Summary: The Council was at fault by not arranging all the special education provision in line with its proposals in an amended Education, Health, and Care plan for a child. This fault caused the child an injustice because it meant they did not get all the provision they should have had for a whole academic year. It was also at fault for not finalising that plan in line with the statutory requirements. This fault caused Mrs X avoidable distress because of delays in handling her case. The Council have agreed to my recommendations about how it can now remedy these injustices.

The complaint

1. Mrs X complained the Council did not provide mental health and occupational therapy, in line with provision that was agreed and written into her daughter’s Education, Health, and Care plan (EHCP). Mrs X said this meant her daughter (Y) was left without the support she needed to help her access education properly, which had a detrimental impact on her mental wellbeing, education, and self-esteem.
2. Mrs X also said the Council did not properly communicate with her about this after she made a formal complaint, and this caused her unnecessary inconvenience.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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.
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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How I considered this complaint

7. I spoke to Mrs X and considered the information she provided.
8. I considered the Council’s comments and the documents it provided.
9. I considered the special educational needs and disability (SEND) code of practice which councils have a duty to follow.
10. I have also considered our guidance on remedies.
11. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

What should have happened

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.

EHC reviews

13. Recent caselaw says councils must, from March 2022, send the parent or young person the final amended EHC plan within a maximum of 12 weeks of the annual review meeting. It says councils must send the decision letter alongside any proposed changes to the EHC Plan within four weeks of the review meeting and issue a final plan no later than eight weeks after the decision letter is sent. R (L, M, and P) v Devon County Council [2022] EWHC 493

Principles of good administrative practice.

14. In 2018, we published guidance for Council’s dealing with complaints. In that guidance we emphasised (among other things) the following:
• explaining and responding to any delays proactively;
• Keeping to commitments including published service standards
• Putting things right quickly and effectively

The Council’s complaint procedure.

15. The Council publishes their procedures online and it says it will respond to a complaint within ten working days with an outcome or an update from the person who is dealing with the complaint.

What happened

16. The Council issued an EHCP (version four) for Y in February 2022. Mrs X asked for another review that same year because of an updated Educational Psychologist (EP) report.

Further EHC review July 2022

17. In July 2022, the Council reviewed Y’s EHCP. Mrs X told me during this review that additional special education provision (SEP) was discussed. Mrs X confirmed this EHCP was important to ensure this additional SEP for Y, as she was approaching her penultimate year at school (year 13).
18. In early August, the Council sent Mrs X a copy of its proposed amended EHCP (version five). In line with the earlier discussions, and according to a copy of the proposed amended EHCP, the Council noted an additional outcome as an amendment.
19. This outcome, for Y to achieve by the end of year 14, was in place to support them to ‘become a more emotionally settled young person’. The Council noted the SEP required for this outcome was as follows:
• A program of ‘the interoception curriculum’ delivered over 35 weekly sessions.
20. The Council did not finalise this plan.
21. The Council said after it issued a proposed amended plan, it tried to secure the agreed provision, but these were unsuccessful.
22. In December 2022, because the Council had not ensured Y was getting this additional provision, Mrs X complained to the Council. She said her daughter needed the therapy to help her fully access education. Mrs X told the Council her daughter was struggling with poor attendance.
23. In its initial reply to her complaint, sent in February 2023, the Council explained it was not able to fully give her an update due to staff shortages. The Council said it would then investigate Mrs X’s concerns. The Council contacted Mrs X about this in March and then arranged for a further EHCP review.

EHC review July 2023

24. In mid-July 2023, the Council reviewed Y’s EHCP and the provision as previously outlined in the 2022 proposed plan, was included within the SEP for this plan. At this point the highlighted SEP would now impact on Y’s school year, year 14. In October the Council finalised this EHCP (version six).
25. In late October, the Council sent Mrs X a final response to her earlier complaint. It accepted it had not found a provider for the additional therapy and upheld her complaint. It also apologised for earlier failings in not ensuring it properly followed up her complaint with a formal reply.
26. I asked the Council why it had not finalised the 2022 EHCP (version five). It said there had been staff shortages, which impacted on the management of Y’s case. It accepted it had been at fault for not arranging the SEP and for not having met the standards expected. It also said it had recruited additional staff to prevent a recurrence of this fault.

My findings

27. Following the 2022 EHC review, to comply with the statutory requirements, the Council should have finalised Y’s plan by mid-October. It did not do so and never finalised this plan. That is fault and it caused Mrs X an injustice because it left her with avoidable distress and uncertainty for longer than was necessary, about whether the Council were being proactive in getting this provision for her daughter.
28. Notwithstanding the fact the SEP outlined was never formally agreed in 2022, on balance the evidence shows the Council had agreed it was necessary provision in 2022. Therefore, if but for fault in finalising the plan, it ought to have secured it and made it available for Y, in her academic year, year 13. It then made it available for her in year 14, which was a delay of a full academic year.
29. This caused Y a significant injustice. I cannot say to what extent this delay would have inhibited her overall education progress, but it will likely have had an adverse impact, particularly as year 14 is the final year of post-compulsory sixth form education.
30. The Council also accepted fault in how it dealt with Mrs X’s complaint about this matter. It has apologised and said it had recruited additional staff to avoid this happening again. I believe these actions sufficiently remedy the injustice the Council’s actions caused Mrs X here.

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Agreed action

31. Within one month of the date of my decision, to remedy the remaining injustice, the Council have agreed to:
• Review its commissioning arrangements for therapies as outlined in Mrs X’s complaint for the benefit of future EHC plans.
• In line with our guidance on making an effective apology, send a written apology to Y, for the delay in securing her agreed provision as outlined in paragraph 29.
• To recognise what I see as Y’s remaining unremedied injustice caused by the delay in this provision across three academic terms, make a symbolic payment to Y of £3600 for the partial loss of their education provision.
• Pay Mrs X £400 for her avoidable distress and uncertainty, as I have described in paragraph 29.
32. The Council should provide us with evidence it has complied with the above actions.

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Final decision

33. I have ended my investigation with a finding of fault and that fault caused an injustice. The Council have agreed to my recommendations to remedy this injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman