Summary: Mrs X complained the Council failed to secure the special educational provision her in daughter, W’s, Education Health and Care (EHC) Plan. The Council was at fault. To remedy their injustice, the Council will apologise to Mrs X and pay her £1400. It will arrange speech and language therapy provision for W. Lastly, the Council will review why it delayed reassessing W’s needs for her EHC Plan and issue a staff reminder.

The complaint

1. Mrs X complained the Council failed to secure the special educational provision in her daughter, W’s, Education, Health and Care Plan between September 2023 and July 2024. Mrs X said this affected W’s mental health and isolated her.

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The Ombudsman’s role and powers

2. 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)
3. 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)
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. 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

6. I have considered:

All the information Mrs X provided and discussed the complaint with her;

• The Council’s comments about the complaint and the supporting documents it provided; and
• The relevant law and guidance and the Ombudsman's guidance on remedies.
1. 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

Relevant law and guidance

Education, Health and Care Plans

8. 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. 
9. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• 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). 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)  

Annual reviews

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 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.

Reassessments

13. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
14. The council must tell the child’s parent or the young person whether it will complete an EHC needs reassessment within 15 calendar days of receiving the request. Before the council issues the final EHC Plan, it must give the child’s parents or young person the opportunity to say their preferred school or educational provision. If the council agrees to an EHC needs reassessment, it has 14 weeks to issue the final EHC Plan from the date it agrees to reassess.

Appeals

15. 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.
16. There is a right of appeal to the Tribunal against a council’s:

• Description of a child or young person’s SEN (section B), the special educational provision specified (section F), the school or placement or that no school or other placement is specified in their EHC Plan (section I); and
• Amendment to these elements of an EHC Plan.

17. The courts have established that if someone has appealed to the 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. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision.
19. 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. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
20. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.

What happened

21. My investigation covers the period September 2023 to October 2024. This section sets out the key events in this case and is not intended to be a detailed chronology.
22. W attended a post-16 college in the 2023/2024 school year. In early May 2023, W’s college held an annual review meeting. W stopped attending college at the same time, after a period of increasing mental health needs.
23. The Council issued W’s amended EHC Plan in mid July 2023. The EHC Plan named W’s post-16 college and contained the following special educational provision:
• An educational package that would develop W’s skills in English and Maths alongside other subjects that interest her;
• Use of technology and strategies to help develop W’s numeracy and literacy
• Provision of a low anxiety environment to help W regulate her anxiety and engage with education;
• Teaching and support which adapts to W’s needs at the time, including with communication and emotional regulation;
• For a speech and language therapist (SALT) to develop a bespoke social communication programme for W. It would involve activities focused on a range of issues including friendship and relationships, self-awareness, asking for help and flexibility of thought. The SALT would review the programme and reset the targets every six weeks. Staff would deliver the programme throughout the school day;
• Access to a mentor for 20-minute sessions, five times a week; and
• Weekly mental health therapy.
24. In August 2023, The Council wrote to W to say she needed to tell it her views on continuing in education within 15 days. It said if it did not hear from W, it would cease her EHC Plan. Mrs X responded in September to say W was not well enough to decide whether she wanted to continue education. Mrs X said she wanted new assessments of W’s needs, before she and W would decide what education W should receive.
25. In October 2023, the Ombudsman finished an investigation into W’s education. We found the Council had failed to deliver the SALT in W’s EHC Plan since September 2022. We recommended the Council update us on its efforts to find a SALT provider for W and what it would do to make up for the provision she missed. The Council told us it had commissioned an assessment of W’s speech and language needs and was satisfied W’s post-16 college could deliver the SALT in her EHC Plan. This had not been possible because W did not return to college.
26. W was receiving psychotherapy from a provider commissioned by the Council. W received her last therapy session in mid-December 2023.
27. In late January 2024, Mrs X asked the Council to carry out a reassessment of W’s EHC Plan. The following day the Council visited W at home. During the visit, W said she was not sure if she wanted to continue in education, because of her increased needs. Mrs X said W’s therapy had finished and the provider had recommended a three-month break. She reported the provider had said after the three months elapsed, they would consider if W needed it to restart. The Council says W said she did not want any more therapy.
28. The Council identified a SALT provider (provider C) and in early February 2024, they began delivering a package of SALT to W at home over several months. The Council paid for four direct sessions with W and three indirect sessions for the SALT to write a report on W’s needs.
29. The resulting report noted the sessions had focused on assessing W’s needs, introducing neurodiversity affirming strategies and building a relationship with her. The SALT said although W had needs around speech and language, her main need was for psychiatric support. They recommended changes to the provision in W’s EHC Plan, which the Council included W’s next Plan.
30. In mid-February 2024, Mrs X told the Council W had asked for home tuition in maths and English. The Council asked a tuition provider (provider A) to contact Mrs X about providing tuition to W. They did so within a few days.
31. Mrs X also asked for animal therapy for W. The Council later told Mrs X it needed to speak to professionals working with W to decide whether she needed more therapy.
32. In early March, the Council told Mrs X it had decided to carry out a reassessment of W’s needs.
33. The Council began seeking information as part of the reassessment in early May.
34. In late May, provider A sent the Council a quotation for delivering four hours of tuition per week for 13 weeks. The Council approved the funding for the tuition in early June. It intended for the tuition to provide much of the special educational provision in W’s EHC Plan, including the mentoring.
35. In late June, the Council held an annual review meeting with Mrs X.
36. In mid-July 2024, W received the first tuition session from provider A. Mrs X cancelled three sessions between mid-July and late August 2024 because of W’s health. At the end of August, Mrs X cancelled any further sessions because of the impact of W’s physical health on her ability to engage with the tuition. She said that as part of W’s annual review, she wanted to look at options where W could access tutoring online at any time that suited her.
37. The Council issued W’s amended EHC Plan in late October 2024. The changes included:
• Small changes to the strategies staff should use to support W;
• A contingency of 12 hours of direct SALT, if W needed it;
• Provision of bespoke training by a SALT on W’s communication needs for professionals involved with her care;
• Instead of mental health therapy, W would have therapeutic support to address her self-perception, self-esteem and manage her mental health needs. This could be through a service that provides animal therapy; and
• Access to a named mentor, instead of specific sessions per week.
38. The Plan stated W would receive education as part of an Education Otherwise Than at School (EOTAS) package. This is a type of schooling where provision is delivered outside of a formal setting. W’s package comprised of a vocational online course.

Findings

Appeal rights

39. Mrs X had a right of appeal to the SEND Tribunal to challenge the contents of W’s July 2023 EHC Plan, including the fact the Council had named W’s college as her educational placement. However, it was not reasonable for her to have used that right given that in July, W was not well enough to decide what education she wanted in future. As a result, there are no restrictions on what I can investigate in Mrs X’s complaint.

Reviewing W’s EHC Plan and reassessment

40. Mrs X asked the Council to seek new specialist assessments for W in September 2023. The Council should have treated this as a reassessment request. Its failure to do so was fault. I have seen no evidence the Council responded to Mrs X’s request at the time, which was fault and caused her frustration.
41. However, I cannot say, even on balance, that the fault meant W missed out on provision. This is because if the Council began a reassessment in September 2023, W would have been required to express a preference of what education she wanted in late 2023. By late January 2024, she was still unsure if she wanted to continue in education. As W was out of compulsory education, the Council may have concluded it should cease her EHC Plan if she did not want any more education.
42. When Mrs X then asked for a reassessment again in January 2024, the Council decided to reassess in March 2024. When a council receives a reassessment request from a parent, it must decide whether to agree within 15 days of the request. For Mrs X, this was by early February 2024. The Council delayed by a month, which was fault.
43. The Council then had 14 weeks to complete the reassessment and issue W’s amended EHC Plan. It took the Council almost 37 weeks, until October 2024, which was a delay of 23 weeks (almost six months). This delay was also fault. It is concerning that some of the delay was because the Council did not begin seeking information for the reassessment until early May. This was already 12 weeks from the date of its decision.
44. Had the Council not delayed progressing W’s EHC Plan reassessment, it would have asked W to choose what course or placement she wanted to attend before it issued the final Plan in mid-June 2024. The October 2024 Plan noted W would attend an online vocational course. This would deliver the majority of the special educational provision in her EHC Plan, the same way the tuition was intended to. W was not well enough to engage in tuition between January 2024 and August 2024 when Mrs X cancelled it. Therefore, even if W had expressed a desire to pursue the online course before mid-June 2024, it is unlikely she would have been able to access it meaningfully at that time.
45. On balance of probabilities, I am satisfied W could have managed to engage with some of the less academic provision in the new Plan, such as the therapeutic support and mentoring. The SALT could also have begun training staff who were involved in W’s care. This was an injustice to W and caused Mrs X avoidable frustration and uncertainty.
46. Finally, despite agreeing to a reassessment in March 2024, the Council held an annual review meeting in June. There was no need to hold an annual review when the reassessment was ongoing. This was fault and meant Mrs X attended the meeting unnecessarily. This caused her frustration.

Tuition

47. The Council owes W the duty to secure the special educational provision in her EHC Plan. The Council originally met this duty by funding W’s space at college. However, after she stopped attending in May 2023, the Council accepted W would not return to college. By the time the new school year began in September 2023, Mrs X told the Council W was not well enough to access any education, or decide what education she wanted without further assessments of her needs. It appears the Council accepted this because it did not cease W’s EHC Plan or attempt to arrange education for her at that time.
48. However, there is no record of the Council’s decision making, or evidence of how it kept that decision under review by contacting Mrs X to see if W was well enough to make a decision about further education. This was fault but it did not cause Mrs X or W a significant personal injustice. That is because by January 2024, W was unsure of returning to education because of her mental health needs. On balance, it is likely the situation would have been the same had the Council contacted Mrs X sooner.
49. When Mrs X asked the Council to arrange tuition for W in February 2024, the Council identified provider A and asked them to contact Mrs X. The tuition would have delivered much of the special educational provision in W’s plan, including the mentoring. It is reasonable to expect the tuition to begin within a month of Mrs X’s request, by March.
50. The tuition did not begin until mid-July. This was an unreasonable delay and was fault. It meant W did not receive special educational provision she was entitled to between March and July 2024. It is unfortunate that W’s needs meant they she could only have a small amount of tuition each week and that she could not access the tuition long term. I have taken this into account in deciding what action to recommend of the Council, to remedy her injustice. The delay also caused W and Mrs X avoidable frustration.

SALT

51. For the same reason as those set out in paragraph 47 and 48, the Council was at fault for not keeping its decision not to arrange SALT for W between September 2023 and January 2024 under review, but it did not cause Mrs X or W a significant personal injustice.
52. W’s EHC Plan included that a SALT should prepare a bespoke social communication package. While some of the programme was dependent on W being in a school setting with her peers, other aspects of it could be delivered outside of school, for example by Mrs X or as part of the tuition.
53. W began receiving four direct sessions and three indirect sessions of SALT in early February 2024. The sessions were mainly focused on assessing W’s needs and building a relationship with her. They did not involve development of the bespoke social communication programme. This was fault. It is likely some assessment and relationship building was always going to be necessary, given the Council had not secured any SALT since September 2022. However, the Council should have funded enough sessions to allow that to occur before the SALT developed the programme. The fault meant W missed out on some special educational provision. It also caused her and Mrs X frustration and upset, particularly given the Ombudsman had already found fault with the Council for not providing the SALT in W’s EHC Plan.

Therapy

54. The Council arranged for W to receive therapy until December 2023, when the provider recommended a three-month break. This was their opinion, as professionals. It was not unreasonable for the Council to have relied on the provider’s view so it was not at fault.
55. Mrs X asked the Council to arrange animal therapy in February. The Council considered that request as part of its reassessment of W’s needs. This was appropriate. The October 2024 EHC Plan allows for provision of animal therapy but does not specify that this must be regular. If Mrs X wanted the Plan to require regular animal therapy, she had a right of appeal to the SEND Tribunal to change its contents and it was reasonable for her to use this. The Ombudsman cannot order changes to be made to EHC Plans, only the SEND Tribunal can do this.

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Action

56. Within one month of the date of my final decision, the Council will take the following actions:
1. Apologise to Mrs X for the frustration, upset and uncertainty she felt because of the faults set out in my decision. 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 apologies I have recommended.
2. Apologise to W for the frustration and upset she felt and for the impact of the lost provision on her.
3. Pay Mrs X a total of £1400 in recognition of her and W’s injustice. This is comprised of £300 for Mrs X and £1100 for W.
4. If it has not already done so, commission a speech and language therapist to deliver the special educational provision in W’s October 2024 EHC Plan, including for development of the social communication package.
5. Review why it did not begin seeking information for W’s reassessment until May 2024, despite agreeing to the reassessment in March. The Council should identify what steps it should take to make sure such delays do not occur again. It should send the Ombudsman details of those steps.
6. Remind staff that when they commission support from a specialist such as a speech and language therapist, they must ensure the package they commission is sufficient to deliver the relevant special educational provision in the child or young person’s EHC Plan.
57. The Council will provide us with evidence it has complied with the above actions.

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Decision

58. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.

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Investigator's decision on behalf of the Ombudsman