Summary: There was fault by the Council. It failed to ensure that a child’s Education Health and Care Plan was reviewed within the legal timeframe. The Council has shown that it made sure the child received the speech and language therapy she was entitled to. However, it failed to make sure that the child received occupational therapy set out in the Plan. The Council made sure this provision was increased so the child could catch up, but did not remedy the distress the shortcomings had caused the child’s mother. The Council has agreed to take further action to remedy this complaint.

The complaint

1. Miss B complains about how the Council has handled her daughter’s Education Health and Care (EHC) Plan. In particular, she says the Council:
• failed to make sure the Speech and Language Therapy (SALT) and the Occupational Therapy (OT) provision set out in her daughter’s EHC Plan was delivered;
• failed to ensure the annual review of the EHC Plan due in 2022 and 2023 happened on time; and
• Failed to communicate with her properly.
2. Miss B says that as a result of the Councils failings, her daughter has missed therapeutic provision, and Miss B has been caused distress and frustration trying to get her daughter the provision she is entitled to.

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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)

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What I have and have not investigated

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. Miss B came to us in February 2024 and so the start date of my investigation would normally be from February 2023. Miss B complains about provision from December 2021 (following the initial EHC Plan) and throughout 2022 and 2023. I have considered whether there are good reasons why Miss B could not bring the complaint to us sooner. The initial problem in December 2021 was that the school was not implementing the EHC Plan. Miss B told the Council this in March 2022 and the Council contacted the school immediately. Miss B contacted the Council again about this in December 2022 believing that it had not been resolved. Miss B did not contact the Ombudsman with this and more recent issues until February 2024.
7. Miss B had made an earlier complaint to the Ombudsman. I appreciate that she was represented by someone else, and that there is a lot of pressure on her time meeting her child’s needs. I also recognise that Miss B was hoping to resolve the issues with the school and the Council. However, there are no good reasons why Miss B did not come to us sooner. This means that I have not used my discretion to extend the time frame of my investigation back to December 2021.
8. The annual review of the EHC Plan was due in December 2022 and this was a means to rectify problems with the SALT and OT and so it seems pragmatic to extend the scope of my investigation by those few months to include this.
9. This means that my investigation will run from December 2022 to July 2024 (this later date to take in the end of the school year).

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How I considered this complaint

10. I considered the information provided by Miss B and discussed the issues with her. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have considered any comments I have received.
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

The law and guidance

EHCPs and making sure the provision is made

12. 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.
13. 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)  
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. 

EHCP review process

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. 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 tribunal.
18. 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.
19. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.

What happened

Background prior to December 2022

20. Miss B’s child, K has special educational needs. The Council issued an EHC Plan in December 2021 following a Tribunal order. The 2021 EHC Plan set out the SALT and OT provision. It said:
• K will receive direct SALT of 30 minutes per fortnight;
• K will receive an additional 30 minutes of indirect SALT to include liaising with school staff, session planning and developing resources to support K’s speech and language.
• The SALT will develop a program, and review and amend this every 12 weeks.
• An Occupational Therapist will devise programmes of OT to be embedded into the classroom as part of K’s daily learning activities for five minutes each day. The therapist will review progress termly, advise the school on the OT, and produce reports to contribute to K’s learning plans.
21. However, the Council did not ensure that the OT provision was made. Miss B also raised concerns that the school was not delivering the SALT as set out in the Plan. Miss B says the school told her in 2022 that it had delivered some of the SALT but not the direct SALT set out in the 2021 EHC Plan. Miss B pursued this with the school and the Council.

The EHC Plan review

22. The school was due to carry out the annual review of K’s EHC Plan on behalf of the Council in December 2022. However, the school did not hold the review meeting until February 2023 and did not pass the paperwork to the Council until March 2023. The Council decided it needed to amend the EHC Plan based on the review and sent a notice of this to Miss B towards the end of May 2023.
23. The Council issued the new final EHC Plan at the end of July 2023. The July 2023 EHC Plan said:
• K had not met the outcomes set out in the 2021 EHC Plan.
• K had missed OT provision in the previous year. The Plan said that rather than OT being provided on an advisory basis, K would be taken from the classroom for direct OT for one hour per week. This would mean that by the end of July 2024, K would catch up on the OT she was entitled to but had missed.
• K will receive indirect SALT by school staff during the daily learning activities (as advised by the SALT therapist);
• K will receive weekly direct 1:1 or small group SALT sessions every other term (so three terms per year and around 18 sessions over the school year).
• the SALT therapist will also review K’s progress twice yearly and advise on any changes needed to the SALT programme.
24. Miss B appealed the final EHC Plan and the Council agreed to amend the EHC Plan during mediation. The amendment clarified how the Council would deliver OT under the Plan. The provision of both OT and SALT stayed the same as the July 2023 Plan. The Council issued the amended final EHC Plan in November 2023 with the new, clearer wording.
25. The Council failed to ensure that the EHC Plan was reviewed within the legal timeframe.
26. The review was due in December 2022. The Council asked the school to hold the review meeting and it did not do this until February 2023. Councils can delegate the holding of the review meeting to a school. Where there has been delay or fault by the school in the organisation of the review meeting, we would not hold councils responsible (and cannot look at the actions of the school, LGA Sch 5). However, councils remain responsible for the overall review process. The review meeting is just one part. We would expect councils to ensure reviews were held on time and chase up schools that failed to provide documentation after a review meeting to enable it to complete the review on time.
27. The Council should have sent Miss B notice that it intended to change the EHC Plan within four weeks of the review meeting, so 14 March, and issued the final EHC Plan by 5 May. Instead the Council issued the amendment notice on 26 May and issued the final EHC Plan on 31 July. The final Plan was overdue by 12 weeks.
28. The annual review was particularly important because Miss B had clear concerns about her daughter’s schooling, and she was not getting the OT she was entitled to. The delay not only caused Miss B distress but also left her uncertain that had the Council completed the review on time, then the OT catch-up sessions may have started sooner.
29. Miss B complained to the Council. It responded to Miss B’s complaint and offered to pay her £100 to recognise the additional time and trouble it had put her to.

OT and SALT provision from December 2022

30. The Council failed to ensure that K received the OT she was entitled to from December 2022 to July 2023. This meant that K did not progress as she should have done.
31. The July EHC Plan included more direct OT so that K could make up for the missed provision. However, Miss B remained concerned that K was still not receiving the correct OT. The school’s records show that the OT sessions have been delivered to K consistently since February 2023. However, as part of its complaints process, the Council reviewed the OT and found that not all the sessions were long enough and 1 hr 45 mins was due. The Council told the school to make the missed time up by the end of July 2024.
32. Miss B was concerned that K was not receiving enough SALT in school between December 2022 and July 2024. Mrs B pursued this with the Council and the school. The Council has sent me the school’s logs of SALT K received.
33. Under the 2021 EHC Plan, K was entitled to 30 minutes of direct SALT fortnightly. The school logs say that K received this. K’s SALT provision changed under the July 2023 EHC Plan. From September 2023, K was entitled to weekly direct SALT in small groups or 1:1 every other term. This would equate to around 18 sessions over the school year.
34. I can see from November 2023 to July 2024, the SALT first observed and assessed K. She received group SALT from March 2024, and later a mix of group and 1:1 sessions. Taking into account the 1:1 assessments and the direct SALT delivered, K has received 17 out of the 18 direct SALT sessions due to her. The Council told the school to ensure that the SALT makes up the missed session.
35. It seems to me that SALT sessions under both EHC Plans were not always on time in strict accordance with the relevant Plan, but we would not necessarily expect the Council to act on small changes to the timetable as long as the provision is being made overall.

Conclusions

36. In summary:
• There was fault by the Council when it did not make sure the EHC Plan review was completed within the legal timeframe.
• Between December 2022 and July 2023, the Council failed to make sure that K received the OT she was entitled to under her EHC Plan. It has acknowledged this.
• Between December 2022 and July 2024, K has received the majority of the SALT she was entitled to.
• The Council has acknowledged that it did not always communicate with Miss B properly or keep her informed.

The impact on Miss B and K of the Council’s failings.

37. The delay in reviewing the EHC Plan caused Miss B distress and frustration. The review was particularly important because Miss B was concerned that K was not receiving the OT she was entitled to under the EHC Plan, and she was not reaching her targets in other aspects including her speech and communication. The delay also left Miss B uncertain that had the review happened on time, then the catch-up OT would have started sooner.
38. The Council has agreed our recommendations to improve its service as part of our investigation of a separate case involving a different family. The Council agreed to review whether it should take steps to address OT capacity in its area. We are monitoring the Council’s compliance to make sure it completes this review.
39. The Council remedied the missed OT provision by making sure that catch-up OT was included in the July EHC Plan and K has now received this. However, the Council did not remedy the distress and frustration caused to Miss B when her child was not getting the provision set out in the Plan and she was unable to resolve this with the school or the Council.
40. Miss B’s distress was further compounded when it did not always communicate with her properly.

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Agreed action

41. The Council should within one month of the date of this decision:
• Apologise to Miss B. 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.
• Pay to Miss B a symbolic payment totalling £600 in recognition of the distress, uncertainty, and frustration its shortcomings caused her.
42. The Council should provide us with evidence it has complied with the above actions.

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Final decision

43. I have completed my investigation. There was fault by the Council causing Miss B and her daughter injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman