Summary: Mrs X complained the Council failed to secure the provision set out in her son, Y’s Education, Health and Care (EHC) Plan, and failed to issue an amended plan within the correct timescale for a phase transfer. We found the Council was at fault for delays and failing to secure all provision in Y’s EHC Plan. This Council agreed to apologise and provide symbolic financial payments for the distress and uncertainty caused.

The complaint

1. Mrs X complained the Council failed to secure the provision set out in her son, Y’s Education, Health and Care (EHC) Plan, and failed to issue an amended EHC Plan within the correct timescale for a phase transfer.
2. This caused Mrs X distress and uncertainty, and meant Y missed provision they were entitled to.

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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. 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. As part of the investigation, I considered the complaint and the information Mrs X provided.
7. I made written enquiries of the Council and considered its response along with relevant law and guidance.
8. 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

Special Educational Needs

9. A child or young person with special educational needs (SEN) 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. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the Tribunal or the council can do this. 
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) 
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. The council must review and amend an EHC Plan in enough time before to a child or young person moved between key phases of education. This allows planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year in which the child is due to transfer into or between school phases. The key transfers are: 

• early years provider to school;  
• infant school to junior school;  
• primary school to middle school;  
• primary school to secondary school; and  
• middle school to secondary school.  

13. For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer.  
14. The SEN Code of Practice says the provision should be in place from the date the final EHC Plan is issued. Where the provision is proposed by the council in a draft EHC Plan, the Council should be ready to secure that provision when the EHC Plan is finalised.
15. In R (on the application of BA) v Nottinghamshire County Council [2021] EWHC 1348, the Court rejected the Council’s argument it only had to put provision in place within a reasonable time rather than immediately. The Court found the five-week period built into the Special Educational Needs and Disabilities (SEND) Regulation 44 following a Tribunal decision to issue an amended EHC Plan was designed to allow time for implementation and the bulk of the child’s provision, at least, should have been in place within that time.

What happened

16. I have summarised below some key events leading to Mrs X’s complaint. This is not intended to be a detailed account of what took place.
17. Y has an EHC Plan and previously attended an independent specialist school. Y had to stop attending due to school-based anxiety affecting his mental health. Y has had a package of EOTAS since April 2022.
18. Mrs X raised concerns with the Council about Y missing SEN provision in December 2023. She also worried about upcoming exams and transition planning for the next academic year. The Council said it would hold an annual review in January 2024 to look at what Y needed for the rest of Year 11 and the next academic year.
19. Mrs X chased the Council twice in February 2024 because she had not heard anything about the review. She did not receive a response, so she submitted a formal complaint.
20. Mrs X complained about delays amending Y’s EHC Plan following a SEND funding Panel (the Panel) meeting in July 2023, not providing the support in Y’s Plan, and not holding a review in January.
21. Y’s annual review meeting took place on 15 March 2024.
22. The Council responded to Mrs X’s complaint on 26 March 2024. It apologised for the delay reviewing Y’s Plan. It blamed this on staff shortages. It said Y’s provision was discussed by the Panel in November 2023. The Panel deferred its decision while the Council reviewed Y’s case and enquired with an SEN provider about an education package to support Y. The Council said it would flag this with a team member, so a decision is made.
23. The Council confirmed it held the annual review on 15 March and apologised for the delays. It also said, in discussions with Mrs X on 29 February 2024, she confirmed the Education Otherwise Than at School (EOTAS) package now in place was meeting Y’s needs, though Y’s social needs require exploration. The Council recognised Mrs X raised issues with the Speech and Language Therapy (SALT) and Occupational Therapy (OT) Y should be receiving. It said a senior SEND officer was now working on Y’s case.
24. Mrs X complained to the Council again on 20 April 2024. She said the Council had still not issued the draft amended EHC Plan following the review on 15 March, which is a further breach. She also said the stage one complaint response did not remedy the multiple complaints raised. She listed SEN provision from Y’s EHC Plan which the Council was not delivering. This included one hour a week of SALT, four hours a week animal therapy, two hours a week at a therapeutic farm, and one hour a week of OT. Mrs X also said the termly reviews, detailed in the current EHC Plan, had not been carried out.
25. The Council sent its final complaint response on 20 May 2024. It recognised difficulties providing SALT. It referred to demand exceeding capacity within the National Health Service. It said it would investigate private providers at the next review meeting on 24 May 2024.
26. The Council also found fault in its management of Y’s EHC Plan, as it could not say whether it provided the provision from section F. This included the four hours a week of animal therapy. It apologised for this.
27. The Council again recognised the delay with the annual review. But it said there was enough time to send any changes to the Panel before the next academic year, and there was a meeting scheduled for 24 May to agree a final amended EHC Plan.
28. The Council said it was looking at the structure of its SEND teams, and giving officers more training on EOTAS.

My investigation

29. Mrs X told me SALT was still not in place. She said the lack of SALT means Y has not developed social skills to take part in conversations with peers, and has anxiety about making friends. Y wants to go to college, but this may not be feasible due to communication difficulties.
30. Mrs X confirmed Y has animal therapy, but did not undertake a course with a provider to develop personal, independent living, and employability skills. This provider is called ASDAN.
31. Mrs X said part of Y’s EHC Plan is to have regular reviews, at least once a term, but this has never happened.
32. Mrs X has arranged for Y to sit exams at a local alternative provider.
33. The Council told me it had not yet put SALT in place for Y. It had requested a quote from a private company however and said they should have availability.
34. The Council recognised Y had missed SALT for some time, and this will have impacted Y’s development. It said it will ask the SALT provider about either increasing sessions, or providing SALT for longer. The Council also said it would like to offer £150 for time and trouble.
35. The Council told me Y’s previous EHC Plan included four hours of therapy with ASDAN, but Y was only receiving two hours of animal therapy. It said there was some other, smaller, animal provision, but this stopped at Y’s request in August 2023 as it was not working well.
36. The Council confirmed Y now has three hours tutoring a week in Maths, English and Science, plus two hours with a dyslexia specialist. Y was receiving hands on play therapy but decided to stop this in January 2025.
37. Y also receives one hour a week of Pilates, trampolining, music and art therapy, mentor sessions, two hours animal therapy, and a touch-typing course.

Analysis

38. The Council accepted it delayed completing a review of Y’s EHC Plan. This caused distress and uncertainty at what was an important time in Y’s education.
39. The Council also accepted it was at fault in its management of Y’s EHC Plan, as it could not show it was providing all Y’s SEN provision.
40. In particular, the Council recognised Y missed a significant amount of SALT. It said it would look at private SALT provider in May 2024 when it responded to Mrs X’s complaint. However, SALT was still not in place by early 2025. This is a significant delay. Mrs X considers this has contributed to Y not being able to attend a mainstream college. The Council accepts this will have impacted Y’s development, which is a significant injustice.
41. However, despite some missing SEN provision, Y did receive some educational provision, and the Council has put further EOTAS in place. Mrs X confirmed Y’s EOTAS worked well. This is supported by the progress reports I have seen, which show Y engages well. But while Y has made progress with their educational learning, they are still facing struggles with social interaction and engagement. Y was not considered ready to return to an educational setting at the last review.
42. I recommended the Council made a symbolic financial payment for the avoidable distress and uncertainty caused by its delays and by its lack of proper oversight of Y’s EHC Plan.
43. I also recommended a symbolic financial payment for the missed SALT provision. In reaching this decision I considered the length of time Y was without SALT, and the impact on Y’s development. I also considered the other provision Y has received, and the progress made, along with the fact the Council has offered to consider more SALT sessions if necessary to make up what Y missed.

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Agreed Action

44. Within four weeks of my final decision, the Council will:
• Apologise to Mrs X and Y for the delay reviewing Y’s EHC Plan, and for failing to ensure all provision in Y’s EHC Plan was in place. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance when making the apology.
• Pay Mrs B £350 in recognition of the avoidable distress and uncertainty caused by the Council’s delays and lack of oversight of Y’s EHC Plan (this includes the £150 already offered).
• Pay Mrs X £500 in recognition of the avoidable distress caused by the prolonged missed SALT, and the impact this had on Y’s development. Mrs X may use this money to meet Y’s needs as she sees fit.
• Put SALT in place without delay. If the Council cannot put SALT in place within the next month, it should form a plan on how it will start the provision and how it intends to help Y catch up on the missed provision.

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Final Decision

45. I found the Council was at fault for delays and failing to secure all provision in Y’s EHC Plan. It agreed to apologise and provide symbolic financial payments for the distress and uncertainty caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman