Summary: Ms Y complained the Council failed to provide all the special educational needs support set out in her child’s Education Health and Care Plan and delayed completing the annual review of the plan. We have found fault by the Council causing injustice. The Council has agreed to remedy this by apologising, reporting to us on progress, making payments and service improvements.

The complaint

1. The complainant, who I am calling Ms Y, complains about the way the Council dealt with her child, who I am calling Z’s Education Health and Care (EHC) plan and special educational needs (SEN) provision. Ms Y says:

• There was a delay by the Council in completing the annual review process and issuing a final plan following the review meeting in December 2022;
• The Council failed to provide all the SEN provision in Z’s plan; and
• She set out details of the SEN provision not being delivered in her February 2023 complaint letter. The Council failed to address this.

2. Ms Y says the failure to deliver all of Z’s SEN provision is affecting their well-being. In particular, the failure to follow the personal care plan is causing them distress and upset and is a health issue.
3. Ms Y wants the Council to ensure all Z’s current SEN provision in the EHC plan is provided by the school.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these.
5. 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)
6. 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)
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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What I have and have not investigated

The period from 6 June 2023

8. 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).
9. Ms Y appealed to the SEND Tribunal against the school place named in Z’s final EHC plan issued on 6 June 2023.
10. I have not investigated that part of Ms Y’s complaint about the failure to deliver all of Z’s SEN provision during the period from 6 June 2023. This is this issue is inextricably linked, in my view, to Ms Y’s appeal against its decision to the SEND Tribunal.

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How I considered this complaint

11. I spoke to Ms Y, made enquiries of the Council and read the information Ms Y and the Council provided about the complaint.
12. I invited Ms Y and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

What should have happened

Education, Health and Care Plan (EHC Plan)

13. A child with special educational needs may have an EHC Plan. This sets out the child’s needs and arrangements for meeting them.
14. Local authorities (councils) have a duty to arrange the special educational provision set out in an EHC Plan. (Children and Families Act 2014 section 42)
15. 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.
16. We cannot direct councils to make changes to the special educational provision set out in the plan or to name a different school. Only the SEND Tribunal can do this.
17. We recognise it is not practical for councils to keep a “watching brief” on whether schools are providing all the special educational provision for every child with an EHC Plan. We consider councils should be able to demonstrate due diligence in discharging its duty to make sure the arrangements in the EHC Plan are put in place, and as a minimum have systems in place to:

• Check the special education provision is in place when a new 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 the provision is not in place at any time.

Annual Reviews

18. The special educational needs and disability code of practice (the Code) provides statutory guidance about the procedure councils should follow when reviewing an EHC plan. The Code says a council must:

• review an EHC plan at least every 12 months. A council can consider holding an early review if there is a change in the child’s circumstances;
• within four weeks of the review meeting, decide whether it will keep the plan as it is, amend, or cease to maintain it. The council must notify the child’s parent of its decision;
• start the process of amendment without delay, if the plan needs to be amended;
• send the draft plan to the child’s parent and give them at least 15 days to give their views and make representations on the content; and
• when proposed changes to the draft plan are agreed, amend the plan and issue the final EHC plan as quickly as possible, and within eight weeks of the date the Council sent the proposed amendments to the parents.

19. Where the council does not agree the changes suggested by the child’s parent it may still proceed to issue the final EHC plan.
20. In any case the council must notify the child’s parent of their right to appeal to the SEND Tribunal and the time limit for doing so.

The Equality Act

21. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
22. It is unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
23. The ‘protected characteristics’ referred to in the Act include disability.

What happened

24. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.

December 2022: annual review of Z’s EHC plan

25. The Council issued Z’s final EHC plan in October 2022. This set out the SEN provision to be delivered to Z by the mainstream school named in the plan.
26. An annual review meeting took place on 12 December 2022. Ms Y asked for a specialist placement for Z. The Council said changes to Z’s plan would have to be referred to its SEN panel.
27. In January 2023 the Council told Ms Y it proposed to amend Z’s plan. It did not provide details of the proposed changes.

February 2023: complaint about the failure to provide Z’s SEN provision

28. Ms Y complained to the Council Z was not being provided with all the SEN provision set out in the EHC plan. She said the school was not delivering:

• enhanced staff ratio support;
• targeted writing reading and maths intervention;
• targeted social skills intervention;
• structured activities at play time guided by an adult;
• 1:1 intervention weekly to further develop emotional literacy;
• movement breaks away from desk;
• Fit to Learn programme;
• core stability practice for 40 mins per day. This was often only happening for 10 minutes at end of day;
• stretching activities; and
• OT programme.

29. Ms Y also complained the school was not following Z’s personal care plan, set out in section F of the plan, to support independence with dressing and toileting.

Action by the Council and its complaint response

30. The Council referred Ms Y’s request for a specialist placement for Z to its panel in February. The panel said it could not decide this request until it had received updated advice from an Educational Psychologist (EP).
31. In its stage 1 response, the Council provided Ms Y with an update on the progress of her request for a specialist placement for Z. It did not reply to her complaint about the failure to provide all Z’s current SEN provision.
32. Ms Y was not satisfied with the response and asked for the complaint to be escalated. In its stage 2 response in March the Council said:

• It had told her the plan would be amended. It had followed the due process and she would be able to comment on the draft amendments;
• It acknowledged there had been delays in its response to her complaint; and
• It accepted there were missed opportunities to resolve issues the previous year. But lunchtime supervision was agreed following her appeal to SEND.

33. Ms Y was unhappy with this further response. She told the Council although it had referred to lunchtime supervision, it had not addressed her complaint about its failure to deliver Z's other provision.

March to June 2023: further steps to complete the review of Z’s EHC plan

34. In March the Council received the updated EP’s report. This was referred to the panel. The panel considered the evidence and decided the type of setting required to meet Z’s needs remained a mainstream school but agreed a funding increase.
35. In April the Council sent Ms Y Z’s draft amended EHC plan. As requested by Ms Y, it also began consulting with other mainstream schools.
36. A Council officer called Ms Y about her stage 2 complaint. The Council’s record of the call refers to:

• The annual review in which everyone agreed Z’s school could no longer meet their needs;
• The school had told Ms Y funding was not the issue. It was struggling to deliver the provision because it did not have the right environment for Z; and
• Ms Y did not want weeks to pass without things being sorted for Z. She wanted Z to be happy at school and receive the provision they were entitled to.

37. The Council obtained further medical and other evidence and responses to its consultations with mainstream schools. This included the negative response from Z’s current mainstream school.
38. Z’s case was referred back to panel in May. They decided Z’s current school had not considered all the reasonable adjustments it could make to accommodate them. There was no evidence an increase in provision to meet Z’s needs warranted a specialist placement. Z’s current mainstream school remained the appropriate setting to meet their needs.
39. Z’s final amended plan was issued on 6 June. This named Z’s placement as their current mainstream school. It included additional provision of direct payments for two hours of time for Z with another person to develop social communication and interaction skills.

Ms Y’s continued concerns about the delivery of Z’s SEN provision

40. In June Ms Y told the Council Z’s needs were still not being met. She also said she intended to appeal to the SEND tribunal against the final plan.
41. The Council’s SEN assessment and review team (SENART) asked its inclusion SEND support services team (WISENDSS) for an update on how they had been supporting Z. WISENDSS said it had observed Z in November 2022. The school had not asked for further support at the Autumn and Spring term planning meetings. Going forward the team would contact the school and ensure support was embedded in meeting any identified needs.
42. WISENDSS contacted the school and Ms Y to discuss her concerns. A meeting was arranged for 27 June. This was postponed to 20 July with the suggestion it be a meeting to review Z’s EHC plan.
43. The meeting was further postponed to 18 September.

My analysis – was there fault by the Council causing injustice?

Completion of the annual review and final EHC Plan

44. The Council has accepted it did not meet the statutory timescales set out in the Code for completing the annual review of Z’s plan and issuing the final amended plan.
45. It should have sent Ms Y the proposed amendments to Z’s plan by 9 January 2023. It did not do this until 11 April, a delay of three months.
46. It should have issued the final amended plan by 6 March. It did not do this until 6 June. A further delay of three months.
47. These delays were fault.
48. I have considered the impact of the fault on Ms Y and Z below.

The arrangement of the SEN provision in Z’s EHC plan

49. The Council arranged for the SEN provision set out in Z’s EHC plan issued in October 2022 to be delivered by their mainstream school.
50. But Ms Y told it in February 2023 the school was not providing Z with all the provision in their plan. She provided specific details of the provision which was not being delivered.
51. I consider, at this point, the Council should have investigated Ms Y’s complaint with the school to check whether all the provision was in place. I have not seen any evidence that it took any steps to do so.
52. And I note it did not address Ms Y’s concerns about the delivery of the current SEN provision in its responses to her complaint. It referred to proposed amendments to the plan and whether the current provision was appropriate to meet Z’s needs. But there is no evidence it investigated her complaint that this current provision was not being delivered.
53. The school had said it could not meet Z’s needs. It told Ms Y it was not a funding issue. They were struggling to deliver Z’s provision because they did not have the right environment.
54. The information seen shows the Council’s SENART and WISENDSS teams did not make any enquires with the school about the delivery of Z’s provision until June 2023, and even then, there is nothing to show they made any checks or carried out any observations to establish how much of Z’s provision was being delivered.
55. I have noted that the Council and Z’s school do not accept what Ms Y has said about the delivery of Z’s SEN provision by the school.
56. But my view is the evidence I have seen supports Ms Y’s concerns the school was not delivering all the support in Z’s EHC plan. It also my view the Council did not demonstrate due diligence in discharging its duty to make sure the arrangements in Z’s plan were put in place. I consider this failure was fault.
57. My finding is the Council failed to ensure the delivery of all Z’s SEN provision in the October 2022 final plan from 1 February, and this was fault.
58. I have considered the impact of the fault on Ms Y and Z in paragraphs 63 to 69.

The failure to ensure the delivery of Z’s personal care plan

59. The Equality Act defines a disabled person as someone who has a “physical or mental impairment which has a substantial or long term effect on his or her ability to carry out normal day to day activities”. Continence is one of the normal day to day activities covered by the Act.
60. Where the Equality Act applies schools must make reasonable adjustments to ensure children with a disability are not treated less favourably,
61. We cannot find that an organisation has breached the Equality Act. However, we can find an organisation at fault for failing to take account of its duties under the Equality Act.
62. The provision in Z’s EHC plan also included the delivery of their personal care plan. Ms Y told the Council in February about the school’s failure to provide this support and the effect this was having on Z.
63. The Council was responsible for ensuring this important support for Z was delivered by the school.
64. I have not seen any evidence the Council took any action to address this issue with the school following Ms Y’s complaint in February. I consider the Council failed to take proper account of its duties to Z under the Equality Act and this was fault.
65. The failure to provide the personal care support had a significant impact on Z’s wellbeing and dignity at school.

Impact on Z of faults (a) and (b)

66. Z missed out on a large part of the SEN provision in their plan from 1 February 2023 because the Council failed to ensure this was being delivered by the school.
67. Because of the delay in issuing the final plan, Z missed out on the additional provision which should have been in place from 6 March.
68. Where fault has resulted in a loss of educational provision, we normally recommend a remedy payment of between £900 and £2,400 a term to acknowledge the impact of that loss. The figure is based on the circumstances of each case, to reflect the particular impact on that child or young person.
69. I have considered the impact on Z of the missed SEN support. Z is a child of primary school age and at a stage when children are developing essential literacy, numeracy and social skills. They missed out on a significant part of their SEN provision from 1 February to the end of the summer term 2023. They also missed out (from 9 March when the final plan should have been issued) on the additional two hours a week for social development in the final plan of 6 June.
70. For these reasons, I consider the payment should be towards the higher end of the scale from 1 February to 5 June 2023, with an additional payment for the missed additional provision from March to June.
71. And I consider the Council’s failure to meet the timescales for completing the review and issuing Z’s final amended plan, together with the failure to provide Z with all their SEN provision caused Ms Y uncertainty about what provision would be agreed, and distress about the impact on Z of the missed provision.
72. The delay in issuing the final plan also caused Ms Y the loss of an earlier opportunity to appeal to the SEND Tribunal, should she disagree with the SEN provision or placement named in Z’s final plan.

The Council’s complaint handling

73. Although the Council provided stage one and stage two responses to Ms Y’s complaints, there is no evidence it investigated her specific concerns about the failure to deliver all of Z’s SEN provision. And it did not respond to this part of her complaint. I consider this was fault. Because of this Ms Y was put to the time and trouble of bringing her complaint to us.

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Agreed action

74. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:
1. apologise to Ms Y for its failure to provide all of Z’s SEN provision from 1 February 2023 to 5 June 2023, the delay in completing the annual review and issuing Z’s final plan, and its complaint handling failures. The apology should reflect the principles about making an effective apology set out here Guidance on remedies - Local Government and Social Care Ombudsman in in our published Guidance on Remedies;
2. pay Ms Y £350 to reflect the distress caused by the failure to deliver all of Z’s SEN provision, uncertainty and lost opportunity to appeal because of the delay in completing the review, and the time and trouble bringing her complaint to us. This is a symbolic amount based on the Ombudsman’s published Guidance on Remedies;
3. pay Ms Y £1,900 for each school term Z did not receive his full SEN provision and support from 1 February 2023 to 5 June 2023. I have assessed this as being 1 school term + 1.5 school weeks, totalling £2,120. And the further amount of £250 to reflect the additional provision Z missed from 9 March to 5 June 2023 because of the delay in issuing his final plan. This makes a total payment of £2,370. This is a remedy for Z’s benefit to recognise the injustice the missed provision has caused them;
4. pay Ms Y £200, for Z’s benefit. This is to recognise the impact on Z’s dignity and well-being of the Council’s failure to take proper account of its duties under the Equality Act to ensure the delivery of the personal care support in his EHC plan; and
5. Report back to us on the action it has taken to ensure the school is delivering all the SEN provision in Z’s plan. If this is not being delivered, it should tell us what arrangements it has made for the provision of any missing support.
75. Within three months from the date of our final decision, the Council has agreed to:

• issue guidance to relevant staff reminding them of the need to issue revised EHC plans within the statutory timescales; and
• review its systems for ensuring a child or young person is receiving the SEN provision in their EHC plan and taking action 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.

76. The Council should provide us with evidence it has completed the above actions.

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Final decision

77. I have completed my investigation and found fault by the Council causing injustice. The Council has agreed to take the above action as a suitable way to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman