Summary: Ms X complains the Council delayed issuing a final amended Education Health and Care Plan for her son in 2022 and 2023 and failed to ensure his 1:1 support and occupational therapy provision was provided between September 2022 and April 2023 causing distress and uncertainty. We found fault by the Council as it delayed issuing a final amended Education Health and Care Plan within statutory timescales in 2022 and 2023. The Council failed to ensure Y received the 1:1 provision specified in his Education Health and Care Plan between September 2022 and April 2023. And the Council failed to amend the Education Health and Care Plan to reflect its intention to remove direct occupational therapy sessions. We have recommended a suitable remedy so have completed our investigation.

The complaint

1. I have called the complainant Ms X. She complains there were failings in the way the Council dealt with her son Y’s Education Health and Care Plan (EHC Plan). In particular Ms X says the Council:
• Delayed issuing a final amended EHC Plan following annual reviews in February 2022 and March 2023.
• Has failed to ensure the 1:1 provision and the Occupational Therapy (OT) provision specified in Y’s EHC Plan has been provided from September 2022 to April 2023.
• Holds her responsible for ensuring the OT provision listed in the EHC Plan is delivered as she is required to take Y to a specialist OT consultancy. Ms X says the provision needs to be delivered outside of school hours due to the specialist equipment needed. Ms X believes that as the Council is responsible for ensuring the provision it should be providing transport and associated costs. But the Council has refused to reimburse her travel expenses.
2. Ms X says the lack of 1:1 support and OT provision has impacted on Y causing distress to him and the family. And due to working and childcare commitments it has been difficult to comply with the Council’s demands to provide transport for OT 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 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)
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
6. The law says we cannot normally investigate a complaint when someone can appeal 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 appeal. (Local Government Act 1974, section 26(6)(a), as amended)
7. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
8. 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.
9. 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)

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What I have and have not investigated

10. I have investigated Ms X’s concerns about a delay in issuing a final amended EHC Plan after annual reviews in February 2022 and March 2023. I have also investigated Ms X’s concerns about the lack of 1:1 support to Y and OT provision between September 2022 and April 2023. And the Council’s decision not to fund transport for Y to attend the OT sessions.
11. I have not investigated any concerns Ms X may have about the content of the final amended EHC Plan issued in September 2022 as Ms X could have exercised her right of appeal to the SEND Tribunal. I consider it reasonable to expect Ms X to use that right of appeal because only the SEND Tribunal can instruct the Council to make changes to the EHC Plan.
12. I have not investigated any concerns Ms X may have about matters after August 2023, or the content of the final amended EHC Plan issued in August 2023. This is because Ms X has exercised her right of appeal to the SEND Tribunal which is the appropriate way to challenge her concerns about the EHC Plan and provision. This means Ms X’s complaint about it, and the related matters, fall outside our jurisdiction. So, we cannot investigate Ms X’s complaints about the August 2023 EHC Plan.

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How I considered this complaint

13. I spoke to Ms X and considered the information she provided with her complaint. I made enquiries with the Council and considered its response along with relevant law and guidance.
14. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
15. 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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What I found

Law and guidance

Education, Health and Care Plans (EHC Plans)

16. 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. We cannot direct changes to the sections about education or name a different school. Only the SEND Tribunal can do this.
17. Parents have a right to appeal to the SEND Tribunal if a council refuses to carry out an assessment, or they disagree with the special education provision, or the school named in the child’s EHC Plan. Parents also have the right of appeal following an annual review on decisions to amend or cease a plan.
18. The Council is responsible for making sure that arrangements specified in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.

Due diligence

19. The Ombudsman does recognise 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. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:
• 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;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.

Arrangements for reviewing an EHC Plan

20. Councils must review EHC Plan’s at least every 12 months. A council can delegate responsibility to a school to arrange the annual review.
21. Councils must decide whether to maintain the EHC Plan in its current form, amend it, or cease to maintain it within four weeks of the review meeting. The Council should issue the final EHC Plan or decide not to amend the EHC Plan at all as soon as practicable and within eight weeks of the date it sent the plan to the parents/young person with the proposed amendments (so 12 weeks in total from the annual review meeting). Decisions to amend or cease a plan can be appealed to the SEND Tribunal.

Events leading to the complaint

22. What follows is a brief chronology of key events. It does not contain all the information I reviewed during my investigation.
23. Y has special educational needs with specific learning difficulties, complex speech, and language needs. He has been diagnosed with Downs Syndrome and autism. Previously Y lived in a different council area where he was issued with an EHC Plan in 2015.
24. Following the family’s move to the borough, Y attended a mainstream primary school.

Annual review February 2022

25. The Council carried out Y’s annual review in February 2022. It advised Ms X in February 2022 it intended to amend Y’s EHC Plan. The Council issued the draft amended EHC Plan in June 2022 and the final amended plan in September 2022. The EHC Plan proposed Y would attend a specialist provision for his secondary education starting in September 2022.
26. The Council accepts it issued the draft and final plan outside the time frames required by the regulations and has apologised to Ms X.
27. In commenting on the complaint, the Council says it is working hard to ensure amendments made to EHC Plans are made without delay. It says it had a backlog of finalising reviewed plans in 2022. It has made steps to close the gap between review and issuing final plans by recruiting and training more staff who can finalise and sign plans. This has helped to reduce the backlog.
28. Y started at the specialist secondary school in September 2022.

My assessment

29. Y’s annual review took place in February 2022, and the Council issued a decision it intended to amend the EHC Plan within the 4 weeks required. The Council should have issued the draft EHC Plan in March 2022 and the final EHC Plan by May 2022. But it did not issue a draft amended EHC Plan until June 2022 and final EHC Plan until September 2022 which was outside the timescales laid down in the Code.
30. The delay is fault by the Council which it has recognised. This has caused an injustice to Ms X through stress and uncertainty as to Y’s provision. I recommend the Council should apologise to Ms X. It should also make a financial payment of £250 to her in recognition of the distress and uncertainty caused by the delay in issuing a final amended EHC Plan following the 2022 annual review.

Annual Review March 2023 and Ms X’s complaints to the Council

31. The Council held an annual review and issued a notice of intention to amend the EHC Plan in March 2023.
32. Ms X complained to the Council in March 2023 the Council failed to make the provision in Y’s EHC Plan. This was because Y was supposed to have 1:1 teaching assistant (TA) support through the school day and OT provision with an OT consultancy. But the 1:1 provision ceased in September 2023 when Y started at the specialist school. It was confirmed at the February 2023 review the Council was no longer funding the support and Ms X not told why.
33. Ms X said she had raised that Y had not had the OT input at the annual review. The Council had arranged six sessions at the OT consultancy alongside some support for home and school. The Council told Ms X to make arrangements to attend the sessions and refused her request for funded transport to the OT consultancy.

The Council’s response to Ms X’s complaints

1:1 support

34. The Council says Y did receive 1:1 provision while at the mainstream primary school and it accepted he needed the level of support to access education. The Council carried out the annual review and issued the final amend EHC Plan in September 2022 while Y was still on roll at the primary school. Y’s transition to the secondary school also started in September 2022. The primary school reported Y to be working at key stage level 3/4, so the secondary school placed him in an equivalent year group in September 2022. The secondary school has small classes and a high teacher/pupil ratio. The Council says the understanding with the secondary school was that following Y’s transition to the school it would ask the Council for support/funding if it thought Y required additional support. But the school did not approach the Council for any support in Autumn term 2022.
35. The Council believes that during Y’s transition to the secondary school Ms X was aware Y would not have the 1:1 provision in the specialist placement in way he did when attending the mainstream primary school. And Ms X spoke to a senior SEN caseworker on 29 September 2022 about this. During the call they discussed several points including Y’s 1:1 provision. It was noted that although Y has 1:1 provision this was when at a mainstream primary school. And it was no longer needing to access it now in a specialist school with smaller class sizes.
36. The Council’s record of the telephone call with Ms X notes Ms X was happy with this although she did raise concerns about lunchtime supervision. It was agreed the EHC Plan would be amended at Y’s next review and to remove reference to the additional support. Ms X denies she said she was happy with the dropping of Y’s 1:1 support.
37. The Council confirms that during the 2023 annual review in February 2023 the secondary school asked the Council for funding to support Y as he was not able to work at the year 3/4 level. The secondary school could not change his peer group at this stage in the academic year so asked for funding to support him for the rest of the academic year. The Council agreed the additional funding and advised Ms X the school would decide how best to support Y starting in April 2023 whilst ensuring it provided the provision in plan. The school would then place Y in an alternative peer group more suited to his needs and abilities from September 2023.
38. The Council issued a draft EHC Plan in May 2023 following the March 2023 annual review. It carried out an interim review in July 2023 and issued a revised draft plan in August 2023. The Council issued a final amended EHC Plan at the end of August 2023. Ms X has appealed to the SEND Tribunal about the contents of the EHC Plan

My assessment

39. The Council and Ms X disagree over whether Y’s 1:1 support should have been removed following his move to the specialist school. If the Council’s intention was to remove the provision after September 2022, then it should have amended Y’s EHC Plan following the annual review in February 2022. The plan issued in September 2022 did not reflect the Council’s understanding about the 1:1 provision. And if it had amended the plan then Ms X would have been able to engage her appeal rights to the SEND Tribunal if she did not agree to the 1:1 provision being removed. As the Council did not amend the EHC Plan on 1:1 provision Ms X had a legitimate expectation the provision would be made as specified in the plan and the Council had a statutory duty to ensure it was provided.
40. The Council’s failure to amend the EHC Plan about the 1:1 provision and enable Ms X to exercise her appeal rights is fault. This has caused an injustice to Ms X through distress and uncertainty and lack of provision to Y. The fact that the 1:1 support has been shown to be needed and reintroduced following the annual review in March 2023 suggests an impact onto Y and it should have been kept in place from September 2022. I consider the Council should apologise to Ms X for the loss of 1:1 provision for Y between September 2022 and April 2023 and pay her £200 a month for the eight months of lost provision and the distress and uncertainty caused (£1600). This in line with our Guidance on Remedies which recommends a symbolic payment for each month of missed provision.
41. Y’s annual review took place in March 2023, and the Council issued a decision it intended to amend the EHC Plan within the 4 weeks required. The Council should have issued the draft EHC Plan in April 2023 and the final EHC Plan in May 2023. But it did not issue a draft amended EHC Plan until May 2023 and final EHC Plan until August 2023 which was outside the timescales laid down in the Code.
42. The delay again in issuing an amended EHC Plan following an annual review is fault by the Council. This has caused an injustice to Ms X through stress and uncertainty as to Y’s provision. I recommend the Council should apologise to Ms X. It should also make a financial payment of £250 to her in recognition of the distress and uncertainty caused by the delay in issuing a final amended EHC Plan following the 2023 annual review.

OT provision

43. The Council says the OT consultancy assessed Y in 2021 and recommended 24 sessions of OT at 2 sessions per week for 12 weeks. The Council confirms Y had the sessions in 2021/22. There was provision for reviews at three, six and nine months by the OT consultancy and the provision remained in the EHC Plan. The Council accepts the 24 sessions should have been quantified more specifically by way of dates to show the sessions had taken place that academic year or removed from the 2022/23 EHC Plan.
44. The OT consultancy held a virtual school visit and programme handover, and all three reviews were arranged and two carried out. But the primary school cancelled the final session. The Council accepts that now it is aware the OT consultancy did not hold the nine-month review following the 24 sessions, it will take steps to ensure that both NHS and independent therapists working with young people are aware the provisions set out in the EHC Plan is adhered to.
45. The Council does not accept that Y did not receive the OT provision as recommended in the EHC Plan. The independent OT consultancy progress report for the annual review in February 2022 did not recommend more direct OT after the 24 sessions, reviews and/or handover. This was due to Y being at a specialist provision who had experience, knowledge, and skills of working with and meeting daily the needs of young people who face difficulties with fine and gross motor skill as well as sensory processing. The secondary school has access to a sensory integration trained OT via an agreement with the NHS to access advice and support when required. The school is also experienced in making referrals to the NHS when it requires additional input as shown by their referrals for Y.

My assessment

46. The Council says there was no more direct OT provision recommended after the 24 sessions held during the academic year 2021/22. Ms X says she was aware no more direct OT had been recommended so waited to receive the draft EHC Plan and then the Final Plan issued in September 2022 to see if she needed to appeal about the removal of the OT sessions. But both documents still stipulated there would be 24 direct OT sessions, so Ms X assumed it would continue.
47. The Council has accepted that although all of Y’s 24 OT sessions have been held it could have been clearer about specifying the dates the sessions would take place or remove it from the 2022/23 EHC Plan. The professionals involved clearly did not consider that further direct OT was needed. But if it was the Council’s intention to remove the provision after September 2022, then it should have amended Y’s EHC Plan following the annual review in February 2022. The EHC Plan issued in September 2022 did not reflect the Council’s intention about direct OT sessions. If the Council had amended the EHC Plan to reflect its intention, then Ms X would have been able to engage her appeal rights to the SEND Tribunal if she did not agree to the direct OT sessions being removed. As the Council did not amend the EHC Plan on the direct OT sessions Ms X had a legitimate expectation the provision would be made as specified in the EHC Plan, and the Council had a statutory duty to ensure it was provided.
48. The Council’s failure to amend the EHC Plan about the direct OT sessions and enable Ms X to exercise her appeal rights is fault. This has caused an injustice to Ms X through uncertainty and distress and not being able to engage her appeal rights. I consider the Council should apologise to Ms X for the uncertainty over the direct OT sessions, the failure to amend the EHC Plan and enable her to engage her appeal rights. The Council should also pay her £250 for the uncertainty caused over the direct OT sessions and £250 for the failure to amend the plan and enable her to engage her appeal rights.
49. The Council also accepts that the final OT review did not take place before Y left the mainstream primary school. I have not recommended a remedy for this or a payment for lost OT provision. This is because professionals had not recommended that Y needed any more direct OT, and he was attending a specialist provision which provided support with fine and gross motor skill as well as sensory processing. The specialist provision also made referrals to the NHS for OT support to Y. In addition, Y has subsequently received additional OT sessions during 2022 and 2023.

Ms X to take Y to OT sessions

50. The Council confirmed Y attended a special OT provision during the 2022 summer holidays. The Council worked with the OT consultancy to identify children and young people within the Borough with Downs Syndrome and due to move into the next phase of their education. The Council confirms this was not OT provision in Y’s EHC Plan, but extra provision. This is because it understood children benefited from continued occupational therapy during the extended holidays and the provision by the OT consultancy bridged the gap. The Council arranged the OT provision during the summer holidays to allow the children to prepare for the next academic year without impacting on their education.
51. After Y attended the summer provision, the OT consultancy told the Council Y would benefit from a further six sessions. The Council agreed to pay for the extra sessions due to the benefits to Y. Although it was under no legal obligation to do so as it did not follow on from an assessment or any specific recommendations.
52. The Council asked for the six sessions be held after school so Y would not miss any schooling which the OT consultancy could do. But Ms X requested the sessions to take place at 10 am. The Council says it reluctantly agreed to this but as the sessions were not in Y’s EHC Plan from 2022 or a recommendation from an OT assessment, it would not provide transport for Y. After discussions and complaints from Ms X the Council added the six sessions as provision to Y’s EHC plan in 2023 following the annual review in February 2023 to ensure the sessions did take place. The Council considers the provision will support Y’s continued transition to Key Stage 3. The Council confirms Y attended the sessions between March and April 2023.
53. The Council has recently received advice from an NHS OT and a further OT programme for Y has been provided to the secondary school. This will be embedded into Y’s curriculum as the secondary school can deliver the provision.
54. The Council maintains the six OT sessions could have taken place outside of the school day. However, as the therapy was added into Y’s EHC plan from March 2023, the Council will offer Ms X a financial remedy for the mileage accrued by either herself or Mr X to take Y to his OT sessions. This will be a backdated mileage claim to Ms X from the secondary school to the OT consultancy. The amount is calculated on a driving route of 5.6 miles and an 11.2-mile round trip, over 6 sessions based on the current Council mileage rate of 45 p per mile when a child is in the car. So, the total mileage claim would be 67.2 miles making a financial payment of £30.24.

My assessment

55. The documents confirm the six OT sessions were not part of the EHC Plan finalised in September 2022. Therefore, there was no requirement for the Council to pay for Ms X’s transport costs should she wish Y to attend. So, there is no evidence of fault by the Council in deciding not to fund the transport costs as it is a decision it is entitled to make.
56. However, the Council has now agreed to backdate Ms X’s mileage costs as the six sessions have been included in the final amended EHC Plan from August 2023 which is suitable action for the Council to take. But as it is part of the EHC Plan Ms X has exercised her right of appeal about we cannot investigate Ms X’s concerns about the matter.

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Agreed action

57. To remedy the injustice caused to Ms X I have identified in paragraphs 30, 40, 42 and 48, the Council will, within a month of my final decision:
• Apologise to Ms X and pay her £250 for the distress and uncertainty caused by the delay in issuing a final amended EHC Plan following an annual review in 2022.
• Apologise to Ms X and pay her £250 for the distress and uncertainty caused by the delay in issuing a final amend EHC Plan following an annual review in 2023.
• Apologise to Ms X and pay her £1600 for the uncertainty and lost 1:1 provision for Y between September 2022 and April 2023.
• Apologise to Ms X and pay her £250 for the uncertainty caused over the direct OT sessions and £250 for the failure to amend the plan and enable her to engage her appeal rights.
58. The Council should provide us with evidence it has complied with the above actions.

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Final decision

59. I am completing my investigation. There is evidence of fault by the Council as it delayed issuing a final amended EHC Plan within statutory timescales in 2022 and 2023. The Council also failed to ensure Y received the 1:1 provision specified in his EHC Plan between September 2022 and April 2023. And failed to amend the EHC Plan issued in September 2022 to reflect its intention to remove direct OT sessions.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman