Summary: Ms X complained, on behalf of Mr Y, that the Council delayed completing the annual review of Mr Y’s Education, Health and Care Plan and delayed providing the provision in his post Tribunal Education, Health and Care Plan. This meant Mr Y missed out on getting provision he should have received. Ms X also complained about the Council’s complaint handling. We found the Council at fault for the time it took to issue a final Education, Health and Care Plan for Mr Y after the Tribunal and for its complaint handling. To remedy the injustice caused the Council agreed to apologise, make a payment to Ms X and Mr Y and carry out a service improvement.

The complaint

1. Ms X complains, on behalf of Mr Y, that the Council:
1. Did not properly carry out Mr Y’s annual review of his Education, Health and Care Plan. This included delays holding the annual review meeting, and deciding on the proposed amendments and complying with directions from the SEND Tribunal.
2. Delayed providing Mr Y with the provision he was entitled to after his appeal to the SEND Tribunal was concluded.
3. Delayed responding to her complaint.

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The Ombudsman’s role and powers

2. 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)
3. 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.
4. 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)
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. I have not investigated complaint a). This is because the courts have established that if someone has appealed to the SEND 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). This means we cannot look at any of the amendments Ms X wanted or disagreed with which the Council was proposing to make to Mr Y’s Education, Health and Care Plan.
7. We also cannot investigate the Council’s conduct during an appeal. This includes anything a complainant could have raised with the Tribunal at any stage of the appeal, or which the Tribunal has considered on its own initiative, or which could have been a part of the Tribunal’s deliberations in resolving the appeal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207). We therefore cannot investigate the delays around Mr Y’s annual review as the SEND Tribunal, during the proceedings, directed the Council to carry out an annual review and incorporate any amendments into the working document before the final Tribunal hearing.

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How I considered this complaint

8. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
9. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
10. 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 found

Law and guidance

11. 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.
12. The EHC Plan is set out in sections which include:
• Section B: Special educational needs.
• Section C: Health needs related to the child or young person’s SEN.
• Section D: Social care needs related to the child or young person’s SEN
• Section F: The special educational provision needed by the child or the young person.
• Section G: Any health provision required because of their learning difficulties or disabilities which results in the child or young person having SEN.
• Section H1: The social care provision which must be made for the child or young person under 18 resulting from section 2 of the Chronically Sick and Disabled Persons Act 1970.
• Section H2: Any other social care provision reasonably required by the learning difficulties or disabilities which result in the child or young person having SEN. (Where relevant this includes adult social care provision to meet eligible needs under the Care Act 2014).
• Section I: The name and/or type of educational placement
13. 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)  
14. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan.

What happened

15. In this section of the statement I have summarised key events only. I do not refer to every single contact and communication between Ms X and the Council.
16. Mr Y has special educational needs. In August 2023, Ms X appealed the contents of Mr Y’s latest EHC Plan. Ms X’s appeal included the Sections B, F and I of Mr Y’s EHC Plan.
17. In December 2023, the Council should have reviewed Mr Y’s EHC Plan.
18. In February 2024, the SEND Tribunal ordered the Council to carry out an annual review of Mr Y’s EHC Plan and to add any amendments to the working document. This was so the Tribunal could consider these amendments along with any other evidence at the Tribunal hearing.
19. The Council carried out the annual review of Mr Y’s EHC Plan in March 2024. In April 2024, instead of adding the amendments to the working document, the Council sent Ms X a notice of amendment, which went against the instructions of the SEND Tribunal.
20. On 20 May 2024, the SEND Tribunal concluded. The Tribunal ordered the Council to issue a post Tribunal EHC Plan for Mr Y by 24 June 2024 and in accordance with the working document. The changes the SEND Tribunal ordered to Section H of Mr Y’s EHC Plan included adding that the Council would carry out a social care assessment for Mr Y by 20 August 2024.
21. In July 2024, the Council sent Ms X a notice of amendments with proposed changes to the EHC Plan.
22. In August 2024, the Council sent Ms X an EHC Plan for Mr Y, however it did not include Section E in the Plan.
23. The Council then sent a further notice of amendment to Ms X in September 2024.
24. The Council issued a final EHC Plan for Mr Y on 22 October 2024 and sent this to Mr Y’s College.

Ms X’s complaint

25. In early July 2024, Ms X complained to the Council about the annual review process from March 2024 and the way the Council acted at the SEND Tribunal.
26. The Council responded to Ms X in late July 2024. The Council:
• Apologised for not amending Mr Y’s EHC Plan and said it should have done this before the SEND Tribunal hearing.
• Apologised for not putting the proposed amendments to Mr Y’s EHC Plan in the working document and sending a notice of amendment in error.
• Apologised for not complying with the SEND Tribunal’s orders within the deadlines.
• It was looking at ways to improve communication between the teams dealing with SEND Tribunals and teams dealing with EHC Plans.
27. In August 2024, Ms X asked the Council to consider the complaint at the next stage of its process. Ms X also complained the Council had not issued a final EHC Plan after the SEND Tribunal order.
28. From mid-September to mid-October 2024, Ms X chased the Council several times for a response to her complaint.
29. The Council provided its final response to Ms X’s complaint on 28 October 2024. The Council said:
• It did not manage the annual review and appeals processes well and this caused confusion and distress.
• It recognised Ms X contacted the Council many times and communication from the Council was lacking.
• It was recruiting permanent officers and reviewing its internal procedures to ensure it could maintain the expected level of engagement with families involved in a SEND Tribunal appeal.
• It recognised the delays issuing Mr Y’s EHC Plan after the SEND Tribunal were unacceptable.
• It issued the final EHC Plan on 22 October and sent a copy to adult social care staff and Mr Y’s college.
• The social care assessment ordered by the SEND Tribunal had not taken place. The Council said it sent Mr Y’s EHC Plan to the relevant team.
• It offered £300 for the inconvenience and time and trouble caused by having to complain and for the distress and anxiety caused to Mr Y by the delays.
30. Ms X remained dissatisfied and complained to the Ombudsman.

Analysis

31. After the SEND Tribunal’s final hearing, the Council had until 24 June 2024 to issue a final EHC Plan for Mr Y. This was to outline the provision Mr Y was to receive at his College placement he was attending from September 2024. The Council did not issue Mr Y’s final EHC Plan until late October 2024. This was fault.
32. In the interim it issued a further two amendment notices and an EHC Plan without Section E. It is not clear why the Council did this given the SEND Tribunal’s order.
33. As a result of the delay issuing Mr Y’s final EHC Plan, he started to attend the new term of his College placement without an accurate and up to date EHC Plan in place. While his College may have had access to his old EHC Plan, pre-SEND Tribunal, there was significant differences between the Section F provision in this Plan compared to the post-SEND Tribunal Plan. This included:
• weekly access to extracurricular activities
• weekly small group sessions
• teaching for spelling and punctuation and handwriting/ICT skills
• support to take part in physical exercise and join community based activities
• teaching of life skills
• weekly face to face input from a Speech and Language Therapist
• weekly face to face input from an occupational therapist
• weekly face to face input from a clinical psychologist
• weekly input from a dyslexia teacher with an accredited qualification
• 4 hours of specialist Personal Assistant support per week during term-time to develop Mr Y’s basic daily living skills at weekends/evenings.
34. As the Council did not issue the final EHC Plan until late October 2024, I am satisfied, on balance, Mr Y did not receive this provision at his college placement until late 2024. This is an injustice to Mr Y.
35. Ms X has also spent a significant amount of time pursuing the Council to issue Mr Y’s final EHC Plan. I am satisfied the delays issuing this and the fact Ms X knew Mr Y was not getting the provision he was entitled to has caused her distress.
36. The SEND Tribunal also ordered the Council to carry out a social care assessment for Mr Y. The Council has not done this. This is fault. As a result, Mr Y has the uncertainty of not knowing whether he is or should have been entitled to any extra social care provision. This is an injustice to Mr Y.
37. Ms X also complained about the Council’s complaint handling. At stage two the Council has 20 working days to provide a response according to its complaints process. The Council should have provided Ms X with a response at stage two by mid-September 2024. Failure to do so was fault.
38. The records showed Ms X contacted the Council several times after mid-September 2024 to chase a response to her complaint. This meant she had to wait longer to bring her complaint to the Ombudsman. The Council recognised this was fault in its complaint response to Ms X, apologised and offered her £300 for the time and trouble she experienced. I am satisfied this is suitable to remedy the injustice caused by the Council’s failures in complaint handling and is in line with what the Ombudsman would recommend.

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Agreed Action

39. Within one month of my final decision, the Council agreed to carry out the following:
• Apologise to Ms X and Mr Y for the above faults. 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 Mr Y £600 to recognise the special educational provision he did not receive following the SEND Tribunal’s decision until late 2024.
• Pay Ms X £200 to recognise the distress and frustration she experienced pursuing the Council to issue Mr Y’s final Education Health and Care Plan.
• Carry out a social care assessment for Mr X as specified in his post Tribunal Education, Health and Care Plan.
• Pay Mr X £500 to recognise the distress and uncertainty caused by not carrying out a social care assessment as specified in his Education, Health and Care Plan.
• If it has not already done so, pay Ms X the £300 it offered to her through the complaints process.
40. Within two months of my final decision the Council should carry out the following.
• The Council should consider why, in this case it took so long to issue a final Education, Heath and Care Plan after the Tribunal’s decision and what it can do to ensure it complies with orders, within the relevant timescales, from the SEND Tribunal. The Council should report back to the Ombudsman with the changes and improvements it intends to make to its service.
41. The Council should provide us with evidence it has complied with the above actions.

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Decision

42. I find fault causing injustice. The Council agreed to the above actions to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman