Summary: We have found fault with the Council for delays during the annual review process and issuing of a final amended Education, Health and Care Plan for Mrs X’s son, Y. These delays caused Y to miss out on occupational therapy provision. The Council has agreed to remedy Y’s injustice.

The complaint

1. Mrs X complained the Council delayed issuing her son’s (Y’s) EHC Plan after the annual review, and that it has failed to secure the occupation therapy (OT) provision set out in his EHC Plan. She said the lack of OT has meant that Y is dysregulated in school which is affecting his education.

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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. 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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How I considered this complaint

4. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
5. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and guidance

Education, Health and Care Plan

6. 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.

Maintaining the EHC Plan

7. 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)
8. 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.

Reviewing EHC Plans

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. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
11. 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.
12. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.

What happened

13. Mrs X’s son (Y) has Special Educational Needs (SEN) and has an EHC Plan.
14. In December 2023, Y’s school carried out an annual review of Y’s EHC Plan and sent the paperwork to the Council. After the statutory deadline had passed, Mrs X complained to the Council about the delay.
15. The Council issued a draft amended EHC Plan in May 2024 with a notification of its intention to maintain the Plan. Mrs X requested amendments to the Plan. The Council completed the amendments and issued the final amended EHC Plan by the end of the month.
16. In July, an OT met with Y and reviewed the recommendations set out in his EHC Plan. The OT devised an action plan to be implemented at Y’s school.
17. In response to Mrs X’s complaint, the Council acknowledged that there were delays in processing the annual review, finalising Y’s EHC Plan and responding to Mrs X’s complaint. The Council apologised and said it had made service improvements to address these issues.

My findings

18. There were delays which caused a gap in the OT provision secured by the Council. In response to my enquiries, the Council offered £700 in recognition of the missed provision. This is in line with our guidance on remedies that suggests that the level of financial remedy for missed OT is likely to be lower than that for loss of educational provision.
19. The Council has agreed to pay Mrs X £700 for the missed provision and provide evidence of the service improvements outlined in its stage 3 complaint response to Mrs X.

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Agreed action

20. Within 4 weeks of my decision, the Council has agreed to:
1. Pay Mrs X £700 in recognition of the missed OT provision caused by the delays.
2. Provide evidence of increased staffing and resource allocation to ensure there is sufficient capacity to manage the increased demand for Education, Health and Care Plans within statutory timeframes.
3. Provide evidence of enhanced monitoring and accountability to track the progress of Education, Health and Care Plans from start to finish.
21. The Council should provide us with evidence it has complied with the above actions.

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Final decision

22. I have found the Council at fault for the delays which caused a gap in OT provision for Mrs X’s son, Y.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman