Summary: Mrs X complained the Council failed to ensure her daughter received the provision outlined in her Education, Health and Care plan, delayed the annual review process and made amendments to a final Education, Health and Care Plan without consultation. The Council is at fault. The Council will apologise, make payment to remedy the injustice caused and carry out a review of the provision being received.

The complaint

1. Mrs X complained the Council has:
• Failed to ensure her daughter, C, received the provision outlined in her EHC plan.
• Failed to carry out the annual review in a reasonable timeframe.
• Amended the EHC plan between the draft and final without consulting Mrs X.
2. She says this has meant her daughter has lost out on education which has affected her academic achievement. She says it has also caused stress for C and her family.

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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. 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)
5. 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

6. I have considered:
• The information provided by Mrs X and discussed the complaint with her;
• The Council’s comments on the complaint and the supporting information it provided; and
• Relevant law and guidance.
7. Mrs X 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

Law and guidance

8. A child with special educational needs 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. The EHC plan is set out in sections.
9. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
10. 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)
11. 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)
12. 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)
13. 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). The Courts have said this 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 and that organisation 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)
14. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:

• check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.

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Key events

15. C suffers from a perception processing disorder which means she has difficulty processing visual information. She has had an education health and care (EHC) plan in place since November 2021. This was when C was in year eight.

EHC plan review

16. The Council held an annual review meeting in early November 2022.
17. In mid-February 2023 the Council wrote to Mrs X and confirmed it would be amending C’s EHC plan. It said it would issue a draft plan within four weeks. It sent a letter with the new draft the same day.
18. Mrs X raised concerns there were many errors in the report and that some provision was not specific or quantified. In late February 2023 the Council agreed to correct the errors Mrs X had identified, and it issued a new draft. Mrs X again raised concerns that some provision was not specific. The Council agreed to change this, but it issued a final plan without these changes.
19. Mrs X emailed the Council in late March to raise concerns about the EHC plan. She said the Council had finalised the EHC plan without her being given the opportunity to discuss her concerns about it not being specific.
20. The Council accepted it had changed the EHC plan and advised her that it would not be issuing a further plan. It stated if she was unhappy, she had the option of appealing to the tribunal.

EHC provision

21. C’s EHC plan issued in November 2021 says she needs:
• Support with instructions and emotions.
• Visual aids and key word cards.
• Work to be placed on a blue background or overlays.
• A task board.
• Use of dyslexia strategies.
• A seat towards the back of the class.
• Support to manage anxiety including sharing success.
• Access to calming space.
22. In the spring and summer term of 2022 Mrs X raised concerns on a couple of occasions about the school not providing the provision outlined in C’s EHC plan.
23. In response to these concerns the Council arranged a meeting in February with Mrs X and the school to discuss these issues. During the meeting it went through section F to find out what provision was being provided. It did identify areas where C was not receiving provision. Action points were agreed to help improve the concerns identified.
24. The Council also arranged for a member of its inclusion team to work with C in May 2022. This involved several visits with C in school between May and September. During the visits the inclusion team noted some issues with C’s EHC provision such as her position in the class. It also helped the school to create a one-page plan outlining C’s core needs which was to be shared with relevant school staff.
25. In October 2022 the Council had a meeting with the school. During the meeting the school confirmed that C had weekly check-ins with support staff and that she had appeared to develop a bond with staff.
26. In October and November 2022 Mrs X contacted the Council on five occasions to raise concerns the school was not following C’s EHC plan. This included concerns:
• That teachers where not using communication cards and hadn’t been for some time.
• The school had not shared any success with C to build confidence.
• The school was not consistently using the task board.
• Teachers were not allowing C access to a calming space.
• Teachers were not always printing work on blue paper.
• C had been given detention for seeking a calm space or time out.
27. C confirmed these concerns about missing provision during the annual review meeting. She explained that she didn’t feel the teachers paid attention to some of the provision listed so she had stopped bothering with it. The Council agreed to look into how the school was delivering provision and if it needed extra support. It also arranged for the inclusion team to begin visits with C at school.
28. In early December 2022 Mrs X contacted the Council with concerns about how the school was handling C’s access to calm spaces. She explained the school was marking C as unauthorised when she was using calm spaces and C was being punished for using this. She also explained there had been incidents of bullying and C was scared to be in class with the bully. This, and how the school was dealing with it, was affecting C’s willingness to attend school. The Council agreed it would visit the school to look into matters.
29. The Council carried out a visit. It raised some concerns about missing EHC provision and other issues. It agreed some actions with the school to improve C’s school experience and with EHC provision. The Council shared a new one-page plan about C’s core needs with the school following this visit.
30. In early January 2023 Mrs X again raised concerns the school was not providing the provision outlined in the EHC plan.
31. The Council carried out a consultation with an alternative school as part of the review process in late January 2023 as a possible solution to addressing Mrs X concerns. Mrs X was unhappy with the proposed new school, as it suggested not following parts of C’s EHC plan including placing work on blue paper. The Council cancelled a transition meeting to the alternative school following this and no further action was taken in relation to C moving school.
32. In February the Council carried out a visit at the school to follow up on the improvements agreed in December and had a meeting to discuss this. It identified there were still issues with the school following C’s EHC plan and further actions were needed. This included looking at recording C’s absences.
33. In late March Mrs X contacted the Council to explain the school had again marked C as unauthorised when accessing her calm space. She also said that she had been punished for not completing homework despite this being covered by an EHC plan provision.
34. The Council began having weekly meetings with Mrs X to discuss C. Once a month these meetings included the school. During these meetings it recorded Mrs X raising concerns the school was not following C’s EHC plan. Stating certain teachers were not using the task board or allowing C to sit as stated in the EHC plan. The Council agreed to follow these concerns up with the specific teachers and it sent communication to the school about this.

Findings

EHC plan review

35. The Council began a review of C’s EHC plan in November 2022. It should have decided within four weeks whether it was going to maintain, amend or discontinue C’s plan. The Council decided to amend C’s EHC plan and told Mrs X of this in February 2023. This notice was late.
36. The law states that once a council receives comments it must issue an amended EHC plan as soon as possible and within eight weeks. The Council sent out a final EHC plan within this time frame.
37. I understand that Mrs X feels the Council should not have issued a final plan when it did because it had made changes to the draft without giving her the opportunity to comment. The Council has accepted that it made small amendments to the wording between the draft and the final. This is fault. Councils should not make changes without giving the parents the opportunity to comment.
38. The Council’s delay in confirming its decision to amend C’s EHC plan has caused Mrs X irritation. She has also been left frustrated that she has not been fully able to engage in the drafting process because of the Council’s actions in issuing a final EHC plan with amendments.

EHC provision

39. Mrs X first raised concerns that C was not receiving her EHC provision in February 2022. Following these concerns, the Council arranged a meeting and determined what provision was missing. It identified ways the school could improve this and got an agreement from the school to do so. It also arranged for someone from the Council to work with C to help provide the emotional support she needed in building relationships with the school. The Council took steps to follow up on the agreed improvements in October 2022. It held a meeting with the school and went through the improvements that had been agreed. This was a reasonable response to Mrs X’s concerns initially and the Council is not at fault.
40. Mrs X raised repeated concerns about the same issues from October until the end of the school term in 2023. The Council took some steps to address the issues as it spoke with the school, arranged a visit in December 2023 and arranged for the inclusion team to work with C again.
41. When Mrs X continued to raise the same issues, the Council continued to talk to the school and receive assurances it had reminded staff of C’s EHC plan. I appreciate it arranged a regular meeting with the school to discuss issues. However, it did not take any steps to increase its involvement in ensuring the EHC plan was followed beyond speaking to the school and visits from the inclusion team to work with C directly. This is despite the fact verbal reassurances had clearly not been sufficient in resolving the issues.
42. Although I have seen a record sheet intended to document the core provision being provided to C each lesson. There is no evidence the Council took steps to check the provision using the sheet or an alternative assessment.
43. The Council should have done more to look into the concerns and ensure the school was providing C’s EHC provision. The Council noted in its complaint response that it has a process whereby it would carry out an audit of the provision but that this had not been considered. The Council’s failure to escalate its investigation into Mrs X’s concerns when its initial steps had been unsuccessful at resolving EHC provision issues is fault.
44. Mrs X has been left feeling the issues with the missing provision could have been resolved. She believes the lack of provision has made it harder for C to attend school and lessons and affected her mental health. This feeling of uncertainty warrants recognition. C has also been left frustrated by the lack of provision she has received and how this has affected her school experience. This is particularly as the school structure meant she began some GSCE courses in year 9.

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Agreed action

45. Within one month of the final decision the Council will:
• Apologise to Mrs X and C for the distress caused by the failure to carry out additional investigations into the concerns about the missing EHC provision.
• Apologise to Mrs X for the injustice caused by the Council’s actions in amending the draft EHC plan and the delay in confirming whether it would amend the plan after the annual review.
• Pay Mrs X £100 for the distress caused.
• Pay Mrs X, for the benefit of C, £400 for the distress caused.
46. Within two months of the final decision the Council will:
• Carry out an audit of the EHC provision C is receiving.
47. The Council should provide us with evidence it has complied with the above actions.

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Final decision

48. I have completed my investigation. I have found fault leading to injustice. The Council will take action to remedy the injustice caused.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman