Summary: Mrs B says the Council failed to put in place speech and language therapy and other provision in her daughter’s education, health and care plan, failed to amend her daughter’s plan as agreed and delayed completing an annual review. The Council failed to put in place some provision in Mrs B’s daughter’s EHC Plan, delayed completing an annual review and delayed issuing a new EHC Plan following the annual review. That means Mrs B’s daughter missed out on some provision and Mrs B experienced distress. The Council has agreed to apologise, make a payment to Mrs B, put in place the missing provision and provide the Ombudsman with its action plan for managing annual reviews.

The complaint

1. The complainant, Mrs B, complained the Council:
• failed to put in place speech and language therapy for her daughter from December 2022;
• failed to amend her daughter’s education, health and care plan (EHC Plan) as agreed;
• delayed carrying out an IT assessment and putting in place IT provision and training;
• failed to put in place Lego therapy/ELSA group following the December 2022 EHC Plan;
• delayed completing the annual review; and
• failed to ensure she received the paperwork before the 2024 annual review.
2. Mrs B says the Council’s actions have caused her significant distress as there is a continued failure to meet her daughter’s needs.

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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. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
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 an injustice, 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. As part of the investigation, I have:
• considered the complaint and Mrs B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
9. Mrs B and the organisation 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

What should have happened

10. 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 tribunal or Council can do this.
11. The Special Educational Needs code of practice (code of practice) says EHC Plans must be reviewed by the local authority as a minimum every 12 months.
12. The code of practice says the local authority’s decision following the review meeting must be notified to the child’s parent or the young person within four weeks of the review meeting (and within 12 months of the date of issue of the EHC Plan or previous review).
13. The code of practice says, for reviews where a child or young person attends a school or other institution:
• The child’s parents or young person, a representative of the school or other institution attended, a local authority SEN officer, a health service representative and a local authority social care representative must be invited and given at least two weeks’ notice of the date of the meeting.
• The school must seek advice and information about the child or young person prior to the meeting from all parties invited, and send any advice and information gathered to all those invited at least two weeks before the meeting.
• The meeting must focus on the child or young person’s progress towards achieving the outcomes specified in the EHC Plan, and on what changes might need to be made to the support that is provided to help them achieve those outcomes, or whether changes are needed to the outcomes themselves.
• The school (or, for children and young people attending another institution, the local authority) must prepare and send a report of the meeting to everyone invited within two weeks of the meeting. The report must set out recommendations on any amendments required to the EHC Plan, and should refer to any difference between the school or other institution’s recommendations and those of others attending the meeting
• Within four weeks of the review meeting, the local authority must decide whether it proposes to keep the EHC Plan as it is, amend the plan, or cease to maintain the plan, and notify the child’s parent or the young person and the school or other institution attended.
• If the plan needs to be amended, the local authority should start the process of amendment without delay.

What happened

14. Mrs B’s daughter has special educational needs. In December 2022 the Council issued a revised EHC Plan. Section F said once an occupational therapy assessment was completed the needs identified must be included in section B of the EHC Plan with any intervention covered in section F. The EHC Plan said such intervention would be advised, monitored and reviewed by an appropriately qualified occupational therapist.
15. In January 2023 the Council received the occupational therapy report. That made various recommendations for provision for Mrs B’s daughter.
16. Mrs B contacted the Council in February, March, April and May 2023 as she was concerned the Council had not held an annual review and had not amended the EHC Plan to include the occupational therapy provision.
17. A meeting took place in February 2024 which is referred to as an annual review although it did not follow the process set out in the code of practice.
18. In March 2024 Council officers met with Mrs B to discuss the missing provision from her daughter’s EHC Plan. There was discussion about holding a further annual review in June 2024 and the Council arranged coproduction meetings.
19. Mrs B contacted the Council again in June 2024 to raise concerns about the promised review in June not taking place, the EHC Plan not being updated to include the occupational therapy and that the Council had not searched for a speech and language therapist or sensory integrated occupational therapist.
20. Following an exchange of emails about the difficulty identifying a suitable occupational therapist and speech and language therapist Mrs B asked for a personal budget to cover the recommended therapy and sensory integrated sessions.
21. The Council issued a draft EHC Plan on 1 August. The Council also agreed a personal budget for occupational therapy in principle.
22. Following changes Mrs B asked for the Council issued a new draft EHC Plan on 3 of September.
23. On 26 September the Council contacted an independent speech and language therapist to check whether she had capacity to support Mrs B’s daughter and to seek details of costs.
24. Following contact from Mrs B in October chasing progress the Council apologised for the delay. The Council said its panel needed to approve the personal budget and would consider that during week beginning 14 October.
25. On 21 October the lead specialist teacher told the Council the school attended by Mrs B’s daughter had asked her to complete some more IT training. She said she had completed some training with Mrs B’s daughter’s teaching assistant previously.
26. The Council issued a final EHC Plan on 31 October and that contains extra provision for Mrs B’s daughter.
27. On 12 November 2024 the Council put in place a personal budget for Mrs B to purchase speech and language therapy, occupational therapy and physiotherapy for her daughter.

Analysis

28. I am exercising the Ombudsman’s discretion to investigate what has happened since the Council issued the EHC Plan in December 2022. That is because I am satisfied Mrs B has been communicating with the Council throughout and did not complete the Council’s complaints procedure until May 2024.
29. Mrs B says the Council failed to put in place speech and language therapy for her daughter from December 2022. The EHC Plan says a speech and language therapist should visit Mrs B’s daughter in school every month to review her needs and advise on the support in place for her. The Council accepts that has not been in place since December 2022 as it has not identified a speech and language therapist to make the provision. Failure to put that provision in place is fault and means Mrs B’s daughter missed out on one hour provision per month since December 2022.
30. Mrs B says the Council failed to amend sections B and F following the occupational therapy review which means her daughter missed out on occupational therapy provision. The Ombudsman will not normally comment on the content of an EHC Plan. That is because there is a right of appeal and the Ombudsman cannot specify provision to include in the EHC Plan. In this case though the EHC Plan the Council issued in December 2022 stated, in section F, that following the occupational therapy review (which was outstanding at that point) the EHC Plan should be amended to include the precise needs identified in section B and any interventions in section F. Given that, I do not consider this part of the complaint outside the Ombudsman’s jurisdiction.
31. I am satisfied the Council had the occupational therapy report in January 2023. The Council has now included the recommendations from the occupational therapy report in the EHC Plan issued in October 2024. I also understand the Council has agreed a personal budget for Mrs B to put those provisions in place from October 2024. Failure to amend the EHC Plan until 2024 is fault and means Mrs B’s daughter missed out on occupational therapy provision between January 2023 and October 2024.
32. Mrs B says the Council delayed carrying out her daughter’s IT assessment, putting in place a laptop and arranging training for school staff to use the equipment.
33. I am satisfied a previous Ombudsman investigation covered the delay carrying out an IT assessment. I will therefore not comment on those delays here. It is clear though following the IT assessment in February 2023 Mrs B’s daughter did not receive the IT equipment until June/July 2023. It is also clear that although Mrs B’s daughter’s teaching assistant has received training other school staff have not and this is still outstanding. The delay providing the IT equipment and in completing the necessary training is fault and likely affected the provision to Mrs B daughter. As part of the remedy for this part of the complaint I recommended the Council liaise with the school to ensure the IT training is completed within three months of my final decision. The Council has agreed to my recommendation.
34. Mrs B says the Council failed to put in place the Lego therapy and ELSA group referred to in her daughter’s EHC Plan. The Council accepts those provisions have not been in place since December 2022 although it notes these may no longer be required as Mrs B’s daughter has started attending a different school. While I understand the point the Council makes, while the provision remains in the EHC Plan the Council must ensure it is in place. As the Council has not ensured this part of the provision is in place for Mrs B’s daughter it is at fault and means Mrs B’s daughter has missed out on provision since December 2022.
35. Mrs B says the Council delayed completing the annual review as it should have taken place in January 2023 but did not take place until February 2024. Mrs B says even then the February 2024 review was not a complete review and she did not receive any documentation before the review.
36. As I said in paragraph 11, the Council is required to review EHC Plans every 12 months. The Council is therefore at fault for not completing a review in January 2023 and for the delay completing the review until February 2024. I consider it likely the review in February 2024 was not a complete review given there is no evidence the Council or the school sent out the required documentation before the meeting. There is also no formal record of it. I note the Council accepts this is the case given it suggested a further review for June 2024, although that review did not take place. Failure to follow the code of practice and hold a review within 12 months is fault. I am concerned about that in this case because a previous Ombudsman investigation criticised the Council for the delay holding a review for Mrs B’s daughter in 2021.
37. I am also concerned that despite a review meeting in February 2024 the Council did not issue a final EHC Plan until 31 October 2024. I recognise the Council has held three coproduction meetings with Mrs B. However, as we noted in a previous Ombudsman investigation, working with parents to ensure the EHC Plan is fit for purpose does not mean the Council can breach the timescales set out in the code of practice. The Council should have issued the final EHC Plan following the February 2024 review within 12 weeks and it has failed to do that in this case. Not only does that mean Mrs B’s daughter has missed out on provision but it also means Mrs B’s right of appeal has been delayed. As remedy for that, I recommended the Council apologise to Mrs B and produce an action plan to demonstrate how the Council will meet statutory timescales for annual reviews. The Council has agreed to apologise and says it already has an action plan in place.
38. I also consider a financial remedy appropriate to reflect the missing provision between December 2022 and October 2024. I consider an appropriate financial remedy would be for the Council to pay Mrs B £400 per term between December 2022 and October 2024. That is a total of six terms and therefore £2,400. I also recommended the Council pay Mrs B an additional £600 to reflect the distress she has experienced because of the faults identified in this statement. The Council has agreed to my recommendations.

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Agreed action

39. Within one month of my decision the Council should:
• apologise to Mrs B for the distress and uncertainty she experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Mrs B £3,000;
• liaise with the school to ensure the Lego therapy/ELSA groups are put into place;
• provide the Ombudsman with evidence of the action plan it has in place to address how it will meet statutory timescales for annual reviews;
40. Within three months of my decision the Council should ensure the outstanding IT training is arranged for school staff dealing with Mrs B’s daughter.

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Final decision

41. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman