Summary: Ms D complained the Council failed to ensure her son received all the provision set out in his Education, Health, and Care plan. We found the Council caused a service failure as dyslexia support was not in place for X. It was at fault for its failure to arrange alternative dyslexia support or provide Ms D a personal budget to arrange the provision. It was also fault for failing to provide some limited other provision. The Council agreed to apologise and make payment to Ms D to acknowledge the injustice this caused her and X.

The complaint

1. The complainant, whom I shall refer to as Ms D, complained about the Council’s handling of her son’s special educational needs provision. She said:
• the Council failed to provide some of the provision set out in her son’s Education, Health, and Care (EHC) plan;
• no annual reviews of his EHC plan had been completed; and
• she had made several complaints but her concerns had not been resolved.
2. As a result, Ms D said her son had a loss of educational provision which impacted his learning and confidence. She also said she experienced distress and had time and trouble to get the Council to address her concerns.

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What I have and have not investigated

3. I have considered Ms D’s complaint about the Council’s handling of her son’s special educational needs provision and her concerns since May 2021.
4. I have not investigated Ms D’s complaint about how the Council handled her son’s educational provision before May 2021 as this has been brought to our attention late.

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The Ombudsman’s role and powers

5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
6. 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.
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. 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)
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

10. As part of my investigation, I have:
• considered Ms D’s complaint and the Council’s responses;
• discussed the complaint with Ms D and considered the information she provided;
• considered the information the Council provided in response to our enquiries;
• had regard to the law and guidance relevant to the complaint.
11. Ms D 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

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. The EHC plan is set out in sections. Section F sets out the special educational provision needed by the child or young person.
13. 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.
14. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. 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 EHC Plan has been issued.
15. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
16. 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 courts have decided that this amendment notice should be sent within four weeks of the review meeting. (Section 22(2) Special Educational Needs and Disability Regulations 2014, SEN Code paragraph 9.194 and R (L, M, and P) v Devon County Council [2022] EWHC 493 (Admin))
17. 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)
18. 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)
19. 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.

What happened

20. Ms D’s son (X) attends a school in the Council’s area. He has learning difficulties due to conditions such as dyslexia and delayed language development.
21. X has an EHC plan which sets out his special educational needs and the support he should receive to meet these, which includes:
• 25 hours per week support from a learning support staff (LSA) for individual, paired or small group interventions;
• support and input from a speech and language therapist (SALT);
• access and sessions with key staff members or a mentor for emotional support; and
• support from a dyslexia support teacher in 1:1 sessions for 60 minutes each week.
22. In summer 2020 the school wrote Ms D to arrange the annual review of X’s EHC plan. However, it said Ms D did not respond. Ms D disputes the School’s claim.
23. In late 2020 Ms D complained to the Council some provision in X’s EHC plan was not available to him and the annual review of his EHC plan was overdue.
24. In response the Council agreed X’s dyslexia support was not provided and the annual review was overdue. It had addressed this with his school which gave assurances dyslexia support specialist would be put in place and X EHC plan annual review would be arranged. The Council agreed to Ms D’s request for a personal budget to compensate for the weekly dyslexia sessions X had missed in the past.
25. In autumn 2021 the school offered Ms D to arrange the annual review again, which it said Ms D refused. It then offered an annual review again and a review meeting was held in late 2021. The school said Ms D agreed to delay the submission of the paperwork to allow for an educational psychologist (EP) to see X to support updating his EHC plan. However, Ms D then refused to give consent for the EP to see X.
26. The Council chased the school for the annual review paperwork in late 2021 and early 2022. It also told Ms D it was still waiting for the school’s report and apologised for the delay.
27. In Spring 2022 Ms D asked the Council to reassess X’s needs. The Council agreed and consulted with specialists including an educational psychologist and a SALT.
28. The Council issued X’s amended Final EHC plan in Summer 2022. This set out in detail the special educational needs support and interventions X should receive from the school staff, his LSA and a SALT.
29. At the start of the 2022/2023 academic year, Ms D raised concerns to the school about some provision in X’s EHC plan which was not being delivered.
30. In Autumn 2022 the school offered Ms D an annual review of X’s EHC plan. However, Ms D declined the review as she was happy with X’s EHC plan, and she had recently met with the school Special Educational Needs Coordinator (SENCo).
31. Ms D continued to raise her concerns to the school about some EHC plan provision not being provided for X.
32. The school told Ms D X’s EHC plan provision was in place, but agreed some provision was still being arranged. These were:
• two weekly 45-minute small group sessions following a specific programme with focus on math and literacy. It explained it was working on putting a small group in place, but X would continue working on this with his LSA;
• two weekly literacy 45 minute 1:1 or groups sessions to learn specific vocabulary and improve writing skills. It said it had referred X to its literacy specialist for sessions, but she had no capacity;
• daily 45-minute math tuition 1:1 or small group within school. It had dropped some other lessons on Ms D’s request to use the time to work on his math skills and his LSA was offering support with specific skills he finds difficult; and
• weekly 60-minute sessions 1:1 by a trained member of staff specialised in dyslexia. It explained it was recruiting for this post, and all its staff are receiving training on dyslexia the following week.
33. Ms D also involved the Council in her concerns about the EHC plan provision X was receiving. She also said X had never had an annual review of his EHC plan, the school had not communicated with her, and it had forced him to have some GCSE exams but did not prepare him properly.
34. In response, the Council told Ms D it was aware there was a gap in some provision specified in X’s EHC plan and the support he was receiving in school as it does not have a dyslexia teacher. It explained it:
• had suggested Ms D accepted the annual review offered by the school as this was an opportunity to hear and discuss the support available;
• was supporting the school with its recruitment and had asked it to provide an enhance level of dyslexia support once a teacher was in place;
• had contacted the school to get clarification on the provision X was receiving in comparison with his EHC plan based on the provision Ms D said was missing;
• had found the school had a clear understanding of X’s skills, abilities and knowledge in each area and was confident his provision would be met. The aim was to ensure X has full access to the curriculum and be taught alongside his peers. The school therefore wanted to arrange his interventions as much as possible at times where he was free to do so; and
• has no powers over the academy school and had no formal powers to investigate how the school fulfils its obligations. However, Ms D could complain to the school.
35. Ms D asked the Ombudsman to consider her complaint. She said she disagrees with the support the school said was in place and she had received a personal budget from the Council for the lack of support X experienced but payments were not clear.
36. In response to my enquiries the Council explained it had:
• paid Ms D £1,475 to cover the missed dyslexia support for the 2020/2021 academic year;
• paid Ms D £237,50 in February 2022 after a member of staff supporting X was unavailable for half a term;
• recently offered Ms D a direct payment for the missed dyslexia support to make up for the provision. However, it was yet to calculate the payment and Ms D had not yet accepted this; and
• attempted to work with the school, but the school been closed during four separate instances in 2022 due to industrial strike action and it had failed to engage properly with the Council.

Analysis and findings

EHC plan provision for the 2021/2022 academic year

37. The Council agreed X did not receive the dyslexia support set out in his EHC plan during the academic year. This was because the school had not managed to recruit a suitably experienced teacher to do so.
38. I acknowledge the school’s recruitment difficulties, management changes and industrial strike actions, and the steps the Council took to support the school which was impacted by the school’s lack of engagement. However, it remained the Council’s responsibility to ensure X received the provision set out in his EHC plan, including his dyslexia support. Its failure to ensure this was in place and delivered to X was therefore a service failure.
39. The Council arranged payment to Ms D for the 2020/2021 academic year for Ms D to put in place some dyslexia support for X. However, it took no steps to arrange this, or commission its own dyslexia support for X, prior to the start of the 2021/2022 academic year. This was fault. X therefore had a loss of dyslexia support during the academic year.
40. Ms D also said X did not receive some literacy support. The school disagreed and said its literacy specialist teacher worked with X during the year. The Council considered Ms D’s concerns but was satisfied the provision was delivered. I have not seen enough evidence X did not receive his literacy support during this period. I have therefore not found the Council at fault for failing to ensure he received this.

EHC plan provision for the 2022/2023 academic year

41. The Council agreed X’s dyslexia support was also not in place during the 2022/2023 academic year and the school has still not managed to recruit a suitably experienced teacher.
42. While I acknowledge the school arranged dyslexia training for its staff, X has therefore continued to be without dyslexia support as set out in his EHC plan during the academic year. The Council was aware of this and therefore continued to cause a service failure.
43. Also, the Council had still not commissioned alternative support, or provided Ms D with a personal budget to source the provision herself. Instead, it told the school to provide X with an enhanced level of dyslexia support once a dyslexia teacher was in place. This was fault as this should have been in place at the start of the academic year and continue until the school has been successful in its recruitment and provision has been put in place for X.
44. The Council’s suggestion for the school to put in place enhanced dyslexia support for X may be useful when the school manages to recruit a suitably qualified teacher. However, I found this would not address the loss of provision X already had and the impact the lost provision would have had on him. Nor the distress and uncertainty Ms D had experienced.
45. Ms D and the school disagrees about whether X received all other provision set out in his EHC plan at school, including the amount of time his LSA or other key staff was available to him.
46. The Council considered Ms D’s concerns and the school’s response. It was satisfied that despite of the challenges the school was experiencing, X’s other EHC plan provision was provided to him. I found, on balance, the majority of other EHC plan provision was in place and delivered for X.
47. However, I found X had some loss of other EHC provision, which also caused Ms D some distress and uncertainty. This is because the evidence shows the school’s literacy specialist and other difficulties within the school meant some support, including literacy support and math, were not delivered:
• at the start of the academic year; or
• for the amount of time set out in X’s EHC plan; or
• with an appropriate small group cohort; or
• by staff with the level of experience expected in X’s EHC plan.

Annual reviews

48. The Council accepted, in its May 2021 final complaint response, the annual review of X’s EHC plan was overdue and asked to school to arrange this. Ms D then turned down the annual review offer, but a review meeting was subsequently held in late 2021.
49. I understand the annual review process was not completed as Ms D did not grant consent for the school’s educational psychologist to see X. The school said it therefore did not share the annual review paperwork with the Council, despite the Council’s request.
50. I have therefore not found the Council at fault for failing to ensure X’s annual review was completed. I am also conscious the Council subsequently agreed to Ms D’s reassessment request of X’s special educational needs in Spring 2022, and it completed the EHC plan process within the statutory timescales.
51. X’s amended Final EHC plan was issued in Summer 2022. Despite of this, the school offered Ms D an annual review in Autumn 2022 due to the concerns she had about the provision it was providing. This was also an opportunity for Ms D to raise her concerns about any provision in X’s EHC plan which she was unhappy with or felt was not being delivered.
52. I have not found the Council at fault for delay in completing X’s annual review. This is because Ms D declined the annual review the school offered and the review would not be required until Summer 2023, which will be 12 months after the amended Final EHC plan was issued.

Complaints handling

53. While I understand Ms D is not satisfied with the outcome of her complaints to the Council, based on the evidence available, I have not found the Council at fault for how it handled Ms D’s complaints. This is because, on each occasion, the Council considered her concerns, investigated, and provided its responses.

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Agreed action

54. To remedy the injustice the Council caused to Ms D and X, the Council should, within one month of the final decision:
1. apologise in writing to Ms D and X, and pay her £300 to acknowledge the distress and uncertainty the Council’s service failure and faults caused her and X;
2. pay Ms D £4,562.50, to use as she sees fit for the benefit of X, to acknowledge the lost dyslexia support X had from September 2021 to May 2023;
3. pay Ms D a personal budget or direct payment sufficient for Ms D to arrange dyslexia support as set out in X’s EHC plan from June 2023 until such time the school, or the Council, has put this in place; and
4. pay Ms D £400, to use as she sees fit for X’s benefit, to acknowledge the loss of other special educational needs provision X did not receive, or was not delivered as set out in his EHC plan, in the 2022/2023 academic year.

In total the Council should pay Ms D £5,262.50.

55. Within three months of the final decision the Council should also:
1.  
2.  
3.  
4. remind its SEND staff of the Council’s duty to provide all the special educational needs provision set out in a child, or young persons, EHC plan. In circumstances where outside the Council’s control this is not possible in the short term, alternative arrangements such as commissioned provision or a personal budget should be put in place before the provision is due to start to avoid unnecessary delay and a loss of provision.
56. The Council should provide us with evidence it has complied with the above actions.

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Final decision

57. There was fault which caused an injustice. The Council has agreed with my recommendations, it is on this basis I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman