been able to evidence the OT tried to arrange 11 sessions, however this was restricted by cancellations. The OT was still able to carry out their work, drew their conclusions and recommend further work to be completed by the sensory integration clinic.
54. I do not consider the Council at fault for missed OT provision from the June 2021 plan, as the OT tried to arrange sessions, carried out work and recommended future work.
55. The Council wrote to the OT in April 2022 to ask for an update on the OT support. This was to finalise the April 2022 EHCP. The OT advised the Council they had finished their work, and they would send a report with recommended outcomes, but recommended further work should be carried out by an OT in the sensory integration clinic.
56. The OT provision in the plan from April 2022 plan said Child Y needed further OT support. It set out the same provision as the previous plan, to be delivered in the sensory integration clinic. From this point the Council was aware the provision was to be delivered in the specialist clinic, as it included it in the plan and therefore had a duty to ensure it was delivered.
57. The final plan issued in March 2023 set out that Child Y was to receive an OT services at the sensory integration clinic, the same recommendation as the April 2022 EHCP.
58. Part of Mrs X’s complaint is the Council has failed to carry out the OT provision for Child Y.
59. I asked the Council to provide evidence it has put the provision in place. The Council said the provider identified needed to have an assessment with Child Y before the support starting, and that it was always the view that this would begin in early 2023.
60. Emails between the Council and Mrs X show the Council was still exploring costs and funding for the OT service in December 2022. The funding was approved in January 2023. In response to my previous draft decision, the Council accepted it did not have the agreed OT provision in place between March 2023 and June 2023. The Council said there were occasions when it did not respond to some of the communication from the provider.
61. However, the Council was aware from the OT in April 2022 that they would not be delivering further support, and Child Y needed OT services from the sensory integration clinic. This was included in Child Y’s April 2022 EHCP. It is unreasonable for the Council to have delayed exploring this further until December 2022 and approving the funding in January 2023. The Council acknowledges there were further delays from this point. I cannot see any evidence from the Council how it ensured Child Y was accessing their OT provision for duration of the April 2022 EHCP, which ended when the Council issued the final amended EHCP in March 2023. Additionally, the Council has confirmed there was a further delay of 3 months after issuing the March 2023. As a result of the Councils delay, Child Y was without their OT support for 14 months from April 2022 to June 2023. This was fault causing Child Y significant injustice.
62. The Council has said there was no delay in Child Y accessing OT support prior to March 2023, as it was always the view that Child Y would access this service from early 2023. I do not agree with the Council on this point, it has not provided any evidence Child Y was able to access their OT provision for the duration of their April 2022 EHCP.

Failure to provide agreed provision – Sensory processing

63. The April 2022 EHCP said Child Y needed a personal budget for a therapist to conduct work with Child Y on their sensory processing.
64. The Council has said the need for a specially trained therapist was identified by the OT in the previous support. The Council admits there has been a delay in providing the funding via personal budget because Mrs X wanted to identify a therapist herself.
65. The Council wrote to Mrs X in December 2022 and asked her if she would be willing to source a therapist herself and the Council would fund this via a personal budget. Mrs X confirmed in January 2023 that she would be willing to source this herself.
66. The Council discussed this again with Mrs X in March 2023 and Mrs X asked the Council to finalise the plan without naming a therapist as she had not yet found one.
67. The Council finalised the plan in March 2023 without naming a therapist. Mrs X has continued to look for a therapist, however this has been delayed as Child Y needed to have some further appointments with the Child and Adolescent Mental Health services first.
68. There was delay in the Council taking action to identify a therapist or discuss these options with Mrs X. It was aware it needed to do this from the April 2022 plan but did not do this until December 2022. I consider there to be delay by the Council from April 2022 until December 2022 when Mrs X agreed to take over the responsibility. This was fault.
69. The Council was responsible for ensuring the provision in Child Y’s EHCP was available. I accept that from January 2023 Mrs X agreed to find her own therapist, but the Council had a duty to this provision from the date it issued the April 2022 EHCP until January 2023 when Mrs X agreed to source the therapist. The Ombudsman usually allows Councils some time to put provision in place, usually four weeks. Therefore, because of the Councils fault, Child Y was without their provision for eight months between May 2022 and January 2023.

Complaint handling

70. The Councils final response to Mrs X recognises there were delays in the annual review and making the amendments to the EHCP. The Council provided Mrs X with an apology for this.
71. The Ombudsman has clear guidance for Councils on how personal remedies should be calculated, where there is fault causing injustice. The Council identified that its actions caused delay to Child Y receiving their amended EHCP, and by extension, their provision. The Council failed to acknowledge the impact this had on Child Y by failing to remedy the injustice caused to them. On one occasion, the Council took over 30 weeks to issue the EHCP. This was fault by the Council causing Mrs X and Child Y further distress and confusion.
72. In response to my previous draft decision, the Council has disputed it should remedy Mrs X for the distress and delay, as it has tried to work with her to resolve issues. I take on board what the Council is saying, however, I note this is the third complaint of a similar nature by Mrs X to the Council. There are ongoing and repetitive issues which Mrs X is having to try and address, as well as long standing uncertainty from the delay. This was fault by the Council causing injustice and should be remedied.

Agreed action

73. Within 4 weeks the Council has agreed to

• Write to Mrs X and apologise for the fault identified.
• Pay Child Y £1800 for the lost OT provision between April 2022 and June 2023, and the lost sensory support provision between April 2022 and January 2023.
• Pay Child Y £100 to acknowledge the impact to Child Y for the missed holiday box in April 2022.
• Pay Mrs X £300 for the distress and uncertainty caused to her and Child Y.

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

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Final decision

75. I have now completed my investigation. I find fault with the Council for delaying issuing the finalised EHCP on two occasions and for failing to ensure the agreed provision was in place.

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Investigator's decision on behalf of the Ombudsman