Summary: Miss X complains the council failed to complete her son Y’s Education, Health and Care Plan within the statutory time frames. We find fault with the Council for delay, failing to provide specialist provision as outlined in the Plan, and lack of communication. We have suggested a symbolic payment for the frustration and distress caused as a result.

The complaint

1. Miss X complains the Council failed to:

1. Complete her son’s Education, Health and Care Plan (EHC Plan) within the statutory time limits after his annual review in March 2022;
2. Provide the specialist Speech and Language Therapy (SaLT) provision outlined in the EHC Plan;
3. Provide education for her son from January – February 2023 and again from May – December 2023;
4. Provide a report from an Education Psychologist;
5. Use updated reports for his EHC Plan;
6. Correctly date the EHC Plan meaning Miss X could not appeal it;
7. Process direct payment (DP) requests in a timely manner; and
8. Communicate properly with Miss X.

2. Miss X said issues started in 2021 when Y transitioned from a specialist setting into a mainstream school:

9. The Council did not change his placement even though evidence showed Y could not attend.

3. Miss X would like an apology from the Council, repayment of her expenses and alternative full-time education put in place for Y.

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The Ombudsman’s role and powers

4. 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)
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. 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.
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
10. 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

11. The Ombudsman generally expects complaints to be brought to us within 12 months of someone becoming aware of the issue (see paragraph five). Miss X came to us in March 2024 but I consider there are good reasons to extend my investigation to March 2022, when the Council made arrangements for the Annual Review of Y’s EHC Plan. This is because it would be difficult to link the later events without including the Annual Review.
12. I am not investigating complaint I as that has a right of appeal for Miss X to use and she has used this right (see paragraphs six and seven).

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How I considered this complaint

13. I spoke with Miss X and considered the information she provided.
14. I made enquiries with the Council and considered the information it provided.
15. I considered relevant law and guidance, as set out below and our guidance on remedies, published on our website.
16. Miss X and the Council had an opportunity to comment on my decision. I considered any comments received before making a final decision.

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What I found

Legal and administrative background

Education, Health and Care Plan

17. A child with special educational needs may have an Education, Health, and Care Plan (EHC Plan), following an assessment of their needs. The plan sets out the child’s needs and what arrangements should be made to meet them.
18. The EHC plan is set out in sections which include:
• Section B: The child or young person’s 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 school.
19. 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.
20. 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) 
21. The courts said councils must, from March 2022, send the parent or young person the final amended EHC Plan within a maximum of 12 weeks of the annual review meeting. It says councils must send the decision letter alongside any proposed changes to the EHC Plan within four weeks of the review meeting and issue a final plan no later than eight weeks after the decision letter is sent. (R (L, M, and P) v Devon County Council [2022] EWHC 493)

Appeal right

22. 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.

Alternative provision

23. Councils have a duty to arrange the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them. (Section 19 of the Education Act 1996)
24. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
25. There is no legal deadline to start provision; it should be arranged as soon as it is clear a child will be absent for health reasons for more than 15 days. Some forms of provision (such as one-to-one), which is intensive, need not be full-time. Provision must be similar to what is offered in school. (Ensuring a good education for children who cannot attend school because of health needs (January 2013, amended May 2013)

Personal Budget

26. A personal budget is money identified by a council to deliver provision set out in an EHC plan where the parent or young person is involved in securing the provision.
27. A council must consider a request for a direct payment if a child’s parent made it at any time during the period in which the draft EHCP is being prepared or reviewed. (Special Educational Needs (Personal Budgets) Regulations 2014 regulation 4)

Where a council refuses to make direct payment it must:

• Inform the child’s parents in writing of its decision, providing the reasons and informing of the right to request a review;
• Carry out a review of its decision, if requested to do so, considering any representations made by the child’s parent;
• Inform the child’s parent in writing of the outcome of the review, giving reasons.

(Special Educational Needs (Personal Budgets) Regulations 2014 regulation 7)

Council’s complaints procedure

28. The Council has a two stage complaints procedure:
• Stage one – a response from an appropriate officer within four weeks.
• Stage two – a response from a manager within five weeks.

What happened

29. Miss X has a son Y, who has a diagnosis of Autism, anxiety and other developmental disorders, and has had an EHC Plan since October 2018.
30. Y should be sitting his GCSE’s this summer but Miss X says he will not be able to.

Complaint A: delay in completing the EHC Plan after the annual review

31. Y’s annual review was held in April 2022 but his final EHC Plan was not issued until March 2023.
32. In early February 2023 Miss X complained to the Council for the delay and chased a response a few weeks later.
33. The Council responded in early May and apologised for the delay, saying it had invested in more staff. It upheld Miss X’s complaint about the delay following the annual review in 2022.
34. The Council say Y’s school sent a copy of the EHC Plan in June 2022 but the password did not arrive so the Council could not access it. The Council say it should have told Miss X, or noted it when she chased the annual review before putting in her complaint in February 2023.
35. The final EHC Plan was issued on 13 March 2023. A further annual review was held on 21 April 2023, and a draft EHC Plan issued in July.

Complaint B: Provide the specialist SaLT provision outlined in the EHC Plan

36. Miss X also complained the school was following the section F provision from Y’s 2021 EHC Plan which was outdated. The Council upheld this complaint and apologised.
37. The SaLT support plan was completed in April 2022 following the annual review meeting, and the Council gave funding to the school in July 2022 for this.
38. The SaLT report dated February 2023 was incorporated into the EHC Plan of March 2023. The NHS told the Council that Y was discharged from the SaLT service in March.
39. In May 2023 Miss X referred to the Council as she was advised to make a parental referral for SaLT and Occupational Therapy (OT). The NHS SaLT team commented on the draft EHC Plan in July 2023 saying the information was not up-to-date or relevant. The annual review in October showed Y was not making progress and not attending school.
40. Y was without SaLT provision until April 2024. The Council arranged this with a private provider who had written a report for Y in October 2023, and now had availability to deliver the provision.

Complaint C: No education for Y from January – February 2023 and again from May – December 2023

41. Y was suspended from school twice, in January and May 2023.
42. In response to our enquiries the Council said it was not aware of the January suspension, but was aware that Y was not in full time education from April 2023 to the end of the summer term.
43. Miss X says Y was out of school for 6 weeks from January 2023. He started attending on a part time timetable in February.
44. Miss X complained about the delayed annual review on 6 February but the Council mistakenly filed it under her other son’s records. It acknowledged the complaint on 15 February and said it would issue Y’s delayed EHC Plan as soon as possible.
45. The Council say at the annual review in April 2023 the school said it could meet Y’s needs and Miss X had not requested a change of setting.
46. The Council say the school had an integration plan in place for Y during the summer term which the Council regularly checked.
47. The Council were made aware of Y’s two-day May suspension by Miss X and the Council copied her into the appeal against the suspension. Following a medical recommendation made by Y’s GP for his anxiety, the school made a referral to a teaching service in July 2023 but Miss X said she did not want to continue with this referral.
48. Y did not return to school in September so the Council sought alternative provision while looking for a new setting for Y. The school said it could meet Y’s needs and had created a phased return for him. However Y was not attending so the Council looked into online learning.
49. Miss X said the online learning and school packs sent home for Y were inappropriate because of his special needs.
50. In October an early annual review was held. Tutoring was an option but Miss X said she did not want a tutor in the house and Y could not meet a tutor in a public setting.
51. From December 2023 the Council provided 1:1 tuition for Y which was initially offered in October when it became clear the school’s efforts to reintegrate Y would not be successful.
52. Y was placed in a specialist setting in June 2024.

Complaint D: Education Psychologist report

53. Miss X says the changes made to the EHC Plan were not identified by the Council. She had to fund reports from SaLT and the Education Psychologist (EP) for Y in February 2023.
54. In response to our enquiries the Council said the school did arrange an EP to assess Y in July 2023 but Miss X says no reasonable adjustments were made to see Y at home. He was not attending school due to his anxiety.
55. The EP report said Y was struggling with mainstream school and would do well in a smaller setting with like-minded individuals.
56. Following this Miss X sent preferences for alternative school placements and the Council carried out consultations. Y’s EHC Plan was issued on 23 August 2023 but had incorrect dates. The correct EHC Plan was issued in September and Miss X made an appeal to the SEND tribunal for a specialist school setting for Y.
57. The Council have offered a refund of the cost of the SaLT report to Miss X.

Complaint E: The Council failed to use updated reports for Y’s EHC Plan

58. Miss X complains the reports used in Y’s EHC Plan in April 2023 were outdated.
59. The Council say the final EHC Plan issued in August 2023 contained information from reports dated 2023.

Complaint F: The EHC Plan was sent with mistaken dates

60. The Council say the EHC Plan issued in August 2023 contained inaccurate dates possibly due to human error. It sent the final correct EHC Plan in September 2023.

Complaint G: The Council failed to deal with Miss X’s requests for Direct Payments efficiently

61. Miss X asked for advice about a personal budget in May 2023 for Y to attend a provider she had found for him over the holidays. The school did not agree as the provider was not Ofsted approved and registered.
62. The Council advised Miss X who sent further details of her request in June. The Panel reviewed this at the end of August.
63. The Council accept this delay of two months was too long and apologise to Miss X for the uncertainty caused.

Complaint H: Poor communication from the Council to Miss X

64. The Council say there has been a significant volume of communication with Miss X but this complaint was upheld in its stage two response.
65. Miss X has had to chase the Council for a response to her queries, and the complaint response was late.
66. The Council offered a symbolic payment of £250 for the poor communication, and has now offered £500 for the impact and apologises.

Miss X’s complaint to the Council

67. In the complaint Miss X explained Y was in year ten attending school on a reduced timetable which has impacted his mental health and school based anxiety. The Council said the school agreed to extend the part time timetable at the end of April 2023.
68. Miss X was unhappy with the Council’s stage one response so she raised a stage two complaint in February 2024. She complained about the following:
• Delays after the annual review in 2022, impacting Y’s education and well being;
• Failure to change Y’s school placement;
• Inadequate resolution and delayed support for Y because of the delay following the annual review;
• Provision of social skills not carried out by the school as suggested in the stage one response;
• Y did not receive any education from May 2023 – December 2023, and is currently having 4-5 hours online tutoring arranged by his caseworker, and
• Lack of Speech and Language therapy (SaLT) since May 2023.
69. The Council responded in April 2024 apologising for the delay in response. It said:
• It apologised for the delay after the annual review and the impact this would have had on the family;
• Miss X is appealing the placement to have it changed so this cannot be investigated as part of her complaint;
• It agreed Miss X had asked the Council to attend meetings and annual reviews but it did not have capacity to do so, and it could have had a more “joined-up approach” with communication between the school and Miss X;
• The review in April 2023 updated Y’s EHC Plan but there were no significant changes to provision that would suggest the mainstream school was not suitable for Y;
• Miss X requested a personal budget for a specialist provision but the Council rejected it as this was an unregistered provision;
• It agreed to refund Miss X for costs relating to educational activities, books, games, one I pad, speech and language and counselling, totalling £1448.97. It also offered a further £250 payment for the impact of poor communication causing distress and frustration to Miss X.
• For the provision of social skills, the school said this was part of the reintegration plans for Y.
70. Miss X was unhappy with the Council’s response so she brought her complaint to the Ombudsman.

Analysis

Complaint A: delay in completing EHC Plan after the annual review

71. The Council acknowledge the delay in completing the EHC Plan following the annual review in April 2022. It has apologised for the delay.
72. The EHC Plan should have been completed within 12 weeks of the annual review (see paragraph 21) and it took nearly a year.
73. I have suggested a symbolic payment to Miss X for the frustration caused, and the delay to her appeal rights.

Complaint B: Provide the specialist SaLT provision outlined in the EHC Plan

74. Y was without his SaLT provision for about a year from May 2023 to April 2024. The Council have offered to refund Miss X £1448.97 for the money she spent on this provision (and other educational tools).
75. I have recommended a symbolic payment for loss of provision for this time.

Complaint C: No education for Y from January – February 2023 and again from May – December 2023

76. The Council did not know about Y’s suspension from school in January 2023 so provisionally I do not find fault for failing to provide alternative education during this period.
77. In the summer term of 2023 the school said it had provision in place for Y including a reintegration plan. The Council were aware of this and of Y’s suspension.
78. The Council acknowledges Miss X’s numerous communications with it, advising Y was not in receipt of a suitable education and the provisions in his EHC Plan were not in place. Miss X also sought attendance by the Council at meetings and annual reviews but the Council did not have capacity to attend.
79. The Council say the school could evidence many adjustments and accommodations made to try and reintegrate Y into school, but there was no engagement from Miss X.
80. Miss X says no adjustments were made for Y to return to school after his suspension and the reintegration plan provided by the school was not suitable for his needs so he could not access it. The Council accepted in the complaint response “more could have been done to support the implementation of provision for Y”.
81. I find fault with the Council for failing to attend relevant meetings and engage more with Miss X and the provision for Y.
82. By September Y was not attending school and an early annual review was held in October. The Council provided tutoring for Y from December.
83. I find the Council at fault for not providing educational provision from May to December, and recommend a payment for two terms of lost education.

Complaint D: Education Psychologist report

84. The Council said in the complaint response a further annual review was held in April 2023 and although aspects of Y’s EHC Plan were updated, there were no significant changes to provision that would suggest provision could not be made within a mainstream school.
85. Miss X says this is because the Council did not identify any changes, she had to self-fund reports to show Y’s needs.
86. The school did instruct an EP in July 2023 and the report was considered in the EHC Plan so provisionally I do not agree a refund for the report Miss X paid for.

Complaint E: The Council failed to use updated reports for Y’s EHC Plan

87. The Council says 2023 reports were included in the August 2023 EHC Plan.
88. Miss X says the reports used in the April annual review were out of date. However the reports in the August 2023 EHC Plan were from 2023 so I find no fault for this complaint.

Complaint F: The EHC Plan was sent with wrong dates

89. The Council admit an incorrect EHC Plan was sent to Miss X in August 2023 most likely due to human error.
90. The Council sent the correct EHC Plan on 19 September. This delay is fault causing frustration and distress to Miss X, and delaying her right to appeal.
91. I have suggested a symbolic payment for distress and frustration.

Complaint G: The Council failed to process Miss X’s requests for Direct Payments efficiently

92. The Council apologise for the delay in response to Miss X. This delay is fault causing frustration and distress to Miss X. I have included this in the symbolic payment below.

Complaint H: Poor communication from the Council to Miss X

93. The Council have acknowledged in the complaint response it could have had a more “joined up” approach with the school, and the Miss X did not receive timely responses to her communication.
94. This is fault causing frustration to Miss X.

Remedies and Service improvements

95. We welcome that the Council offered a financial remedy. However, I have recommended a different financial remedy in line with our Guidance on Remedies.
96. Miss X told the Council she provided educational materials and equipment for Y to use at home, which she paid for herself. She provided a breakdown of these costs. The Council have agreed to refund £1448.97 to Miss X. I can only recommend a symbolic payment to recognise the injustice caused by the Council’s failings, in line with our guidance on remedies. This says:
• where we find fault has resulted in loss of educational provision, we usually recommend a payment of £900 to £2,400 a term to recognise the impact of that loss; and
• in addition to educational provision, we recommend additional remedies for loss of SEN support such as Occupational Therapy, or other direct therapies and interventions. The level of financial remedy for this is likely to be lower than that for loss of educational provision. We consider the level of provision missed and the impact of this on the child.
97. I recommend the Council look again at the items to refund Miss X, so she is not getting a “double remedy” as I am recommending a payment for the missed SaLT provison.
98. I am aware we have made service improvements to this Council on similar cases recently (23010727 and 23018292). It is clear the Council is experiencing issues which the Ombudsman has addressed. I am satisfied the service improvements agreed on the other complaints also address the issues from this complaint, and the Ombudsman will continue to follow up with the Council on any previously agreed service improvements.

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Agreed action

99. Within a month of the final decision, the Council should:
• Send a written apology to Miss X and for the injustice caused to her by the faults identified. We have published 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;
• Pay Miss X the following:
1. £4000 for the missed provision from May to December 2023 term. Where fault has resulted in a loss of educational provision, the Ombudsman Guidance on Remedies recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. As Y was in an important educational year I have made an award at the upper end of the bracket.
2. £1500 for the missed SaLT provision (£500 per term x 3 terms).
3. £300 to recognise the distress, frustration and uncertainty caused to Miss X; and
4. £300 for the distress, uncertainty and lost opportunity for Y. This is a symbolic amount based on our Guidance on Remedies.
5. The total payment to Miss X is £6100.
• Recalculate Miss X’s refund for educational materials, SaLT and counselling, and pay her ensuring she does not get a “double remedy”.
100. The Council should provide us with evidence it has complied with the above actions.

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Final decision

101. I find fault with the Council for delay in completing Y’s EHC Plan. I have recommended a payment for the lost provision for Y, and the frustration and distress caused to Miss X.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman