Summary: Mr X complained the Council did not fully deliver provision set out in his son’s Education, Health and Care Plan, or carry out its annual review on time. We found fault because his son did not receive all of the provision linked to his plan in the 12 months after it was first issued and the annual review did not take place in a timely manner. This caused Mr X avoidable distress, frustration and uncertainty. It also meant his son did not access the services he should have done. To remedy the injustice caused, the Council has agreed to apologise to Mr X, makes a payment to him, organise catch up sessions for his son and complete the annual review of his plan.

The complaint

1. Mr X complains the Council has failed to fully deliver specialist speech and language therapy (SALT) provision set out in his son, Y’s, Education, Health and Care (EHC) Plan between March 2023 and March 2024. He also complains the annual review (AR) of Y’s EHC Plan was not carried out in line with statutory guidance.
2. Mr X says this has caused distress and frustration and that Y has missed out on educational provision he is due.

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. 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.
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).

Back to top

What I have and have not investigated

7. My investigation begins when Y’s EHC Plan was issued in March 2023.
8. My investigation ends in July 2024 when Mr X brought his complaint to us.

Back to top

How I considered this complaint

9. I have considered all the information Mr X provided and discussed this complaint with him. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
10. Mr X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

Back to top

What I found

Special educational needs

11. A child with special educational needs (SEN) may have an EHC Plan. This sets out the child’s needs and what arrangements should be made to meet them.
12. The EHC Plan is set out in sections which include Section F, which is the special educational provision needed by the child or the young person. 
13. 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)  
14. 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.
15. 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 Plan 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

16. 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 then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
17. 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.

What happened

18. I have set out below a summary of the key events. This is not meant to show everything that happened.
19. Mr X has a young son, Y, who attends primary school.
20. The Council issued Y’s first EHC Plan in mid-March 2023.
21. Amongst other things, provision in Section F of Y’s plan stated that:
• he required nine direct SALT contacts (from a speech and language therapist) across the year, each lasting 30 minutes and which would be delivered individually or in small groups;
• the direct sessions would involve discussion or feedback with relevant teaching staff and with Y present;
• sessions include modelling of specific strategies and activities with the relevant adult working with Y; and
• activities and strategies modelled will then be carried out daily by school staff.
22. Section F also said:
• there should be eight hours of indirect SALT contacts across the year (from a speech and language therapist);
• the eight hours should include two hours to plan, set up and review the programme, and update targets according to progress;
• one hour to deliver specific training to relevant staff or parents;
• one hour to review outcomes with parents and school staff in preparation for the annual review;
• one and a half hours to write the annual review report; and
• 15 minutes to be used for record keeping on each of the direct contact sessions.
23. Section F of the plan also listed support to be given to Y specifically by school staff on a regular basis in the everyday school setting.
24. At the beginning of March 2024, Mr X complained to the Council. He said Y’s school had told him Y had only received two of his direct therapy sessions since the EHC Plan was issued the previous year. He said the Council was failing in its statutory duties and he expected it to commission a private SALT service.
25. In mid-March 2024, the Council sent its stage one complaint response, which was one week after the 12-month anniversary of the EHC Plan being issued. It listed sessions Y had received at a different school in the previous academic year and before his EHC Plan had been issued.
26. The response also showed that in the 12 months after the plan had been issued, one direct session had been delivered to Y at his previous school and three at his current school. The letter said the therapist would be back in school after the Easter holidays and that sessions would be delivered by the end of the academic year.
27. Unhappy with the response, Mr X escalated his complaint to stage two of the Council’s process. He complained that none of the indirect contacts had been delivered and Y’s annual review had not taken place.
28. The Council sent its response in mid-May 2024. It said the therapist would liaise with the school to arrange future appointments and that school would update him about this. It apologised Y’s annual review had not taken place within expected timescales, said it had asked the school to arrange the AR and said the Council had taken on additional staff to tackle the issue.
29. The response then signposted Mr X to the Ombudsman.

Analysis

EHC Plan Section F provision

30. The Council’s response to my enquiries confirmed that in the 12 months following the issue of Y’s EHC Plan in March 2023, he received four sessions of direct SALT in a school setting against the nine set out in his plan.
31. I asked the Council what action it had taken when it became aware that not all direct sessions had been delivered. The Council said it had asked the SALT service it commissioned to deliver the therapy to provide any missed sessions in the next academic year or earlier if possible. The Council said the SALT service had replied to say it was on track to deliver all sessions within the year from the EHC Plan being issued.
32. I disagree. It was not possible for Y to have all sessions delivered within the year from the plan being issued. The year had already ended and not all sessions had been delivered.
33. The Council has provided no evidence of any of the indirect SALT listed in Section F of Y’s plan being delivered during the 12 months from March 2023. It has provided a SALT report written in December 2023 with recommendations, but this was written before the end of the 12-month period since the plan was issued and when he had received only four of his nine planned direct sessions. I am satisfied this is not a substitute for the full allowance of indirect therapy contacts that should have been delivered during the year.
34. In response to my enquiries about indirect provision, the Council said it does ask to be kept updated by the SALT service but that due to the amount of times it speaks to the therapy service each day records of calls are not kept.
35. The Council’s duty to deliver Section F provision as outlined in Y’s EHC Plan is non-delegable. This means that even if it asks someone else to deliver the provision, the Council itself still has a duty to ensure it happens. Not delivering the direct and indirect provision set out in Y’s EHC Plan was fault. It would have caused Mr X distress and frustration. It meant Y did not have access to the services he should have as outlined in his plan. I have made a recommendation below to remedy this injustice.

Checking progress of a new plan

36. As set out in paragraphs 14 and 15, we do not expect the Council to keep a watching brief over the delivery of Section F provision. However, we do expect councils have procedures in place to check the SEN provision is being delivered when a new EHC Plan is issued or when a plan is reviewed.
37. In response to my enquiries, the Council said meetings are held between its SEN team and educational psychology services where schools may be concerned regarding provision or delivery of provision set out in Section F of an EHC Plan. There is no evidence to suggest the Council has a proactive approach in checking if the provision is being delivered.
38. I am satisfied, that in the circumstances of this complaint, this shows a lack of oversight on the Council’s part. It has an over reliance on the SALT service to deliver content without knowing if and when this is taking place or whether it fulfils the Section F provision. It does not have reliable systems in place to proactively check the content of a plan is being delivered. This lack of oversight and decisive action is fault. It would have caused distress and frustration to Mr X. It also meant that Y did not access all of the direct SALT provision or significantly benefit from the indirect provision during the 12 months after his EHC Plan was issued in March 2023. I have made a recommendation below to remedy this injustice.
39. The Ombudsman has already made a service improvement recommendation in a recent similar case, regarding the Council’s oversight of whether or not Section F provision is being delivered. The Council agreed to this recommendation so I will make no further related recommendations here.

Annual EHC Plan review

40. In his complaint to the Council, Mr X said no AR of Y’s EHC Plan was held in or around the 12-month anniversary in March 2024.
41. The Council responded to this in its stage two letter sent in mid-May 2024. It apologised and said it had contacted the school to arrange the AR.
42. In response to my enquiries, the Council provided evidence of a letter that it said it had sent to Mr X in the third week of April 2024. The letter said the review took place on the exact 12-month anniversary of Y’s EHC plan first being issued.
43. The letter said it had considered the report from the review meeting and the report would be kept attached to the current EHC Plan. The letter said the Council had decided not to amend the EHC Plan and advised Mr X of his appeal rights to the SEN tribunal.
44. The Council’s stance on the EHC Plan annual review is confused. It has provided contradictory evidence around whether the review had or had not happened by May 2024. It has not provided any evidence of an AR report or meeting minutes or any AR paperwork other than the April decision letter itself, despite my request for this. Mr X says he did not receive the letter which was not mentioned in the Council’s stage two response to him but later provided to me as evidence.
45. Mr X says the AR happened in July 2024 but he never received any other paperwork. The Council says this was an informal meeting.
46. The April decision letter alone is not sufficient evidence to convince me the review process took place as it should. I have considered the absence of any other formal paperwork and the conflicting evidence sent by the Council. I am satisfied, that on the balance of probabilities, it is more likely than not the AR due in March 2024, if carried out at all, was not carried out in line with statutory guidance.
47. This is fault. It would have caused distress and uncertainty to Mr X. This is because he was unaware of the Council’s stance on whether it would continue with Y’s EHC Plan. It also meant Mr X’s appeal rights were delayed. I have made a recommendation below to remedy this injustice.

Back to top

Agreed action

48. To remedy the injustice caused by the faults I have identified, the Council has agreed to take the following action within four weeks of the date of my final decision:
• apologise to Mr X for the injustice caused by the identified fault;
• make a symbolic payment to Mr X of £400 to recognise the distress and uncertainty caused by the identified injustice;
• calculate the number of direct sessions delivered in school to Y in the 2 years since his EHC Plan was issued in March 2023. If these do not total 18 direct sessions, contact Mr X to arrange catch up sessions; and
• if any AR of Y’s EHC Plan is overdue, arrange this to take place as soon as reasonably practicable and ensure Mr X is consulted throughout the process in line with statutory guidance.
49. The apology written should be in line with the Ombudsman’s guidance on remedies on making an effective apology.
50. Payments made are in line with the Ombudsman’s guidance on remedies.
51. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

52. I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman