Summary: The complaint is that since September 2021, the Council has provided little of the provision set out in Miss P’s Education, Health and Care Plan. Even after a Tribunal decision, the Council did not put in place provision. We uphold the complaint. The Council has agreed to our recommendations of remedies for Miss P’s injustice.

The complaint

1. The complainant (Miss P) is being represented by Mrs N. They say that since September 2021, the Council has provided little of the provision set out in Miss P’s Education, Health and Care (EHC) Plan. Even after a Tribunal decision, the Council did not put in place provision. Miss P has had none of the psychotherapy or speech and language therapy (SLT) outlined in the plan. The Council has shown no apparent drive to remedy this. Nor has it provided updates on what it is doing to secure the provision set out in the EHC Plan.

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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. 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)
4. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. 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.
5. The courts have established that if someone has appealed to the Tribunal we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
6. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
7. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the SEND Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
8. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example:
• delays in the process before an appeal right started; and
• where there is support in an EHC Plan that is not being delivered to the child or young person and we decide the cause is not connected to the appeal.
9. 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)
10. 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

11. As noted above, the Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
12. Miss P complains about matters some of which happened more than 12 months before her complaint to the Ombudsman (see paragraph 3). But our provisional view is we should use our discretion to consider these issues as, in the earlier period, Miss P was a child and she is depending now on the support of a professional representative.
13. Miss P’s parents appealed a final EHC Plan covering part of the period the complaint covers. That means the restrictions set out at paragraph 4 & 5 apply.
14. Mrs N argues that for the appeal period we can look at what the Council did to provide the contents of Section F of Miss P’s EHC Plan, as that part of the Plan was not subject to appeal.
15. The crucial test for the Ombudsman is whether the SEND Tribunal had the powers to change or affect the non-appealed parts. With Miss P’s appeal, I can see it was at first was restricted to questions of the quality/extent of the speech and language (SLT) therapy set out in the Plan. But the Consent Order (agreed through the appeal process) allowed into the appeal changes to Section F of the Plan, around Miss P’s education out of school.
16. This means my decision is the SEND Tribunal did had powers to change Section F of Miss P’s Plan. The Section was part to the Tribunal’s deliberations. So we cannot investigate the period between June 2021 to April 2023.

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How I considered this complaint

17. As part of the investigation, I have:
• considered the complaint and the documents provided by Mrs N;
• made enquiries of the Council and considered its response;
• spoken to Mrs N;
• sent my draft decision to Miss P, Mrs N and the Council and invited their comments.

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What I found

Legal and administrative background

18. A child or young person with special educational needs may have an 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 SEND Tribunal or the council can do this.
19. The council has a duty to secure the specified special educational provision (Section F) in an EHC Plan for the child or young person (s.42 of The 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)
20. 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 then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
21. A council must decide whether to maintain, amend of cease an EHC Plan within four weeks of the date of the review meeting. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person details of the proposed amendments and then finalise the Plan within a further eight weeks.
22. After an appeal, the council must carry out the Tribunal’s Order within a fixed period. The time limit to make changes to an EHC Plan is five weeks (SEND Regulation 44). Complaints where a council has not followed a Tribunal decision are within our jurisdiction, because the Tribunal does not have powers to follow up its own final orders.

What happened

23. The information below is a summary of relevant events, and does not include every everything that happened during the period.

Background

24. Miss P was born in 2004. She has special educational needs and since at least 2017 has had issues of anxiety which have impacted on her school attendance. She has had an EHC Plan since 2019.
25. Miss P’s EHC Plan was reviewed in 2020 and again in 2021, with the Council issuing a final Plan in May.

The November 2021 review

26. In the time after, Miss P’s needs worsened and her college placement broke down. The Council decided to review Miss P’s EHC Plan and issued a report at the beginning of November.
27. At the end of 2021 the Council agreed to refer Miss P to an alternative placement, as an interim measure until it could find her a new placement. Because of some confusion with the funding arrangements, Miss P did not start the course the Council agreed to fund. It later apologised it had not done more about this matter.
28. At this time Miss P was refusing to engage with SLT arranged and her parents were looking to arrange different therapy.
29. At the beginning of June 2022 the Council finalised Miss P’s EHC Plan. It named a new college for her to attend from September. Miss P appealed this Plan around a week later.

After the appeal

30. In January 2023 the Council’s decision making group met in relation to Miss P’s needs. It proposed extending an education out of school package until the end of the academic year. This was in response to Miss P’s appeal.
31. In April 2023 the Council and Miss P agreed a Consent Order through the Tribunal process. This noted it permitted an amendment to the grounds of appeal to include Miss P’s request for a package of education outside school to be in included in section F of her EHC Plan. The Consent Order noted SLT provision should be delivered “‘in the moment’ incorporated into the way mentor delivers programme”. It also recommended an initial six hours of educational psychologist assessments.
32. The Council updated Miss P’s EHC Plan at the beginning of June. It apologised for the delay.
33. In mid-July Mrs N complained on behalf of Miss P’s parents.
34. At the beginning of August the Council issued requests for provision.
35. The Council responded to the complaint towards the end of September. It apologised for the delay in providing SLT provision, which was still not then in place. It said it had issued requests for this provision: “however the availability of professionals and the lack of capacity has led to this need not yet being met”.
36. In October Mrs N escalated the complaint to the next stage of the Council’s procedure. The Council responded at the beginning of December 2023.
37. The Council’s response provided a written apology to Miss P in relation to its failure to adhere to the Tribunal order. It also accepted Miss P had missed some education due to delays. It offered her £1000 as a remedy.
38. In May 2024 Mrs N complained to the Ombudsman on Miss P’s behalf. She advised the Council had not provided any of the provision set out in the new EHC Plan.

Analysis

The first delay

39. The Council produced an EHC Plan review report at the beginning of November 2021. It should have finalised the Plan within eight weeks, so by the third week in December 2021. The Council did not produce its final EHC Plan until the beginning of June 2022. So this was a delay of around five and half months – or around a term and a half. That delay was fault.
40. Due to the delay, Miss P’s right of appeal was delayed. The Consent Order later changed the EHC Plan. So, but for the delay, Miss P would have, likely, earlier had the changes made to her SEN provision, as she would have appealed earlier.
41. Miss P also missed some alternative provision the Council agreed to provide in later 2021.

The delay after the Consent Order

42. After the April 2023 consent order, the Council should have changed Miss P’s EHC Plan within five weeks, so by mid-May 2023. The Council issued a revised Plan at the beginning of June, so a delay of around three weeks. That delay was fault.
43. The Council accepted in December 2023 it had still not provided some of the contents agreed in Miss P’s new EHC Plan. Mrs N says the provision was still not in place at the time of their May 2024 complaint to the Ombudsman. That amounts to three terms of missed provision.
44. In response to Miss P’s complaint, the Council offered Miss P £1000 for the delay. With reference to the Ombudsman’s guidance on remedies, my decision is that is insufficient remedy for the faults identified.

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Agreed action

45. The Council has agreed that, within a month of my final decision, it will take the following action.
1. Provide Miss P with a letter of apology. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
2. Make Miss P a symbolic payment of:
• £1950 for the missed provision for a term and a half caused by the first delay;
• £3900 for the delays in the provision of some of the contents of Miss P’s EHC Plan in the time after the Consent Order.
• £200 for the avoidable distress caused by the delays.
46. If Miss P has already accepted the Council’s offer (see paragraph 37), then the recommended payment should be reduced by what the Council has already paid.
47. These payments are intended for Miss P to use for her educational benefit as she sees fit.
48. The Council should provide us with evidence it has complied with the above actions.

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Final decision

49. I uphold this complaint. The Council has agreed with my recommendations, so 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