Summary: Mrs X complained the Council delayed reviewing her child’s Education, Health and Care Plan and failed to provide the Speech and Language Therapist provision from her child’s plan. Mrs X also complained the Council delayed handling her complaint. We found fault with the Council for all aspects of Mrs X’s complaint. The Council agreed to pay Mrs X £2,700 for the quantifiable loss of the Speech and Language Therapist reviews, £300 for the distress and uncertainty caused through delays in reviewing her child’s Education, Health and Care Plan and £100 for the frustration and inconvenience caused through the complaint handling delays.

The complaint

1. Mrs X complained the Council delayed reviewing her child’s Education, Health and Care Plan.
2. Mrs X complained the Council failed to provide the Speech and Language Therapist provision detailed in her child’s EHC Plan.
3. Mrs X also complained the Council delayed in handling her complaint outside the Council’s complaint timescales.

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The Ombudsman’s role and powers

4. 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
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)
6. 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)
7. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
8. 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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What I have and have not investigated

9. Mrs X brought her complaint to the Ombudsman on 7 October 2024. The Ombudsman would normally only look at matters back to October 2023.
10. I have exercised my discretion to investigate Mrs X’s complaint back to August 2022. This is because Mrs X would not have known until August 2023 the Council had failed to review her child’s EHC Plan within the statutory timescales. It would also not have been immediately clear to Mrs X the Council was failing to provide her child with the speech and language therapy provision following production of the August 2022 EHC Plan. Mrs X allowed the Council time to put this provision in place. This is good reason for the Ombudsman to exercise our discretion.
11. We will not investigate any matters before the production of the EHC Plan on 4 August 2022. Any issues before this date are separable from the complaint issues we have investigated. There is no good reason to extend our discretion to investigate matters before this date.

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How I considered this complaint

12. I have considered all the information Mrs X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
13. Mrs X and the Council had opportunity to comment on my draft decision before I made my final decision.

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What I found

Rules and Regulations

EHC Plans

14. An Education, Health and Care Plan (EHC Plan) is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care.
15. Once the Council completes the EHCP it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.
16. Councils should ensure an annual review of the child's EHC Plan is carried out within 12 months of the issue of the original plan or the completion of the last annual review. An annual review is completed when a council issues a letter advising of intention to cease, maintain or amend an EHC Plan following an annual review meeting.
17. The purpose of the annual review is to consider whether the special educational support and educational placement is still appropriate. The annual review is not complete until the council has decided to either maintain the Plan, cease the Plan or amend the Plan.
18. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. (s20 (10) Special Educational Needs and Disability Regulations 2014)
19. The Special Educational Needs and Disability Code (the Code) states if a council decides to amend the Plan, it should start the process of amendment “without delay”. (SEN Code para 9.176)
20. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the Final amended EHC Plan as soon as practicable and within eight weeks of the date it sent the EHC Plan and proposed amendments to the parents. (s22 (3) & (4) SEND Regulations 2014)
21. In 2022, the case of R (L, M and P) v Devon County Council said when a local authority proposes to amend an EHC Plan the regulation which requires the Council to notify a parent of its decision within four weeks and the regulation which set outs the process for amending the EHC Plan must be read together. This means the maximum time from the annual review meeting to final plan should be 12 weeks.
22. The Ombudsman can look at any delay in the assessment and creation of an EHCP as well as any failure by the Council to deliver the provision within an EHCP.

Council’s complaints policy

23. The Council operates a two-stage complaints process. The Council says it will acknowledge complaints within 5 working days at both Stage 1 and Stage 2 of its complaints process.
24. The Council’s complaints process says it will provide a complaint response within 6 weeks of receipt at both stages of its complaints process. The Council says that in complex cases it will advise a complainant that it will need longer to respond and provide a new response date.

What happened

25. On 4 August 2022, the Council issued the first EHC Plan for Mrs X’s child, who I shall refer to as Y. Within this EHC Plan the Council detailed the Section F provision it should provide to Y including for their speech and language skills. The EHC Plan stated this provision would be “Specific achievable targets relating to the improvement of Y’s speech and language skills will be guided by a Speech and Language Therapist and will be reviewed at least half termly.”
26. In September 2022, Y started primary school.
27. On 12 December 2023, the Council held an annual review meeting for Y’s EHC Plan.
28. The Council issued a notification to amend letter to Mrs X on 2 February 2024 advising of its intent to amend Y’s EHC Plan.
29. On 11 March 2024, the Council issued an amended Final EHC Plan for Y. The Council kept the wording about Y’s speech and language provision within this EHC Plan.
30. Mrs X made a formal complaint to the Council on 29 April 2024. Mrs X said the Council has not provided speech and language therapy for Y since production of the original EHC Plan on 4 August 2022. Mrs X also complained the Council failed to complete the annual review of Y’s EHC Plan within the statutory timescales.
31. The Council acknowledged Mrs X’s complaint on 2 May 2024 and promised a response by 10 June 2024.
32. On 7 June 2024, the Council provided a Stage 1 complaint response to Mrs X. The Council said that despite providing funding to Y’s school it had not initiated the provision of speech and language therapy yet. The Council apologised for this lack of provision. The Council promised to work with Mrs X and the school to decide how it could increase Y’s provision to meet their needs. The Council also upheld Mrs X’s complaint about delays in the annual review process for Y’s EHC Plan.
33. A Speech and Language Therapist provided the first session for Y on 17 June 2024 followed by a second session on 1 July 2024.
34. Mrs X sought consideration of her complaint at Stage 2 on 24 July 2024. The Council acknowledged this complaint on 31 July 2024 and promised a response by 4 September 2024.
35. The Speech and Language Therapist provided three home visit sessions for Y over the summer in 2024. The Speech and Language Therapist made two further visits in the Autumn 2024/2025 term, one in November 2024 and another in December 2024.
36. On 6 December 2024, the Council issued a Stage 2 complaint response. The Council said:
• It accepted it had failed to provide suitable speech and language therapy for Y.
• It apologised for the delays in responding to contacts from Mrs X.
• Speech and language therapy is now in place at Y’s school and Y is benefiting from twice weekly input.
• It needs to make sure appropriate reviews of Y’s speech and language therapy are taking place by an appropriate Speech and Language Therapist.
37. The Speech and Language Therapist has made visits to work with Y three times in March 2025 and once in April 2025 with future sessions planned for June and July 2025.

Analysis

EHC Plan delays

38. The Council produced Y’s first EHC Plan on 4 August 2022. A council has a duty to complete a review of a child’s EHC Plan at least once per year. This means the Council had until 4 August 2023 to hold an annual review meeting for Y’s EHC Plan and tell Mrs X of its plan to maintain, amend or cease Y’s EHC Plan.
39. The Council failed to hold the annual review meeting until 12 December 2023 and failed to send the notification to amend letter until 2 February 2024. This meant the Council failed to complete the annual review process until 6 months outside the statutory timescales. This delay was fault.
40. This delay has caused Mrs X distress and frustration and has also lead to uncertainty about the suitability of the provision in Y’s EHC Plan. The Council has already apologised to Mrs X for this delay but I consider it should pay her £300 for the injustice caused by its delays.
41. The Council issued a final amended EHC Plan for Y on 11 March 2024. The Council issued this EHC Plan within 8 weeks of the notification to amend letter issued on 2 February 2024. The Council has issued this within the statutory timescales and I do not find fault. While this final EHC Plan was issued 13 weeks after the annual review meeting, rather than 12 weeks, I have already included this delay within paragraphs 38 to 40.

Speech and Language Therapy

42. Y’s EHC Plan was specific that Y should get half-termly reviews by a Speech and Language Therapist but was not specific about how the speech and language therapy should be delivered. The EHC Plan simply stated that Y’s speech and language therapy would have achievable targets guided by a Speech and Language Therapist.
43. The Council decided that Y’s ongoing speech and language therapy should be provided through Y’s school with the amount of this determined by a Speech and Language Therapist, as per the term “guided” in the EHC Plan.
44. The Council has accepted it failed to provide any speech and language therapy for Y from 4 August 2022 to 10 March 2024. The Council has confirmed this was both the half-termly reviews by a Speech and Language Therapist and any ongoing provision through Y’s school.
45. The Council had a legal duty to provide this provision for Y. Failing to do so was fault.
46. The Council’s failure to secure suitable speech and language therapy for Y, as specified in Y’s EHC Plan, meant the Council failed to meet its statutory duty to delivery Y’s EHC Plan provision. This means Y missed provision detailed in their 4 August 2022 EHC Plan.
47. From 4 August 2022 to 10 March 2024, Y should have received 9 half-termly reviews by a Speech and Language Therapist. However, as above, the exact nature of the ongoing provision cannot be quantified as this was to be guided by the Speech and Language Therapist reviews which did not happen.
48. The Council has shown that an individual session with the Speech and Language Therapist for Y cost £300. Given Y missed 9 half-termly reviews, the Council should pay Mrs X £2,700 for this quantifiable missed provision. Mrs X may use this to source any suitable catch-up provision she considers suitable for Y.
49. Following amendment of Y’s EHC Plan on 11 March 2024, the Council kept the speech and language therapy provision but continued to fail to provide this for Y until June 2024. This was fault.
50. While the Council failed to provide any input from March 2024 to June 2024, it provided five sessions directly with a Speech and Language Therapist from 17 June 2024 to 31 August 2024. I consider this extra provision of sessions directly with a Speech and Language Therapist was suitable catch-up provision for any missed reviews, three, and missed ongoing support from 10 March 2024 to 31 August 2024.
51. Since the start of the academic year 2024/2025, the Council has provided extra funding to Y’s school both for Y specifically and as a general approach for all children at the school. This funding was to ensure the school had suitable resources and greater autonomy to develop child specific interventions where necessary. The school’s Special Education Needs Coordinator has confirmed with the Council that it is providing speech and language therapy for Y integrated into the school week. A Speech and Language Therapist has also had sessions with Y on six occasions this academic year up to 8 April 2024.
52. The Council has shown that it is now providing the speech and language therapy as detailed in Y’s EHC Plan. This is through provision in the school setting and direct session with a Speech and Language Therapist who is providing reviews and guidance of Y’s provision. I do not find fault with the provision of Y’s speech and language therapy since the start of the academic year 2024/2025.

Complaint handling

53. Mrs X made her first formal complaint to the Council on 29 April 2024. This meant the Council had until 6 May 2024 to acknowledge the complaint and 10 June 2024 to respond to meet its complaint process timescales.
54. The Council acknowledged Mrs X’s complaint on 2 May 2024 and provided a Stage 1 complaint response on 7 June 2024. The Council has acted in line with its complaint timescales and I do not find fault.
55. Mrs X sought escalation of her complaint to Stage 2 of the Council’s process on 24 July 2024. This meant the Council had until 31 July 2024 to acknowledge the request and until 4 September 2024 to respond to meet its complaint process timescales.
56. The Council acknowledged Mrs X’s request on 31 July 2024, meeting the complaint process timescales, but failed to provide a Stage 2 complaint response until 6 December 2024. This meant the Council provided its Stage 2 complaint response two months outside its complaint timescales; this delay was fault.
57. The Council’s delay caused Mrs X inconvenience and frustration and resulted in Mrs X chasing the Council for a response twice. The Council has already apologised to Mrs X for this delay but I consider the Council should per her £100 for the injustice cause.

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Action

58. Within one month of the Ombudsman’s final decision the Council should:
• Provide Mrs X with a payment of £300 for the frustration, distress and uncertainty caused through its 6-month delay outside the statutory timescales in completing the annual review process for Y’s EHC Plan.
• Provide Mrs X with a payment of £2,700 as a quantifiable cost of the loss of Speech and Language Therapy provision from 22 August 2022 to 10 March 2024.
• Provide Mrs X with a payment of £100 for the inconvenience and frustration caused through its 2-month delay outside its complaint handling process in providing its Stage 2 complaint response.
59. The Council should provide us with evidence it has complied with the above actions.

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Decision

60. There was fault leading to injustice. As the Council has agreed to my recommendations, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman