Summary: Mrs X complained there was delay organising an Education, Health and Care Plan annual review. And, that provision in Section F of the Plan has not been put in place. Based on current evidence there was 2 months delay in the annual review outcome and some Occupational Therapy sessions did not take place. The actions offered by the Council before the complaint came to the Ombudsman remedy the injustice of uncertainty and loss of educational provision.

The complaint

1. The complainant, who I shall call Mrs X, complains the Council has not ensured that provision in Section F of an Education, Health and Care (EHC) Plan have been carried out at school. She also complains there was delay organising an annual review of the plan.
2. Mrs X has said that her child, Y, has not received the provision she should have, especially Occupational Therapy (OT) and Speech and Language Therapy (SALT). Mrs X says that this has caused distress to the family and Y is not making the progress they should do in school.

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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 Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith by the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 
5. 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)
6. 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

7. I have investigated the complaint about the provision in the EHC Plan from September 2022 when Y started school until May 2024 when the Council responded to Mrs X’s official complaint.
8. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.

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How I considered this complaint

9. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
10. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Key facts

11. 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. 
12. 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)  
13. 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. 

14. Y started the school named in her EHC Plan, in reception, in September 2022. This EHC Plan did not contain specific SALT and OT sessions. There was a new EHC plan put in place in January 2023 after a SEND tribunal hearing. This plan included 18, 1 hour face to face OT sessions, with 15 hours for report and programme writing and attendance at meetings. There was also 3 hours training by SALT included.
15. Mrs X made an official complaint to the Council in February 2024 that Y was not receiving the provision in Section F of the EHC Plan. The Council upheld the complaints and proposed to remedy this by the actions shown below:
• A symbolic payment of £250 to recognise Mrs X’s distress.
• Additional SALT and OT therapy funded till May 2025.
• The Council would meet with the school to discuss funding.
• A SEND professional would visit the school in the Autumn term of 2024.
• The 1-1 dedicated Teaching Assistant would continue until the Spring term of 2025.
• SEND services would provide advice to the school.
16. I asked the Council if it had completed the remedy it had promised Mrs X. The Council said it:
• Had offered the payment to Mrs X and the offer of this payment remains open if Mrs X wishes to give her bank details.
• Has provided additional funding for SALT and OT therapy until 2027.
• Held a meeting with Mrs X, the Council and the school in October 2024. Funding was agreed to be in effect from 1 September 2024.
• A specialist teacher would visit the school on 26 November 2024 and provide advice to the school.
• The 1-1 dedicated Teaching assistant is in place.
17. Mrs X says that she wants the Council to:
• Provide compensation of £350 per provision per month for every month of missed provision since the EHC Plan was in place.
• Ensure that Y's EHC Plan is fully supported in line with the law immediately.
• Provide additional support for Y to 'catch up' over the next academic year in the form of increased support from specialist teachers, direct therapy with a qualified OT and direct therapy with qualified SALT.
• Expediting the review/approval of the current EHC Plan.
• A full written apology and guarantee of immediate action (within 2 weeks) in 23/24 school year should Y need any further support, or change of setting.

My analysis

18. The Council has accepted it is at fault and has already explained to Mrs X how it intends to remedy her complaint. My role is to decide if any additional remedy should be put in place.

OT and SALT

19. I asked the Council for details of exactly how many OT and SALT sessions had been carried out. For September 2023 until July 2024, the Council has provided evidence of invoices for 3 SALT sessions. So, all the SALT sessions in the EHC Plan were carried out.
20. The Council has provided evidence that 13 of the 18 OT sessions were invoiced. It has said that 5 sessions were not provided. The Council has said the missed sessions will be made up in the current year. Mrs X says that she believes that some sessions were charged but not carried out. Unfortunately, it is not possible for me to establish whether planned sessions were cancelled, the reasons for this and whether this was fault. The closer monitoring the Council has put in place will help to prevent this uncertainty in the future.
21. There was service failure by the Council, in that 5 OT sessions were not provided from September 2023 until July 2024. There is no data before this to establish if the sessions from January 2023 until July 2023 were carried out so I cannot reach a view on this period. The Council has already accepted it was at fault and proposed to remedy the lost sessions during the current year. This remedy is in accordance with the Ombudsman’s guidance on remedies.
22. I understand Mrs X’s concerns that the additional sessions will not be carried out. The Council has said it will monitor the sessions termly, which will have the evidence from invoices, to ensure all the sessions are completed. I do not consider an additional remedy to that already proposed by the Council is needed, as making up the lost sessions will remedy the injustice.

Other provisions in the EHC Plan

23. Mrs X explained that her child was attending school, but she would like financial compensation as all the provision in the EHC Plan was not in place.
24. In response to my enquiries the Council said ‘the school SENCO has clarified that all provision as specified in the daily timetable for September 2023 to July 2024 was delivered on each day that Y attended school. This contradicts the Council’s response to her complaint dated 31 May that says ‘the stage 1 and 2 investigation recognised and accepted that the provision specified in Y’s EHC Plan was not being fully delivered by the school and this part of your complaint had been upheld’. Mrs X has also obtained a statement from a member of the management of the school which says ‘we do not dispute the Council’s position that Y did not receive all of the provision in 2023/2024’.
25. Other than the OT and SALT provision, there is no evidence I can use to determine with certainty exactly which provision from the EHC Plan may not have been carried out by the teaching staff. I have seen evidence of a provision map provided by the school that shows it is aware of what it needs to do. The Council has acted on Mrs X’s complaint. The school has also met with a specialist teacher on 3 December 2024 and has told the Council it will put the advice in place. The Council has said ‘it will allocate this case to a manager to oversee the Officer for the school in relation to termly monitoring with school Special Educational Needs Co-ordinator (SENCO) to ensure all provision is being delivered and update progress via professionals’ meetings’.
26. Mrs X has explained on the telephone she wants a financial remedy to compensate for the impact on the family. Mrs X says Y is not getting what she should be from the EHC Plan now, so what is the point of putting place additional provision the school still won’t do.
27. Mrs X specifically refers to Y needing a 1-1 Teaching Assistant (TA) during break and lunchtime. She says the EHC Plan from 23 January 2023 to 24 June 2024 specified a 1-1 Teaching Assistant during breaktimes and lunchtimes. The Council says this is not the case. I have looked at the January 2023 EHC Plan. It does not specifically say that Y should have a 1-1 TA during breaktimes and lunchtimes. I note there is some provision at lunch, such as helping Y with cutting up food and in the classroom, but this is not specified to be a 1-1 TA.
28. Our guidance on remedies says that where we find fault we can recommend corrective action, such as more therapy to address shortfalls and symbolic payments to acknowledge the impact of loss of educational provision. Any payment should be based on the impact on the child and take account of factors such as:

• The severity of the child’s SEN as set out in their EHC plan.
• Any educational provision – full time or part time, without some or all the specified support – that was made during the period.
• Whether additional provision can now remedy some or all the loss.
• Whether the period concerned was a significant one for the child or young person’s school career – for example the first year of compulsory education, the transfer to secondary school, or the period preparing for public exams.
• Lost or delayed right of appeal to tribunal.

29. The Council has already offered Mrs X a symbolic payment of £250. Mrs X seeks a payment of £350 a month, this would be similar to a payment the Ombudsman would recommend for a child who is completely out of school. Mrs X makes the point that attendance at school does not mean the provision in the EHC Plan was in place. Y was in school full time and received educational provision, along with the SALT and most of the OT. The Council has already explained that it will make up the SALT and OT which was not put in place and has put in place monitoring for the school for the rest of the provision. I consider the remedy already offered by the Council is satisfactory and do not consider an increased payment is required.
30. Mrs X can appeal to the SEND tribunal if she considers the provisions in the EHC Plan are not suitable, as she has mentioned Y is not making the progress she should.

Annual review

31. Mrs X says that an annual review did not take place. I have looked at the information provided. There were EHC Plans in June 2022 and January 2023. The next annual review was carried out in January 2024, but Mrs X says the meeting was aborted and completed in March 2024.
32. The Council has said there was delay in sending out the statutory letter to Mrs X telling them whether the Council intended to amend, cease or maintain the EHC Plan.
33. In its complaint response, the Council upheld Mrs X’s complaint and said there had been confusion over the 2024 annual review. It remedied this by organising a further emergency annual review in May 2024 and issuing an amended EHC Plan in June 2024. It also offered the £250 symbolic payment.
34. The failure to properly carry out the annual review in 2024 was fault. The injustice caused by this fault was remedied by the Council carrying out the review and issuing a new EHC Plan on 24 June. As the Council would have 12 weeks after the January 2024 review to issue a plan, there was delay of approximately 2 months in the family receiving the EHC Plan after the 2024 annual review should have been held. This delayed the families appeal rights to the SEND tribunal by 2 months and would have caused some uncertainty to the family. However, I am not convinced this delay was so significant to warrant an increased payment over the £250 already offered by the Council. I have also not included service improvements as the Council has already identified the steps it needs to improve in the response to Mrs X’s complaint.

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Decision

35. I find fault causing injustice. The Council has already agreed actions to remedy injustice before the complaint was considered by the Ombudsman which are sufficient remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman