Summary: Mrs H complained the Council failed to ensure her son received all the provision set out in his Education, Health, and Care plan, and it failed to adhere to the statutory timescales following an annual review. We found fault by the Council. It should apologise and make payment to acknowledge the injustice Mrs H and her son experienced.

The complaint

1. The complainant, Mrs H, complained the Council failed to:
• ensure Section F provision was delivered to her son as detailed in his Education, Health, and Care (EHC) plan;
• wrongly refused for the provision to be provided through a personal budget; and
• meet statutory timescales for the EHC plan process.
2. Mrs H said, as a result, her son had a loss of educational provision and she experienced distress and had time and trouble to pursue her concerns with the Council.

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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 there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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. 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. 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.
8. 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

9. As part of my investigation, I have:
• considered Mrs H’s complaint and the Council’s responses;
• discussed the complaint with Mrs H and considered the information she provided;
• considered the information the Council provided in response to my enquiries; and
• had regard to the relevant law and guidance to the complaint.
10. Mrs H and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
11. 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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What I found

Education, Health and Care plans

12. A child 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, including section F which is the special educational provision needed by the child or the young person.
13. The council has a duty to make sure the child or young person receives the special educational needs 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.

Reviews

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 council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.

What happened

18. Mrs H’s son (X) has special educational needs which is set out in his EHC plan. He started attending his secondary school in September 2022.
19. In October 2022 Mrs H told the Council X was not receiving all the special education needs provision set out in his EHC Plan. She said he was not receiving touch typing provision for 15-20 minutes each day on an individual basis with his teaching assistant.
20. Shortly after, the Council started the annual review process for X, but the review meeting first took place in January 2023. Mrs H raised her concerns again about the touch-typing provision. The school said the provision in X’s EHC plan had been recommended as part of a primary school education model, as he is now in secondary school it had amended the delivery to suit his learning environment and needs.
21. A week later, the Council decided to maintain X’s EHC plan without amendments.
22. Following Mrs H’s representations which included updated occupational therapist advice regarding X’s need for touch typing, the Council agreed to make amendments to X’s EHC plan in March 2023 and issued this decision.
23. Mrs H continued to raise her concerns about X not receiving touch-typing provision as set out in his EHC plan. In Spring 2023 she asked the Council to reassess his needs, and to allow a personal budget for the provision to be delivered by a third party.
24. The Council educational panel considered Mrs H’s reassessment and personal budget request. However, it decided to refuse her requests as it found X’s needs had not changed and the school could deliver the touch-typing provision.
25. During Summer 2023, the Council met with Mrs H and the school to discuss X’s EHC plan provision, issued draft versions of X’s amended EHC plan, and held a mediation meeting. Mrs F also consulted with an educational psychologist and shared the outcome with the Council.

Mrs H’s complaint

26. In July 2023, Mrs H complained to the Council. She said it had failed to ensure X received the touch-typing provision set out in his EHC plan and have access to a laptop for the whole of the academic year. She explained X had said in his recent educational psychologist assessment that he did not want touch-typing provision as part of his mainstream lessons as this would make him be seen as different to others. She also said the Council had wrongly refused her personal budget and reassessment request.
27. In response the Council did not uphold Mrs H’s complaint. It explained it:
• was satisfied X was receiving 75 minutes of touch-typing provision each week following its discussions with the school. This included during ICT lessons and though five-minute provision in some lessons;
• acknowledged the school should have made a request to amend the EHC plan to reflect the changed way of delivering the provision at the annual review in January 2023. It said it would amend X’s EHC plan outside the normal process to include updates from professionals;
• would conduct quality assurance visits in Autumn 2023 to ensure the provision was delivered to X in school, but understood X was making good progress; and
• found its decision to refuse her personal budget request previously considered by its panel was correct.
28. Mrs H asked the Council to consider her complaint under its stage two process. She also said it had failed to adhere to the statutory timescales to complete X’s EHC plan process and issue his final amended EHC plan.
29. The Council did not change its view. It also told Mrs H it would not consider her complaint about the EHC plan process as this was not part of her original complaint.
30. X’s final amended EHC plan was issued in October 2023. This included the same touch-typing provision to be delivered 15 minutes per day five days a week and included the resources which could be used as suggested by the occupational therapist.
31. The evidence since provided by Mrs H and the Council shows:
• the Council, the school and Mrs H continued to meet or be in discussions around the touch-typing provision, but out of class provision was not put in place;
• the school made several attempts of in-class touch-typing with X, but he did not wish to engage as he did not want to look different to other students;
• X had a test in late 2023 in which he had a laptop available. He did very well, and better than in another test where he did not have a laptop;
• X had done quite well on a touch-typing test which the Council said showed progress; and
• in February 2024 Mrs H and the school met, it was agreed for X’s touch-typing to take place outside of class. X has since shown willingness to engage with the provision this way.
32. In response to our enquiries the Council also confirmed it acknowledged it had failed to adhere to the statutory timescales for X’s EHC plan process.

Analysis and findings

33. Mrs H’s complaint relates to matters which occurred since October 2022. This is more than 12 months before the concerns were brought to our attention, part of her complaint is therefore late.
34. However, as Mrs H has continued to attempt to resolve her concerns with the school and the Council throughout, I have found it appropriate to consider her complaint from when she first brought her concern to the Council in October 2022.

X’s EHC plan provision

35. Since Mrs H made her concerns about X’s lack of touch-typing provision in his school known to the Council, the evidence shows the Council has considered her views throughout. This included discussions and meetings with her, the school, and involvement of professionals. It also checked what provision X received in Autumn 2023.
36. I am therefore satisfied the Council did consider Mrs H’s concerns. However, I am not satisfied the Council’s reasons for not taking more action or ensuring the school delivered X’s touch-typing provision was appropriate. This is because:
• X’s EHC plan set out he should receive 15-20 minutes short sessions on touch-typing on a one-to-one basis with his teaching assistant. It does not say this must be in or outside his class. This did not happen;
• X received some sporadic in lesson access to some touch-typing opportunities, and opportunities for touch-typing in scheduled ICT classes. This was not what was required by his EHC plan. If the school or the Council found this was the best way to deliver the provision, it should have been discussed as part of the annual review and set out as amendments in X’s EHC plan; and
• it was first in February 2024 when the school put in place out of class touch-typing provision for X. This was despite X and Mrs H making it clear he did not want to have touch-typing sessions in his class as he was made to feel different than other students. This option should therefore have been considered from the outset to ensure he could receive the provision.
37. I acknowledge X received some touch-typing provision, and the Council believes the school should have suggested amendments to X’s EHC plan as part of the annual review. However, any such amendments did not relate to the occupational therapist advice which clearly set out the importance of X receiving the provision and how this should be delivered. This was in 15 minutes sessions on a one-to-one basis five times a week. This also remains the provision in X’s final amended EHC plan.
38. I therefore found the Council at fault for failing to ensure X received the amount of touch-typing provision he was entitled to in line with his EHC plan. I am also satisfied this caused Mrs H some distress due to the time and trouble she had to pursue her concerns.

Mrs H’s reassessment and personal budget requests

39. The Council refused Mrs H’s request for a reassessment of X’s needs in May 2023. It informed her about its decision. I cannot consider this part of her complaint. This is because any disputes about such decisions should be appealed to the SEND Tribunal.
40. I have found no fault in the way the Council considered Mrs H’s personal budget request. This was therefore a decision it was entitled to make. In reaching my view, I was also conscious the reason for Mrs H’s request was she felt X was not receiving the provision in school. However, this was provision which in line with the EHC plan should be provided in X’s allocated school.

X’s EHC plan process

41. In its response to the Ombudsman the Council has agreed it failed to adhere to the statutory timescales for X’s EHC plan process.
42. I agree the Council was at fault. This was:
• it should have completed the annual review of X’s EHC plan in November 2022. It failed to do so and did not issue its decision to maintain his EHC plan until the end of January 2023; and
• in March 2023 the Council agreed to amend X’s EHC plan. This process should have been completed by early May 2023, but was first completed five months later in October 2023.
43. I cannot consider the period between the Council’s decision to maintain X’s EHC plan in January 2023 to early March 2023, as Mrs H had appeal rights to dispute its decision to maintain the EHC plan without amendments.
44. I am satisfied the Council’s delays caused Mrs H some distress and she had a delay in her opportunity to exercise her appeal rights to the SEND Tribunal.

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Agreed action

45. To remedy the injustice the Council caused to Mrs H, the Council should, within one month of the final decision:
1. apologise in writing to Mrs H for the delays in the Education, Health, and Care plan process and its failure to ensure X received all the touch-typing provision as set out in his EHC plan;

We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.

2. pay Mrs H a symbolic payment of £400 to acknowledge the distress, time & trouble, and delay to exercise her appeal rights she experienced as a result of the Council’s faults since October 2022;
3. pay Mrs H a further symbolic payment of £450, to use as she sees fit for X’s benefit, to acknowledge the loss of some touch-typing provision X did not receive between October 2022 to February 2024.

In total the Council should pay Mrs H £850.

46. Within three months of the final decision the Council should also:
1.  
2.  
3.  
4. remind its Special Educational needs and disability staff to:
1. ensure annual reviews are arranged in a timely manner to ensure the review process can be completed within the statutory timescales;
2. ensure the Education, Health, and Care plan process is completed within the statutory timescales following annual reviews; and
3. ensure schools are delivering the special educational needs provision set out in Education, Health, and Care plans, and provide guidance to the school to request changes to, or reductions, in provision through the annual review process.
47. The Council should provide us with evidence it has complied with the above actions.

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Final decision

48. I have completed my investigation with a finding of fault by the Council for failing to ensure X received the special educational needs provision he was entitled to and causing a delay in the Education, Health, and Care plan process.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman