Summary: Mr X complains the Council did not deal properly with his son Y’s education. The Council is at fault because it delayed dealing with funding levels and delayed issuing an Education Health and Care Plan (EHCP). Y has not had an updated EHCP, has missed special educational needs provision and remains uncertain whether he may have missed further provision. The Council should apologise and pay Mr X £1000 for distress and uncertainty, pay Mr X £600 for missed provision and issue a final EHCP.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains the Council failed to deal with son Y’s education properly because:
1. It didn’t complete ARs since 2019
2. It should provide compensation in relation to issues such as non-provision of full-time education and alternative education and missed special educational needs (SEN) provision since 2019.
3. It delayed dealing with SEN funding levels
4. It delayed issuing EHC Plan
5. Its Complaints handling was poor due to delays and lack of responses
2. Mr X says his son Y has missed out on funding and educational provision.

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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. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
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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What I have and have not investigated

8. I have investigated parts (c) and (d) and (e) of Mr X’s complaint, from May 2023.
9. I have not investigated parts (a) and (b) of Mr X’s complaint because they are either out of time or have previously been addressed and remedied through a separate earlier complaint which remedied these matters in May 2023.

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How I considered this complaint

10. I spoke to Mr X about his complaint and considered documents he provided. I made enquiries of the Council and considered its response and the supporting documents it provided.
11. Mr 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

Law, guidance and policies

12. A child or young person with special educational needs 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 the council can do this. 
13. 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)  
14. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 
• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 
15. 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.
16. The school (or, for children and young people attending another institution, the local authority) must prepare and send a report of the meeting to everyone invited within two weeks of the meeting. The report must set out recommendations on any amendments required to the EHC plan, and should refer to any difference between the school or other institution’s recommendations and those of others attending the meeting. (SEN Code paragraph 9.176) 
17. 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) 
18. 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.
19. The parent or young person must be given at least 15 calendar days to comment and make representations on the proposed changes, including requesting a particular school or other institution be named in the EHC plan. (SEN Code paragraph 9.195) 
20. Following representations from the child’s parent or the young person, if the local authority decides to continue to make amendments, it must issue the amended EHC plan as quickly as possible and within 8 weeks of the original amendment notice. (SEN Code paragraph 9.196) 

What happened?

21. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
22. Mr X complained to the Council in April 2023 about EHCP annual reviews not being completed and his son Y missing educational provision. The Council responded to this complaint in May 2023, accepting fault and offering a remedy. Mr X did not escalate his complaint or approach the Ombudsman.
23. In October 2023 an annual review of Y’s EHCP was started.
24. Mr X complained to the Council again in November 2023 about the same issues and that his son Y needed extra funding being made available to meet his needs.
25. The Council sent Mr X a final complaint response in April 2024 accepting some fault.

Analysis

26. As set out in paragraphs 6 and 7, I am unable to investigate matters before May 2023 as Mr X has complained about these and been offered a remedy, which he did not challenge.
27. In its final complaint response in November 2023, the Council accepted that:
• There had been a delay in dealing with a summary of needs provided by Y’s school and that consequently his funding had not been changed. The Council says Y’s funding level was amended and the additional funding was backdated to the date that the Annual Review was held. Y’s school says it implemented all aspects of Section F of Y’s EHCP. This included adjusting the scheduling of external speech and language therapy sessions to accommodate his part-time attendance. This is fault by the Council. On the balance of probabilities, Y did not suffer any injustice because the provision in his EHCP was made.
• An amended EHCP was not issued following receipt of a Speech and Language Therapy (SaLT) report in December 2023. This is fault by the Council. Y did not receive updated SaLT provision between January and April, a period of three months.
• It had not finalised Y’s EHC Plan as it should have done. This is fault by the Council. Mr X suffered avoidable distress and uncertainty and his appeal rights were delayed by approximately four months.
28. The Council also said Mr X had not made a specific complaint about the Council’s failure to process annual reviews. I do not agree with the Council. Mr X’s complaint in November specifically said he, “wanted a formal complaint logged for the SEND teams failure to review/issue my son with an EHCP since 2019.” This explicitly includes the period 2019 to November 2023.
29. No annual review was subsequently started until October 2023. The Council acknowledges that there was a further delay in holding Y’s Annual Review, but says it does not consider this as fault because the delays were necessary in the unique circumstances to ensure that the review was reflective of Y’s needs after a substantial time out of an educational setting.
30. Y’s school says that it was apparent that his EHC Plan did not meet his needs in September 2023.
31. I disagree with the Council. The Council had previously already accepted fault when it replied to concerns from Mr X’s MP in June 2022 accepting that reviews had not been completed and stating that an annual review would take place as soon as possible. in May 2023 it again accepted fault for failure to update Y’s EHCP. The Council offered a remedy for this period to Mr X in May 2023.
32. There was therefore a further delay to Y’s EHCP annual review between May 2023 and October 2023, that had not already been remedied as a result of Mr X’s earlier complaint. The Council cannot rely on its earlier failure to properly complete annual reviews as a justification for further future delay. This is fault by the Council. Mr X and Y suffered avoidable distress, uncertainty and missed opportunity together with delay to a review of his EHCP for a further five months.
33. In response to the Ombudsman’s investigation, the Council further accepts there was a delay in Y starting his school placement in September 2023, with him not attending until Monday 25th. The Council has offered £300 remedy for the three weeks missed educational provision within this period. This is an appropriate remedy for this time period.

Action already taken by the Council

34. Following the outcome of the Ofsted and the Care Quality Commission (CQC) joint inspection of Hertfordshire’s Local Area Partnership in July 2023 the Council produced a Priority Action and Improvement Plan to address areas of concern raised in December 2023. This includes:
• A target to ‘Improve timeliness of Annual Reviews (from 9% in July 2023 to 40%) and improve the quality of Annual Reviews measured by quality audits and feedback from families (improve from current baseline of 14% of plans audited as Good or Outstanding, to 40% - as nationally benchmarked by Invision 360).’
35. The Council has implemented a implemented a SEND Academy from January 2024. All new staff to the service now attend a 6-week course, including a module which focusses on Annual Reviews. Existing staff attended a week’s refresher training run by the Academy, during which the Annual Review process (including time frames) was reviewed.

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Agreed action

36. To remedy the outstanding injustice caused by the fault I have identified, in addition to the payment offered in paragraph 32 above, the Council has agreed to take the following action within 4 weeks of this decision:
• Apologise to Mr X for the fault found in this decision. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay Mr X £1000 in respect of the avoidable distress, uncertainty and delayed appeal rights.
• Pay Mr X a further £600 in respect of missed SaLT provision, reflecting approximately three months of missed provision, at a rate of £200 per month.
37. The Council has also agreed to take the following action within 2 months of this decision:
• Ensure a final EHC Plan for Y with right of appeal is received by Mr X.
38. The Council should provide us with evidence it has complied with the above actions.

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Final decision

39. I have found fault by the Council, which caused injustice to Mr X. I have now completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman