Summary: Mrs X complained the Council did not provide her child D with special educational needs support from their Education, Health, and Care Plan, and failed to properly review the Plan. There was fault by the Council which caused D to miss special educational needs provision, and avoidable distress for D and Mrs X. The Council agreed to apologise, evidence it is taking action to ensure D’s provision is in place, and pay a financial remedy. It will also review its processes to ensure it meets its duties to secure Education, Health, and Care Plan provision.

The complaint

1. Mrs X complains the Council did not provide suitable support for her child D’s special educational needs (SEN) from 2021 to 2024. She says the Council:
• failed to deliver SEN provision set out in the Education, Health, and Care (EHC) Plan, from November 2021 onwards;
• did not review the EHC Plan each year as needed;
• delayed in reviewing the EHC Plan and finding a suitable school placement after a December 2023 review meeting where it agreed D’s school was not suitable for them; and
• failed to communicate with Mrs X properly and to progress the case when staff left and were replaced.
2. Because of this, Mrs X says D remained in an unsuitable school placement, and missed SEN provision they needed, which affected their educational achievement. This affected D’s behaviour which impacted the whole family. Mrs X wants the Council to find a suitable school placement, ensure the EHC Plan is in place without delay, and provide compensation for the missed 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. 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. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
6. 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)
7. 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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How I considered this complaint

8. I considered evidence provided by Mrs X and the Council and relevant law, policy, and guidance.
9. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
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 found

Legislation and guidance

Education, Health, and Care (EHC) Plans

11. A child or young person with special educational needs (SEN) may have an Education, Health, and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them.
12. 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)  

Reviewing EHC Plans

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 then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
14. 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. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.

EHC Plan appeal rights

15. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
16. There is a right of appeal to the Tribunal against a council’s:

• description of a child or young person’s SEN, the SEN provision specified, or the school or placement specified in the EHC Plan;
• amendment to these elements of an EHC Plan; or
• decision not to amend an EHC Plan following a review.

17. We cannot direct changes to the sections of an EHC Plan about a young person’s needs, education, or the name of the educational placement. Only the Tribunal or the council can do this. 
18. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
19. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
20. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example: 

• delays in the process before an appeal right started; and
• support in an EHC Plan that is not being delivered to the child or young person and we decide the cause is not connected to an appeal that has, or should have, happened.

What happened

21. In November 2021, the Council issued D with their first EHC Plan, when they were in year 3 at a mainstream primary school. D’s school was in a different council’s area. In this decision I will refer to The London Borough of Hounslow as ‘the Council’, and the council where D’s school was located as ‘Council B’.
22. The November 2021 EHC Plan said D should receive the following Speech and Language Therapy (SaLT) provision.
1. Speech sound activities for five to ten minutes every day, delivered by D’s school.
2. The SaLT team (i.e., a therapy service from outside the school), would provide the school resources to support D’s residual speech difficulties, and support with further advice or concerns at a termly planning meeting.
23. In June 2022, at the end of year 3, the school held an annual review meeting. Three weeks later, the Council issued a decision that it would not amend the EHC Plan. It told Mrs X she could appeal to the SEND Tribunal if she disagreed with this decision.
24. In March 2023, when D was in year 4, the school held another annual review. Two weeks later, the Council again issued a decision that it would not amend the EHC Plan. It told Mrs X she could appeal to the SEND Tribunal if she disagreed with this decision.
25. In September 2023, D started year 5. The school held an early annual review in December 2023, which the Council attended. At this meeting, all present agreed D was finding mainstream school overwhelming and was not making progress against their EHC Plan outcomes. The school recommended D should move to a special school. Following the review, in December 2023, Mrs X had contact with Council B’s SaLT service, because she thought this service was delivering the provision outlined at paragraph 22b. Council B’s SaLT service told her it had not been involved with D since it carried out an assessment to inform the original November 2021 EHC Plan. Mrs X passed this information to the Council and asked it to consider it.
26. Also in December 2023, the Council issued a decision it would amend D’s EHC Plan following the September 2023 review. This included consideration of whether a different school should be named in the Plan as D’s educational setting. It then began consulting with various placements, including special schools, and mainstream schools which contained a special needs centre. Only one of the several schools consulted agreed it could admit D. However, Mrs X said this was not suitable because it provided primary school provision only. She did not want D to move primary schools during the second term of year 5, only to have to move schools again after year 6, when starting secondary school. Mrs X’s preference for D, School Y, was a special setting which provided both primary and secondary provision, so D would not need to move. The Council had already consulted School Y and it had said it could not meet D’s needs.
27. In March 2024, the Council had not found a new school placement or issued an amended EHC Plan. Mrs X complained to the Council about these delays, and that D was not receiving the SaLT provision from their EHC Plan. At this point the Council started to consult private SaLT providers to arrange an updated assessment of D.
28. In April 2024, the Council responded to Mrs X at Stage 1 of its complaints procedure. It said:
• it was still consulting schools to find a new placement; and
• D's school should be receiving funding for SaLT provision from Council B (for Council B to then claim back from the Council retrospectively). Therefore, the issue of a lack of SaLT provision should be raised with Council B instead.
29. Mrs X escalated her complaint to Stage 2, and the Council responded in May 2024. It said it:
• had continued to consult schools in line with Mrs X’s preference of a school providing both primary and secondary provision, but none of those schools could meet D’s needs. This included consulting School Y three times; and
• was consulting with private SaLT providers to try to commission D’s SaLT provision to be delivered at their mainstream school in the meantime.
30. In June 2024, Mrs X brought her complaint to the Ombudsman. In August 2024, the Council issued an amended EHC Plan for D, following the December 2023 review. This still named D’s mainstream school as their educational setting for the coming school year (year 6). The Plan now said D should receive the SaLT provision from the previous Plan (see paragraph 22), plus 15 minutes of support twice a day from a Speech and Language Assistant, to work on their expressive language.
31. In October 2024, D’s school held an annual review meeting, to review the EHC Plan and find a secondary school place ahead of their coming transfer to secondary education in September 2025. The Council began consulting secondary school places.

What I have and have not investigated

32. Mrs X complains D did not receive the SaLT provision in their EHC Plan from the point it was first issued, in November 2021. She also complains the Council did not review the Plan each year after this as needed. The law says we cannot investigate events which happened more than 12 months before somebody complained to us, unless we decide there are good reasons it took them longer to complain. Mrs X first came to the Ombudsman in June 2024, so we would usually only look at what happened after June 2023.
33. Mrs X did not find out D’s SaLT provision may not have been delivered until December 2023. She brought her complaint to us within 12 months of finding out about this, so this part of her complaint is not late. However, the Council issued decisions to Mrs X each year that it would be maintaining the EHC Plan with no changes, and she could have appealed these decisions to the SEND Tribunal. I am satisfied Mrs X could have complained to the Council, and to us, sooner about issues with the EHC Plan review process before June 2023. I have therefore only investigated what happened with the review carried out in year 5.
34. I can consider any continuing injustice caused by the Council’s faults before Mrs X brought her complaint to us. However, I cannot consider new issues which arose after Mrs X came to us. The law says councils must have reasonable opportunity to respond to a complaint before we look at it. Mrs X says there have been recent issues since she came to us in June 2024:
• The Council continued to name D’s mainstream school setting in the August 2024 EHC Plan. This is a new issue so I cannot consider it. Also, Mrs X had a right of appeal about this Plan to the SEND Tribunal if she disagreed with the named school. I consider it reasonable for her to have used this right. This is another reason I cannot consider it.
• If Mrs X wants to complain about how the Council ensured D received provision for the 2024/2025 school year, after it issued the new EHC Plan in August 2024, this is also a new issue which I cannot consider.
• Mrs X says following the recent October 2024 review there have been delays in finding a secondary school place and finalising an EHC Plan for September 2025. This is also a new issue I cannot consider.
35. Mrs X would need to make a new complaint to the Council about these new events first. If she remains dissatisfied following the Council’s response, she could then make a new complaint to us to ask us to consider it.

My findings

EHC Plan review

36. Following the December 2023 review meeting, the Council issued its decision to amend the EHC Plan within the required four weeks. However, it then should have issued the final amended Plan within a further eight weeks, so by 16 February 2024. The Council issued the final Plan in August 2024, a delay of 25 weeks, which was fault.
37. The delay caused distress to D and Mrs X. D also would have been entitled to extra SaLT provision sooner if the Plan had been finalised sooner. The Council should remedy the injustice caused.

Delivery of EHC Plan

38. The Ombudsman recognises it is not practical for councils to keep a ‘watching brief’ on whether every pupil with an EHC Plan is receiving all their SEN provision. However, we consider councils should be able to demonstrate due diligence in discharging this important legal duty. As a minimum, the Council should have systems in place to:
• check the special educational provision is in place when it issues a new or substantially different EHC Plan, or there is a change in educational setting;
• check the provision at least annually via the EHC Plan review process; and
• investigate complaints or concerns that provision is not in place at any time.
39. The Council accepted D did not receive all their SaLT provision after it issued their first EHC Plan in November 2021. There was no involvement from a SaLT team to provide the school with resources, or support with further advice or concerns at a termly planning meeting. The Council took no steps to assure itself the new EHC Plan was in place after it issued this in November 2021. It also did not investigate or address the issues in good time after Mrs X started to raise concerns in December 2023. This was fault.
40. After Mrs X raised concerns in December 2023, there was confusion in the Council about whether the duty to ensure the EHC Plan was delivered lay with the Council, or Council B where D’s school was. D’s GP practice was also in Council B’s area which is another reason the Council considered the responsibility lay with Council B. I have recommended actions the Council should take to ensure:
• its staff are clear about its non-delegable duty to ensure EHC Plan provision is in place; and
• processes are in place and arrangements are clear for how support from therapy services will be provided where it maintains an EHC Plan for a child that attends a school outside its area.
41. Fault by the Council meant D missed SaLT provision they were entitled to for 8.5 terms from November 2021 to July 2024.
42. In response to my enquiries, the Council offered a financial remedy of £1,800 to recognise SaLT provision D missed from January 2024 onwards. I have recommended a different financial remedy, covering a longer period, based on our guidance on remedies. This says where we find fault has resulted in loss of educational provision (for example where a child is out of school), we usually recommend a payment of £900 to £2,400 a term to recognise the impact of that loss. Where there has been a loss of SEN support, such as direct therapies and interventions, the level of financial remedy is likely to be lower than that for loss of educational provision. We consider the level of SEN provision missed and the impact of this on the child.
43. In deciding a suitable financial payment to recognise the impact of D’s missed SaLT provision, I considered the following.
• During this period, D was in years 3 to 5 of primary school. As set out in our guidance on remedies, we do not consider this to be one of the most significant periods in a child’s school career, as we would for say the first year of secondary school.
• SaLT is a key intervention which may have had a significant impact on D’s ability to access and engage with their education. The November 2021 Plan did not include any direct SaLT therapy, only input from a qualified SaLT to support the school. However, the August 2024 Plan did include direct daily support from a Speech and Language Assistant, and as I have set out above, this Plan should have been in place from February 2024.
44. Based on this, I consider the Council should provide a termly financial remedy of £300 for the 7 terms from November 2021 to February 2024, and £500 for the 1.5 terms from February to July 2024 when the support should have increased. It should also make a further payment to recognise the distress caused to D and Mrs X by the Council’s failings.

Communication with Mrs X

45. In response to our enquiries, the Council accepted delays in the EHC Plan review were caused by a high turnover of staff. It said there had been three case officers since the December 2023 decision to amend the Plan. The Council did not ensure Mrs X was kept updated until after she complained in March 2024.
46. The Council should have processes in place to ensure statutory timescales are met, and issues responded to, when staff leave. This should not affect the service provided. This was fault by the Council causing Mrs X distress.

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Action

47. Within one month of our final decision the Council will:
1. apologise to Mrs X for the faults identified and the impact of those faults. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology;
2. provide evidence to the Ombudsman it is taking action to ensure the SaLT provision set out in D’s EHC Plan is in place; and
3. pay the family a total of £3,200, comprising of:
1. £2,850 to recognise the SaLT provision D missed;
2. £200 to recognise the avoidable distress caused to Mrs X by the Council’s failings; and
3. £150 to recognise the avoidable distress to D.
48. Within three months of our final decision the Council will decide what changes are needed to its EHC Plan processes or staff training to ensure it has systems in place to:
1. ensure its staff are clear about its non-delegable duty to ensure EHC Plan provision is in place;
2. check EHC Plan provision is in place when it issues a new or substantially different EHC Plan, and properly investigate complaints or concerns that provision is not in place at any time;
3. ensure arrangements are clear for how support from therapy services will be provided where it maintains an EHC Plan for a child that attends a school in a different council’s area; and
4. ensure effective case management of EHC Plans when staff leave and are replaced, so statutory timescales are met and issues responded to in good time.
49. The Council will provide us with evidence it has complied with the above actions.

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Decision

50. I find fault causing injustice. The Council agreed to my recommendations to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman