Summary: Mrs X complains the Council did not deal with her son’s education properly and he missed special educational needs provision. The Council is at fault because it delayed issuing his Education Health and Care Plan, didn’t complete an annual review in time, delayed making some provision and delayed its complaint response. Mrs X suffered avoidable distress and some of her son’s special education needs provision was delayed. The Council should apologise, pay Mrs X £100 for distress and £500 in respect of delayed provision.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains the Council failed to deal with her son’s education properly because:
• It delayed issuing his EHCP by 11 days;
• It failed to complete AR in proper timescales;
• It failed to deliver SEN OT provision; and
• Its complaint handling was poor because it was late.
2. Mrs X says she suffered avoidable distress and her son missed SEN provision.

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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 an injustice, 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, guidance and policies

8. 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. 
9. 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) 
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.

What happened?

11. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
12. The Council issued a final EHC Plan in May 2024.
13. Mrs X complained in June 2024, that the EHC Plan had been issued late and provision had not been made properly.
14. The Council partially upheld Mrs X’s complaint about the delay to the EHC Plan and that occupational therapy provision had been delayed.
15. Mrs X complained to the Ombudsman that the Council had not full responded to her complaint.

Analysis

16. Mrs X had complained to the Council that it had not provided a full time education for her son. The Council said, “Full-time education is not defined in law however, if a child receives one-to-one tuition, the hours are often fewer as the education may be more intensive.”
17. The EHC Plan does not specify any specific number of hours provision.
18. I agree with the Council. The guidance does not prescribe how many hours constitute full time education and there is no specificity in the EHC Plan. This is not fault by the Council.
19. Mrs X confirmed to me that all the provision made was 1:1.
20. The EHC Plan annual review should have been carried out by 3 January 2024. The annual review was actually held on 24 January 2024.
21. The Council accepts that it did not issue Mrs X’s son’s amended EHC Plan within the statutory timeline and acknowledges that this delay contributed to the subsequent delay in implementing the recommended Occupational Therapy (OT) programme for him. The EHC Plan was delayed by 11 days. This is fault by the Council. Mrs X has suffered injustice on previous separate occasions as a result of fault by the Council, which has been the subject of previous Ombudsman investigations. Mrs X suffered avoidable distress with similar issues repeating themselves, even though the delay in this complaint was a relatively short time period.
22. The OT therapy in her son’s EHC Plan was delayed by 10 months. This is fault by the Council. Mrs X’s son suffered delays to some of his SEN provision.
23. In its stage 1 complaint response the Council said it, “fully acknowledges that its administrative procedures have caused you confusion and frustration”, and offered an apology.
24. In its stage 2 complaint response, the Council said Mrs X’s complaint had shown areas where it needs to improve its processes and is reviewing processes on a regular basis to avoid such delays occurring in the future. It also said it, “recognised that an apology cannot undo the confusion and frustration you have experienced.”
25. The Council did not comply with its timescales for providing complaint responses. It wrote to Mrs X and apologised for this at the time. This is fault by the Council. Mrs X suffered avoidable distress and uncertainty.

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Action

26. To remedy the outstanding injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this decision:
• Apologise to Mrs X for the fault found 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 in making the apology I have recommended in my findings.
• Pay Mrs X £100 in respect of avoidable distress and uncertainty.
• Pay Mrs X £500 in respect of 10 months delay to Special Educational Needs provision, at a rate of £50 per month.
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 actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman