Summary: Mr B complained the Council did not secure the provision in his son’s, education, health, and care plan, delayed issuing a final plan, and did not tell him about his son’s personal budget. Mr B said C missed provision and this impacted his health and his behaviour. We found the Council delayed the education, health, and care plan review process and did not secure the physiotherapy provision in C’s plan. The Council will make a financial payment to Mr B to remedy the injustice to him and his son and make service improvements.

The complaint

1. The complainant, who I will refer to as Mr B, complained the Council did not secure the provision in his son’s, C’s, education, health, and care (EHC) plan, delayed issuing C’s final EHC plan and did not tell him about C’s personal budget. He also complained the Council did not source the correct autism spectrum disorder (ASD) assessment for C and did not arrange for him to be assessed by an educational psychologist or an occupational therapist.
2. Mr B said C missed provision and this impacted his health and his behaviour.

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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. 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)
5. We cannot investigate a complaint where the body complained about is not responsible for the issue being raised. (Local Government Act 1974, section 24A(1), 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. Mr B’s concerns about C’s education provision are ongoing. I investigated the Council’s actions up to March 2023 when it issued its final complaint response and C’s final amended EHC plan. Mr B can make a new complaint to the Council if he is unhappy with its actions from April 2023 onwards.
9. I exercised discretion to investigate whether the Council secured physiotherapy support in line with C’s EHC plan from 2017 because Mr B said he only recently became aware this has not been in place.
10. I did not investigated whether the Council sourced the correct ASD assessment. The child and adolescent mental health service (CAMHS) completed the assessment, not the Council. Therefore, CAMHS was responsible for the assessment and its outcome, not the Council.

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How I considered this complaint

11. I considered:
• Mr B’s complaint and the information he provided;
• documents supplied by the Council;
• relevant legislation and guidelines; and
• the Council’s policies and procedures.  
12. Mr B and the Council had the opportunity to comment on a draft decision. I considered their comments before making a final decision.

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What I found

Legislation and Guidance

13. 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.
14. Statutory guidance ‘special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC plans. The guidance is based on the Children and Families Act 2014 and the special educational needs (SEN) regulations 2014.
15. The EHC plan is set out in sections, including:
• 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. 
16. We cannot direct changes to the sections about education or name a different school. Only the SEND tribunal can do this.
17. 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)
18. EHC plans should be used to actively monitor children and young people’s progress towards their outcomes and longer term aspirations. They must be reviewed by the Council as a minimum every 12 months.
19. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
20. 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, including copies of any evidence to support the proposed changes within four weeks of the annual review meeting. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
21. 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 EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
22. A personal budget is an amount of money identified by the council to deliver provision set out in an EHC plan where the parent or young person is involved in securing that provision. Councils must provide information on personal budgets as part of the Local Offer. The child’s parent or the young person has a right to request a personal budget when the Council has completed an EHC needs assessment and confirmed that it will prepare an EHC plan. They may also request a personal budget during a statutory review of an existing EHC plan.

What happened

23. This chronology includes key events in this case and does not cover everything that happened.
24. C lives with his father, Mr B. Mr B’s partner is Mrs E. C has a diagnosis of Downs Syndrome and associated learning difficulties. He has an EHC plan.
25. In January 2021, the Council issued a final amended EHC plan for C naming School 1, a special school for students with severe and complex learning difficulties. Provision in section F of C’s plan included:
• Hydrotherapy and outdoor play sessions provided by school staff with support from physiotherapy and orthotics.
• Regular sessions with a speech and language therapist.
26. These provisions were in his EHC plans from 2018.
27. Mr B appealed against the school named in section I of the plan. In September 2021 the SEND tribunal upheld the Council’s decision to name School 1 in C’s EHC plan and dismissed the appeal. In October 2021, C joined School 1.
28. The SALT service observed C to assess his needs in October 2021.
29. School 1 held an EHC plan review in January 2022. Mr B said he and C were happy with School 1.
30. CAMHS assessed C in May 2022 because of Mr B’s concerns about challenging behaviour. CAMHS decided to offer C an autism spectrum disorder assessment.
31. In June 2022, Mr B contacted the Council and raised concerns about C’s education provision. He said he had spoken to the speech and language therapy (SALT) service, and it said it had not seen C since December 2021. He told the Council he was unhappy with this because he was told C would get regular SALT at School 1.
32. The Council contacted the SALT service. It advised it spoke with School 1 about C when he joined the school and staff were happy with his progress and felt confident using strategies to support his communication. It said it had agreed with Mr B to review C’s communication skills in the summer term.
33. School 1 confirmed C received:
• Three weekly speech and language sessions with staff trained to deliver these.
• Daily sounds as part of morning routine focusing on speech.
• Reading and comprehension questions once a week to support understanding.
• Access to symbols, aided language displays and sound boards during the school day
• Access to many different communication methods to aid speech.
34. School 1 said it felt C was doing well in this area and said if it had any concerns, it would have raised these with the SALT service.
35. The Council also contacted the educational psychology service for an update. The service said it last assessed C in April 2013.
36. The SALT service reviewed C in July 2022. The service provided Mr B and School 1 with strategies targets for C and said it would review his progress in autumn. The service told Mr B to contact it if it he had any concerns.
37. The Council held a child in need meeting for C in October 2022. Mr B raised concerns that C was not receiving regular SALT as stated in his EHC plan. He said C had only seen the SALT service once between October 2021 and April 2022. School 1 said class teachers provided C with three speech and language sessions each week. It said these sessions included resources provided by the SALT service and it consulted with the service about how the sessions were going.
38. The SALT service reviewed C in October 2022. The therapist assessed his progress and identified strategies to support him. The therapist said the service would review C in the spring term 2023. It said C’s family or his school could ask for additional advice when needed.
39. An annual review of C’s EHC plan was held in November 2022. Information was provided by CAMHS, SALT, School 1, C, and C’s parents. Mr B said he did not feel C’s EHC plan had been successful. He said it was inaccurate, out-of-date, did not address the key problems and lacked detail. He said he thought there was a shortfall in provision for C’s needs specifically SALT, physiotherapy, and behaviour support. School 1 told Mr B he would have to contact physiotherapy himself as it did not deliver this. Mrs E said Mr B asked the Council for details of C’s personal budget.
40. At a child in need meeting for C in December 2022, the minutes note C needed physiotherapy to avoid his knees coming out of place and this was to be amended in his EHC plan.
41. In January 2023, CAMHS assessed C for autism spectrum disorder and did not give him this diagnosis. It offered Mr B and Mrs E sessions on challenging behaviour, which they accepted. CAMHS told the Council and School 1.
42. The Council held a child in need meeting in January 2023. Mr B said he was unhappy that C had to attend School 1. The Council told him he would need to raise this with the SEND tribunal. Mr B raised concerns about C’s SALT and physiotherapy provision. He said he wanted C to receive weekly sessions with a qualified speech and language therapist as he had at his previous educational placement.
43. Mr B complained to the Council in January 2023 that his son’s needs were not being met. He said the Council failed to:
• carry out an assessment of C’s needs specific to the Downs Syndrome learning profile.
• consult an educational psychologist.
• consult an occupational therapist.
• consult a specialist education provider, School 2.
• take account of his views, wishes and concerns.
• send proposed amendments to C’s EHC plan when it sent him its notice to amend.
44. He also complained School 1 could not meet C’s needs and physiotherapy had not contacted him about missed provision.
45. The Council sent Mr B a notice to amend C’s EHC plan in February 2023 and its proposed amendments later that month.
46. The Council responded at stage one of its complaint procedure in February 2023. It said in September 2021 the SEND tribunal ordered the Council to name School 1 in C’s EHC plan because it decided the school could meet his needs. It told Mr B he could have appealed against the tribunal’s decision. It apologised for its delay issuing him with its notice to amend C’s EHC plan following his November 2022 EHC plan review. It said it had consulted his preferred school, School 2, and was awaiting its response. With regards C’s EHC provision, it said it would raise this with School 1.
47. In March 2023, Mr B told the Council it had not addressed all parts of his complaint.
48. The SALT service reviewed C’s progress in March 2023 and set new targets.
49. The Council contacted School 1 about Mr B’s complaint. It asked School 1 if it had made any referrals for C to other agencies, specifically, educational psychology, occupational therapy, and physiotherapy. School 1 advised it had no concerns about C’s needs being unmet and commented that he was doing ‘extremely well’. It said it did not see any need for C to see an educational psychologist and his teacher had not raised any need for him to have occupational therapy support. It advised he was going to be reviewed by SALT and his mother had arranged for him to see physiotherapy.
50. The Council responded at stage two in March 2023. The Council confirmed:
• the CAMHS learning disability team completed an ASD assessment and did not give C an ASD diagnosis.
• C’s mother contacted the physiotherapy service to arrange an appointment for C.
• School 1 did not think an educational psychologist appointment was appropriate.
• Mr B had not raised concerns previously about occupational therapy involvement.
• C continued to make progress with his communication and that if the school had any concerns, it would raise these with the SALT service. It said the service was due to review C that month.
51. The Council said C’s needs had not changed significantly and it considered School 1 a suitable setting for C and one that could meet his needs.
52. The Council issued C’s final amended EHC plan in March 2023. It sent Mr B a copy of the plan and information about how to appeal if he disagreed with sections B, F, or I.

Council response to enquiries

53. The Council sent a link to its local offer on its website. This includes information about SEN personal budgets and how to request one. It said personal budgets were discussed at C’s EHC plan review. It said it had not received a request from Mr B for a personal budget for C.
54. The Council provided information from the NHS. The NHS advised physiotherapy closed C’s case in 2017 and no concerns had been raised by C’s family or his school since. It said it had not received any EHC plan review invites and therefore the content of C’s plan and its appropriateness was not established. It said it had received a re-referral for C and it would review C and demonstrate a new exercise program to staff at School 1. The NHS confirmed C had never been open to occupational therapy.

Analysis

55. C’s January 2021 EHC plan stated he needed to have regular sessions with a speech and language therapist. When Mr B raised concerns with the Council that SALT was not being delivered, the Council contacted the SALT service and School 1. School 1 confirmed it was delivering weekly SALT sessions. As C’s EHC plan did not specify the frequency of SALT sessions or the qualifications of the person delivering them, I cannot find fault with the Council because SALT was delivered.
56. C’s ECH plans from 2018 to 2023 included hydrotherapy and outdoor play sessions provided by school staff with support from physiotherapy and orthotics in section F. However, C was closed to physiotherapy in 2017 and the service was not involved again until 2023. The Council had a duty to secure the special educational provision in part F of C’s EHC plan and not doing so was fault. As C’s ECH plan did not quantify the support physiotherapy was to give C’s schools, I cannot say if C lost provision. Instead, the injustice caused by the Council’s fault is the uncertainty about whether school staff would have supported C differently if they had input from physiotherapy.
57. Occupational therapy was not part of C’s 2021 EHC plan. Therefore, the Council did not have a duty to secure occupational therapy for C. If Mr B disagrees with the Council’s decision not to include occupational therapy in C’s EHC plan, he can appeal to the SEND tribunal next time his appeal rights are engaged.
58. Assessment by an educational psychologist is only required when the Council is carrying out an EHC needs assessment. It is not required when a plan is reviewed. Therefore, there was no requirement for the Council to arrange for C to be reassessed by an educational psychologist. The Council sought advice from School 1 about whether C needed to see an educational psychologist, and its professional judgement was that he did not. Mr B can ask the Council to reassess C’s needs and if the Council agrees, it must seek advice from an educational psychologist.
59. Where a council proposes to amend an EHC plan, it must tell the child’s parent within four weeks of the annual review meeting. The Council should have told Mr B it planned to amend C’s EHC plan and sent its proposed amendments by the end of November 2022. The Council did not send these until February 2023, a delay of over two months. This delay was fault. The timescale from the annual review meeting to a council issuing a final EHC plan should be no longer than 12 weeks. The annual review was held in November 2022. Therefore, the final amended EHC plan should have been issued in January 2023. The Council issued the plan in March 2023, a delay of nine weeks. This delay was fault. These delays did not mean C missed out on provision because the provision added to the EHC plan was already in place. However, the delays caused Mr B avoidable frustration.
60. The Council evidenced that it provides information about personal budgets as part of its local offer on its website and both the Council and Mrs E confirm this was discussed at C’s EHC plan review. However, the minutes of the meeting do not record what was discussed. This was fault. The Council said it did not receive a request from Mr B for a personal budget for C, but Mrs E said he did. I cannot say whose recollection is correct because the discussion is not recorded, which was fault.

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Agreed action

61. Within one month of the final decision, the Council will:
• Pay Mr B £500 for the uncertainty created by the Council’s failure to secure physiotherapy input.
• Pay Mr B £300 for the frustration caused by the Council’s delays in the EHC plan review process.
• Review procedures to ensure it meets it duties around EHC plan timescales.
• Issue schools with guidance about inviting all professionals/services named in EHC plan to review meetings and ensuring these meetings are minuted.
62. The Council should provide us with evidence it has complied with the above actions.

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Final decision

63. I have completed my investigation and uphold Mr B’s complaint. Mr B and C were was caused an injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman