Summary: Mrs X complains the Council failed to deliver the provision in Child Y’s EHCP, and delayed issuing the EHCP after the annual review. Mrs X says this meant Child Y missed provision they were entitled to. The Ombudsman finds fault with the Council for failing to deliver the agreed provision, and for delaying issuing the EHCP. The Council has agreed to make a financial payment in recognition of the delay and lost provision.

The complaint

1. Mrs X complains the Council failed to

• provide provision detailed in the EHCP and change provision inappropriately,
• respond to concerns about school unlawfully amending the EHC plan,
• finalise the EHCP for over 12 months, unlawfully waiting for comment from the school,
• issue a decision notice, so she did not get right of appeal, and
• adhere to actions detailed in a pre-action response letter.

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The Ombudsman’s role and powers

2. 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)
3. 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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What I have and have not investigated

4. Parts of Mrs X’s complaint are about the content and outcomes in the EHCP issued by the Council.
5. Mrs X also complains the Council reinstated a SALT outcome into the EHCP which the tribunal had previously removed.
6. I am not investigating these parts of Mrs X’s complaint as they are about the contents of an EHCP for which she had the right to appeal to tribunal if she disagreed.
7. Mrs X complained to the Council in April 2021 about the failure to fully deliver OT provision. I have considered whether to exercise discretion on this part of the complaint as Mrs X could have complained to us sooner about the matter, and it has been over 12 months. I am exercising discretion to consider the matter as it is clear Mrs X’s multiple complaints have all been of a similar nature about ongoing issues with provision and delay in the EHCP.

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How I considered this complaint

8. I considered Mrs X’s complaint and information she provided. I also considered information from the Council.
9. I considered comments from Mrs X and the Council to comment on my draft 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

Special educational needs (SEN)

11. 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.
12. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance. The council must review any EHC plan at least annually. 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)
13. 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)
14. 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)
15. 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.
16. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
17. The council has a duty to secure the specified special educational provision in an EHCP for the child or young person (Section 42 Children and Families Act, (S42)). 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)

What happened

18. Mrs X’s child, whom I shall refer to as Child Y, has an EHCP to be delivered by the Council. The Council issued the first EHCP in 2018.
19. Child Y started at a specialist school in September 2019. The school held an annual review for the EHCP in November 2019, after which the Council issued the EHCP.
20. Mrs X challenged the EHCP at tribunal in October 2020. The Council issued a revised EHCP in December 2020 following the tribunal order.
21. In April 2021, Mrs X complained to the Council that it had not ensured the Occupational Therapy (OT) provision from the tribunal order was in place for Child Y.
22. The Council responded to Mrs X complaint and said some of the provision had been removed because Child Y no longer needed it.
23. Mrs X sent a pre-action protocol letter to the Council in July 2021. In the letter she said the Council had failed to deliver the provision in EHCP as ordered by the tribunal.
24. The Council responded to the pre-action letter saying it would restart the full provision and sought Mrs X’s consent for the OT service to adjust Child Y’s goals.
25. The next annual review meeting was held over three meetings with the school, professionals and Mrs X in October and November 2021. The School sent the documents to the Council in January 2022.
26. The Council reviewed the annual review documents in January 2022. In March 2022, it made some further enquiries about the amendments proposed.
27. The Council sent a draft EHCP to Mrs X in June 2022. Mrs X asked the Council why it had never sent her a notice to amend within four weeks according to legislation. The Council apologised and said there was a backlog with EHCP amendments. Mrs X also queried some of the Speech and Language therapy (SALT) information relied on in the draft EHCP.
28. The Council agreed to clarify the SALT information, and in June 2022 issued a further revised draft. It gave Mrs X 2 weeks to respond to the revised draft. Mrs X asked for an extension to the deadline which the Council granted.
29. In July 2022, the School asked to have a meeting with the Council to discuss the proposed provision in the plan. The Council and the school agreed to hold a meeting but could not agree on a date before the School closed for the summer holidays.
30. Mrs X complained to the Director of Services in August 2022. In her complaint she said

• the Council did not follow the correct process for the annual review,
• not all professionals gave official reports to the annual review,
• the School amended the EHCP directly,
• the EHCP outcomes were not suitable,
• the EHCP was amended significantly after the annal review,
• the Council shouldn’t have sent the draft to the school, and
• the EHCP was delayed, out of timescale and had not followed the correct process.

31. The Director of services sent a response in September 2022 which upheld there was a delay with the EHCP and explained why the Council had sent the draft EHCP to school. They also explained the Council could not influence the reports of other professional agencies.
32. Mrs X remained unhappy and asked to escalate her complaint. The Council told her she would get a response, but she did not.
33. The School wrote to the Council when it reopened in September 2022 and agreed with the proposed amendments.
34. The Council issued the final EHCP in September 2022. It issued a revised final EHCP a week later after clarifying how it would deliver some of the provision.
35. In September 2022, Mrs X submitted a complaint via the Councils complaints process. She said she was unhappy with the Directors response and felt it had not addressed her complaint.
36. The Council sent its stage one response in October 2022. It said it acknowledged the delays in the EHCP, but it had now been issued and that the SEN worker would liaise with Mrs X about provision.
37. Mrs X asked to escalate her complaint upon receiving the stage one. She sent a further chaser to her request in November 2022.
38. A further annual review was held in November 2022 with no further changes proposed. The Council issued a letter to Mrs X setting out the decision not to make further amendments.
39. The Council sent its final complaint response in December 2022. It said it had nothing further to add to the stage one and would not consider Mrs X’s complaint further.
40. Mrs X remained unhappy and complained to the Ombudsman.

Analysis

Delay in issuing the EHCP

41. The Council received the previous annual review documents on 24th January 2022. It had four weeks to tell Mrs X whether it proposed to amend the EHCP. It would then have had 8 weeks from this date to issue the final EHCP.
42. The Council did not send a notice to amend to Mrs X. It did not contact Mrs X until it issued a draft EHCP in May 2022. By failing to issue a notice to amend, the Council did not give Mrs X her appeal rights to tribunal to challenge the decision if she did not want the plan amended.
43. If the Council wanted to amend the EHCP, it should have issued the notice to amend by 21st February 2022. It should then have issued the final EHCP by 21st March 2022.
44. The Council failed to issue a notice to amend and failed to issue the final EHCP within timescales. The Council did not issue the final EHCP until 21st September 2022. This was a delay of 25 weeks. This was fault by the Council. The School saying it wished to comment and then closing for the summer does not detract from the Councils duty to issue the EHCP within timescales. Additionally, if the Council had carried out the process within timeframe, it would not have had to wait over the summer holidays.
45. If the Council had issued the EHCP within timeframe, Child Y would have had access to the changes in their provision 25 weeks sooner. I find fault with the Council in failing to issue the notice to amend and failing to issue the EHCP within timeframe. The injustice of this fault is that Child Y was without their provision during this time. I therefore recommend the Council remedy this injustice with a financial payment.
46. In considering the injustice to Child Y, I have considered the changes to provision between the December 2020 EHCP and the September 2022 EHCP. The Council documents show there were changes to the SALT and OT provision in the new EHCP. Therefore, Child Y missed provision they would have been otherwise accessing if the Council had not delayed the EHCP.
47. This also caused a delay to PA’s appeal rights to tribunal. This was fault by the Council however, I do not consider there was an injustice to Mrs X as she did not challenge the EHCP at tribunal.

OT provision between January 2021 and June 2021

48. In response to Mrs X’s complaint in April 2021, the Council said some of the provision was not being delivered because Child Y no longer needed it. When Mrs X challenged the Council on this issue via a pre-action letter, the Council said that Mrs X had not signed the consent form due to differing opinions on the need for an “assessment" and that it would restart some of the provision that was previously paused.
49. Mrs X had previously given her consent to the OT delivering the agreed provision but did not give consent for a new assessment. The response to the pre-action letter set out the OT agreed Child Y would not need a new full assessment, but the OT service needed consent from Mrs X to adjust the goals within the provisions.
50. The letter sets out the Council had discussed the matter with the OT service and would restart the full provision in the EHCP. On this basis, I find fault with the Council for failing to ensure the provision was delivered between December 2020 and June 2021.

Provision for vestibular support

51. Part of Mrs X’s complaint is the Council failed to supply the provision set out in the EHCP for Child Y following the December 2020 EHCP. This support was additional vestibular input to be delivered using a specialist chair. Mrs X complained the chair was never made available for Child Y.
52. In response to my draft decision, the Council provided evidence the chair was available in school for Child Y to use from January 2021. This was 10 months after the issuing of the EHCP. There was fault by the Council in failing to ensure the vestibular support was available for Child Y from the date of the December 2020 EHCP.

Actions after the Pre-action letter

53. Part of Mrs X’s complaint is the Council failed to carry out the actions from the pre-action letter. It is not clear if Mrs X complains the Council did not carry out the actions from her letter, or from its response.
54. The Council said in its response that it would resume the full provision and asked Mrs X to sign a consent form for Child Y’s goals and provision to be amended.
55. The Council has not provided evidence to show that it ensured the delivery of the full provision from the date of its response to the pre-action letter. Mrs X complained that the Council failed to deliver some of the OT support, despite saying in its response to the pre-action letter it would put this in place. I have clarified with Mrs X that she was complaining about the oral motor programme which included the vestibular support part of the OT. The Council has provided evidence of all the OT sessions after the pre-action letter, and the correspondence between Mrs X and the OT where she agrees the support should be in line with Child Y’s needs, and therefore may change as the programme continues. I am satisfied that Child Y received the OT support in their EHCP, except the vestibular support as detailed previously.
56. The Ombudsman does not usually recommend remedies for legal fees, however, in this case, the fault by the Council directly resulted in Mrs X incurring legal costs as the provision would not have been reinstated if Mrs X had not issued a pre-action letter. I therefore recommend the Council reimburse Mrs X for her legal costs of the pre-action letter.

School amendments to the EHCP

57. Part of Mrs X’s complaint is that the Council did not respond to her concerns about the School amending the EHCP.
58. From the Council documents I can see the Council consulted the School about Child Y’s needs and the provision it could deliver.
59. The code of practice sets out that it can be good practice for a school to take the responsibility for the annual review meetings, and that is what happened for Child Y. The School took the lead responsibility for carrying out the annual review meetings, and sent the paperwork for these to the Council. Therefore, when the Council revised the EHCP, it sent a draft to the School for its comments. The Council is entitled to consult with the school and take its views into account when drafting the EHCP. I do not find fault with the Council about this part of the complaint.

Complaint handling

60. The Council has recognised there were delays in responding to Mrs X’s complaint.
    I note that when Mrs X asked to escalate her complaint in September 2021 after complaining to the Director of Services, she was told she would receive a further response but did not.
61. The Council delayed acknowledging and issuing its stage two decision. I also note the stage 1 response and the stage two response do not directly address parts of Mrs X’s complaint and left some parts of the complaint without a response. The Council also failed to consider the impact of the fault it identified on Child Y and Mrs X. This was fault by the Council causing further distress and confusion to Child Y and Mrs X.
62. In response to my draft decision, the Council failed to provide the requested evidence in a timely manner, and on several occasions only gave partial responses. The Council has since acknowledged its poor communication and complaint handling to the Ombudsman, however this has caused further delay and distress to Mrs X.

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Agreed action

63. Within four weeks of my final decision the Council has agreed to

• Write to Mrs X and apologise for the fault identified,
• Pay Child Y £1000 in recognition of the lost provision because of the Council’s delay in issuing the EHCP.
• Pay Child Y £250 in recognition of the missed OT provision between January 2021 and June 2021.
• Pay Child Y £200 in recognition of the delay in providing the vestibular support in the EHCP provision.
• Pay Mrs X £300 in recognition of the distress and time and trouble caused to her because of the Councils delay and complaint handling.
• Reimburse Mrs X her legal costs for the pre-action letter.

64. The Ombudsman has recently made several decisions against the Council which highlighted areas of improvement for its special educational needs department and complaint handling services. The Council has already provided the Ombudsman with its action plans and how it intends to address the issues going forward. I am therefore not making any further service improvements to avoid duplication.
65. The Council should provide us with evidence it has complied with the above actions.

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Final decision

66. I have completed my investigation. I find fault with the Council for failing to deliver the agreed provision in the EHCP. I also find fault with the Council for delaying the issuing of the EHCP.

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Investigator's decision on behalf of the Ombudsman