Summary: Mr and Mrs X complain the Council have failed to complete an annual review of their son’s Education, Health and Care Plan and failed to ensure provision was in place. Based on the evidence seen, we find the Council was at fault in the way it carried out the annual review. We also find the Council failed to provide provision in accordance with the Plan. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Mr and Mrs X complain the Council have failed to complete an annual review of their son’s Education, Health and Care (EHC) Plan and failed to ensure provision was in place since April 2021.
2. Mr and Mrs X say this has caused the family significant distress and has impacted their son’s development.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
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. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. 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)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
7. 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

8. I considered the information provided by Mr and Mrs X and discussed the complaint with Mr X. I made enquiries of the Council and considered its comments and the documents it provided.
9. Mr and Mrs X had the opportunity to comment on my draft decision. I considered all comments before reaching a final decision.

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What I found

Relevant law and guidance

10. 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. Section F sets out the special educational provision needed by the child or young person.
11. The Children and Families Act 2014 says local authorities are responsible for making sure that arrangements specified in EHC plans are put in place and reviewed each year. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out in an EHC plan has not been provided or where there have been delays in the process.
12. The Special Educational Needs and Disability Tribunal (SEND) considers appeals against council decisions about special educational needs provision.

Special Educational Needs and Disability (SEND) Code of practice 0-25: Statutory Guidance

13. Section 9.169 says a review must take place within 12 months of any previous review.
14. Section 9.176 says the local authority must decide whether it proposes to keep the EHCP as it is or amend the plan and tell the child’s parent or young person within four weeks of the review meeting. If the plan needs to be amended, the local authority should start the process of amendment without delay.
15. When reviewing an EHC Plan the guidance says:

• the local authority must seek advice and information about the child or young person prior to the meeting from all parties invited, and send any advice and information gathered to all those invited at least two weeks before the meeting;
• The meeting must focus on the child or young person’s progress towards achieving outcomes specified in the EHC plan, and on what changes might need to be made to the support that is provided to help them achieve those outcomes, or whether changes are needed to the outcomes themselves;
• The local authority must prepare and send a report of the meeting to everyone invited within two weeks of the meeting. The report must set out recommendations on any amendments required to the EHC plan, and should refer to any difference between the school or other institutions recommendations and those of others attending the meeting.

What happened

16. I have set out a summary of the key events below. It is not meant to show everything that happened.
17. Mr and Mrs X’s son, Y, has special educational needs and an EHC Plan. Y has been receiving speech and language therapy (SALT) from 2008 to 2019. He attends a post-16 further education college.
18. Mr and Mrs X appealed to the SEND Tribunal about Y’s EHC Plan in August 2020. In May 2021 the judge issued an order which said the Council should issue an agreed updated EHC Plan for Y.
19. The Council issued the EHC Plan at the end of June 2020 which set out SEN provision as follows:

• A structured speech and language therapy programme, delivered by educational staff with experience working with young people with speech, language and communication needs;
• Three separate 1:1 or small groups sessions (no more than 3 pupils) for 45 minutes once a week by a Learning Support Assistant under the guidance of a Speech and Language Therapist;
• 1:1 or small groups (no more than 5 pupils) for 20 minutes once a week by a Learning Support Assistant;
• Annual input from a speech and language therapist to review and update Y’s progress towards his outcomes as necessary;
• a strong focus on adulthood with regards to finance, benefits, independent living, discussion about college, university, job interviews, CV’s etc; a
• Y started college in September. A SALT assessment report was completed at the time which set out targets and strategies to support Y’s language and communication.

20. In September 2021, the college reduced Y’s support hours from 25 hours to 13 hours.
21. An annual review of Y’s EHC Plan was held on 5 November 2021. Mr and Mrs X told the Council SALT provision was not in place.
22. Following the annual review, the Council said no amendments to the plan were required. However, the college reduced the support hours from 25 hours to 13 hours in September 2021.
23. Two weeks later Mrs X asked the Council when SALT would commence. The Council confirmed the provision would be provided at the college on Wednesday afternoons, but no start date had been agreed. At the end of November Mrs X contacted the Council again about the lack of provision. The Council said it would contact the college.
24. In January 2022 a SALT programme was devised for Y. A month later Mrs X contacted the Council again raising concerns about lack of provision. Mrs X said the college was not implementing Y’s EHC Plan. The Council told Mrs X that the college would be arranging a meeting to discuss the Plan and timetable for Y.
25. On 9 March 2022 Mr and Mrs X met with the Council. The Council agreed to gather further information from the college and speech and language therapist to establish what provision had been offered to Y and accessed by him. The Council said it would update Mrs X in a weeks’ time.
26. On 16 March 2022 Mrs X contacted the Council for an update. Mrs X did not receive a response and continued to chase the Council.
27. In April Mr and Mrs X complained to the Council about the lack of SALT provision for Y. The Council responded to the complaint and said that Y had refused to engage with staff. The Council acknowledged and apologised for:

• poor communication with Mr and Mrs X;
• delay in contacting the speech and language therapist; and
• failing to respond to the annual review.

28. In a further letter the Council suggested mediation and a review to discuss issues with engagement, provision not being accessed as set out in the EHC Plan and alternative delivery methods. Mrs X did not respond to these suggestions. She said it was the Council’s responsibility to ensure SALT provision was in place for Y and it had failed to do so for eight months.
29. On 25 May 2022 the Council sent Mr and Mrs X a letter following the annual review meeting held in November 2021. The Council said no amendments to the Plan were required. The letter provided details about mediation and appeal rights to the SEND tribunal. Mr and Mrs X have not appealed to the tribunal.
30. On 6 June 2022 the Council responded to Mr and Mrs X’s complaint. The Council suggested a meeting and said the SEND team would be in touch to arrange this.

Analysis

31. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC Plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:

• check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.

Annual review

32. As set out above, an EHC Plan should be reviewed on an annual basis to ensure the needs of the child or young person and the provision made available is up-to date and accurate.
33. In response to my enquiries the Council explained there was an agreement in place that the college would complete the annual review on behalf of the Council, including all administrative practices before and after the meeting. However, the Council remains responsible for the review.
34. The Council was required to circulate all documents at least two weeks before the meeting. The Council said the college sent a copy of the Y’s current EHC Plan to Y’s parents. Mr and Mrs X dispute this and say they received no paperwork ahead of the meeting and paperwork presented at the annual review was from 2019 and therefore out of date. The Council has no records to show what information was sent to Mr and Mrs X and when it was sent. It did not consult with Mr and Mrs X before the review meeting and therefore they did not have the opportunity to address any inaccuracies and comments about progress towards outcomes recorded in the Plan.
35. At the annual review, progress towards outcomes was recorded as ‘ongoing’ with no further detail provided about Y’s progress. This is inadequate and the Council accepts the annual review should have provided more detail.
36. Given the absence of evidence held by the Council, it is my view, on the balance of probabilities the Council failed to follow the statutory guidance as set out in the SEND code of practice as set out in paragraph 15 above. This is fault. These faults caused Y and Mr and Mrs X an injustice. There was no opportunity for a meaningful discussion about the Plan and Y’s progress towards achieving outcomes specified, what changes if any were needed to the support provided to help Y achieve those outcomes, or whether changes were needed to the outcomes themselves.
37. Following the annual review, the Council said no amendments to the Plan were required. This was incorrect as the college had reduced Y’s support hours from 25 hours to 13 hours in September 2021. There is no evidence to suggest the reduced hours were discussed at the annual review or that Mr and Mrs X were aware the provision had been reduced. It is also not clear why the Council decided not to amend the Plan following the review.
38. I find the Council at fault for reducing provision outside of a formal process and without amending the plan and delivering reduced provision from September 2021 when the EHC Plan clearly stated otherwise. The Council has accepted fault.
39. The Council should have informed Mr and Mrs X of its decision not to amend the plan within four weeks of the review meeting. It did not do this and issued a letter to Mr and Mrs X in May 2022. This was fault and delayed Mr and Mrs X’s appeal rights, caused frustration and put them to the time and trouble of complaining.
40. The Council’s poor record keeping is additionally in itself administrative fault which has caused Mr and Mrs X injustice as it has frustrated their attempts to resolve their complaint with the Council.
41. Our guidance on remedies sets out that, where fault has resulted in a loss of provision, we will normally recommend a payment of between £200 and £600 per month to acknowledge the impact of the loss. For the reduced hours of support, I consider the payment here should be £300 a month. These hours were solely dedicated to support Y to carry out his EHC Plan and were not linked to the number of hours he attended college. While I acknowledge the Council said it should have amended the Plan, the fact remains the Plan stated 25 hours support. It is also my view the Council would have been aware of the reduced provision from September 2021.
42. The Council has told the Ombudsman that it has now taken over responsibility for arranging and chaining annual reviews in regard to the college.

EHC Plan provision

43. The council has a duty to secure the specified special educational provision in an EHC Plan for the child or young person. The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible.

SALT provision

44. Y’s EHC Plan as set out in June 2021 said he should receive provision as set out in paragraph 19. On the evidence I have seen, Y has not received the SALT provision he was assessed as needing.
45. I note the Council’s comments in its complaint response that Y refused to engage with intervention. However, I would have expected the Council to have addressed this with the speech and language therapist and college sooner. Instead, the Council let matters drift and there was a significant delay in action following the meeting with Mr and Mrs X in March 2022. The lack of communication and response to Mrs X’s questions about the provision added to their frustration.
46. With reference to paragraph 24 above, the Council has confirmed this meeting was never arranged. This is fault and caused Mr and Mrs X uncertainty and frustration. The Council should apologise to Mr and Mrs X.
47. It was at the annual review in November 2021 that the Council became aware provision was not being implemented. Therefore, I have considered any remedy from this point and to when Mr and Mrs X complained to the Ombudsman.
48. On balance, I am of the view that the remedy here should be £450 per month. This is because Y required three weekly SALT sessions delivered as 1:1 or in small groups and his speech and language difficulties impact on his ability to access the curriculum, his interaction with peers and his everyday life.

Focus on adulthood

49. I asked the Council to provide details of provision Y had received since April 2021 in relation to “a focus on adulthood” as set out in his EHC Plan. The Council said Y had weekly sessions with a pastoral coach which covered online and social media safety, finance, careers and further education. Mr and Mrs X disagree. From September 2021 there was a focus on careers and Y was supported in class with his university application. Mr and Mrs X disagree and state that Y has not received any support with his university applications and as a result has decided to take a gap year.
50. It has been difficult to establish what support was and was not being provided, as there are no records for the period in question. The Council accepts that more evidence would have been beneficial. On balance, it is my view that Y has not received the provision set out in his Plan regarding ‘adulthood’ except for travel training. This is fault and Y has missed out on provision he should have received. Mr and Mrs X say the lack of provision has impacted Y’s progress towards further education, independence and adulthood.
51. In accordance with our guidance on remedies, I am of the view the remedy here should be £200 per month, as it is agreed that Y did receive travel training. While I do not wish to appear dismissive of Mr and Mrs X’s comments that Y will have to take a gap year, there are a myriad of factors that play into a child’s ability to access further education. I recognise the impact the loss of provision has had on Y, however I cannot directly attribute the gap year to fault by the Council.

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Agreed action:

52. To remedy the injustice set out above, within one month of the final decision the Council will:
1. apologise to Mr and Mrs X for the faults identified in this statement;
2. pay Mr and Mrs X £2400 for not ensuring Y had access to 25 hours support from September 2021 to July 2022. This should be used for Y’s educational benefit. This is calculated at eight school months (accounting for school holidays) at £300 per month;
3. pay Mr and Mrs X £2,925 for not ensuring Y had suitable SALT provision from November 2021 to July 2022. This should be used for Y’s educational benefit. This is calculated at six and half school months (accounting for school holidays) at £450 per month;
4. pay Mr and Mrs X £1300 for not delivering suitable provision for Y’s focus on adulthood, from November 2021 to July 2022. This should be used for Y’s educational benefit. This is calculated at six and half school months (accounting for school holidays) at £200 per month; and
5. pay Mr and Mrs X £500 for the distress and uncertainty caused through the annual review process, delay, poor communication and record keeping; and
6. pay Mr and Mrs X an additional £250 for the time and trouble pursuing their complaint.
53. Within three months of the final decision the Council will:
1. review its procedures regarding the annual review process and ensure information is gathered and shared with all parties prior to the meeting;
2. ensure it issues decision letters after annual reviews within statutory timescales and minimises delays and provide evidence this guidance has been sent to relevant staff; and
3. implement procedures for monitoring and recording delivery of provision in the EHC Plans of its children and young people that it is under a non-delegable duty to make sure are provided.

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

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Final decision

55. I have completed my investigation finding fault by the Council causing an injustice to Mr and Mrs X and Y.

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Investigator's decision on behalf of the Ombudsman