Summary: Ms X complained the Council failed to secure provision set out in Y and Z's Education, Health and Care Plans, failed to secure Educational Psychology input, failed to complete a review within statutory timeframes, and failed to secure alternative provision while Y was out of school. We find the Council at fault for failing to secure all named provision and for delays in completing a review of Z’s plan, causing uncertainty and distress. The Council has agreed to apologise and make a symbolic payment to reflect the injustice caused.

The complaint

1. Ms X complains about how the Council has acted to secure educational provision for her children, Y and Z. Specifically, Ms X has said:
• The Council failed to secure any speech and language therapy (SALT) provision for Y in the academic year 2023/24, failed to secure Educational Psychology (EP) input as she requested, and failed to secure a specialist school setting to deliver his Education, Health and Care (EHC) Plan provision following a tribunal decision or secure appropriate interim provision while he was out of school.
• The Council failed to secure any SALT provision for Z in the academic year 2023/24, failed to secure EP input as she requested, and delayed issuing a final EHC Plan following an annual review.
2. Ms X says this has caused her real distress and means Y and Z have missed out on education they were entitled to.

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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 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)
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 Ms X and the Council as well as relevant law, policy and guidance.
7. Ms 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

Relevant law and policy

8. A child or young person with special educational needs (SEN) may have an 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 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)  
10. Councils must arrange for EHC Plans to be reviewed at least once a year to ensure they are 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 their educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
11. Caselaw has established that when a Council is amending an EHC Plan, it should take no longer than 12 weeks from the date of the annual review meeting to the date it issues the final amended plan.

What happened

12. I have summarised below some key events leading to Ms X’s complaint. While I have considered everything submitted, this is not intended to be a detailed account of what took place.

Y

13. Y has SEN and his education is supported by an EHC Plan.
14. Y’s EHC Plan named School A, a mainstream school, and provided for:
• 90 minutes of SALT per term to gather information and develop support strategies for school staff;
• 60 minutes per term for the SALT to create a written report;
• A differentiated curriculum and environment, including 1:1 or small group work;
• Identified key support staff; and
• A structured developmental language and communication programme.
15. The Council has said for the academic year 2023/24 Y’s attendance at School A was over 95%.
16. Ms X appealed Y’s EHC Plan. The SEND Tribunal heard the appeal and ordered the Council to issue a new final EHC Plan, naming a specialist school setting. The Tribunal noted this would cause uncertainty as it would take some time to identify an appropriate specialist school.
17. On 1 August 2024 the Council’s tribunal team issued a final EHC Plan for Y. This specified that Y needed a specialist school suitable for pupils with similar SEN but did not name a specific school. The provision within the EHC Plan mirrored that of the previous plan.
18. The Council made a referral to its home bridging team to provide support for Y at home while it continued to consult with other schools. The Council has said alternative home provision was put in place for Y from the start of the academic year in September 2024. The Council continued to consult with schools to try and find a specialist setting for Y.
19. In October 2024, School B responded to say it could accommodate Y and meet his EHC Plan provision.
20. The Council issued a new final EHC Plan for Y naming School B on 9 December 2024.

Z

21. Z has SEN and his education is supported by an EHC Plan.
22. On 3 October 2023 the Council issued a final EHC Plan for Z. This named School A and provided for:
• A structured developmental language and communication programme for 5-10 minutes twice daily;
• A clearly planes programme to develop social interaction and joint attention skills for 5-10 minutes twice daily;
• Adult facilitated interaction and play with peers for 5-10 minutes twice daily;
• 1:1 and small group teaching;
• 90 minutes of SALT per term to gather information and develop support strategies for school staff;
• 60 minutes per term for the SALT to create a written report; and
• A differentiated curriculum and environment with a high level of adult supervision.
23. The Council has said for the academic year 2023/24 Z’s attendance at School A was over 95%.
24. Following an annual review on 26 June 2024, the Council issued a notice to amend Z’s EHC Plan and began consulting with specialist school settings. However, none of the schools the Council consulted with said they could meet Z’s SEN.
25. On 1 November 2024, around six weeks later than the deadline to do so, the Council issued a final EHC Plan for Z. This named School A until July 2025 and mirrored the provision set out in Z’s previous EHC Plan. The Council continued to consult with specialist schools between September 2024 and December 2024.

Complaints

26. Ms X complained to the Council as she said it had failed to secure SALT provision for Y and Z, had failed to obtain EP input, and had failed to secure a specialist school setting for Z.
27. The Council acknowledged it had not secured SALT for Y and Z and apologised for this. The Council explained it had now identified an independent provider to deliver this from the start of the 2024/25 academic year. The Council said it was currently considering Ms X’s request for an EP assessment for Y and Z and said it would provide its answer to this shortly. The Council explained it had considered Ms X’s request for a specialist school setting for Z and had provided her with the outcome of this. The Council explained the SEND Tribunal had instructed it to remove School A from Y’s EHC Plan and name “specialist setting”, acknowledging it may take some time to identify a specific school. The Council explained it was in the process of consulting with schools but had arranged interim home tuition during this time. In recognition of the missed SALT provision, the Council offered to pay Ms X £597. The Council also offered to pay Ms X £300 to recognise the time and trouble she had put to in having to pursue her complaint.
28. Ms X asked the Council to reconsider her complaint as she was unhappy with the length of time it had taken to decide whether to agree to EP input. Ms X also said the Council, should support Y remaining at School A while it sought a specialist school for him. Ms X said the Council had failed to name any school or type of school in Z’s most recent EHC Plan and she wanted to meet with an officer at the Council to discuss the draft.
29. The Council told Ms X its EP team would provide further information for both Y and Z during their next annual reviews. The Council explained School A could not meet Y’s needs but agreed to support his continued attendance there while it sought a specialist school for him rather than continue with the online home tuition. The Council said it had issued a draft EHC Plan for Z without a school type or setting named and it had offered dates to discuss the draft, but Ms X had said she would prefer a final EHC Plan to be issued so she could appeal if necessary and the Council would now do this. The Council reiterated its offer to pay Ms X £897 in recognition of the injustice it had previously identified.

Analysis

30. The Council did not secure the SALT provision set out in Y or Zs EHC Plans for the academic year 2023/24. This is fault and means Y and Z missed out on the provision they were entitled to, and Ms X was caused the distress and uncertainty of having to resolve this, which is injustice. The Council has offered to pay Ms X a total of £597 to recognise the impact of the missed SALT provision to both Y and Z. I find this goes some way towards remedying the injustice to Ms X, Y and Z, but I find the Council ought to take further action to address this.
31. The Council secured SALT provision for Y and Z for the academic year 2024/25 so I do not find it at fault beyond this point.
32. Following the EHC Plans that were issued for Y and Z in the academic year 2023/24, Ms X asked the Council to have Y and Z reviewed by an EP. In response to Ms X’s complaints, the Council has confirmed its EP team would have input for Y and Z at their next annual reviews. I do not find the Council at fault here.
33. Ms X has said the Council failed to secure appropriate interim provision for Y following his EHC Plan being issued in August 2024 and provision being secured for him at School B in December 2024. However, the Council made a referral to its home bridging team to arrange interim provision for Y at home until a suitable placement could be found. On Ms X’s request, the Council then agreed to support Y’s continued attendance at School A until a specialist school placement could be found for him. I appreciate the frustration this would have caused for Ms X, but the Tribunal acknowledged there would be a period of uncertainty while the Council secured a specialist school setting. The Council appears to have followed the right process to try and ensure Y received provision while it sought a specialist school setting and it did not delay in consulting with schools. I do not find the Council at fault here.
34. The Council held an annual review of Z’s EHC Plan on 26 June 2024. Had it completed this on time, the final EHC Plan would have been issued on 16 September 2024. The Council did not finalise Z’s EHC Plan until 1 November 2024, around six weeks late. This is fault. The delays caused uncertainty and distress for Z and Mrs X and delayed Mrs X’s right to appeal to the tribunal. This is injustice.

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Action

35. To remedy the injustice identified above, the Council should complete the following actions within one month:
• Apologise to Ms X for failing to secure SALT provision for Y and Z in the academic year 2023/24 and for failing to complete Z’s EHC Plan annual review within statutory time limits. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended.
• Pay Ms X £400 to recognise the distress, frustration and uncertainty caused by the Council’s failure to secure all of Y and Z’s EHC Plan provision in the academic year 2023/24 and for failing to complete Z’s EHC Plan annual review within the statutory time limits, and the time and trouble Ms X has been put to in pursuing this.
• Pay Ms a total of X £1,200 to recognise the failure to secure SALT provision for Y and Z throughout the academic year 2023/24 and the uncertainty this caused. This is calculated at £200 per term where the SALT provision was missed.
36. The Council should provide us with evidence it has complied with the above actions.

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Decision

37. 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