Summary: Ms X complains the Council did not deal with her son Y’s Special Educational Needs properly. The Council failed to deliver special educational needs (SEN) provision in Y’s EHC Plan, did not complete annual reviews of Y’s EHC Plan properly and did not respond to Ms X’s complaints in line with its corporate complaints policy. Ms X and Y suffered a loss of SEN provision and did not receive annual reviews properly. The Council should apologise, pay Ms X £1900 for missed SEN provision, show how Y’s EHC Plan is being met, show how annual review requirements will be met and deliver staff training.

The complaint

1. The complainant, whom I shall refer to as Ms X, complains the Council did not deal with her son Y’s Special Educational Needs properly because it failed to make provision specified in his EHCP from January 2020, to hold a review annually and to respond properly to her complaint.
2. Ms X says her son has lost three years of education.

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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 an injustice, 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.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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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)
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)

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What I have and have not investigated

7. I have not investigated Ms X’s complaint before January 2022, because this would be a late complaint.

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How I considered this complaint

8. I spoke to Ms X about her complaint and considered documents she provided. I made enquiries of the Council and considered its response and the supporting documents it provided.
9. Ms 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

Law, guidance and policies

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 F: The special educational provision needed by the child or the young person. 
12. 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)
13. 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 its legal duty. At a minimum we expect it 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. 
14. 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.

What happened?

15. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
16. Ms X raised an extensive list of questions about Y’s Special Educational Needs (SEN) provision with his school in July 2022.
17. MS X emailed the school in September 2022 raising concerns that provision in section F relating to handwriting provision had not been delivered and that Y had been using a laptop for some work instead of handwriting. The school replied to Ms X highlighting differences of opinion between herself and Y’s father regarding the use of a laptop.
18. At the end of September 2022, Ms X complained to the Council about SEN provision not being delivered, which now also included Speech and Language Therapy (SaLT) provision.
19. An annual review of Y’s EHC Plan was completed in December 2022. The outcome of this annual review was not finalised until August 2023, when the Council decided that it required re-assessment.

Analysis

20. The Council accepts it is at fault in relation to Y’s EHC Plan because:
• Y has not received any SaLT provision since September 2022.
• It did not meet its obligations in relation to the annual review process in respect of the final EHC Plan issued in January 2020 - An Annual review meeting should have been arranged within 12 months of the conclusion of the last review. The next Annual Review meeting did not take place until 6 December 2022. The Council apologises that it did not meet the statutory timescales for Annual Review.
• following the Annual Review held on 6 December 2022, it did not meet the timescale to notify Ms X of our decision to amend Y’s EHC plan i.e., within four weeks of the meeting.
• it did not issue an amended final EHC plan within eight weeks of the amendment notice being sent to Ms X;
• Further delays occurred as it did not follow statutory guidance and failed to allow Ms X the opportunity to provide her representations on the amendment notice in a face-to-face meeting.
21. The Council accepts it is at fault in relation to its complaint handling because:
• It did not follow its policy in relation to Ms X’s complaint. Initially it did not log Ms X’s complaint of 26 September 2022, due to an administrative error The Council has already apologised for this.
• Ms X’s further complaint dated 17 November 2022 (and further correspondence of 25 November), was logged correctly but was not responded to within 20 working days;
• It sent out response to Ms X’s concerns on 22 December 2022, however a response was due on 15 December. It did not send Ms X a holding email to explain and apologise for this delay.
• After Ms X requested that her complaint was escalated to stage 2 it did not respond within 20 working days, nor did it contact Ms X at any point to explain why it could not meet this deadline or to apologise for the inconvenience caused.
22. Y’s EHC Plan states that he should receive the following handwriting provision, “15 mins daily TA, LSA, HLTA, overseen by a Qualified Teacher” and writing individual support comprising “5 x 1-hour weekly TA, LSA, HLTA, overseen by a Qualified Teacher” This forms a total of 6 hours and 15 minutes provision per week.
23. The Council says:
• Y’s school have confirmed that they implemented the provision as stated within his EHC plan and it has provided the school with funding for this provision.
• There is no record from the December 2022 annual review meeting to show that any issues were raised concerning Y not receiving the provision he requires specified within his EHC plan.
24. I have reviewed Y’s provision plan dated October 2020, and which has been updated in April 2021, November 2021 and December 2022. There are no updates after this.
25. The December 2022 update states, “Parents recognise that his handwriting is an issue. There have been good improvements since Y has been having weekly sessions with the SEND teacher. These sessions need to continue. The Academy will also use National Tutoring funding to give Y 1:1 support for his handwriting for 60 minutes a week.”
26. Ms X first complained to the Council about missing provision in September 2022. The Council were aware of her concerns before the annual review.
27. The Council says it cannot provide any other evidence to show this provision has been made. The Council has not demonstrated appropriate oversight in gathering sufficient information to fulfil its duty to ensure SEN provision contained in Y’s EHC Plan has been made.
28. On the balance of probabilities, Y did not receive all the handwriting support listed in his EHC Plan. This is fault by the Council. Y missed SEN provision since January 2022.
29. I have considered the Ombudsman’s Guidance on Remedies, which states: “Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as:

• The severity of the child’s SEN as set out in their EHC plan.
• Any educational provision – full time or part time, without some or all of the specified support – that was made during the period.
• Whether additional provision can now remedy some or all of the loss.
• Whether the period concerned was a significant one for the child or young person’s school career – for example the first year of compulsory education, the transfer to secondary school, or the period preparing for public exams.
• Lost or delayed right of appeal to tribunal.

In addition to educational provision, additional remedies may also be required for injustice caused by fault in other provision such as missing OT and SALT. The level of financial remedy is likely to be lower than that for loss of educational provision and will depend on the level of provision missed and the impact of this on the child or young person.”

30. Y did not miss educational provision but has missed SEN provision.

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Agreed action

31. To remedy the outstanding injustice caused by the fault I have identified, the Council has agreed take the following action within 4 weeks of this decision:
• Apologise to Ms X and Y for the fault identified in this decision;
• Pay Ms X £1,000 for the failure to deliver handwriting support over 5 terms since January 2022;
• Pay Ms X £900 for the failure to deliver SaLT provision over 3 terms since September 2022;
• Provide evidence of action being taken to meet the provision set out in Y’s EHC plan;
• Produce an action plan to demonstrate how the council will meet statutory timescales for annual reviews; and
• Provide staff training to ensure they understand the legal framework and obligations in relation to the faults found.
32. The Council should provide us with evidence it has complied with the above actions.

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Final decision

33. I have found fault by the Council, which caused injustice to Ms X and Y. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman