Summary: Mrs X complained the Council failed to implement provision outlined in her child, Y’s, Education, Health and Care (EHC) Plan. We found the Council was at fault for failing to deliver provision to Y. This failure may have had an impact on Y’s learning and development. It caused significant distress and worry to Mrs X. The Council was also at fault for failing to respond properly to Mrs X, through its complaint’s procedure. Undue time and trouble were suffered by Mrs X as a result. The Council should apologise to Mrs X and make a symbolic payment to her.

The complaint

1. Mrs X complained the Council failed to implement provision outlined in Section F of her child, Y’s, Education, Health and Care (EHC) Plan.
2. Mrs X complained about actions of the school that she said ostracised and discriminated against Y.
3. Mrs X said Y has been profoundly impacted by fault of the school and Council. She said Y struggles to engage in education and suffers with ongoing problems with her mental health. Mr and Mrs X have also suffered great distress and worry.
4. Mrs X said there has been a financial impact on the family. The family sought privately organised tuition and therapy for Y, and Mrs X has been unable to work full time.

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The Ombudsman’s role and powers

5. 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, Section s 26(1) and 26A(1), as amended)
6. We cannot investigate complaints about what happens in schools unless it relates to special educational needs (SEN), when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
7. 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, Section s 26B and 34D, 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).
9. 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

10. The investigation starts in July 2023, when provision outlined in Section F of Y’s plan, was not being properly delivered.
11. Mrs X made a complaint to the Council in April 2024. Mrs X made a complaint to the Ombudsman in November 2024. Mrs X told me that problems started at school in September 2022. The reason I have not investigated from September 2022 is because these matters are late. Mrs X said the reason that she did not complain sooner to the Council was because she was given assurance that things would improve. I appreciate Mrs X wanted to work openly with the school and with the Council, and hoped things would improve. However, there is no evidence to suggest Mrs X was not able to make a complaint sooner than she did.
12. The investigation ends in October 2024. This is when the Council made its final complaint response to Mrs X.

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How I considered this complaint

13. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
14. 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

15. 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.
16. The EHC Plan is set out in Sections which include Section F: The special educational provision needed by the child or the young person.
17. Councils have a duty to secure the specified special educational provision in an EHC Plan for a child or young person. This duty is non delegable (Children and Families Act, 2014, Section 42 , as amended) . 
18. 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) 
19. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.
20. A special educational needs coordinator, or SENCO, is a qualified teacher who is responsible for coordinating specialist provision in school for children with special educational needs. The SENCO holds responsibility for things like developing SEN policies and procedures and working with external agencies to ensure children in school receive the support they need.

What happened here

21. The following is a list of key events relating to the complaint I am investigating. It is not a list of everything that happened.

Background

22. Y has learning difficulties. Y also has social, communication, and sensory difficulties. Y has an EHC Plan in place to support her in school. Mr and Mrs X are Y’s parents.
23. Mrs X said prior to 2022 Y enjoyed going to school. Mrs X said this changed when Y went into a new academic year in September 2022. This is when Y started Year 10, an important school year in preparation for Year 11.
24. Y went into a post 16 college setting following Year 11. Y is currently in college.

Provision

25. Mrs X asked the school to organise an occupational therapy assessment, in April 2023. She said this was because Y had not had an assessment for several years. She thought an updated schedule of occupational therapy would benefit Y in school.
26. In May the special educational needs coordinator (SENCO), at Y’s school organised for an occupational therapist to assess Y and provide recommendations to support Y in school.
27. In July the final EHC Plan was issued. Occupational therapy was listed in the plan as something Y needed. In summary, support from the occupational therapist was agreed as:
• strategies and advice to be provided to school staff,
• 3 X 45-minute sessions, on a 1:1 basis with Y, and
• termly reviews of the impact of the occupational therapy support.
28. In January 2024 Mrs X shared concerns with the school and with the Council about Y’s educational provision. One of the concerns was the lack of occupational therapy being delivered.
29. During this month the EHC Plan review meeting took place.
30. The Council decided to amend Y’s plan. It told Mrs X a few days after the meeting.
31. A final amended EHC Plan was issued in March 2024.
32. Mrs X made a complaint to the Council in April 2024.
33. The Council organised and outsourced an occupational therapy assessment as a matter of urgency, following Mrs X’s complaint. It said it acted quickly to avoid any further loss of provision.
34. Y did not receive any occupational therapy in school, during Year 11.

Complaint Handling

35. Mrs X, on behalf of her and Mr X, made her stage one complaint to the Council in April 2024. In summary, Mrs X complained:
• about failure to deliver the provision as outlined in Y’s EHC Plan,
• Y had been discriminated against by the school,
• the school failed in its safeguarding responsibilities to Y, and
• the school and Council failed to communicate with Mr and Mrs X properly.
36. The Council made its response at stage one in July. In summary, it:
• explained it had met with a senior leader at the school to discuss Mrs X’s complaint,
• confirmed the school had been unable to access occupational therapy provision, and acknowledged this had not been put in place, and
• summarised actions it would take to move forward to ensure the college setting was aware of Y’s needs.
37. The response did not confirm whether it upheld Mrs X’s complaint. It also did not offer any sort of remedy for the loss of provision.
38. In August Mrs X escalated her complaint to stage two of the Councils corporate complaints policy. She said:
• her desired outcomes had not been met at stage one,
• the response at stage one was not thorough enough, had not properly addressed her complaint, and was inadequate, and
• she wanted to complain to the Ombudsman but thought she had to exhaust the Council complaints process first.
39. Mrs X said she wanted a written apology, to be financially compensated for the distress caused to Y, for school and the Council to receive specialist training, and for an emergency EHC Plan review to be held without delay.
40. In October 2024 the Council made its response to Mrs X at stage two. This response was thorough and in the form of an investigation report. It summarised events that had taken place, Mrs X’s complaint and the actions undertaken by the Council. It confirmed where it upheld the complaint that Y had not received occupational therapy. It offered remedies to Mrs X of £100 to recognise the time and trouble taken in making her complaint, and £450 to Y to recognise the loss of provision. It told Mrs X she would receive an apology from the Council. It said, because of failing to handle Mrs X’s complaint in a timely manner, the Council had implemented learning around delays and complaint handling with its staff.

My findings

Provision

41. The Council said it was not made aware of the missed provision until April 2024 when Mrs X made a complaint to the Council.
42. In evidence reviewed by the Ombudsman, as part of this investigation, it is clear the Council was aware occupational therapy was not in place, from January 2024. Mrs X met with a Council officer at this time, and her concerns about occupational therapy were discussed. Furthermore, the Council decided it would amend Y’s EHC Plan in January 2024, following the annual review meeting.
43. This shows a lack of internal communication between Council staff. The Council said it was not aware of the lack of provision until it received Mrs X’s complaint, in April 2024, a difference of about three months.
44. In its stage two complaint response to Mrs X the Council said, accurately, that the Ombudsman does not expect it to keep a watching brief on the delivery of an EHC Plan in real time. It was also correct in explaining to Mrs X that we do expect a Council to either, use the review process to ensure that provision is in place, and / or act as soon as possible when it realises that something is not being done.
45. However, a review is not only the administrative function of amending a plan, if that is required. It is the Councils responsibility to make sure provision is being delivered. This is often most important when changes to a plan are made. The Council should have confirmed in September that the occupational therapy was in place, and that Y was receiving it.
46. It appeared the Council believed, in July 2023, school would deliver the occupational therapy to Y, as agreed in Y’s plan. Presumably this was because the school organised the occupational therapy assessment.
47. This assumption should not have been made. The Council should have made sure occupational therapy was organised and in place, for Y to start receiving the support in September, as planned. Failure to provide occupational therapy to Y, from September 2023, for two years, was fault by the Council. This fault exasperated the existing challenges Y faced at school and caused Mr and Mrs X a great deal of distress and worry.
48. Y went without the occupational therapy they were entitled to, during a significant transitional year at school. The remedy offered to Mrs X by the Council, for the missed occupational therapy provision, was a symbolic payment of £450.
49. Quantifying the impact of this loss for Y, from a financial viewpoint, is a sensitive and difficult subject for Mr and Mrs X. It is understandable, as concerned parents, their intention to organise as much provision as possible for Y, now, to help them to flourish moving forward.
50. The Councils offer of £450 is not in line with our Guidance on Remedies. It does not demonstrate the impact of the loss of provision on Y. It does not recognise the importance of the school year Y was in. I have made recommendations for a higher alternative symbolic payment to be awarded to Y, to recognise these factors.
51. I find fault with the Council for failing to deliver the occupational therapy that was in Y’s EHC Plan, to Y, for one academic school year.

Complaint Handling

52. The Councils corporate complaints policy provides timescales for complaints to be dealt with. At stage one, it says the complainant should receive a response within 15 working days. At stage two, the Councils policy says it should take no longer than 25 working days to make its response.
53. It goes on to say that there may be delay, if the complaint is complex. It explains the actions the Council will take should this happen, including notifying the complainant of the delay and the expected date of a response.
54. At both stages of its complaint process, the Council delayed making its response to Mrs X. It took the Council 50 working days to respond to Mrs X at stage one of its corporate complaint’s procedure. It took the Council 48 working days to respond to Mrs X at stage two.
55. The Council acknowledged delay in its stage two response to Mrs X. It offered her £100 as a symbolic payment. This was to recognise the time and trouble spent, to complain, and the Councils failure to respond according to timescales laid out in its policy.
56. The Council, in response to our enquiries, said the offer of £100 is still available to Mrs X. It told us the delay, at stage one of its complaint process, was due to sudden illness in the staff team dealing with the complaint and the impact this had on other staff workloads.
57. Based on current evidence available, the Council did not contact Mrs X to explain the delay or provide an estimated date of a response. However, it did recognise the delay in its response at both stages of the complaints process.
58. The Council made an apology to Mrs X about the lack of provision for Y. The apology was brief. It did not acknowledge the impact of the failings of the Council. Mrs X replied to the officer apologising to thank them. Mrs X said she knew the officer cared about Y.
59. I find fault with the Council for the repeated delay in responding to Mrs X’s complaint. The remedy offered by the Council is in line with our Guidance on Remedies. Mrs X is free to accept the £100, should she choose to do so.
60. I find fault with
• the Councils lack of communication with Mrs X about the delay,
• the stage one complaint response, and
• the quality of the apology made to Mrs X about the loss of provision.
61. Had the Councils reply at stage one been more robust, it may have satisfied Mrs X.
62. Mrs X was unhappy with the Council only considering events from July 2023. She said things went wrong from September 2022 and the Council should consider her complaint from this time.
63. The Councils corporate complaints policy explains it will normally only investigate complaints about things that have happened within the last 12 months. The policy allows for exceptions to this. It says it will treat each situation individually.
64. In the stage two complaint response made by the Council it told Mrs X complaints should be made within 12 months of an incident occurring, or of the complainant becoming aware of an incident.
65. The approach taken by the Council was in line with its complaints policy. I do not find fault with the Council for deciding only to investigate a period of 12 months from the point of complaint. However, the stage two complaint response may have benefited from an explanation about why the Council decided not to exercise its discretion when dealing with Mrs X’s complaint. This may have helped Mrs X to understand its approach.

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Action

66. To remedy the injustice suffered by Y and Mrs X, within 4 weeks of receiving a final decision the Council has agreed to:
• apologise to Mrs X in line with our guidance on Making an Effective Apology. 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,
• make a symbolic payment to Y / Mrs X, of £1000. This is to recognise the uncertainty of the impact of the loss of educational provision and the distress this caused Y, and Mr and Mrs X. This should be made in addition to the £100 the Council offered Mrs X, to recognise its poor complaint handling. In total the Council will pay Mrs X £1,100.
67. The Council should provide us with evidence it has complied with the above actions.

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Decision

68. I find fault causing injustice for both Y and Mrs X. 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