Summary: The Council was at fault for a year-long delay in deciding Mrs X’s daughter’s special educational needs support. Although it began delivering some support before the end of the delay period, there was still a significant delay to some of the support Mrs X’s daughter needed. The Council should now deliver missed support and should offer symbolic payments to Mrs X and her daughter to recognise their injustice.

The complaint

1. The complainant, whom I refer to as Mrs X, complains that the Council took too long to decide her daughter’s special educational needs (SEN) support. I refer to her daughter as Y.
2. The Council told Mrs X in its complaint response that, despite the long delay finalising Y’s support (which it accepts), it actually began delivering the support months before it had officially finalised it.
3. Mrs X says, however, that Y has not received some of her SEN support at all (including after the Council had finalised it). She says this has caused Y to struggle at school, which has affected her education and caused her distress.

Back to top

The Ombudsman’s role and powers

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. If we are satisfied with a council’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).

Back to top

How I considered this complaint

7. I considered:
• Information from Mrs X and the Council.
• The ‘Special educational needs and disability (SEND) code of practice’, which provides statutory guidance to councils on meeting children’s SEN.
• Relevant case law.
8. Mrs X and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

Back to top

What I found

The Council’s responsibilities

9. A child with SEN 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.
10. If a council proposes to amend an EHC plan, it must send the child’s parent an amendment notice. (SEND code paragraph 9.194). This should happen within four weeks of the date of the review meeting. (R on the application of L and others v Devon County Council (2022) EWHC 493)
11. The council must then issue the amended EHC plan as quickly as possible, and within eight weeks of the original amendment notice. (SEND Code paragraph 9.196)

What happened

12. In 2022, Y attended a mainstream primary school. She had an EHC plan, which, in June, her school reviewed. It decided it could not meet her needs with the support which was in place at that time. It noted that it would need extra resources to deliver up-to-date and personalised therapy programmes to her.
13. In August, Y’s school sent its review paperwork to the Council. The Council did not take any action until November, when it wrote to Mrs X and told her it would amend Y’s plan.
14. The Council sent draft amended plans to Mrs X in January and March 2023. The latter plan said Y should receive:
• Six direct sessions with a speech and language therapist.
• A personalised speech and language therapy programme, devised by a therapist and delivered by Y’s school.
• Termly reviews by a speech and language therapist.
• A personalised occupational therapy programme, devised by a therapist and delivered by Y’s school.
• Various other teaching approaches designed to address Y’s needs.
15. The draft plan said the proposed support was based on, among other things, recommendations made by Y’s speech and language therapist in 2020 and 2021, and her occupational therapist in April 2022.
16. Shortly after this, the Council wrote to Y’s school and said it would increase the money available for the school to deliver extra support to Y. The school updated Y’s support plan, and included an occupational therapy programme, one-to-one support in English, and ‘Lego therapy’.
17. Y also started to receive sessions with a speech and language therapist. However, after three sessions, the therapist went on maternity leave and the therapy stopped.
18. Because of staffing issues, Y did not receive her personalised speech and language therapy programme at school in the summer term.
19. In May, Y’s occupational therapist sent a letter to Y’s school which was meant to have an updated personalised programme attached, but didn’t.
20. In June and July Mrs X emailed the Council three times to try and find out when it would issue Y’s final EHC plan, but she received no response.
21. In early September, the Council finalised Y’s EHC plan, with much the same provision as had been in the draft plan six months before. Y’s school began delivering her personalised speech and language therapy programme at this point.
22. In November, Y’s school reviewed her new EHC plan. It noted that she was receiving personalised daily therapy programmes in line with her plan, as well as Lego therapy and one-to-one support in maths and English.
23. In March 2024, following my enquiries of the Council, it sent an officer to Y’s school to assess the school’s delivery of her support. The school told the officer about the support Y had missed, and the reasons for this (as summarised above).
24. The school said it had re-referred Y to her speech and language therapist (who had returned from maternity leave), and she would now receive her remaining sessions. It also agreed to contact the NHS’ occupational therapy service to enquire about the personalised programme the service had meant to provide in May 2023.

My findings

25. As the annual review of Y’s EHC plan was held in June 2022, the Council should have issued the new amended plan at around the start of the new term in September. Instead, it issued the amended plan a year late.
26. This was fault by the Council, which it has already accepted.
27. As the Council was in possession of relevant professional reports in plenty of time before Y’s amended EHC plan was due, I see no reason why the plan would have been obviously different had it been issued on time.
28. Because of this, any period between September 2022 and Y starting to receive the support in her amended EHC plan constitutes a delay to her receipt of that support.
29. I cannot comment on the delivery of much of the support in Y’s plan because it concerns daily approaches to teaching her which I cannot measure (some of which she may have been receiving anyway).
30. However, there is some therapy provision in the plan, which is measurable and which was missed. I am satisfied that:
• As of March 2024, Y had not received three of her six sessions with her speech and language therapist.
• She has not received most of the termly reviews by the speech and language therapist since September 2022.
• She did not start receiving her personalised speech and language therapy programme until September 2023 (a delay of a year).
• She did not start receiving her personalised occupational therapy programme until April 2023 (a delay of seven months).
31. There was also an updated occupational therapy programme in May 2023 which was not sent to the school, and which the school did not chase up. However, in the absence of this updated programme, it is not clear whether this had a significant impact on Y.
32. The Council should now provide remedies to Y which either deliver support she has missed or recognise the injustice she has suffered from missed support up to now.
33. This should include a symbolic financial remedy for her distress. The remedy should reflect the long delay to her support, but should also reflect that her education does not appear to have been obviously unsuitable in other ways (and it appears she was, in fact, receiving some provision over and above what is in her EHC plan, such as Lego therapy and one-to-one support).
34. The Council should also provide a symbolic financial remedy to Mrs X, who likely suffered distress from the delay, both in uncertainty about Y’s support and in the time and trouble she went to chasing an outcome.

Back to top

Agreed actions

35. Within a month, the Council has agreed to:
• Ensure Y receives her remaining missed speech and language therapy sessions.
• Ensure her occupational therapy programme is up to date.
• Make a payment of £1,500 to Mrs X, on Y’s behalf, to recognise Y’s injustice from her missed SEN support.
• Make a further payment of £300 to Mrs X to recognise her own injustice from the delay to Y’s support.
36. Within two months, the Council has agreed to provide us with an action plan which sets out how, in future, it will avoid similar failures to complete timely EHC plan amendments.
37. The Council will provide us with evidence it has done these things.

Back to top

Final decision

38. The Council was at fault.

Back to top

Investigator's decision on behalf of the Ombudsman