Summary: We found fault on Mrs D’s complaint about the Council’s delay processing her application for an Education, Health and Care plan for her son, E. It also delayed checking her concerns about the school failing to make the required provision for him. There were communication failures. This caused them distress as E lost provision. The agreed action remedies the injustice caused.

The complaint

1. Mrs D complained about the Council’s failure to ensure:
1. an emergency review of her son’s Education Health and Care plan was carried out promptly;
2. provision set out in the plan was supplied by the school;
3. the school provided him with support with his medication for Attention Deficit Hyperactivity Disorder; and
4. it properly investigated her complaints.
2. As a result, he lost education through avoidable suspensions, his school life was restricted, and he suffered discrimination. It also caused her a great deal of distress, frustration, and uncertainty.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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)
6. 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.
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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What I have not investigated

8. I have not investigated the actions of the school because they are not within out jurisdiction.

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How I considered this complaint

9. I considered all the information Mrs D sent, the notes I made of our telephone conversation, and the Council’s response to my enquiries. I sent a copy of my draft decision to Mrs D and the Council. I considered their responses.

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What I found

Relevant law and guidance

10. A child with special educational needs 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. The EHC plan is set out in sections.
11. Statutory guidance ‘Special Educational Needs and Disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out Education, Health and Care (EHC) needs assessments and producing EHC plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:

• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;
• the process of assessing needs and developing EHC plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable; and
• the whole process from the point when an assessment is requested until the final EHC plan is issued must take no more than 20 weeks (unless certain specific circumstances apply).

12. The council has 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 said the 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, which then 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)
13. The procedure for reviewing and amending an EHC plan is set out in legislation and government guidance. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend, or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
14. Where a 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 within four weeks of the annual review meeting. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
15. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)

What happened

16. Mrs D has a son, E, who was in Year 8 at school. In July 2022, she asked for E to have an EHC needs assessment as he struggled in lessons and had problems concentrating. He also had difficulties controlling his emotions and sitting still. Mrs D said he had a diagnosis of Attention Deficit Hyperactive Disorder (ADHD) for which he had medication. She also said he had ASD (Autistic Spectrum Disorder).
17. In November, the Council agreed to do the assessment having initially decided it would not. Having done it, the Council then agreed E needed an EHC plan. As part of the consultation process, the Council received the educational psychologist’s advice. This was in March 2023.
18. It sent her the draft EHC plan in June and the final EHC plan in September.
19. Mrs D was unhappy with the process followed. She complained the Council failed to send her the draft EHC plan within 14 weeks of the date of the assessment. The Council explained it had a very high number of EHC needs assessment requests which caused unavoidable delays. It agreed this was unacceptable. It apologised to Mrs D as the assessment should have taken 140 days to complete but instead took 274. It explained it recruited more staff and uses a new system in its assessment service.
20. Mrs D also complained the EHC plan provision was not put in place by the school for when E started in September. She was also unhappy about:

• the school failing to prompt him to take his medication while there for at least nine months, even after the emergency (interim) review. This meant medication he needed was not in his body long enough to help him. As a result, his behaviour worsened during the school day which caused problems as the school reported his behaviour as rude and disruptive. This led to the school placing him in ‘reset’ and issuing some suspensions. Reset was a separate room where stricter rules applied while working. Failing to follow these rules could lead to a suspension. She argued reset conditions meant his EHC plan needs were not met as the conditions were restrictive and did not allow him to move, for example.
• the school failing to ensure there was a documented support plan to support E take his medication.
• the school sanctioning E for leaving the classroom without permission when he could not cope and so denied him a ‘safe space’ to go to under his EHC plan. She noted E was at risk of permanent exclusion.
• the Council failing to ensure E received the provision set out in his EHC plan.

21. The school assigned a member of staff to support E with taking his medication at lunchtime, but this did not work as he was not often where he should have been at the set time. Now, E has medication which is taken only in the morning, so he has it before getting to school.
22. The Council confirmed there was no direction in the EHC plan about how the ADHD medication should be delivered. This was because there was nothing in the paediatrician’s report it considered about it during the consultation stage. This meant how the medication was administered was outside of the Council’s jurisdiction as there was no recommendation from a medical professional about it.
23. It expected all schools to follow the Department for Education statutory guidance (‘Supporting pupils at school with medical conditions’: December 2015). The Council noted schools have their own policies and procedures about administering medicines.
24. From October 2023, Mrs D said she kept asking for an interim review. Her initial email said the EHC plan provision was not being followed. The email went to the SEND assessment team and a SEND officer told Mrs D that E’s case was with the South SEND Reviewing Team. An officer from the team apologised for the delay the same month and asked about dates to call her.
25. The following month, Mrs D sent another email as she was waiting for someone to contact her to arrange a review meeting as the school could not provide all the provision set out in the EHC plan.
26. The SEND officer responded saying she contacted the school to discuss the concerns and to meet with it. Mrs D asked whether she would be allowed to attend. The Council accepted there was nothing on file to show she was sent a response. The school sent a letter the same month saying E’s ‘provision is over and above what the school can provide on the funding given’.
27. Mrs D sent a further chaser email in January 2024 having heard nothing further.
28. In March, E’s suspensions were again brought to the Council’s attention when she formally complained. The Council accepted a SEND advocate working for her sent a formal complaint on her behalf along with her report. It included copy documents Mrs D had obtained from the school. This was the first time the Council was aware of the problem with medication. It accepted while this was referred to the SEND service complaints officer, the letter, report, and concerns raised were not saved to E’s SEND records or shared with E’s case officer.
29. The Council monitored delivery of provision through the annual review process. When made aware of the school saying E’s provision was more than it could provide with the funding allocated, the Council agreed at the interim review to increase funding. This allowed the school to make the required provision and pay for alternative provision.
30. In mid-June, the Council sent her the draft EHC plan and the second amended draft in September. The Council accepted it failed to meet the Code’s requirement that within four weeks of the review meeting, it would notify Mrs D and the school of its decision. The Council apologised for this delay. It also noted it failed to give her an update by mid-May it said it would do the month before for which it again apologised.
31. The Council confirmed:

• measures were put in place to ensure E took his medication each day;
• he only received behaviour support sessions fortnightly and not two/three times each week as set out;
• he was not allowed regular movement breaks during the day;
• end of day check-ins were not done;
• it was acknowledged by the school ADHD nurse that his EHC plan needs may not be met because the provision costs amounted to more than the funding provided by the EHC plan;
• the annual review process was not completed within statutory deadlines and previous deadlines given to her were not followed;
• it received a safeguarding concern from OFSTED after her concern about E’s medication record saying he took his medication on a day he was not at school through a suspension. The Council met the head teacher and responded to OFSTED saying the school thought the EHC plan was being followed. The Council was satisfied with the school’s response and decided no further action was needed;
• it would issue a draft amended EHC plan and there would be a request for an increase in funding for E; and
• she did not receive a final response to her request for a meeting with a SEND officer when she alerted the Council to E being at risk of exclusion for which the Council apologised.

32. The Council expected the school to follow procedures for pupils who are suspended and permanently excluded. Under Department for Education guidance, the school had to inform the council where there was an EHC plan in place where a child was suspended again after an original suspension. The Council’s own procedures required schools to tell it of exclusions by email or calling the Council about it. The school failed to pass this information on to it and so the Council was unaware of any suspensions until October 2023 when Mrs D told it E was at risk of permanent exclusion.
33. Mrs D was also unhappy with the way the Council dealt with the following complaints she made from 2023:

• Complaint 1 (4889): This 2023 complaint was about its failure to process the EHC needs assessment and issue the EHC plan within statutory timescales. She asked for it to go to the next stage of the complaints process in July. The Council sent its final response at the end of September.
• Complaint 2 (7360): Mrs D raised concerns in January 2024 about the school not making the provision set out in the EHC plan and her request for an interim review. The Council responded in early March. Two days later she asked for it to be escalated. Two days later her representative sent a report setting out in detail the problems experienced. In April, the Council sent her its final response on this complaint. It confirmed it should not take a formal complaint for an interim review to be organised. The Council upheld this complaint and offered her £500 (£250 time and trouble and £250 distress).
• Complaint 3 (7612): Mrs D complained in March 2024 about the failure of the school to make provision set out in the EHC plan, support E with his medication in school, and about unlawful suspensions. The Council replied at the end of April. Two weeks later she asked for it to go to the next stage. The Council sent her its final response in mid-June. The Council upheld this complaint and offered her £500 (£250 time and trouble and £250 distress).

34. The Council’s corporate complaints procedure states the complaint:

• is usually dealt with at the time by the officer receiving it with no need for additional response.
• is passed to the appropriate line manager or service manager for consideration and response.
• is passed to a senior manager or departmental complaint officer for consideration and response.

35. Where a complaint is not resolved at the time, or within three working days of receipt, an acknowledgement is sent with the expected date for a response. A full response should be made at the earliest possible time and should usually not exceed 28 calendar days. In exceptional circumstances, where a complaint is complex or there are ongoing internal procedures, it may be a final response is not possible within 90 calendar days. Complainants should be told at the earliest possible point if this is the case and given a timescale for the remaining actions.
36. To manage this, each department has a senior manager nominated as Complaint Officer to ensure necessary actions are taken and to co-ordinate responses where there are multiple services involved.

My findings

Complaint a): emergency review delays

37. I found fault on this complaint. In reaching this view, I took the following into account:
1. The Council issued the final EHC plan in September 2023. The law required it to review it at least once a year so it could check how E progressed to ensure the EHC plan was up to date.
2. Mrs D could ask for an early review (interim or emergency review) of her son’s EHC plan at any time, provided she had a good reason for doing so. A good reason would include, for example, that his education, health, or social care needs had changed and were no longer accurately described in the EHC plan or, it no longer met his needs. It would also include where there was a risk of a placement breaking down.
3. When alerted to her request, the Council, had to decide whether to agree to it or not. This is no legal timescale for a council to respond to such a request. It had to decide whether it agreed there was an urgent need to change E’s plan before carrying out an interim review.
4. I am satisfied Mrs D first raised the issue of the need for an interim review in October 2023. She explained what her concern was behind this query. Nor were her concerns expressed in November explored either. While the school was contacted the following month, I have seen nothing to show the Council explored her concerns with her at the time or properly considered them. This was fault.
5. Following the interim review, the Council confirmed the EHC plan was still in draft and needed finalising by the Council. The law required the Council to have told her of its decision and sent her, within 4 weeks of the review meeting, a copy of the non-amended plan and notice of proposed details. This was not done.
6. The law also required the Council to have issued the final EHC plan as soon as practicable and within 8 weeks of the date it sent her the proposed amendments. Again, it failed to do so, and this amounted to fault.
7. I am also satisfied the Council failed to meet the statutory timescale for completing the EHC needs assessment in 2023 and issuing the EHC plan. The educational psychologist advice should have been obtained within six weeks of starting the EHC needs assessment. It was obtained in March 2023, about 17 weeks late. I cannot say whether the delay that happened before the educational psychologist report meant E lost out on special educational provision. This was because the advice reflected E’s needs at the time of the assessment, not necessarily as they could have been when it was originally due. Instead, I considered the delay in receiving this advice caused Mrs D and E distress and frustration.
8. The Council issued the final EHC plan 22 weeks after it should have been issued (due 8 April 2023 and issued 13 September 2023). This was fault.
38. I am satisfied the identified fault caused Mrs D and her son an injustice. This was because it resulted in frustration, inconvenience, and the lost opportunity to have provision in place sooner, for example.

Complaint b): provision not supplied

39. I found fault on this complaint for the following reasons:
1. Mrs D made the Council aware of her concerns about the school’s failure to provide E with the provision set out in his EHC plan. This was in October 2023. The evidence shows she chased the Council about it and in December, was told an officer had contacted the school to arrange a meeting. She heard nothing further until she chased further in the new year.
2. The annual review took place in March 2024, five months after Mrs D had first raised non-provision with the Council. I am satisfied the Council was aware of the concerns about non-provision for about five months before the interim review with no evidence showing what it did in response, other than contacting the school initially with a view to arrange a meeting. There was no evidence this meeting took place. I am satisfied this delay is fault.
3. I am also satisfied this caused Mrs D and her son an injustice. This caused distress in the form of frustration as well as a lost opportunity to have it dealt with sooner. This meant, on balance, it was likely the non-provision Mrs D claimed, and which the Council itself identified, was not provided to E for this period. I reach this conclusion having also taken account of the school’s view it was unable to provide all that was required as the funding failed to cover it.
4. E’s injustice also included the loss of provision under his EHC plan.

Complaint c): support with medication

40. I found no fault on this complaint because:
1. I have seen the paediatrician’s report obtained during the EHC needs assessment process. This noted E recently started medication to help him with his ADHD. There was nothing in this report about him needing help taking or being prompted with his medication.
2. I have also seen the final EHC plan issued. This noted E had started medication for his ADHD. While there was mention in the EHC plan of Mrs D’s view he needed prompting with his diet, and was unable to follow a routine, there was nothing about the need for prompting with his medication. It recorded Mrs D saying E was due to start medication and the family would support E with this to ensure he could take his own medication independently.
3. The school needed to have a policy about how it supported pupils with medical conditions. The governing body of the school was responsible for making arrangements to support these pupils.
4. As there was no provision in the EHC plan about supporting E with his medication, the Council was not at fault for failing to ensure it was in place. The burden was on the school to consider appropriate support.

Complaint d): complaint process

41. While the complaints were all completed within the 90-day timescale, I have seen nothing to show the Council advised Mrs D at the time either complaint 1 or 2 would take longer than the usual 28 days expected or why it would take longer. I consider these failings amount to fault.
42. I am satisfied this caused Mrs D an injustice. This was because she was caused frustration not knowing what was happening with her complaint.

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Agreed action

43. I considered our guidance on remedies and the Council’s offers. I also considered the apologies the Council gave her as well as E being at school receiving provision, although as noted, not all of it.
44. The Council agreed to carry out the following action within four weeks of the final decision on this complaint:
1. Send Mrs D a written apology for the identified failings.
2. Pay Mrs D and her son £1,800 made up of:

• delay with educational psychologist advice: £100 a month amounting to £100 x 4= £400; and
• 22-week delay with ECH plan process which was the equivalent of two terms: £700 per term: £700 x 2= £1,400.
3. Pay Mrs D £400 for the distress and time and trouble she was caused.
4. Review why there was a failure to act, explore, and properly consider Mrs D’s concerns raised at the time about the need for an interim review and non-provision.
5. Remind relevant officers of the need to act, explore, and properly consider concerns raised about the need for interim reviews and claims of non-provision.
6. Clarify whether the changes it told Mrs D it made following the delays with the EHC needs assessment resulted in improvements to the overall completion of the process and compliance with statutory timeframes.
7. Review why there were delays sending her the required information and notices following the interim review along with the final EHC plan.
8. Remind officers of the need to respond to communication properly and fully from parents about their children’s EHC plans and concerns.
9. Remind Complaint Officers of the need, where appropriate, to tell complainants their complaint will take longer than the standard time period and to give them reasons along with a likely date by which they will receive a final response.
10. Consider whether some of the provision lost can be remedied by additional provision and if so, arrange for this to be provided without delay.
11. Finalise the EHC plan without any further delay.

45. The Council should provide us with evidence it has complied with the above actions.

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Final decision

46. I found the following on Mrs D’s complaint against the Council:

• Complaint a): fault causing injustice;
• Complaint b): fault causing injustice;
• Complaint c): no fault; and
• Complaint d): fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman