Summary: Mrs X complains about the Council’s handling of her child’s (Child Y) special educational needs (SEN). There was fault in the Council’s handling of Child Y’s Education, Health and Care (EHC) Plan annual review, SEN provision, respite and Mrs X’s complaints. The Council has agreed to apologise and make payments to Child Y and Mrs X for the injustice caused.

The complaint

1. Mrs X complains about the Council’s handling of her child, Child Y’s special educational needs (SEN) since November 2021. She feels the Council failed to:
1. complete and issue the final Education, Health and Care (EHC) Plan following annual review within statutory timescales;
2. provide alternative education provision when Child Y was absent from school for more than 15 days;
3. provide Speech and Language Therapy (SALT) and Occupational Therapy (OT) in accordance with the provision set out in Child Y’s EHC Plan;
4. appropriately respond to her concerns following two incidents at school when Child Y was injured;
5. provide respite for Child Y and their family; and,
6. respond to her complaints within published timescales.

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The Ombudsman’s role and powers

2. 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)
3. 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.
4. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
5. 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)
6. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
7. 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)
8. 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

9. I have exercised discretion to investigate Mrs X’s complaints about matters from November 2021 to the point when she submitted her complaint to us in August 2023. Mrs X could not have been expected to bring her complaints about these matters to us sooner as the Council only confirmed it had provided its final complaint response to her in August 2023.

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How I considered this complaint

10. I have spoken to Mrs X and considered the information she has provided in support of her concerns.
11. I have considered the information the Council has provided in response to my enquiries.
12. Mrs X and the Council had an opportunity to comment on my initial and revised draft decisions. I considered any comments received before making a final decision.

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What I found

Relevant guidance

Education, Health and Care (EHC) Plans

13. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document 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 their needs, education, or the name of the educational placement. Only the tribunal or council can do this.
14. 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)  
15. 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 their legal duty. At a minimum we expect them 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. 

EHC Plan reviews

16. 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.
17. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or cease 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) 
18. Where the 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. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.
19. In 2022, the case of R (L, M and P) v Devon County Council said when a local authority proposes to amend an EHC Plan the regulation which requires the Council to notify a parent of its decision within four weeks and the regulation which set outs the process for amending the EHC Plan must be read together. This means the maximum time from the annual review meeting to final plan should be 12 weeks.

Social Care Provision in EHC Plans

20. Section 36(20) of the Children and Families Act 2014 defines an EHC assessment as including an assessment of the child or young person’s social care needs. Where a child or young person is not previously known to social care this will require a new assessment to identify if there are social care needs which need to be included in the EHC Plan.  
21. Where the council decides it is necessary for support to be provided under section 2 of the Chronically Sick and Disabled Persons Act 1970 it must include this in Section H1 of the EHC Plan. Support provided by Early Help or under section 17 of the Children Act 1989 (child in need) should be included in Section H2 of the EHC Plan. 
22. Statutory guidance “Working Together to Safeguard Children” sets out the concept of an ‘Early Help’ assessment. This can be undertaken by a range of professionals where there are low level needs that do not merit a Child in Need Assessment by social care.
23. If a parent disagrees with the social care support set out in the EHC Plan they can make a complaint to the council. Alternatively, if they are going to appeal to the Tribunal about other parts of the EHC Plan, they can ask the Tribunal to consider any is agreement. If the tribunal makes a finding on the social care elements, it is non-binding. (It is not a statutory right of appeal).

Duty to safeguard and promote welfare (section 17)

24. The Children Act 1989, section 17, requires councils to safeguard and promote the welfare of ‘children in need’ in their area, including disabled children, by providing appropriate services for them. All disabled children are regarded as ‘children in need’ and entitled to an assessment under section 17.
25. The Chronically Sick and Disabled Person’s Act (CSDPA) 1970, section 2, requires councils, when undertaking an assessment of a child under section 17 of the Children Act 1989, to consider whether it is necessary to provide support of the type referred to in section 2.
26. Services which can be provided under section 2 CSDPA include:

• practical assistance in the home including home based short breaks / respite care;
• recreational / educational facilities including community based short breaks; and
• travel and other assistance.

Parent Carers

27. The Children Act 1989 (Schedule 2 paragraph 96)(1)(c)) and Breaks for Carers of Disabled Children Regulations 2011 requires councils to provide a range of services designed to assist family carers of disabled children to continue to provide care, or to do so more effectively, by giving them breaks from caring. These services must include a range of daytime care, overnight care and leisure activities. This range of services must be set out in a ‘short breaks statement’ and include details of any eligibility criteria.
28. The Children Act 1989 (as amended by the Children and Families Act 2014) places specific duties on councils to assess the needs of carers with parental responsibility for disabled children as well as young carers. Councils have an obligation to assess parent carers on the ‘appearance of need’ (Children Act 1989, section 17ZD/E), or if an assessment is requested by the parent, and to provide a written copy of the assessment to the parent carer.

Background

29. This decision statement provides a timeline of key events and does not include everything that happened.
30. Child Y has a diagnoses of Attention Deficit Hyperactivity Disorder (ADHD), Autistic Spectrum Condition (ASC) and Anxiety. Child Y has needs in relation to interaction and communication which impact on their social, emotional and mental health needs. Mrs X is Child Y’s main and sole carer.
31. The Council issued the final amended EHC Plan to Mrs X on 2 November 2021 following her successful appeal to the SEND Tribunal. Child Y had been signed off from their mainstream school since February 2020.

EHC Plan reviews

32. The Council issued Child Y’s first EHC Plan to Mrs X on 24 September 2020. This meant the next annual review was due 12 months later. The Council did not however complete an annual review of Child Y as Mrs X’s appeal to the SEND Tribunal was ongoing. The Council has already taken appropriate action to remedy the injustice caused by this fault in an earlier complaint we investigated.
33. Child Y’s school appears to have started the next EHC Plan annual review process in early October 2022. The EHC Plan annual review meeting then took place on 21 November 2022. The Council advised Mrs X of its decision to amend Child Y’s EHC Plan on 15 December 2022, but did not issue the formal notice to amend including its proposed changes to the EHC Plan to Mrs X until 6 February 2023. The Council issued the final amended EHC Plan to Mrs X on 6 March 2023.
34. The Council had a statutory duty to ensure it completed an annual review meeting of Child Y’s EHC Plan by 24 September 2022. The Council’s failure to start this process to ensure completion within the statutory timescale was fault. The latest the final amended EHC Plan should have been issued had the review meeting taken place on 24 September 2022 would have been 17 December 2022. This was delayed by 11 weeks and two days in this case.
35. It is clear the delay in issuing the final amended EHC Plan to Mrs X caused significant injustice to her and Child Y. This fault created uncertainty and delayed Mrs X’s right of appeal to the SEND Tribunal. Mrs X’s injustice has been compounded by the Council’s previous failures to progress Child Y’s EHC Plan assessments and reviews without delay.
36. The Council appears to have made no attempts to remedy the injustice caused to Mrs X by this delay. I welcome the Council’s agreement to take the action I have recommended at the end of this decision statement to address this.

Alternative provision

37. Child Y started attending the SEN school placement named in their EHC Plan in November 2021.
38. In May 2022, the school informed Mrs X the site Child Y was attending would be closing at the end of the academic year. Child Y started attending another school site offered to Mrs X in September 2022.
39. Following two incidents at school in November 2022, Child Y was absent from school. The incidents involved Child Y sustaining an injury and alleging they had been assaulted by other pupils. Mrs X raised safeguarding concerns with the school and the Council about the two incidents and the lack of supervision of Child Y.
40. In late December 2022, a psychiatrist issued a report to Mrs X about Child Y’s heightened anxiety and inability to attend school. The school investigated Mrs X’s concerns about the two incidents and concluded it could still meet Child Y’s needs. Mrs X asked the Council to consider its duty to deliver alternative education provision to Child Y while they were unable to attend school.
41. Throughout January and February 2023, Mrs X asked the Council to meet its alternative education provision duty to Child Y. The school undertook daily welfare checks on Child Y through Mrs X. In early February 2023, the Council advised Mrs X that it did not consider it owed Child Y an alternative education provision duty as it believed the named school could meet their needs.
42. The Council has provided evidence of the school’s investigation into Mrs X’s concerns. It concluded the school remained suitable for Child Y to attend. That was a view it was entitled to take, and we cannot question the merits of the Council’s professional judgement and decision where there is no evidence of procedural fault in how its view was reached. The weight the Council decided to place on the views and advice of Child Y’s psychiatrist is again a matter of professional judgement that we cannot question.
43. In response to my enquiries, the Council says it now accepts it owed Child Y an alternative provision duty from the beginning of February 2023. As Child Y remained absent from school until the late April 2023, when they started at a new placement, the Council has agreed to take steps to remedy the injustice caused to Child Y by missing two months’ worth of education provision.

Speech and Language Therapy

44. Mrs X complains the Council has failed to ensure Child Y has received the Speech and Language Therapy (SALT) provision set out in their EHC Plan since November 2021.
45. The SALT provision described in Child Y’s 2021 and 2023 EHC Plans appears extensive, with specific daily actions to assist Child Y through their school day. The provision remaining unchanged in Child Y’s 2023 EHC Plan from 2021, appears to indicate there has been little progress in Child Y’s development in this area. The Council contests this point and maintains the view that unchanged provision does not necessarily indicate a lack of meaningful progress.
46. In response to my enquiries, the Council has confirmed Child Y has not received consistent SALT provision as set out in their EHC Plans since November 2021 until May 2023 after they started attending their current school placement. This is fault which the Council has failed to appropriately remedy when Mrs X has raised repeated concerns with it previously.
47. Child Y has missed out on four and a half terms of SALT provision as specified in their EHC Plan since November 2021. I have used out Guidance on Remedies to determine the level of remedy payment I have recommended the Council makes for missed SALT provision in this case. Our guidance for fault resulting in a loss of full education provision recommends a payment of between £900 and £2,400 per school term depending on the impact and any special educational provision the child might require. I consider £300 per term the appropriate amount as there was not a total loss of education provision in Child Y’s case. The amount per term is in recognition of the significance and quantity of SALT provision and professional intervention in Child Y’s EHC Plans and the impact of its loss.

Occupational Therapy

48. Mrs X has also complained about the lack of Occupational Therapy (OT) resources to enable Child Y to receive the OT provision set out in their EHC Plan since November 2021.
49. In response to my enquiries, the Council has confirmed there was a delay in securing the resources Child Y needed for OT provision. This was not resolved until late December 2021, which was fault and meant Child Y missed out on just over a months’ worth of provision. The Council has agreed to remedy the injustice caused to Child Y by this fault by taking the action recommended at the end of this statement.

Incidents at school

50. In late November 2022, Child Y was involved in two incidents at school which led to their absence. In the first incident, Child Y sustained an injury from running underneath some equipment, which led to them receiving medical treatment. In the second incident, Child Y alleged they were pinned down and assaulted by some older pupils.
51. Mrs X raised concerns with Child Y’s school and the Council about the two incidents. She was unhappy that Child Y had been left without adult supervision when the incidents occurred, despite their EHC Plan stating they should be supervised at all times.
52. The Council has explained to me that it was satisfied with the school’s investigation into the incidents. I have also noted that while Child Y’s EHC Plan states they should have access to adult support while at school, it does not state full supervision is required at all times as Mrs X believes.
53. The Council was entitled to rely on the action the school took to investigate Mrs X’s concerns. Its subsequent decision to conclude the incidents did not meet the threshold to warrant further investigation from a safeguarding perspective was one it was entitled to make.

Respite

54. Mrs X and Child Y had been receiving some social care support from the Council’s Early Help Team since April 2019. This ended as the Early Help Team did not consider it could provide the type of support Child Y needed.
55. The Council completed a Child and Family Assessment for Child Y and their family in May 2021. This noted Mrs X is Child Y’s sole carer and the intensive support they needed meant she was at risk of exhaustion and burnout. The outcome of the assessment was for the family to receive respite for four hours per week during school term time and 10 hours per week during the school holidays. This was intended to give both Mrs X and Child Y a break. This respite provision was recorded in Child Y’s EHC Plans from November 2021 onwards.
56. The Council appears to have unsuccessfully sought respite support for Child Y and their family in the form of a personal assistant between May 2021 and November 2022, with many providers either not having staff available or not being able to meet Child Y’s complex needs.
57. In April 2022, the Council identified a potentially suitable personal assistant to support Child Y. Mrs X asked the Council to hold off introducing another new person into Child Y’s life as they had just started a new school placement and were likely to be overwhelmed.
58. In the absence of the respite and carer support specified in Child Y’s EHC Plan and Child in Need Plan and Mrs X’s parent carer assessment, the Council has made payments totalling £4,816 covering the period from March 2021 to April 2022. The Council also made a one-off payment to Mrs X of £780 in July 2023 for a gardener and cleaner to provide help in the home.
59. The Council has explained it has been seeking to source the funds needed for a sensory garden room Mrs X wished to build for Child Y to use for therapeutic sessions. It appears the funds the Council has provided to Mrs X in place of respite provision (£4,816) forms part of these funds. At the time of my enquiries, the Council had helped source most of the money estimated to be needed to install the garden room which remained just over £500 short of the target. The garden room does not form part of the Council’s social care assessment of Child Y’s needs. The Council says the full amount of funds needed had been sourced by February 2024. While the suggestion of installing a sensory garden room for Child Y will no doubt be helpful in supporting their needs, it does not address the issue of Mrs X’s and Child Y’s continued need for respite.
60. The Council does not appear to have provided any further payments in lieu of respite provision to Mrs X since late April 2022.
61. The Council’s own records clearly show in its assessment that Mrs X is in desperate need of respite. She has been at risk of total exhaustion and burnout for more than five years. The Council also notes Mrs X and Child Y have limited support networks through family and friends locally who can provide them both with much needed breaks.
62. While the Council appears initially to have made numerous attempts to source appropriate respite provision for the family, it has failed to do so. This is fault. The payments the Council made in place of the respite provision the family needs do not address the impact Mrs X’s caring role has on her health and wellbeing. Child Y’s reduced attendance at school while they build up to the demands of fulltime attendance means Mrs X does not get a break from caring while Child Y is at school.
63. I recognise there is a national shortage of specialist respite provision. However, the statutory guidance is clear that if a council is satisfied it is necessary to provide support services, it must provide them regardless of their resources.
64. The Council appears to have taken limited action in respect of respite provision for this family from late April 2022 until January 2024, when support was identified and commenced. This was fault which the Council needs to remedy given the impact this will have had on Mrs X and Child Y.

Complaint handling

65. Mrs X made a stage one complaint to the Council about its handling of Child Y’s education on 5 February 2023. It did not pick this complaint up formally until 28 March 2023. Mrs X made further complaints to the Council on 12 April 2023.
66. The Council did not respond to Mrs X’s complaints until she escalated her concerns to us. The Council sent Mrs X its stage one complaint response on 1 June 2023.
67. The Council’s corporate complaint procedure says it will respond to stage one complaints in 10 working days and a maximum of 30 working days for complex complaints. The Council took 79 working days to respond to Mrs X’s complaint, first received in early February 2023. It appears the Council was only prompted to respond to Mrs X’s concerns by our intervention. This was fault which caused avoidable distress and frustration to Mrs X.
68. Mrs X requested escalation of her complaint to stage two immediately after receiving the Council’s stage one response. She remade her stage two complaint at the end of June 2023 because she had not received any sort of response from the Council.
69. The Council eventually responded on 8 August 2023. It advised Mrs X that it would not be responding to her stage two complaint as she had since brought her concerns to us. The Council explained it was likely we would end up investigating all of Mrs X’s complaints about its handling.
70. The Council appears to have bypassed its own corporate complaints procedure in favour of devolving this responsibility to the Ombudsman. While there are circumstances in which this might be appropriate, it is disappointing the Council did not seek our agreement before taking this action.
71. The Council’s handling of Mrs X’s complaints has been consistently delayed or has failed to follow its published procedure altogether. This has caused Mrs X unnecessary frustration, which the Council should remedy.

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Agreed action

72. Within two months of my final decision, the Council has agreed to:

• make a written apology to Mrs X for the faults identified in this decision statement - We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making its apology to Mrs X;
• make a payment of £2,250 to Mrs X for the uncertainty, distress and frustration caused by the delay in completing Child Y’s EHC Plan annual review, the impact of not providing appropriate respite since May 2021 and poor and delayed complaint handling;
• make a payment of £3,650 to Mrs X for the benefit of Child Y for four and a half terms of missed Speech and Language Therapy provision (November 2021 to May 2023), delay in providing the resources needed to deliver Occupational Therapy provision (14 November to 21 December 2021) and the impact of not providing appropriate respite since May 2021;

73. The Council should provide us with evidence it has complied with the above actions.

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Final decision

74. I have completed my investigation and uphold Mrs X’s complaint. The Council has agreed to take action to remedy the injustice caused to Mrs X and Child Y by the faults identified in this statement.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman