Summary: The Council was at fault for delays in reviewing a child’s Education, Health and Care plan. This caused injustice as the child did not have an up to date plan and missed out on receiving some extra provision sooner. The Council agreed to apologise, put in place extra provision for the child and make a payment for the distress caused.

The complaint

1. Ms X complains the Council failed to update her son, Y’s, Education, Health and Care (EHC) plan and did not provide him with the provision listed in the plan since 2019.

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What I have and have not investigated

2. I have not investigated matters from the period covering November 2019 until April 2021. This includes Ms X’s complaints that:
• the Council did not carry out an annual review of Y’s EHC plan from when it was issued in 2019 until December 2020; and
• Y was not provided with adequate education and the provision in his EHC plan from November 2019 until the Council provided a new EHC plan in April 2021.
3. This is because too much time has passed and the complaints are late. The Council told Ms X in December 2021 that she could complain to the Ombudsman, however Ms X did not complain to us until October 2022. I consider Ms X could have complained to us sooner and there are no good reasons to explain why she did not.
4. I have also not investigated matters from April 2021 to February 2022. This includes Ms X’s complaint that Y did not receive education or the provision listed in his EHC plan during this period. Ms X appealed to the SEND Tribunal about the school placement listed in Y’s EHC plan. This puts matters in relation to whether Y received alternative education and the special educational provision listed in his EHC plan out of our jurisdiction as they are inextricably linked to the school named in the EHC plan.
5. I have only investigated matters from February 2022 onwards.

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The Ombudsman’s role and powers

6. 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)
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. 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.
9. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
10. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
11. 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)

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How I considered this complaint

12. As part of this investigation, I considered the information provided by Ms X. I discussed the complaint over the telephone with Ms X. I made enquiries with the Council and considered the information received in response. I sent a draft of this decision to Ms X and the Council for comments.

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What I found

Special educational needs

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 tribunal can do this.
14. The council has a duty to secure the specified special educational provision in an EHC plan 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)
15. 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 EHC plan 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).

Arrangements for reviewing an EHC plan

16. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
17. Where a council proposes to amend an EHC plan, 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)
18. 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)
19. 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 EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
20. 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 EHC plan. The right of appeal is only engaged when the final amended plan is issued.
21. 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.

What happened

22. As stated above I have only investigated events from February 2022 onwards. I have included a brief summary of events prior to this (below) for context.
23. In March 2019, the Council issued Y with an EHC plan. From November 2019, Y’s school started to put him in isolation and eventually he stopped attending in September 2020.
24. In November 2020, Ms X instructed legal representatives as the Council had not carried out an annual review of Y’s EHC plan. The Council held an emergency annual review in December 2020 and issued Y with an EHC plan in April 2021. Ms X appealed to the SEND Tribunal about the school placement listed in the EHC plan.
25. In October 2021, Ms X complained to the Council that Y had not received adequate education and the provision listed in his EHC plan since November 2019. Ms X also complained the Council delayed in completing Y’s annual review of his EHC plan in 2020 and she had to instruct legal representatives to force the Council to carry out the annual review.
26. The Council provided its final response to Ms X in December 2021. The Council said the case was currently with the SEND Tribunal and the Council had consulted specialist schools to take Y. The Council said it had agreed to provide tutoring while Y was out of school. The Council signposted Ms X to the Ombudsman if she wanted to take her complaint further.
27. Ms X asked the Council to carry out an emergency annual review of Y’s EHC plan in December 2021.
28. In January 2022, Y joined School A, a specialist school. In February 2022, the SEND Tribunal issued its decision. Ms X and the Council agreed by consent to conclude the appeal and the Council agreed to name School A on Y’s EHC plan.
29. In March 2022, Ms X requested an emergency annual review of Y’s EHC plan as she had not received an updated plan since the SEND Tribunal ended. Ms X contacted School A with concerns about an updated EHC plan for Y.
30. The Council held an annual review meeting in May 2022 where it considered Y’s EHC plan. The Council received feedback from School A as part of the annual review which recommended Y was correctly placed at School A.
31. On 13 May 2022, the Council wrote to Ms X and told her it would amend Y’s EHC plan.
32. In September 2022, Y left School A and moved to School B, a post-16 institution.
33. Ms X made a complaint to the Ombudsman in late October 2022. She also sent a copy of this to the Council. Ms X said Y had not received adequate education or the special educational provision in his EHC plan since 2019. Ms X also said the Council had not carried out an annual review of Y’s EHC plan since April 2021.
34. In early December 2022, the Council responded to Ms X. The Council acknowledged that it did not send an amended EHC plan following the SEND Tribunal’s decision. The Council said it previously responded appropriately to the points Ms X raised about Y’s access to education.
35. On 23 December 2022, the Council sent Ms X and amended version of Y’s EHC plan following the annual review in May 2022. The Council sent the final version of Y’s EHC plan to Ms X on 19 January 2023. This included additional provision of seven weekly session of speech and language therapy per year for Y.

Analysis

36. After the conclusion of the SEND Tribunal, the Council did not send Ms X an amended EHC plan naming School A. This was fault.
37. The Council also did not complete a review of Y’s EHC plan before 31 March 2022 and name a post-16 institution in his EHC plan. This was fault. Ms X had requested an emergency annual review from December 2021. Had the Council started the annual review process at this stage it may have been able to better plan Y’s transition to post-16 education.
38. The Council carried out a review of Y’s EHC plan in May 2022 and wrote to Ms X on 13 May 2022 to tell her it was amending Y’s EHC plan. The Council did not carry out the amendments until December 2022, some seven months later. This was fault. While there is no timeframe in the law for how long the Council can take to do the amendments, the Council must carry these out without delay. I can see no reasons why it should have taken the Council seven months to carry out the amendments especially as the only amendment to the provision was speech and language therapy sessions and the Council already had received the relevant report for this.
39. As I have found fault I need to consider what injustice this caused. If the Council had finalised the EHC plan sooner following the review, Y would have received an up to date EHC plan sooner. Y also would have received speech and language therapy sessions sooner. By also not carrying out the review before 31 March 2022 there was not appropriate planning for Y to move to post-16 education. In fact, Y’s amended EHC plan was not in place when he moved to School B.
40. By delaying in providing the final EHC plan following the review, Ms X’s appeal rights were delayed. Ms X has also spent time and trouble pursuing this matter with the Council and suffered distress at knowing Y did not have an up to date EHC plan.

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Agreed action

41. Within four weeks of my final decision the Council agreed to carry out the following:
1. Provide a written apology to Ms X and Y for the faults identified.
2. Arrange seven additional speech and language therapy sessions for Y. I have calculated this based on the fact Y’s EHC plan says he should receive a minimum of seven weekly sessions per year and if the Council had reviewed the EHC plan prior to March 2022, or when Ms X requested it, it should have issued a final EHC plan almost a year earlier.
3. Pay Ms X, for the benefit of Y, £400 to recognise the distress caused by not having an up to date EHC plan and for having no planning in place for his transition into post-16 education.
4. Pay Ms X £200 to recognise the distress caused in bringing her complaint and for uncertainty about whether the correct provision was listed in Y’s EHC plan.
42. Within eight weeks of my final decision the Council agreed to carry out the following:
1. Look at what went wrong in this case and why there were significant delays in amending Y’s EHC plan. The Council should consider what steps it will put in place to prevent delays like this occurring in the future. The Council should report back to the Ombudsman what measures it intends to introduce.
43. The Council should provide us with evidence it has complied with the above actions.

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Final decision

44. I have completed my investigation and found the Council was at fault for delaying in reviewing Y’s EHC plan. This caused injustice. The Council has agreed to the above actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman