Summary: Miss X complained the Council had not secured all the special educational or social care provision in her child, B’s, Education, Health and Care Plan. The Council was at fault, which meant B missed out on provision they were entitled to. This caused Miss X distress, frustration and uncertainty. To remedy their injustice, the Council will apologise and pay Miss X a total of £5000. To prevent similar fault in future, the Council will issue a staff reminder and identify if flaws in its practice led to some of the fault. The Council will also apologise to the people who have been waiting too long for their complaint responses.

The complaint

1. Miss X complained the Council had not secured all the special educational or social care provision in her child, B’s, Education, Health and Care Plan. Miss X also complained the Council delayed completing B’s 2021 and 2022 annual review and delayed issuing its response to her complaint.
2. Miss X said the Council’s actions have impacted on B’s development and put strain on the whole family unit, including B’s siblings.

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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. 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)
5. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
6. When considering complaints 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.
7. 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

8. 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)
9. Miss X complained about matters dating back to 2021. I have seen no good reason why Miss X could not have complained about those issues at the time, so I have not considered them. My investigation covers the period from July 2022 to August 2023.

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How I considered this complaint

10. I have considered:
• all the information Miss X provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the Council’s policies, relevant law and guidance and the Ombudsman's guidance on remedies.
11. Miss 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 law and guidance

Education, Health and Care Plans

12. 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 which include: 

• Section F: The special educational provision needed by the child or the young person. 
• Section H1: The social care provision which must be made for the child or young person under 18 resulting from section 2 of the Chronically Sick and Disabled Persons Act 1970.

13. We cannot direct changes to the sections about the child or young person’s needs, education, or the name of the educational placement. Only the SEND tribunal or the council can do this. 

Provision

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)  

Annual reviews

15. 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 then take place. The process is only complete when the council issues its decision to maintain, amend or discontinue the EHC Plan after the review meeting. Councils must issue their decision within four weeks of the review meeting.
16. 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. The council must issue the amended final EHC Plan within twelve weeks of the review meeting. Only once the council issues the final amended Plan, can the parent or young person appeal its contents to the SEND Tribunal.

Child In Need

17. Section 17 of the Children Act 1989 says councils must safeguard and promote the welfare of children within their area who are in need.
18. A child is in need if:

• they are unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support;
• their health or development is likely to be significantly impaired unless the council provides support; or
• they are disabled.

19. When a council assesses a child as being in need, it supports them through a child in need plan. This should set clear, measurable outcomes for the child and expectations for their parent. Councils should review child in need plans regularly.

The Council’s complaints procedure

20. The Council operates a two stage complaints procedure. Its policy says it will respond to stage one complaints within 20 working days of the date it allocates the complaint to an officer. The stage two should be completed within 25 working days of the date it is allocated.

What happened

21. Miss X’s child, B, is a Deaf autistic young person with complex needs including a diagnosis of visual processing disorder. B has had an EHC Plan for several years and attends a specialist secondary school. The EHC Plan in force during the period I have investigated dated from August 2020 and noted B needed the following special educational provision:
• An Occupational Therapist (OT) to review B’s activities every half term, at home and at school.
• Access to radio aids when needed and support from a Teacher of the Deaf to use them. This included training and support in the use of the radio aid, to be extended to B’s home and their community-based team. Radio aids are an electronic tool used to make the sound of a person speaking clearer to the Deaf person in relation to other sounds.
• Guidance and support from a Multi-Sensory Impairment (MSI) teacher, following a full assessment by the MSI teacher and based on criteria from the National Sensory Impairment Partnership (NATSIP), which should be reviewed annually. A child has MSI when they have vision and hearing impairments.
• All agencies involved with B to liaise on a six-weekly basis.
22. In the section of B’s EHC Plan that sets out social care provision (H1), it said:
• B needed a flexible package consisting of up to 30 hours of community support per week in school holidays and a minimum of eight hours per week in term times;
• B needed a team of no fewer than four trained Intervenors or Communication Support Workers (CSW’s) to deliver their community support. The Plan noted B needed two CSW’s or Intervenors when in the community, to keep them safe. An Intervenor is an individual trained in the needs of people with MSI, who helps the person understand what they are seeing and/or hearing and explaining the meaning of those experiences;
• tuition in British Sign Language (BSL) should be made available to Miss X and B’s siblings; and
• Miss X and B’s siblings should have carers assessments every six months.
23. In September 2021, a NATSIP review found B should have support twice yearly.
24. In July 2022, the school held an annual review meeting on behalf of the Council.
25. B’s school contacted the Council in mid-December to say a Teacher of the Deaf had assessed B and said they needed a radio aid. In early January, the Council told B’s school that it needed to hold an early annual review of B’s EHC Plan to request the radio aid be added to their EHC Plan.
26. In late January 2023, Miss X complained to the Council. She said B was not getting the provision set out at paragraphs 21 and 22.
27. In mid-February, after further communication between B’s school and the Council, the Council said again that the school needed to hold an early annual review to have the radio aid added to B’s EHC Plan. The School said both Miss X and B’s specialists thought the radio aid was already in B’s EHC Plan.
28. The Council confirmed it would fund the radio aid and B was booked in to have the radio aid fitted in late March. However, issues with B’s hearing meant the fitting was postponed to late April. B now has the radio aid.
29. B had a further NATSIP review in March 2023, which found they needed support every two weeks while they became used to the radio aid.
30. The Council allocated Miss X’s stage one complaint to an officer in early May 2023. It issued its response in mid-May, which said:
• B had previously been supported by an NHS OT but had been discharged some time ago. Since then, the OT based at B’s school was reviewing their activities every half term.
• B had previously not wanted the radio aid but since the school had been in contact, it had agreed costs.
• B no longer met the criteria for MSI support because an assessment from late 2020 showed their visual needs were almost normal for their age.
• Miss X had asked for a communication support worker trained in BSL and MSI at the 2022 annual review meeting but B did not meet the criteria for one. The Council said this was because B did not sign at school and because the 2021 NATSIP criteria concluded B only needed half-termly sessions. B nonetheless had weekly sessions with a Teacher of the Deaf.
• B’s social care support was being delivered by staff from school. It was trying to identify an agency who could deliver the provision so B could access more.
31. The Council issued its decision to maintain B’s EHC Plan after the July 2022 annual review meeting in late May 2023. The Council told me the delay occurred because of a backlog of cases and staff absence.
32. Miss X asked for a stage two response to her complaint in early June.
33. The Council held a CIN plan review in late June. It noted B was not getting all of the social care support hours per week. It also noted Miss X wanted B to have access to the radio aid outside of school but it was only for educational use.
34. The Council sent its response to Miss X’s stage two complaint in late July. Miss X remained dissatisfied and complained to the Ombudsman.
35. In early August 2023, the Council held another CIN meeting. It noted it was still trying to find a support worker to deliver B’s social care support hours.
36. In late September 2023, Miss X asked for a carers assessment. The Council subsequently completed the assessment, although Miss X says it was not useful or personalised to her circumstances.
37. In January 2024, the Council arranged for B to have use of the radio aid at home and in the community.
38. In response to my enquiries, the Council said:
• B’s speech and language therapist, OT, clinical psychologist and Teacher of the Deaf met every half term to discuss B and updated Miss X afterwards;
• B’s EHC Plan said she should receive up to eight hours per week of community support per week in term time;
• It paid Miss X money for the value of the package (direct payments) to allow her to commission the community support directly. It was therefore up to her if B did not receive the full package in their EHC Plan. The Council later told me Miss X had previously struggled to use a direct payment package so during the period I investigated it paid an agency to arrange the support.
• B’s social worker had tried to identify more support workers, but Miss X had said B was not ready to meet them. Miss X had only recently agreed to consider agency support but had declined two of the three agencies it had suggested. The Council said it was aware B needed more support and it had recently increased the number of agencies on its framework of approved organisations;
• it had given Miss X information about BSL training resources in November 2023 but Miss X had refused it because she wanted online training for B’s siblings, not face to face. The Council said it would look into online training.
• it had supported Miss X’s family under child in need legislation for years but because Miss X had only recently agreed to it keeping paperwork, it had only just prepared a child in plan and started documenting child in need review meetings; and
• its complaints service had 72 complaints from other people open for investigation, 31 of which were overdue.
39. I asked Miss X about B’s community support workers. She told me she did not receive direct payments. Miss X explained a nursing and children’s care company is meant to supply support workers, but they do not have anyone suitable available. Instead, the company had been invoicing the Council to pay for two members of staff from B’s school to support B in the community. Miss X said the staff are not available to provide the full support package in B’s EHC Plan and they are not CSW’s or Intervenors. They also do not always have availability to both help B in the community so B sometimes had 1:1 support instead of the 2:1 support in their Plan.
40. Miss X disputes that she declined two of the agencies the Council recently identified, she says the people from those agencies said they could not meet B’s needs because one could not speak English at such a level to allow B to lip-read and the other lived too far away and did not have access to a car.
41. The Council sent me a list of the invoices it had received from the nursing and children’s care company. It acknowledged the list of invoices may not be complete. Nonetheless, the invoices show that for the 2022/2023 school year including holidays, B missed a total of 573 support hours. This meant B received only 30% of the hours they should have had.
42. In early May 2024, the Council issued a final amended EHC Plan for B. Miss X said the new Plan removed the provision the Council had failed to deliver during the period covered by this investigation.

Findings

Annual reviews

43. The Council held B’s annual review in July 2022 but did not issue its decision to maintain their EHC Plan until May 2023. This far exceeded the four-week timescale set out in the Code and was fault. The delay caused Miss X frustration, but she did not appeal the Council’s decision, so I am satisfied it did not cause her any further injustice.

EHC Plan provision

44. The Council has duty to secure the special educational provision in B’s EHC Plan. The duty is non-delegable, meaning the Council cannot pass the duty on to B’s school. It is apparent from the Council’s complaint response that it feels some of B’s provision is no longer appropriate for their needs. However, until the Council amends B’s EHC Plan, it must secure the provision as written in the Plan.

EHC Plan provision- Occupational Therapy

45. B’s EHC Plan stipulates an OT should review their activities both at school and at home. B has only been receiving reviews in the school, which was fault. However, I cannot say that had an OT reviewed B’s activities at home, they would have recommended changes in equipment or strategies. Therefore the injustice is uncertainty for Miss X.

EHC Plan provision- radio aid

46. Initially, B had been unwilling to use a radio aid so the Council was not at fault for not supplying one. In mid-December 2022, the school told the Council B wanted to use the radio aid, so it should have acted promptly to arrange for B to have one. Instead, the Council wrongly told the school the aid was not in B’s EHC Plan. This caused a delay, which was fault. B received the radio aid by late April 2023; there was a one month delay due to problems with their hearing, but this was not within Council control. The fault therefore meant B went without the radio aid for just under one term.
47. In addition, the EHC Plan refers to training and support in using the radio aid at home and in the community. This indicates the radio aid should be available for B to use in those settings. The Council initially only allowed B to use the radio aid in a school setting, to access education. This was not in accordance with the Plan and was fault. As of January 2024, B can use the radio aid at home and in the community. Nonetheless, the fault meant B did not have full access to the provision in their EHC Plan between April 2023 and the end of the period I am investigating; August 2023. The lost provision in paragraphs 45 and 46 also caused Miss X avoidable frustration.

EHC Plan provision- Multi-Sensory Impairment

48. B’s EHC Plan sets out they need support from a MSI teacher at a frequency determined by NATSIP criteria. However, B has not had MSI support since 2020.
49. The Council feels B does not need MSI support based on the late 2020 assessment, and that in any event, they have benefited from weekly support from the Teacher of the Deaf; a frequency greater than that set out in the NATSIP reviews. However, Teachers of the Deaf and MSI teachers are not the same and B’s EHC Plan specifies support from an MSI teacher.
50. Based on the September 2021 and March 2023 NATSIP reviews, B should have had twice yearly support from June 2022 to February 2023 and fortnightly support from April 2023 to August 2023. The Council was at fault for not securing the provision in B’s Plan. The lost provision will have impacted on B, but it will have been mitigated to some extent by the weekly sessions with the Teacher of the Deaf. The fault caused Miss X further frustration.
51. The Council was also at fault for failing to arrange a NATSIP review in 2022. B’s EHC Plan says the reviews should take place annually. This did not happen. Miss X is left with a sense of uncertainty about whether the review would have resulted in a change of provision for B.

EHC Plan provision- all agency reviews

52. The Council has confirmed professionals familiar with B and their educational needs meet every half term (approximately every six educational weeks) and feed back to Miss X. I am satisfied the Council was not at fault in how it ensured B had the six weekly all agency review in their Plan.

EHC Plan provision- community support workers

53. B is meant to have a large package of hours from CSW’s or Intervenors as part of the social care section of their EHC Plan. The Council is aware B is not getting that provision. It initially told me it pays Miss X direct payments, so it is up to her to ensure B is receiving the provision they are entitled to. Miss X says she does not have direct payments and the Council later told me it paid an agency to arrange B’s support package. This suggests Miss X does not receive direct payments.
54. Regardless of the funding arrangements and the challenges identifying suitable workers, the Council had a duty to secure the provision in section H of B’s EHC Plan. When it became apparent B was not getting the full support hours in their Plan, the Council should have taken decisive action to ensure it was secured without delay. I have seen no evidence it did so, which was fault.
55. It was also concerning to see that in response to my enquiries, the Council wrongly argued B’s EHC Plan said they needed a maximum of eight hours per week in term time, not a minimum of eight hours. This was incorrect.
56. The impact of the fault is that ultimately B only received 30% of the support hours in their EHC Plan in the 2022/2023 school year including holidays. This is an unacceptable loss of provision, made worse by the fact that the people supporting B are not suitably qualified and do not have the capacity to ensure B always has the 2:1 support they need to stay safe in the community. This has caused Miss X significant avoidable distress.

EHC Plan provision- carers assessments

57. I have seen no evidence the Council has offered Miss X or B’s siblings a carers assessment every six months as stipulated in the EHC Plan. This was fault and again caused Miss X frustration. However, I cannot be sure the fault caused B an injustice.
58. After Miss X requested an assessment, the Council carried one out. Miss X does not feel it was personalised to her circumstances. This is outside of the scope of my investigation. It is open to Miss X to complain to the Council about the assessment and then the Ombudsman, if she remains dissatisfied.

EHC Plan provision- British Sign Language

59. The Council did not offer Miss X or B’s siblings any BSL training in the period covered by this investigation (July 2022-August 2023). This was fault and caused Miss X frustration. However, I cannot say there was an injustice to B because I do not know what the outcome of the training would have been.

Child In Need support

60. The Council has not been keeping child in need plans or review meeting records for B or their siblings until recently. It says this is because Miss X did not want it to. While it is beneficial for councils to have a positive working relationship with a parent of a child in need, the priority should always be the child’s welfare and wellbeing.
61. The statutory guidance “Working together to safeguard children” is clear that where a council is providing services under child in need legislation, it should develop a child in need plan which sets out what support will be made available to the child and family and which logs what progress has been made. Without such records, it may be difficult for the Council to show it has acted appropriately to meet B’s needs as a child in need. The Council’s failure to keep proper records was fault.
62. Miss X did not complain about the Council’s decision not to keep child in need records, and it was acting on her request, so she did not experience a significant personal injustice because of the fault.

Complaints handling

63. From the date the Council allocated Miss X’s stage one complaint to an officer, it took eleven working days to respond. This was in accordance with its complaints procedure. However, overall the Council took 78 working days to reply. The delay in allocating the complaint was significant and was fault. It caused Miss X further frustration. The Council issued its stage two response without notable delay.
64. Complaints have a key role in supporting councils to make the most of the resources they have. They provide a free, timely way for councils to gain feedback on the services they provide, driving improvements and increasing accountability. It is concerning therefore, that at the time it responded to my enquiries, the Council had 31 overdue complaints. That amounted to over 40% of the open complaints at the time. This poor complaints handling was fault.

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Agreed action

65. We have the power to make recommendations to remedy the injustice experienced by complainants and members of the public affected by fault we identify. (Local Government Act 1974 s 31(2B)). I have set out below the actions the Council will take to remedy the injustice to B, Miss X and those people who were also caused an injustice by the Council’s fault.
66. Within one month of the date of my final decision, the Council will take the following actions.
1. Apologise to Miss X for the frustration, distress and uncertainty she felt due to the Council’s failure to:
1. carry out the 2022 annual review within the required timeframe;
2. ensure B was receiving the at home OT support in their EHC Plan;
3. secure the radio aid in B’s EHC Plan without delay and make it available for B to use in the community;
4. secure support from an MSI teacher and carry out the 2022 NATSIP review;
5. ensure B received the full CSW or Intervenor community support package in their EHC Plan;
6. offer Miss X and B’s siblings regular carers assessments;
7. explore online BSL courses for Miss X and B’s siblings; and
8. issue its complaint response in a timely way.
2. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology I have recommended above.
3. Pay Miss X £400 in recognition of her injustice.
4. Pay Miss X £4600 in recognition of the impact of the lost provision on B. I have recommended this amount in line with the Ombudsman’s guidance on remedies, taking into account the provision that was lost, how long for, the level of B’s needs and where they are in their education.
5. Write to the individuals who have overdue complaints and apologise to them. The apology will be in line with the Ombudsman’s guidance on remedies and will explain they have been identified as a result of an Ombudsman’s investigation.
6. Make clear to officers that the Council is under a duty to secure the special educational and social care provision in a child’s EHC Plan. While the EHC Plan is in force, the duty remains even if the Council does not agree the provision is still necessary.
7. Review the Council’s involvement in securing B’s community support hours and identify any areas where it could and should have taken action to make sure B got the full provision they were entitled to as soon as possible. The Council will send us details of those areas and what action it will take to prevent similar fault in future.
67. The Council will provide us with evidence it has complied with the above actions.

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Final decision

68. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman