Summary: There was a delay issuing Y’s final Education, Health and Care Plan naming his post 16 college placement. This caused avoidable distress, inconvenience and a delay in appeal rights. The Council will apologise, make symbolic payments and review its procedures to minimise the chance of recurrence.

The complaint

1. Ms X complained the Council delayed five years adopting and amending her son Y’s Education Health and Care (EHC) Plan when they moved to Liverpool in 2018. She also complained Y was not receiving speech and language therapy (SLT) that was in the EHC Plan.
2. Ms X also complained the Council:
1. Removed SLT from Y’s EHC Plan
2. Did not communicate with her adequately
3. Delayed consulting with her preferred post-16 placement.
3. Ms X said this caused avoidable distress, inconvenience and a loss of education provision.

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The Ombudsman’s role and powers

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 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)
6. The Special Educational Needs and Disability Tribunal (‘SEND’) is a tribunal that considers special educational needs. There is a right of appeal to the SEND Tribunal about special educational provision in an Education, Health and Care Plan.
7. We provide a free service, but we use public money carefully. We do not start or continue an investigation if we decide:

• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

8. 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)
9. 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)
10. 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 have and have not investigated

11. I have investigated the complaints in paragraph one from November 2022. Ms X complained to us in February 2024. Matters before February 2023 are late and there is no reason for the delay in complaining to us. I have exercised discretion to investigate from October 2022 as this was the period when the annual review process started in readiness for Y’s transfer to post 16 education.
12. I have not investigated complaint 2(a) because Ms X had a right of appeal to the SEND Tribunal against the removal of Speech and Language Therapy in Y’s EHC Plan of September 2023. It was reasonable for her to use her appeal rights.
13. I have not investigated complaints 2(b) and (c) because the Council’s complaint response identified fault and offered a satisfactory remedy, in line with our published Guidance on Remedies. I could achieve nothing further by investigating.

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How I considered this complaint

14. I considered the complaint to us, the Council’s responses to the complaint and documents summarised in this statement.
15. Ms X 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

Relevant law and guidance

16. 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 council can do this.

17. 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 

18. 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.

19. For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer.  (SEND Code of Practice)

20. 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 2014). 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)
21. 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.

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What happened

Background

22. Y has learning disabilities and attended a special school in 2018 which was arranged by another council. Ms X and Y moved to Liverpool in 2018. The Council accepts it did not transfer his EHC Plan in 2018, although it took over funding from the previous council and Y remained at the same special school until September 2023 when he transferred to a post-16 college.
23. The EHC Plan of 2018 does not specify direct provision from a speech and language therapist. Section F sets out:
• “advice and strategies to be sought from a speech and language therapist”
• a range of communication strategies and speech and language support for class teachers and support assistant
• 15 hours of support from a teaching assistant in school.

Annual review

24. Ms X emailed Y’s school in the last week of October 2022, copying the Council’s SEN team. She said the school was not delivering the provision set out in Section F of Y’s EHC Plan. She said she did not want to hear that Y’s unwillingness to participate in as a reason for not delivering provision it as this was untrue and he enjoyed it.
25. There was an annual review meeting in November 2022, held by Y’s school. Ms X attended. The minutes do not say Ms X or any of the other attendees raised any concerns about the school’s delivery of the special educational provision on Y's Plan. The minutes note Ms X asked for Y to have speech and language therapy in school to support his communication and auditory processing skills.
26. The Council issued an amended EHC Plan for Y in the middle of September 2023. This named his post-16 college placement; College A. Section F of the EHC Plan sets out Y’s SEN in the area of communication and interaction and strategies for teaching staff to use. There is no mention of any direct provision from a speech and language therapist.

Complaint to the Council and its response

27. Ms X complained to the Council about the things she has raised with us and about other matters (including school transport which we are considering under a separate reference number.) The Council’s final response to the complaint said:
• She stated her preference for College A in March 2023. The caseworker consulted other colleges which were nearer and they did not offer Y a place. The caseworker did not consult College A until August 2023. This was due to their high workload. The delay was unacceptable and had an impact on Y’s transition to college as he had a delayed start.
• Communication with her was poor. The head of service would remind the team that the Council’s communication framework should be followed.
• The Council apologised and offered her a payment of £350 to acknowledge the impact of the fault it identified, but she said she did not want this.
• Y had an appointment with a paediatric speech and language therapist in January 2023 which could have been used to follow up provision for Y and a therapist was scheduled to work with Y every week.
• Another speech and language therapist had been to review Y at College A (in March 2024) and had agreed to send their report to the SEND team which would amend the final EHC Plan within six weeks of receiving the speech and language therapist’s review report.
28. Unhappy with the Council’s response to her complaint, Ms X complained to us.

Findings

Delay in adopting and amending the EHC Plan

29. Y’s EHC Plan should have been amended and issued to Ms X no later than 31 March 2023 in readiness for his transfer to college in September. The delay of six months was not in line with the SEND Code of Practice and was fault causing avoidable distress, confusion and a delay in appeal rights. It also meant Y’s transition to College A at the beginning of the school year was not smooth and was delayed as the placement was not confirmed until September 2023 when the amended Plan was issued.

Not delivering special educational provision (speech and language therapy) in the EHC Plan.

30. Y’s EHC Plan of 2018 did not say he required direct speech and language therapy from a qualified speech and language therapist. The Plan set out various strategies for classroom staff to support Y’s communication. The Plan said advice should be sought from a speech and language therapist.
31. It isn’t practical for councils to keep a close eye on how schools are delivering a pupil’s special educational provision on a day-to-day basis. However, we do expect councils to check during an annual review. In Y’s case, the Council has accepted it could have followed up provision for Y in January 2023 (during the annual review process) after his appointment with a speech and language therapist. Provisionally, this was a failure to take steps to ensure school was seeking advice and strategies from a speech and language therapist as set out in Y’s EHC Plan. This was not in line with the duty in Section 42 of the Children and Families Act 2014 and was fault. It caused uncertainty about whether Y was receiving the correct level of communication support.
32. As set out in paragraph 12, I have not investigated the complaint about removing speech and language therapy, because Ms X had a right of appeal to the SEND Tribunal against the amended EHC Plan issued in September 2023. We would expect her to have used this right of appeal if she wished to challenge the special educational provision in Section F of that plan.

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Agreed action

33. The Council has already apologised and offered a payment of £350, which Ms X has rejected.
34. The Council should (within one month of my final statement) apologise again to Ms X and to Y for the avoidable distress, inconvenience and uncertainty I have summarised in paragraphs 29 to 31. It should also make a payment of £750 to reflect this. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended in my findings.
35. Within three months, the Council should review its procedures to ensure amended final EHC Plans are issued by the 31 March deadline for those young people transferring to post-16 college placements.
36. The Council should provide us with evidence it has complied with the above actions.

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Final decision

37. There was a delay of six months issuing Y’s final Education, Health and Care Plan naming his post 16 college placement. This caused avoidable distress, inconvenience and a delay in appeal rights. The Council will apologise, make symbolic payments and review its procedures to minimise the chance of recurrence.
38. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman