Summary: Miss B complained the Council failed to deal with her son’s Education, Health and Care Plan within the legal timescales when she moved to its area. She says the Council failed to reassess her son as agreed, and it has failed to provide him with the specialist educational provision in his Education, Health and Care Plan. The Council was at fault for its delay in dealing with Miss B’s son’s Education, Health and Care Plan. It was also at fault for its communication with Miss B about the reassessment, and for its failure to secure some of the special educational provision in the Plan. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Miss B complained the Council failed to deal with her son’s (C) Education, Health and Care (EHC) Plan within the legal timescales when she moved to its area. She says the Council failed to reassess C as agreed, and it has failed to provide him with the specialist educational provision in his EHC Plan.
2. Miss B says the Council’s actions have caused distress and upset. She says B has missed out on provision and she has lost out financially.

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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 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)
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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
7. 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

8. I considered information from Miss B. I made written enquiries of the Council and considered information it sent in response.
9. Miss B 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

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. 

Moving to a new council

11. Where a child or young person moves to another council, the ‘old’ council must transfer the EHC Plan to the ‘new’ council. The new council must make sure the provision in the EHC Plan begins on the day of the move or within 15 working days of becoming aware of the move if this is later. The new council must review the EHC Plan either within 12 months of it being made or last reviewed or three months of the date of the transfer, whichever is the later date. The new council should contact the parent or young person within six weeks to notify them the EHC Plan has been transferred and when it will review the EHC Plan (Section 15 Special Educational Needs and Disability Regulations 2014).

Maintaining the EHC Plan

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 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. 

Reassessments of EHC Plans

14. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
15. The council must tell the child’s parent or the young person whether it will complete an EHC needs reassessment within 15 calendar days of receiving the request. If the decision is not to reassess, the council must also provide information about the right to appeal that decision to the tribunal.
16. If the council agrees to an EHC needs reassessment, it has 14 weeks to issue the final EHC Plan from the date it agreed to reassess to the date it issues the final amended EHC Plan.

Annual reviews

17. 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.
18. Caselaw has established that when councils are amending an EHC Plan, they should take no longer than 12 weeks from the date of the annual review meeting to the date it issues the final amended Plan.

What happened

19. This chronology gives an overview of key events and does not detail everything that happened.
20. C has special educational needs and an EHC Plan. Miss B contacted the Council in March 2022 and said C had an EHC Plan issued by another authority (Council X). She said she was moving to the area by the end of the month.
21. Council X contacted the Council in mid-April 2022 and provided a copy of C’s file.
22. The Council agreed to continue funding C’s placement at his school (School X). It also told School X to hold an annual review of C’s EHC Plan.
23. The Council emailed Miss B in mid-May and said it would complete an EHC needs reassessment for C. It said it would contact her shortly to provide more information about the process.
24. School X held an annual review of C’s EHC Plan in July 2022.
25. Miss B’s advocate complained to the Council on Miss B’s behalf in January 2023. She said it had failed to contact Miss B with information on C’s educational provision, and it had failed to provide any updates on C’s reassessment.
26. School X held an annual review of C’s EHC Plan in June.
27. The Council contacted Miss B in July. It apologised for the delay in responding to her complaint. It said it was dealing with a significant backlog of complaints.
28. The Council sent a letter to Miss B in September. It said it would amend C’s EHC Plan following the annual review. It issued his amended EHC Plan in October and named School X as the placement. The provision in the Plan included weekly sessions of occupational therapy (OT) and speech and language therapy (SALT).
29. A speech and language therapist contacted the Council in November. She raised concerns about the amount of therapy in C’s new EHC Plan. The Council responded and said it had not received any communication from School X that it could not meet the SALT provision, or any of the other provision, in Section F of C’s EHC Plan. The therapist sent a further email to the Council in December. She said she could provide C with two visits of SALT per term which is what was in his previous EHC Plan. However, she could not provide the increased provision.
30. The Council issued its stage one response to Miss B’s complaint in January 2024. It said the special educational needs team considered a reassessment of C’s needs was required. However, following a conversation between Miss B and her advocate, it agreed to update C’s EHC Plan following the annual review. It said there was a lack of communication regarding the process, and it failed to follow up on the delays to the annual review process. It apologised for this.
31. Miss B referred her complaint to stage two in February. She said it failed to address her complaint that it did not update C’s EHC Plan for over 18 months. This meant he had no special educational provision. She also said it had not delivered any of provision in C’s EHC Plan from October 2023.
32. As C was due to transfer to secondary school in September, the Council issued a further EHC Plan for C in February. It left the name of the school blank for September. Miss B appealed to the SEND tribunal about its failure to name a placement for September. Miss B says this matter is now resolved and the Council agreed C would return to School X in September.
33. The Council issued its final response to Miss B’s complaint in May. It said School X should have provided the provision in C’s EHC Plan.

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Analysis

34. Miss B referred her complaint to us in January 2024. However, she complains about matters from April 2022. Issues before January 2023 would usually be caught by the restriction in paragraph four of this statement. However, I have decided to exercise discretion to investigate Miss B’s complaint from April 2022 onwards. This is because Miss B originally raised her complaint to the Council in January 2023, and it took over a year to complete its complaints process.
35. The Council should have written to Miss B within six weeks and told her when it would review C’s EHC Plan. It failed to do so. This is fault, which caused Miss B frustration.
36. The Council told Miss B in May 2022 it would complete a reassessment of C’s needs. However, the reassessment did not happen. When the Council responded to my enquiries, it said it consulted with Miss B and decided a reassessment was not required and it could amend C’s EHC Plan after an annual review. However, it has not produced evidence of this agreement. It seems Miss B was unaware of this agreement, or she did not fully understand it, as she complained to the Council in January 2023 about its failure to complete a reassessment. The Council was at fault for its poor communication on this matter and its failure to properly explain its position to Miss B. This caused Miss B further frustration and confusion. If it explained its position, and Miss B still wanted a reassessment, it would have had to provide her with appeal rights to the SEND Tribunal about its decision not to reassess C.
37. Miss B says she paid for private assessments because of the Council’s failure to complete a reassessment of C’s needs. She wants a reimbursement of the money she paid. As I have stated above, the fault here is the Council’s failure to properly communicate with Miss B that it changed its mind and was not going to complete a reassessment. This deprived her of her appeal rights to the SEND Tribunal. We cannot say, even of the balance of probabilities, what the SEND Tribunal would have decided if Miss B decided to appeal. Therefore, I do not recommend a reimbursement of the fees Miss B paid.
38. Council X issued C’s EHC Plan in February 2022, and so the latest the Council should have reviewed C’s EHC Plan was by February 2023. However, School X held an annual review for C in July 2022. Therefore, it should have decided after this annual review whether it would amend C’s EHC Plan. If it decided to amend C’s EHC Plan, it would have had to issue a final amended Plan by October 2022. The Council failed to take any action after the annual review. This is fault. I consider it is more likely than not it would have amended C’s EHC Plan, especially after its comment in paragraph 36 of this statement that it considered the annual review process was the more appropriate way to amend the Plan. This has provided Miss B with uncertainty over C’s educational provision and what would have been in place for him sooner. Her appeals rights to the SEND Tribunal have also been frustrated.
39. School X held another annual review in June 2023, and so the Council should have issued C’s amended EHC Plan in September. It did not do so until October. It was at fault for failing to adhere to the statutory timescales. This means C lost out on provision that should have been in place sooner.
40. Miss B says C has not received the Section F provision in his EHC Plan since April 2022. The Council contacted School X during my investigation. School X says it has been able to meet the provision in Section F of C’s EHC Plan, apart from SALT and OT. This relates to C’s EHC Plan issued in October 2023. I have looked at the annual review notes from July 2022 and June 2023 and have not seen School X raised any concerns it could not provide the provision in the Plan. Therefore, I consider C has not received his Section F provision (SALT and OT) since the Council issued the amended Plan in October 2023. The Council should have had a process in place to check C was receiving this provision. Its failure to do so is fault. The speech and language therapist told the Council she could not provide the increased SALT for C. Miss B also raised the issue in her complaint. The Council has not taken any action to resolve this matter. This has had a detrimental impact on C as has he has lost out on the provision he is legally entitled to.

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Agreed action

41. By 23 December 2024 the Council has agreed to:

• Apologise to Miss B for the injustice caused by fault identified in this statement.
• Pay Miss B £500 for her frustration, confusion, upset and frustrated appeal rights to the SEND Tribunal.
• Pay Miss B £1,000, on behalf of C, to acknowledge the lost opportunity and uncertainty from not reviewing C’s EHC Plan after the annual review in July 2022.
• Pay Miss B £2,600 to reflect the lack of Section F provision for C from September 2023 to May 2024. We suggest Miss B uses this payment for C’s educational benefit.
• Take proactive steps to resolve the matter of C’s missing section F provision.

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

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Final decision

43. There was fault by the Council, which caused Miss B and C 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