Summary: Mr X complained about the way the Council handled his son, Y’s Education, Health and Care (EHC) plan reviews and school placement. The Council delayed in amending Y’s EHC plan following the annual review, delayed in identifying an appropriate placement to meet Y’s needs and did not provide Y with all the provision in his plan. The Council agreed to pay Mr X £2,600 to recognise the injustice caused to Y and Mr X, and take action to improve its service.

The complaint

1. Mr X complained about the way the Council handled his son, Y’s Education, Health and Care (EHC) plan reviews. Mr X complained the Council:
• failed to review and amend Y’s EHC plan in line with the statutory guidance since June 2022;
• failed to communicate with him properly about Y’s plan and ignored his enquiries to senior managers; and
• failed to secure an appropriate school placement for Y.
2. Mr X said Y missed education and social opportunities, and he was caused frustration and distress.

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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. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. 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)
6. 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

7. I investigated Mr X’s complaint up until the Council issued a final EHC plan for Y in August 2023. I did not investigate the complaint about the school placement after this date as Mr X had a right of appeal which he had used.
8. I also investigated the Occupational Therapy (OT) provision Y received from September 2023 until November 2023. This is because the provision of OT support could be provided at the mainstream school which Y attended, and it could be separated from Mr X’s appeal about the named school to the SEND Tribunal. The OT provision was not dependent on the outcome of the appeal.

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How I considered this complaint

9. I read the documents Mr X provided and discussed the complaint with him on the phone.
10. I considered the documents the Council provided in response to my enquiries.
11. Mr 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 legislation and guidance

12. 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 tribunal can do this.
13. The EHC plan is set out in sections which include:
• 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. 

Securing the provision

14. 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)

Reviewing an EHC plan

15. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
16. 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)
17. 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)
18. 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)
19. 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 EHC plan. The right of appeal is only engaged when the final amended plan is issued.
20. 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 EHC plan 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)

What happened

21. Y is of primary school age and in 2022 he was on roll at a mainstream infant school (School A). He had an EHC plan that set out his needs and the provision he should receive. It said he had significant social communication difficulties and had difficulties completing some self-care tasks. Y’s plan said:
• ‘All key members of staff working with [Y] will have a working knowledge of…supporting children with significant difficulties the areas of Speech, Language and Communication Needs (SLCN) to access learning and social opportunities at school by embedding appropriate strategies into the daily routine…’;
• All staff directly supporting Y would be trained in 19 specific approaches to support him to access learning and social opportunities in school;
• Y should receive fifteen hours of one-to-one support a week; and
• Y needed structured support to develop self-care skills.
22. School A held an annual review meeting of Y’s EHC plan in June 2022. The record said that due to his increasing needs Y would benefit from an occupational therapy (OT) referral. School A would complete the referral. The document recorded the provision and placement in Y’s plan remained appropriate. The Council said it did not take any action following the annual review meeting.
23. School A held a further interim review of Y’s plan in October, due to his changing needs. It recorded Y had received a diagnosis of autism spectrum disorder, the speech and language therapist (SALT) recommended Y needed additional direct therapy sessions per term and School A had completed an OT referral. It recorded Y had 25 hours of support but needed an additional 5 hours one-to-one support a day (30 hours a week). It recorded Y’s needs and provision should be amended in the EHC plan and School A could no longer meet his needs. The Council said it did not take action to update Y’s EHC plan until July 2023 in response to a complaint from Mr X.
24. The Council’s panel decided at the end of October 2022 that Y needed a specialist placement and an increase of one-to-one support while it found a specialist setting. It agreed to 25 hours support.
25. The caseworker asked the Council’s panel for OT support for Y in December. They said Y had not been receiving the OT support around self-care that was listed in his original EHC plan. The Council considered the request and decided School A should complete an OT referral. It told Mr X he should discuss it with School A.
26. Mr X told the Council that his parental preference was for School B to be named in Y’s EHC plan. School B is a special school in a neighbouring council’s area.
27. Case officer 1 consulted School B in February 2023. The council covering school B said it was not likely to offer a place as it was full.
28. The Council agreed to increase Y’s support to 30 hours in the middle of February after officer 1 identified there had been an error in its previous decision to increase Y’s support by 5 hours (to 30 hours a week) but continued to provide 25 hours support.
29. The Council told Mr X that case officer 2 had taken over Y’s case in mid-February.
30. Mr X complained to the Council. He said:
• there had been no progress in Y’s case;
• its communication was poor;
• Y had five case workers in 18 months and it did not inform him when they changed, and he had to explain Y’s case every time a new casework was assigned;
• there had been errors in the submissions to panel about the hours of support Y should have; and
• the Council was delaying in finding the right school provision.

Mr X said he wanted the case officer to be up to date and there to be no further delays.

31. The Council responded to Mr X in April. It apologised for the high number of case officers and said it had no control over staff leaving. It said case officer 3 would be taking over Y’s case and would contact Mr X weekly. It said it was in the process of consulting six schools for a placement for Y.
32. The Council consulted with the six schools. It sent Y’s EHC plan dated 2021 and the annual review meeting record from June 2022. It did not send the review paperwork from October 2022 which set out Y’s diagnosis or the panel’s decision that Y required a specialist setting. All the schools consulted stated they could not provide a placement based on the paperwork, or they did not have space.
33. Mr X asked the Council to consider his complaint further at the beginning of May. He said there had been no improvements in communication or progress on Y’s case. He said Y urgently needed a specialist setting to meet his needs.
34. School A held another annual review meeting in June 2023. It said School A could not meet Y’s needs. It said he needed specialist support, daily SALT sessions, and regular OT support and professional input.
35. The Council responded to Mr X’s complaint in June 2023. It said it should have issued a final amended EHC plan stating the type of placement Y needed after the annual review meeting in October 2022. It said it would apologise, consider a symbolic remedy and provide a timescale to issue the amended EHC plan.
36. Between April and July Mr X contacted the case worker and senior managers at least five times asking for an update and received no response.
37. In mid-July the Council wrote to Mr X and apologised. It offered him £200 for the time and trouble caused by its delay. It said case officer 4 would issue a draft EHC plan for his comments by 21 July 2023.
38. The Council sent Mr X an amended draft plan by the specified date. Mr X provided his comments and told the Council he wanted Y to attend School B.
39. Mr X complained to us in July 2023.
40. The Council issued a Final EHC plan for Y in August 2023. The specialist provision was unchanged from the original plan and it continued to name School A as the school Y should attend. In response to my enquiries the Council said it specified School A because it had to name a mainstream school while it continued to try and identify a specialist setting.
41. Mr X appealed to the SEND tribunal about the named setting in Y’s plan.
42. The Council stated it considered a further request for a referral for Y to an OT in the middle of November 2023. It identified that Y was on the waiting list to be seen.
43. In response to my enquiries the Council said it ensured a clear handover took place where there was a change of case officer by holding a meeting between the old and new case officers and a senior case manager. It said it did not record those meetings previously but does now do so. It also stated that it did not previously hold running case records but has now introduced systems to improve this.
44. My findings

EHC plan review

45. Following the annual review in June 2022 the Council should have told Mr X if it was going to maintain, cease or amend Y’s EHC plan within four weeks of the review meeting. The Council did not take any action following that review which is not in line with the statutory guidance and was fault. It caused Mr X frustration and delayed his appeal rights to the SEND Tribunal if he disagreed with the decision or the content of the plan.
46. The records show that by the review meeting in October 2022 Y’s needs had changed and School A could no longer meet his needs. The Council decided Y needed a specialist provision. The Council should have started consulting with special schools immediately. It should have issued a draft amended plan for Mr X’s comments within four weeks of the review meeting and issued a final amended plan within a further eight weeks, and by the beginning of January 2023. It did not do so until August 2023 which was a delay of 31 weeks. That was fault.
47. The delay in issuing the amended EHC plan caused Mr X frustration as it delayed his appeal rights to the SEND Tribunal about the contents of the plan. The Council has offered a symbolic payment of £200 to recognise the time and trouble caused to Mr X by its delay. Mr X told me he had not accepted the payment. The remedy is in line with our guidance for distress which includes time and trouble, frustration and uncertainty.
48. The Council did not begin consulting with schools until it consulted School B in February 2023, and then April 2023 when it consulted five more. It did not take action to consult non-maintained or independent schools. The delay in consulting schools contributed to the delay in issuing an amended EHC plan. The Council did not provide the up-to-date annual review documents or its decision Y needed a specialist placement when it consulted the schools. That was fault and leaves uncertainty about whether Y could have been offered an appropriate placement had the Council acted without fault.

Provision

49. Y’s EHC plan said staff members working with Y would have experience supporting children with significant SLCN needs, and would be trained in 19 specific approaches. In October 2022 School A said it could not meet Y’s needs and the Council agreed that Y needed a specialist placement. Y received increased one-to-one support to continue to attend School A and so has received some of the provision in his plan. However, he did not receive the support of specially trained staff and the 19 specific approaches set out in his plan between October 2022 and July 2023 which has impacted on his development and progress.
50. Y’s plan said he needed structured support to develop self-care skills. School A referred to the Council for OT support in June 2022. The Council said in December 2022 Y had not received that support and School A should complete an OT referral. School A reiterated Y needed OT support in June 2023, The Council confirmed that Y was on a waiting list to be seen in November 2023. Case law sets out it is the Council’s responsibility to ensure the provision in the plan is secured for the child. There is no evidence that Y received support for his self-care skills as set out in his plan between June 2022 and November 2023.
51. The Council agreed Y needed five hours of additional support while he was waiting for a specialist placement in October 2022. Due to a Council error Y did not receive the additional five hours support until the end of February 2023. That was fault and meant Y was without sufficient support for four months.
52. When the Council issued Y’s amended EHC plan in August 2023, it provided Mr X’s appeal right to the SEND tribunal. Mr X appealed section I, the named school. The provision of specifically trained and experienced staff in Y’s plan is linked to the type of, and named placement in Y’s plan. As set out in paragraph 18, case law states where a matter is inextricably linked to something that has been appealed to the SEND tribunal, we do not have jurisdiction to investigate. I have therefore not considered the provision Y received (other than the OT support) after the EHC plan was issued in August 2023 as it is linked to the named placement.

Communication and continuity

53. Mr X complained to the Council about the lack of progress, the high number of case officers and the lack of continuity and communication. The records show there were five case officers for Y’s case between October 2022 and April 2023. The Council said this was due to staff leaving. The Council has already taken action to increase its Special Educational Needs Service capacity. This was agreed at a Council Cabinet meeting on 25 July 2023, the details of which are available on its website. I have therefore not made any additional service improvement recommendations on that point.
54. Whilst the Council cannot control staff turnover, it is responsible for the continuity of its service. The Council said it ensured a clear handover of cases during a meeting between the old and new case officers, but did not record the meetings. However, the records show that in Y’s case there were weeks, sometimes months between case officers so a handover meeting could not have been possible. The Council also stated that it did not have running case records which meant case officers could not accurately see what action and decision had been taken previously on a case. The failure to keep clear and accurate records and ensure a handover of the case is fault. It caused drift and delay and poor communication in Y’s case. It caused Mr X frustration and delayed Y accessing the support he needed.
55. The Council acknowledged in its complaint response that its communication with Mr X had been poor, and said it would improve communication with him in April 2023. It did not do so for a further three and a half months. That was fault and caused Mr X further frustration.

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Agreed action

56. Within one month of this decision the Council will:
1. Write to Mr X and apologise for the frustration and uncertainty caused to him by the Council’s faults.
2. Pay Mr X the £200 it has offered to recognise the injustice caused to him by the Council’s faults.
3. Pay Mr X £600 to recognise the OT provision Y did not receive for four terms (between June 2022 and November 2023).
4. Pay Mr X £300 to recognise the additional five hours a week one-to-one support Y missed for one term (between October 2022 and February 2023).
5. Pay Mr X £1,500 to recognise the provision Y missed by remaining in a mainstream school for two and a half terms (between October 2022 and July 2023) after the Council identified he needed a specialist placement.
57. All the remedies above are in line with our guidance on remedies and take in to account that Y continued to receive some of the provision in his EHC plan through the one-to-one support provided to him at School A.
58. Within three months the Council will:
1. create a handover template to use where a new case worker is assigned to a child’s case. The template will capture a summary of the case including relevant dates, decision and agreed next actions. The template will ensure a clear and comprehensive handover to avoid drift and delay. The completed handover template will be discussed during the Council’s handover meeting with a senior case manager and documented on the running case record for each handover.
2. Remind staff responsible for identifying school placements for EHC plans to make timely and accurate consultations to schools and to provide the most up to date information for the child.
59. The Council will provide us with evidence it has complied with the above actions.

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Final decision

60. I have completed my investigation. I found fault causing injustice and the Council agreed to my recommendations to remedy that injustice and avoid the same fault occurring in the future.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman