Summary: Mrs X complained the Council failed to deliver the provision in her son’s Education, Health and Care Plan and failed to respond to her complaint about this. She also complains the annual review of the EHC Plan was delayed and that all this caused distress and uncertainty. The Council did not provide all the Occupational Therapy and Speech and Language Therapy which is fault. It also delayed completing by the annual review. A suitable remedy is agreed.

The complaint

1. Mrs X complains the Council failed to deliver the provision set out in Section F of her son’s EHC Plan and failed to respond to her subsequent complaint about this. She also complains that the annual review which began in March 2024 has not been finalised.
2. Mrs X says this has caused distress and uncertainty and her son has not received the provision he was 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)
5. 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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How I considered this complaint

6. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

EHC Plan 

7. 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. 

Reviewing EHC Plans

8. 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.
9. 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) 
10. 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.

Content of an EHC Plan

11. 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 
• Section J: Details of any personal budget required to fund the provision in the EHC Plan.

Personal Budgets

12. A Personal Budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. A child’s parent or the young person has the right to request a Personal Budget when the council has completed an EHC needs assessment and confirmed it will prepare an EHC Plan. They may also request a Personal Budget during a statutory review of an existing EHC Plan.

Key facts

13. This section sets out the key events in this case and is not intended to be a detailed chronology.
14. Mrs X’s son, Z, has a diagnosis of Autistic Spectrum Disorder, extreme anxiety, selective eating and sensory processing difficulties. He has had an EHC Plan for several years. On 9 March 2023 the SEN Tribunal ordered the Council to amend Z’s EHC Plan in respect of sections B, F and I. It gave the Council until 14 April to do this. Mrs X submitted a formal complaint to the Council on 17 April about its failure to act in line with the tribunal order. The Council issued the EHC Plan one week late on 20 April 2023.
15. The Council responded on 24 August upholding Mrs X’s complaint. It apologised for the late publication of Z’s EHC Plan following the tribunal and also for the delay in responding to her complaint. It said this was due to internal reasons but did not elaborate further.
16. Mrs X escalated her complaint to stage two of the Council’s complaint process on 20 September. As well as saying it was not acceptable the Council took four months to respond to her previous complaint, she said her son was still not in receipt of the Section F provisions set out in the EHC Plan. Mrs X specifically mentioned the failure to provide speech and language therapy, occupational therapy and failure to provide a laptop. Mrs X made a request for a symbolic payment for the lack of provision in line with the amounts set out in guidance issued by the Ombudsman.
17. Mrs X did not receive a response and so chased the Council on 2 February 2024. On 8 February, the Council emailed Mrs X saying it could not locate any correspondence from her and so asked if she could resend it. Mrs X responded sending a copy of the receipt acknowledgement the Council had previously sent to her. Mrs X says the Council did not respond further to her and so she complained to the Ombudsman.

Occupational therapy provision

18. Z’s EHC Plan issued on 20 April 2023 set out in Section F the requirements for OT. Amongst other provision, the EHC Plan stated that Z should receive a weekly 45 minute session to work on Interoception and sensory processing.
19. The information provided by the Council indicates it knew in August 2023 that not all the OT provision was being delivered. Instead of a weekly session only a monthly session was being delivered. The Council has sought an alternative provider but says there is limited OT capacity in its area. An OT contacted the Council on 11 September 2024 says she may be able to offer support but to date this has not been confirmed.
20. There is a duty on the Council to deliver the provision set out in Section F of the EHC Plan. The failure of the Council to deliver the full OT provision is fault. A suitable remedy for this loss of provision is recommended below.

Speech and Language therapy provision

21. Z’s EHC Plan issued on 20 April 2023 set out in Section F the requirements for SALT. It stated there should be a half-termly session to monitor and re-set targets this would be 45 minutes with Z and a further 45 minutes for liaison. The therapist would be allocated three to four hours for an annual reassessment and report for the Annual Review Meeting. The therapist would design a bespoke social communication programme to be carried out in a quite on to one setting by a mentor three times per week for a minimum of 20 minutes. There would also be training for all staff working with Z.
22. The information provided by the Council indicates it arranged SALT from the beginning of September 2023 and not from April when it issued the final amended EHC Plan. In April 2024, Mrs X told the Council the SALT provision was not being delivered. The Council says this was the first time it was aware of this issue.
23. The Council contacted the SALT who informed the Council it had capacity to deliver the provision in the EHC Plan but that Z had not felt able to attend any appointments either face to face, by video or telephone due to anxiety. It said it had tried to be as flexible as possible.
24. The Council continued to liaise with the SALT about how the provision could be delivered. Z met with the therapist on 10 June and a follow up meeting was planned.
25. The Council failed to act to put the SALT provision in place from April 2023. It delayed until 6 September 2023. This is fault and as a result Z lost out on one term of SALT provision. From September 2023, the provision was in place but Z was unable to access it. There is nothing to suggest the Council was aware of this until Mrs X notified the Council in April 2024. At that point the Council liaised with the SALT and satisfied itself the provision was available. While Z may not have been accessing any provision from September 2023, I cannot conclude this was due to fault by the Council.
26. A remedy for the loss of SALT provision for one term is recommended below.

Provision of laptop

27. Z’s EHC Plan states “Z must have a consistent computer and keyboard and use this for recording his academic work”. The Council says that it was aware Z had access to a computer at home. It says there is reference in the EHC Plan to the difficulty the family has getting him off the computer. Based on this the Council did not provide a computer. However in April 2024, Mrs X wrote to the Council and asked it to provide a computer. The Council agreed Mrs X could use some of the personal budget, up to the value of £200, to purchase a computer for Z to use.
28. I note Mrs X considers £200 is not sufficient to buy a suitable computer and that she made this point to the Council. She said that Z will use the computer for video editing and video calls with mentors. There is nothing to suggest the Council responded to this. However, in response to my enquiries the Council says the work with mentors is not provision agreed by the Council or stated in Z’s EHC Plan.
29. I am satisfied the Council responded to the request for the provision of a laptop and allowed some budget to be used. While Mrs X disagrees with the amount allowed by the Council, I cannot say the Council’s view that £200 is appropriate amounts to fault. However, I do consider the Council should have responded to Mrs X’s query regarding the amount and recommend it now explains its reasons.

Annual review

30. There is a statutory duty to review an EHC Plan every year. The process begins with the annual review meeting and should be completed within 12 weeks. In this case, the Council notified Mrs X the annual review meeting would take place on 8 April 2024. The Council issued the final amended EHC Plan on 29 August 2024. At this point Mrs X’s appeal rights engaged if she disagreed with the content of the EHC Plan.
31. The annual review was not completed within the statutory 12 week timeframe. This is fault. As a result of the delay, Mrs X’s appeal rights were frustrated and she was caused distress. A suitable remedy is proposed.

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Agreed action

32. To remedy the injustice caused as a result of the fault identified in this case, the Council will, within one month of my final decision, take the following action:
• Apologise to Mrs X and Z;
• Make a payment of £800 to recognise the failure to provide all the OT provision set out in the EHC Plan for over four terms;
• Make a payment of £250 to recognise failure to provide SALT provision for one term;
• Make Mrs X a symbolic payment of £300 to recognise the distress and uncertainty caused by the delay in completing the annual review;
• Provide evidence that all provision in Z’s EHC Plan is now being provided;
• Respond to Mrs X’s claim that £200 is not sufficient to purchase a laptop; and
• Remind staff of the importance of meeting the statutory timescales for annual reviews.
33. The Council should provide us with evidence it has complied with the above actions.

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Fial decision

34. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman