Summary: Mrs X complained her son, Y, did not receive the provision specified in his Education, Health and Care Plan (EHCP) since September 2020. Mrs X also complained Y had not received any education since September 2022. Mrs X complained of delays in this case. She says the Council did not follow statutory timescales in the EHCP process and delayed responding, or did not respond to her complaints. The Council was at fault. The Council did not issue a decision to amend the EHCP or amend the plan in statutory timescales. The Council did not respond to complaints. Y missed provision specified in his plan and Mrs X was put to time and trouble to complain to the Ombudsman. The Council should apologise to Mrs X and Y, pay a financial remedy and remind its staff of the important of adhering to statutory timescales.

The complaint

1. Mrs X complained her son, Y, did not receive the provision specified in his Education, Health and Care Plan (EHCP) since September 2020. Mrs X also complained Y had not received any education since September 2022.
2. Mrs X complained of delays in this case. She says the Council did not follow statutory timescales in the EHCP process and delayed responding, or did not respond to her complaints. Mrs X complained Y missed provision and she has suffered distress pursuing this complaint.

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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 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)
5. 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.
6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
7. 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)
8. I have exercised discretion to consider events in this case back to September 2020 until Mrs X complained to the Ombudsman in October 2022. I reference events prior to this for context in this matter. I have seen Mrs X complained to the Ombudsman about this matter in late 2021 and we directed her back to the Council to consider this complaint at stage two. Mrs X has submitted other complaints since this date, but they all related to the same issues reported in this case.

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How I considered this complaint

9. I read Mrs X’s complaint and spoke to her about it on the phone.
10. I considered information provided by Mrs X and the Council.
11. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background information

12. A child or young person with special educational needs may have an Education, Health and Care plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
13. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
14. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHCP or about the content of the final EHCP. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHCP has been issued.
15. The Council has a duty to secure the specified special educational provision in an EHCP for the child or young person (Section 42 Children and Families Act). 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. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
16. The procedure for reviewing and amending EHCPs is set out in legislation and government guidance.
17. Within four weeks of a review meeting, a Council must notify the child’s parent of its decision to maintain, amend or discontinue the EHCP. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
18. Where a Council proposes to amend an EHCP, 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)
19. The Special Educational Needs and Disability Code states if a Council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
20. Following comments from the child’s parent or the young person, if the Council decides to continue to make amendments, it must issue the amended EHCP as soon as practicable and within eight weeks of the date it sent the EHCP and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
21. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHCP. The right of appeal is only engaged when the final amended plan is issued.
22. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHCP we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).

What happened

23. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
24. Y has complex special educational needs (SEN). The Council issued Y with an updated EHCP in 2018. This plan detailed Speech and Language Therapy (SALT), Occupational Therapy (OT) and physiotherapy to support Y. SALT support was designed to support Y throughout the school day including unstructured times to develop interaction and communication skills. This support also includes pre teaching and post teaching for lessons, specialist education programmes and individual work. OT and Physio support provided daily intervention for Y.
25. Y’s school completed an annual review in January 2020. The annual review set out what support Y would need when he transitioned to college in line with information in the plan. The meeting decided Y’s plan would be maintained and the Council would consult with college A.
26. The Council consulted with college A in February 2020. The Council then issued an updated EHCP in April 2020, naming college A as Y’s placement from September 2020.
27. Y started at college in September 2020. Mrs X emailed the Council at the end of September 2020 to report Y was not receiving the provision set out in his EHCP in college.
28. The OT visited Y in college in October 2020. The OT emailed the college after the visit and raised concerns Y was not receiving the OT provision specified in the plan.
29. Mrs X contacted the college and the Council on several occasions between September and December 2020 complaining Y was not receiving the provision specified in his plan. The Council acknowledged communication but did not respond.
30. The college held an annual review at the start of December 2020. The Council wrote to Mrs X with its decision to maintain the plan at the end of January 2021, seven weeks after the review. Mrs X challenged the Council’s decision as professionals had provided updated information for the review.
31. Mrs X continued to contact the college and Council regularly to request the EHCP provision was put in place for Y.
32. The Council decided to issue an amended draft EHCP in May 2021 after it considered the information Mrs X provided.
33. Mrs X complained to the Council in June 2021 and also sent the complaint to the college. The complaint covered the lack of EHCP provision, lack of support from college and not following the statutory timescales to issue the plan after the annual review.
34. The Council issued Y’s updated final EHCP a week after Mrs X complained. Mrs X did not agree with the wording and requested the Council amend the plan.
35. The College responded to Mrs X’s complaint in August 2021. The response advised Mrs X an OT and physiotherapist are not employed at the college and it would need to source this provision but the Council should fund it. The response focussed on Y’s need to build independence and explained providing one to one support at all times went against the college ethos.
36. Y returned to college in September 2021.
37. The Council agreed to fund Y’s OT support in October 2021 and responded to Mrs X’s June 2021 complaint. The response covered seven of the 45 points raised in the complaint and gave the same information provided by the college in August. The Council asked what Mrs X’s expectations were stating that supporting Y at unstructured times reduced his independence to engage with his peers. The Council assured Mrs X the provision would be in place for Y and recommended a meeting to address the issues and decide on a way to move forward. Mrs X requested the Council consider the complaint at stage two.
38. Mrs X appealed to the tribunal at the start of November 2021 as the Council had amended the wording in section F of Y’s plan. Mrs X wanted further detail added to provision the Council had changed.
39. Mrs X continued to contact the Council and the college to get Y the support detailed in his EHCP.
40. The Council did not respond to Mrs X’s appeal to the tribunal. The tribunal wrote to the Council in January 2022 to request it explain why it did not respond to initial correspondence. The Council then agreed to make the amendments to Y’s EHCP Mrs X requested. The Council issued an updated final EHCP at the end of January 2022.
41. The college raised concerns with the Council in February 2022 about the annual review being late. The college requested the Council lead the meeting. The Council agreed to this but advised it could not hold the annual review until the appeal to the tribunal had been resolved.
42. Mrs X withdrew her appeal to the tribunal in March 2022 after the Council agreed to amend the wording in Y’s plan. The Council amended the final plan from January 2022 and provided Mrs X with an updated version.
43. The Council responded to Mrs X’s stage two complaint in April 2022. The Council agreed it had not adhered to statutory timescales and the service Mrs X and Y had received was not acceptable. The Council offered Mrs X £300 and a further £300 to acknowledge Y started college without the support he needed.
44. The Council arranged an annual review for June 2022. Mrs X contacted the Council in May to explain why she would be unable to attend the annual review scheduled for June 2022. Mrs X explained Y would not attend the annual review without her support. She also informed the Council the review was more than 12 months from the previous review in December 2020. The Council logged this communication as a complaint. I have not seen evidence the Council responded to this.
45. The college held Y’s annual review at the start of June 2022. Mrs X and Y were not present at the review but provided their views. Y’s views stated he only got support if he asked for it and he was not getting the help he needed. Mrs X repeated the college had not met Y’s needs, meaning he had been struggling academically. The outcome of the annual review recommended the Council amend Y’s plan.
46. Mrs X complained to the Council in late June 2022. She said Y had not received the majority of the provision set out in the EHCP. The Council acknowledged the complaint and assured Mrs X she would have a response by mid-July 2022. Mrs X chased the Council for a response at the end of July 2022.
47. The Council contacted Mrs X in August 2022 to inform her once the proposed amendments had been discussed and agreed it would issue an updated EHCP. Mrs X responded to say the Council had not informed her it intended to amend the plan and had not had any paperwork to explain why it would be amended.
48. Y attended college for the last time in September 2022 due to his anxiety and stress about college. The Council recommended a meeting with college to resolve the issues. Mrs X emailed the Council to say Y had not received the provision set out in his plan. She said she would not attend meetings as information from previous meetings had not been recorded correctly. She requested all communication in writing to avoid potential discrepancies.
49. Mrs X complained again in October 2022 about the lack of provision, late annual review and delays in the EHCP process. Internal communications at the Council confirmed this was the same complaint Mrs X made in July 2022. I have not seen evidence the Council responded to the July 2022 or October 2022 complaints.
50. Mrs X complained three more times about the same issues. The Council responded in mid-November 2022 and said Y requested support was removed during unstructured times. The Council said a support worker was available near Y during unstructured times if he needed it. The Council agreed with the college reducing support to increase Y’s independence.
51. The Council issued a draft EHCP in December 2022 and made changes to the provision specified in section F. Section F details the special educational provision the young person requires to meet their needs.
52. Mrs X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mrs X would like the Council to apologise and issue the final EHCP so she can appeal any changes she disagrees with.
53. In response to my enquiries the Council stated legislation puts a duty on it to ensure the young person is engaged and listened to. It continued, as Y was over 18 his views are most important. The Council offered a reassessment of Y’s needs to ensure the plan is suitable for Y to achieve his outcomes. The Council also said as Mrs X had not provided medical evidence, it was unable to provide the education provision specified in Y’s EHCP.
54. The Council confirmed Y was removed from the college roll in January 2023.

My findings

Annual review

55. The Council did not ensure Y’s EHCP was reviewed between December 2020 and June 2022. This is fault and Y’s plan was not up to date and may not have met his needs.

Delay sending notification letters after annual reviews

56. The Council has not written to Mrs X following the 2020 and 2022 annual reviews to explain if it would amend Y’s EHCP within the statutory timescales. Mrs X received an email saying no changes were needed after the 2020 review, seven weeks after the meeting. She had to challenge this decision and the Council then amended the plan. The Council issued a final EHCP in June 2021 and appeal rights were engaged at this point. 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 required timeframes here amounts to fault and has caused Mrs X distress and frustration.
57. The Council did not issue a draft EHCP until six months after the June 2022 annual review. Recent caselaw, R (L, M, and P), v Devon County Council [2022] EWHC 493 (Admin), confirmed when a Council proposes to amend an EHCP following a review, it must notify the parent or young person of the decision to amend and what the proposed changes are within four weeks of the review meeting. Mrs X received an email from the Council nine weeks after the review, stating it would provide an updated plan when it had been amended. I have seen no evidence it issued a final plan after it issued the draft. 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 required timeframes here amounts to fault. This frustrated Mrs X’s appeal rights to the send tribunal and Y’s plan was not up to date and may not have met his needs.

Missed provision

58. Y attended college from September 2020 until September 2022. The Council acknowledged he did not have appropriate support during the first year. During the second year, college have provided some support, but not the full provision set out in the EHCP. It has justified this by saying it was against the college ethos of building independence. From September 2022 until Mrs X complained to the Ombudsman in December 2022, the Council has not ensured Y received any EHCP provision, including education provision specified in the plan whilst he has not been attending college.
59. The Council’s response to the Ombudsman sets out its expectations young people attending college work towards independence. While this is the goal, this does not remove the legal requirement to deliver the provision specified in Y’s EHCP. The plan clearly sets out the support Y needs to engage with his learning and environment. The college did not implement the provision and said its responsibility was to build independence. The Council has not ensured Y received the provision set out in his EHCP. This is fault and Y has missed that provision for two and a half academic years.
60. The Council has provided invoices to evidence the OT support provided. I am satisfied Y received the OT oversight his plan specified as the invoices show monthly visits from an OT. However, the Council response stated the annual review documentation evidenced the individual support college provided Y. The review document from June 2022 stated Y received OT and physio support from external professionals. It continued to say staff in college offered Y the support specified from the SALT. The document confirmed Y followed his OT and physio interventions with support if needed. This is different from other information I have seen and does not cover all the intervention included in the EHCP. Mrs X and Y were not present at the annual review and the report is very different to the information provided by Y and Mrs X. Mrs X has complained and communicated with the college and Council over two years to say this support was not in place. Complaint responses from college and the Council confirmed support was not in place and an OT also raised concern the provision was not being provided in October 2020. On the balance of probabilities, I am not satisfied the support has been provided as specified in the plan for the two and a half years this case covers. This is fault and Y has missed out on provision detailed in his EHCP.
61. The Council’s response to the Ombudsman sets out Y had a college placement which can meet his needs, so it does not need to provide alternative provision. The Council pointed out as Y is over 18, its responsibility is to ensure the provision meets his needs. While this is the case, Y’s views submitted for the June 2022 annual review stated the college was not supporting him. I have not seen evidence the college gained Y’s views other than this or that he felt supported during college. Y is not of compulsory school age, however, in section F of Y’s EHCP its sets out specific education provision support he needs including providing education in a way that Y can understand. The Council has a responsibility to ensure the provision in section F of Y’s EHCP is provided, this included specific education provision. The Council has not done this. This is fault and Y has missed out on the provision in his plan, including education, for two and a half years.

Not responding to complaints

62. The Council noted in its response to my enquiries due to the number of complaints Mrs X submitted and change in staff at the Council, there was some confusion about what Mrs X wanted. The information I have seen is clear. Mrs X has requested throughout this case, the college implement the provision set out in Y’s EHCP.
63. The Council stated the number of complaints Mrs X raised caused confusion. The complaints raised concern the same issues and Mrs X complained again as she did not receive appropriate responses to her complaints. Not responding to complaints is fault and has caused Mrs X frustration.
64. The Council is correct when it says Y is over 18 so its responsibility is to him. However, Y has not stated at any time he did not want Mrs X’s support. The annual review in June 2022 did not involve Y or Mrs X. The communication I have seen set out a valid reason Mrs X could not attend the annual review to support Y attending. The meeting should have been rearranged to a time she could attend to support Y to engage with the review. The meeting was late even after considering the time lost during Mrs X’s appeal to the tribunal. Mrs X withdrew her appeal in March so there was enough opportunity to arrange the meeting prior to June 2022, at a time to suit all involved. The meeting should not have gone ahead without Y or Mrs X. This was the opportunity to consult with Y and Mrs X and the outcome could have recommended a reassessment of needs. I have not seen evidence the college has attempted to seek Y’s views since the June 2022 annual review to see what support he wanted. It has been ten months since this meeting and the Council has just suggested reassessment. This is further delay and a missed opportunity to appropriately meet Y’s needs.
65. Sometimes we will recommend a financial payment to the person who brought their complaint to us. This might be to reimburse a person who has suffered a quantifiable financial loss, or it might be more of a symbolic payment which serves as an acknowledgement of the distress or difficulties they have been put through. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider.
66. The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice because of fault by a Council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
67. Y was not of statutory school age and received some support for two years. For four months he did not receive provision or education. The amount recommended to remedy this fault will reflect this.

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Agreed action

68. To remedy the outstanding injustice caused to Mrs X and Y by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Mrs X and Y for not adhering to statutory timescales, not ensuring Y received the provision he needed and poor communication in this case.
• Issue Y’s final EHCP to enable Mrs X to appeal against any changes Y or she disagrees with.
• Pay Mrs X £200 as an acknowledgement of the time and trouble she has spent pursuing this complaint.
• Pay Mrs X £300 to acknowledge the frustration and distress caused due to the Council’s fault.
• Pay £4,400 for not providing the full provision specified in Y’s EHCP for two and a half academic years. This money should be used for Y’s benefit.
• Remind all relevant staff of the need to ensure all complaints complete the complaint process fully.
• Remind all relevant staff that concerns raised about provision should be investigated and addressed without delay.
69. The Council has agreed to take the following action within three months of my final decision:
• Review its procedures and provide guidance to its staff to ensure decisions made to maintain, amend or cease EHCP’s following reviews are issued within the statutory timescales.
70. The Council should provide evidence of the actions taken to satisfy the recommendations.

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Final decision

71. I have completed my investigation. I have found fault by the Council, which caused injustice to Mrs X and Y.

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Investigator's decision on behalf of the Ombudsman