Summary: The Council accepted fault for its delay issuing an amended Education Health and Care plan following an annual review in June 2021. As a result, Child B missed three terms of Speech and Language Therapy. The Council has agreed to arrange extra provision to make up for this missed time, pay Child B £1,500, and act to improve its services.

The complaint

1. Mr X complained the Council upheld his complaint that it delayed amending his child’s Education Health and Care (EHC) plan between June 2021 and December 2022 but has not offered a suitable remedy. He says the delay means his child missed 19 months of Speech and Language Therapy (SaLT) provision. He wants the Council to fund extra therapy sessions as a remedy for the lost provision.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I considered the complaint and the information Mr X and the Council provided.
5. I considered relevant law and guidance.
6. I referred to the Ombudsman’s Guidance on Remedies, a copy of which can be found on our website.
7. Mr X and the organisation 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

8. 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.
9. EHC plans must be reviewed every 12 months. These are called annual reviews.
10. 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 within four weeks of the annual review meeting. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
11. Following comments from the child’s parent or the young person, if the council decides to continue to amend, 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)
12. The annual review process should therefore take a maximum of 12 weeks.

What happened

13. Mr X’s child, whom I will call B, has special education needs. In 2020, the Council assessed B and issued an EHC plan. The plan sets out what provision B needs to meet their special education needs.
14. In February 2021, a Speech and Language Therapist (SaLT) assessed B and identified needs and recommended provision to meet them. The SaLT provided a report in May 2021 for the annual review of B’s plan in June.
15. From the annual review in June, it took the Council a further 19 months to issue B’s amended EHC plan in December 2022. The amended plan contains the SaLT provision recommended in 2021.
16. In response to Mr X’s complaint, the Council accepted fault for the delay issuing the plan. It said:
• Some of the delay was because of a backlog of annual reviews, capacity in the team and increasing demand
• It didn’t have good enough monitoring processes to make sure cases didn’t “fall through the gaps”
17. To remedy the injustice and improve its service the Council:
• Improved its monitoring and oversight of annual reviews
• Provided reminders to individual staff
• Apologised and offered Mr X £300 for the impact of the missed sessions and the distress caused
18. Mr X did not consider the Council’s offered remedy properly reflected the impact on B of missed provision and so complained to the Ombudsman.

My findings

19. The Council has accepted fault for the delay in issuing B’s amended EHC plan.
20. Because of the delay, B did not receive SaLT provision for three terms. This is an injustice to B.
21. I do not consider £300 to be a suitable remedy for that injustice and so make further recommendations below.

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Agreed action

22. To remedy the injustice to B from the fault identified, the Council has agreed to:
• Pay B £1,500, being £500 for each term of missed provision.
• Arrange or agree funding for extra Speech and Language Therapy to make up for the provision B missed.
23. The Council should also take the following action to improve its services:
• Remind staff with responsibility for responding to complaints to refer to the Ombudsman’s Guidance on Remedies to identify a suitable remedy for injustice caused by fault.
24. The Council should tell the Ombudsman about the action it has taken within four weeks of my final decision.

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Final decision

25. I have completed my investigation. There was fault by the Council. The action I have recommended is a suitable remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman