Summary: Mrs X complained the Council has failed to ensure the provision in her son’s Education, Health and Care (EHC) Plan was implemented and fulfilled since April 2023. Mrs X also complained the Council failed to adhere to the statutory timeframes in the annual review process. We found the Council's delays in the annual review process and in issuing final EHC Plans is fault. As is the failure to ensure Y received all of the provisions in his EHC Plan since February 2024. These faults have caused Mrs X and her son frustration, distress and uncertainty. The Council will apologise and make symbolic payments to remedy this injustice.

The complaint

1. Mrs X complained the Council has failed to ensure the provision in her son’s EHC Plan was implemented and fulfilled since April 2023.
2. Mrs X also complained the Council failed to adhere to the statutory timeframes in the annual review process.

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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. 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. Although Mrs X complains her son has not received the provision set out in his EHC Plan since it was first issued in February 2023, we will not consider events going back that far. As set out above we expect complainants to contact us within 12 months of them thinking the Council has done something wrong. As Mrs X contacted us in February 2025 we will investigate events between February 2024 and February 2025.
8. It was open to Mrs X to raise her concerns with us sooner. I do not consider it appropriate to exercise discretion in this instance to consider events prior to February 2024.

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How I considered this complaint

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

Education, Health and Care (EHC) Plan

11. 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 council can do this.
12. 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)
13. 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.
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 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. 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.
16. The council must review and amend an EHC Plan in enough time before to a child or young person moved between key phases of education. This allows planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year in which the child is due to transfer into or between school phases.

What happened here

17. The following is a summary of the key events relevant to our consideration of the complaint. It does not include everything that happened.
18. Mrs X’s son, Y has had an EHC Plan since February 2023. He attended a mainstream school and had been on a part time timetable since July 2022.
19. The school held an annual review of Y’s EHC Plan in February 2024. Mrs X told the review Y was almost back to full time education but she felt there had been minimal progress against the targets in his EHC Plan.
20. Mrs X also contacted the Council on 5 March 2024 to raise concerns about missed provision over the previous 12 months. Mrs X said she had raised concerns in April 2023 that no provision was in place and had been told the school would need time implement the provision and the Council would not consider further involvement until October 2023 half term.
21. She noted Y did not have the key adult support he should have until September 2023. And other interventions detailed in Y’s Plan did not begin until October 2023. Mrs X said that since January 2024 the school had implemented changes to the class timetable which had impacted on Y’s ability to access lessons and the timing of some interventions.
22. Mrs X also requested a personal budget. She said that as the therapeutic interventions in Y’s EHC Plan had not been implemented, they had arranged private psychotherapy for Y since mid-July 2023. As the school had still not trained staff to deliver the therapeutic interventions Mrs X requested a personal budget to fund the private sessions.
23. On 18 March 2024 the Council confirmed it intended to amend Y’s EHC Plan. It also confirmed it would contact Y’s school regarding the provision not implemented.
24. Y’s school told the Council that Y was not currently receiving his full entitlement due to being on a part time timetable. Y attended school from 10am to 1pm on Mondays and 10am to 3pm Tuesday to Thursday. However the plan was for Y to attend full time Monday to Friday by May half term.
25. The school said the only intervention in Y’s EHC Plan that had not been set up was the Programme 1, a programme to manage flexibility of thinking, feelings, thoughts and emotions. This was because it was very similar to another approach to cognitive behavioural therapy (CBT) intervention, Programme 2 which was due to start that term. The school said training in Programme 2 had been delayed as Y’s private therapist and advocate had advised not to carry out therapeutic interventions in school until they said to. The school felt carrying out two different CBT interventions that teach different approaches would not be beneficial. It would be better to develop and establish one approach instead.
26. The school also told the Council it felt it could no longer meet the EHC Plan requirements and asked for advice.
27. Mrs X disputes that the private therapist or advocate had advised School 1 not to deliver the provision. They had said the provision should not be delivered until staff were properly trained.
28. The Council issued a formal notice to amend Y’s EHC Plan on 6 June 2024. It then arranged a meeting with the school and Mr and Mrs X for 12 June 2024 to discuss the provision.
29. Following the meeting the Council wrote to Mrs X and the school confirming the EHC plan had to be finalised by 1 August 2024, eight weeks after the amendment notice. It also set out the amendments to Y’s EHC Plan agreed at the meeting.
30. The Council subsequently confirmed it would not agree additional funding for private therapy and that the school needed to provide the social, emotional and mental health needs (SEMH) provision within Y’s EHC Plan.
31. Mrs X says the Council decision is at odds with Y’s private therapist’s reports which confirmed Y’s SEMH needs and the work they had carried out. The private therapist reiterated that school staff needed to be trained to deliver the SEMH provision, and that Y required this in school alongside the work the private therapist was continuing to do.
32. The Council issued the Final EHC Plan on 2 August 2024.
33. In early September Mrs X and the school raised concerns about the school’s ability to meet the SEMH interventions. The school told the Council it did not feel it had adequate training in CBT. It asked for assistance in training staff in the SEMH programmes and approaches to be used.
34. Mrs X asked the Council how it would ensure Y received the provision specified in in his Plan. The Council told Mrs X it would discuss this with the school as the Council was of the view the provision could and should be provided by the school.
35. The Council asked its SEMH team to provide training to school staff on Programme 1. This was completed on 9 October 2024.
36. As Y was due to move to secondary school in September 2025, the school arranged a transition review of Y’s EHC Plan for 21 October 2024. The Council wrote to Mrs X confirming it would amend Y’s Plan on 4 November 2024 and then issued a notice of amendments on 18 November 2024.
37. Ms X commented on the proposed amendments and again requested a personal budget.
38. The Council’s records show that following the Programme 1 training school had tried a few sessions with Y and decided it was not an appropriate resource for him. The Council’s SEMH team identified another resource. The school thought this more appropriate and asked the SEMH team to carry out the work with Y.
39. The SEMH team asked the Council to clarify the support required as it had limited capacity. The SEMH team noted to carry out the work would require the allocation of an Inclusion Support Practitioner, which was not part of the original request. There is no record of how this was resolved.
40. The Council arranged a meeting with Mrs X for 18 December 2024 to discuss amendments to Y’s EHC Plan. It told Mrs X it was intending to secure a school place for Y for September 2025 by the statutory deadline of 15 February 2025 for primary transitions.
41. Following the meeting the Council agreed to a place at a specialist provision and consulted a number of schools.
42. In January 2025 Mrs X raised further concerns about the school’s implementation of Y’s EHC Plan. She said there were five provisions in Y’s Plan which the school were not providing. Mrs X said Y was not receiving CBT, Programme 1, an anxiety ladder, twice weekly typing practice and executive functioning intervention.
43. The Council contacted the school to check whether SEMH provision was being implemented and for their comments on Mrs X’s concerns about other missed provision.
44. The Council issued Y’s final EHC Plan on 5 February 2025.
45. Y stopped attending school in January 2025 and did not return for the rest of the academic year. My investigation does not consider any events since Mrs X complained to us in early February 2025. Mrs X has made a separate complaint about the Council’s failure to provide any alternative educational provision or SEN provisions since that point.

Complaints

46. Mrs X made a formal complaint to the Council in August 2024 about the Council’s failure to adhere to statutory timeframes for the annual review and the failure to ensure the provisions in Y’s EHC Plan were implemented.
47. In relation to the annual review, Mrs X noted the Council did not confirm Y’s Plan would be amended or send a notice of proposed amendments within four weeks of the annual review meeting. And had not sent the final EHC Plan within eight weeks of the notice.
48. Mrs X also said their attempts to raise concerns about the lack of provision had been dismissed or ignored. She was concerned that when Y returned to school in September 2024 the SEMH provisions would still not be in place.
49. As the Council did not respond to Mrs X’s complaint, she chased the Council on 2 September 2024.
50. The Council responded to Mrs X’s complaint on 21 December 2024. It upheld Mrs X’s complaint about delays in the annual review process and in issuing a final Plan. The Council apologised for these delays.
51. However, the Council did not uphold Mrs X’s complaint that it had failed to implement the provisions in Y’s EHC Plan. It noted the school had confirmed in April 2024 that all provision was in place from September 2023 save for the Programme 1 intervention. This provision was not in place as school and Mrs X had agreed it would not be beneficial for two different CBT interventions to run simultaneously.
52. The Council also noted Mrs X, Y’s private therapist and advocate had asked that the intervention was not implemented through the school. The Council said that as this provision was not implemented at Mrs X’s request it would not reimburse the cost of the private therapy.
53. Mrs X was not satisfied with the Council’s response and asked for her complaint regarding missed provisions to be considered further. The Council reviewed Mrs X’s complaint and responded on 24 January 2025. It did not uphold Mrs X’s complaints.
54. As Mrs X remains dissatisfied she has asked the Ombudsman to investigate her concerns. Mrs X disputes that she had asked the Council not to implement the SEMH provision. Based on Y’s therapist’s advice they believed the provision should be provided by school, but only once staff were trained to deliver it.

Analysis

55. The Council’s failure to complete the EHC Plan annual review in accordance with the statutory timeframes is fault. The whole process should be completed within 12 weeks of the review meeting. The Council took 25 weeks to complete the process following the annual review meeting on 8 February 2024. The Council should have issued a final Plan by 3 May 2024 but did not do so until 2 August 2024.
56. There were also delays in completing the annual review process for Y’s transition to secondary school. There is an additional requirement that the review and any amendments must be completed by 15 February when a child is moving between key phases of education. But the review process should still be completed within 12 weeks. In this instance it took the Council took 15 weeks to complete the process and issue a final Plan.
57. The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the require timeframes here is fault.
58. The delay in completing the annual review and in issuing an amended final EHC Plan caused Mrs X frustration and uncertainty and put her to unnecessary time and trouble. It also delayed her right of appeal to the SEND tribunal. The Council should make a symbolic payment to recognise the frustration and distress Mrs X has experienced.
59. The Council’s failure to ensure Y received the provision set out in his EHC Plan was also fault.
60. The Council was aware from at least early March 2024 that Y was not receiving all of the SEN provision set out in his EHC Plan, in particular the SEMH intervention. The Council refused Mrs X’s request for a personal budget on the basis the provision could be provided within school. But it is clear school did not provide Programme 1 or similar interventions.
61. Although the school received training in CBT approaches in April 2024 and in Programme 1 in October 2024, it did not consider staff were adequately trained to provide this intervention and asked the Council for further support. Y did not receive this SEMH provision for the whole of 2024 and it was still not in place when he stopped attending school in late January 2025.
62. The Council’s failure to ensure Y received all the provision set out in his EHC Plan caused Y a significant injustice. The Council should make a symbolic payment to recognise the difficulties and distress Y experienced as a result of this failure.
63. We have recently made recommendations for service improvements in relation to the timescales for annual reviews and ensuring SEN provisions within an EHC Plan are provided. I do not consider it necessary to make further recommendations.

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Action

64. The Council has agreed to:
• apologise to Mrs X and Y for the delays in completing the annual process and in issuing a final EHC Plan, and for not providing all of the provisions in Y’s EHC Plan. 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 £350 to recognise the frustration, distress and uncertainty the Council’s actions have caused her.
• pay Mrs X £1000 in recognition of Y’s missed SEN provision between February 2024 and February 2025. Mrs X should use this for Y’s benefit as she sees fit.
65. The Council should take this action within one month of the final decision on this complaint and provide us with evidence it has complied with the above actions.

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Decision

66. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman