Summary: We upheld Miss X’s complaint about the way the Council handled her daughter’s education, health and care plan. The Council failed to secure the provision in the plan, and delayed carrying out reviews and issuing amendments to the plan. As a result, Miss X’s daughter did not receive all the provision she was entitled to. To remedy the injustice caused, the Council agreed to apologise to Miss X and her daughter and make a payment to recognise the lost provision and the provision Miss X paid for.

The complaint

1. Miss X complains about the way the Council has handled her daughter Y’s education, health and care plan. She says the Council failed to follow the correct procedure for reviewing and making changes to the plan. She also says it has failed to secure the provision in the plan. Miss X says this has left Y without the support she is entitled to and contributed to a deterioration in her health, as well as causing stress to Miss X. Miss X would like the Council to reassess Y’s needs, apologise and make a payment to recognise the impact on them both.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. SEND is a tribunal that considers special educational needs. We cannot investigate a complaint when someone can appeal to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
4. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
5. If we are satisfied with a council’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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How I considered this complaint

6. I have considered the complaint made by Miss X and the documents she provided.
7. I considered the Council’s comments about the complaint and the documents it provided in response to my enquiries.
8. I took account of the following Ombudsman’s focus reports:
• ‘Education, Health and Care Plans: our first 100 investigations’ published in October 2017.
• ‘Not going to plan? Education, Health and Care Plans two years on’ published in October 2019.
9. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
10. Under our information sharing agreement, I will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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What I found

Law and guidance

Education, health and care plans

11. The Children and Families Act 2014 sets out how support will be provided to children with special educational needs and disabilities (SEND). The ‘Special education needs and disability code of practice’ (‘the Code’) gives more details about how councils, schools and others should carry out their duties.
12. The Act says councils must have regard to:
• the views, wishes and feelings of children and their parents; and
• the importance of children and their parents taking part as fully as possible in decisions.
13. A child with special educational needs may have an education, health and care (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 SEND tribunal can do this.
14. The Council must make sure that arrangements named in the EHC plan are put in place. We can look at complaints about this, including where support set out in the EHC plan has not been provided, or where there have been delays in the process.

Reviewing EHC plans

15. Councils must review EHC plans at least annually. The first review must be held within 12 months of the date the EHC plan was issued, and then within 12 months of any previous review.
16. The review should focus on the child’s progress towards achieving the outcomes specified in the plan and consider whether the outcomes and supporting targets remain appropriate. Professionals across education, health and care must co-operate with councils during reviews. Councils can consider holding an early review if there is a change in the child’s circumstances.
17. When a child attends a school, councils can require the school to arrange and hold the review meeting. The school must give those invited at least two weeks’ notice of the date of the meeting. It must also seek advice and information about the child from all parties invited, including the child’s parent, and send any advice and information gathered to all those invited at least two weeks before the meeting.
18. The school must prepare and send a report to everyone invited within two weeks of the meeting, setting out recommendations on any amendments required to the plan.
19. Within four weeks of the review meeting, the council must decide whether it will keep the EHC plan as it is, amend it, or cease to maintain it, and tell the child’s parents. If the council intends to amend the plan, it should start this without delay.
20. When a council proposes to amend a plan, it must send the child’s parents a copy of the existing plan and a notice explaining the proposed amendments. Parents may ask for a meeting with the council to discuss the proposed changes.
21. Councils must give parents at least 15 calendar days to comment and make representations on the proposed changes to a plan. The Council has eight weeks from its amendment notice to issue the final amended plan.
22. For young people moving from secondary school to a post-16 institution or apprenticeship, the review and any amendments to the EHC plan – including specifying the post-16 provision and naming the institution – must be completed by the 31 March in the calendar year of the transfer.
23. A parent can request a reassessment of their child’s needs. A council can refuse to carry out a reassessment if they think one is not necessary. Councils must notify parents of their decision about whether it will carry out a reassessment within 15 calendar days of the parent’s request. It must notify the parent of their right to appeal to the SEND tribunal about the decision.

Impact of COVID-19

24. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to Covid-19”.
25. In response to the pandemic, schools in England closed on 20 March 2020. The children of keyworkers and vulnerable children, which included those with EHC plans, could still attend if it was appropriate for them to do so. Schools closed again between January and March 2021 though remained open for the same group of children.

What happened

2018

26. The Council issued an EHC plan for Y in September 2018, shortly after she started at a new school. She was in year 9. This recorded Y had been diagnosed with an autistic spectrum condition and had social and emotional needs which affected her social interaction and learning in class. The plan contained 22.5 hours of learning support assistance as well as other support to be provided by Y’s school in and out of the classroom. It included speech and language and occupational therapy. The occupational therapy provision included:
• Y should continue to use her earplugs when she feels safe to do so in school.
• Y should have use of a variety of ‘fiddle toys’.
• A recommendation that Y participate in swimming up to twice a week.
27. The Council provided Y’s school with additional funding to deliver the 22.5 hours of learning support assistance and said this would be reviewed by the end of December.
28. In November, Miss X contacted the Council to express concerns Y was not receiving all the provision in her plan. The Council shared these concerns with Y’s school and asked it to arrange an interim review meeting.
29. In December, Miss X submitted invoices to the Council for support she had paid for. This included equipment for Y to use in school to address her special educational needs, and swimming lessons. The Council’s SEND panel decided not to pay the invoices Miss X provided. It said it would not fund swimming lessons outside of school hours, because this part of her EHC plan “appeared to be a general recommendation rather than provision”. It also said the school should provide fiddle toys at no extra cost.
30. At the end of December, the Council stopped providing additional funding to Y’s school to pay for the support in her EHC plan. It did not tell Miss X the funding had ended.

2019

31. Early in the new year, the Council shared the outcome of the SEND panel with Miss X. It also contacted Y’s occupational therapist to ask for alternatives to swimming which could be recommended to meet Y’s needs. The occupational therapist said sensory activities could be implemented throughout the school day and sensory equipment could be provided by the school. They said Miss X would need to speak to Y’s school about funding sensory equipment.
32. Y’s school held a meeting in January. The minutes show Y had settled in well, although some provision had not yet been delivered. There was no discussion about reducing Y’s hours of learning support assistance or that the Council had stopped paying for the support.
33. At the end of January, the Council’s finance team contacted Y’s SEN caseworker to ask if the additional funding which had been in place since September 2019 had been extended. In early February, Y’s school asked the Council what needed to happen to keep the funding in place so it could continue to deliver support for Y. The Council said although the funding reduction was not discussed at the meeting in January, the school would need to provide evidence of why there was an ongoing need for additional funding.
34. Records provided by the Council show there was then a five-month gap in communications between the Council and the school. During this time, Y’s school says it provided Y with:
• 10.5 hours learning support assistance each week.
• One hour’s support a week to allow her to share her anxieties and discuss her concerns with an adult.
• One hour a week to support her with her emotional health and friendships.
• Four hours at homework club each week.
• 30 minutes a day to complete physiotherapy and occupational therapy exercises.
• Fortnightly speech and language therapy intervention.
35. Discussions about the additional funding continued between the Council and the school through the summer. In September the Council held a meeting with Y’s school to resolve the issue. Miss X was not present. The school asked for just over £450 additional funding to continue to provide the support outlined in paragraph 34. The Council said a request for additional funding would need to go to the SEND panel. The SEND panel agreed to backdate the requested funding to January 2019 because Y’s school had continued to provide these hours of support. It said it would fund 10 hours of learning support assistance going forward.
36. Also in September, Miss X started to raise concerns with Y’s school and the Council that Y’s EHC plan was not meeting her needs. She said some of it was outdated and some of it was not being delivered. She asked for information about what provision had been put in place for the previous school year and asked for an early EHC review meeting.
37. Y’s school confirmed additional funding ended in December 2018 but had recently been reinstated. The school said it had continued to ensure Y received the same level of support despite the Council withdrawing funding. It began to arrange a review meeting.
38. The Council issued an amended final plan in October reducing Y’s hours of learning support assistance to 10 hours a week. No review meeting had taken place and the Council had not issued a draft for Miss X to comment on. The amended plan included the occupational therapy provision outlined in paragraph 26. Miss X did not appeal to the SEND tribunal.
39. Y’s school held her annual EHC review meeting in December. The minutes of the meeting reflect Y was making excellent progress and suggested some changes to the outcomes in her plan. Miss X later raised several concerns about the meeting. She said therapists invited to the meeting did not review Y’s progress before it took place, did not provide reports before the meeting and some did not attend. She was also unhappy with the time taken to arrange the review.

2020

40. Y’s school provided the Council with its report of the annual review meeting in January and the Council notified Miss X of its decision to amend Y’s plan in early February.
41. In the same month, Miss X complained to the Council about its handling of Y’s EHC plan and annual reviews. She said no changes had been agreed to Y’s plan in her previous annual review and she was unhappy the Council had reduced the weekly hours of support.
42. The Council investigated at both stages of its complaint procedure. It said the minutes of the meeting held in January 2019 showed there was no discussion about the number of hours support Y received or whether they needed to change. The Council said it did not consider this meeting to be a formal annual review. The Council said it should have carried out a formal review of Y’s EHC plan before it reduced the additional funding because this affected the provision Y received. The Council apologised that it had not made Miss X aware of its decision about additional funding at the time. The Council also said it should not have issued a final amended plan in October 2019 because it had not issued an amendment notice or given Miss X an opportunity to comment on the changes. It apologised for this.
43. The Council said it would arrange a meeting to understand what had gone wrong in Miss X’s case. It identified the following learning:
• The Council needed to be open and transparent with Miss X if it intended to make changes to Y’s EHC provision.
• It needed to follow legislation to ensure Miss X had an opportunity to comment on any proposed amendments to Y’s plan.
• It should not issue a final amended plan without first sending an amendment notice.
• It needs to give adequate time for parents to respond to amendment notices.
44. In response to my enquiries the Council said it held a ‘lessons learned session’ with the officers involved in Y’s case in early July and shared the main points of discussion with the wider team in August. The Council said it has also delivered further training about annual reviews and communication since it responded to Miss X’s complaint. It has also set up a monthly Quality Assurance Board to review the quality of EHC plans and identify areas for improvement.
45. The Council issued draft plans in February, March, and July. Miss X provided comments and suggested amendments to the plan. She queried whether the EHC plan should be amended at all given her concerns about the annual review process. She sent a formal complaint about the annual review meeting in December 2019 to the Council in June 2020. The Council did not respond.
46. The Council issued a final plan in August. Miss X did not appeal to the SEND tribunal.

Analysis

47. I cannot consider the actions of Y’s school or therapists from outside the Council in arranging and participating in Y’s annual reviews. As the body arranging the meetings the school was responsible for obtaining advice and information about Y and circulating it in advance of the meeting. Education, health and care professionals are required to cooperate with the review process. The actions of the school and professionals external to the Council are not in the Ombudsman’s jurisdiction.
48. I also cannot consider the provision set out in Y’s amended final EHC plans or the Council’s decision in response to Miss X’s request for a reassessment of Y. This is because Miss X has a right of appeal to the SEND tribunal and the law says the Ombudsman cannot investigate where someone can appeal to a tribunal.
49. The Council has accepted some of the faults in its handling of Y’s EHC plan and annual reviews in its response to Miss X’s complaints. It apologised for these faults and identified some service improvements.
50. I have found further fault in the Council’s handling of Y’s case.
51. The Council is responsible for securing the provision in Y’s plan. From September 2018 to October 2019, the plan included 22.5 hours of learning support assistance each week. I note the Council says in its view Y did not require this number of hours of support. In that case, the Council should have taken steps to formally amend Y’s plan. Until the final amended plan was issued, the Council had a duty to secure 22.5 hours of support for Y. Its failure to do so is fault and means Y missed out on some of the support she was entitled to for two and a half school terms.
52. The Council is also responsible for securing the occupational therapy provision within the plan. The Council says it did not consider swimming to be education provision. But it had included this provision in the section of Y’s EHC plan which set out what special educational needs provision she required to meet her special educational needs. Again, if the Council felt this provision was not necessary it should have taken steps to amend the plan. Instead, swimming remained in Y’s plan until August 2020 and the Council failed to secure this provision. It also said Y’s school should provide sensory equipment but there is no evidence it discussed this with the school. This was fault. As a result, Miss X incurred costs securing this provision for Y herself.
53. The Council’s handling of Y’s EHC plan has also been marked by delay:
• Given the Council accepts the meeting held in January 2019 was not an annual review meeting, it should have ensured Y’s school held an annual review of Y’s EHC plan by September 2019. It did not hold an annual review until December 2019.
• When it decided to amend Y’s plan in February 2020, the Council should have started the amendments without delay. Once it had made Miss X aware of the amendments it should have issued a final amended plan within eight weeks. The Council took 25 weeks.

These delays caused frustration for Miss X and undermined her confidence in the Council’s handling of her daughter’s case.

54. I do not consider the remedy provided by the Council to be sufficient for the injustice caused by the faults identified. I have therefore made further recommendations below, in line with our Guidance on Remedies.

Agreed action

55. Within one month of this decision, to remedy the injustice caused, the Council will:
• Apologise to Miss X and Y for the additional faults identified in this investigation.
• Pay £400 to Miss X to remedy frustration caused by the Council’s actions and the time and trouble she has taken to pursue her complaint.
• Remedy the injustice to Y of her lost special educational needs provision by making a further payment of £1,400 to recognise the provision she lost between January and October 2019. Miss X can use this for Y’s educational benefit to ensure she catches up, as far as possible, on provision she missed.
• Reimburse Miss X for the cost of swimming lessons for Y between 18 September 2019 and 24 August 2020.
• Reimburse Miss X for the cost of headphones and sensory items she purchased for Y.
• Share the final decision with all staff involved in the EHC process and highlight the findings at a team meeting, or equivalent.

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Final decision

56. I have completed my investigation and uphold this complaint. Miss X and Y have been caused an injustice by the actions of the Council and it has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman