Summary: Ms X complained that the Council failed to provide full-time education and special educational provision for her son (Y). She also complained about the Council’s delay in reviewing Y’s Education Health and Care Plan, its failure to re-assess Y’s speech and language needs and to communicate with her. We found fault with the Council. This fault caused injustice to Y and Ms X. The Council has agreed to apologise and make payments to recognise Y’s loss of provision and Ms X’s distress. The Council has also agreed to reimburse Ms X for the cost of a Speech and Language Therapy report.

The complaint

1. Ms X complains about the Council’s:
• failure to provide full-time education for her son Y and to ensure delivery of all special educational provision included in Y’s Education, Health and Care (EHC) Plan between October 2021 and November 2023;
• 14-month delay in arranging an EHC Plan review after Ms X’s request in March 2022;
• failure to arrange an up-to-date Speech and Language therapy (SLT) assessment and other assessments for Y;
• poor communication;
• delay in carrying out a social care assessment for Y and failure to prepare Y’s child in need plan and to carry out a carer’s assessment for Ms X.
2. Ms X says the Council’s failings meant that for many months Y did not receive suitable education and support. Ms X spent much time contacting the Council to ensure the right provision for Y. She also paid for private assessments and legal help.

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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 cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
6. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
7. 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)
8. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

9. Ms X brought her complaint to us in July 2024, so as explained in paragraph four of this decision we would normally start our investigation from the summer of 2023.
10. The evidence shows that from the end of 2021 Ms X and her representatives kept contacting the Council querying the suitability of Y’s education and the lack of all provision included in his EHC Plan.
11. I acknowledge there was much confusion about the correspondence from Ms X, her legal representatives, who changed twice, and her local Member of Parliament (MP). Some of this was caused by the volume of correspondence, so was beyond the Council’s control. The Council received letters, complaints and legal correspondence about various aspects of Y’s education as well as social care.
12. When deciding whether to extend my investigation I have also considered the significant delays in responding to Ms X’s complaint about Y’s education. Ms X raised her complaint about Y’s education in April 2022. It took the Council nearly a year to respond. Before responding the Council closed this complaint informally in June 2022. After responding at stage one in February 2023, the Council sent another stage one response in October 2023 and responded at stage two in April 2024.
13. I have decided to extend my investigation to the end of November 2021 for the following reasons:
• Ms X and her representatives continued contacting the Council about Y’s education from the end of 2021:
• the Council significantly delayed its response to Ms X’s complaints.
14. I have not investigated anything that happened after the beginning of April 2024, when the Council provided its stage two response to Ms X’s complaint about Y’s education. As explained in paragraph five of this decision this is because before we investigate the Council should have an opportunity to respond to any issues raised by the complainant.
15. I have not investigated whether the Council delivered the OT provision included in Y’s EHC Plan issued in November 2023. This is because the Council agreed to provide a Personal Budget for the delivery of OT and in January 2024 Ms X complained separately about this issue.
16. Ms X complained about the Council’s educational and social care services for Y. I have investigated the social care issues under the reference number 24 021 393.

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How I considered this complaint

17. I considered the evidence provided by Ms X and the Council as well as relevant law, policy and guidance, including the Council’s “Policy on Access to Education for Children and Young People with Medical Needs and Children and Young People who are New to Area with Complex Special Educational Needs (S19 Provision)”.
18. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and administrative framework

Delivery of special educational provision

19. The council has a duty to secure special educational provision specified in an EHC Plan for the child or young person. (Children and Families Act section 42)
20. The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)

Reviews

21. Special Educational Needs and Disability Regulations 2014 specify councils’ duties when reviewing children’s and young person’s EHC Plans:
• councils must review an EHC Plan at least every 12 months;
• within two weeks of the review meeting the school must provide a report to the council with any recommended amendments;
• within four weeks of the meeting, the council must decide whether it will keep the EHC Plan as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school. If it needs to amend the plan, the council should start the process of amendment without delay;
• when the parent suggests changes that the council agrees, it should amend the plan and issue the final EHC Plan as quickly as possible;
• where the council does not agree the suggested changes it may still issue the final EHC Plan;
• in any event the council should issue a final EHC Plan to the parent and any school named within 8 weeks of sending proposed amendments to the parents or young person. It must also notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so. (SEND Regulations 2014 regulations 18-22)
22. The courts said councils must, from March 2022, send the parent or young person the final amended EHC Plan within a maximum of 12 weeks of the annual review meeting. It says councils must send the decision letter alongside any proposed changes to the EHC Plan within four weeks of the review meeting and issue a final plan no later than eight weeks after the decision letter is sent. (R (L, M, and P) v Devon County Council [2022] EWHC 493)

Re-assessment

23. A council must secure a re-assessment of the educational, health and care needs of a child for whom it maintains an EHC Plan if requested by the child’s parent or the young person. The council does not need to do so if it has carried out an assessment within six months prior to the request or it is not necessary for the council to make a further assessment. (Children and Families Act 2014 section 44(2) and SEND Regulations 2014 regulation 24)

Communication

24. Local authorities should support and encourage the involvement of children, young people and parents or carers by:

• providing them with access to the relevant information in accessible formats
• giving them time to prepare for discussions and meetings, and
• dedicating time in discussions and meetings to hear their views.

(Statutory guidance Special educational needs and disability Code of Practice: 0 to 25 years paragraph 9.24)

25. Councils must have regard to the need to support a child with special educational needs or disabilities and their parent to facilitate the development of the child and to help them achieve the best possible educational and other outcomes. (Children and Families Act 2014 section 19 (d))

Corporate complaints

26. The Council will acknowledge a complaint within three working days. The complainant should receive a definitive reply within 20 working days. If this is not possible the Council should send an explanation for the delay with an indication of when a full response will be given.
27. If the complainant is not satisfied with the Council’s response at stage one, they may ask the Council to escalate their complaint to stage two. A Corporate Complaints Officer will normally complete the investigation and communicate its outcome within 65 working days.

The Council’s Medical Needs and Hospital Education Service

28. The Council’s Medical Needs and Hospital Education Service (MNHES) responds to referrals for pupils unable to attend school due to health reasons for 15 days or more. Where support is agreed teachers will oversee the provision for pupils in alternative suitable venues or in the pupil’s home. For the children who are not on roll at a school MNHES may deliver interim provision. MNHES should not be regarded as a suitable long-term provision.

What happened

Background

29. Y is 16 and has complex special educational needs and disabilities.
30. After an appeal to the SEND Tribunal, at the end of November 2021 the Council issued Y’s final EHC Plan. The Council decided Y should be educated through an EOTAS package, which included:
• at least five hours of tutoring per week delivered by a tutor experienced in teaching young people with specific learning difficulties;
• weekly support in practical activities;
• termly reviews of Y’s provision with a view to increasing it depending on Y’s health and levels of fatigue;
• physical education (PE) activities;
• at least weekly hydrotherapy sessions followed up with the physiotherapy programme and related training.

Education

31. After medical treatments in 2018 Y’s school referred him to MNHES and he started receiving a few hours a week of online tutoring.
32. At the beginning of December 2021 Ms X’s representative asked for a meeting to plan Y’s EOTAS package.
33. Ms X complained about the Occupational Therapy (OT) provision, including certain equipment for Y, at the beginning of January 2022. The Council considered this complaint through the children’s statutory complaint process and upheld most of it. In its Adjudication letter sent in November 2022 the Council offered some actions and a distress payment of £800.
34. In mid-October 2022 Ms X’s representative told the Council Ms X had still not received Y’s final post-Tribunal EHC Plan which should have been issued at the end of 2021. Ms X asked for:
• reimbursement for the cost of the privately arranged psychology, OT and SLT assessments;
• reimbursement for PE sessions, computer equipment, chiropractic treatments, swimming, mobile ramp, educational trips, sensory equipment, software and gaming subscription;
• a Personal Budget for Y to cover specialist dyslexia tutoring for five hours a week, chiropractic sessions, specialist therapy, mentoring sessions, gym membership, swimming sessions with the instructor, personal trainer sessions for supervised exercises and training, direct OT, SLT and clinical psychology sessions;
• funding for some specialist equipment, including a laptop with software and specialist seating.
35. A month later the Council said it had issued Y’s final post-Tribunal EHC Plan at the end of November 2021 and sent it by email to a person who represented her at the time. The Council stated Y was receiving the EOTAS provision through a combination of tutoring delivered by MNHES and by a private tutoring agency (Tutor 1).
36. Ms X’s legal representative responded at the end of December 2022. He disagreed with the Council’s statement Y’s EOTAS package was appropriate. He referred to the discussions held during the SEND Tribunal proceedings about MNHES provision not meeting Y’s educational and health needs and not having staff with specialist qualifications. Although Y’s educational progress should have been monitored through six-weekly reviews, these had not taken place since September 2022.
37. In the first months of 2023 Ms X identified a private tutor (Tutor 2) who she believed could support Y. In mid-March Tutor 2 delivered some trial sessions to Y. Ms X formally asked the Council to replace MNHES tutoring with Tutor 2 at the Annual Review in May 2023.
38. MNHES finished delivering education to Y at the end of July 2023. In September MNHES did not resume its services for Y. By the end of November 2023 the Council agreed to fund Y’s EOTAS package through a Personal Budget and Tutor 2 started teaching Y. The Council also arranged SLT provision for Y.
39. When asking the Council to consider her complaint at stage two Ms X said Y was still not receiving much of his special educational provision including weekly support in practical activities, small group work to support Y’s emotional development, PE activities and hydrotherapy sessions.

EHC Plan review

40. In March 2022 Ms X’s representative asked the Council to review Y’s EHC Plan. The Council carried out Y’s EHC Plan review at the end of May 2023. The previous review had taken place in December 2020.
41. At the Annual Review meeting Ms X and a MNHES manager agreed MNHES was not suitable to continue delivering tutoring to Y as it was not a long-term service and could not offer a bespoke package, which Y needed. Ms X asked the Council to fund Tutor 2 to deliver tutoring for Y. She said that Tutor 1, whom the Council had offered, could not meet Y’s complex needs. Ms X tried this provision but it was unsuccessful.
42. The Council confirmed that between the end of May and October 2023 Y would receive two six-weekly courses of art therapy, with a further two courses planned between November 2023 and February 2024.
43. Following the review the Council decided to amend Y’s EHC Plan and sent proposed amendments to Ms X at the end of June 2023.
44. The Council issued Y’s final amended EHC Plan in mid-November 2023. When amending Y’s EHC Plan the Council included the recommendations of a private SLT who had assessed Y in May 2023. The Council agreed for Y’s EOTAS package to be funded through a Personal Budget, which would include:
• tutoring delivered by a private tutoring agency (Tutoring 2);
• OT;
• a one-off payment.

Complaint

45. Ms X complained about Y’s education at the beginning of April 2022 and she asked her MP for help. The Council informally closed Ms X’s complaint in June 2022.
46. In October 2022 Ms X’s legal representative sent a letter to the Council with the proposed EOTAS package and costings. A few weeks later a pre-action protocol letter followed. At the end of December 2022 Ms X’s representative queried the Council’s statements about the suitability of the EOTAS package which Y had been receiving. He also reminded the Council about Ms X’s complaint which had not been responded to.
47. The Council re-opened Ms X’s complaint about Y’s education in mid-January 2023 and responded at stage one a month later.
48. In August 2023 Ms X again brought to the Council her concerns about Y’s education and the review of his EHC Plan and also about the social care assessment.
49. The Council sent Ms X another response to her complaint in October 2023. The Council:
• partially upheld Ms X’s complaint about its failure to secure special educational provision included in Section F of Y’s EHC Plan. The Council explained MNHES delivered tutoring to Y as an interim arrangement for the time he could not attend school. The Council said Ms X had asked for this provision to continue;
• partially upheld Ms X’s complaint about its failure to organise an Annual Review before May 2023. Some delays in arranging the review and finalising Y’s EHC Plan, the Council said, had been caused by the unavailability of Ms X’s representative;
• denied responsibility for arranging SLT assessment for Y as this was a health matter;
• upheld Ms X’s complaint about its failure to re-assess Y’s needs after he received the diagnosis of autism in October 2021.
50. The Council apologised to Ms X, Y and their family for the inconvenience, stress and anxiety caused by the Council’s delays and the lack of action. It said staff turnover and staff absence due to sickness were responsible for some of the delays.
51. As Ms X remained dissatisfied with the Council’s response, the Council considered it at stage two and responded in April 2024.

Analysis

Education and special educational provision

52. Councils have a duty to deliver special educational provision included in Section F of children’s EHC Plans. Following the SEND appeal the Council agreed to include in Section F of Y’s EHC Plan an EOTAS package specifying that Y’s tutors should be experienced in teaching young people with specific learning difficulties.
53. Despite Ms X raising the issue of the unsuitability of MNHES for Y during her appeal to the SEND Tribunal, MNHES continued delivering online tutoring sessions to Y up to the end of July 2023. The Council’s policy mentioned in paragraph 17 and 28 states MNHES should not be regarded as suitable long-term provision.
54. I acknowledge the Council tried to find an alternative solution for Y’s tutoring and offered him Tutor 1. However Ms X promptly told the Council this provision was not suitable. The Council failed to explore and address Ms X’s concerns.
55. Although from the end of November 2021 up to the end of July 2023 MNHES was delivering online tutoring for Y, this was not suitable provision as described in Y’s EHC Plan.
56. Because of the Council’s delay in considering Ms X’s request for a Personal Budget to fund Tutor 2, from September 2023 up to the end of November 2023 Y did not receive any education. Y received at this time art therapy sessions, which supported his social, emotional and mental health needs but could not be considered as a replacement for tutoring.
57. The Council also failed to deliver to Y other provision listed in paragraph 30 of this decision. In November 2023 the Council agreed to fund Y’s tutoring and OT by a Personal Budget but still failed to ensure delivery of other provision mentioned in paragraph 39.
58. The Council’s failure to ensure Y received all special educational provision specified in his EHC Plan from the end of November 2021 up to April 2024 is fault. It caused injustice to Y and Ms X:
• Y was without suitable education for a long time and his educational needs were not properly addressed. He missed out on additional support which the Council had agreed was necessary to ensure he could access education. Because of the complexity of Y’s needs the right coordinated support from various services was particularly important to him;
• Ms X spent much time contacting the Council and seeking help. She was frustrated by the lack of effective action from the Council to ensure delivery of Y’s EOTAS package.

EHC Plan review

59. The Council should review children’s EHC Plans within 12 months from the previous review. The Council failed to review Y’s EHC Plan in 2022, which is fault.
60. After the review meeting in May 2023, the Council decided to amend Y’s EHC Plan. It should therefore have issued Y’s final EHC Plan within 12 weeks from the date of the meeting, so by mid-August 2023. The Council did this in mid-November. The delay of three months is fault.
61. The Council’s non-compliance with the statutory timescales when reviewing Y’s EHC Plan was fault which caused injustice to Y and Ms X. The Council did not check Y’s progress towards his outcomes and the effectiveness of the provision in place for him. The Council’s delays also meant that Ms X could not challenge the Council’s position on Y’s support through an appeal.

Re-assessment

62. As explained in paragraph 23 of this decision when asked by a child’s parent or a young person to re-assess their special educational needs, councils must do it, unless there has been a recent assessment or the council does not consider it necessary. If the council has decided not to carry out an assessment, it should provide the child’s parents or the young person with its reasons.
63. The Council failed to respond to Ms X’s requests for a re-assessment of Y’s SLT and OT needs. This is fault. It meant that Ms X sought private assessments, which had financial implications for her.
64. Ms X separately complained about the Council’s failings to ensure OT support for Y, including a re-assessment of his OT needs. From November 2023 the Council agreed to fund OT for Y through a Personal Budget. Ms X said she had raised a new complaint about direct payments in January 2024.

Communication

65. The Council failed to adequately communicate with Ms X about Y’s education and support. Ms X did not know about the changes of staff. The Council often failed to answer her representatives’ correspondence or responded late
66. The Council’s failure to respond to Ms X’s and her representatives’ correspondence in a timely manner was fault. It caused her injustice as she felt she had no option but to escalate her requests through complaining or legal correspondence. Trying to get the Council to comply with its duties she sought help with her local MP. She spent much time and effort looking for the ways to ensure the Council engaged in making suitable arrangements for Y’s education and support.

Complaint handling

67. The Council significantly delayed responding to Ms X’s complaint about Y’s education. As mentioned in paragraph 11 I recognise some delays were caused by confusion resulting from the volume of correspondence. This cannot, however, justify taking two years to consider Ms X’s complaint at both stages of the complaint process.
68. The Council’s handling of Ms X’s complaint increased her frustration at the lack of the Council’s accountability. Ms X’s representatives regularly contacted the Council seeking its response to the issues raised in Ms X’s complaint.

Remedies

69. In its response to Ms X’s complaint the Council accepted it had failed to respond to her request to re-assess Y’s special educational needs. When amending Y’s EHC Plan in November 2023 the Council used an SLT report, prepared by a therapist arranged by Ms X. Ms X paid £1,449 for Y’s SLT assessment and report. The Council should reimburse her for the cost of this advice.
70. In recent complaint against the Council we have recommended some service improvements. The Council agreed:
• in the complaint 23 018 713 to identify and implement measures to ensure it issues a final amended EHC Plan following Annual Review, giving the parent or young person the right to appeal to the Tribunal. The Council also agreed to remind officers dealing with complaints that when the Council gets something wrong it should consider the impact on the complainant and offer an appropriate remedy.
• in the complaint 23 017 736 to prepare an action plan to ensure it meets its duty to immediately secure special education provision included in the final EHC Plan and to communicate properly with families where they raise concerns and queries.
• in the complaint 24 003 980 to remind staff dealing with EHC Plans of the importance of timely Annual Reviews, keeping proper records, issuing draft EHC Plans before final EHC Plans and providing appropriate transitional support.
71. We recognise it will take some time for the Council to address its failings identified in our recent investigations. We will be monitoring the effectiveness of the Council’s actions following our recommendations in the complaints 23 018 713, 23 017 736, 24 003 980 through our casework.

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Action

72. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
• apologise to Ms X and Y for the injustice caused to them by the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended;
• pay Y £7,800 to recognise his loss of education and support from the end of November 2021 up to April 2024. This consists of: £1,200 per term from the end of November 2021 up to the end of July 2023 so £6,000 in total, £1,400 from September to November 2023 and £400 from December 2023 up to April 2024;
• pay Ms X £1,449 to recognise the financial impact of the Council’s failure to respond to her request for SLT assessment;
• pay Ms X £750 to recognise the distress caused to her by the Council’s failing to comply with the statutory timescales when reviewing Y’s EHC Plan and to communicate with her effectively.
• pay Ms X £250 to recognise extra time and trouble spent on complaining caused by the Council’s failings to follow the right complaint process.

The Council will make a total payment of £7,800 for Y and a total payment of £2,449 for Ms X.

The Council will provide the evidence that this has happened.

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Decision

73. I find fault causing injustice. The Council has accepted my recommendations, so this investigation is at an end.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman