Summary: Miss X complains the Council failed to adhere to statutory timescales and failed to deliver provision set out in Y’s EHCP. We have concluded our investigation having made a finding of fault. The Council failed to adhere to statutory timescales during the EHCP process. Further, the evidence does not demonstrate that much of the provision Miss X complained about was delivered, and on balance I have concluded that it did not. The Council has agreed to our recommendations.

The complaint

1. Miss X complains about the Council have failed to follow process and statutory timescales with regard to the EHCP process for her son, Y. Miss X also complains that the Council have failed to deliver provision set out in Y’s EHCP. Miss X says that a result of this, Y has been disadvantaged and events have impacted upon his mental wellbeing. Miss X says she has spent much time and cost supporting Y in absence of the Council. Miss X would like the Council to ensure it adheres to process and statutory timescales, and to provide a remedy to acknowledge the impact on herself and Y.

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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. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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. 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.
7. 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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What I have and have not investigated

8. I have not investigated any complaint that pertain to the period which predates August 2022. I have considered Miss X’s comments to look at events prior to this, however, I have exercised my discretion to limit my investigation to events from September 2022, when Y’s EHCP was finalised in that year.
9. While Miss X raises valid concerns about provision prior to this date, particularly regarding Y’s access to non-core subjects at an age-appropriate level and the teaching of core subjects, I do not consider it would be possible to reach a fair and robust conclusion on these matters. Given the passage of time, the availability and reliability of evidence may be limited, making it difficult to determine with certainty what support was in place and whether it met Y’s needs. Therefore, it is reasonable and proportionate to focus my investigation on the period from September 2022 onwards, when the final EHCP set out Y’s entitlement to provision.
10. I have not investigated any complaint relating to the content of Y’s EHCP, including Miss X’s complaint that Y’s EHCP was outdated. Miss X has a right of appeal and I have not seen any reason that Miss X could not have exercised this right.

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How I considered this complaint

11. I liaised with Miss X and considered the information she provided. I also made enquiries with the Council and considered the information it provided in response. I issued a draft decision in September 2024, and following comments from Miss X and the Council, issued a second draft decision. Miss X and the Council were offered an opportunity to comment on my second draft decision and I considered any comments submitted before making a final decision.

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What I found

Relevant guidance and legislation

EHC plans

12. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document 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 their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.
13. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)
14. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to:
• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement;
• check the provision at least annually during the EHC review process; and
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.
15. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. This includes the content of EHC plans. We refer to it as the SEND Tribunal in this decision statement.
16. 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 restriction applies from the date the appeal right arose to the date of the appeal hearing.

Reviewing EHC Plans

17. The Council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
18. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
19. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.

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What happened

20. I have included a summary of some of the key events in this complaint. This is not intended to be a comprehensive account of everything that took place.

Background

21. Y has an EHCP. At the time of this complaint, Y was attending School A.
22. A review of Y’s EHCP was held in December 2021 and the plan finalised in September 2022.
23. A review of Y’s EHCP was again held in March 2023 and the plan finalised in August 2023.

Stage 1 Complaint

24. In April 2023, Miss X complained to the Council. She complained about:
• Non-compliance with SEN policies: Miss X alleges that School A did not adhere to its SEN policy, The Equality Act 2010, and the SEND Code of Practice. This includes failing to offer a broad and balanced curriculum, which she believes has put Y at a disadvantage compared to his peers.
• Specific failures in provision: notably that:
1. Y’s curriculum was limited and did not meet the age-expected levels in subjects such as science and literacy.
2. The school did not provide individual support or a suitable buddy as specified in the EHCP.
3. There were inconsistencies and failures in following the EHCP targets, including inadequate support for his social, emotional, and mental health needs.
4. The school did not follow proper procedures for annual reviews and target setting.
• Ongoing issues and escalation: Miss X made several informal and formal complaints to the school, involved external agencies, and is now escalating the issue to the Local Authority. She emphasized that the Council is legally responsible for ensuring Elliot receives the education specified in his EHCP.
25. Miss X said that the lack of proper education and support has caused Y to fall significantly behind academically and has affected his mental health and social development.

Stage 1 Complaint Response

26. In April 2023, the Council responded to Miss X. In the Council’s response:
• it notes that the EHCP was updated in September 2022, with Miss X having the right to appeal if dissatisfied with the changes.
• it indicates that an annual review for Y’s EHCP was scheduled for March 2023, which would be an opportunity for Miss X to discuss her concerns and future educational needs.
• it addresses Miss X’s dissatisfaction with SENDIASS (Special Educational Needs and Disabilities Information Advice and Support Service), stating that support was provided during two periods but not all complaints were recorded or addressed.
• It acknowledges some issues, such as a delay in allocating a caseworker and a rescheduled meeting due to illness, but concludes that the support provided was appropriate.

Stage 2 Complaint

27. In April 2023, Miss X escalated her complaint to Stage 2 of the Council’s complaint process.
• Miss X alleged that School A was not following SEN policies and not providing the education and support specified in Y’s EHCP which she said the Local Authority is responsible for ensuring.
• Miss X argued that the school did not follow proper procedures for annual reviews as outlined in the SEN Disability Regulations 2014 and the SEN Code of Practice.

Stage 2 Complaint Response

28. In November 2023, the Council responded to Miss X. In the Council’s response:
• It said it is the School A’s responsibility to arrange and conduct annual reviews and prepare reports. The Local Authority processes these reports as submitted by the school and does not alter them. Complaints about the review process should be directed to the school.

The Ombudsman’s Enquiries

29. As part of our investigation, we made multiple enquiries to the Council. Of note:
• The Council said the statutory process for the EHCP process had been adhered to. It provided a chronology of events up to November 2019, but no further events thereafter.
• Initially, we asked the Council to provide evidence of how it had met provision in Y’s EHCP, but no evidence was provided to substantiate that the provision Miss X complained had not been delivered, had in fact been.
• In our subsequent enquiries, the Council provided witness statements from Y’s Head Teacher at School A, and further supporting information including relevant reports. The Council said it disputes that Y did not receive education provision between September 2022 and May 2023. The Council says there was education provision put in place by the school and references the witness statement as evidence of the provision provided at the time
• The Council says Y was registered as Electively Home Educated from May 2023.

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Analysis

Delay in the EHCP process

30. As per paragraph 17-19, the Council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. Further, within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete.
31. From the evidence available to me, I can see that a review of Y’s EHCP was held in December 2021 and the plan not finalised in September 2022. A review of Y’s EHCP was again held in March 2023 and the plan finalised in August 2023.
32. The review of Y’s EHCP in December 2021 was not finalised until September 2022. This is a significant delay of around nine months, which exceeds the typical statutory timelines for EHCP reviews and finalisation. This is fault by the Council.
33. The review of Y’s EHCP held in March 2023, should have been done so within 12 months of the review held in December 2021. This is a significant delay of around three months, which exceeds the typical statutory timescales for EHCP reviews. This is fault by the Council.
34. Following the review held in March 2023, the plan was not finalised until August 2023. This is a significant delay of around two months which exceeds the typical statutory timescales for finalising Y’s EHCP. This is fault by the Council.

Delivery of provision

35. As per paragraph 13, the Council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan.
36. As per paragraph 14, we accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to:
• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement;
• check the provision at least annually during the EHC review process; and
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.
37. Where we asked the Council to provide evidence that these provisions had been met, I consider that the Council has not provided any compelling evidence to persuade me, nor evidence that provision Miss X has complained about, has been delivered.
38. The evidence provided by the Council supports Miss X’s assertions that a full curriculum was not delivered, as the witness statement proposed to employ a special education teacher which would enable the school to deliver national curriculum teaching, and that in its current set up, it was not able to do so.
39. The witness statement did conclude that Y was offered the option to use a laptop for completing work, and so I am satisfied that the provision to reduce writing commands was met.
40. The Council indicated in response to the Ombudsman that it was not aware whether the provision for setting targets was met and that responsibility for setting targets lies with the school. As per Y’s ECHP, it is noted that short term targets will be set by the educational provider and informally reviewed at least termly. I could not see any evidence within the statement, nor further evidence provided by the Council that that the school set targets for Y. I therefore find that this was not delivered.
41. The Council said that it relies on the school to manage therapy services. The Council also said that the therapy service did not advise that they hadn’t delivered the provision. The Council says whilst it is responsible for the delivery of provision, it would not have the capacity to follow up each child’s delivery and is alerted by the therapy service. Whilst I acknowledge the Council’s comments, it remains that the provision was not delivered. The Council remains ultimately responsible for ensuring that the support in the EHCP is in place, regardless of whether it was informed of any issues. The failure to deliver the required provision means the Council did not meet its statutory duty, which resulted in a loss of support to Y.
42. The Council provided two Physio reports, from May 2022, and August 2023. It is noted in the report from May 2022 that Y will continue to be followed up in clinic on a regular basis, and that it would be beneficial to carryover his exercises at home and if there is scope, within his school setting several times a week. In Y’s ECHP, it states that’s Y’s TA will carry out his physiotherapy programme exercises twice a day. The Council indicated that it is not aware whether sessions were conducted and from the evidence I have been provided with, I cannot substantiate that this provision was delivered either.
43. In the absence of compelling evidence to demonstrate otherwise, I am to accept, on balance that Miss X’s assertions that the provision was not delivered. This conclusion is reached after considering the overall context and the lack of substantiating information from the Council, or evidence to demonstrate that the provision was delivered.

Injustice imposed on Y and Miss X

44. Delays in conducting annual reviews and finalising Y’s EHCP would have delayed access to updated support and tailored educational provisions, leading to frustration, anxiety, and potential setbacks in their academic and social development. I also consider that this could have delayed Miss X’s right of appeal, but as I have not seen evidence that Miss X appealed or intended to appeal, injustice concerning a delayed right of appeal does not apply.
45. The failure to deliver provision to Y set out their EHCP would have hindered Y’s academic progress and overall development. Further, Y’s educational needs not being met would have also led to frustration, low self-esteem, or disengagement from school, affecting their social interactions and emotional well-being. I have taken the period of injustice for undelivered provision to be between September 2022 to when Y was registered as Electively Home Educated from May 2023.
46. Miss X and the wider family would experience undue stress and frustration due to the lack of support and communication from the Council, leading to a sense of isolation or helplessness in advocating for Y’s needs.

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Agreed action

47. Miss X has detailed Y’s wellbeing throughout the period, highlighting the significant mental, emotional, and physical impacts caused by the lack of provision as outlined in his EHCP. The continued failure to provide age-appropriate educational support, alongside the lack of appropriate therapies, contributed to the overall injustice for Y, including frustration, disengagement, anxiety, and physical pain.
48. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. I have considered Y’s circumstances and events in this complaint and have arrived at the midpoint of our recommendation.
49. As described in paragraph 41, I consider the period of complaint for missed provision to be between September 2022 and May 2023. This would represent a term between September 2022 – December 2022, a term between January 2023 – March 2023, and a quarter of a term between April 2023 – May 2023.
50. To prevent similar occurrences and remedy injustice identified in this complaint, the Council will:
1. Enhanced Monitoring of School Provisions: Conduct a review with a view to implementing a system to monitor the implementation of provision. This is in line with the Ombudsman’s expectations from Council’s as per paragraph 14.
2. Annual Reviews: Conduct a review with a view to implementing a system to monitor the timeliness of annual reviews where the process has been delegated to schools. This should ensure sufficient monitoring arrangements are in place to identify potential failings at the earliest opportunity.
3. Complete a review of Y’s circumstances, ensuring that all provision in Y’s EHCP is being met, where applicable. Where provision is not being met (for example the physiotherapy sessions), the review should consider whether additional provision is appropriate to make up for what has been missed.
4. Provide an apology to Miss X and Y, for fault and injustice identified in this complaint. The apology should be in line with the Ombudsman’s Guidance on Remedies.
5. Pay Miss X and amount of £3,712.50. This is to acknowledge missed provision for Y between the period September 2022 – May 2023.
6. Pay Miss X a further amount of £300 to acknowledge distress imposed on her and the wider family because of delay experienced in the EHCP process, and failure to deliver provision to Y.
51. The will complete action points a-c within two months of the Ombudsman’s final decision, and action points d-f within one month of the Ombudsman‘s final decision.

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Final decision

52. I have concluded my investigation having made a finding of fault. The Council failed to adhere to statutory timescales during the EHCP process. The Council have not been able to substantiate that provision was delivered to Y, and on balance I have concluded that it did not. The Council has agreed to our recommendations.

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Investigator's decision on behalf of the Ombudsman