Summary: Mr D complained about the Council’s handling of his son’s (X) Education, Health, and Care plan process and his requests for more provision and a different school placement. We found the Council failed to adhere to the statutory process and timescales following an annual review. However, this did not cause X or Mr D a significant injustice, its apology was therefore appropriate. Other parts of the complaint carry appeal right to the SEND Tribunal, which we would expect Mr D to use.

The complaint

1. The complainant, Mr D, complained about the Council’s handling of the Education, Health, and Care plan process for his son (X). He said it had:
• failed to follow the required processes, and failed to consider his needs and parental requests regarding X’s school placement;
• to provide speech and language therapy as previously promised. He said it should arrange a private assessment to determine how much support X’s needs; and
• failed to disclose a breakdown of the funding it provided to X’s school to deliver EHC plan provision.
2. Mr D said, as a result, he and X experienced distress, and X had a loss of special educational needs provision.

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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. 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)
5. 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.
6. 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

7. As part of my investigation, I have:
• considered Mr D’s complaint and the Council’s responses;
• discussed the complaint with Mr D and considered the information he provided;
• considered the information the Council provided in response to my enquiries; and
• had regard to the relevant law and guidance to the complaint.
8. Mr D and Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
9. 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

10. 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.
11. 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)  
12. 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. 

Reviewing EHC plans

13. 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.
14. 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) 
15. 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. A final amended EHC plan should be issued within a further 8 weeks.
16. There is a right of appeal to the Tribunal against:

• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified; and
• an amendment to these elements of an EHC Plan.

What happened

17. Mr D’s son, X, has health conditions which impact his ability to receive his education. These and the special educational needs provision he should receive are set out in his EHC plan, which included termly input from a speech and language therapist to create a programme and share this with X’s school.
18. In 2022 the Council agreed it had failed to provide some speech and language therapy provision for X. It offered to make this provision up to him over the following academic year. Mr D asked the Ombudsman to consider his complaint and we found the Council’s proposal to be appropriate.
19. In March 2022 the SEND Tribunal considered X’s EHC plan, including Mr D’s concerns about the amount of speech and language provision X was receiving and the school placement. Based on the information from the therapist it found the provision in his EHC plan was appropriate, and more direct therapy would not make a difference to X.
20. In Summer 2023 the annual review of X’s EHC plan was held. This shows X received 1:1 speech and language therapy in his school from a provider which also set targets for staff and structured opportunities for social skills development. The review found X’s EHC plan should be maintained with some amendments.
21. Mr D asked the Council for more speech and language therapy. The Council explained X was already receiving more support than what was required in his EHC plan from his school placement.

Mr D’s complaint

22. In Autumn 2023, Mr D told the Council he had not received the annual review paperwork two weeks before the review meeting and the process had not been completed within the statutory timescales. He also raised concerns about the school placement due to issues with lunch time support and the travel distance to the school.
23. The Council accepted it had not completed the annual review within the statutory timescales and told Mr D it would complete this soon after. It explained the school had arranged the annual review and should have shared the relevant paperwork.
24. In October 2023 when Mr D did not receive X’s amended EHC plan, he complained to the Council. He also said he had requested a change of placement for X during the last year.
25. In response, the Council explained:
• it had already told him it was the school which did not share the annual review documents two weeks prior to the annual review meeting. It suggested he brought this concern to the school’s attention;
• it had sent X’s amended EHC plan to Mr D when it said it would, but it had been sent to his previous address. It apologised for the error and confirmed X’s amended EHC plan was resent in November 2023 to his current address; and
• the SEND Tribunal had considered the school placement and he had not requested a change of placement in the annual review. It had since received his request and would consult with his preferred placement.
26. The Council issued X’s final amended EHC plan in December 2023. This set out X’s unchanged speech and language provision and listed the existing school placement, which the Council found could appropriately meet his needs. It also explained it had consulted with his preferred school, which had no vacancies.
27. Mr D escalated his complaint with the Council. He continued to dispute the suitability of the school placement, partly due to the travel distance. He felt not enough had been done to support X during lunchtime. He also said speech and language support agreed in the previous Ombudsman decision had not been delivered, and the Tribunal Order had not been followed as specific hours of therapy was not set out.
28. In its final response the Council did not change its view. It explained it had issued X’s final amended EHC plan and Mr D could exercise his appeal rights to the SEND Tribunal. It explained it had again asked the school to consider how X could be supported during lunch time, which had included an occupational therapy visit to the school.
29. Mr D continued to raise his concerns with X’s school, the Council and his local Councillor in 2024. The Council’s view was unchanged. Mr D asked the Ombudsman to consider his complaint.

Analysis and findings

Education, Health, and Care plan process

30. The Council accepted Mr D did not receive the annual review documents two weeks before the annual review in Summer 2023. While I understand it was the school which arranged the meeting, the review process remains the Council’s responsibility. This was therefore fault by the Council.
31. The Council was also responsible for ensuring it adhered to the statutory timescales for the EHC plan process. I found the Council at fault as:
• Mr D did not receive the amendment notice and draft EHC plan until November 2023. This was three months late. I acknowledge this was largely due to an error in sending the notice to his previous address; and
• the final amended EHC plan for X was not issued until December 2023, which was three months after it should have been issued.
32. However, I am not satisfied Mr D or X experienced a significant injustice as a result. In reaching my view I was conscious the provision in X’s EHC plan was largely unchanged and the placement remained the same, and Mr D did not appeal his disagreement about the provision or school placement to the SEND Tribunal. I found the Council’s apology was therefore enough to remedy the limited injustice its delays caused.

X’s school placement and support in school

33. I acknowledge Mr D continues to believe the school listed in X’s EHC plan is not appropriate. The Council disagreed and the school found it could meet X’s needs. The Council also considered his preferred placement, but found it had no vacancies.
34. The Council has issued X’s final EHC plan, I cannot consider issues around the suitability of the school placement, as such matters can be appealed to the SEND Tribunal. The fact Mr D has decided not to appeal to the SEND Tribunal does not mean I can consider this concern, nor whether enough provision of support is available for X during lunch times.

Speech and language provision

35. X’s EHC plan sets out the speech and language therapy provision he should receive each term. Based on the evidence available, I am satisfied X had received at least the provision he was entitled to. This includes the limited provision which the Council agreed to provide following the previous Ombudsman decision.
36. I understand Mr D believes the SEND Tribunal Order says he should receive speech and language reports, a private assessment should be completed, and he wanted a breakdown of the Council’s funding to the school for the provision set out in the EHC plan. However, this is not what the Tribunal ordered and what was set out in the EHC plan.
37. I am satisfied the Council ensured X received the provision he was entitled to as set out in his EHC plan. It was not required to share reports with Mr D, nor the exact costings of individual provision in the plan. If Mr D continues to believe the provision in X’s EHC plan is not enough, he can exercise his appeal right to the SEND Tribunal for its consideration.

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Final decision

38. I have completed my investigation with a finding of some fault by the Council. The Council’s apology was enough to remedy the injustice this caused. Other parts of the complaint carry appeal right to the SEND Tribunal, which we would expect Mr D to use.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman