Summary: Ms X complains the Council failed to deliver the content of her child, Y’s, Education, Health and Care Plan between December 2022 and November 2024. Ms X also says the Council failed to amend Y’s EHC Plan following an annual review in summer 2023. Ms X also complains the Council delayed in finalising Y’s EHC Plan following an emergency annual review in April 2024 and refused to provide home-to-school transport for Y at their new placement. Ms X says this caused Y to miss provision and caused distress for their family. We have found fault in the Councils actions for failing to provide the provision listed in section F and for the delay in issuing Y’s updated Education, Health and Care Plan. The Council has agreed to issue Ms X with an apology and pay her a financial payment.

The complaint

1. Ms X complains the Council failed to deliver the content of her child, Y’s, Education, Health and Care (EHC) Plan between December 2022 and November 2024. Ms X also says the Council failed to amend Y’s EHC Plan following an annual review in summer 2023. Ms X also complains the Council delayed in finalising Y’s EHC Plan following an emergency annual review in April 2024 and refused to provide home-to-school transport for Y at their new placement.
2. Ms X says this caused Y to miss provision and caused distress for their family.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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 has done. (Local Government Act 1974, sections 26B and 34D, 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(1), as amended)
6. 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 have and have not investigated

7. I have not investigated Ms X’s complaint about school transport as Ms X has not completed the appeals process regarding this decision.
8. I have not investigated Ms X’s complaint about the delay in completing the review of Y’s EHC Plan in summer 2023 as this complaint is late and I cannot see a good reason this could not have been brought to us sooner.
9. I have not investigated Ms X’s complaint the Council failed to deliver the content of Y’s EHC Plan between December 2022 and January 2024. This is because the complaint is late, and I cannot see a good reason it could not have been brought to us sooner.
10. I have considered Ms X’s complaint the Council failed to deliver the content of Y’s EHC Plan between January 2024 and November 2024.
11. I have also considered Ms X’s complaint the Council delayed in finalising Y’s EHC Plan following an emergency review in April 2024.

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How I considered this complaint

12. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
13. Ms X and the Council were invited to comment on my draft decision. I have considered any comments before making a final decision.

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What I found

14. 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) 
15. 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.
16. 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.

EHC Plan – Maintaining a plan

17. 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)  
18. 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. 

What happened

19. The Council issued a final amended EHC Plan for Y in August 2023. This included Speech and Language Therapy (SaLT), Occupational Therapy (OT) and a package from an autism outreach provision in Section F. The plan noted a review of OT provision had been agreed to take place in July 2023.
20. Ms X contacted the Council in March 2024 and said she was concerned about Y’s placement and the provision which was in place for Y. Ms X asked for a change of placement. The Council responded to say an emergency review would need to take place to change Y’s placement.
21. The Council completed an emergency review in mid-April 2024. The Council says it discussed the provision with Ms X and felt the placement was delivering the provision. The Council says Ms X no longer felt the placement was suitable for Y and requested a change of placement. The review documentation also says that OT provision was removed at the last annual review due to Y not wanting to leave to have this.
22. The Council issued an intention to amend letter in late May 2024 which noted Ms X’s request to change the placement.
23. The Council consulted with Ms X’s preferred placement in June 2024 and took the case to panel in mid-July 2024. The panel declined the change of placement and requested more work be completed to see if the original placement could meet Y’s needs.
24. The Council contacted the autism outreach programme to obtain its views on the change of placement and also contacted the original placement in mid-July 2024.
25. The case was re-submitted to panel in mid-September 2024.
26. Mrs X raised a complaint with the Council in late September 2024 about the provision Y was receiving and the delay in completing Y’s EHC Plan following the emergency review.
27. The Council agreed to name Ms X’s preferred placement in late September 2024.
28. The Council responded to Ms X’s complaint in late October 2024 and apologised for the delay in naming Ms Y’s preferred placement.
29. The Council issued a final amended EHC Plan for Y in mid-November 2024.

Analysis

EHC Plans – Reviewing a plan

30. The Council has accepted there was a delay in completing the emergency review. It says this was because it was working with the original placement and professionals to try to resolve matters. The council apologised to Ms X for the delay.
31. While I welcome the Council accepting the delay an apologising I do not think this goes far enough to address the injustice caused to Ms X and Y.
32. The Council completed the review in April 2024, issued an intention to amend letter in May 2024 and did not issue a final plan until November 2024. This is 12 weeks over the time allowed to issue the final plan after a review and is fault. This has caused Ms X distress and has delayed her access to appeal rights.

EHC Plans- maintaining a plan

33. The Council says it satisfied itself that the placement were providing the elements detailed in Section F of the EHC Plan. SaLT and the autism outreach provision have been mentioned as being in place. However, OT provision does not seem to have been in place. The emergency review documentation refers to how this had been removed but the provision remains in the 2023 and 2024 EHC Plan. Both the 2023 and 2024 plans refer to an assessment in July 2023 in relation to OT but the result of this does not appear to have been recorded. I have not been able to see the OT provision was in place in accordance with Section F. This is fault. Ms X would have been caused distress by this and Y has missed out on provision.

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Action

34. Within four weeks of a final decision, the Council should:

• Write to Ms X to apologise for the distress caused by the faults identified. 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 Ms X £750 for the missed Occupational Therapy provision. This is calculated at roughly £250 per term.
• Pay Ms X £300 to recognise the distress caused by the delay in issuing Y’s amended EHC Plan.

35. The Council should provide us with evidence it has complied with the above actions.

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Decision

36. I find fault causing injustice.

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Investigator's decision on behalf of the Ombudsman