Summary: Mrs X complained that the Council delayed its decision-making about her daughter’s special educational needs support and then failed to properly deliver that support. We have found that the Council was at fault. It caused delays, did not provide all the therapy Mrs X’s daughter needed, and did not handle Mrs X’s complaints properly. The Council has agreed to remedy their injustice, including their distress. It will also take steps to improve its service.

The complaint

1. Mrs X complains that:
• During the 2023-24 school year, her daughter’s (Y’s) school failed to deliver her special educational needs support. This included both her in-lesson support and her occupational therapy.
• The Council sent Mrs X proposed amendments to Y’s support in November 2023. But these amendments were not completed.
• After a review of Y’s support in June 2024, the Council took more than 100 days to decide what to do next.
• The Council failed to deal with Mrs X’s complaint properly. Responses were late and no proper investigation took place.
2. Mrs X says Y lost educational support, which caused her distress. She says she herself also suffered distress because of the Council’s poor communication.

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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. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
7. 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

Law and guidance

8. A child with special educational needs may have an education, health and care (EHC) plan. This sets out how to meet their needs. The plan is set out in sections, including section F: the provision needed by the child.
9. Councils have a duty to make sure children receive the provision set out in section F of their EHC plans. (Children and Families Act 2014, Section 42)
10. The duty to arrange this provision is non-delegable. This means if a council asks another organisation to deliver 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. Within four weeks of reviewing a child’s EHC plan, the council must decide whether it proposes to leave the plan unchanged or to amend it, and must notify the child’s parent. (SEND code of practice)
12. If a council sends an amendment notice to a child’s parent, it must either issue the amended EHC plan or notify the parent that it no longer intends to make the amendments, and must do so within eight weeks of the original notice. (SEND code of practice)
13. If a council decides not to amend an EHC plan, it must notify the child’s parent of their right to appeal that decision to the First-tier Tribunal (Special Educational Needs and Disability (SEND)). (SEND code of practice)
14. When investigating complaints, councils should consider what information they need before responding. Often the complainant themselves is able to provide useful information about the complaint. (LGSCO guide for complaint handlers: A proportionate approach to considering complaints)
15. The Council will respond to stage 1 complaints within 10 working days, and stage 2 complaints within 20 working days. (The Council’s corporate complaints policy)

What happened

16. At the time of Mrs X’s complaint to the Ombudsman, Y’s most recent EHC plan had been issued in 2022. This mostly set out approaches to supporting Y in her lessons. It also said she should receive three sessions of occupational therapy “across the year”, to be delivered directly, either one-to-one or in small groups.
17. In June 2023 Y’s occupational therapist confirmed that Y would receive three direct therapy sessions over the following year.
18. In November, Mrs X told the Council that Y was not receiving the special educational needs support she was supposed to. The Council suggested she speak to Y’s school about this.
19. Later that month, the Council sent Mrs X a draft amended EHC plan for Y. But it then took no further action to either finalise or withdraw the plan.
20. In March 2024, Y’s occupational therapist confirmed that Y had received one direct session (rather than the three required by her EHC plan) and would not receive any more.
21. In April, Mrs X complained to the Council about the support Y was receiving from her school. The Council told her it would respond in 10 working days.
22. The Council responded five working days later. It said Mrs X had not specified which elements of Y’s support had not been delivered, so it could not comment.
23. Mrs X made a stage 2 complaint in late April. She said:
• No real investigation had taken place into her stage 1 complaint.
• Y’s school had provided no evidence that it was delivering her support
• Y had not received all of her occupational therapy.
• Y’s EHC plan was inadequate.
• Y’s caseworker had not attended meetings.
24. The Council acknowledged Mrs X’s stage 2 complaint in early May, and said it would respond within 30 working days (rather than the 20 set out in its policy).
25. Two weeks later, the Council prepared a draft response to the complaint, which said it needed to meet Y’s school to discuss the delivery of her support. It said this would take place during the next annual review, and would “go through each part of the EHC Plan and review evidence”. It also said the school had provided interim verbal confirmation that the right support was in place.
26. In early June, Y’s school held its annual review of her EHC plan. In the report, it said her special educational needs support was in place (although it provided no more detail).
27. In mid-June Mrs X contacted the Council twice to chase up a response to her stage 2 complaint and, shortly afterwards – 35 working days after acknowledging the complaint – it responded.
28. The Council’s response did not substantively differ from the draft response it had prepared the previous month. It continued to refer to Y’s recently-completed annual review as being a future event.
29. In early July, Mrs X began contacting the Council for a decision on Y’s support following her annual review. The Council told her it had not received the paperwork from the school.
30. Mrs X contacted the Council three more times in September to ask for its decision on Y’s support. Initially, the Council told her that its panel would be considering Y’s case. Then, in mid-September, it wrote to her telling her that it had decided not to amend Y’s EHC plan. It told her of her right to appeal to the SEND Tribunal.
31. Mrs X made enquiries of the Council to establish whether the most recent EHC plan was in 2022 or 2023. She then complained to the Ombudsman.

My findings

Y’s special educational needs support

32. When Mrs X first contacted the Council about Y’s school’s failure to deliver the right support, it advised her to speak to the school about it. This was not unreasonable advice at the time. It was not obvious from Mrs X’s email that this was an avenue which had already been exhausted.
33. Y’s occupational therapist confirmed in March 2024 that Y had only received one direct session (rather than the three she should have received) and would not receive any more. This did not meet the terms of her EHC plan, for which the Council was at fault.
34. After Mrs X raised her general dissatisfaction with Y’s support in her stage 1 complaint, the Council spoke to Y’s school, which said the provision was in place. And, in the annual review meeting shortly afterwards – in which the Council said the delivery of Y’s support would be discussed – the school reiterated this.
35. I am not in a position to assess the school’s day-to-day delivery of most of Y’s classroom support. What I must do is consider whether the Council took the right steps to deal with Mrs X’s concerns, and to ensure it had secured Y’s special educational needs provision.
36. The Council was clearly satisfied, on the basis of its conversation with Y’s school, that the right provision was being delivered. And it is not for me to exercise judgment on the Council’s behalf. But there is a complete lack of detail in the Council’s complaint response (and in the school’s annual review report) about what was discussed.
37. In the absence of any evidence which describes, in any reasonable amount of detail, the discussion the Council had with Y’s school about the provision which Mrs X believed was missing, I have found that the Council was at fault.
38. I do not consider it proportionate to recommend that the Council improves how it monitors the delivery of special educational needs provision, because we have recently made similar recommendations to the same Council in other cases.
39. However, my other recommendations are set out below.

November 2023: Y’s draft amended EHC plan

40. The Council had eight weeks after issuing Y’s draft EHC plan to either amend the plan or tell Mrs X it was no longer going to do so. Both of these outcomes would have given her a right of appeal to the SEND Tribunal.
41. Instead, no further action was taken. There is no evidence that the Council told Mrs X what it was doing with the draft plan either way, for which it was fault.
42. This not only removed Mrs X’s appeal right but likely led to a significant amount of uncertainty about what support Y was supposed to receive. This uncertainty was in evidence a year later, when Mrs X did not know the date of Y’s most recent plan.
43. It is not possible to get Mrs X’s right of appeal back. Nor can I speculate on what the outcome would have been had she been able to appeal. But I have, nonetheless, made recommendations to the Council later in this statement.

June 2024: Y’s annual review

44. After Y’s annual review, the Council had four weeks to make a decision about what to do with her EHC plan. Instead, it took 15 weeks, for which it was at fault.
45. Mrs X suffered an injustice, as she had to chase this matter up a number of times. Her right of appeal to the SEND Tribunal was also delayed.
46. Below, I have made recommendations to the Council on this point.

Complaint handling

47. The Council’s response to Mrs X’s stage 1 complaint was on time. But its stage 2 response was three weeks late (using the deadline in its policy, not in its acknowledgement of the complaint), for which it was at fault.
48. Mrs X had to chase the Council for a response, which was likely inconvenient for her.
49. There were also problems with the quality of the Council’s complaint responses.
50. At stage 1, the Council (by its own admission) did not have enough information about the complaint. But rather than asking Mrs X for the information, it issued a response without answering the complaint properly.
51. At stage 2, the Council waited five weeks after preparing its draft response before finalising it and sending it to Mrs X. The response only addressed a small part of the complaint and, because of the delay, contained out-of-date information.
52. For these reasons, the Council was at fault for how it handled Mrs X’s complaint. My recommendations on this matter now follow.

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Action

53. Within four weeks, the Council has agreed to review the concerns Mrs X (or her representative) have brought to its attention since April 2024 about the delivery of Y’s special educational needs provision. It will ensure that Y is receiving what she should, or will take action to ensure this. It will fully record its decision-making.
54. Within the same time frame, the Council has also agreed to:
• Apologise to Mrs X and Y for the distress they were likely caused by its failure to fully deliver Y’s special educational needs support, to make decisions on that support in a timely manner, or to deal with Mrs X’s complaints properly.
• Make a symbolic payment of £100 to Mrs X, on behalf of Y, to recognise that Y did not get the benefit of as much occupational therapy as she should have done.
• Make a further symbolic payment of £500 to Mrs X to recognise her own distress from the Council’s poor communication and complaint handling.
55. Within eight weeks, the Council has agreed to write to us to set out how it will:
• Eliminate delays in decision-making on EHC plans, particularly following annual reviews.
• Ensure that staff who are responsible for responding to complaints (including those working in operational roles within its SEND service) are trained in principles of good complaint handling.
56. The Council will provide us with evidence it has done these things.

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Decision

57. The Council was at fault. This caused injustice to Mrs X and Y, which the Council will now take action to address.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman