Summary: The Council was at fault in how it reviewed and amended Mrs X’s child W’s Education, Health and Care Plan. It was also at fault for delay securing the provision in that Plan and for poor complaints handling. This caused Mrs X frustration and meant she had to go to undue time and trouble pursuing her complaint. It also meant W missed out on provision they should have had. To remedy their injustice, the Council will apologise to Mrs X, pay her £1100 and confirm the name of the member of staff who will act as her single point of contact in future.

The complaint

1. Mrs X complained the Council delayed her child, W’s, 2023 Education, Health and Care (EHC) Plan review and delayed issuing W’s amended Plan after that review. Mrs X also complained the Council did not secure the full special educational provision in W’s EHC Plan and about its complaints handling.
2. Mrs X said this meant W attended school without the support they needed, which meant they became overwhelmed and affected their development. Mrs X said this caused her upset and frustration.

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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. 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)
5. 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))
6. 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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How I considered this complaint

7. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
8. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and guidance

Special educational needs

9. 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. These include:
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and or type of educational placement 
10. 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).
11. 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 annual 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) 
12. 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. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.

Complaints

13. The Council has a two stage complaints process. Its policy says it will try to respond to stage one complaints within 10 working days. It can take up to a maximum of 40 working days if necessary.

What happened

Annual review, EHC Plan amendments and special educational provision

14. W has had an EHC Plan for some years. In 2022, the Council completed its annual review of W’s Plan in mid-May.
15. W’s school held an annual review meeting in early July 2023. The Council issued its decision to amend W’s EHC Plan in early August along with its draft amended Plan.
16. In mid-October, Mrs X asked the Council to send the evidence it relied on to make the proposed amendments to W’s Plan.
17. The Council issued the final amended EHC Plan three days later. The Plan did not name which school W should attend in section I.
18. After conversations with Mrs X, the Council issued a further amended Plan in late October. It named W’s school and included the following special educational provision:
• A mini trampoline with handle
• An angled desk;
• A supportive chair;
• For W to have 1:1 support from a learning support assistant (LSA) who is skilled in working with children with developmental delays; and
• At least 12 sessions with a sensory integration Occupational Therapist (OT). Those sessions included time for the OT to liaise with school staff to implement strategies to help with W’s sensory and physical needs.
19. W received the equipment specified in their EHC Plan in late January 2024.
20. W’s OT sessions began in early February and finished in July 2024.

Complaints handling

21. After speaking with the Council several times between October 2023 and May 2024, Mrs X complained to it. She said the Council had:
• Delayed carrying out W’s 2023 annual review;
• Not carried out the subsequent amendments of W’s EHC Plan properly or in a timely way; and
• Failed to arrange for W to have their OT equipment and sessions as a result.
22. The Council acknowledged Mrs X’s complaint and said W’s case was currently with its annual review team. A few days later, Mrs X confirmed she was complaining about events in 2023, not in relation to the (by then) ongoing 2024 annual review.
23. In late June 2024, the Council called Mrs X to ask for an extension to respond to her complaint. Mrs X agreed an extension of 5-10 days. She emailed the Council and asked it to confirm the extension in writing. She also said she had previously asked for communications in writing only.
24. The Council responded to say it would confirm the extension once it had been updated on a recent meeting about W’s current education. Mrs X explained again that her complaint related to events in 2023, not 2024. She said that as a result, the outcome of the meeting was irrelevant.
25. After a chase from Mrs X, the Council emailed her in early August 2024. It said it had been working with Mrs X to amend W’s 2024 EHC Plan and accepted issues with how it had done that. It noted it had recently issued a new draft Plan. Mrs X again said her complaint did not relate to the 2024 annual review and amendment process.
26. A few days later Mrs X told the Council its early August email was not a response to her May complaint. In response the Council asked Mrs X to send comments on the recent draft Plan after which it would finalise the Plan.
27. At the end of August Mrs X complained to the Ombudsman. Her complaint mirrored the complaint she sent to the Council and added that she was unhappy:
• About the Council’s handling of her complaint;
• The Council did not send her the evidence it relied upon in deciding what amendments to make to W’s EHC Plan after the 2023 annual review;
• The Council issued W’s mid-October 2023 EHC Plan without naming a school in section I; and
• The school’s LSA did not having training from W’s OT.
28. The Council issued its stage one response in early December 2024. The response focused on matters relating to how the Council had secured the special educational provision in W’s 2024 EHC Plan. It did not address Mrs X’s May 2024 complaint.
29. In response to my enquiries, the Council said it was willing to identify a single point of contact for Mrs X to make sure her concerns were responded to appropriately.

Findings

Annual review, EHC Plan amendments and special educational provision

30. To comply with the timescales for annual reviews, the Council should have issued its decision to amend W’s EHC Plan by mid-May 2023, 12 months after the last annual review. It should then have issued W’s amended EHC Plan by mid-July. The Council did not issue its decision to amend until early August and did not issue the final amended EHC Plan until October, after the start of the school year. The delay was fault.
31. Having issued W’s amended EHC Plan, the Council delayed arranging for W to the equipment and OT sessions in the Plan. W did not get the equipment they should have had until January 2024 and the OT did not begin working with them until February 2024. The delays in arranging the OT sessions meant school staff did not have the input of the OT to help them implement strategies to support W with their sensory and physical needs. This was fault.
32. The delays caused Mrs X avoidable frustration and meant W missed out on the special educational provision they should have had.
33. Mrs X feels the delay arranging for W to have the OT sessions meant their LSA was not trained adequately. However, W’s EHC Plan stated the LSA should be skilled in working with children with developmental delays. There was no requirement for the LSA to have specific training from the OT.
34. I have not considered Mrs X’s complaints that the Council did not send her the evidence it relied on to amend W’s EHC Plan or that it issued the first October Plan without a school in section I. This is because any fault did not cause Mrs X a significant personal injustice. After speaking to Mrs X, the Council agreed changes to the content of W’s EHC Plan and issued a new Plan she was happy with in late October. That Plan named W’s school in section I.

Complaints handling

35. The Council’s handling of Mrs X’s complaint was inadequate and was fault. Despite repeated clarifications from Mrs X, the Council continued to wrongly treat her May 2024 complaint as if it was about issues with W’s 2024 annual review, EHC Plan amendments and special educational provision. It called Mrs X despite her asking for communication in writing and significantly delayed in responding to her complaint. The Council should have sent its stage one response no later than mid-July. It delayed by over four months.
36. These faults caused Mrs X frustration and meant she had to go to avoidable time and trouble pursuing her complaint with the Council. I agree a single point of contact would be helpful in making sure the Council responds to Mrs X’s contact appropriately in future. I have therefore made a recommendation to that effect.

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Action

37. Within one month of the date of my final decision, the Council will:
• Apologise to Mrs X for the frustration its faults caused her and the time and trouble she went through as a result of its flawed complaint handling. 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.
• Pay Mrs X a total of £1100. This is £200 to recognise her injustice and £900 to recognise W’s injustice. The Ombudsman’s guidance on remedies says we will normally recommend between £900 and £2,400 per term of lost special educational provision. I have recommended less than this because W still received most of the provision in their EHC Plan from the start of term. I also took into account W’s age, stage in education and other relevant factors.
• Confirm the name of the member of staff who will act as Mrs X’s single point of contact.
38. The Council will provide us with evidence it has complied with the above actions.

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Decision

39. I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman