Summary: Mr X complained the Council did not secure the provision in his son’s Education, Health and Care Plan. We have found the Council at fault and it has agreed to remedy the injustice caused.

The complaint

1. Mr X complained the Council:
• Was at fault in the process of reviewing his son’s EHC Plan, leading to a flawed outcome.
• Failed to secure the provision set out in his son’s EHC Plan.
2. He said, as a result, his son has missed out on the provision to which he is entitled.

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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)

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What I have and have not investigated

5. I have not investigated the content of Y’s EHC Plan. Mr X has appealed this. I have referred to some matters being dealt with at tribunal, but this is for context purposes only.
6. I have not investigated the alleged flawed annual review processes as the outcome of the review is the amended Final EHC Plan that Mr X appealed.
7. My investigation focuses on the Council’s alleged failure to deliver the provision set out in Y’s EHC Plan between November 2022 and December 2023.

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How I considered this complaint

8. I have considered Mr X’s complaint and have spoken to him about it.
9. I have also considered the Council’s response to Mr X and to my enquiries.
10. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
11. 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 found

Law and guidance

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 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.
16. 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)
17. 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.
18. 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.
19. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.

What happened

20. Mr X’s son, Y has special educational needs (SEN). The Council issued Y’s Final EHC Plan in November 2022.
21. In January 2023, Y’s parents raised concerns that Y’s progress was declining at his mainstream school. They believed that the school’s failure to meet his SEN provision was preventing him accessing the curriculum. They said they had approached specialist schools that would be better at meeting Y’s needs. They asked for Y’s EHC Plan annual review to take place once schools resumed after the summer.
22. The Council responded. It explained that Y’s current EHC Plan stated that his needs can be met at a mainstream school. It said the school would need to request an early review if it considered it was unable to meet Y’s needs.

Annual review

23. In October 2023, the Council carried out an annual review of Y’s Plan.
24. Mr X raised concerns that the school was not delivering the provision set out in Y’s EHC Plan. The school said the EHC Plan outcomes were to be achieved by the end of key stage 2, not in the first year of the EHC Plan.
25. Mr X argued this was not the case and that it should be on going provision. He specifically referred to the lack of specialist IT equipment that Y needed plus the lack of an occupational therapy (OT) referral.
26. The Council issued an amended EHC Plan in October and an amended Final EHC Plan in December 2023. This named a mainstream school. Mr X appealed to the first tier tribunal.

My findings

27. The Council did not ensure Y’s school delivered the provision outlined in his EHC Plan. The Council has not provided an explanation for this. This resulted in Y not being able to access the curriculum and has delayed his academic progress at school.

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Agreed action

28. Within 4 weeks of my decision, the Council has agreed to:
1. Apologise to Mr X for failing to deliver the provision set out in Y’s EHC Plan.
2. Pay Mr X £500 for the distress caused to Y and his family.
29. Within 8 weeks of my decision, the Council has agreed to:
1. confirm how the provision in Y’s EHC Plan will be delivered. Specifically, the specialist IT provision and OT referral.
30. The Council should provide us with evidence it has complied with the above actions.

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Final decision

31. I have completed my investigation. I have found fault with the Council for failing to deliver the provision set out in Y’s EHC Plan.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman