Summary: Ms X complains about the Council’s handling and delivery of her child’s (Child Y) Education, Health and Care (EHC) Plan. The Council was at fault for failing to ensure the provision in Child Y’s EHC Plan was delivered between September 2022 and July 2023, delays in releasing funds for provision to Ms X, the review of Child Y’s EHC Plan and the handling of Ms X’s complaints. The Council has already provided an appropriate remedy for Child Y’s missed education. It will now also provide further redress to Ms X and her family for the injustice caused to them by its faults.

The complaint

1. Ms X complains about the Council’s failure to ensure the provision set out her child, Child Y’s Education, Health and Care (EHC) Plan was delivered between March to July 2022. She also says the Council failed to properly fund the provision in Child Y’s EHC Plan from September 2022. Ms X says the Council failed to put Education Other than at School (EOTAS) in place following a Tribunal ruling. This has caused Child Y to miss out on entitled education provision, which has caused significant distress, confusion and frustration.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
4. 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)
5. 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 have and have not investigated

6. My investigation examines the Council’s handling from the point when it issued the final EHC Plan for Child Y in late March 2022 to when Ms X made her complaint to us in mid-February 2023.

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How I considered this complaint

7. Ms X gave me permission to speak to her mother (Mrs Z) and partner (Mr X) about her complaint.
8. I have considered the information provided by the Council in response to our enquiries and the information provided by the complainant.
9. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant guidance

10. A child or young person with special educational needs (SEN) may have an Education, Health and Care (EHC) Plan. This document 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 their needs, education, or the name of the educational placement. Only the tribunal or council can do this.
11. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
12. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review. There may also be situations when an emergency review is required for example when a placement is at risk of or has broken down.
13. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20 (10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
14. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
15. Where the 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. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.

What happened

16. This is a timeline of key events and does not include everything that happened.
17. Child Y has a diagnosis of autism spectrum disorder (ASD) with associated speech and language difficulties, anxiety, hypermobility and sensory processing issues. Child Y has been out of school since October 2019 and has had an EHC Plan since October 2020 following appeal.
18. There was a further SEND Tribunal hearing in January 2022, where the Council was ordered to secure Education Other Than at School (EOTAS) provision for Child Y. The SEND Tribunal also recommended the Council completed an early annual review of Child Y’s EHC Plan before the end of the academic year (July 2022) to examine what progress had been made against and to consider the appropriateness of the SEN provision within Child Y’s Plan.
19. The Council issued the final EHC Plan for Child Y following the SEND Tribunal on 15 March 2022. From this date, Ms X and her mother, Mrs Z, made repeated contact with the Council in an effort to secure the provision specified in Child Y’s EHC Plan.
20. The Council eventually confirmed Ms X’s request for a personal budget to secure the SEN provision in Child Y’s EHC Plan in late April 2022. In early August 2022, the Council made backdated payments to cover the period from April to July 2022.
21. Ms X and Mrs Z’s continued attempts to contact the Council for Child Y’s SEN provision culminated in a stage one complaint on 18 September 2022. Ms X complained about the Council’s failure to meet its duty to make suitable education provision for Child Y and for the five month delay in providing funding for EOTAS as specified in the EHC Plan. Ms X also asked the Council for the name of the officer dealing with Child Y’s SEN provision.
22. The Council responded to Ms X’s stage one complaint on 14 October 2022. The Council apologised for not arranging a review of Child Y’s EHC Plan by the end of the academic year as recommended by the SEND Tribunal. The Council also acknowledged that Ms X’s request for a personal budget for Child Y’s education was not responded to. The Council apologised for these issues and provided Ms X with the name of the allocated officer and a commitment they would contact her on 20 October 2022 to arrange the review of Child Y’s EHC Plan.
23. The allocated officer made contact with Ms X and Mrs Z about the EHC Plan review as promised in October 2022 and started making arrangements for the review meeting. The review meeting did not however take place until 25 January 2023.
24. Ms X escalated her complaint about the Council’s handling to stage two on 15 October 2022. She remained dissatisfied with the Council’s failure to secure the SEN provision in Child Y’s EHC Plan in accordance with its statutory duties. The Council sent its stage two complaint response to Ms X on 15 February 2023. It apologised for the delays and impact on Child Y. The Council explained it could not offer a financial remedy for the impact of its upheld complaints until it had completed the EHC Plan review and issued the final plan. Ms X brought her complaint to us shortly after this as she remained dissatisfied with the Council’s handling.
25. The Council issued its notice to amend Child Y’s EHC Plan to Ms X on 21 February 2023. The proposed amended Plan was sent to Ms X on 3 March 2023. Following Ms X’s response to the proposed amendments a week later, the Council issued the final amended EHC Plan on 23 May 2023.
26. In July and August 2023, the Council followed up on its stage two complaint response and made remedy payments to Ms X for Child Y’s missed SEN provision from September 2022 to July 2023. The Council used our Guidance on Remedies to guide the level of remedy payment it offered in this case. It made a payment totalling £7,800 (£2,400 per term) to Ms X, which is the maximum amount suggested in our guidance. While this payment was accepted, Ms X and Mrs Z raised concerns the Council had not considered whether redress was needed for the injustice caused to Child Y’s family.

Analysis

27. I welcome the Council’s action in offering and providing financial redress in recognition of its delays in arranging and delivering the SEN provision Child Y has been legally entitled to since March 2022.
28. I do however share Ms X and Mrs Z’s disappointment at the Council’s failure to consider the wider impact of its faults on them and the rest of Child Y’s family.
29. Ms X was understandably very concerned and frustrated at the lack of meaningful progress in her child’s case which had resulted in missed education since October 2019. Mrs Z has told me how it is now even more challenging to help Child Y catch up on the considerable time they have missed getting the complex range of SEN provision they desperately needed from the outset.
30. The SEND Tribunal order for the hearing held in January 2022 clearly shows the Council made commitments to complete an early annual review of Child Y’s EHC Plan to help try and get things back on track. The Council’s failure to then have any kind of contact with Ms X or Mrs Z about arranging this review until Ms X formally complained in September 2022 and long after the end of the previous academic year was fault which caused significant injustice to Child Y and their family.
31. There is clear evidence of Ms X and Mrs Z’s continued efforts to get the Council to engage with them to no avail. Many of their emails went unanswered for a number of months. Even when a caseworker was allocated to progress Child Y’s EHC Plan review in October 2022, this culminated in further inaction until January 2023 when the EHC Plan review meeting finally took place. A further delay in issuing the final amended EHC Plan in May 2023 was also well outside the usual timescales for EHC Plan annual reviews.
32. Delays in making funds from Child Y’s personal budget also added to Ms X’s inability to secure the SEN provision her child was entitled to and desperately needed. Failures by the Council to make sure funds for each term were made available in advance have meant Ms X has had to eke out the backdated funds she received for provision over three academic terms. This is unacceptable and has placed further avoidable strain on Ms X and her family.
33. Finally, the delays in the handling of Ms X’s stage two complaint and the eventual offer of a financial remedy nearly a year after her initial complaint seems to have only added further to Ms X’s distress and frustration. The Council’s confirmation to us that its remedy payment for Child Y was not inclusive of any injustice caused to Ms X or Mrs Z was disappointing.
34. All the events covered by this complaint appear to have resulted in a significant impact on Ms X and Mrs Z. Both have understandably felt extremely let down repeatedly by the Council through its failure to communicate and keep to timescales around the reviewing of Child Y’s EHC Plan. Ms X and Mrs Z have no doubt also experienced some distress as a result of concern for how Child Y’s needs can be met, which appears to have been compounded by the Council’s seeming indifference to their situation.

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Agreed action

Remedy for personal injustice

35. Within one month of my final decision, the Council has agreed to:

• make a written apology to Ms X and Child Y for the faults identified in this decision statement. The apology to Child Y should only be provided if Ms X feels this is appropriate and in a format that best suits Child Y’s needs. The apologies should also be in line with our Guidance on Remedies, which sets out our expectations of councils when it comes to delivering meaningful apologies;
• make a symbolic payment of £1,000 to Ms X in recognition of the distress, uncertainty, time and trouble caused by the Council’s faults in its handling of Child Y’s EHC Plan, SEN provision and Ms X’s complaints; and
• ensure that moving forward the caseworker allocated to Child Y’s case, will communicate with Ms X and Mrs Z at a minimum monthly for at least the next six months, to update them on whatever steps are being taken to ensure the SEN provision set out in Child Y’s EHC Plan continues to be delivered and that any scheduled annual reviews and personal budget reviews/action takes place on time.

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

Service improvements

37. Over the last two years we have issues multiple decisions highlighting failings by the Council’s SEN service. In May and September 2023, we issued decisions where the Council agreed to review its procedures for EHC Plans and issue reminders to relevant staff to ensure:

• when reviewing EHC plans it does so without delay, and issues amendment notices and final amended plans within the correct statutory timescales following the review meeting;
• when re-assessing EHC needs it issues a final amended plan as soon as is practicable, and within a maximum of 14 weeks from the decision to reassess;
• it keeps families updated, responds to their queries, and follows up on any agreed actions in good time;
• those with responsibility for SEN cases complete key actions on time; and,
• there are systems in place to oversee the monitoring of cases and that a procedure ensures cases are prioritised for action and escalated further if there is any delay.

38. There is no need for me therefore to restate similar recommendations in this case. The Council should however remain mindful that repetitions of faults of this nature could result in us considering whether a public interest report is required if we believe the Council has failed to properly implement the service improvements previously recommended and agreed.

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Final decision

39. I have completed my investigation and uphold Ms X’s complaint. There was fault by the Council which caused injustice to Child Y, Ms X and their family. The Council has agreed to take action to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman