Summary: Miss X complained about delays during the annual review of her child’s Education, Health and Care Plan and the Council failing to ensure occupational therapy provision was provided. Miss X said the delay meant her child missed provision and support in school leading to a deterioration in his mental health and no longer being able to attend mainstream school. We found fault by the Council but consider the action it had already offered of an apology and symbolic payment provided a suitable remedy.

The complaint

1. The complainant, Miss X, complains about delays during the annual review of her child’s Education, Health and Care Plan (EHCP) and the Council failing to ensure occupational therapy (OT) provision was provided.
2. Miss X says because of the delay, her child missed OT provision and support in school leading to a deterioration in his mental health and no longer being able to attend mainstream school.

Back to top

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)

Back to top

How I considered this complaint

5. I read the papers provided by Miss X and discussed the complaint with her. I have also considered information from the Council. I have explained my draft decision to Miss X and the Council and provided an opportunity for comment.
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I found

Background and legislation

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. 
8. 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)  
9. 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. 

10. 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.
11. 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) 
12. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
13. 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.

Key events

14. The following is a summary of key events. It does not include everything that happened.
15. Miss X’s child had an EHCP from June 2022. A review meeting was held in May 2023. Miss X had not received the outcome of the review meeting or a draft plan at the end of March 2024 and complained to the Council.
16. The Council responded to Miss X’s complaint at the end of April and apologised for the delay. The Council accepted it had failed to meet the statutory timescales in completing the annual review process and provided an apology. The Council also apologised for the poor communication during this period.
17. Miss X received a copy of the draft plan in early May.
18. Miss X remained unhappy with the Council’s response and escalated her complaint in mid-May. Miss X highlighted the missed OT provision during the period and impact on her child.
19. Miss X received the final EHCP in June.
20. The Council further responded to Miss X’s complaint in June. The Council provided a further apology and offered a symbolic payment of £1,000 to acknowledge the delay in the annual review process and impact of this on her child and £500 to acknowledge Miss X’s frustration and uncertainty and the poor communication she had received.
21. Miss X did not accept the Council’s offer as it did not address the missed OT provision during the period.
22. In responding to a separate complaint by Miss X, the Council accepted it had failed to ensure her child received the OT provision included in the June 2022 EHCP. The Council confirmed the details of the missed OT provision and offered £500 to acknowledge the missed provision to that date.
23. The Council has confirmed the total offer of £2,000 remains in place.
24. Based on the information provided, the Council has accepted delay and poor communication in the annual review process and that it did not ensure OT provision was in place. This is fault. However, I consider the remedy the Council has proposed provides a suitable remedy and is in line with the Ombudsman’s guidance.
25. In response to a draft of this statement, Miss X has confirmed she would like to accept the Council’s offer and I have advised the Council accordingly.
26. There have been recent service improvements recommended by the Ombudsman for reminding staff of the statutory timescales for EHC Plan’s and the importance of timescales set out in the complaints process. I have therefore not made any further recommendations as we will monitor the impact of these changes through our complaints.

Back to top

Final decision

27. I have completed my investigation as I have found fault by the Council but consider the action it has already proposed provides a suitable remedy.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman