Summary: Mrs X complained that the Council failed to secure the provision set out in Mr Y’s Education, Health and Care Plan and failed to review the plan within statutory time limits. We find the Council at fault for not securing all the provision and for delays in completing a review of the plan. The Council has agreed to apologise and make a payment to recognise the injustice.

The complaint

1. Mrs X complains that the Council has failed to deliver the provision set out in her son, Mr Y’s Education, Health and Care (EHC) Plan following a previous Ombudsman decision in October 2023 and failed to complete Mr Y’s most recent EHC Plan annual review within the statutory time limits. As a result, Mrs X says Mr Y has not received the SALT provision he is entitled to, and she has had to do a significant amount of chasing.

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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 law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
6. 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

7. Mrs X previously complained about the Council’s failure to secure Mr Y’s EHC Plan provision. We issued a decision on that complaint in October 2023. I have not re-investigated any of the issues raised, but I have considered the actions the Council has taken since then.
8. I have investigated from the decision of October 2023, up until Mrs X brought her new complaint to the Ombudsman in December 2024.
9. Miss X has also complained about the content of Mr Y’s EHC Plan, including the named provision and educational setting. Mrs X has the right to appeal the content of Y’s EHC Plan to the SEND Tribunal and it would be reasonable for her to use that right so I have not investigated this element of her complaint.

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How I considered this complaint

10. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
11. 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

Relevant law and policy

12. A child with special educational needs (SEN) may have an EHC plan. This 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 education or name a different school. Only the tribunal can do this.
13. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
14. The process for reviewing and amending EHC Plans is set out in legislation and government guidance. Councils must review EHC Plans once a year, and the annual review must take place within 12 months of the date of the previous EHC Plan.
15. Annual reviews are made up of two parts. The first stage is the review meeting, which is usually organised by the child or young person’s school or college on behalf of the Council. Following the meeting, the school or college sends the review paperwork to the Council. The second stage of the annual review is the Council’s decision notice. Within four weeks of the meeting, the Council must tell the child or young person’s parent (or the young person themselves) whether it has decided to maintain, amend or discontinue the EHC Plan. (Section 20(10) Special Educational Needs and Disability Regulations 20154 and SEN Code paragraph 9.176)
16. Where a 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 (an amendment notice, also known as a draft plan) providing details of the proposed amendments, including copies of any evidence to support the proposed changed. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code Paragraph 9.194). It must do so ‘without delay’.
17. Following comments from the child’s parent, or the young person, if the Council decides to continue to make amendments, it must issue the amended EHC Plan as soon as practicable and within eight weeks of the date it sent the existing EHC Plan and amendment notice to the parents. (Section 22(3) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.196)
18. 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.
19. Parents have a right of appeal to the SEND Tribunal if they disagree with the Council’s decision to cease their child or young person’s EHC Plan. Parents can also appeal the special educational provision, or the school named in the EHC Plan. Parents can only appeal the content of an EHC Plan, including the school named, once a Council issues a final plan.

What happened

20. I have summarised below some key events leading to Mrs X’s complaint. While I have considered everything submitted, this is not intended to be a detailed account of what took place.
21. Mr Y has SEN and his education is supported by an EHC Plan.
22. Mr Y was in a post-16 educational setting that was named in his EHC Plan, School A, and the plan provided for:
• A small learning environment with a differentiated curriculum.
• Supervision during unstructured times of the day.
• Staff to offer alternative ways of communication such as whiteboards.
• 1 to 1 weekly Speech and Language Therapy (SALT).
• Small steps programme under the direction of a SALT.
• SALT to be continually monitored and recommendations re-viewed at least annually.
• Individual education plans/targets.
• Weekly social skills class to help develop social interaction.
23. Mrs X complained to the Ombudsman in 2023 that the Council had not provided Mr Y with the special education provision in his EHC Plan.
24. An Ombudsman decision in October 2023 found the Council had not put measures in place to ensure Mr Y was receiving his EHC Plan provision. The decision recommended the Council pay Mrs X £3,000 to recognise the injustice to that point and pay £400 per month until Mr Y’s provision was put in place.
25. From September 2023, the Council had secured the majority of Mr Y’s provision at a specialist training centre, School B, however this did not include the SALT provision or weekly social skills classes.
26. Mr Y’s annual review was due on 1 February 2024, but did not take place until 16 April 2024, approximately ten weeks late. During the annual review meeting, Mrs X raised concerns that Mr Y was not receiving the SALT provision or weekly social skills classes.
27. In June 2024, the Council issued Mr Y a cheque for £1,200 to recognise the missed SALT provision for the academic year 2023/24. This was made up of £150 per month for the eight months he was due to receive the provision within that time.
28. The Council provided draft amended plans for Mr Y in June 2024 and July 2024 but did not issue a final amended plan before Mr Y decided not to return to School B for the academic year 2024/25.
29. As Mr Y did not return to School B, the Council held an early annual review of his EHC Plan on 7 October 2024 to discuss what he wanted to do going forward.
30. The Council issued a final, amended EHC Plan for Mr Y on 23 December 2024, around eight months after the initial annual review should have been completed.
31. In response to our enquiries, the Council has said Mr Y continued not receiving the SALT set out in his EHC Plan for the current academic year and has offered to pay him a further £150 per month to address this.

Analysis

Failure to secure provision

32. The Council is under a duty to secure all the Section F provision set out in Mr Y’s EHC Plan. Failure to do so is fault. The Council did not secure any SALT provision or weekly social skills classes for Mr Y across the timeline I have investigated. This is fault and meant Mr Y did not receive all the provision he is entitled to, which is injustice.
33. The Council has already paid Mr Y £1,200 to recognise the injustice up until June 2024 and it has now agreed to pay a further £150 per month in recognition of the injustice beyond that point across the timeframe I have investigated. I find this is a suitable remedy to the injustice Mr Y has suffered.
34. Mrs X has said the previous Ombudsman decision stated the Council should pay £400 per month where it did not secure provision for Mr Y. However, since that decision, the Council secured the majority of Mr Y’s provision and so I find it is reasonable to adjust that figure accordingly and I am of the view £150 per month is a suitable recognition of the missing provision.

Delays in completing annual review

35. Mr Y’s EHC Plan was due to be reviewed on 1 February 2024. If the Council had completed this process in line with the statutory time limits, the final amended EHC Plan would have been issued by 25 April 2024. The Council did not issue a final amended EHC Plan for Mr Y until 23 December 2024, around eight months late.
36. While I appreciate the Council had to carry out a second review meeting in that time, that does not change the Council’s statutory duty to have completed an annual review within statutory time limits and failure to do so is fault.
37. The delays caused uncertainty and distress for Mr Y and Mrs X and delayed their right to appeal to the tribunal, which is injustice.

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Action

38. To remedy the injustice set out above, the Council should carry out the following actions within one month:
• Provide a written apology to Mrs X and Mr Y for failing to secure all of Mr Y’s EHC Plan provision across the timeline I have investigated, and for the delays in completing his EHC Plan review. 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 the additional £150 per month it has offered to cover the further months of missed provision between June 2024 and December 2024.
• Pay Mrs X £500 to acknowledge the uncertainty and frustration caused by the failure to complete Mr Y’s annual EHC Plan review within statutory time limits.
39. The Council should provide us with evidence it has complied with the above actions.

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Decision

40. 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