Summary: There was fault by the Council in amending Y’s Education Health and Care Plan, issuing a decision to re-assess his needs, refusing to commission specialist assessments and a failure to ensure he received the therapies and equipment set out in his existing Plan. The Council will apologise, make payments to reflect lost provision and issue Y’s final Plan without further delay.

The complaint

1. Ms X complained the Council:
1. Did not secure special educational provision (SEP) in her son Y’s Education, Health and Care (EHC) Plan from July 2023 to date. (speech and language therapy, occupational therapy, art therapy and equipment).
2. Delayed responding to her request for an EHC needs assessment.
3. Did not agree to speech and language therapy (SLT) or occupational therapy (OT) assessments.
4. Did not issue an amended EHC Plan for Y.
2. Ms X said the Council’s fault caused avoidable distress, a delay in appeal rights, a financial loss due to purchasing equipment and paying for private assessments She said it also means Y will be without an educational placement when his current placement ends.

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The Ombudsman’s role and powers

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. Ms X complained to us in April 2024, so matters before April 2023 are late. However, I have investigated because there is evidence Ms X was seeking to resolve her complaints with the Council and that there was several months of delay by the Council in (a) dealing with the substantive issues and (b) in responding to the complaint at stage two of the complaints procedure. These are good reasons for her delay.
5. 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)
6. 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)
7. 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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How I considered this complaint

8. I considered the complaint to us, the Council’s responses to the complaint and documents described later in this statement.
9. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and guidance

10. A child or young person with special educational needs (SEN) may have an EHC Plan. This 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 council can do this.

11. 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 2014). 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)  

12. 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. 

13. 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.

14. 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) 

15. 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.

16. The parent should have at least 15 calendar days to make representations on proposed changes including requesting a particular educational placement to be named in the Plan.
17. Following parental representations, the council must issue the amended final Plan within eight weeks of the amendment notice.
18. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council has 15 calendars days from the date of request to notify the parent of its decision.

19. The council must tell the child’s parent or the young person whether it will complete an EHC needs reassessment within 15 calendar days of receiving the request. If the council agrees to an EHC needs reassessment, it has 14 weeks to issue the final EHC Plan from the date it agreed to reassess to the date it issues the final amended EHC Plan.

20. As part of the assessment (or reassessment), councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes advice and information from any person requested by the parent or young person, where the council considers it reasonable. Those consulted have a maximum of six weeks to provide the advice. 

What happened

2021

21. Y has SEN and an EHC Plan dated December 2021. The relevant parts of Section F say:
• Y is to have an hour a week of art therapy
• Y is to have a sensory box, chew toys, weighted blankets and headphones.
• A speech and language therapist will provide targets to integrate into Y’s daily curriculum. The therapist will oversee this and review.
• Y will receive a daily sensory diet, administered at regular intervals throughout the day. This will be set up by a qualified OT with training in sensory integration therapy in consultation with school staff and reviewed once a term. The OT will train staff.
• A speech and language therapist will oversee speech and language targets which will be integrated into Y’s daily curriculum to provide the opportunity for daily practice.

2022

22. There was an annual review meeting on 16 November. Ms X requested an EHC needs re-assessment on 23 November.

2023

23. We investigated and upheld a complaint from Ms X about the Council not securing Y’s special educational provision (SEP). We issued a decision on that complaint in May and the Council made a payment to reflect lost SEP between September 2021 and July 2023.
24. The Council issued a proposed amended EHC Plan on 30 June (following the annual review meeting of November 2022). The proposed amendments did not include any changes to Section F.
25. The Council agreed to carry out an EHC needs reassessment on 23 August.
26. Ms X complained to the Council at the end of October, raising the same issues as in her complaint to us and other issues.
27. There was an annual review meeting on 8 November.
28. The Council’s response to the complaint in November said:
• She was not notified of the outcome of Y’s annual review which was to amend the Plan.
• A proposed amended Plan was issued on 30 June, but this is yet to be finalised. The Council was sorry for this and Y’s caseworker would be in touch within four weeks
• She asked for a reassessment in November 2022. The Council accepted there was a delay responding to the request and apologised in August 2023
• The District Medical Officer stated they would provide no further reports. The OT service refused the referral as did the SLT service.
• An EP will carry out an assessment by the end of the school term. There is a shortage of EPs and a backlog of cases requiring needs assessments and re-assessments. The Council was sorry for the delay.
• The Council was in discussion with the SLT and OT service regarding its decisions and so it would not include advice and recommendations from privately sourced therapists as responsibility to deliver provision would fall to the NHS.
• Some provision remains in Y’s EHC Plan that is no longer relevant (SLT and OT.) The provision would be removed when processing Y’s most recent review from November 2023.
• The EHC Plan says the educational placement should provide headphones and so this is what the Council expects the placement to do.
29. Ms X was unhappy with the Council’s stage one response and escalated her complaint shortly receiving the response.

2024

30. The Council’s final complaint response in April said:
• The Council issued a proposed amended EHC Plan at the end of June 2023, she was given a password to access this on 12 July.
• It did not work within the legal timeframes for reviewing and updating Y’s EHC Plan.
• It had further delayed since the stage one response because Y’s reassessment was still not completed. The Council would issue a draft EHC Plan by 3 May 2024.
• It was still waiting for a response from the NHS SLT service (it commissioned this service).
• The in-house OT service had refused a specialist assessment. As this provision remains in Y’s EHC Plan, the Council will commission a private OT assessment.
• The EP completed an assessment report dated 3 March 2024
• The Council was sorry SLT, OT and art therapy was not being provided.
• The Council had paid £300 a month to reflect lost provision from September 2021 to July 2023. It offered £300 a month for missed provision between September 2023 and April 2024 (£2400) and an additional sum of £200 for avoidable distress and time and trouble.
• The Council expected the placement to provide equipment.
31. The Council told us:
• It had not finalised the proposed amended EHC Plan of June 2023
• There was no draft EHC Plan following the reassessment. The Council was in the process of preparing a draft Plan.
• Officers had chased the NHS SLT team with no success. It commissioned a private SLT provider for an assessment report in July 2024
• The Council agreed to commission a private OT report in June.
32. Ms X told us the Council has issued a draft Plan since the Council’s report to us in the last paragraph. She said it did not contain any SLT or OT provision because the SLT and OT reports the Council had recently agreed to commission were not yet available.

Findings

The Council did not secure special educational provision in Y’s Education, Health and Care (EHC) Plan: speech and language therapy, occupational therapy, art therapy and equipment

33. The Council accepts it was at fault. Y was entitled to all the SEP in Section F of his current EHC Plan from August 2023 to date. The Council has accepted it has not secured that provision. This was not in line with the duty in Section 42 of the Children and Families Act 2014 and was fault. Y has a loss of speech and language, occupational and art therapies from August 2023 and continuing at the time of writing this statement.
34. The Council’s complaint responses are inadequate. They fail to recognise the Section 42 duty cannot be delegated. It was not sufficient for the Council to say it expected Y’s educational placement to provide equipment. We expect councils to investigate, identify fault and act to remedy fault causing injustice where they are made aware of this through a complaint by a parent. The Council should have taken steps to ensure Y had the equipment set out in his Plan, by ensuring the college provided it. It did not do so and this meant Ms X had to step in and buy equipment. She has a financial loss as a result.

The Council delayed responding to her request for an EHC needs reassessment

35. The Council should have responded to Ms X within fifteen calendar days of her request on 23 November 2022. So by 7 December. It did not make a decision until 23 August 2023. The Council’s decision was delayed by just under nine months. This is not in line with the SEND Code of Practice and is fault causing avoidable distress and inconvenience.
36. The SEND caseworker referred Y to the EP service on 23 August 2023. So the EP’s report should have been available within six weeks to be in line with the SEND Code of Practice, so by early September 2023. The EP’s report wasn’t available until 3 March 2024. That was a delay six months which is fault causing avoidable frustration, distress and uncertainty.

The Council did not agree to SLT and OT assessments

37. Provisionally the Council is at fault. It told Ms X it would not commission OT and SLT assessments saying this was either because the OT service considered he had no clinical needs or giving no reason (SLT). However, the Council did not explain why it had decided her request for those assessments was unreasonable. This was not in line with the SEND Regulations set out in paragraph 20 and was fault causing avoidable frustration. The Council has since changed its mind and decided to commission advice. This does not mean its original decision was “wrong”, just that it failed to consider or apply the correct legal test in the SEND Code of Practice when making the decision.
38. The SLT and OT reports are not available at the time of writing this draft statement. They should have been ready within six weeks of the Council requesting them. A further continuing delay.

The Council did not issue an amended EHC Plan for Y

39. The Council is at fault because:
1. Following the annual review meeting of November 2022, the amendment process should have been complete within 14 weeks, so by the end of March 2023 at the latest. The Council was late issuing an amendment notice and proposed Plan at the end of June 2023. There is still no amended Plan at the time of writing this draft statement (August 2024). A continuing delay.
2. It did not issue Y’s final amended Plan within 14 weeks of 23 August 2023 when it agreed to reassess Y. There should have been a final Plan by 29 November 2023. There have been two draft Plans, but no final Plan. The process is not complete at the time of writing this statement which is a delay of nine months and continuing.
3. There has been a further annual review meeting in November 2023. There is still no final plan, although the Council has apparently issued a draft Plan since responding to our initial enquiries. This is a further failure to complete the amendment process within 14 weeks as I have described in (a) above.
4. The EP’s advice was available on 3 March 2024. The Council then took until July 2024 to issue a draft Plan. This action was not timely given the already lengthy delay in progressing the case.
40. The fault set out in the last paragraph caused avoidable frustration, distress, a delay in appeal rights and uncertainty about Y’s SEP and placement going forward as his course is due to end shortly.

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Agreed action

41. Within one month of my final decision, the Council will:
• Apologise to Ms X and to Y. 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.
• Ensure the SLT and OT reports it has commissioned in June and July 2024 are made available without delay and in order that Y’s final EHC Plan is issued within one of this final decision.
• Pay the payment of £2400 it has already agreed plus an additional £1200 for missed provision for May, June, July and September 2024
• Reimburse Ms X for the equipment she funded. (Ms X will need to provide the Council with itemised receipts which are for the equipment in Section F of Y’s EHC Plan)
• Make Ms X a payment of £500 to reflect her avoidable frustration caused by the delay I have identified, her distress and time and trouble complaining. This is instead of the £200 payment the Council agreed in the stage two response to her complaint.
42. The Council commissioned an independent review by a barrister following a successful judicial review against the Council in 2023 by another parent in a similar position to Ms X. The Council has accepted the recommendations of that review and this month published a set of actions it is taking to address the recommendations. Independent Review into EHC assessment process (hertfordshire.gov.uk) As these agreed actions address the same or similar fault I have found in Ms X’s complaint, I have not made any recommendations for improvements to the Council’s SEND service.
43. The Council should provide us with evidence it has complied with the actions in paragraph 41.

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Final decision

44. There was fault by the Council in amending Y’s Education Health and Care Plan, issuing a decision to re-assess his needs, refusing to commission specialist assessments and a failure to ensure he had therapies and equipment set out in his Plan. The Council will apologise, make payments to reflect lost provision and issue Y’s final Plan.
45. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman