Summary: Miss X complained the Council failed to secure all the special educational provision in her daughter, Miss Y’s, Education, Health and Care (EHC) plan. The Council was at fault. It was also at fault for delay in reviewing Miss Y’s EHC plan and for a poor complaint response. The Council will apologise, pay Miss X a total of £3200 and remind staff of the correct procedure.

The complaint

1. Miss X complained the Council failed to secure all the special educational provision specified in her daughter, Miss Y’s, April 2022 Education, Health and Care (EHC) plan. Miss X also complained the Council delayed carrying out Miss Y’s annual review.
2. Miss X said this caused her distress, uncertainty and frustration and impacted on Miss Y’s education.

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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. 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 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.

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How I considered this complaint

6. I have considered:
• all the information Miss X provided and gave her an opportunity to speak with me;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the relevant law and guidance and the Ombudsman's guidance on remedies.
7. Miss 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 law and guidance

Special educational provision

8. 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. Section F covers the special educational provision necessary.
9. The council has a duty to secure the specified special educational provision (section F) 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. 
10. The Ombudsman recognises 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 considers that councils should be able to demonstrate appropriate thoroughness in discharging this important legal duty and as a minimum have systems in place to:
1. 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;
2. check the provision at least annually via the review process; and
3. investigate complaints or concerns that provision is not in place at any time.

Annual reviews

11. Councils must review an EHC plan within 12 months from the date the plan was made (meaning the date the plan was finalised). They must then review the plan within 12 months of the previous review. An annual review is comprised of a review meeting, normally held by the child or young person’s school/college and a notice which the council sends after the meeting. The notice sets out whether the council has decided to amend the plan, maintain it without changes or cease it. The council must send the notice of its decision within four weeks of the annual review.
12. 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 (a draft amended plan).
13. 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 original EHC plan and draft amended plan to the parents. Caselaw has shown the time between the annual review meeting and final amended EHC plan should be no more than 12 weeks.

The Council’s annual review timeline

14. The Council provides training on annual reviews to its staff. The training presentation states the Council’s “annual review process timeline will be followed: e.g., amended draft plan will be sent out 14 weeks from date of the meeting”. The Council told me it follows the timescales set out in the statutory guidance; the SEND code of practice: 0 to 25 years.

What happened

15. Miss Y has significant learning difficulties and has an EHC plan. The Council held an annual review meeting in November 2021. It issued its decision to amend Miss Y’s EHC plan in December 2021 and its amended final EHC plan in April 2022, ready for Miss Y to start college in September 2022. In section F, the plan noted Miss Y:
• should be taught in small groups with 1:1 (one member of staff supporting only Miss Y) support throughout the day;
• needed support from a female teaching assistant to complete her personal care; and
• needed a speech and language therapy session for 45 minutes every other week. The plan noted the Speech and Language Therapist (SALT) should consult with Miss Y’s family and teachers every half term. The SALT should update Miss Y’s targets once per term, prepare a report on Miss Y’s progress each year and carry out other work as and when needed, including carrying out research for staff and Miss Y’s family.
16. Miss Y started at the college as planned in September 2022.
17. In mid-January 2023, Miss X complained to the Council. She said Miss Y was not receiving the 1:1 teaching, teaching assistant support or SALT in her plan. She said the college had put 1:2 support in place temporarily after she had contacted it.
18. The Council responded at stage one of its complaints procedure in early February 2023. It said:
• it had spoken to the college which confirmed it had reduced Miss Y’s to 1:3 (one member of staff teaching three young people, including Miss Y). It did not feel she needed 1:1 support. It had come to that decision based on the information it received when Miss Y transferred to it, on assessments it carried out and on how Miss Y coped in her first six weeks;
• the college should not have done so. If it felt Miss Y did not need 1:1 support, it should have asked for an early annual review; and
• the college had confirmed it would support Miss Y 1:1 and would arrange the speech and language therapy.
19. Miss X told me the college started teaching Miss Y 1:1 sometime around February 2023. The teaching assistant started helping Miss Y around the same time.
20. Miss X remained dissatisfied and asked the Council for a stage two response. The Council replied at stage two in late March to say:
• it was the college’s responsibility to tell the Council if there were issues delivering the section F provision or if it felt there needed to be changes to Miss Y’s EHC plan;
• the college had not told the Council it had reduced Miss Y’s 1:1 support. The Council had acted appropriately when it did become aware;
• the college said Miss Y had not missed out on provision because she did not need 1:1 support. It agreed with that argument because the college had reviewed Miss Y’s needs before reducing the support. It therefore said it was not at fault for missing provision;
• it nevertheless apologised “that the support you reasonably expected for [Miss Y] did not materialise in full from the college”;
• the Council had issued Miss Y’s recent EHC plan in April 2022. Therefore, the next annual review needed to be completed by April 2023.
21. The Council held Miss Y’s annual review meeting in mid-April 2023. It issued its decision to maintain Miss Y’s EHC plan without amendments in early May 2023.
22. Miss Y is still not receiving any SALT support.

Findings

Failure to secure the special educational provision in Miss Y’s EHC plan

23. The Council has a non-delegable duty to secure the provision in Miss Y’s EHC plan. To meet this duty, we expect councils to have systems in place to check provision is in place when there is a change in placement or when it issues a new or substantially different EHC plan. We also expect councils to check provision is in place through timely annual reviews, and to be ready to act on complaints that provision is missing. The Council did not meet those expectations, as follows.
• Miss Y moved to a new educational placement at the college in September 2022. However, the Council did not contact the college to confirm it had secured the provision in her EHC plan.
• Miss Y’s annual review was five months late. I address the late annual review further in paragraphs 28 and 29 below.
• Miss X complained to the Council in mid-January 2023. The Council appropriately contacted the college about the provision. This resulted in the college reinstating the 1:1 teaching and support from the female teaching assistant.
• However, I have seen no evidence the Council the contacted the college to confirm the outstanding SALT provision was in place after the college said it would arrange it. The Council should have kept appropriate oversight over the college to ensure it arranged the SALT without delay, or so it could step in and commission the provision itself.
24. The issues set out above meant Miss Y did not receive all of the special educational provision in her EHC plan. From September 2022 to early 2023, Miss Y did not have the support of the female teaching assistant. Shortly after Miss Y began attending the college, it stopped providing the 1:1 teaching and did not reinstate it until early 2023. Miss Y has not had any SALT since September 2022. This was fault. This had a negative impact on Miss Y’s learning and development and caused Miss X avoidable frustration.
25. Following a previous Ombudsman’s investigation, the Council now has a template letter to write to schools and colleges to check the provision in the child or young person’s EHC plan is in place. It sends the letter when it has issued a new or substantially different EHC plan. It introduced the letter after the events in this case. The letter is an effective way for the Council to assure itself it has met its duty to secure the provision in an EHC plan. It should also send the letter to schools or colleges when a child or young person has moved there for the first time. I have made a recommendation to that effect below.

Poor complaint response

26. The Council’s stage two complaint response to Miss X’s complaint about the missing provision was inaccurate, confusing and at times, contradictory. For example, the Council stated Miss Y had not missed out on the provision in her plan because the college had reviewed whether she needed 1:1 teaching before moving her to 1:3. That is incorrect, the Council has a duty to secure the provision in Miss Y’s EHC plan, regardless of her college’s view of whether that provision is appropriate. In addition, that argument ignores that Miss Y was also missing SALT and her female teaching assistant support. I also note that after reviewing Miss Y’s provision at the April 2023 annual review, the Council did not make amendments to the provision in her EHC plan; it continues to state Miss Y needs 1:1 teaching. Despite its earlier argument that it was not at fault, the Council later acknowledged that Miss Y did not receive the support Miss X had expected she would get, without recognising this was because it had not provided the provision in Miss Y’s EHC plan. The poor complaint response was fault and caused Miss X further undue frustration.

Delay in carrying out Miss Y’s annual review

27. The law is clear councils must carry out annual reviews within twelve months of the previous annual review, not the previous EHC plan. The annual review is comprised of the review meeting and the council’s subsequent decision to amend, maintain or cease the child or young person’s EHC plan.
28. The Council completed Miss Y’s previous annual review when it issued its decision to amend her EHC plan in December 2021. Therefore, it needed to complete the next annual review by December 2022. It did not do so until May 2023; five months later. The delay was fault. As set out above, the delay contributed to the Council’s failure to secure Miss Y’s provision. It also caused Miss X avoidable frustration.
29. It is concerning that the Council’s stage two complaint response gave Miss X the wrong information about when the annual review was due. In addition, I note the Council’s training presentation on annual reviews gives incorrect information on timescales. Where an annual review results in amendments to the child or young person’s EHC plan, a council should take no more than twelve weeks from the date of the review meeting to the date it issues the final amended plan. Therefore, if the Council’s staff follow the information in its training presentation and aim to send out draft amended EHC plans within fourteen weeks of the review meeting, they are likely to regularly take too long to issue amended EHC plans. The error in the presentation was fault.

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Agreed action

30. Within one month of the date of my final decision, the Council will take the following actions.
• Apologise to Miss X for the frustration she felt because of the Council’s failure to secure the provision in Miss Y’s EHC plan, the delay in carrying out Miss Y’s annual review, and the poor complaint response.
• Pay Miss X £200 in recognition of that frustration.
• Pay Miss X £3000 in recognition of the lost provision. That amount takes into account Miss Y’s needs, where she is in her in education and what provision was missing, in line with the Ombudsman’s guidance on remedies.
• Arrange the SALT provision in Miss Y’s EHC plan. It is for the Council to choose how to secure provision. Its options include supporting the college to arrange it or commissioning the support directly.
• Confirm to staff that they should use the template letter to schools and colleges (to confirm if the EHC plan provision is in place) in cases where the Council has named a new educational placement as well as in cases where it has issued a new or substantially amended EHC plan.
• Amend its annual review training presentation to ensure it accurately reflects the timescales set out in the SEND code of practice: 0 to 25 years and the recent caselaw (R (L, M, and P) v Devon County Council [2022] EWHC 493 (Admin)).
31. The Council will provide us with evidence it has complied with the above actions.

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Final decision

32. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.

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Investigator's decision on behalf of the Ombudsman