Summary: Mrs X complained about the Council’s failure to provide support for her child’s special educational needs and its handling of the Education, Health and Care Plan process. We found the Council was at fault because it took too long to issue two amended plans. This created uncertainty for Mrs X. To remedy this injustice, the Council has agreed to apologise and make a symbolic payment to Mrs X. It should also take action to improve it processes.

The complaint

1. Mrs X complains about the Council’s failure to provide specialist support her son’s special educational needs agreed in April 2021. In particular, she complains about the Council’s:
1. failure to provide 1:1 speech and language therapy (SALT);
2. failure to provide psychotherapy, as recommended by a clinic psychologist; and
3. delay in the Education, Health and Care (EHC) Plan process.
2. She says this has had significant consequences for her son’s development and well-being. He attempted to take his own life and is now excluded from secondary school. Mrs X says this is because the Council failed to provide necessary specialist support whist at primary school.

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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. 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)
5. 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.
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
7. 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

8. We expect people to make a complaint to us within a year of them thinking there may have been some fault by the Council. Therefore, the restriction outlined in paragraph 4 applies to part of this complaint. Mrs X complains about events that took place in 2021 and 2022. The Ombudsman has discretion and can disapply this rule if there are good reasons. I have decided not to exercise discretion to investigate earlier events because I consider it was reasonable for Mrs X to have come to the Ombudsman in 2021/2022 rather than leaving it until 2024.
9. Mrs X also had the right of appeal to the SEND Tribunal about the content of Y’s EHC Plan from June 2021, specifically about no direct SALT or therapy being included EHC Plans in 2021 and 2022. I consider it was reasonable for Mrs X to have used this appeal right because the Council has explained it was satisfied suitable provision was in place.
10. For these reasons, I have investigated events between February 2023 (12 months before Mrs X brought her complaint to the Ombudsman) and June 2024. The latter is the date of the Council’s final complaint response and when the Ombudsman agreed to investigate the complaint.
11. I understand Mrs X remains unhappy about the current position, but this will need to be the subject of a fresh complaint to the Council in the first instance.

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How I considered this complaint

12. I spoke to Mrs X and considered the information she provided.
13. I made enquiries of the Council and considered its response and case records.
14. I reviewed the relevant law and guidance.
15. Mrs X and the Council had an opportunity to comment on my draft decision. I considered all comments received before making a final decision.

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What I found

Relevant law and policy

Education, Health and Care Plans

16. A child with special educational needs (SEN) may have an Education, Health and Care Plan (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them.
17. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 

18. The Council is responsible for making sure that arrangements specified in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.

SEND Tribunal and appeal rights

19. There is a right of appeal to the SEND Tribunal against the special educational provision specified, the school or placement or that no school or other placement is specified.

20. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
21. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person.

Failure to secure provision

22. Councils have 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 2014). The courts have said this duty to arrange provision is owed personally to the child and is non-delegable.

Annual Reviews

23. 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 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.
24. 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.
25. The council must issue the amended EHC Plan within eight weeks of the original amendment notice.

Phased transfers

26. The council must review and amend an EHC Plan in enough time before to a child or young person moved between key phases of education. This allows planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year in which the child is due to transfer into or between school phases. The key transfers include primary school to secondary school.

What happened

27. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “Analysis” section of this decision statement.

Background information

28. Y is a child with SEN, including autism. Since 2018 he has had an EHC Plan. In 2021, whilst at primary school (School D), Y was excluded from the classroom, because of challenging behaviour. Instead, he was taught in a room on his own. Mrs X says Y has been traumatised by his experience at School D. This has had long term consequences on his mental health.
29. An emergency review was held in April 2021. Mrs X says the Council agreed to provide direct SALT and therapy.
30. Y started attending a new school (School P) in June 2021, initially on a part time basis. This change was referenced in an amended final EHC Plan issued in June 2021 (the 2021 Plan). The 2021 Plan did not include direct SALT or therapy. Mrs X did not exercise her right to appeal to the SEND Tribunal.

Events I have investigated

31. An annual review was held at School P in December 2022. Both Mrs X and School P stated there was a need for direct support/therapeutic intervention around long-standing trauma.
32. A final amended EHC Plan issued in June 2023 (the 2023 Plan). This did not include direct SALT or therapy. Instead, it provided for Y to participate in small group SALT sessions provided by school staff. These sessions were informed by guidance provided by the SALT service.
33. Similarly, School P was provided with support and guidance from the Child and Adolescent Mental Health Service (CAMHS), about how to manage Y within the school environment.
34. Following further concerns raised by both Mrs X and School P, the Council made arrangements for Y to receive direct SALT from October 2023. Play therapy was also introduced.
35. Mrs X complained to the Council in November 2023 about the lack of SALT and speciality psychological support.
36. In January 2024, Y attempted to take his own life. Mrs X says this was a direct result of lack of direct support and fear of secondary school. Y started secondary school in September 2024.

The Council’s position

37. In response to both Mrs X’s complaint and the Ombudsman’s enquiries, the Council explained:

• direct SALT had been provided at School P since October 2023;
• Y had received play therapy since November 2023; and
• Y’s EHC Plan did not require Y to be provided with direct therapy from mental health services or the SALT service. Instead, Y was supported by mental health and SALT services by way of advice to School P.

38. Analysis
39. I will consider Mrs X’s separate areas of complaint below.

Failure to provide direct SALT

40. Mrs X has a strongly held belief that the Council had previosuly agreed Y should have 1:1 SALT. While I have not investigated what happened in 2021, I must decide whether the Council was at fault for not providing direct SALT from February 2023 until October 2023.
41. Neither the 2021 nor 2023 Plans included direct 1:1 SALT. Instead, both plans provided for Y to “access SALT social skills group (1-4 peers) twice every week”. This to be provided by school staff and the SALT Service. From the case records I have seen, these group SALT sessions were delivered by school staff, with guidance from the SALT Service.
42. Because neither EHC Plan included 1:1 SALT, the Council was not at fault for not providing it.

Failure to provide direct therapy

43. The same principle applies to Mrs X’s complaint about lack of therapy. The Council was only under a legal duty to provide what was included in the EHC Plan.
44. I have been provided with a document produced by School P, “summary of interventions between June 2021 and July 2024”. This confirms there was regular dialogue between School P and CAMHS about Y. For this reason, I am satisfied what was set out in Y’s EHC Plans was provided.
45. As with SALT, neither the 2021 nor 2023 EHC Plans included direct therapy for Y. For this reason, I do not find the Council acted with fault.
46. Mrs X had a right of appeal to the SEND Tribunal about the lack of 1:1 support. It is not the role of the Ombudsman to determine whether Y’s EHC Plan should have included direct therapy.

Delay issuing an amended EHC Plan

47. An annual review was held in December 2022. The law says a final amended EHC Plan should be issued within 12 weeks from the annual review. The Ombudsman expects councils to adhere to statutory timeframes. In this case, there was a delay of approximately six months. This delay was fault.
48. There was also delay in holding the next annual review. Where there is a transfer between phases of education, in this case primary to secondary school, the law expects the review and any amendments to the EHC Plan to take place by 15 February. In this case, the review was not held until May 2024 and the amended plan not issued until October 2024. This was further fault.
49. As I have found fault, I need to consider what injustice this caused. I am satisfied Mrs X experienced both distress and uncertainty, particularly as the delays occurred between phases of education. This injustice requires a remedy.

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Agreed action

50. The Council has agreed to take the following action within four weeks from the date of my final decision statement.
1. Apologise in writing to Mrs X.
2. Pay Mrs X £500. This is a symbolic payment to acknowledge her distress and uncertainty caused by the delays I have identified in the EHC Plan process.
3. Take action to ensure procedures are in place to ensure annual reviews are held at the correct time and amended EHC Plans are issued within 12 weeks from the date of the annual review.
51. The Council should provide us with evidence it has complied with the above actions.

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Final decision

52. I have found the Council to be at fault and the Council has agreed to action my recommendations to remedy the injustice caused. On this basis, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman