Summary: Mrs X complained about non-delivery of all special educational provision included in her son’s (Y) Education, Health and Care Plan. She also said the Council had sent her a misleading letter and had failed to communicate with her. We found fault, which caused injustice to Y and Mrs X. The Council agreed to apologise, make symbolic payments to recognise Y’s loss of provision and Mrs X’s distress and liaise with Mrs X to ensure Y has proper equipment and all the support included in his plan.

The complaint

1. Mrs X complains the Council:
• failed to deliver the content of her child’s Education, Health and Care (EHC) Plan following a Special Educational Needs and Disabilities (SEND) Tribunal hearing in October 2023; and
• started an early Annual Review without justification.
2. Mrs X says the Council’s failings meant Y missed the provision he should have got. She was frustrated by the Council’s failings after many months of waiting for the outcome of her appeal.

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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 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)
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 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

7. I have not investigated anything that happened after the beginning of August 2024 as this is when the Council provided its final response to Mrs X’s complaint. The Council should have an opportunity to respond to any concerns before we can investigate.

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How I considered this complaint

8. I spoke with Mrs X and considered the information she provided.
9. I made enquiries with the Council and considered the information it provided.
10. Mrs 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 guidance

Delivery of special educational provision

11. 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 S.42)
12. 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)

EHC Plan reviews

13. The Council’s duties on EHC Plan Annual Reviews are specified in Special Educational Needs and Disability Regulations 2014:
• 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;
• where a council proposes to amend an EHC Plan, 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. The council must give the parents at least 15 days to give views on the proposed amendments;
• 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)
14. 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)
15. When councils propose to amend an EHC Plan, they should proceed as with the proposed amendments after a review. (SEND Regulations 2014, regulation 28)

What happened

16. In November 2023 the SEND Tribunal issued an order, which completed Mrs X’s appeal about the content of Y’s EHC Plan. The final post-Tribunal EHC Plan issued a month later stated Y should be educated through an Education Otherwise than at School (EOTAS) package, including:
• 15 hours of individual tutoring;
• Speech and Language therapy (SLT) and Occupational therapy (OT);
• provision to address Y’s social communication and anxiety difficulties;
• provision for physical exercise and
• a laptop, as recommended by an OT.
17. At the beginning of December 2023 the Council provided Y with a laptop.
18. In mid-January 2024 the Council amended Section J of Y’s EHC Plan, specifying that parts of the EOTAS package would be delivered through a Personal Budget.
19. In January Mrs X told the Council some of Y’s provision was still not in place. This included OT and SLT. She mentioned OT was due to start imminently. Mrs X complained about the screen size of the laptop provided by the Council for Y.
20. The Council commissioned SLT (Therapist 1) to assess Y and to provide therapy for him. In February 2024 Therapist 1 assessed Y and prepared a report, recommending direct SLT sessions and training for Y’s tutors and his mentor. Therapist 1 also provided some training to Y’s tutor and OT. Therapist 1 left before she started delivering regular sessions. She said the Council had failed to pay her since January 2024.
21. At the beginning of March 2024 Mrs X asked the Council to arrange SLT for Y as a matter of urgency, as he needed it to access his learning and make progress in his communication.
22. In response to Mrs X’s correspondence from the end of April 2024 the Council told her that since Therapist 1 had left, the therapy team intended to allocate a new SLT for Y.
23. In the second week of May 2024 the Council erroneously sent Mrs X a decision letter, telling her that following an Annual Review of Y’s EHC Plan it decided to amend his plan. The Council asked Mrs X to send her comments to the proposed amendments by the end of May 2024. The letter included information about the process of finding a school for Y and arranging school transport.
24. Mrs X objected to proposing amendments without a review of Y’s EHC Plan and warned of the possibility of taking legal action against the Council.
25. The Council said that although an Annual Review did not take place, additional information received from Therapist 1 justified the proposed amendments to Y’s EHC Plan.
26. At the end of May 2024 Mrs X complained to the Council. She said the Council had failed to deliver to Y some provision included in his EHC Plan:
• structured activities to develop social confidence twice a week for 30 minutes;
• regular monitoring of Y’s feelings;
• weekly mentoring to address his anxiety;
• embedding language of learning model throughout Y’s curriculum;
• bespoke communication programme devised by SLT and delivered to Y by a trained mentor twice a week for 30 to 45 minutes;
• SLT intervention, consisting of the consultative model of therapy with a review session after six weeks, training on language of learning and social communication programme and some extra time for administration as well as liaison with the professionals.
27. In the correspondence which followed the Council queried why Y needed a laptop with a larger screen. Mrs X explained that due to Y’s special educational needs the screen of his laptop had to be large enough to allow him to see his tutor, use a chat box and see all the visuals used by the tutor.
28. In mid-July 2024 Mrs X escalated her complaint to stage two. The Council responded at the beginning of August 2024.

Education and special educational provision from January to July 2024

29. Y received 15 hours of individual tutoring per week, although he sometimes could not access his full tutoring hours. He also received the OT provision and some physical activities sessions funded by a Personal Budget.
30. In the spring and summer terms of 2024 Y missed provision listed in the paragraph 26 of this decision. In the spring term of 2024 Therapist 1 assessed Y, prepared her report and delivered some SLT training to the staff supporting Y.
31. Mrs X told me Y started receiving SLT in October 2024.

Analysis

32. In its response to my enquiries the Council accepted it had failed to:
• deliver SLT included in Y’s EHC Plan;
• act upon Mrs X’s concern about the size of Y’s laptop;
• provide adequate communication to Mrs X, including sending a confusing letter with proposed amendments to Y’s EHC Plan.
33. The failings listed above and accepted by the Council are fault. The Council did not include among its failings the non-delivery of other special educational provision specified in paragraph 26 of this decision which are part of Y’s EOTAS.
34. The Council’s fault caused injustice to Y and Mrs X. Y missed provision which he needed. Because of his special educational needs SLT support was particularly important for him. He also missed other provision to address his social communication difficulties and anxiety.
35. The Council’s failure to deliver all special educational provision included in Y’s EHC Plan caused injustice to Mrs X in the form of uncertainty of how Y would have progressed if not for the Council’s fault. The Council’s failure to explore Mrs X’s concerns about Y’s laptop and sending her confusing letter in May 2024 caused Mrs X distress.
36. As explained in paragraph 15 of this decision the Council can propose amendments to the child’s EHC Plan at any time but it should follow the same procedure as when proposing amendments after Annual Reviews. I did not find fault with the Council for proposing amendments to Y’s EHC Plan following Therapist 1’s advice but it failed by sending a wrong letter to Mrs X. This caused her confusion and distress. After agreeing at the appeal proceedings that Y could not access any school and should be educated through the EOTAS package, the Council’s correspondence about looking for a school to name in his EHC Plan was particularly upsetting to Mrs X.

Service improvement

37. The Council told us its SEND Operations team is responsible for arranging and facilitating Annual Reviews as well as sending decision letters to the parents following these reviews. The Council’s Personal Budget team and the Commissioning team get involved, where appropriate. The SEND Operations team is also responsible for ensuring the EOTAS packages are implemented. Tutoring contracts require the commissioned providers to evidence pupils’ progress through written reports. The Council has started a pilot programme for some cases, where children receiving education out of school are supported by several providers. For some of them an Inclusion Partner with SENCo experience arranges termly review meetings.
38. We are aware of the Council’s efforts to improve its services as outlined in the SEND improvement plans, including the most recent SEND Additional Assistance Plan. Introducing Inclusion Partners shows the Council has correctly identified the need to coordinate delivery of provision by various professionals supporting children with sometimes complex EOTAS packages and is taking appropriate action. Through our casework we will monitor the effectiveness of this programme.

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Action

39. 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 Mrs 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 Mrs X £1,200 to recognise Y’s loss of provision from January 2024 up to the end of July 2024;
• discuss with Mrs X what equipment would be suitable for Y, including a laptop, and provide her with the Council’s reasoned decision. The Council will send us a copy of this decision as evidence it has taken place;
• make arrangements for the delivery of the outstanding special educational provision included in Y’s EHC Plan. The Council will send us a copy of the relevant arrangements with the providers;
• pay Mrs X £300 to recognise the distress caused to her by the Council’s failure to follow the appropriate review process, deliver all special educational provision to Y and communicate with her effectively.

The Council will provide the evidence that this has happened.

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Decision

40. I find fault causing injustice. If the Council accepts my recommendations, I will complete this investigation.

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Investigator's decision on behalf of the Ombudsman