Summary: Mr X complained about the Council’s handling of his child, F’s Education, Health and Care (EHC) Plan during 2023. The Council delayed issuing F’s amended EHC Plan following two annual reviews during 2023. It also failed to give clear feedback about its decision not to include some provision in the plan. The Council agreed to make payments to Mr X to acknowledge the injustice this caused. Mr X’s complaint about the decision not to include therapy provision in F’s EHC Plan is outside of our jurisdiction as he appealed this to the SEND tribunal.

The complaint

1. Mr X complained about the Council’s handling of his child, F’s Education, Health and Care (EHC) Plan during 2023. Mr X said the Council delayed issuing amended plans following annual reviews, refused to include occupational and music therapy in the plan and did not properly communicate its decision making.
2. Mr X said the matter has impacted on F’s education and caused the family distress, uncertainty and time and trouble.

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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 cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended).
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).
6. 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

7. I spoke to Mr X about his complaint and considered information he provided.
8. I considered the Council’s response to my enquiry letter.
9. Mr X and the Council had the opportunity to comment on the draft decision. I considered comments before making a final decision.

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What I found

EHC Plans

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.
• Section I: The name and/or type of educational placement. 
• Section K: copies of all the advice and information obtained as part of an EHC needs assessment.

Annual reviews

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.
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. Where the council proposes to amend an EHC Plan, the Courts have found councils must both notify the parent of the decision to amend, and what the proposed changes are within 4 weeks of the annual review meeting. The council must then issue any final amended plan within 8 weeks of the amendment notice. This means a final plan must be issued within 12 weeks of the review meeting.

SEND Tribunal and relevant caselaw

15. 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.
16. There is a right of appeal to the SEND tribunal against 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.
17. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207).
18. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).

What happened

19. Mr X has a child, F who is of primary school age. F has special educational needs and an EHC Plan. In 2022 Mr X appealed to the SEND tribunal about the content of F’s plan. The tribunal ordered the Council to make changes to the plan and reminded it to carry out an OT assessment which it had previously agreed to do and consider assessing F for music therapy as part of the next annual review.
20. The Council issued F’s amended EHC Plan in October 2022. Mr X noted the Council had not attached a neuropsychological report to section K of the plan despite referring to it within it.
21. F’s annual review was held in January 2023. Mr X said he had commissioned private OT and music therapy assessments and presented these reports at the review meeting. The outcome from the review meeting recommended further input from OT, equipment to help with toileting and dining, music therapy and neuro-physiotherapy.
22. In March 2023 the Council’s SEN panel considered the recommendations from the annual review meeting including the request for equipment, music therapy and OT. The panel declined to amend F’s EHC Plan to include this provision. The panel said an NHS OT needed to consider an assessment around the equipment for F.
23. The Council issued F’s amended EHC Plan in mid-June 2023.
24. Another annual review of F’s EHC Plan was held a week later in June 2023. The Council wrote to Mr X in August 2023 confirming it would amend the plan. The Council’s SEN panel again considered the recommendations for the provision of equipment and therapy. The panel declined the request on the basis there was no available risk assessment and referred F to an NHS physiotherapist.
25. Mr X complained to the Council in September 2023. He raised a number of concerns including:
• Failing to include the neurophysiological report in section K of F’s EHC Plan.
• Delays issuing F’s amended EHC Plan following the January 2023 annual review.
• Refusing to send the draft EHC Plan in ‘word’ format to allow him to make changes and suggestions.
• Failing to include music therapy in the EHC Plan despite the supporting evidence from his private report.
• Mr X said the SEN panel’s decisions not to include OT and approve relevant equipment were contradictory with no explanation of its decision making. Mr X said F has no equipment to toilet properly.
26. In September 2023 Mr X appealed to the SEND tribunal about the content and provision in F’s EHC Plan.
27. The Council responded to Mr X’s complaint in November 2023. It said:
• The SEND tribunal will consider the decision not to include the neuropsychological report.
• It apologised for failing to meet statutory timescales following the January annual review.
• It does not provide draft EHC Plans in ‘word’ format as it leaves the Council vulnerable to changes in plan without it being aware.
• It acknowledged Mr X’s concerns about the lack of feedback from the SEN panel. It said it would review this and provide further detail where appropriate.
• The same person was the clinical lead for both NHS OT and physiotherapy. However, it noted this provision would be considered by the SEND tribunal.
28. Mr X was unhappy with the Council’s response and escalated his complaint to stage two. He reiterated much of the points raised at stage one. He said the Council had still not issued an amended plan following the June 2023 annual review meeting.
29. The Council responded to Mr X with its stage two response in January 2024 agreeing with the stage one response.
30. Mr X remained unhappy and complained to us.
31. Following his complaint to us Mr X told us that some of the issues had been resolved following a consent order issued by the SEND tribunal in February 2024. He said:
• The Council issued F’s amended EHC Plan in April 2024
• The Council had allocated F a new caseworker and manager.
• OT, equipment and music therapy was now in place and included in the plan.
• The neuropsychological report was now included in section K of F’s plan.
32. Mr X remained unhappy that OT and music therapy was not provided earlier. He also remained unhappy with the various delays and the handling of the SEN panel during 2023 and the lack of feedback.

The Council’s response to us

33. The Council apologised again for the delays in issuing the amended EHC Plans following the annual reviews. It said it had reviewed its process and now ensures officers attend review meetings with a view to amending the plan earlier.
34. It said going forward it will ensure caseworkers attend SEN panel meetings to obtain feedback and to present cases. It will also allow parents to either attend panel meetings or ‘dial’ to ensure their views are heard and so they can obtain greater detail about the decision making.
35. The Council said it has also:
• Carried out staff training in respect of the SEND Code of Practice.
• Agreed to provide ‘word’ versions of draft EHC Plans to parents.
• Made a commitment to improve timescales for the completion of EHC Plans following annual reviews.

My findings

SEND tribunal matters

36. Much of Mr X’s complaint was about the lack of OT and music therapy in F’s EHC Plan. He believes the Council should have included this in the plan following the conclusion of the SEND tribunal in 2022. He was also unhappy about the Council’s failure to include the neuropsychological report in the plan. Paragraphs 17 and 18 explain the restrictions placed on our jurisdiction when someone has appealed to the SEND tribunal against the contents of an EHC Plan.
37. Ultimately, the Council’s SEN panel had declined to amend F’s EHC Plan to include provision such as OT and music therapy. Mr X appealed to the SEND tribunal in September 2023 about the content of F’s EHC Plan. This therefore means we cannot investigate this element of the complaint or remedy any injustice linked to this lack of provision. Following the consent order in February 2024 F now has OT and music therapy provision and the neuropsychological report is included in the plan.

Annual review delays

38. F’s annual review took place in January 2023, however the Council did not issue his final amended plan until June 2023. This was a delay of around two months outside statutory timescales which was fault. This caused Mr X frustration, delayed his right of appeal to the SEND tribunal and delayed F’s school access to the up to date plan.
39. A further annual review of F’s plan took place in June 2023 however despite agreeing to amend the EHC Plan the Council did not issue one until April 2024 after the SEND tribunal issued the consent order. While Mr X had appealed to the SEND tribunal this did not absolve the Council of its duty to meet statutory timescales following the annual review. Had the Council done so, it may have resolved some of the issues Mr X had brought to appeal earlier. The delay issuing the final plan following the June 2023 annual review was fault.
40. The Council has told us about actions it has taken to improve its service in this area and Mr X has told us that matters have improved since complaining to us. This being the case, I have not made any further service improvement recommendations.

SEN panel feedback

41. The Council’s SEN panel discussed and considered F’s OT and music therapy on two occasions. I cannot comment on the panel’s final decision not to amend the plan to include this provision as Mr X had appealed. However, the feedback and justification for the panel’s decision making was poor. There is no evidence the panel properly explained its decision making or provided Mr X with any level of detail about how it reached the decision or what he should do next. The panel provided contradictory information about what advice was required, firstly OT advice and then physiotherapy advice. Although the Council has now explained to us that the clinical lead was the same person, this was not clear at the time. The lack of clear feedback and rationale about the panel’s decision was fault causing Mr X frustration and uncertainty. We welcome the Council has recognised improvements were required in this area and now has a change of process to allow parents to attend panel meetings and to provide greater feedback.

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Agreed action

42. Within one month of the final decision the Council agreed to:
1. pay Mr X £500 to recognise the frustration and uncertainty caused by the faults identified in this case.
2. pay Mr X £300 to acknowledge the impact caused to F between April and June 2023 by the delay in issuing the amended EHC Plan.
43. The Council should provide us with evidence it has complied with the above actions.

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Final decision

44. I completed this investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman