Summary: Mr X complained about the Council’s failure to provide his son with 1:1 support as specified in his Education Health and Care Plan. We have found the Council to be at fault. Mr X’s son did not receive 1:1 support for several years, the Council took too long to issue an amended Plan and there was delay holding an annual review. To remedy the injustice caused by these faults, the Council has agreed to apologise, make a payment to Mr X and review its service with a view to making improvements.

The complaint

1. Mr X complains about the Council’s failure to provide 1:1 support for his son, as specified in his Education, Health and Care Plan since he started secondary school in September 2019. He also complains about a failure to hold an Annual Review in November 2022. This has prevented his request for additional support for extra-curricular activities and during break times to be properly considered, either by the council or the Tribunal.
2. Mr X says this lack of additional support has had a detrimental impact on his son’s academic progress and social development.

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What I have and what I have not investigated

3. Mr X complains about failure to provide 1:1 SEN support since his son started secondary school in September 2019. We expect people to make a complaint to us within a year of them thinking there may have been fault by the Council. Mr X complained to the Council in September 2022. Therefore, the restriction outlined in paragraph nine (below) applies to this complaint. The Ombudsman has discretion and can disapply this rule if there are good reasons.
4. In reaching my decision to partially exercise this discretion, I have taken into consideration the following relevant information:

• Mr X says he raised his concerns with the school rather than the Council between 2019 and 2022. It is understandable why he contacted the school about this in the first instance, rather than the Council.
• He has also referred to an appeal to the Tribunal that was subsequently withdrawn.
• I have read Mr X’s submissions that he made for the January 2021 annual review. Here he expressed concerns about the level of support his son received in school. The Council is a party to the annual review process.

5. From this, I am satisfied I have evidence to show the Council was aware of Mr X’s grievance from January 2021. For this reason, I consider it fair and reasonable to exercise my discretion and investigate events (and any lack of provision) from this date onwards.
6. The restriction in paragraph ten (below) also applies to this complaint. As a general rule, the Ombudsman cannot investigate a matter that is appealable to the Tribunal. As my investigation has focused on the Council’s failure to provide support already specified in the EHCP, I am satisfied paragraph ten below does not apply to Mr X’s complaint about lack of 1:1 support during lessons.
7. However, I have not investigated Mr X’s complaint about the Council’s failure to include 1:1 support for extra-curricular activities in Child Y’s EHCP. This is because the content of an EHCP is a matter for the Tribunal, not the Ombudsman.

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The Ombudsman’s role and powers

8. 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)
9. 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)
10. 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)
11. 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 decision statement.
12. 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.
13. 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

14. I spoke to Mr X and considered the information he provided.
15. I made enquiries of the Council and considered its response.
16. I considered the relevant law and guidance.
17. Mr X and the Council had the opportunity to comment on my draft decision. I considered any comments received before I made my final decision.

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What I found

Relevant law and guidance

Education, Health and Care Plans

18. A child with special educational needs (SEN) may have an Education, Health and Care Plan (ECHP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP 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.
19. 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.

Annual reviews

20. The procedure for reviewing and amending EHCP’s is set out in legislation and government guidance.
21. 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. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
22. 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. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
23. If a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
24. 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. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
25. Parents have a right of appeal to the 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.

Case Law

26. Recent caselaw says councils must, from March 2022, send the parent or young person the final amended EHCP within a maximum of 12 weeks of the annual review meeting. It says councils must send the decision letter alongside any proposed changes to the EHCP within four weeks of the review meeting and issue a final plan no later than eight weeks after the decision letter is sent. R (L, M, and P) v Devon County Council [2022] EWHC 493

What happened

27. I have included a summary of some of the key events below. This is not intended to be a comprehensive account of everything that took place.
28. Mr X’s son, Child Y is now of secondary school age. He has SEN and an EHCP He currently attends a mainstream school (School A) and is working towards his GCSE’s.
29. In June 2019, his EHCP (“the 2019 Plan”) specified Child Y should receive 1:1 support from a learning support assistant (LSA). The 2019 plan was issued shortly before Child Y moved up to School A from primary school.
30. Mr X says this 1:1 support has not been provided by School A. Instead, Child Y has shared a LSA with other students. Mr X has explained that as Child Y is a quite student, he is often reluctant to ask for help. Mr X feels his son is often ignored and is not receiving the support he needs in order to progress academically. He says he raised his concerns about this directly with the school many times.
31. He was consistently told by School A that is did not receive enough funding from the Council to pay for 1:1 support.
32. Mr X says he also tried to raise his concerns through the annual review process. Annual reviews dated December 2021 (although it is likely this document should have been dated January 2022) and January 2021 both stated the June 2019 Plan should be amended.
33. A final amended EHCP was not issued until August 2022 (“the 2022 Plan”). This replicated the previous plan by specifying Child Y should receive 1:1 LSA support while in school.
34. As in previous years, Mr X wanted to discuss the continued lack of 1:1 support at Child Y’s annual review. Mr X expected this to take place in November 2022 as this was the date specified in the 2022 Plan. Instead, it was arranged for January 2023. However, this did not take place due to staff sickness and Child Y being unwell, although this is disputed by Mr X. According to the Council’s response to my enquiries, it was scheduled to take place in April 2023.
35. Mr X also wanted the opportunity to discuss other amendments to Child Y’s EHCP. He believes Child Y requires extra support during break times and after school activities. He wants the Council to include this within the EHCP. I have explained at paragraph seven (above) why I cannot investigate Mr X’s complaint about the content of the EHCP.

Mr X’s complaint

36. In September 2022, Mr X complained to the Council.
37. In response, the Council said:

• School A received the correct funding appropriate for the needs and provision outlined in Child Y’s EHCP. The funding allowed School A to provide 1:1 support;
• School A chose to pay its LSAs more than the average hourly rate. This was a matter for the school to decide. The Council was not obliged to increase its allocation of funding that was calculated using its funding allocation tool; and
• Child Y was not entitled to receive 1:1 support outside of the classroom as this was not specified in his EHCP.

38. His complaint was not upheld. Mr X did not consider the response addressed his complaint and so he brought his complaint to the Ombudsman.
39. In response to the Ombudsman’s enquiries, the Council has said:

• there was a delay in holding the latest annual review;
• Child Y has not received 1:1 support. Instead, he has been taught in a small class of 12 students with a high staff to student ratio (one teacher and three LSA’s). The Council considered this to be equivalent to 1:1 support and so there was no injustice to Child Y;
• it would have removed 1:1 support from Section F of the EHCP had it known Child Y was receiving this high level of classroom support earlier;
• it had a legal duty to provide 1:1 support and it failed to honor that duty; and
• arrangements would be made to ensure School A provided 1:1 LSA support and this will remain in place until at least July 2023.

40. To acknowledge this fault, the Council has offered to pay Mr X:

• £100 for the time and trouble he has spent complaining about this matter; and
• 150 to acknowledge the delay in holding the annual review, delay in issuing the August Plan and the impact this had on Mr X’s right to appeal to the Tribunal.

Analysis

41. In response to my enquiries, the Council has accepted there has been fault. It has also offered a financial payment to Mr X to remedy the injustice cause by its fault. While I welcome this, I most consider whether there has been any additional fault and whether the remedy offered by the Council is adequate.

Provision of 1:1 support

42. Councils have a duty to secure the special educational provision in an EHCP. The Council did not do so in this case. This meant that Child Y went without 1:1 LSA support from January 2021 to April 2023, a total of seven academic terms.
43. Both School A and the Council have stated that Child Y was not disadvantaged by this because he was taught in class of only 12 children with a high pupil/staff ratio. Had the Council been aware of this, it says it would not have included 1:1 support in the EHCP and it considering its removal from the Plan. The Council has also referred the Ombudsman to an undated educational psychology report from when Child Y was in Year 9.
44. While I accept there some logic behind the Council’s argument, I cannot ignore the Council’s clear legal duty to secure provision specified in section F of the EHCP, nor the fact the Council had the opportunity to remove the 1:1 support since 2019 but did not do so. It has not provided the Ombudsman with an explanation for this. I do not consider the educational psychology report has any evidential significance because it is several years old and does not specifically address this issue.
45. I have reviewed the case record provided by the Council and in my view, it has also consistently failed to give Mr X a straight answer about this lack of provision. Instead, both School A and the Council have referred to their budgets, banding rates, funding streams and resource allocation tools. This has effectively avoided the key issue and caused Mr X avoidable frustration.
46. It is not the responsibility of a parent to understand the complexities of SEN funding. As far as Mr X was concerned, his son had an EHCP that said he would have a LSA allocated solely to Child Y. It is only in response to my enquiries that the Council finally accepted there was fault and has taken action to put this right.
47. I cannot say whether 1:1 support would have improved the outcomes for Child Y, as argued by the Council, but it I am satisfied it could have done. Mr X certainly believes this to be the case based on Child Y’s experience at primary school, and where a former teacher at School A provided him with additional support in her own time.
48. For this reason, I have decided the Council’s failure to provide 1:1 support has caused an injustice in this case; both in terms of the uncertainty about what difference it could have made to Child Y and the consequential impact on Mr X from having to complain for such a long time about the matter. This injustice requires an additional remedy to what the Council has already offered.
49. We have published guidance to explain how we calculate 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.
50. Where fault by a Council has caused a child to miss education, or not receive suitable education, we may recommend a symbolic payment. We take account of any education the child received, without some or all of the support needed by their Plan, the severity of the child’s SEN, whether any provision can remedy any of the lost education, and whether the period affected was a significant one, such as the first year of compulsory education.
51. I considered a payment of £300 per term of lost provision to be appropriate in this case. This takes account of the fact Child Y has had a full-time education and has benefitted for a smaller class size and other support for his SEN.

ECHP process

52. The Council has already accepted there has been delay in arranging Child Y’s latest annual review. This is fault.
53. In addition to this, the case records I have seen also evidence some confusion about the scheduling of this annual review. The Council says it should have taken place in January 2023. This is 12 months since the date of the previous annual review and in line with the relevant government guidance.
54. However, Child Y’s current EHCP says the annual review will take place in November 2022. I believe this was a mistake but has led to understandable disappointment by Mr X that the annual review did not take place then. Similarly, a date on a previous annual review is incorrect and it is unclear to me when this actually took place. This was fault.
55. As I have already mentioned, there was also delay by the Council in issuing Child Y’s amended EHCP. It should take 12 weeks from the date of the annual review. In this case it took just over six months. This is further fault.
56. As already acknowledged by the Council, delay in the process has prevented Mr X from making an earlier appeal to the Tribunal. It is accepted by the Council he may wish to challenge the content of the EHCP, specifically about lack of support for extra-curricular activities.
57. The Council has offered Mr X £100 to acknowledge this specific injustice around appeal rights. While I welcome this, I do not consider this sum adequately addresses the additional injustice to Mr X in terms of his frustration and distress caused by the delay and confusion around the annual review process and delay issuing the amended review, despite this being identified as necessary as early as January 2021. I have recommendations below to remedy this.

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Agreed action

58. The Council has agreed to take the following action within four weeks from the date of my final decision.
1. Apologise in writing to Mr X.
2. Pay Mr X £250, as offered in its response to the Ombudsman.
3. If it has not already been done, put arrangements in place to ensure Child Y has 1:1 support at School A for as long as it remains specified in Section F of Child Y’s EHCP.
4. Pay Mr X £2100 (7 terms at £300 per term) as a symbolic payment to acknowledge the Council’s failure to provide 1:1 support since January 2021. This should be used for the educational benefit of Child Y.
5. Pay Mr X £200 to acknowledge his frustration and distress caused by faults in the EHCP process.
6. Reflect on the issues raised in this decision statement and identify any areas of service improvement, including delay in the EHCP process. The Council should prepare a short report setting out what the Council intends to do to ensure similar problems do not reoccur. This report should be sent to the Ombudsman.
59. The Council should provide us with evidence it has complied with the above actions.

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Final decision

60. I have upheld Mr X’s complaint and the Council has agreed with my recommendations to remedy the injustice caused. On this basis I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman