Summary: Miss X complained the Council failed to finalise and issue her son’s EHC Plan following the annual review meeting held on 21 April 2023; provided zero hours of social care from December 2022 and failed to provide OT from June 2023. Miss X says this has caused stress and frustration and her son has missed out on the appropriate help. The Council took more than a year longer than it should to complete the annual review, has provided no social care since January 2023 and no OT since June 2023 which is fault. A suitable remedy is agreed.

The complaint

1. Miss X complains the Council has failed to finalise and issue the EHC Plan for her son following the annual review meeting held on 21 April 2023; has provided zero hours of social care from December 2022 to date and has failed to provide OT as set out in the EHC Plan since June 2023.
2. Miss X says this has caused stress and frustration as well as her son missing out on the appropriate help.

Back to top

The Ombudsman’s role and powers

3. 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)
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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I have and have not investigated

6. Miss X previously complained to the Ombudsman about the Council’s failure to provide the social care provision set out in her son’s EHC Plan between May 2021 and December 2022. The Ombudsman upheld the complaint and a remedy was provided. This complaint deals with issues from that date onwards in respect of her son’s EHC Plan and the Council’s failures to provide what is set out in it and the delay in dealing with the annual review.
7. I am aware that Miss X submitted an appeal to the SEN Tribunal as well as making a claim in the small claims court. I have considered the details of both of these actions as they could affect the Ombudsman’s jurisdiction to consider this complaint. I am satisfied the actions taken by Miss X were misconceived and had no possibility of success. Miss X had no right of appeal to the SEN Tribunal as her appeal rights had not engaged. The court determined that it could not look at issues related to an EHC Plan and the claim was struck out. I am aware Miss X took these actions out of frustration at the failure of the Council to act and meet its statutory duty. In cases where proceedings are considered to be misconceived the Ombudsman retains jurisdiction.

Back to top

How I considered this complaint

8. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

Back to top

What I found

EHC Plan 

9. 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. 

Reviewing EHC Plans

10. 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.
11. 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) 
12. Where the 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. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.

Key facts

13. This section sets out the key events in this case and is not intended to be a detailed chronology.

Annual Review

14. A meeting was held at the school on 21 April 2023 to review the EHC Plan of Miss X’s son, B. The Council has a duty to review an EHC Plan at least every 12 months. While it can delegate the responsibility to hold the annual review meeting to the school, the legal duty lies with the Council. The Council and the school must co-operate to ensure a review meeting takes place.
15. Following the review meeting, the Council should have notified Miss X within four weeks of its decision to amend the EHC Plan and give details of the proposed changes. The Council failed to do that in this case. It says the school did not send it the outcome of the review until 12 September. However, I have not seen any evidence to suggest the Council sought information from the school about the review meeting to ensure it met its duty to review the EHC Plan within 12 months.
16. The Council issued the amendment notice to Miss X on 19 December 2023, well outside the four-week statutory timeframe. It did not issue the final amended plan until 15 August 2024. In total, the annual review process took over 68 weeks when it should be completed within 12 weeks of the annual review meeting. In response to my enquiries, the Council says the delay was due to changes in officers and difficulty finding a school.
17. The time taken to complete the annual review is fault. It took over a year longer than it should have to issue a final EHC Plan. I note the Council says the school did not notify it of the outcome of the annual review meeting for over 20 weeks. While this may be the case, the Council should be aware of when an EHC Plan is due to be reviewed. It should ensure it is in contact with the school and it should know the date of the annual review meeting and therefore when to expect the relevant paperwork.
18. The Council has now issued the final EHC Plan and so appeal rights have now engaged if Miss X disagrees with the named institution or the provision. The failure to issue the EHC Plan within the statutory timescale meant Miss X’s appeal rights were frustrated and she was left with a high level of stress and uncertainty about B’s future education. I consider the time taken in this case was unnecessarily prolonged and so I am recommending a higher than usual symbolic payment to recognise this.

Social care provision

19. Miss X complains the Council has failed to provide the social care provision as set out in B’s EHC Plan. A previous complaint upheld by the Ombudsman provided a remedy for this failure up to December 2022. This complaint is therefore considering provision from January 2023 to date.
20. B’s EHC Plan states that he would benefit from social care provision to enable him to access the community and associate with peers. The EHC Plan does not actually specify how much social care should be provided. It states, “confirmation of hours/frequency to be confirmed”. It was originally agreed that it would be three hours social care per week in term time and eight hours per week in the school holidays.
21. The Council accepts it has not provided the agreed package of support. It says that Miss X declined the use of direct payments and that it was unable to identify a care agency that could provide support for B. Miss X wanted a Somerset Supporter. This is a scheme that works with the young person on a one-to-one basis in the community and or the young person’s home. The Council says that it was unable to match B with a suitable supporter.
22. In June 2023, the Council considered the support package at a Children with Disability resource panel and proposed changing the provision to 12 hours per week in school holidays only. It reported that B is very active and likes to be busy. It said Miss X was unable to support B by herself in the community and that was able to manage better during term time because B would be worn out by college. It said it would use best endeavours to secure a core team but it could not guarantee the same agency worker each time. The hours would be used as three sessions of four hours per week.
23. Although changes to the support package were agreed by the resource panel, this has not resulted in the Council providing any social care for B. Miss X wants the social care to be provided in a specific way and the Council has been unable to deliver this. I asked the Council to provide a chronology of the actions it has taken to seek appropriate social care. The response is very limited and does not show that the Council has used its best endeavours to source suitable support. There is nothing to suggest the Council ever managed to commission a package of care which it offered to Miss X.
24. The failure to provide the social care is fault. Social care was to be provided to enable B to access the community and his peer group and broaden his life. The failure to do this means B has missed out on experiences for a prolonged period of time as well as continuing to put pressure on Miss X to provide support for B in the community. A remedy for this loss of social care provision is proposed below. In determining the amount, I note that no hours of social care have been provided. I also note that the EHC Plan does not specify the number of hours or frequency. This has changed since the previous decision by the Ombudsman and so I am recommending a different monthly payment to reflect the change in the proposed number of hours.

Failure to provide occupational therapy

25. B’s EHC Plan includes occupational therapy (OT) provision. Miss X says that this was provided at the school until June 2023 when the OT left and was not replaced. Miss X says that B should receive one hour of OT per week directly with the OT in 12 week cycles. This will then be reinforced every day by other staff when doing activities at school.
26. I asked the Council what action it had taken to ensure delivery of the OT detailed in B’s EHC Plan. It said that it would expect the school to continue to deliver this and provided no further details. This suggests to me the Council has not taken any action to ensure the OT specified in the EHC Plan is being delivered.
27. The duty to secure the specified special education provision in an EHC Plan lies with the Council. The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means that if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible.
28. We recognise it is not practical for councils to keep a “watching brief” on whether schools are providing all the special education provision for every pupil with an EHC Plan all the time, for example the council may secure provision which subsequently stops without it being informed. However, we consider that councils should be able to demonstrate due diligence and as a minimum 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 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.
29. I am not persuaded the Council has met the minimum requirements in this case. As explained above, the annual review was delayed by over a year. When the annual review meeting took place in April 2023 the OT provision was being provided. However, the Council should have started another annual review but had still not issued the final EHC Plan from the 2023 review. Because a further review meeting did not take place in April 2024 the issue of the missing OT was not brought to the attention of the Council.
30. In terms of raising complaints, Miss X approached us in December 2023 and her complaint included the missing OT sessions. We gave the Council an opportunity to consider the complaint itself before we began our investigation but the Council failed to do this.
31. Therefore, the Council has not met the minimum requirements expected by the Ombudsman. This is fault. B has not received the OT provision set out in section F of his EHC Plan. The OT provision set out in the EHC Plan is for continuing direct therapy in blocks and then a consolidation period. I consider this would have been very important to B as it focusses on his sensory regulation and the absence of this therapy would have significant negative consequences. While I cannot say exactly when the Council would have been aware of the missing OT but for the fault in this case, I am satisfied that the Council knew when we sent it a copy of Miss X’s complaint in December 2023. I have recommended an appropriate remedy for the loss of OT provision.

Back to top

Agreed action

32. To remedy the injustice as a result of the fault identified above the Council will, within one month of my final decision, take the following action:
• Apologise to Miss X and B for the continued failings;
• Make Miss X a symbolic payment of £1,000 to recognise her prolonged frustration as a result of the delay in completing the EHC Plan review;
• Make a payment of £4,200 to be used for B’s benefit in recognition of the 21 months since January 2023 that B has been without the social care provision in his EHC Plan;
• Make a payment of £2,500 to be used for B’s benefit in recognition of the 10 months since December 2023 that B has not received the OT provision in his EHC Plan;
• Take action to ensure the OT provision in B’s EHC Plan is in place and being provided;
• Convene a meeting with relevant officers, including senior managers with budget and decision making authority, and use their best endeavours to identify a suitable care provider to deliver the social care for B. This should not include using direct payments which Miss X has indicated she does not want;
• Report the outcome of the meeting to Miss X and provide details of the available options.
33. The Council should provide us with evidence it has complied with the above actions.
34. I have not made any service improvement recommendations in respect of the delay in the EHC Plan review process because this is an issue where the Ombudsman has found repeated fault. Recommendations to improve the process so that timescales are adhered to have been made and actioned since the dates in this case and the Ombudsman continues to monitor the situation.

Back to top

Final decision

35. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman