Summary: Ms X complained about how the Council met her son, W’s, specialist educational needs. The Council was at fault for failing to secure some of the provision in W’s Education, Health and Care (EHC) plans. It was also at fault for significant delay in completing the EHC plan annual review process. This caused Ms X substantial avoidable frustration and meant W missed out on provision he should have had. The Council will apologise to Ms X and W and pay Ms X £3500 in recognition of the injustice she and W experienced. It will also arrange the provision W is missing, carry out staff training and review its processes.

The complaint

1. Ms X complained about how the Council met her son, W’s, special educational needs. Specifically, she said the Council:
• failed to secure the Occupational Therapy and Speech and Language Therapy provision in W’s Education, Health and Care plan;
• delayed arranging Occupational Therapy, Speech and Language Therapy, educational psychology and psychiatry assessments; and
• delayed issuing a draft EHC plan following W’s 2022 annual review.
2. Ms X said this caused her and W significant distress and harmed his 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. 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)
6. Ms X complained to the Ombudsman in November 2022 about issues with W’s provision dating back several years. I have seen no good reason to justify exercising discretion to investigate the entire period. Therefore, I have looked at the period from August 2021 to February 2023, which includes the previous full school year and runs up to when I began investigating this complaint.
7. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply (Local Government Act 1974, section 26(5)).
8. I have exercised discretion to look at Ms X’s complaint even though she has not been through the Council’s complaint procedure. This is because she has had repeated contact with the Council, I consider it had the opportunity to respond, but it did not consider any of that contact as a complaint.
9. 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

10. I have considered:
• all the information Ms X provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the Council’s policies, relevant law and guidance and the Ombudsman's guidance on remedies.
11. Ms 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

Relevant law and guidance

Education, Health and Care plans

12. 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.

EHC plan reviews and reassessments

13. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance. Councils must hold a review meeting once yearly and within four weeks of the meeting, must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. This is the annual review. Once the parent or young person has received the notice ending the annual review, if they disagree with the council’s proposals to maintain, amend or discontinue the EHC plan, they have a right to appeal to the SEND tribunal.
14. 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. The Special Educational Needs and Disability Code (the Code) states if a council decides to amend the plan, it should start the process of amendment “without delay”.
15. 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 draft EHC plan and proposed amendments to the parents. Caselaw has found councils should take no more than 12 weeks from the date of the annual review meeting to issue an amended final EHC plan.
16. The purpose of an annual review is to ensure plans remain relevant to the needs of the child. A council may carry out a re-assessment if it feels one is necessary. The Code says this may be appropriate if a child’s needs have changed significantly. Reassessments often involve seeking new advice from specialists and must take no longer than 14 weeks.
17. When a council issues a final or final amended plan, the parent or young person has the right to appeal to the SEND tribunal if they are unhappy with the special educational provision in the plan.

Special Educational Needs provision

18. 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).

What happened

19. This section sets out the key events in this case and is not intended to be a detailed chronology.

Background

20. In March 2020, the Council issued W’s amended EHC plan following an annual meeting in October 2019. The plan noted W has severe dyslexia as well as challenges with language, literacy and working memory. The provision set out in the plan included the use of speech and language strategies by school staff. W was also meant to have:
• sessions with an Occupational Therapist (OT) three times a term;
• 1:1 weekly literacy sessions with a specialist teacher; and
• 1:1 weekly sessions with a Social and Emotional Development specialist.
21. In September 2020, W was due to start the post-16 phase of education. However, W did not attend an educational setting in the 2020-2021 academic year due to the COVID-19 pandemic.
22. W’s annual review was due in February 2021. The Council told me it did not hold an annual review in 2021 because it had been ‘superseded’ by a professionals’ meeting in August of that year. The Council held the meeting because the college W would begin attending in September 2021 had told the Council it would not be able to provide some of the provision in his EHC plan of March 2020. This was the weekly literacy sessions, 1:1 sessions with the Social and Emotional Development specialist and the OT sessions. The Council has been clear; this was not an annual review of W’s EHC plan.

2021/2022 academic year

23. W began attending a vocational course at the college in September 2021 and in November, the Council issued a new EHC plan. The provision was unchanged, but the plan now named the college.
24. W’s 2022 annual review was due in February. In late January 2022, the Council held a meeting into the suitability of W’s EHC plan. Ms X attended. The meeting noted the Council had taken no substantive action to arrange the SEN provision the college could not offer.
25. The Council told me the late January 2022 meeting should have been an annual review meeting but was not ‘formalised’ as one because it did not have enough information from an OT, speech and language therapist (SALT), or educational psychologist (EP) to update W’s EHC plan.
26. Following the meeting, in early February, the Council sought new OT, SALT and EP assessments.
27. In mid-February, Ms X’s solicitor contacted the Council to request it seek advice from a psychiatrist or psychologist to inform W’s EHC plan on his mental health. The Council requested that advice from the Child and Adolescent Mental Health Service (CAMHS) shortly after.
28. By the end of February, the Council had also contacted a private therapist Ms X suggested for advice on W’s mental health. It chased the therapist for a response in early March but did not hear back.
29. The Council received the SALT, OT and EP assessments in March and May 2022.
30. The Council held an annual review in May. It sent an amendment notice to Ms X and draft amended plan in early June.
31. In July, CAMHS discharged W from its service without seeing him because he was due to turn 18 (and therefore not eligible for its services) before he would have reached the top of its waiting list.
32. The Council issued an amended EHC plan in August 2022. It named a different college because W wanted to attend a different course starting in September 2022. The provision removed the weekly literacy support and weekly sessions with the Social and Emotional Development specialist. It included more substantial OT input and added in SALT support; as follows.
• The SALT and OT would work together to provide technology to help W to type without spelling.
• A further SALT assessment following a dyslexia assessment.
• Four visits per year from the OT.
• Use of a communication plan on a day to day basis, which was to be prepared and reviewed by a SALT therapist following termly visits to W at home, school and in the community.
• Use of a sensory programme developed for W by the OT and SALT.
33. In response to my enquiries, the Council accepted it had not secured the OT and SALT provision in the August 2022 plan.
34. A few days later, the Council asked CAMHS if it could refer W to adult mental health services. CAMHS replied to say it could not and W should self-refer or seek a referral from his GP.

2022/2023 academic year

35. In mid-February 2023, the Council issued a further amended EHC plan. The provision included changes to the strategies college staff should use with W. It contained the same SALT and OT provision as the previous plan. It included the weekly literacy sessions again.
36. In response to my enquiries, the Council said, in late April 2023, that it had arranged SALT and OT provision, which was due to begin imminently.
37. The Council told me it “cannot find any evidence to support that weekly literacy sessions were, or still are, required for [W]”.
38. Ms X told me that as of early July 2023, W has not had any literacy sessions. The SALT was due to visit W to assess him in late June but cancelled the session. She also said the OT had visited W at college once several months earlier, but nothing had happened since then. Provision in the plan like production of the communication plan and sensory programme remains outstanding.

Findings

Failure in how the Council carried out W’s annual review

39. The Council accepts it did not hold an annual review in 2021. It says it was ‘superseded’ by a professionals meeting. However, there are no reasons set out in law which allow a council to not complete an annual review, at least every 12 months. W had not had an annual review for over 12 months when he started a new college placement in September 2021. It meant W started at college without an EHC plan naming that provision, and knowing the College said it was unable to meet his needs as set out in the relevant plan covering that period.
40. Given W did not have an annual review in 2021, it is concerning the Council told me the January 2022 meeting was meant to be an annual review meeting, but it did not ‘formalise’ it as one. It said this was because it did not have enough specialist information to determine what changes to make to W’s plan. That is also not a valid reason in law or under the Code not to complete an annual review and was fault. Such an approach caused Ms X confusion and delayed giving her right of appeal to tribunal.
41. Following the meeting in January 2022, which the Council is clear was not an annual review, the Council sought advice from a number of professionals for updated OT, SALT and EP advice. The Code says that where a child or young person’s needs have altered substantially, it may be appropriate for the council to carry out a reassessment of that child’s EHC plan. Given the Council felt it could not carry out an annual review without new OT, SALT and EP advice, this suggests the Council was unsure if W’s needs had changed significantly. This was confirmed when the Council later amended his plan to increase the SALT and OT provision. In addition, in its response to our enquiries, the Council called this advice from professionals a re-assessment. In response to an earlier version of this decision, the Council said it was possible to seek advice as part of an annual review and its actions did not constitute a reassessment of W’s needs.
42. Regardless, the Council did not complete an annual review until June 2022, after it received the OT, SALT and EP advice. W’s previous annual review was in late 2019. As a result, the Council had not reviewed his EHC plan for over two and a half years when the law and Code says it should be done at least every 12 months. This was fault.

No delay in seeking specialist advice

43. The Council sought the SALT, OT and EP advice promptly after the January 2022 meeting. It was not at fault for delay in seeking the assessments.
44. During the period when the Council was seeking professional advice from the OT, SALT and EP, in February 2022, Ms X’s solicitor requested the Council also seek advice on W’s mental health to inform his EHC plan. The Council did so and contacted CAMHS and W’s private therapist without undue delay. The Council could not compel the private therapist to respond and CAMHS said W was not in receipt of services, although he had been on their waiting list. After the Council issued the EHC plan in August 2022, if Ms X felt the EHC plan did not correctly address W’s needs or the provision he required, she then had a right to appeal to the tribunal. We would consider it was reasonable for her to do so and so have not made a finding on this matter.

Failure to provide the special educational provision in W’s EHC plans

45. The Council has a duty to secure the special educational provision in a child or young person’s EHC plan. If the child or young person’s educational setting is unable to offer the provision itself, we expect councils to take action to source it from elsewhere. The Council was aware in at least August 2021 that W was about to start attending college without all the provision in his plan in place. The college had said it could not provide the OT, Social and Emotional Development and weekly literacy sessions set out in W’s plan of March 2020. The Council failed to ensure this was provided, which was fault.
46. The August 2022 EHC plan introduced SALT provision and removed the weekly literacy and Social and Emotional Development sessions. The Council did not ensure the SALT provision was in place and once again failed to ensure the OT support was in place. This was also fault.
47. W’s mid-February 2023 EHC plan included the same OT and SALT provision as the August 2022 plan as well as weekly literacy sessions. In late April 2022, the Council told me the SALT and OT provision was due to start soon. However, although the SALT and OT have been in contact with W, there is no evidence the full provision has been secured. In addition, W has not received any of the weekly literacy sessions set out in his February 2023 plan. The duty to secure the provision in a child or young person’s EHC plan applies from the date the plan is finalised. The Council's failure to do so was further fault.
48. It is particularly concerning that when asked for evidence the weekly literacy sessions were in place, the Council said it could not find evidence W needs or has needed weekly literacy sessions. The provision is clearly set out in W’s EHC March 2020 and mid-February 2023 plans.
49. In total, W missed out on the following special educational provision during the period of investigation:
• SALT from August 2022 to the end of February 2023;
• OT from September 2021 to the end of February 2023;
• weekly literacy sessions from September 2021 to July 2022 and from mid-February to the end of the month; and
• weekly Social and Emotional Development sessions from September 2021 to August 2022.
50. It is likely the loss of this provision had an impact on W’s skills and development and meant his time at college was less beneficial than it could have been. The fault also caused Ms X significant avoidable frustration.
51. Where the Ombudsman finds a child or young person has not had the special educational provision they should have, we usually recommend a payment of between £900 and £2400 per term. I have considered W’s age and the provision missed out on. I have recommended a payment of £900 per term, which totals £3100. I have also made recommendations to ensure the Council puts the OT, SALT and weekly literacy provision in W’s February 2023 plan in place ready for the start of the next academic year.

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Agreed action

52. Within one month of the date of my final decision, the Council will take the following actions.
• Apologise to W and Ms X for the injustice they experienced as a result its delay in carrying out W’s annual review until June 2022. The Council may want to refer to the Ombudsman's updated Guidance on Remedies which sets out what we expect from apologies.
• Pay Ms X £3100 for W’s educational benefit in recognition of the loss of special educational provision he experienced.
• Pay Ms X £400 to recognise the injustice she experienced due to the Council's significant delay in carrying out an annual review until June 2022, and the impact on her of its failure to secure W’s special educational provision for an extended time.
53. By September 2023 (the start of the new academic year), the Council will arrange the weekly 1:1 literacy sessions, OT and SALT provision in W’s February 2023 EHC plan.
54. Within three months of the date of my final decision, the Council will:
• remind staff there are no reasons set out in law that allow it to not carry out an annual review of a child or young person’s Education, Health and Care plan, and issue its decision letter at least every 12 months. It cannot allow annual reviews to be ‘superseded’ or ‘not finalised’; and
• review its systems for ensuring a child or young person is receiving the SEN provision in their EHC plan and for acting when it finds out provision is missing, whether that is through an annual review, complaint or otherwise. Where the Council finds areas for improvement, it will send the Ombudsman an action plan setting out the steps it will take and by when.
55. The Council will provide us with evidence it has complied with the above actions.

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Final decision

56. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.

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Investigator's decision on behalf of the Ombudsman