Summary: Mrs X complained about the way the Council dealt with her son, Y’s education. The Council was at fault for failing to issue the Education, Health and Care plan within statutory timeframes, delaying in completing an annual review, failing to provide provision set out in the plan and poor communication and complaint handling. This caused Y to miss provision and Mrs X and Y frustration, distress and uncertainty. The Council will apologise, complete the annual review, send us an action plan and make payments to recognise the personal injustice caused.

The complaint

1. Mrs X complains about the way the Council dealt with Y’s education. She says the Council failed to:
1. send a final Education, Health and Care (EHC) plan within statutory timeframes;
2. hold an annual review within the expected timeframes;
3. provide provision named in the EHC plan;
4. reimburse her the same fuel costs that it reimburses its staff;
5. provide free school meal equivalent while no school place was provided;
6. respond to her about a financial payment it said it would consider as part of its complaint response;
7. complete actions from her complaint response; and
8. poorly communicated with her and delayed in responding to her complaint.
2. Mrs X says this caused significant distress and a loss of opportunities for Y, who has been out of school. She also says because Y has not had access to the provision he needs, his wellbeing and development has declined. Mrs X says this has caused her significant distress as she has been unable to work as she has to provide the care and support that should have been provided through the provision set out in the EHC plan. It has also caused her financial loss as she had to cover costs that would not be needed if Y had access to the provision he was entitled to.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide there is no worthwhile outcome achievable by our investigation. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
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. 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, 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 Mrs X’s complaint that the Council failed to provide free school meal equivalent while no school place was provided (from November 2019 to April 2023). This is because it would have been reasonable for Mrs X to have complained about this matter to the Ombudsman before September 2024 and I have not seen a good reason to use my discretion to investigate.
8. I have also not investigated Mrs X’s complaint that the Council failed to reimburse her the same fuel costs that it reimburses its staff. This is because the Council agreed to backdate the amount Mrs X requested as part of the complaint process. The Council has also told me that it has since significantly increased the mileage allowance further, and so there is no worthwhile outcome achievable by our investigation.
9. I have investigated the remainder of Mrs X’s complaint. The start date of my investigation is September 2023 and the end date is September 2024.

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How I considered this complaint

10. I have considered the information Mrs X and the Council provided.
11. Mrs X and the Council had the opportunity to comment on my draft decision. I considered these comments before making a final decision.

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What I found

Legislation and guidance

EHC plan 

12. A child or young person with special educational needs 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. 

Reviewing EHC plans

13. 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 take place. The process is only complete when the council issues a decision about the review.

Reassessments of EHC Plans

14. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
15. If the council agrees to an EHC needs reassessment, it has 14 weeks to issue the final EHC Plan from the date it agreed to reassess to the date it issues the final amended EHC Plan.

Maintaining the EHC plan

16. 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)  
17. 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. 

Summary of key events

18. Y is a child with additional needs and an EHC plan. This was reviewed in November 2021.
19. At the end of September 2023, the Council agreed to complete a reassessment of Y’s EHC plan.
20. In late February 2024 the Council sent Mrs X a copy of a draft EHC plan for Y. Mrs X then made some comments and requests for amendments to the EHC plan.
21. Mrs X complained to the Council about the same issues as this complaint at the end of April.
22. The Council responded to Mrs X’s complaint mid-June. The Council accepted:

• it had failed to send a finalised EHC plan within the 14-week timeframe for reassessment of need. The Council said it would send this to her today, and aimed to send the final EHC plan in two weeks time;
• it had failed to hold the annual review meeting within timeframes and it would arrange for this to happen asap;
• it had not provided provision named in section F of Y’s EHC plan, including tutoring, occupational therapy, speech and language therapy and personal assistant support, but said it was taking action to provide this;
• it had failed to hold regular multi-agency meetings and clinical supervision, which was part of Y’s EHC plan, but it was exploring how it could start this; and
• it had poorly communicated with Mrs X.

23. The Council also said it would consider her request for compensation and update her by the end of June.
24. In mid-June, Mrs X told the Council she was unhappy with its complaint response and asked it to escalate to stage two.
25. The Council then issued Y’s final EHC plan in July.
26. The Council responded to Mrs X’s stage two complaint mid-July 2024. In this, the Council:

• acknowledged Y’s EHC plan was finalised on 26 July 2024, which was 44 weeks after it agreed to reassess and a further four weeks after they stated in the stage one complaint response;
• apologised for the impact of the delays on Mrs X, Y and their family;
• accepted there had been a significant delay in completing Y’s annual review;
• accepted it had failed to deliver the provision in Y’s EHC plan. It noted it had still not provided occupational therapy, multi-agency meetings or personal assistant hours for Y; and
• acknowledged further poor communication with Mrs X.

27. The Council also said it would contact Mrs X about a financial remedy to recognise its faults and about securing occupational therapy for Y. In the meantime, it offered Mrs X a financial remedy of £100 to recognise the delay in sending a stage two complaint response, which she declined.
28. The Council completed Y’s annual review meeting mid-November 2024 but has still not completed the review process nor sent the paperwork to Mrs X.
29. The Council has since offered Mrs X a financial remedy but there is no evidence the Council has responded to her queries about this, and she has confirmed the Council had not made a financial remedy payment to her.

Response to my enquiries

30. The Council said it acknowledged delays in issuing Y’s final EHC plan. It said this was caused by significant capacity issues within the SEN service and the complexity of Y’s situation. But Mrs X says the Council agreed to all her suggestions for changes.
31. It told me that during Y’s assessment period, the service was managing over 8,000 EHC plans, with the same staff members that were managing only 4,000 EHC plans previously.
32. In response to this, the Council approved a recruitment campaign in spring 2024, with new officers joining the department in July and August 2024. It restructured its department to have dedicated teams focussing on different aspects of the SEN process to increase effectiveness.
33. The Council also told me it was now holding regular meetings with Mrs X to maintain communication. It also said that regular multi-disciplinary meetings were in place together with clinical supervision for all relevant staff. I note that an occupational therapy assessment with Y had been agreed but the provision had not yet started. But Mrs X says the multi-disciplinary meetings are not in place.

Analysis

EHC plan timeframes

34. The Council agreed to complete a reassessment of Y’s EHC needs in September 2023. It should have issued a final EHC plan 14 weeks after this date, but it did not issue the final EHC plan until July 2024, which is a delay of 30 weeks. The Council’s failure to meet the required timeframes here amounts to fault.
35. This caused Mrs X and Y frustration and distress.
36. The Council has put in place service improvements already and so I will not recommend any further here, but I will recommend remedies for the personal injustice caused to Mrs X and Y.

Annual reviews

37. It is clear from the documentation and the Council’s admissions there have been delays in Y’s case. The Council should have completed an annual review by November 2022 but told me it could not find the paperwork for this and so believes it did not happen, but it did not complete this until November 2024.
38. This considerable delay is fault. This caused Mrs X and Y uncertainty. I cannot say what the outcome would have been had the Council completed an annual sooner. But, its failure to do so means it is unclear whether Y had suitable support by way of an EHC plan.

EHC plan section F provision

39. Y was entitled to support by way of the EHC plan. Councils have a legal duty to secure all the provision named in section F of an EHC plan. In Y’s case, this included tuition hours, occupational therapy, speech and language therapy, referral to an independence provision, personal assistant support, multi-agency meetings and clinical supervision for staff.
40. Mrs X chased this provision several times, and then complained the Council had still not provided this in April 2024. The Council acknowledged in its complaint response in June 2024 that it had not progressed actions to secure this provision for Y. There is evidence the Council did start to take some action after this to secure this provision, however, there was still a significant delay. This is fault, because the Council had a legal duty to ensure the provision in line with section F was secured and provided.
41. This caused Y to miss out on seven provisions as named in section F of his EHC plan. This had a detrimental impact on Y as he has lost out on provision he was legally entitled to, which his EHC plan said he needed to access for his development, wellbeing and to be able to access suitable education. The Council should provide personal remedies to Y to recognise his injustice in relation to these faults.

Communication and complaint handling

42. The Council has already accepted fault and apologised for poor communication throughout the EHC process and a delayed response to her complaint.
43. The Council also said in its stage two complaint response that it would contact Mrs X about a financial remedy and securing occupational therapy for Y. Although it did do this, it delayed in doing so. The Council also failed to respond to Mrs X’s queries about the financial remedy and this payment remains outstanding. This further poor communication with Mrs X is fault, which has caused her further frustration.

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Action

44. Within four weeks of my final decision, the Council will:

• write to Mrs X to apologise for the injustice caused by its faults. 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;
• complete Y’s annual review and send the paperwork to Mrs X;
• send us an action plan detailing how it will secure a trauma expert and ensure that multi-agency meetings are in place;
• make a symbolic payment of £500 to Mrs X, on behalf of Y, to recognise the frustration, distress and uncertainty caused by the delay in reviewing Y’s EHC plan and failing to issue an EHC plan within timeframes;
• make a payment of £350 to Mrs X to recognise the frustration, distress and uncertainty caused to her by the delay in reviewing Y’s EHC plan, failing to issue an EHC plan within timeframes, failing to provide Y’s provision and poor communication and complaint handling; and
• make a payment to Mrs X, on behalf of Y, of £6,000 to reflect the lack of section F provision for Y. This is made up of £1,500 over four terms from September 2023 to September 2024. This payment acknowledges the prolonged delay and the vulnerability of Y. We suggest Mrs X uses this payment for Y’s educational benefit.

45. The financial remedies listed, should replace the Council’s previous proposed financial remedy.
46. The Council should provide us with evidence it has complied with the above actions.

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Decision

I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman