Summary: Mr F complained the Council delayed providing his daughter with an assisted listening device. He also says the Council failed to adhere to statutory timescales when dealing with his daughter’s annual review and its communication with him was poor. We find the Council was at fault as it delayed communicating with the school to resolve the issue with the assisted listening device. It also did not adhere to statutory timescales when dealing with Mr F’s daughter’s annual review and it was at fault for its overall communication with Mr F. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Mr F complained the Council delayed providing his daughter, G, with an assisted listening device. He also says the Council failed to adhere to statutory timescales when dealing with G’s annual review and its communication with him was poor.
2. Mr F says the matter has caused distress and upset. He also says G has lost out on crucial provision.

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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. 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.
6. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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)
8. 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

9. I considered information from Mr F. I made written enquiries of the Council and considered information it sent in response.
10. Mr F 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

Special educational needs

11. 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. 

Reviewing EHC Plans

12. 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.
13. 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) 
14. 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 SEND Tribunal.

What happened

15. G has special educational needs and an EHC Plan. The Council issued G’s EHC Plan in April 2022.
16. G was due to transition to secondary school in September. In May Mr F sent the Council and G’s new school a report from the NHS. This said G would benefit from an assisted listening device and it should be included in her EHC Plan.
17. The Council held an annual review of G’s EHC Plan in early February 2023. Mr F said G had not received the device. He said this would help with her auditory processing. The school said it could not submit a high needs funding bid to buy the device as it was not expertly placed to buy it without support from specialists. The school said it had contacted the Council several times to discuss the issue but had not received a response.
18. The Council contacted the school in late February and asked for some further information about G’s hearing impairment. The school sent the email to Mr F. Mr F emailed the Council and provided the recommendations from the NHS report. He asked the Council to urgently investigate the matter.
19. The Council responded to Mr F in late April. It said it was liaising with one of its deaf specialist teachers and it would get back to him.
20. As Mr F had not received a response, he chased the Council twice for an update in June. He also said it had not provided him with its decision letter after G’s annual review in February.
21. Mr F complained to the Council. He said it failed to adhere to the statutory timescales after G’s annual review in February. He also said it had failed to respond to the recommendations from the NHS report and its communication was poor.
22. The Council sent a letter to Mr F in July and agreed to maintain G’s EHC Plan. It did not agree to any amendments.
23. The Council responded to Mr F’s complaint at the end of July. It apologised for not processing G’s annual review within statutory timescales. It said it could not fund the device as G does not have hearing loss. It said the school would need to buy the device. It apologised for its delays in responding to his communication.
24. Mr F emailed the Council and said he was unhappy with its response. He said it was responsible for ensuring G had access to the device. He said G had difficulties understanding speech in noisy environments.
25. The Council responded to Mr F at the end of August and said it was not legally required to provide the device as it was not in G’s EHC Plan. However, it said it would discuss the matter with the school when it reopened after the summer holidays.
26. The Council emailed G’s school and told it to ask for an increase in the high needs funding which would enable it to buy the device for G. The school agreed to this. The Council emailed Mr F and updated him.

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Analysis

27. Mr F refers to matters from May 2022, but he did not refer his complaint to us until November 2023. Events before November 2022 would usually be caught by the restriction in paragraph seven of this statement. However, this was an ongoing matter affected by continual delays. Therefore, I have exercised discretion to investigate matters from May 2022 onwards.
28. The Council should have decided whether it would maintain, amend or discontinue G’s EHC Plan by the beginning of March 2023. It did not confirm its decision to maintain G’s EHC Plan until July 2023. This is a significant delay and is fault. The Council also failed keep Mr F properly informed and he had to chase for updates. These faults caused Mr F frustration and distress.
29. The Ombudsman would usually expect a parent to appeal to the SEND Tribunal if they are not happy with the content of their child’s EHC Plan. In this case, the Council confirmed in July 2023 it would not amend G’s EHC Plan to include the device. However, in August, it said it would try and resolve matters with the school. It then confirmed the following month it would support the school to buy the device. It was reasonable for Mr F to allow the Council an opportunity to resolve matters with the school rather than appealing to the SEND Tribunal. Therefore, I have exercised discretion to investigate his complaint about the device.
30. The Council said in response to my enquiries that when a child or young person needs equipment it is usually the school that would buy this. It said it is not usual practice to add equipment to an EHC Plan as it is a one-off purchase. However, it accepts it delayed supporting the school and it did not confirm the position until September 2023.
31. The Council’s records of its communication with the school and Mr F are limited because the officer that was dealing with G’s case no longer works for the Council. It is therefore not clear whether the Council responded to Mr F’s email from May 2022 or whether it communicated appropriately with the school about the device before February 2023.
32. The records I have from February 2023 onwards show the Council delayed providing Mr F with updates on the matter and he had to chase for a response. The Council also delayed liaising with the school.
33. These faults have caused Mr F a significant injustice. Although the Council is not legally required to provide the device as it is not listed in G’s EHC Plan, if it had liaised with the school sooner and confirmed it would need to apply for high needs funding to buy the device, G may have received the device sooner. This leaves Mr F with a significant level of uncertainty. He also had the added frustration and distress of chasing matters up with the Council.
34. We have asked the Council in other similar cases to review its communications strategies and systems and review its procedure for considering provision requests to ensure it deals with them in a timely manner. We have also asked it to implement training so staff are aware of the statutory timescales following annual reviews. Therefore, I have not recommended any further service improvements in this case.

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Agreed action

35. By 15 May 2024 the Council has agreed to:

• Apologise to Mr F for the injustice caused by the faults identified in this decision statement.
• Pay Mr F £200 for the frustration and distress caused by its communication with him and its delays in processing G’s annual review.
• Pay Mr F £400 for the uncertainty caused by its delays with liaising with the school about the high needs funding for G’s device.

36. The Council should provide us with evidence it has complied with the above actions.

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Final decision

37. There was fault by the Council, which caused Mr F an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman