Summary: Mrs X complained the Council failed to ensure her child, Y, received all the provision and support set out in their Education, Health and Care (EHC) Plan. Mrs X also complained the Council failed to issue Y’s amended EHC Plan in line with statutory timescales after Y’s January 2024 annual review. The Council was at fault for the delay in issuing Y’s final amended EHC Plan following the annual review and Y did not receive some vision therapy provision which they were entitled to. The Council will apologise to Mrs X for the frustration and avoidable time and trouble the delay caused and pay her a symbolic payment. It has already apologised for Y’s lost vision therapy sessions it will also pay her a symbolic payment. The Council has already put in place an action plan to improve its service.

The complaint

1. Mrs X complained the Council:
1. failed to issue her child, Y’s, Education, Health and Care (EHC) Plan within the statutory timescales following their annual review held in mid-January 2024;
2. failed to consult with her choice of school for Y and failed to respond to the school after it made contact with the Council, the school then had no space for Y in September 2024;
3. failed to provide all the provision set out in Section F of Y’s EHC Plan including failing to meet Y’s vision therapy needs from mid-December 2023, not providing Y with a laptop which had speech to text software and not always providing Y with a now and next tray;
4. used a single point of contact (SPOC) for voluminous emails which was unlawful and caused victimisation and the Council did not respond in line with the timescales of the SPOC;
5. refused in writing to confirm Y’s staff qualifications specified in their EHC Plan; and
6. failed to follow its complaint handling process because of delayed response times.
2. Mrs X said it caused her a financial loss because she had to instruct lawyers and caused her distress.

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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. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide any injustice is not significant enough to justify our involvement (Local Government Act 1974, section 24A(6), as amended, section 34(B))
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. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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.
8. 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)
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 have and have not investigated

10. I cannot look at issues Mrs X has previously complained about and were considered in case 23007368. I have therefore not considered the points identified above in paragraph 1d and 1e.
11. I have not investigated Mrs X’s complaint about the school consultations identified above in paragraph 1b. This is because Mrs X had a right of appeal to a Special Educational Needs and Disabilities (SEND) tribunal which she used in September 2024. As explained in paragraph 6 above we cannot investigate a complaint if someone has appealed to a tribunal about the same matter.
12. I have investigated Mrs X’s complaints identified in paragraph 1a, 1c and 1f. My investigation period started in January 2024 and ended in late August 2024.

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How I considered this complaint

13. I considered:
• the information Mrs X provided about her complaint and spoke to her on the telephone;
• the information the Council provided in response to my enquiries;
• relevant law and guidance, as set out below; and
• our guidance on remedies, published on our website.
14. Mrs X and the Council had an opportunity to comment on the draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

15. 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. Section F sets out the educational provision needed by the child or young person and Section I sets out the name and/or type of school.
16. There is a right of appeal to the SEND tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
17. The courts have established that if someone has appealed to the SEND tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207).
18. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded.

Maintaining the EHC Plan

19. 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).
20. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC Plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:
• check the special educational provision is in place when a new or substantially different EHC Plan is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.

Reviewing EHC Plans

21. 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.
22. Councils can delegate the arrangements for an annual review meeting to a child’s school, but the council retains responsibility for ensuring the review is conducted with the statutory timescales.
23. 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).
24. 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. The Council should issue an amended plan within 8 weeks of its notice to the parties that it proposes to amend the plan.

Council complaints procedure

25. The Council operates a two-stage complaints process. It says it will respond to stage 1 and stage 2 complaints within 20 working days.

What happened

26. Y is primary school aged and has a diagnosis of Autistic Spectrum Disorder (ASD) and other special educational needs. Y has an EHC Plan which sets out the specialist provision they are entitled to, the Plan named a mainstream primary school, School 1, in Section I.
27. The Council issued Y’s final amended Education Health and Care (EHC) Plan in early May 2023, following an appeal to the special educational needs and disabilities (SEND) tribunal by Y’s mother, Mrs X. The Council issued a further amended EHC Plan in mid-May 2023 following some minor amendments. Section F included the following key provisions for Y:
• 32.5 hours per week of support from a teaching assistant (TA), including five hours to cover unstructured time;
• a personalised task tray system. This is a system whereby Y could choose work from the “now and next” tray to complete independently and, once Y had completed this, place it in a “completed” tray, at which point a reward could be given;
• alternative recording strategies including use of a laptop and speech to text software and applications (apps). Y would need to be supported to trial this approach and make decisions on effective strategies; and
• fortnightly one to one vision therapy sessions for 45 minutes.
28. Mrs X said Y’s last vision therapy session was held in mid-December 2023.
29. In mid-January 2024 Y’s annual review was held. This was attended by School 1, the Council, an NHS speech and language therapist (SALT) and Mrs X. Mrs X raised concerns that parts of Section F of Y’s EHC Plan were not in place. She had concerns about Y being taken out of the classroom, Y not included with their peers in the classroom, Y’s increased anxiety about attending school, the now and next tray not in place and Y did not have use of a laptop using speech to text software. School 1 said all Y’s Section F provision was in place, Y was using a now and next board because they had moved on from the now and next tray, a voice detector app was available on Y’s iPad and Y was included in classroom group work. The annual review considered updated SALT advice, an Occupational Therapist (OT) report and a Behavioural Optometrist report which said vision therapy had not been successful for Y and needed to be removed from Y’s EHC Plan and further recommendations were included within the report. The annual review recommended Y’s EHC Plan should be updated.
30. Two days after Y’s annual review School 1 sent an email cancelling Y’s online one-to-one fortnightly vision therapy sessions and said they would use the vision therapist’s new approach set out in the Behavioural Optometrist, vision report. Mrs X was unhappy they had been stopped and complained to the Council. Mrs X said she did not get a response to this complaint. The Council said in response to my enquiries it did not receive or log Mrs X’s complaint about Y’s vision therapy being stopped.
31. In late January 2024 the Council sent Mrs X a decision letter following Y’s annual review and said it would amend Y’s EHC Plan.
32. In mid-April 2024 Mrs X complained to the Council and said it failed to provide draft and final amendments to Y’s EHC Plan within the statutory deadlines following Y’s annual review held in mid-January 2024. She said Y was not receiving all their Section F provision and the Council was in breach of Section 42 of the Child and Families Act. She said Y was missing vision therapy, the now and next tray was not used and Y had not had a trial with a laptop with speech to text software.
33. In late-April 2024 Mrs X’s legal representative sent the Council a letter requesting Y’s EHC Plan was amended and finalised by mid-May 2024. In mid-May 2024 the Council issued Y’s draft EHC Plan.
34. In mid-June 2024 Mrs X’s legal representative sent the Council a letter before action. It said the Council had not issued Y’s final EHC Plan. The Council responded in late June 2024 and said the Council’s SEN case manager had been absent from work, it named a new case officer and said Y’s EHC Plan would be issued by late June 2024.
35. In early July 2024 the Council reissued Y’s draft EHC Plan to ensure Mrs X had seen the latest draft. Mrs X made amendments to Y’s EHC Plan and a week later in mid-July 2024 the Council issued Y’s final EHC Plan naming School 1 in Section I. It also set out Mrs X’s appeal rights.
36. Mrs X complained to us in mid-August 2024.
37. In late August 2024 the Council issued its final response to Mrs X and said:
• it apologised for the Council’s delayed complaint response;
• it apologised for the delay in providing its proposed amendments to Y’s draft EHC Plan which was because of high staff workloads and increased demand for the service;
• it apologised for Y’s vision therapy sessions being stopped. It said it should not have stopped these without a suitable replacement. It was considering what provision should be provided; and
• the trial of the laptop had been considered in mediation in January 2024 and Y had access to a voice dictator app on an iPad to support their learning which does the same as a laptop with speech to text software.
38. In September 2024 Mrs X appealed to the SEND tribunal on Sections B, F and I of Y’s final amended EHC Plan.

Enquiries

39. In response to my enquiries the Council said:
• it did not issue Y’s final amended EHC Plan in line with the statutory timescales because there were changes in staffing levels because of sickness, staff leaving the service and annual leave. The Council said it was increasing staffing levels to improve its communication with families and respond to annual reviews within the statutory timescales; and
• School 1 trialled a variety of iPads, laptops, and software packages with Y to explore the most effective ways to support their learning. The Council said School 1 would use its professional judgment on whether it would be appropriate for Y to sit formal tests and examinations but if Y was entered into these, consideration would be given to the support Y required.
40. In response to my enquiries Mrs X told me there was no mediation in January 2024 and she was still unhappy Y had not been provided with a laptop with speech to text software. Evidence of the mediation certificate has not been provided by the Council. In response to my draft decision Mrs X said a now and next board was not the same provision as a now and next tray.

My findings

EHC Plan Delays

41. We expect councils to follow statutory timescales set out in law, Regulations and Code. We are likely to find fault where there are significant breaches of those timescales.
42. Y’s EHC Plan annual review meeting took place in mid-January 2024. To be in line with statutory guidance the Council should have told Mrs X if it intended to maintain, amend or discontinue Y’s EHC Plan within four weeks (by early- February 2024) and issued an amended final EHC Plan within a further eight weeks (by early April 2024). The evidence shows the Council did write to Mrs X in late January 2024 to explain it would amend Y’s EHC Plan. This was in line with the statutory timescale and was not at fault. However, the Council did not issue Y’s final amended EHC Plan until late July 2024, this was a delay of approximately four months and fault. It caused Mrs X frustration and avoidable time and trouble. It also delayed her rights of appeal to the SEND tribunal which she exercised in September 2024.

Lost provision

43. School 1 stopped Y’s vision therapy in mid-January 2024 and this provision was not replaced. Y missed their one-to-one fortnightly vision therapy sessions for approximately six months and that was fault. This meant Y missed provision to which they were entitled.
44. Section F of Y’s final amended EHC Plan said Y should have had access to a personalised now and next tray system. Mrs X said a now and next board was not the same provision as a now and next tray. The Council said Y moved on from the now and next tray to a personalised now and next board system. I have considered Mrs X’s and the Council’s points. There was not enough significant injustice caused to Y to warrant investigating this point further.
45. Section F of Y’s final amended EHC Plan said Y should trial using a laptop with speech to text software and apps. Mrs X said Y had not been provided with a laptop with speech to text software. The Council said Y was provided the equipment needed and School 1 trialled various, iPads, laptops and software packages to support Y’s learning. It said School 1 would use its professional judgment on whether it would be appropriate for Y to sit formal tests or examinations but if Y was entered into these, consideration would be given to the support Y required. There was not enough significant injustice caused to Y to warrant investigating this point further.

Complaints handling

46. Mrs X complained to the Council in mid-April 2024. The Council sent its final response in late August 2024 which was a delay of approximately three months and caused Mrs X frustration. The Council has already apologised which remedied the injustice caused.
47. The Ombudsman has already made service improvement recommendations to this Council on similar cases. As a result of earlier complaints to us, the Council has agreed to provide us with an action plan to reduce delays in the EHC Plan process. On this basis no further service improvement recommendations were needed.

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Action

48. Within one month of the final decision the Council will:
1. apologise and pay Mrs X £200 for her delayed appeal rights, frustration and avoidable time and trouble caused to her by the approximate four-month delay in issuing Y’s final amended EHC Plan; and
2. pay Mrs X a symbolic payment of £600 to acknowledge the impact of Y’s lost vision therapy provision over a two-term period between mid-January 2024 and the end of the academic year in July 2024. This remedy was calculated at £300 per term and is in line with the Ombudsman guidance on remedies.
49. The Council will provide us with evidence it has complied with the above actions.

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Decision

50. I have completed my investigation finding fault causing personal injustice. The Council has agreed to take action to remedy the injustice. The Council has already put in place an action plan to improve its service.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman