Summary: Miss X complained the Council has not provided the provision specified in her nephews, Mr Y’s Education, Health and Care Plan (EHCP). She also complained communication from the Council has been poor. Miss X said Mr Y has missed therapy, affecting his mental health. There was fault by the Council. The Council should have written to Miss X to tell her it would maintain the plan, after the annual review. Miss X has not suffered any significant injustice because of this fault.

The complaint

1. Miss X complained the Council has not provided the provision specified in her nephews, Mr Y’s Education, Health and Care Plan (EHCP). She also complained communication from the Council has been poor. Miss X said Mr Y has missed therapy, affecting his mental health.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with a Council’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)
4. 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.
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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. I have investigated matters in this case for the 12 months prior to Miss X complaining to the Ombudsman in July 2023. I have seen no reason to exercise discretion to consider events before this time. I reference events prior to this for context in this matter.

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How I considered this complaint

7. I read Miss X’s complaint and spoke to her about it on the phone.
8. I considered information provided by Miss X and the Council.
9. 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

Background information

10. A child with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
11. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
12. The council has a duty to secure the specified special educational provision in an EHCP 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)
13. The procedure for reviewing and amending EHCPs is set out in legislation and government guidance.
14. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHCP. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
15. Where a council proposes to amend an EHCP, 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)
16. 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 EHCP as soon as practicable and within eight weeks of the date it sent the EHCP and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
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 EHCP. The right of appeal is only engaged when the final amended plan is issued.
18. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHCP we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407)
19. Miss X previously put in complaints to the Council about Mr Y’s care. She appealed to the Tribunal in 2021. Miss X also raised complaints with the Ombudsman.

What happened

20. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
21. Mr Y has complex additional needs.
22. The Council issued Mr Y’s EHCP in May 2021 after a Tribunal decision.
23. In July 2022, the Council confirmed to Mr Y’s college it would fund the Occupational Therapy (OT) and Speech and Language Therapy (SALT) specified in his EHCP.
24. Mr Y returned to college in September 2022.
25. Miss X appealed to the SEND Tribunal in December 2022. She disagreed with the Councils understanding of Mr Y’s needs, his provision and his placement. The Tribunal booked the hearing for December 2023.
26. Miss X complained to the Council in January 2023. She complained the college was not providing the SALT and OT mentioned in Mr Y’s EHCP.
27. The Council responded in February 2023 and did not uphold Miss X’s complaint. She asked the Council escalate her complaint to stage two.
28. The college held Mr Y’s annual review in February 2023. The review confirmed staff at the college were trained to meet Mr Y’s needs. The college evidenced it was providing the SALT and OT to Mr Y. The Council noted Miss X wanted more detail, but it was satisfied with the information the college provided.
29. The Council provided its stage two response to Miss X in March 2023. The Council confirmed it was satisfied the college provided acceptable provision for Mr Y. The Council advised Miss X it did not amend Mr Y’s plan because it was subject to a continuing Tribunal case.
30. Miss X wrote to her Member of Parliament, who contacted the Council, in May 2023. The Council response to the MP explained the Council received several complaints from Miss X over many years. It said there was on continuing Tribunal case and some of the complaint was appropriate to deal with at the Tribunal.
31. Miss X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Miss X would like the Council to put the SALT and OT provision in place.
32. In response to my enquiries the Council stated it is now directly funding the OT and SALT as Mr Y did not return to college in September 2023. The Council advised there is an ongoing Tribunal case to address issues with Mr Y’s EHCP.

My findings

EHCP provision

33. The Council is responsible for ensuring Mr Y received the provision named in his EHCP. The Council spoke to the college about provision on several occasions. This was to ensure college provided the OT and SALT.
34. The annual review in February 2023 also confirmed the college provided the OT and SALT named in the EHCP. This satisfied the Council the college provided the therapy it needed to.
35. Miss X challenged the Council and the college for more evidence. She complained to the college. I have not included any of the college complaint investigation in this decision. The Ombudsman does not investigate the actions of colleges.
36. The Council confirmed Mr Y received the therapy set out in his EHCP in communication with the college and in the annual review. The Council was not at fault.

Failed to communicate after the annual review

37. Legislation sets out the Council’s responsibility to tell a young person, parent or carer what it intends to do within four weeks of the annual review.
38. The Council explained, due to the continuing Tribunal, it sent any information about the EHCP to the legal organisations dealing with the Tribunal.
39. The Council did not confirm to Miss X or Mr Y what action it was taking after the annual review in February 2023. Legislation states it should have done this. Despite any Tribunal matters, the Council should have told Miss X it would maintain Mr Y’s EHCP. This is fault. However, Miss X was already progressing with an appeal to amend the EHCP to the Tribunal. The Council not sending the letter to Miss X telling her of its decision to maintain Mr Y’s plan did not cause her any significant injustice.

Communication

40. The continuing Tribunal impacted this case. Different matters needed the Council to communicate with different organisations. The Council has shown when Miss X contacted it, it responded appropriately. The Council was not at fault.

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Final decision

41. I have completed my investigation. I have found fault by the Council, but this did not cause a significant injustice to Miss X or Mr Y.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman