Summary: Mrs X said the Council failed to secure the special educational provision set out in her child’s Education, Health and Care (EHC) Plan. She said this affected her child’s educational attainment and overall wellbeing. Mrs X also said the Council failed to effectively address her concerns about this. We have found the Council at fault for failing to ensure the special educational provision was in place, and for failing to adequately investigate Mrs X’s concerns. We have also found the Council at fault for misadvising Mrs X about the Council’s duties and for a lack of regard to the SEND Code of Practice in drafting Section F of the EHC Plan. We have made recommendations to remedy the injustice this caused.

The complaint

1. Mrs X said the Council failed to secure the special educational provision set out in Section F of her child’s Education, Health and Care (EHC) Plan. She said this was the case since the Council issued the plan in December 2022.
2. Mrs X said the Council’s failure to secure this provision affected her child’s educational attainment, personal development and overall wellbeing.

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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. 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.
5. 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)

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How I considered this complaint

6. I discussed the complaint with Mrs X and considered information she provided.
7. I considered information the Council provided about the complaint.
8. Both Mrs X and the Council were able to comment on a draft version of this decision. I considered all comments received before making a final decision.
9. 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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Relevant legislation, guidance and policy

Education, Health and Care Plan

10. 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 the council can do this. 
11. The EHC Plan is set out in sections which include:
• Section B: Special educational needs.
• Section F: The special educational provision needed by the child or the young person.
12. The SEND Code of Practice says special educational provision set out in Section F must be detailed and specific. It says it should normally be quantified, in terms of the type, hours and frequency of support, and level of expertise.
13. 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)
14. 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.

Reviewing EHC Plans

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 take place. The process is only complete when the council issues a decision about the review.
16. 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) 
17. Where the decision is to amend the existing EHC Plan, the Courts have found councils must notify the parent of the decision to amend, and what the proposed changes are, within four weeks of the annual review meeting. The council must then issue any final amended plan within eight weeks of this Amendment Notice. (R, (L, M and P) v Devon County Council). The amended final plan should therefore be issued within 12 weeks of a review meeting.
18. Where councils decide to carry out a full reassessment of an EHC Plan, it must issue the final EHC Plan within 14 weeks of the decision to re-assess.
19. There is a right of appeal to the Tribunal against:
• a decision not to carry out an EHC needs assessment or reassessment;
• a decision that it is not necessary to issue a EHC Plan following an assessment;
• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.

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What I found

Summary of key events

20. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “analysis” section of this decision statement.
21. Mrs X’s child is referred to as B in this statement. In December 2022, the Council issued B’s final EHC Plan. Section F of the plan sets out the special educational provision intended to meet B’s needs.
22. In June 2023, Mrs X wrote to the Council to say School Z had not implemented the special educational provision in Section F of B’s EHC Plan. Mrs X said their case worker had provided no support and School Z was not communicating with her. Mrs X said School Z planned to hold an emergency review of B’s EHC Plan, which Mrs X did not want. She said B’s EHC Plan was fine and it just needed to be implemented.
23. The Council replied to Mrs X:
1. It apologised for a lack of contact, explaining the case worker was absent.
2. It said School Z would review the provision in B’s EHC Plan at the annual review. The Council said School Z would explain to Mrs X what provision was in place and, if necessary, would clarify why it had not delivered parts of this provision. The Council said Mrs X could ask questions or raise concerns at the annual review.
3. The Council said School Z was responsible for delivering the provision once the Council issued the EHC Plan. It said Mrs X should therefore discuss her concerns with School Z.
24. In July 2023, Mrs X complained to the Council:
1. Mrs X said she had contacted School Z and the Council many times, but they had not addressed her concerns. Mrs X said the Council was responsible for securing the provision in B’s EHC Plan.
2. Mrs X said the Council had called an early review of B’s EHC Plan, despite not securing the provision in the plan from the beginning. Mrs X said claims B did not need the plan, or was meeting targets, were false. Mrs X said she did not want the provision in the EHC Plan changed without input from professionals and an assessment. Mrs X said an assessment would show B’s needs had not changed.
3. Mrs X said by failing to secure B’s provision, the Council was in breach of its duties under the Children and Families Act. Mrs X said this had affected B’s academic progress and mental health. She said staff working with B had no understanding of his needs, despite this being a requirement in the EHC Plan.
4. Mrs X said she had sought changes to the plan before the Council issued it, as she wanted the provision in the plan to be specific and quantified. Mrs X said the Council did not do this.
5. Mrs X said the EHC Plan was six months old, but School Z had not implemented it at any point.
25. The Council contacted School Z. School Z told the Council B had made excellent progress. School Z told the Council that B had met most of the outcomes specified in his EHC Plan, so he may not need the provision set out in the plan. The Council understood School Z was not looking to take anything away from B, but said it was important B had an EHC Plan and provision that reflected his needs.
26. The Council asked School Z to contact Mrs X and agree a suitable date for an annual review. It asked School Z to invite an educational psychologist to the review. It also asked School Z to show how it had used the funding allocated for B since the Council had issued the EHC Plan. The Council then wrote to Mrs X to update her on its conversation with School Z. It said everything should stay in place until School Z held the annual review. The Council said it would decide what changes were necessary to B’s EHC Plan. It said any such decisions came with the right to appeal to the SEND Tribunal.
27. In August 2023, the Council responded to Mrs X’s complaint:
1. The Council said it had identified B’s needs had changed since it issued the EHC Plan. Because of this, the Council said the EHC Plan may need to be amended. The Council said School Z planned to hold an early review to make recommendations about any proposed changes.
2. The Council said it had written to Mrs X to confirm this annual review would take place in October 2023. It said it intended to hold another professionals meeting in September ahead of the review.
3. The Council said School Z said B was making progress. It recognised Mrs X’s views, but said School Z and the Council were keen for B to know his efforts were celebrated. It said School Z was not looking to reduce B’s support, but to adjust provision to make sure it met B’s needs.
4. The Council said it would consider Mrs X’s views and document them at the annual review. It said it would consider these alongside School Z’s recommendations when deciding whether to amend B’s EHC Plan.
5. The Council said it did not uphold Mrs X’s complaint. It said it had contacted Mrs X and School Z to make sure the provision in place met B’s needs. It said B was making progress and there was no evidence the EHC Plan had not been implemented.
28. Mrs X asked the Council to escalate her complaint. The Council said it would not consider Mrs X’s complaint further, as this would not achieve anything more. The Council said Mrs X should raise her concerns about any unmet or unsuitable provision at the annual review.
29. Between August and September 2023, the Council, School Z and Mrs X arranged a professionals meeting and the annual review. A proposed earlier emergency review of B’s EHC Plan did not go ahead, as Mrs X said School Z had not provided the required paperwork in good time. The professionals meeting took place in September 2023. Mrs X continued to express concerns the Council had not fully secured the provision in B’s EHC Plan from the point of issue. The annual review took place in December 2023. Mrs X told the Ombudsman the Council had not issued an amended final EHC Plan as of April 2024. The Council told the Ombudsman it issued an amendment notice in May 2024.

Analysis

EHC Plan

30. The Ombudsman cannot direct changes to any section of the EHC Plan. We cannot recommend changes in the type or quantity of provision in place. Only the SEND Tribunal can do this. We can consider how the Council has set out the provision in the EHC Plan, and whether this accords with the SEND Code of Practice.
31. Paragraph 12 explains how provision in Section F of an EHC Plan should be detailed, according to the SEND Code of Practice. There is a significant volume of information in Section F of B’s EHC Plan. Some of this provision is specific and quantifiable, such as daily motor skills, handwriting practice and 1:1 support for learning tasks. However, most of the provision set out in Section F in B’s EHC Plan comprises of strategies or approaches that could support B. Most of the provision in Section F is therefore described in broad terms, not quantified by frequency or duration.
32. The Council did not have proper regard for the requirements of the Code when drafting Section F of B’s EHC Plan. I have found the Council at fault for this.
33. This lack of specificity means it is difficult to measure and oversee the provision in the plan for B. It means we cannot effectively investigate whether the Council fully secured this provision, because there is no clear benchmark for most of the provision in the EHC Plan. This lack of clarity causes uncertainty, which is an injustice to B and Mrs X.

Duty to secure provision

34. As set out in paragraph 14, the Ombudsman recognises councils cannot maintain a watching brief over whether provision is implemented. We therefore expect councils, as a minimum, to ensure provision is in place when issuing a new EHC Plan. We then expect councils to check provision through the annual review procedure, or by responding swiftly to any concerns raised.
35. I asked the Council how it made sure B’s provision was in place when it issued his EHC Plan. The Council said B’s EHC Plan named School Z, accounting for parental preference. It said while consulting on B’s EHC Plan, School Z told the Council it could meet B’s needs. The Council said it was therefore satisfied School Z secured B’s provision, meeting B’s needs.
36. The Council has not shown it ensured B’s provision was secured. Its response shows it relied on School Z’s assurances it could meet B’s needs, once the Council issued the plan and provided relevant funding. This is not the same as securing the provision. I have found the Council at fault for not ensuring B’s special educational provision was in place after it issued his EHC Plan.
37. Mrs X said in March 2023, she told the Council School Z was not securing B’s special educational provision. I have not seen evidence of this. However, correspondence I have seen from June 2023 mentions Mrs X’s previous concerns. On a balance of probabilities, I am satisfied Mrs X expressed her concerns to the Council in March or April 2023. I have seen no evidence the Council explored these concerns at the time. I note the Council told Mrs X her SEN caseworker was absent, which impacted its response.
38. In June 2023, the Council told Mrs X she should raise her concerns with School Z. It said School Z was responsible for delivering provision, once the Council issued B’s EHC Plan. Paragraph 13 defines the Council’s duties. The Council has a non-delegable duty to secure B’s provision, meaning it remains responsible even if it is School Z that delivers the provision. The Council therefore misadvised Mrs X and did not act as soon as it could to address her concerns. I have found the Council at fault for this.
39. Once Mrs X complained, the Council contacted School Z. The Council made suitable enquiries, including asking School Z to provide evidence of how it had set up B’s provision. The Council received a record showing some provision and limited monitoring. The Council accepted School Z’s explanation and sought to assure Mrs X of School Z’s intent. However, it did not address the substantive issue, which was a failure to secure all the provision in B’s EHC Plan over the preceding academic year. I have found the Council at fault for not adequately addressing Mrs X’s concerns and for failing to ensure provision was being secured.
40. The annual review took place in December 2023. I asked the Council how it ensured it secured the provision in B’s EHC Plan from the beginning of the 2023/24 academic year, pending any possible changes made through the annual review. The Council said the annual review highlighted B’s good progress and attainment levels over the 2022/23 academic year. The Council said it was satisfied the provision was in place, because B was making progress. It said the provision was no longer appropriate, due to B’s changing needs.
41. The Council’s response suggests it believed the provision in place was suitable, even if it was different from, or less than, the provision specified in B’s EHC Plan. This was based on B’s progress against the outcomes in his EHC Plan. The annual review paperwork makes clear B was achieving academically. Mrs X also recognised this. However, her concern was that B could have achieved more, if the provision set out in his EHC Plan was fully secured.
42. The Council could decide it should amend a child or young person’s provision, if relevant evidence supported this. However, the Council must make changes to provision through the annual review procedure set out in the Code of Practice. Until this happens and the Council issues a new EHC Plan, the Council must continue to secure the provision set out in the existing EHC Plan. Stopping or reducing provision, without amending or ceasing the EHC Plan, would leave Mrs X without the correct recourse to challenge that decision, via an appeal to the SEND Tribunal.
43. Again, the Council cannot show it fully investigated or addressed Mrs X’s concerns about a failure to secure the provision named in B’s EHC Plan. It also cannot show it made sure it secured the provision set out in B’s EHC Plan from the beginning of the 2023/24 academic year. I have found the Council at fault for this.
44. These faults caused an injustice to B. The Council has a non-delegable duty to secure the provision in the EHC Plan. The Council cannot show B’s special educational provision was in place once it issued the EHC Plan. It then did not satisfactorily respond to concerns Mrs X raised about this in later months.
45. The matter is complicated by the fact that, as noted, much of the provision in Section F was not drafted in such a way as to be quantifiable. However, given the above, my view is it is more likely than not that B did not receive the full special educational provision specified in his EHC Plan, from the point of issue. This likely affected B’s overall educational attainment and wellbeing. This is an injustice to B. The Council also failing to address Mrs X’s concerns over a prolonged period caused Mrs X avoidable frustration and distress.

Annual review

46. The Council held the annual review meeting in December 2023. The review paperwork shows proposed changes to B’s EHC Plan. Depending on whether the Council proposed to amend the plan, or carry out a reassessment, different timescales apply, as set out in paragraphs 17 and 18. In any event, the Council should have issued a final EHC Plan by approximately the end of March 2024.
47. Mrs X’s original complaint was not about this delay. However, this delay contributed to additional injustice for B. The Council is still required to secure the provision in B’s existing EHC Plan until it issues a new plan. The Council has not shown it secured the provision in B’s current EHC Plan. It is more likely than not that B did not receive this provision in full, up to the end of the second full term in the 2023/2024 academic year.

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Agreed action

48. The Ombudsman’s published Guidance on Remedies recommends a payment of between £900 and £2400 per school term, in cases where fault has resulted in the loss of educational provision. The Guidance on Remedies says factors that inform the recommended figure include:
1. The severity of the child’s SEN, as set out in their EHC Plan.
2. Any educational provision that was made during the period.
3. Whether additional provision can now remedy some or all of the loss.
4. Whether the period concerned was a significant one for the child or young person’s school career, such as the first year of compulsory education, transition to secondary education, or a period preparing for public exams.
49. In making the following recommendations, I have considered that B was a child with special educational needs. B was in compulsory education, but not in a key transition year. I have considered that B received education, but on balance missed special educational provision he was entitled to receive, likely affecting educational attainment and overall wellbeing. I have also considered that future provision is likely to be able to remedy some of the provision lost.
50. Within four weeks of the final decision being issued, the Council has agreed to:
1. Provide a written apology to Mrs X for the faults and injustice identified in this statement. The Council should have regard to the Ombudsman’s guidance on “Making an effective apology", set out in our Guidance on Remedies document.
2. Remind relevant staff the SEN Code of Practice says special educational provision included in Section F “must be detailed and specific and should normally be quantified, for example, in terms of the type, hours and frequency of support and level of expertise.”
3. Remind relevant staff it is the Council’s duty to make sure a child or young person receives the special educational provision set out in section F of an EHC Plan, under S42 of the Children and Families Act.
4. Act to ensure the provision specified in B’s existing EHC Plan is secured, if the Council has not yet issued a new amended final EHC Plan. The Council should clearly document its actions and conclusions.
5. Pay Mrs X £250 in recognition of the avoidable frustration and distress she experienced.
6. Pay Mrs X a further £3600 in recognition of B’s missed special educational provision. This is a figure of £900 for four terms: the spring and summer terms of the 2022/23 academic year, and the autumn and spring terms of the 2023/24 academic year.
51. Within eight weeks of the final decision being issued, the Council has agreed to:
1. Review its processes to ensure it can evidence the provision specified in Section F of a child or young person’s EHC Plan is put in place, once a new EHC Plan is issued.
52. The Council should provide us with evidence it has complied with the above actions.
53. The above remedies are recommended to account for injustice caused up to the end of the spring term in the 2023/24 academic year. I have not considered any possible injustice arising from ongoing events, as they are outside the scope of this investigation. It is open to Mrs X to make a new complaint about further events.

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Final decision

54. I have completed my investigation with a finding of fault causing injustice. I have made recommendations to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman