Summary: Mrs X complained the Council did not review her child’s Education Health and Care Plan in line with statutory timescales and did not deliver the provisions set out in the Plan. Mrs X says this has impacted her child’s education and caused her financial strain. The Ombudsman finds the Council at fault which caused Mrs X and her child injustice. The Council has agreed to take service improvement action and make a payment to Mrs X.

The complaint

1. Mrs X complains about the Council’s handling of her child’s Education Health and Care (EHC) Plan. Specifically she complains the Council:

1. did not review her child’s EHC Plan in line with statutory timescales; and
2. did not deliver the provisions set out in her child’s EHC Plan.

2. Mrs X says this means her child has missed out on speech and language therapy for two years. She says her child has missed out on other provision which has impacted their education. She says she had to fund some provision which caused her financial strain. She said it has also caused distress to her and her family.

Back to top

The Ombudsman’s role and powers

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. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)

Back to top

What I have and have not investigated

8. Mrs X complains about matters which began following B’s EHC Plan issued in November 2022. Mrs X complained to us in October 2024. As I have said above, we cannot investigate late complaints unless there are good reasons for us to do so.
9. In this case, I have decided there are no good reasons to exercise our discretion and look back further than October 2023. I have therefore only considered the Council's actions from October 2023 onwards because this is 12 months before Mrs X brought her complaint to us.
10. As I have said above, we cannot investigate matters which could have been considered by a tribunal. Mrs X complains about provision in B’s EHC Plan which were ordered by the SEND Tribunal. The Tribunal made its decision in November 2023, and therefore I have only considered part b of the complaint from November 2023.

Back to top

How I considered this complaint

11. I considered the information and documents provided by Mrs X and the Council. Mrs X and the Council now have an opportunity to comment on a draft of this decision. I have considered all comments received before making this final decision.
12. I also considered the relevant statutory guidance, and Council’s policy, as set out below.
13. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I found

What should have happened

Delay reviewing Education Health and Care (EHC) Plan (part a of the complaint)

14. 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.
15. 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.
16. If the Tribunal requires a council to amend Section F of an existing Plan, the Council must issue the amended Plan within five weeks of the order.

EHC Plan provision (part b of the complaint)

17. 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)  
18. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.

19. 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)
20. 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.

What happened

21. In 2022, the Council issued B’s EHC Plan. Mrs X appealed the contents of the plan to the Tribunal.
22. In November 2023, the Tribunal considered Mrs X’s appeal. Three days later, the Tribunal issued an order.
23. In mid-January 2024, the Council issued B’s final reviewed EHC Plan. The Plan set out provision which included:
• Up to 25 hours of national curriculum teaching and therapy activities per week.
• Two sessions of speech and language therapy per week.
• 18 occupational therapy sessions per year.
24. Shortly afterwards, the Council commenced B’s occupational therapy sessions.
25. In early February, B’s one to one tuition started. B received 10 hours tuition per week.
26. The Council sent Mrs X the forms to organise a pre-paid personal budget card for her to buy the equipment and provisions set out in the Plan. Mrs X returned the completed forms.
27. In March, Mrs X received the pre-paid personal budget card without any funds.
28. In mid-March, the Council provided Mrs X with the required funding.
29. In June, Mrs X made a formal complaint. She told the Council B had not received any speech and language therapy.
30. In early July, B’s tuition ended two days before the end of school term.
31. In August, the Council responded to Mrs X’s second stage complaint. It upheld her complaint and told her it would make a payment to remedy the lack of speech and language therapy provided to B.
32. To date, Mrs X has not received a payment for lack of speech and language therapy.

Analysis

Delay reviewing Education Health and Care (EHC) Plan (part a of the complaint)

33. We expect councils to follow the statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. The Council must complete an EHC Plan review within 12 months of the first EHC Plan and within 12 months of any later reviews. The Council should have completed the review by November 2023. It did not complete the review until mid-January 2024. This delay was two months longer than the timescale allows. This is fault which caused Mrs X and B injustice by avoidable and unnecessary uncertainty.
34. Once a Tribunal has ordered a council to amend Section F of an existing EHC Plan, the Council must issue the amended Plan within five weeks of the order. In this case, the Council took over six weeks to issue the amended Plan. I do not consider this delay significant enough to make a finding of fault.

EHC Plan provision (part b of the complaint)

35. After finalising B’s EHC Plan in mid-January, the Council organised B’s one to one tuition to start in early February. This meant B did not have the tuition detailed in the EHC Plan for four weeks of the Spring term. At the end of January, the Council offered B interim home tutoring which could start immediately. Mrs X did not accept the Council’s offer. Therefore, I find fault with the Council not providing B with the tuition in the EHC Plan in the two weeks between the finalised EHC Plan being issued and its offer of interim home tutoring. I find this fault caused B injustice.
36. During this time, Mrs X organised and paid for B’s weekly therapy activities. The Council took two months from issuing the finalised EHC Plan to arrange the pre-paid card so Mrs X could access B’s personal budget. I find fault with the Council’s two-month delay in setting up the pre-paid card for Mrs X to arrange equipment and provision, which caused her frustration and financial strain.
37. The Council accepts it did not provide the speech and language therapy as set out in B’s EHC Plan until October 2024. It commissioned a provider in January, however the provider did not have capacity to provide the service for B. The Council did not approach other providers until Mrs X suggested an alternative provider in August. The Ombudsman recognises it is not reasonable for councils to have oversight of the delivery of every provision, to every child with an EHC Plan, at all times. However, it is reasonable the Council satisfies itself provision has been secured and follows up any concerns of no provision. In this case, although the Council could not control the provider’s capacity to provide the service to B, it should have sought alternative means to provide the speech and language therapy detailed in B’s Plan. The Council’s nine-month delay organising speech and language therapy means B missed out on twice weekly sessions for two and a half school terms. This delay is fault which has caused B injustice. The Council also caused Mrs X frustration in her efforts to find an alternative provider, and by not following up on the offer it made her in July to make a payment to remedy the lack of speech and language therapy.
38. The Council told the Ombudsman it also did not provide B’s package in the Autumn 2024 term, specifically B’s coordinator, a tutor and mentor provision. The Council proposed an additional financial remedy to remedy this lack of provision, which I am satisfied is suitable to remedy the ongoing injustice that occurred during this period.
39. The Council commissioned the occupational therapy provider chosen by Mrs X. I am satisfied B received the occupational therapy as detailed in the EHC Plan and I find no fault with the Council.
40. I do not find the two-day gap of tuition in July significant enough to make a finding of fault.

Back to top

Action

41. The Council suggested the following remedy which I consider suitable. Therefore, within four weeks of my final decision the Council will make a payment of £4000 to Mrs X to recognise the speech and language provision B missed out on in the three school terms between January 2024 and October 2024, and the coordinator, tutor and mentor provision B missed out on in the Autumn 2024 term.
42. Furthermore, within four weeks of my final decision the Council will:
1. make a payment of £200 to Miss X to remedy the injustice caused by the delay in the Council issuing B’s final amended EHC Plan (this is calculated from November 2023 up until January 2024).
2. make a payment of £200 to remedy the two weeks of tuition B missed out on in January 2024. I considered our published guidance on remedies and B’s individual circumstances. I considered B’s needs, and that B received some therapeutic activities during this time. I also considered the timing, and this occurred during a year which was less significant in terms of B’s education. I consider this amount is appropriate and proportionate to the level of injustice caused.
3. make a payment of £400 to Mrs X to remedy the considerable frustration and financial strain caused by the Council’s two-month delay issuing the pre-paid personal budget card, the efforts Mrs X made to find alternative providers, and the delay in providing her with the payment it offered in recognition of its delay providing speech and language therapy.
4. tell us what steps it is taking to ensure it is seeking to commission alternative providers in cases where the initial commissioned providers do not have capacity to meet the provision detailed in the EHC Plan.
43. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

44. I find fault causing injustice. The Council has agreed to take service improvement action and make a payment to Mrs X and B to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman