Summary: Ms X complained the Council failed to secure the provision set out in her son’s Education, Health and Care (EHC) plan. She says this has caused his education and welfare to suffer and caused him distress. The Council is at fault for delay in reviewing and amending the EHC plan.

The complaint

1. Ms X complained the Council failed to secure the provision set out in her son’s Education, Health and Care (EHC) plan. As a result, his education and welfare have suffered and caused him distress.

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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 significant injustice, or that could cause injustice to others in the future 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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What I have and have not investigated

4. I have considered the delay in reviewing and amending the original EHC plan from February 2021. I have not considered the most recent version of the EHC plan as Ms X has a right of appeal to the Tribunal which she has exercised.

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How I considered this complaint

5. As part of the investigation I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to my enquiries.
• The Children and Families Act, Special Educational Needs and Disability Regulations 2014 and Special Education Needs Code.
6. 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 legislation

7. 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.
8. 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)
9. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:

• check the special educational provision is in place when a new or substantially different 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 that provision is not in place at any time.

10. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
11. 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)
12. 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)
13. 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)
14. 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

15. I have summarised below the key events; this is not intended to be a detailed account.
16. Ms X has brought this complaint for her son, S. The Council drafted S an EHC plan in February 2021 and updated it in June 2021. The plan was due for statutory review in February 2022. The June 2021 EHC plan named an education centre (School A) which S started attending in September 2021. School A offered an individualised timetable with extra support to gradually build the provision and reintegrate S into the main programme.
17. At the beginning of November 2022, Ms X contacted the Council. She said S was attending school for two afternoons a week and said S’s annual review was overdue. The following week, S’s caseworker contacted School A and asked it to complete the annual review.
18. In the middle of December, School A held the annual review. The review document says S was attending one or two afternoons a week and was working towards attending four afternoons a week.
19. At the end of January 2023, the caseworker chased School A for the annual review meeting documents. School A sent these in early February.
20. The caseworker drafted an EHC plan in February. The plan was to continue to reintegrate S into School A.
21. The caseworker circulated the EHC plan for comments at the end of February. Ms X asked for a short extension in March and responded a few days later saying she thought it needed more thought.
22. Ms X complained to the Council at the end of March.
23. The caseworker was absent from work over an extended period and returned in late April. On her return to work, the caseworker discussed S’s case with School A and updated the offer. In May 2023, the caseworker issued and circulated a new draft EHC plan.
24. The Council issued a stage one response in the middle of May and a stage two response in the middle of June. The Council apologised for the delays in relation to S’s EHC plan and any frustration and inconvenience caused.
25. In the middle of May, School A contacted the Council and said S was not attending and it could no longer support his needs. Around the same time, Ms X and S met with a virtual education provider (School B) and asked the Council to consult with it. At the beginning of June, School B responded to the Council’s consultation. The Council issued a further draft of the EHC plan and sent this to Ms X.
26. The Council issued the final EHC plan at the end of June and named School B.
27. Ms X said S started studying at School B in July 2023, roughly a month before the school summer holidays. In September, S returned to School B with an increased timetable.

Analysis

28. The Council should review the EHC plan each year. The original plan was dated February 2021. Legally, the Council should have reviewed it in February 2022. The review meeting took place in December 2022. This is a delay of ten months. This is fault.
29. The Council can ask the school to conduct the annual review, as it did in this case. The Council is responsible for ensuring the review takes place. It can delegate the task but not the responsibility. The Council is at fault for the delay in School A carrying out the review.
30. The Council became aware of the delay when Ms X told it. Once the Council was aware S needed a review, it quickly contacted School A and asked it to do this.
31. Following the review meeting in the middle of December, the Council should have sent Ms X and S a notice of the proposed amendments to the plan within four weeks (middle of January) and issue an amended version of the plan within a further eight weeks (early February). The Council sent the first draft plan to Ms X at the end of February and issued further drafts before the plan was finalised in late June 2023. The Council explained this was due to delay receiving the documents from the school following the review meeting and an extended absence by the casework officer. There was also further consultation with Ms X and education providers. This is a delay of around four months. This is fault.
32. S had an offer of education at School A where he could attend four times a week. S could not engage with this fully. The school spoke with S and his mother to offer a revised timetable which was more manageable and sustainable for him. The offer was open to S until the middle of May 2023, at which time the school said it could no longer support him. S received the offer of a place at School B in late June and started attending in July. While there was a slight gap in the provision of education for S, the Council responded quickly to secure a new provision. The Council is not at fault.

Injustice

33. I have considered the impact the Council’s faults had on S and Ms X.
34. The Council’s delay in reviewing and amending the EHC plan caused S and Ms X stress and anxiety. This is their injustice.
35. The Council has now reviewed and amended the plan and secured provisions for S which he is accessing. This has limited any further injustice.

Remedies

36. Within four weeks of my final decision, the Council agreed to:
• Consider how it monitors annual reviews which it delegates to schools so it can identify potential failings at the earliest opportunity.
• Apologise to Ms X and S for its failure to review and amend the EHC plan for S within the statutory timescales.
• Pay Ms X for the benefit of S, £500 for the avoidable distress caused by the Councils failure to review, amend and complete the EHC plan within the statutory timescales.
37. The Council agreed to provide us with evidence it has complied with the above actions.

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Final decision

38. I have completed my investigation. The Council is at fault for delay in reviewing and amending the EHC plan.

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Investigator's decision on behalf of the Ombudsman