Summary: Miss X complained the Council failed to ensure her daughter, C, received some of the provision set out in her Education, Health, and Care Plan. Miss X also said the Council failed to adhere to statutory time-limits when completing C’s annual review and failed to properly handle her complaint. The Council was at fault for failing to provide some of C’s provision and for failing to adhere to the statutory time limits. It was also at fault for failing to adhere to its complaints procedure and for failing to explain Miss X’s right to challenge its decision on personal budgets. This caused Miss X uncertainty, frustration, and put her to the time and trouble of complaining. The Council has agreed to remedy the injustice caused to Miss X.

The complaint

1. Miss X complained to the Ombudsman on two occasions in April and August 2022. She said:

• The Council had failed to provide some of the provision in her daughter, C’s, Education, Health, and Care (EHC) Plan between May 2021 and November 2022.
• The Council had failed to adhere to statutory time-limits when dealing with and following C’s annual reviews.
• The Council had failed to communicate properly or deal with her complaints.

2. Miss X said this has caused C to miss out on her entitled provision as set out in her EHC plan. She said this has also caused distress, confusion, frustration and put her to the time and trouble of complaining.

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What I have and have not investigated

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
5. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health, and Care Plan.
6. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
7. I have investigated the Council’s actions from May 2021 to November 2022 (when the Ombudsman received the documents it requested from the Council).
8. I have not looked at Miss X’s complaint about the Council’s communication when issuing documents in font size 14. This is concerned with documentation processed for the SEND tribunal. If Miss X was unhappy with this, she could have made the SEND tribunal aware, it is outside of the Ombudsman’s jurisdiction.
9. Miss X made a further complaint about C’s orthotics. I have not investigated this complaint, as it has not been considered by the Council. If Miss X wishes to bring this complaint to the Ombudsman when it completes the Council’s procedures she is entitled to do so.
10. The Ombudsman cannot challenge what is or is not in an EHC plan. This can only be done by the SEND Tribunal.

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The Ombudsman’s role and powers

11. 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)
12. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
13. 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)
14. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We may refer to it as the SEND Tribunal in this decision statement.
15. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

16. I have considered the information and documents provided by Miss X and the Council. We have spoken to Miss X about her complaint. Miss X and the Council have an opportunity to comment on this draft decision. I have considered all comments received before reaching this final decision.

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What I found

Special Educational Needs and Disability Regulations 2014 (SEND) code of practice: 0 to 25 years.

Education, Health, and Care (EHC) plans

17. 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.
18. Section F of an EHC plan sets out the special educational provision required. This must be detailed and specific. Councils must make sure children with an EHC plan get the support they need. The council has a legal duty to provide the special educational provision specified in the EHC plan. The council cannot delegate this duty to a school or other body. If a school’s resources, either financial or expertise, cannot make the provision outlined in the plan, the council must provide it.
19. EHC plans should be used to actively monitor children and young people’s progress towards their outcomes and longer-term aspirations. They must be reviewed by the Council as a minimum every 12 months.

Personal Budgets

20. A personal budget is the notional amount of money that would be needed to cover the cost of making the special educational provision specified in an EHC plan. The Council is obliged to consider identifying a personal budget for educational provision if the parent/ carer requests one when it issues a draft EHC plan or when it is reviewing an EHC plan. 
21. The Code says if a council refuses a request for a personal budget, it must set out its reasons in writing and inform the parent of their right to request a formal review of the decision. The council must consider any subsequent representation made by the parent and notify them of the outcome, in writing, setting out reasons for the decision.

Complaint handling

22. The Council’s complaints procedure says it will respond to a complaint at stage one within 10 working days. It says its timeframe to respond to a complaint at stage two is 20 working days.

What happened

23. Miss X’s daughter, C, has complex needs and has an EHC plan which the Council maintains.

May 2021 until December 2021

24. In late May 2021, the Council issued Miss X with documentation for C’s upcoming annual review. It said this allowed Miss X time to review it.
25. The Council said C’s school was unable to hold a face-to-face annual review due to the Covid-19 pandemic. It said it had offered to hold the annual review virtually but said Miss X asked for a face-to-face meeting and said she had not received the necessary documents. The Council said it tried to accommodate Miss X’s request.
26. C’s Speech and Language Therapist (SALT) also sent an email to Miss X and the Council detailing C’s Speech and Language Therapy (SLT) summer term programme, showing the scheduled sessions and dates.
27. Miss X sent her views to C’s school, she also asked questions about the delivery of C’s SLT provision and copied the email to the Council.
28. C’s school held her annual review on 11 June 2021. It decided to amend C’s EHC plan.
29. C’s SALT did not attend the annual review but provided a report on C’s progress. The report noted C was ‘doing well’ and had been provided with the provision as set out in her EHC plan with a six-week block delivered in the spring term of 2021. She said she intended to complete a six-week block of SLT in the summer term of 2021 in line with the schedule provided.
30. C’s SALT said Miss X had been updated on C’s SLT progress and said the targets and objectives remained appropriate.
31. Miss X contacted C’s school and raised concerns about the proposed amendments to C’s SLT provision following the annual review. Miss X said C’s SALT did not have the relevant experience to deal with C’s complex issues, was not following the EHC plan, and had failed to act in C’s best interests.
32. Miss X also asked the Council to consider her personal budget request for C to access therapies. The Council said it considered Miss X’s request but did not approve it.
33. C’s SALT left employment at the end of the summer term of 2021. The Council issued Miss X with C’s final EHC Plan on 17 August 2021, it also provided details of C’s new SALT with a link to the therapist’s work profile.
34. The Council issued a further amended final EHC Plan on 22 September 2021. It asked C’s school to provide Miss X with a copy.
35. Miss X complained C’s new SALT had not communicated properly with the family. The Council apologised and said it would discuss this with C’s new therapist.
36. Miss X also said she had been sent an older version of C’s EHC plan. She asked the Council to provide her with C’s current EHC plan and questioned whether C’s school were working with the correct version.
37. It was around this time Miss X used her right of appeal to the SEND tribunal.
38. The council emailed Miss X a copy of the further final amended EHC Plan on 30 November 2021.

January to November 2022

39. Miss X complained to the Council in early January 2022. She said:

• The Council had failed to ensure C’s EHC plan provision was delivered.
• The Council had not followed statutory time limits when dealing with C’s annual review in 2021.
• The Council had failed to follow up appointments with a feeding specialist.
• She was concerned she had not had any input into C’s targets and outcomes and C’s school had not provided access to her therapy book.

40. The Council issued its stage one response on 24 January 2022 and said it was unclear what specific provision Miss X was complaining about. It did not uphold this part of the complaint. It said the LGSCO had already investigated her complaint for the timeframe 2019 until April 2021. It also said:

• Miss X had a right of appeal to the SEND tribunal if she disagreed with the contents of C’s EHC plan that was issued on 22 September 2021.

• It accepted the annual review was four months late. However, it did not uphold Miss X’s complaint as it said there had been a concerted effort to arrange and re-schedule the meeting that took place in June 2021.
• C’s SALT ended her employment in July 2021, and it could not comment on Miss X’s complaint as she no longer worked for the Council.
• It partially upheld Miss X’s complaint about her request for a personal budget. It said it had considered her requested and had emailed her on 2 July 2021 with its decision, however, it accepted it had failed to explain how she could challenge this decision.
• The Council did not have any oversight about C’s access to follow up appointments at the feeding clinic as this was part of healthcare provision. It told Miss X she could refer C to a clinic for advice.

41. Miss X remained dissatisfied and asked the Council to consider her complaint at stage two.
42. The Council issued a further amended final EHC plan on 10 February 2022.
43. The following day, Miss X contacted the Council and said it had failed to provide C with access to her sensory integration (SI) room, that C had missed her hydro sessions, and that she had not seen C’s therapy diary.
44. The First-tier Special Educational Needs and Disability (SEND) Tribunal ordered changes to C’s EHC plan on 8 March 2022.
45. The Council responded to Miss X’s complaint at stage two of its complains procedure in March 2022. It reiterated its stance from its stage one response and said:

• It had followed up Miss X’s concerns about missed provision with C’s school and had told her this in its stage one response.
• The Ombudsman had already considered and ruled on parts of Miss X’s complaint.
• C’s school had offered to hold C’s annual review virtually in 2021, however, it said Miss X had refused this and wanted a face-to-face meeting, and this was the reason for the annual review being delayed.
• If Miss X was unhappy with the content of C’s EHC plan she would need to appeal to the tribunal.

46. C’s school held her annual review on 24 March 2022.
47. The Council issued C’s final amended EHC plan on 12 April 2022. Section F of the EHC plan was amended to add C was to be reviewed by a feeding specialist every six months as part of her OT programme.
48. Miss X made a further complaint to the Council. She said it had failed to attend C’s annual review, failed to communicate properly with her and she said there was an overall lack of care towards C.
49. The Council responded to Miss X’s further complaint in April 2022. It accepted it had not attended C’s recent annual review; however, it noted the staff member that was due to attend could not because they had to take emergency leave. It disagreed with Miss X’s assertion it had not communicated properly with her and disagreed there was an overall lack of care towards C.
50. Miss X raised concerns with C’s school that she was reluctant to attend and was unhappy and asked for a change of placement.
51. C’s school contacted the Council in late April 2022. It informed the Council of C’s reluctance to attend school and said there was an issue with the delivery of C’s therapy provision, specifically, horse riding. However, it noted C had access to this.
52. Miss X raised a further complaint with the Council on 18 May 2022. This again reiterated she believed C was not receiving adequate educational provision as stated in her EHC plan. Miss X said the Council had also failed to adhere to statutory time limits following C’s annual review.
53. The Council issued Miss X with a further amended final EHC Plan on 26 May 2022.
54. It responded to Miss X’s May 2022 complaint under stage one of its complaints policy. It said there had been a short delay following C’s annual review. However, while there had been initial delay, it said it had completed and issued Miss X with C’s final amended EHC plan within the statutory time limits and therefore felt that it had adhered to the time limits overall.
55. The Council issued a further amended final EHC plan on 15 June 2022.
56. In July 2022, the Council noted Miss X had consistently complained C had not been reviewed by a feeding specialist.
57. The Council contacted C’s school as well as healthcare professionals and asked for an update on the situation.
58. C’s OT contacted the Council in July 2022 and said she was the identified professional to review C’s feeding and swallowing. However, she told the Council this provision was not under her professional remit and said feeding and swallowing was under the expertise of a specialist dysphagia speech and language therapist. C’s OT asked for the Council to amend the EHC plan to reflect this.
59. The Council’s notes show it contacted healthcare professionals who advised C would benefit from a feeing review at a clinic. It noted that C had been discharged from intervention with her feeding from SALT in 2018. It recommended C should be re-referred. It also recognised C’s EHC plan should be amended to ensure the review from the feeding specialist was carried out by the specialist SLT team. The Council was also informed there should be a feeding SALT specialist at C’s school, however, if there wasn’t one C should be offered a clinical review.
60. Around the same time, C’s school raised further concerns with the Council that it would be unable to deliver C’s horse-riding provision and asked the Council to consider alternatives.
61. The Council contacted C’s horse-riding school. The riding school raised concerns for C’s health and safety and that of its staff and animals. It said C could continue to use the stables and a mechanical horse until the October half term. However, it said it no longer had a suitable horse for C to ride and could not deliver the provision.
62. The Council noted that Miss X received a personal budget to facilitate C’s horse riding.
63. Miss X complained to the Council about C’s access to horse riding. She asked it to consider an increased personal budget so she could facilitate C’s access to this part of the provision.
64. The Council’s notes show it contacted Miss X and explained it had worked out a personal budget to facilitate C’s access to horse riding. However, it said it still needed to speak with C’s OT and physiotherapist to ensure that concerns for health and safety were addressed.
65. Miss X made a further complaint to the Council in October 2022, this reiterated C had not had access to some provision as specified in her EHC plan, specifically SLT provision and horse riding.
66. Miss X complained to the Ombudsman on two occasions in April 2022 and August 2022.

The Council’s response to my enquiries

67. The Council noted that it had not responded to Miss X’s October 2022 complaint under its complaints policy. It apologised for this; however, it said it had been in regular contact with Miss X.
68. The Council did not accept C had missed any provision.
69. The Council said C’s feeding review with a qualified feeding SALT specialist would take place in 2023.
70. The Council said it had approved Miss X’s request for an increase to her personal budget to facilitate C’s horse-riding provision. It backdated this to October 2022.

Analysis

Speech and Language Therapy May until July 2021

71. The Council’s notes and SALT report of June 2021 show that C’s SLT was delivered in line with her EHC plan. I am therefore satisfied that C received all her required SLT provision until the end of the summer term. I appreciate Miss X was unhappy with changes to C’s EHC plan that she believed were made by C’s SALT. However, Miss X appealed to the SEND tribunal and any concerns about changing the content of C’s plan were for the tribunal to consider.
72. Miss X was also unhappy with C’s SALT and questioned the methods she used to deliver the provision. On reviewing the notes, this is a disagreement about the SALT’s training and delivery. C’s SALT was entitled to exercise her professional judgment in how she delivered the provision. I have seen no evidence that the provision was not delivered, therefore, I do not find fault with the Council regarding C’s SLT provision during this period.

Speech and language therapy between September 2021 until November 2022

73. Miss X complained about the level of communication with C’s new SALT in September 2021. The Council’s notes show it acted on Miss X’s concerns. In later notes, Miss X and C’s father said they were happy with the delivery of C’s SLT provision. I have also reviewed C’s SALT report for February 2022 and the Council’s notes of December 2022 that say C had received all her provision as specified in her EHC plan and was ‘doing well’. I have seen no evidence C missed any of her SLT provision in this period and therefore, I do not find any fault.

Occupational Therapy

74. The OT progress report dated 17 February 2022 noted C had attended five 60-minute therapy sessions. Miss X raised concerns throughout 2022 that C was not able to access her full 60 minutes of sensory and integration sessions as specified in her EHC plan. On receiving Miss X’s concerns the Council contacted C’s school to make enquiries about the delivery of the provision. The Council’s notes show the school explained C regularly received her OT sessions in the SI room with the help of her support assistant. Therefore, I am satisfied that C received access to the SI room and I do not find the Council at fault.

Hydro-Pool Sessions

75. Miss X also raised concerns that C had not had access to the hydro-pool on several occasions. The Council also contacted the school regarding this. The school told the Council it had followed the advice of C’s OT and had provided C with access to the hydro-pool in line with her EHC plan. It pointed out that there could be times when circumstances outside of its control meant C did not have access to the pool, but this was not a regular occurrence, and it would always try to make the sessions up. On review, I am satisfied the Council made enquiries with the school when Miss X raised this issue and that C had access to the hydro-pool and her support worker, therefore, I find no fault with the Council.

Horse Riding

76. The Council’s notes show it provided a personal budget to facilitate C’s access to her horse-riding provision in Section H. I have considered the Council’s notes that show that C’s riding school explained it could not continue facilitating the horse riding due to health and safety concerns. C had access to the stables and used a ‘mechanical horse’ until October half term 2022. I have seen no evidence C had access to her horse-riding provision after this. This was fault and caused C to miss her entitled provision and Miss X frustration. However, the Council has since remedied this by providing Miss X with an increased personal budget in May 2023, this was backdated to October 2022. Therefore, I consider any injustice caused to C and Miss X has already been remedied by the Council.

Feeding Review

77. I have considered the Council’s response to Miss X’s complaint regarding Section G of C’s EHC Plan. I find no fault in the Council’s response, it signposted her to the healthcare organisation responsible for carrying out a feeding referral, and Miss X can raise her concerns with the appropriate healthcare organisation.
78. I have also considered Miss X’s further complaint about C’s six-month feeding review as included in Section F of C’s EHC plan from April 2022. Miss X told the Council this had not taken place. C’s OT also said this was not under her professional remit and asked the Council to amend C’s EHC plan in July 2022. On receiving the concerns, the Council contacted healthcare providers and C’s school to investigate.
79. I appreciate C was discharged from the SALT Dysphagia team in 2018, however, C’s EHC plan states C’s feeding should have been reviewed every six months as part of her OT programme. I have seen no evidence the Council did this. This was fault and caused Miss X uncertainty as to what the outcome of a review would have been. The Council said it would refer C to a feeding specialist, this is a positive step. However, it does not fully remedy the injustice caused to Miss X and I have made recommendations to address this.

Annual Review 2021

80. The Council accept that C’s annual review was delayed by nearly four months when it took place in June 2021. It noted in its complaint response there appeared to be some confusion from C’s school around arranging this. The SEND legislation is clear “where a child has an EHC plan, the local authority must review that plan as a minimum every twelve months.” This delay was fault, the timescales are mandatory. However, I recognise there were several attempts to re-arrange this review and an offer to conduct this virtually. The Council also said some of the delay was caused by Miss X wanting the review to take place face-to-face. Therefore, while I find fault, I do not consider Miss X was caused a significant injustice.

Annual Review 2022

81. The Council accept in its complaint correspondence of June 2022 that there was delay when notifying Miss X of its intention to amend. This was fault. However, it noted that it issued Miss X with C’s amended draft EHC plan within eight weeks and a final amended EHC plan within nine weeks. On review, overall, the Council completed and finalised C’s EHC plan within the statutory time limits and therefore, I do not find Miss X was caused a significant injustice by the delay.

Personal Budget

82. The Council said it considered Miss X’s request for a personal budget about increased funding for C’s therapy provision in 2021. In its complaint response in January 2022, the Council accepted it did not inform her how to challenge its decision. The SEND Code of Practice says if a council refuses a request for a personal budget, it must inform the parent of their right to request a formal review of the decision. The Council did not do this when it told Miss X of its reasons for refusing her request. This is fault. This fault caused Miss X injustice because it denied her the right to ask the Council to formally review its decision causing confusion. The Council said it has now ensured its team are aware of its duty to notify parents about the right to challenge decisions about personal budgets. This goes some way to remedying the injustice caused, but I have made a further recommendation.

Complaint handling

83. The Council accept it failed to complete a stage one response for Miss X’s complaint in October 2022. The Council, in its response to my enquiries, noted it did not believe this was fault as it kept Miss X regularly updated. On review, I consider Miss X had a reasonable expectation the Council would follow its complaints process. It did not do this, and this was fault. This caused Miss X frustration and put her to the time and trouble of complaining again. I have made recommendations to remedy the injustice caused.

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Agreed action

84. By 29 November 2023 the Council will:

• Apologise to Miss X for failing to ensure some of the provision in C’s EHC plan was delivered, for failing to explain she could challenge its decision on her personal budget and for failing to adhere to its complaints process. This caused her frustration, uncertainty, and put her to the time and trouble of complaining.
• Pay Miss X £200 for the uncertainty caused by its failure to ensure C’s feeding was reviewed every six months.
• Pay Miss X a further £100 for causing her uncertainty by failing to explain she could challenge the Council’s decision on her personal budget and for putting her to time and trouble when it failed to respond to her October 2022 complaint.
• Remind staff dealing with complaints to adhere to the Council’s complaints policy.

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

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Final decision

86. I have completed my investigation by finding the Council was at fault for failing to provide some provision as specified in C's EHC plan and for failure to adhere to the statutory time limits. The Council was also at fault for failing to explain Miss X could challenge its decision on her personal budget and for failing to adhere to its complaints policy. The Council has agreed to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman