Summary: Mrs X complained the Council did not review her child’s Education, Health and Care Plan within statutory time frames and did not provide the provision in the previous Plan. Mrs X says this caused unnecessary and avoidable distress and impacted her child’s education. The Ombudsman finds the Council at fault which caused Mrs X and her child injustice. The Council has agreed to take service improvement action and make a payment and apologise to Mrs X.

The complaint

1. Mrs X complains:
1. The Council delayed reviewing her child, B’s, Education Health and Care (EHC) Plan for five years; and
2. Her child’s school did not meet their needs.
2. Mrs X says this has impacted her child’s education. She says it has also caused her unnecessary and avoidable distress.

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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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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.

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What I have and have not investigated

7. Mrs X complains the Council did not review B’s EHC Plan within statutory timescales since it was first issued in 2018. Mrs X complained to us in September 2024. As I have said above, we cannot investigate late complaints unless there are good reasons for us to do so.
8. Mrs X says she delayed complaining because the first time she was informed of the statutory timescales for EHC Plan reviews by school staff was in November 2023. She says she raised concerns about the lack of a review several times to a member of school staff over the years. She also sought advice from other sources in May 2023. I consider it was reasonable for Mrs X to have complained to the Council prior to September 2024. Therefore, I have decided there are no good reasons to exercise our discretion to investigate matters before September 2023.
9. Mrs X complains the school has not met B’s needs. She says this is because their allocated member of staff did not contact the Council to review B’s EHC Plan. She says staff at school communicated with her poorly and did not provide her with information she requested about their Special Educational Needs (SEN) provision for B. As I have said above, we cannot investigate complaints about internal school matters unless the matters are about provision of Section F in the child’s EHC Plan.
10. I have only investigated parts a and b of the complaint from September 2023 onwards because this is 12 months before Mrs X brought her complaint to us.
11. In regards to part b of the complaint, I have only investigated matters relating to Section F of B’s EHC Plan.

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How I considered this complaint

12. I considered the information and documents provided by Mrs X and the Council. Mrs X and the Council had an opportunity to comment on a draft of this decision. I have considered all comments received before making this final decision.
13. I also considered the relevant statutory guidance, as set out below. I have also considered the Ombudsman’s published guidance on remedies
14. 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

What should have happened

Statutory timescale (part a of complaint)

15. 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.
16. 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) 

EHC Plan Provision (part b of complaint)

17. The EHC Plan is set out in sections which include: 

• Section F: The special educational provision needed by the child or the young person. 

18. 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 of (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)  

What happened

19. Prior to September 2023, the Council issued B with an EHC Plan. The EHC Plan said B would receive 22.5 hours per week of learning support assistance to be delivered by school staff, including the class teacher and the school’s SEN Coordinator.
20. In December 2023, the Council held a review meeting with Mrs X. The Council decided to amend B’s EHC Plan.
21. In May 2024, Mrs X made a formal complaint to the Council.
22. In mid July, Mrs X escalated her complaint to stage two.
23. In late July, the Council sent Mrs X a draft amended version of B’s EHC Plan.
24. In August 2024, the Council issued a finalised review of B’s EHC Plan. It set out provision which included:
• daily 15 minute sessions individually or in a small group to go over learning with class teacher;
• twice weekly 10 minute sessions individually or in a small group for handwriting practice;
• weekly 20 min sessions in small groups run by school staff focusing on social skills;
• weekly sessions in small groups run by school staff focusing on B’s communication; and
• strategies for school staff should use to support B’s learning.
25. In September 2024, the Council responded to Mrs X’s stage two complaint. It offered her a financial remedy of £500 for the delay issuing the finalised EHC Plan following the review meeting in December 2023.

Analysis

Statutory timescale (part a of complaint)

26. We expect councils to follow the statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. The statutory guidance says councils should review EHC Plans every 12 months. By September 2023, the Council had already not met the statutory timescale and B’s review EHC Plan was overdue. The Council issued B’s finalised reviewed EHC Plan in August 2024. This is eleven months of further delay. This is fault and caused Mrs X and B unnecessary and avoidable uncertainty.
27. Statutory guidance says councils should issue the reviewed EHC Plan within four weeks of the review meeting. Therefore, following the review meeting in December 2023, the Council should have issued B’s reviewed EHC Plan in January 2024. The Council has offered Mrs X £500 to remedy its seven-month delay issuing the finalised EHC Plan.
28. On balance, B would likely have had access to the additional provision detailed in the EHC Plan finalised in August 2024 at an earlier date if the Council had completed the review within statutory timescales. Therefore, the Council’s delay caused B to miss out on provision. I consider the £500 offered by the Council does not remedy the provision B missed out on in the spring and summer terms in 2024. I also consider a further remedy is appropriate for the missed provision in the term from September to December 2023, which was caused by the Council not meeting its statutory duty to review B’s EHC Plan annually.

EHC Plan Provision (part b of complaint)

29. The Ombudsman recognises it is not reasonable for councils to have oversight of the delivery of every provision, to every child with an EHC Plan, at all times. However, it is reasonable the Council satisfies itself provision has been secured and reviews this on an annual basis and follows up any concerns of no provision. In this case, I am not satisfied the Council demonstrated its due diligence to ensure B was receiving the correct provision prior to December 2023. This is because it did not review the EHC Plan annually. This is fault which caused Mrs X unnecessary and avoidable distress.

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Action

30. Within four weeks of my final decision the Council has agreed to:
1. provide a written apology to Mrs X and B for the unnecessary and avoidable distress and uncertainty caused by its delay reviewing and issuing B’s EHC Plan, and for not exercising its due diligence to ensure B received the correct provision between September and December 2023.
2. make a payment of £2700 to Mrs X to recognise the provision B missed out on in the three school terms between September 2023 and August 2024. This amount includes the £500 the Council has already offered to Mrs X. In arriving at this figure, I considered our published guidance on remedies and B’s individual circumstances. I considered B’s needs, and that B received full time education during this time. I also considered the timing, and this occurred during a year which was less significant in terms of B’s education. I consider this amount is appropriate and proportionate to the level of injustice caused.
3. tell us what steps it is taking to ensure it is sufficiently monitoring EHC Plans to ensure reviews are completed within statutory timescales.
31. 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.
32. The Council should provide us with evidence it has complied with the above actions.

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Decision

33. I find fault causing injustice. The Council has agreed to apologise and make a payment to Mrs X and take service improvement action.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman