Summary: The Council failed to review and finalise Ms X’s son, Z’s Education, Health and Care Plans (EHC plans) between January 2022 and June 2023 within the statutory timeframes. It failed to use the EHC plan process to carry out work in preparing him for adulthood and failed to ensure he received the occupational therapy he was entitled to receive. In recognition of the injustice caused, the Council has agreed to apologise and pay Ms X and Z £3,900. It has also agreed to carry out several service improvements.

The complaint

1. Ms X complains the Council:
1. delayed in reviewing and finalising her son’s EHC plan in 2022;
2. failed to properly plan for his transition to preparing for adulthood; and
3. failed to ensure he received the occupational therapy specified in his EHC plan from January 2022 onwards.
2. Ms X said the Council’s faults have caused her son to miss out on provision, have an out-of-date record of what special educational provision he required and caused them both frustration and uncertainty.

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The Ombudsman’s role and powers

3. 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.
4. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
5. 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.
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 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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How I considered this complaint

8. I considered the information provided by Ms X and the Council.
9. I considered the relevant law and guidance as set out below.
10. I considered our Guidance on Remedies.
11. I considered all comments made by Ms X and the Council on a draft decision before making this final decision.

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What I found

Law and guidance

EHC Plans

12. A young person with special educational needs may have an Education, Health and Care (EHC) plan. This sets out their needs and what arrangements should be made to meet them.
13. The EHC plan is set out in sections which include:
• Section B: The child or young person’s special educational needs. 
• Section F: The special educational provision needed by the child or the young person.  
• Section I: The name and/or type of school. 
14. 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)
15. 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. However 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.

Annual reviews

16. EHC plans must be reviewed at a minimum every twelve months.

The Statutory Guidance: Special Educational needs and disability code of practice: 0-25 years (“the Code”) says:

• within four weeks of the annual review meeting the council must decide whether it proposes to keep the EHC plan as it is, amend the plan or cease to maintain it, and notify the child’s parent or young person and the educational setting (para 9.176);
• if the plan needs amending, councils should start the process of amendment without delay (para 9.176);
• if amending the plan, councils must send the child’s parent or the young person a copy of the existing plan and a notice providing details of the proposed amendments, and they must be given at least 15 calendar days to comment on the proposed changes (paras 9.194 & 9.195);
• councils must issue the amended EHC plan as quickly as possible after receiving comments and within 8 weeks of the original amendment notice (para 9.196).

Appeal rights

17. 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.

Planning for adulthood

18. The Code says councils must ensure that the child or young person’s EHC plan review at year 9, and every review thereafter, includes a focus on preparing for adulthood.
19. Transition planning must be built into the revised EHC plan and should result in clear outcomes being agreed that are ambitious and stretching and which will prepare the young person for adulthood.
20. Planning must be centred around the child or young person’s aspirations and abilities and the support they need to achieve their ambition.

What happened

Background

21. Z has a neurodevelopmental condition and requires specialist support including occupational therapy. Z has an EHC plan.
22. The Ombudsman found fault with this Council in an earlier decision, for failing to secure the occupational therapy provision in Z’s EHC plan. We recommended a financial remedy for a period of missed provision between January 2021 and January 2022.
23. Z continued not to receive the occupational therapy provision in his plan after that, so Ms X made further complaints to the Council and brought her complaint to the Ombudsman in April 2023.

Key events

24. On 24 January 2022 an annual review meeting was held to review Z’s EHC plan. At this time he was 15 years old and in year 10 at a specialist school.
25. Z’s last final EHC plan at this time was from 12 February 2021. This said he should be receiving occupational therapy from an occupational therapist (OT) trained in sensory integration. The provision included the following:
• a 45 minute occupational therapy session each week;
• general advice from the OT regarding Z’s attention and any physical or sensory challenges;
• a programme of strategies created by the OT to help Z manage his sensory issues; and
• the OT to attend Z’s annual reviews.
26. The annual review of this plan said Z should remain at the school he was attending. It suggested some amendments may be made to the SEN provision he was receiving but did not set out clearly in the annual review meeting notes or the draft amended plan what these would be.
27. It repeatedly said people should refer to multiple different documents for “more information” rather than explaining the changes in the annual review meeting notes, or in the amended EHC plan. It also did not send Ms X a copy of this draft amended plan until five months later in June 2022.
28. The annual review did not do any planning for Z moving into adulthood. This section of the proposed amended EHC plan was left blank.
29. The Council did not finalise this EHC plan, so the February 2021 plan remained in force.
30. Ms X complained to the Council in September 2022, as it had still not amended or finalised Z’s EHC plan following the January annual review. She also complained that Z had not received all the occupational therapy in his plan so far that year.
31. The Council responded at stage one on 21 October. It apologised for the poor service she had received and said it would send an amended EHC plan in the coming days.
32. Ms X was unhappy with the response and asked the Council to escalate her complaint to stage two.
33. In the meantime, the Council held another scheduled annual review for Z’s plan on 31 October 2022.
34. This review was scheduled as a “transition” annual review to plan for Z moving into adulthood. The moving into adulthood section of this annual review assessed his progress against several measures and contained several outcomes for Z to work towards.
35. The other suggested amendments to be made to the rest of the EHC plan were unclear. The annual review meeting notes again said to refer to multiple separate documents to see what amendments were proposed, rather than explicitly listing them.
36. The Council sent a draft amended EHC plan for Ms X to consider on 16 December which contained the same level of occupational therapy for Z as the previous plan but amended other areas. It said not all of the occupational therapy needed to be delivered by the OT directly and could in part be carried out by school staff.
37. It had to re-send this draft plan several times to Ms X in different formats as the document was not clear about the amendments to the draft amended plan and she said she could not understand the document.
38. The Council responded to Ms X’s complaint at the final stage of the complaints process on 4 January 2023. It said since the previous Ombudsman investigation, it had failed to provide Z with a further ten weeks of occupational therapy between January 2022 and that date. It said this was mostly due to his school no longer having an OT available. It offered Ms X £500 in recognition of the injustice caused. It said if Ms X was still unhappy she could complain to the Ombudsman.
39. The Council finalised Z’s EHC plan on 15 May 2023, five months after it sent Ms X the draft amended plan. The final EHC plan – issued with approximately two months left of that school year - said Z would continue to attend his current specialist school until September 2023, when he would move to a post-16 placement at a college. This plan said Z should receive the same occupational therapy input as set out in his previous EHC plan (February 2021), including at his new college.
40. Instead of coming directly to the Ombudsman following the Council’s January 2023 complaint response, between February and June 2023, Ms X made more complaints regarding the same issues and these all went to the final stage of the complaints process.
41. In the Council’s last complaint response dated 21 June 2023, the Council said it had failed to provide Z’s OT provision for 28 weeks since January 2022. In recognition of this, it offered Ms X £2,600, instead of its previous remedy of £500.
42. The Council accepted in a letter sent to Ms X by its solicitor that it should have begun looking for alternative OTs earlier than it did, as it was aware from the Autumn term in 2021 that Z was not always receiving the OT in his plan. However it said it did not start searching for alternative OTs until the end of January 2022. After this time, the Council approached many OTs throughout 2022 and none were available.
43. The Council has no precise record of how much Z received of the occupational therapy set out in his EHC plan during this complaint period. It said it could not obtain this information due to a high turnover of staff at the school.

My findings

Complaint 1a) Delays in amending and finalising Z’s EHC plan

44. The Code says the Council should have issued a draft, amended plan within four weeks of the annual review meeting and a final, amended EHC plan within twelve weeks of the annual review meeting.
45. It took the Council 21 weeks to send a draft, amended plan for Ms X and Z’s comments following the January 2022 annual review. This was a delay of seventeen weeks. The Council then did not finalise this EHC plan at all and instead began a new annual review process that October. This delay and then failure to finalise the EHC plan were both fault by the Council.
46. It took the Council six weeks following the October annual review to send a draft, amended plan to Ms X and Z. This was a delay of two weeks. It then took 28 weeks to finalise the plan. This was a delay of sixteen weeks. The Council was at fault for these delays.
47. As a result of these faults, Z was without an up-to-date record of his SEN and what provision he required to meet them for a year and a half, which caused a period of uncertainty and distress to Ms X and Z.

Unclear EHC plan amendments

48. The draft amended plans the Council sent to Ms X failed to make clear what amendments it proposed and instead asked Ms X to refer to multiple other documents for more information.
49. This poor communication was fault. This fault risked Ms X and Z not being sufficiently informed at draft stage to understand what changes the Council had suggested and comment on them in line with the Code.
50. This fault also caused frustration to Ms X and Z and contributed to the delay in progressing Z’s annual reviews.

Complaint 1b) Planning for moving to adulthood

51. The Code says councils must include a focus on preparing for adulthood in all reviews of young people’s EHC plans from year nine onwards.
52. During the period I am investigating, Z was in year ten and then started year eleven. The Council carried out two annual reviews in this time. It only carried out work on preparing Z for adulthood in one of these. It should have considered what support Z required to prepare for adulthood in both reviews. The Council was at fault.
53. This fault caused uncertainty and frustration to Ms X and Z regarding whether the Council was properly managing a key part of his EHC plan.

Complaint 1c) Missed occupational therapy

54. In response to our enquiries, the Council said it did not know how much of the occupational therapy set out in Z’s EHC plans he had received between January 2022 and June 2023, due to the high turnover of staff at Z’s school.
55. However, it told Ms X in its June 2023 final complaint response that it estimated Z had missed 28 weeks of occupational therapy by that date and offered a financial remedy for this of £2,600. I have not seen any evidence to suggest this estimation is incorrect and the remedy the Council has suggested is in line with our Guidance on Remedies for this amount of missed provision.
56. The Council had a non-delegable duty to provide the occupational therapy in Z’s EHC plan. It failed to meet this duty, partly due to delay in the Council seeking alternatives for Z and partly due to service failure (the lack of available OTs). The Council was at fault and this fault caused Z to miss out on OT provision that he was entitled to receive.
57. The Council estimated the amount of occupational therapy provision Z missed was 28 weeks’ worth of sessions because it does not have any exact records of what he received.
58. We do not expect councils to keep a watching brief on the exact amount of SEN provision every pupil is receiving at their school. However once the Council became aware Z was missing his provision, we would expect the Council to have been collecting information on how much was being missed.
59. This fault has caused Ms X significant uncertainty regarding how much provision her son has missed and affects our ability to properly remedy the missed provision.

Annual reviews during tribunal appeals

60. Between December 2019 and January 2022 the Council did not review Z’s EHC plan. The Council informed Ms X this was because the Council could not complete annual review processes in full while a tribunal appeal was ongoing.
61. This is not correct. The Code says councils must review EHC plans at a minimum every twelve months and there is no exception in the law or guidance which says this should not happen when a plan is under appeal.
62. This falls outside the scope of this investigation as it is in part too late for us to look at and in part, the injustice arising from the fault has already been remedied by a previous Ombudsman decision.
63. However it came to our attention during this investigation, through the Council’s response to our enquiry, that the Council still understands that it does not have to carry out annual reviews when tribunal proceedings are active.
64. As this continued incorrect interpretation of the Council’s duties around annual reviews is likely to cause injustice to others, I have recommended a service improvement to prevent recurrence of this in future.

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Agreed action

65. Within one month of the date of the final decision the Council has agreed to:
1. apologise to Ms X and Z for the injustice caused by the faults in this case;
2. pay Z £400 in recognition of the multiple instances of uncertainty, distress and frustration caused to him by the faults in this case;
3. pay Ms X £400 in recognition of the same injustices caused to her during this period; and
4. pay Z £500 to recognise the uncertainty caused to him by the Council’s poor record keeping as well as the £2,600 it has already agreed to pay in recognition of 28 weeks of occupational therapy it estimates he has missed.
66. Within three months of the date of the final decision, the Council has agreed to demonstrate that it has carried out training with its SEND staff in the following areas:
1. The Council’s duty to finalise EHC plans following annual reviews and the statutory timeframe in which to do this;
2. The statutory timeframes for progressing through the stages of annual reviews including when decision letters and draft amended plans must be issued;
3. The importance of annual review meeting notes and draft, amended plans making clear for the reader what amendments are proposed and not referring the reader to other separate documents for explanation;
4. The duty to complete the sections of EHC plans on preparing for adulthood during all annual reviews for young people from year 9 onwards, in line with the SEND Code of Practice;
5. That annual reviews of EHC plans must take place every twelve months, regardless of whether the parent or young person has an ongoing appeal with the SEND Tribunal;
6. The Council’s non-delegable duty to provide the provision in section F of its children and young people’s EHC plans. This means when the Council becomes aware that the provision is not being made, it must start seeking alternative arrangements. Drift and delay in doing so is fault; and
7. The importance of seeking records from the education provider, or otherwise, once it becomes aware that EHC plan provision is being missed, to ensure the Council is aware of how much provision has been missed. This cannot be adequately remedied without these records.
67. The Council should provide us with evidence it has complied with the above actions.

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Final decision

68. I have completed my investigation. I have found fault leading to injustice and the Council has agreed to apologise, pay Ms X and Z a financial remedy and carry out several service improvements.

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Investigator's decision on behalf of the Ombudsman