Summary: Mrs X complained on behalf of her son, Y, the Council failed to provide some provision set out in Y’s Education, Health and Care (EHC) Plan and failed to provide alternative education. The Council was at fault for not providing Y’s speech and language provision, not making a decision on a reassessment of Y’s needs and delay in making a decision to maintain Y’s EHC Plan following the annual review. The Council will apologise, pay Mrs X £1000 for the lost provision and uncertainty caused and put service improvements in place for the faults identified.

The complaint

1. Mrs X complained on behalf of her son Y, the Council failed to provide provision set out in his Education, Health and Care (EHC) Plan. Mrs X also said Y was out of education between September 2022 and December 2022. As a result, Mrs X says her son Y missed out on provision and education to which he was entitled causing him distress and health problems.

Back to top

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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
4. 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
5. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
6. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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.
8. 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)
9. 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.

Back to top

What I have and have not investigated

10. Mrs X complained to us in late June 2023 about events starting in September 2021. Mrs X had been aware of this for more than 12 months and therefore part of her complaint is a late complaint. There are no good reasons to exercise discretion to investigate events back to September 2021 because I am satisfied Mrs X could have complained sooner. I will consider events from Y’s annual review in March 2022.
11. Y had a right of appeal to the SEND tribunal when his EHC Plan was issued in early September 2022 and again in November 2022. It was reasonable for Y to appeal against the named placement in the September 2022 Plan, although he did not use that appeal right. I have not investigated this matter further for the reasons set out in paragraph five.
12. Y exercised his right of appeal against the November 2022 plan in mid-November 2022 against the placement named in his plan. Therefore, I cannot consider Y’s complaint about the placement, which is a consequence of the named placement, during the appeal period between early September 2022 and late February 2023 for the reasons set out in paragraph six.
13. I have investigated the period from early March 2022 to late February 2023 when the Council issued its stage 2 response.

Back to top

How I considered this complaint

14. I considered:
• the information Mrs X provided and spoke to her on the telephone;
• the information the Council provided in response to my enquiries;
• relevant law and guidance, as set out below; and
• our guidance on remedies, published on our website.
15. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

Back to top

What I found

Relevant law and guidance

EHC Plans

16. A child or young person with special educational needs (SEN) may have an Education, Health and Care (EHC) Plan. This document sets out the child or young person’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. Section I is the name and/or type of school/college. Section F sets out the special educational provision needed by the child or young person.
17. There is a right of appeal to the SEND tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.

Maintaining the EHC Plan

18. 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).
19. 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 its legal duty. At a minimum we expect it 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.
20. The courts have established that we cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended). This means that if a young person is not attending college, and we decide the reason is linked to or is a consequence of a parent or young person’s disagreement about the special educational provision or educational placement in the EHC Plan, we cannot investigate a lack of special educational provision or alternative educational provision.
21. The period we cannot investigate starts from the date the council makes an appealable decision. If the parent or young person goes on to appeal, the period we cannot investigate ends when the tribunal comes to its decision. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407 and R (on application of Milburn) v Local Govt and Social Care Ombudsman [2023] EWCA Civ 207)

Reviewing EHC Plans

22. 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.
23. Within four weeks of a review meeting, the council must notify the child’s parents or young person 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)
24. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
25. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.

EHC needs reassessment

26. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
27. The council can refuse a request for a reassessment if it does not think it is necessary, for example because it does not feel a child or young person’s needs have changed significantly.
28. The council must tell the child’s parent or the young person whether it will complete an EHC needs reassessment within 15 calendar days of receiving the request. If the decision is not to reassess, the council must also provide information about the right to appeal that decision to the tribunal.

What happened

29. Y lives with his family and has special educational needs. He had an EHC Plan since 2017.
30. Between September 2021 and July 2022 Y attended College 1. College 1 was named in Y’s EHC Plan issued in late October 2021. The key part of Section F of this Plan included:
• Y’s Speech and Language Therapist (SALT) would contact College 1 and Y’s mother, Mrs X about Y’s progress, current concerns to determine targets, provide advice to educational staff on the techniques needed and provide at least two demonstration sessions of at least 30 minutes per term (autumn, spring, summer) of the activities to work on the targets. The frequency and length of the demonstration sessions would be reviewed each term.
• College 1 would implement one to one sessions to focus on SALT targets at least one session per week for at least 30 minutes to work on social skills, in addition to at least one session per half term to practise and discuss strategies for retaining information/organising academic work. The frequency and length of the sessions would be reviewed each term in accordance with Y’s needs and preferences and the College would contact the SALT if Y’s needs changed.
31. Mrs X emailed the Council in January 2022 and said College 1 was not taking her concerns about Y’s mental health seriously. The Council contacted College 1 about Mrs X’s concerns. In February 2022 College 1 emailed the Council and said it was supporting Y in College 1.
32. In early March 2022 Y’s annual review was held. This was attended by Mrs X and another family member, College 1 including Higher Needs Manager and Tutor, EHC Plan coordinator, Preparing for Adulthood (PfA) assessment coordinator and SEND information, Advice and Support (SENDIAS) manager. The annual review discussion included:
• Y had counselling from October 2021 to support his mental health and attended regularly. The counselling had stopped that week but College 1 would consider reinstating it;
• Y had attended speech and language therapy (SALT) sessions with a private SALT therapist College 1 had arranged;
• Y raised a concern with the private SALT therapist and the therapist sent it to the safeguarding team. Y’s family had a meeting with the safeguarding officer;
• the private SALT therapist reported to College 1 Y’s speech and language was not Y’s primary need and Y needed more help with his mental health and SALT could be provided later;
• Mrs X was not made aware of this SALT provision change by the SALT therapist;
• SALT therapist spoke to staff and gave techniques for them to continue with;
• Mrs X said Y’s EHC Plan was out of date and asked for a reassessment;
• College 1 placement was suitable; and
• the action agreed was to explore reinstating counselling for Y, organise a separate meeting with the Council to assess Y’s existing EHC Plan and make a referral to social care for more support for Y outside College 1.
33. In mid-March 2022 a representative, Representative 1, supported Mrs X and Y and emailed the Council about the annual review and asked the Council to contact the educational psychology (EP) service for advice on Y. The Council contacted the EP.
34. Representative 1 also told the Council Y’s college counselling sessions had restarted and would be in place until the end of the academic year.
35. The EP contacted the Council and said from the information the Council provided the correct support had been identified for Y and was being sought and were not sure what further EP involvement would add. The EP suggested a referral to mental health services.
36. In late April 2022 the Council sent Mrs X a decision letter. It explained its decision not to amend Y’s EHC Plan at that time and said it would maintain Y’s EHC Plan. The letter gave the right of appeal to the SEND tribunal.
37. In Summer 2022 the Council had a face-to-face meeting with Mrs X and Representative 1 where Mrs X expressed an interest in Y attending College 2 from September 2022. College 2 confirmed a placement for Y, three days a week. However, following two transition days Y became anxious about attending College 2 and said he wanted to attend College 1 again.
38. In August 2022 Mrs X also expressed an interest in an online gaming academy, Academy 1, where Y attended summer camp sessions and she asked the Council to fund this alternative provision for Y.
39. In early September 2022 Y spoke to the Council about his goals, his interest in gaming and his wish to get English and Maths qualifications. The Council asked Y to consider College 2 and the Council said it would contact Academy 1 and College 2.
40. The next day the Council issued Y’s final amended EHC Plan. This named College 2 in Section I. It told Y of his right of appeal to the SEND tribunal on the placement and provision. Y did not exercise his right at that time.
41. Y did not attend College 2 due to anxiety. Between mid-September 2022 and mid-November 2022 Mrs X and the Council considered alternative education placements for Y.
42. In mid-November 2022 the Council issued Y’s final amended EHC Plan. This named College 1 in Section I of the EHC Plan. The Council also sent Mrs X and Y the appeal rights to the SEND tribunal and in early December 2022 Mrs X appealed on Y’s behalf about the placement named in Section I.
43. In late November 2022 Mrs X raised a formal stage 1 complaint with the Council. She said the Council failed to secure Y’s provision set out in his EHC Plan in line with its Section 42 duties. Mrs X also said it made the placement decision without considering relevant information.
44. In mid-December 2022 the Council sent Mrs X its stage 1 response. It said:
• it carefully considered Y’s placement and considered a local mainstream college would be best;
• Y was offered a place at College 2 but he withdrew from the course and as an alternative College 1 offered a full package of support including counselling and SALT;
• it made referrals to adult care services and adult mental health services to consider extra support; and
• it gave alternatives to contest Y’s final amended EHC Plan.
45. In mid-January 2023 Mrs X told the Council she was unhappy with the Council’s stage 1 response and escalated it to stage 2.
46. In early February 2023 the Council sent Mrs X its stage 2 response. It said:
• it had considered Academy 1 and extra online maths and english provision but decided it would not meet Y’s needs. It said it would be incompatible with efficient use of public resources;
• a local mainstream college would best support Y in the long-term and Y should visit local mainstream colleges and put in an application for September 2023;
• Mrs X had lodged an appeal with the SEND tribunal service about Y’s placement and it would respond to the tribunal in line with statutory timescales; and
• Mrs X could complain to us if she remained unhappy.
47. In June 2023 Mrs X remained unhappy and complained to us.

My findings

EHC Plan review and reassessment request

48. The Council held Y’s annual review meeting in early March 2022. This was within 12 months of Y’s previous amended final EHC Plan which was within the statutory timescales so was not fault.
49. Mrs X asked for a reassessment at the annual review. The Council should have told Mrs X or Y whether it would complete an EHC needs reassessment within 15 calendar days of receiving the request and given information about the right of appeal to the tribunal. Following Mrs X’s request the Council contacted the EP and gave extra information requested by the EP which was appropriate. The EP decided no involvement was needed at that time. There is no evidence the decision not to reassess was given to Mrs X or Y. Also Y’s rights of appeal were not given which was fault and caused uncertainty. It also delayed Y’s right of appeal.
50. Within four weeks of the annual review meeting, the Council should have told Mrs X and Y of its decision to maintain, amend or discontinue the EHC Plan. The Council issued the decision letter to maintain Y’s EHC Plan in late April 2022. This was a delay of four weeks and was fault causing Mrs X uncertainty. The fault also caused a delay in Y getting his appeal rights if he was unhappy with the provision and school named in the plan. However I do not find this caused Y an injustice as he did not use this right when he received it.

SALT provision

51. College 1 commissioned a private SALT which was appropriate. Y received two one to one SALT sessions before the annual review in March 2022. Y’s individual sessions were stopped by the private SALT due to a safeguarding concern. The Council were aware of this in Y’s annual review in early March 2022. This was correct in the short-term but the Council should have reviewed this with the College to ensure Y’s specialist provision was reintroduced appropriately. There are no records the Council made any further enquiries with the College about this provision. Additionally I have seen no evidence Y received one to one SALT sessions between March and July 2022, any SALT input in the classroom environment or any SALT review of Y’s progress or targets. This was fault and meant Y did not receive the provision he was entitled to.
52. At the start of the September 2022 academic year a college place was available to Y. First at College 2 and then at College 1 for Y to attend. Both colleges could provide Y’s SALT provision. Due to Y’s anxiety he did not attend college between September 2022 and December 2022 and did not access his SALT provision. This was his decision and did not cause Y an injustice.

Back to top

Agreed action

53. Within one month of the final decision the Council will apologise and pay Mrs X £200 for the uncertainty caused by not giving a decision on the reassessment of Y’s needs and uncertainty caused by the delay in issuing the decision letter to maintain Y’s EHC Plan following the annual review.
54. Within one month of the final decision the Council will apologise and pay Mrs X £800 for Y’s lost SALT provision between early March 2022 and the end of the academic year in late-July 2022.
55. Within one month of the final decision the Council will remind relevant staff to:
• send reassessment decisions and appeal rights within 15 days of the request;
• send a decision letter on whether to amend, discontinue or maintain a EHC Plan within four weeks of an annual review in line with the statutory guidance; and
• review provision in a timely way where it is aware specialist provision specified in an EHC Plan is not in place.

Back to top

Final decision

56. I have completed my investigation finding fault causing injustice. The Council has agreed to take action to remedy the injustice caused and prevent reoccurrence of the faults.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman