Summary: The Council significantly delayed issuing an amended Education, Health and Care Plan for Ms X’s child, Z, following their annual review. It also significantly delayed in consulting alternative schools for Z and its communication with Ms X was poor. In recognition of the injustice caused by the faults in this case, the Council has agreed to apologise and pay Ms X £1,000. It has also agreed to take action to improve its services.

The complaint

1. Ms X complains the Council:
1. failed to ensure her child, Z, received the one-to-one teaching assistant support and the occupational therapy support that they should have received;
2. delayed issuing a final EHC Plan following Z’s June 2023 annual review;
3. delayed finding Z a specialist school placement; and
4. failed to communicate with her properly in 2023.
2. Ms X said the Council’s actions have caused her frustration and caused Z to miss out on provision they were entitled to receive.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
7. 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.
8. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6
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. I have investigated all of Ms X’s complaints (1a – 1d). The period I have investigated begins from the June 2023 annual review and ends with the Council’s stage two complaint response in April 2024.
12. Any matters after this date are new matters which the Council must have the opportunity to respond to through its own complaints process before this can be investigated by the Ombudsman.

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How I considered this complaint

13. I considered the information provided by Ms X and the Council.
14. I considered the relevant law and guidance as set out below.
15. I considered our Guidance on Remedies.
16. I considered all comments received from Ms X and the Council on draft decisions before making a final decision.

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What I found

Law and guidance

17. A young person with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out their needs and what arrangements should be made to meet them.
18. The EHC Plan is set out in sections which include:
• Section B: The child or young person’s 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 school. 
19. We cannot direct changes to the sections about education or name a different educational setting. Only the SEND Tribunal can do that.
20. Councils are 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.
21. The Statutory Guidance: Special Educational needs and disability code of practice: 0-25 years (“the Code”) says:
• EHC Plans must be reviewed as a minimum every 12 months (para 9.166);
• the school or council must prepare and send a report of the review meeting to all invitees setting out the recommendations on any amendments to the EHC Plan, and referring to any difference of views between the educational setting and other attendees, within two weeks of the review meeting (para 9.176);
• within four weeks of the review meeting the council must decide whether it proposed to keep the EHC Plan as it is, amend the Plan or cease to maintain it, and notify the child’s parent or young person and the educational setting (para 9.176);
• if the Plan needs amending, councils should start the process of amendment without delay (para 9.176);
• if amending the Plan, councils must send the child’s parent or the young person a copy of the existing Plan and a notice providing details of the proposed amendments, and they must be given at least 15 calendar days to comment on the proposed changes (paras 9.194 & 9.195);
22. Within twelve weeks of the annual review meeting, the final, amended EHC Plan must be issued. R (L, M and P) v Devon County Council [2022] EWHC 493 (Admin)

What happened

23. Ms X’s child, Z, has special educational needs and an EHC Plan.
24. At the time this complaint period began, Z attended a mainstream school - School A. Z’s EHC Plan said while at School A, as well as accessing mainstream education they would access a range of special educational needs (SEN) support in a separate resource base within the school.
25. Z’s EHC Plan was reviewed on 15 June 2023. At this annual review, the school noted Z was not making expected progress across several areas and had been unable to access any of the mainstream provision at the school. School A said it could no longer meet Z’s needs and Ms X and School A agreed in the review meeting that Z required a specialist school instead.
26. Ms X received no update from the Council about amending the EHC Plan in the months following the annual review. She chased the Council but the Council accepted it did not always respond in a timely way.
27. On 24 August 2023 a Council panel approved the request for Z to have a specialist school placement. The panel said to assist Z at School A in the interim, it would fund a teaching assistant to provide Z with 1:1 support.
28. Ms X contacted the Council on 8 November 2023. She said Z was not receiving 1:1 support at School A, as agreed by the panel and said the school had now placed Z on a reduced timetable.
29. The Council followed up with School A about this. The school said it disagreed that Z’s timetable was reduced and said Z left early sometimes at Ms X’s request. However the school confirmed that Z was not accessing 1:1 support throughout the school day, as it said the funding provided by the Council did not cover this.
30. The Council established in late January 2024 that the reason School A had not received the full funding for a 1:1 teaching assistant for Z, was because the Council failed to amend Z’s EHC Plan to reflect this, following the panel’s decision in August 2023. The Council informed Ms X of this and said it would issue a draft EHC Plan shortly.
31. The Council did not start consulting for specialist schools for Z until late January 2024 - five months after the panel’s decision that Z required a specialist placement and seven months after School A said at the annual review that it could no longer meet Z’s needs. None of the four placements consulted from January 2024 onwards could accept Z, either due to Z’s needs or due to lack of spaces.
32. In early February 2024, Ms X emailed the Council to say Z still did not have a 1:1 teaching assistant in place so was not accessing appropriate supervision and support. She said Z had come home with soiled clothes due to this. Ms X said she was concerned School A was not a safe environment for Z unless they were supervised properly.
33. The Council provided School A with the increased funding for Z’s 1:1 and from 19 February 2024 a teaching assistant was put in place. However Ms X said in the months following this, she noted when picking Z up from school that the teaching assistant was being shared with other pupils and was not 1:1 at all times. Ms X raised this with the governors of School A and the Council.
34. In Ms X’s complaint to the Council she said:
• The Council had delayed arranging a 1:1 teaching assistant for Z and School A had failed to ensure the support was used for Z, not other children;
• Her SEND caseworker at the Council failed to respond to her communications following Z’s annual review;
• Z had been assessed as needing a specialist school placement months earlier and still did not have one;
• From February 2024 she had become aware Z was no longer receiving occupational therapy while at School A; and
• The reason she had been collecting Z early from School A was not her own choice, it was because their behaviour was causing issues due to the lack of 1:1 support in the school.
35. The Council upheld most of Ms X’s complaints in April 2024. It also noted and apologised for its delay in progressing Z’s annual review. The Council changed Ms X’s SEND Caseworker and Ms X said communication had improved from that point.
36. The Council did not uphold her complaint that occupational therapy ceased, as it said this was the responsibility of the school to provide. The records show that the last in force EHC Plan did not include any occupational therapy. This was something the school decided to provide despite not being a requirement of the EHC Plan.
37. The Council also did not uphold Ms X’s complaint that Z was still without a specialist school place due to Council fault, as it said it had been consulting schools but was still awaiting responses.
38. In recognition of the injustice caused by the Council’s actions it apologised to Ms X and offered her £900 as a remedy.
39. The Council issued an amended final EHC Plan for Z in mid-June 2024. It named School A in Section I but noted the Council was still looking for a specialist placement.

Recent similar case

40. In another recent Ombudsman case involving this Council, we found it significantly delayed starting to consult alternative schools for a child in its area due to letting the matter drift. I have taken this into consideration when recommending service improvements in this case.

My findings

Delay finalising EHC Plan

41. Following the June 2023 annual review, the Council delayed informing Ms X of its decision to amend Z’s EHC Plan, delayed issuing Ms X with a draft EHC Plan and delayed finalising Z’s EHC Plan.
42. The Council should have completed these processes and issued a final EHC Plan within twelve weeks of Z’s June 2023 annual review meeting. The Council instead took a year to do this. This delay caused Ms X frustration and uncertainty and Z was avoidably left without an up-to-date record of their needs for most of one year.

Delay finding specialist school

43. The Council took five months to start consulting for specialist schools for Z due to the Council letting this matter drift. This was a significant delay by the Council and was fault.
44. I cannot say even on balance, that were it not for this fault, Z would have been in a specialist school by any particular time. This is because since the Council started consulting, no specialist schools locally have been able to accept Z. However Ms X has been caused significant uncertainty about whether Z could have accessed a specialist school place sooner and she has also been caused frustration. This is an injustice to her and Z.

Failure to provide occupational therapy

45. Occupational therapy was not included in Section F of Z’s 2022 EHC Plan and the Council therefore had no legal duty to arrange this during the period I have investigated. The Council was not at fault for not arranging this.

Failure to provide 1:1 teaching assistant

46. A 1:1 teaching assistant was also not included in Section F of Z’s 2022 EHC Plan and the Council therefore had no legal duty to arrange this.
47. However the Council’s panel said this was action it would take due to School A being unsuitable for Z and to assist them in accessing education at the school while it sought a more suitable placement. The Council significantly delayed arranging this and providing the appropriate funding to School A. The Council failed to do what it said it would do and this was fault. This fault caused Ms X frustration.
48. Once the Council had put in place the funding, Ms X said the school then failed to ensure the teaching assistant was used exclusively for Z. Ms X has raised this complaint with the school, which is the appropriate body to consider this complaint as the Ombudsman cannot investigate what happens in schools.

Poor communication

49. The Council agrees that its communication with Ms X between June 2023 and January 2024 was poor. This was fault by the Council. This fault caused Ms X uncertainty and frustration at an already difficult time. The Council changed Ms X’s caseworker from January 2024, which improved communication.

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Agreed action

50. Within one month of the date of the final decision, the Council has agreed to:
1. Apologise to Ms X for its delay in consulting specialist schools for Z and the injustice caused by this; and
2. Pay Ms X £1,000 to recognise the injustice caused by the faults in this case (this should be reduced to reflect any financial remedy already accepted by Ms X regarding this complaint).
51. Within three months of the date of the final decision, the Council should:
1. Carry out a lessons learned review to understand why there were such significant delays in finalizing Z’s EHC Plan, implementing the funding for Z’s teaching assistant, and in consulting specialist school placements for Z; and
2. Set out an action plan which agrees steps to be taken to prevent these types of delays occurring for children and parents in the future.
52. We publish Guidance on Remedies which sets out, in section 3.2, our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended.
53. The Council should provide us with evidence it has complied with the above actions.

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Final decision

54. I have completed my investigation. I have found fault leading to injustice and the Council has agreed to apologise, pay a financial remedy and make service improvements.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman