Summary: Mrs X complained about the Council’s delay issuing her child, Y’s amended final Education, Health and Care Plan and its failure to provide Y with the speech and language therapy and occupational therapy required. We find the Council at fault which has meant Y missed out on the support she needed and caused Mrs X distress and uncertainty. The Council has agreed to apologise and make a payment to Mrs X.

The complaint

1. Mrs X complained the Council delayed issuing her child, Y’s final amended Education, Health and Care (EHC) Plan following the annual review. She also complained the Council failed to provide the speech and language therapy (SALT) and occupational therapy (OT) provision outlined in Y’s EHC Plan between February 2024 and September 2024.
2. She says this has caused both her and Y distress.

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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. 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)

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What I have and have not investigated

6. Mrs X previously complained to us in February 2024 (23 018 970). Our investigation found that the Council failed to fully secure the provision set out in Y’s EHC Plan between January 2023 and February 2024. While some provision was delivered during this period, Y did not receive the full support required. My current investigation covers the period from February 2024 to September 2024, when Mrs X brought this new complaint to us.

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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 legislation

Education, Health and Care Plan

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. 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 is responsible for securing the set out special educational provision for the child. This means making sure that arrangements set out in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process. These duties are non-delegable, and a council cannot discharge its duty by showing it tried but failed to put the support in place.

Reviewing EHC Plans

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 take place. The process is only complete when the council issues a decision about the review.
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.

What happened

13. In October 2023, Y’s EHC Plan annual review was held.
14. In January 2024, Mrs X submitted a complaint to the Council raising concerns that:
• Y’s final amended EHC Plan had not been issued;
• she had received poor communication from the caseworker;
• Y had not received any SALT provision since January 2023 because the school were waiting for authorisation from the Council; and
• Y had not received any OT provision despite an OT recommending its continuation during the annual review.
15. In February, the Council responded, acknowledging that it failed to meet the statutory timescales for the final amended EHC Plan. It stated that a draft amended EHC Plan had been sent to Mrs X for comments and that it would contact the school to investigate the missing SALT and OT provision.
16. Unhappy with the response, Mrs X escalated her complaint to stage two, providing additional evidence that the school had repeatedly contacted the Council about funding for SALT and OT, but the issue remained unresolved. She also shared concerns about the proposed changes to Y’s EHC Plan.
17. In March, Y’s final amended EHC Plan was issued.
18. In July, the Council issued its final complaint response, apologising for the delay but failing to address the delayed EHC Plan, poor communication, or the missed SALT and OT provision. Instead, it focused on a separate complaint made by Mrs X.
19. In response to my enquiries, the Council confirmed that its July complaint response was issued in relation to Mrs X’s complaint escalation in February. The Council stated that funding for SALT and OT provision had been approved and allocated to the school, but provided no evidence of this, and could not confirm whether the sessions had taken place.

My findings

Final amended EHC Plan

20. The Council has accepted that it failed to issue Y’s final amended EHC Plan within the statutory timescales.
21. The EHC Plan should have been issued within 12 weeks of the annual review in October 2023, so in January 2024. However, it was not issued until March 2024, a delay of 11 weeks. This delay is fault. While the EHC Plan did not significantly alter Y’s provision, the delay caused avoidable distress and uncertainty for Mrs X, as she had been told major changes were to be made.

SALT and OT provision

22. The Council is responsible for ensuring Y receives the provision outlined in section F of the EHC Plan. Mrs X reported that Y did not receive the required SALT and OT provision from February to September 2024. The Council could not provide any evidence that provision was delivered. This is fault. On the balance of probabilities, I find that Y has not received the SALT and OT provision she should have. This is fault and has meant Y has missed out on essential support during an important time in her education.

Complaint handling

23. The Council has acknowledged delays in handling Mrs X’s complaint. Instead of responding within the 20 working days specified in its complaint’s procedure, it took four months to issue a stage two response. This delay is fault and caused Ms X distress and uncertainty.
24. The Council’s final complaint response in July 2024 failed to address key issues in her complaint, instead responding to a separate complaint made by Mrs X. This is fault and left Mrs X without answers or resolution to her complaint.

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Action

25. To remedy the injustice caused by the above faults, within four weeks of the date of my final decision, the Council has agreed to:
• apologise to Mrs X in line with our guidance on Making an effective apology;
• pay Mrs X £200 to recognise the avoidable distress and uncertainty caused by the delay issuing the final amended EHC Plan;
• pay Mrs X £600 as a remedy for Y’s benefit, to recognise the loss of SALT and OT provision. I assessed this by applying the guidelines in our published Guidance on remedies. I considered the specific circumstances and Y’s year at school when calculating the remedy; and
• pay Mrs X £150 to recognise the distress and uncertainty caused by the Council’s poor complaint handling.
26. I have not recommended any action for the Council to take to improve its services. This is because since the faults identified in this complaint, the Council assured the Ombudsman in September 2024 of the actions it is taking to address delays with complaint handling. Additionally, we are aware of the Council’s wider SEND strategic plan, which covers the issues identified in this decision.
27. The Council should provide us with evidence it has complied with the above actions.

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Decision

28. I find fault causing injustice. The Council has agreed to take action to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman