Summary: Mrs H complained the Council failed to ensure her son (X) received all the provision set out in his Education, Health, and Care plan since 2021. We found the Council was responsible for a service failure which caused a short delay in putting occupational therapy in place in 2024, and it failed to issue a decision notice following an annual review. It should apologise to Mrs H and make a symbolic payment to acknowledge the short delay X experienced to receive occupational therapy. There was no other fault, and parts of Mrs H’s complaint was late.

The complaint

1. The complainant, Mrs H, complained the Council has failed to ensure her son (X) received all the provision set out in his Education, Health, and Care plan since 2021. She also said the Council has failed to update the plan since then.
2. Mrs H said, as a result, X had a loss of special educational needs provision.

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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. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
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)

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What I have and have not investigated

7. I have investigated Mrs H’s complaint about the Council’s handling of X’s EHC plan and provision from March 2023 when X’s annual review was held until March 2024 when X’s most recent annual review was held.
8. I have not investigated Mrs H’s concerns about the Council’s handling of X’s education before March 2023. This is because these parts of her complaint are late, and I have seen no good reason why the concerns could not have been brought to the Council’s and our attention sooner. I will therefore not consider her complaint about:
• her reassessment request in 2021;
• annual reviews before 2023; and
• the special educational provision X received before March 2023.

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How I considered this complaint

9. I have considered Mrs H’s complaint and the Council’s responses. I discussed the complaint with Mrs H and considered the additional information she provided and had regard to the relevant law and guidance to the complaint.
10. Mrs H 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

Education, Health, and Care plans

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. 

Annual reviews

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.

What happened

18. Mrs H’s son, X, has been diagnosed to have health conditions and needs which impacts his ability to receive and engage with his education. X’s 2021 final EHC plan sets out his special educational needs, which includes occupational therapy and listed the school he should attend.
19. X’s school held an annual review in March 2023 which Mrs H attended. The review documents show the school found X was attending his education and progressing well against his objectives. It found the plan should continue to be maintained without amendments and it was an appropriate placement.
20. In May 2023 the school shared the annual review report with Mrs H. She asked for this so she could make suggestions to the Council.
21. The school shared the annual review report with the Council. The allocated coordinator considered the report, but did not send a notice of its decision to maintain X’s EHC plan to Mrs H. Soon after the coordinator left the Council.
22. In September 2023 the Council allocated a new coordinator to X’s case.
23. In January 2023 Mrs H complained to the Council. Below are the key points of her complaint and the Council’s responses:
• it had not acted on a needs assessment request she made in 2021;

The Council found it had no records of Mrs H’s needs assessment request.

• the Council failed to share draft and final EHC plans for X with her since 2020, including after annual reviews. She said the school held yearly meetings, but no annual review took place in 2022;

The Council explained annual reviews must be held every 12 months, but this does not necessarily lead to an amended EHC plan being issued. It did not receive the annual review paperwork from the school in 2022.

• the school’s 2023 annual review report had an error as it referred to an incorrect year group for X;

The Council said the school shared X’s 2023 annual review with a recommendation X’s plan should be maintained. Its allocated coordinator then left the Council. X’s case was allocated to another coordinator in September 2023, who was unaware the annual review had not been responded to. It also said Mrs H did not bring this to its attention.

• X had not received occupational therapy support as set out in his EHC plan since November 2020 when he started at the school.

The Council explained it had provided X’s school with funding which included for occupational therapy. However, it was unaware X was not receiving the occupational therapy provision set out in his EHC plan until January 2024 when Mrs H made her complaint. It explained this was not referred to in the annual review documents and Mrs H had not brought this to its attention. It said the school was responsible for the delivery and did not uphold her complaint.

24. The Council started the process of finding occupational therapy for X and made a referral a week after Mrs H made her initial complaint to the Council. It subsequently found a therapist, but due to ill health the therapist could not go ahead with the agreement.
25. A further annual review was held for X in March 2024. This included discussions around putting the occupational therapy provision in place.
26. The Council again approached occupational therapist providers and arranged X’s provision. A therapist observed X in his school in April 2024, and the provision started the following month.
27. Mrs H asked the Ombudsman to consider her complaint. She also shared some of her communication with X’s school from Summer 2023 in which it said:
• it had not referred to some provision in the annual review documents shared with Mrs H and the Council as the provision was unchanged. This included Occupational therapy provision; and
• it had struggled recruiting an occupational therapist for the school for a long time due to a national shortage. It had asked the Council if it could help with recruitment.

Analysis and findings

The March 2023 annual review

28. It is the Council’s responsibility to ensure X’s annual review was completed in 2023. In doing so it was entitled to delegate the review to his school and there is no requirement for the Council to attend the meeting itself. However, the review is not complete until a decision on whether to cease, maintain, or amend X’s EHC plan was issued by the Council.
29. The evidence shows the Council did not issue a decision to maintain X’s EHC plan, but this was its intention. While I understand its allocated coordinator left the Council, I have found the Council at fault for failing to issue its decision notice to Mrs H.
30. However, I am not satisfied the Council’s fault caused Mrs H or X a significant injustice. This is because:
• X’s EHC plan provision was unchanged. He therefore did not experience an injustice as a result of the fault;
• the error Mrs H said was in the EHC plan when she complained to the Council in January 2024 was minor and would not have impacted in the provision X received from his school; and
• Mrs H did not dispute the provision in the EHC plan, nor has she disputed this since. Her loss or delay of right to appeal to the SEND Tribunal did therefore not cause her an injustice.

X’s occupational therapy

31. The evidence shows X has received the vast majority of provision set out in his EHC plan since 2021. During this time, X had good attendance and progressed well with his objectives. Mrs H also confirmed she was happy with the school and the support it provided.
32. It is clear X did not receive the occupational therapy provision set out in his EHC plan between March 2023 until April 2024. It was the Council’s responsibility to ensure X received this support, and it was entitled to delegate the arrangement of this to X’s school through its funding.
33. Once the Council provided its funding to the school, we do not expect the Council to keep a watching brief over whether all X’s provision was in place. We expect the Council to check provision is in place:
• when the EHC plan is put in place, or substantial amendments have been made;
• following annual reviews; and
• when a parent or school reports any issues with the provision.
34. In this case, X’s EHC plan was put in place with the school in 2021 and funding was provided by the Council to include occupational therapy provision. In 2023, neither Mrs H or the school told the Council the occupational therapy provision for X was not in place. Nor was this referred to as an issue in the March 2023 annual review and the documents the school shared with the Council.
35. I found I would therefore not have expected the Council to be aware X’s occupational therapy provision was not in place for X. It had no reason to question this as all other provision was in place and the placement was working well for X. The Council was therefore not at fault for X’s loss of occupational therapy.
36. When the Council became aware X was not receiving his occupational therapy as set out in his EHC plan, it had a duty to ensure this was put in place without delay. We normally expect such provision to be in place within four weeks.
37. The evidence shows the Council acted promptly to arrange the provision. Unfortunately, the therapist it commissioned became ill and could no longer offer the service. It therefore took three months before X’s occupational therapy started.
38. I found the Council was not at fault for causing a delay as this was circumstances outside its control. However, as it was its duty to ensure X received the occupational therapy provision, it was responsible for a service failure for a two-month period.
39. I am satisfied this caused X some injustice as he did not start receiving the occupational therapy as quickly as he should have. However, I found the impact would have been limited considering he had progressed well without the provision and all other provision in his EHC plan was being delivered. I therefore found a symbolic payment to be appropriate to acknowledge the loss of provision X experienced.

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Agreed action

40. To remedy the injustice the Council caused to X, the Council should, within one month of the final decision:
1. apologise in writing to Mrs H for its failure to issue its decision to maintain X’s EHC plan following the 2023 annual review, and the two-month delay in arranging X’s occupational therapy due to a service failure.

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. pay Mrs H a symbolic payment of £200 to acknowledge the two-month delay in X receiving his occupational therapy as set out in his Education, Health, and Care plan.
2. Within three months of the final decision the Council should also:
1.  
2.  
3. remind its special educational needs and disability staff to ensure decisions on whether to cease, maintain, or amend existing Education, Health, and Care plans are at all times issued within statutory timescales to parents. Including ensuring this is clearly recorded on the child’s or young person’s case record.
3. The Council should provide us with evidence it has complied with the above actions.

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Final decision

43. I have completed my investigation with a finding of some fault and a service failure by the Council which caused X a limited injustice. It was not at fault for failing to ensure some special educational needs provision was not in place before January 2024 as it was not aware.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman