Summary: Mrs X complained the Council failed to provide the provision specified in her daughter, Y’s Education, Health and Care (EHC) Plan between October 2022 and May 2023 and failed to issue an amended Plan after the review meeting in May 2023. Mrs X also complained the Council delayed responding to her complaint and has not provided an explanation for the lack of provision. The Council failed to secure Y’s specialist provision for two and a half terms and delayed in responding to Mrs X’s complaint. The Council agreed to pay Mrs X £200 for the injustice caused to her and £2000 to recognise Y’s missed provision.

The complaint

1. Mrs X complained the Council failed to provide the provision specified in her daughter, Y’s Education, Health and Care (EHC) Plan between October 2022 and May 2023 and failed to issue an amended Plan after the review meeting in May 2023. Mrs X also complained the Council delayed responding to her complaint and did not provide an explanation for the lack of provision.
2. Mrs X states this caused Y and herself distress and Y missed the provision in her Plan. Mrs X wanted the Council to explain why the provision was not in place, put the provision in place, issue an updated EHC Plan and provide compensation for the distress caused.

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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. 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)
5. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating; or
• any fault has not caused injustice to the person who complained; (Local Government Act 1974, section 24A(6), as amended, section 34(B))

6. 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)
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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How I considered this complaint

8. I read the documents Mrs X sent and discussed the complaint with her on the phone.
9. I considered the documents the Council sent in response to my enquiries.
10. Mrs 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

Education, Health and Care Plan

11. 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.
12. 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.

Reviewing an EHC Plan

13. 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.
14. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue 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) 
15. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.

Provision

16. The Council is responsible for making sure that arrangements specified in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.
17. 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)
18. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC Plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:

• check the special educational provision is in place when a new or substantially different EHC Plan is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.

Council’s complaint policy

19. The Council’s complaints policy states that it will respond to complaints within 20 working days at stage one of its complaint procedure. If a complainant requests a stage two review of the complaint, the Council will consider if a further reinvestigation is appropriate. If it decides not to consider the matter further it will write to the complaint to explain why and the steps they can take if they remain dissatisfied.

What happened

20. The Council issued an amended EHC Plan for Y in October 2022 following a SEND Tribunal order. The Plan said Y is autistic and had communication and interaction needs which were a significant barrier to her learning. It identified Y required specialist provision including:
• the staff working with Y to follow all advice and guidance given by the speech and language therapist (SLT);
• staff to be trained on a specific approach for supporting children with language and communication difficulties for a minimum of two hours by a SLT who specialises in Autism;
• a SLT to meet once per half term for one and a half hours to assess and monitor Y’s progress and re-adjust the targets; and
• a SLT to allocate three to four hours to fully reassess Y for the annual review, prepare and write a report and attend the review if necessary.
21. The school Y attended held an annual review meeting of her EHC Plan at the end of May 2023. The record of the meeting shows the school reported that Y was making good progress in her communication and interaction skills and Y was on track to achieve her outcomes. Mrs X asked why the SLT was not present for the review meeting. The Council said it would find out if the SLT was involved with Y.
22. Mrs X complained to the Council that the provision was not in place. She said Y was not receiving the speech and language elements of her EHC Plan.
23. The Council contacted the NHS SLT service on the same day and it confirmed Y was not receiving support. The Council completed a rereferral to the SLT service and sent the most recent SLT report which had been completed in June 2021 and was the basis of the recommendations for Y’s EHC Plan.
24. The Council wrote to Mrs X in June and told her it had decided to maintain Y’s EHC Plan. It told Mrs X of her appeal rights if she disagreed with the decision. Mrs X said she did not receive that letter.
25. The SLT service told the Council in August 2023 it would reassess Y’s needs as the original assessment was two years old and should be reviewed annually.
26. The Council told Mrs X the SLT needed to complete a reassessment to make sure Y’s current needs and provision was identified. Mrs X declined a reassessment and asked for a personal budget to pay a private SLT to provide the SLT provision in the EHC Plan. The Council asked for more information on Mrs X’s request for a personal budget so it could consider it.
27. The SLT service told the Council it had discharged Y as Mrs X had declined the service. It said it had confirmed to Mrs X that it had therapists trained in Y’s specific area of communication difficulties.
28. The Council responded to Mrs X’s complaint in August. It upheld her complaint that it had not provided the SLT provision and apologised. It asked Mrs X to agree to the SLT reassessment or to provide costings so it could consider a personal budget for the SLT as requested.
29. Mrs X asked the Council to consider her complaint at stage two. She said:
• the Council had requested a reassessment by the SLT, but that as no provision had been provided a reassessment was not needed as Y’s needs had not changed;
• the Council had not explained why the SLT provision had not been provided to Y; and
• she wanted the Council to provide a personal budget to pay for private SLT provision currently outlined in the EHC Plan.
30. The Council responded and said it would not consider the complaint further as Mrs X had an appropriate route to solve the issue. It said Mrs X could either engage with an SLT review or provide costs for it to consider a personal budget. It said a second consideration of the complaint would not be able to offer anything further.
31. In response to my enquiries the Council said it did not arrange the SLT provision in October 2022 as a key staff member who was responsible for commissioning provision following a tribunal order was on leave for an extended period and the processes were not followed in their absence.

My findings

Special educational provision

32. The Council should have ensured the special educational provision in Y’s EHC Plan was secured for her. The Council did not secure the SLT provision at the time it issued Y’s Plan in October 2022. In May 2023, once the Council was aware the SLT provision was not in place it took immediate action to secure it by referring Y to the NHS SLT service. However, the SLT service did not accept Y’s referral until August 2023. This meant Y went without SLT involvement from October 2022 to July 2023. The lack of provision was fault. The Council agreed to my recommendation below to recognise the impact of the lost provision on Y.
33. The SLT service stated it would reassess Y to ensure her needs and provisions were up to date, as the original report was two years old. Whether a reassessment of Y’s SLT needs was necessary was for the NHS SLT to decided and was not a decision made by the Council. The Council had taken suitable steps to secure the provision for Y by August 2023. Mrs X declined the reassessment from the NHS SLT, which is her right, however there was no fault in the Council’s actions.
34. The Council said it would consider a personal budget for the SLT provision if Mrs X provided further information on costs for it to consider. It is open to Mrs X to provide that information.

May 2023 annual review

35. The Council issued a decision letter to Mrs X within four weeks of the annual review meeting and told her it was maintaining Y’s EHC Plan. It provided Mrs X with her appeal rights if she disagreed with the decision. There was no fault in the Council’s action.
36. Mrs X said she did not receive that letter, however there is insufficient evidence of fault to justify investigating this matter further, and as Mrs X did not disagree with the provision set out in the EHC Plan, she was not caused a significant injustice. I did not investigate that matter further.

Complaint handling

37. The Council took eleven weeks to respond to Mrs X’s complaint which was seven weeks longer than the 20 working days its complaint policy states. Although the Council upheld Mrs X’s complaint, it did not provide an explanation for the fault it found. The delay and lack of explanation caused Mrs X frustration and uncertainty about whether the Council had properly considered her complaint. This investigation provides an explanation of how the fault occurred.

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Agreed action

38. Within one month of this decision the Council will pay Mrs X £200 to recognise the frustration and uncertainty caused to her, and £2,000 to recognise the two and a half terms Y did not receive the SLT provision in her Plan between October 2022 and the end of the academic year in 2023. This is calculated at £800 per term and is in line with our Guidance on Remedies.
39. Within three months of this decision the Council will develop a contingency plan to ensure correct process for commissioning specialist provision is followed in the absence of the key council officer. It will provide us with a copy of that contingency plan.
40. The Council will provide us with evidence it has complied with the above actions.

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Final decision

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

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman