Summary: There was fault the Council delayed issuing an EHCP for Mrs B’s son after an annual review. There was also a fault in how the Council responded to Mrs B’s complaint about this delay and the provision her son’s school were delivering. These faults caused Mrs B an injustice. The Council have already apologised and have agreed to make a symbolic payment to Mrs B, to remedy any remaining injustice.

The complaint

1. Mrs B said the Council took too long to finalise her son’s Education, Health and Care plan (EHCP) after an annual review in 2022. Mrs B said this caused her and her son unnecessary distress.
2. Mrs B also said when she became aware the school was not providing her son’s special education provision (SEP), she told the Council and the Council took no action. Mrs B said this meant he missed extra education support.
3. Finally, Mrs B said the Council did not properly respond to her complaints in line with the Council’s complaint procedure and this caused her extra inconvenience.
4. I will refer to Mrs B’s son as G.

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The Ombudsman’s role and powers

5. 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)
6. 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)
7. We cannot investigate complaints about what happens in schools unless it relates to special educational needs. This is 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.
8. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
9. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

10. I spoke to Mrs B and considered the information she provided.
11. I considered the Council’s comments and the documents it provided.
12. I considered the special educational needs and disability (SEND) code of practice which councils have a duty to follow.
13. I have also considered our Guidance on Remedies.
14. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

What should have happened

EHCP review procedure

15. The procedure for reviewing EHC plans is set out in legislation and government guidance.
16. 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)
17. Recent caselaw says councils must, from March 2022, send the parent or young person the final amended EHC plan within a maximum of 12 weeks of the annual review meeting. It says councils must send the decision letter alongside any proposed changes to the EHC Plan within four weeks of the review meeting, and issue a final plan no later than eight weeks after the decision letter is sent. R (L, M, and P) v Devon County Council [2022] EWHC 493

Special education provision

18. 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)
19. 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.

Complaint handling

20. The Council’s policy says it aims to respond to a complaint within 15 working days. Where complainants remain unhappy with the first response, they can ask for a further review. The policy says where it does review a complaint, the Council will normally respond within 25 working days.

What happened

EHCP review (2022 – 2023)

21. In mid-June 2022, G’s school held a review meeting for his EHCP. The review identified amendments to the SEP. These included amendments to speech and language therapy (SLT) and physiotherapy. The community SLT team had discharged G from their service but had provided advice to the school about G’s continued SLT support. Mrs B was at the review meeting.
22. In early September, G’s school contacted the Council asking for an update on the draft EHCP. The Council replied that day saying it hoped to issue a draft EHCP in the next two weeks.
23. In early and late October, Mrs B then asked the Council for an update. In early November the Council responded. It apologised for the delays and said it was working through a backlog of cases. Mrs B then made a formal complaint.
24. Mrs B continued to ask the Council for updates on G’s EHCP. In January, the Council responded saying the draft EHCP would be with her imminently. In mid-January, Mrs B responded with her comments on the draft EHCP.
25. In late February, the Council issued a final EHCP.
26. In its response to my enquiries, the Council accepted it did not provide a final EHCP to G’s school. It said it believed despite this, the school, in consultation with other professionals, would have been aware of the changes.
27. The Council said it accepted the delays in it issuing a final plan would have caused frustration and offered to make a symbolic payment to Mrs B of £250 as a remedy for her injustice.

Special Education Provision

28. In October 2021, the Council issued an EHCP, for the years 2021-2022. It scheduled an annual review of this plan for May 2022. In line with the sequence of events I have already described, it carried out an annual review and issued a final EHCP for years 2022-2023, in February 2023.
29. Mrs B told me the SEP included in the 2021 EHCP was what the school should have provided to her son. She said until the Council issued a new EHCP, then this was the authoritative guide for provision.
30. Significantly, this affected SLT, and physiotherapy provision, some of which were removed from the 2022 EHCP (issued in 2023).
31. The amendments to SLT meant G would no longer receive three contacts over 12 months, by a speech and language therapist. Both the 2021 and 2022 EHCP, said G would receive one-to-one SLT activity for up to ten minutes daily.
32. Mrs B said the school were not doing this daily activity because of what the staff there told her in November 2022. Mrs B said they told her they were not carrying out any specific SLT provision with G.
33. The amendments to physiotherapy provision meant G would no longer have three weekly 30-minute sessions delivered by trained staff. The 2022 EHCP, said he would have three physical activity sessions each week including two 30-minute physiotherapy sessions. It reiterated trained staff would carry out this activity. Mrs B said this was not happening either and she told the Council about this and the missing SLT in November 2022.
34. In response to my enquiries, the Council sent me information that went to the EHCP annual review in June 2022.
35. It said the community SLT had discharged G from its service. It said the service would provide guidance to the school on how to support G. In relation to physiotherapy, the review recommended G would have three physical activity sessions per week including two 30-minute physiotherapy sessions per week.
36. As previously stated, Mrs B made a complaint to the Council in early November (paragraph 23). This complaint coincided with contact Mrs B had with the Council about the fact it had not yet issued the 2022 EHCP after the annual review.
37. Mrs B complained the Council had not yet sent a draft copy of G’s EHCP or given her a timescale for when it would have this completed by. Mrs B also said, ‘My sons educational and health care needs are not being met by (the Council’s) lack of provision that had been agreed to be provided’.
38. According to the acknowledgement the Council sent back to Mrs B five days later, it described her complaint as;
• delay in service provision
• lack of communication
• (G’s) EHCP
39. From the date of the first acknowledgement until mid-January 2023, Mrs B and Mrs B’s MP sent the Council six messages asking for updates on this complaint. The Council replied to one of these with a holding response.
40. In late January, G sustained an injury in an incident at school. After her contact with school about this, she made another complaint to the Council about the nature of the SEP the school were providing G.
41. The Council responded to this complaint a week later, using the November complaint reference number.
42. In its response, the Council apologised for delays in issuing a final EHCP and for poor communication. It also gave Mrs B an expected timescale for when it would Issue G’s EHCP.
43. It also said that based upon the complaint letter Mrs B sent in February, it was now aware Mrs B’s thought the school were not delivering provision in line with G’s EHCP. It said it had contacted G’s school about this and asked Mrs B to give it more time to investigate.
44. Around this time, the Council spoke to a representative of G’s school to ask about G’s level of SEP. G’s school responded to the Council to explain what provision it had provided. The information says the school were working to delivering provision in line with the amended levels of SEP, which the review meeting recommended.
45. After the Council’s first response, Mrs B escalated her complaint. The Council responded and reiterated its earlier apology concerning delays to the EHCP. It also suggested that further discussions about changes could take place at the next annual review, which was due to take place in March. The Council’s second response did not provide any information about the Council’s discussion with the school about how it was delivering G’s SEP.

Complaint handling

46. Mrs B first raised a complaint in early November, and the Council sent an acknowledgement within five days. Mrs B did not get a first stage response to this until mid-February, and this followed a second complaint she made in early February.
47. The Council accepts the time it took to deal with Mrs B’s complaint was unacceptable. In its response to my enquiries, it offered to make a symbolic payment of £100 to Mrs B to remedy her injustice caused by the delay.

My findings

EHCP review (2022 – 2023)

48. The guidance and case law says the Council must complete the EHCP procedure within 12 weeks following an annual review. This would have meant the Council should have issued a final EHCP by mid-September and it did not do so until late February. This was very late and is fault. This fault caused an injustice, and I will address Mrs B’s level of injustice caused by this fault later in this decision statement.

Special Education Provision

49. Mrs B said she had an expectation any SEP G’s school provided should be in line with the existing EHCP until the Council issued a further EHCP. In so far as this complaint about provision goes (SLT and physiotherapy), the evidence is the school had adopted the provision it expected it would provide in line with the suggested amendments.
50. Apart from the removal of the three visits from a speech and language therapist, the differences between the two sets of provision in the consecutive EHCP’s was in my view very slight. Because of this, I do not believe G suffered an injustice because of fault by the Councils delay in issuing an EHCP here. The evidence shows the community SLT had already discharged G from its service.
51. We do not expect Council’s to keep a ‘watching brief’ on what provision schools are delivering, but we expect them to step in when it becomes aware there may be issues. Mrs B told me she told the Council about her concerns in November. Mrs B said in her first complaint she was concerned about delays and the level of provision.
52. Mrs B’s preceding contact with the Council before her first complaint had raised issues about timeliness of the Council’s response to finalising the EHCP.
53. Mrs B heard nothing further and followed this up with another complaint in February. At that point she specifically raised the issue about the Council’s statutory duty to secure SEP in line with the plan. The evidence shows the Council reacted to this second contact by checking what provision the school were delivering.
54. On balance, I find the Council was at fault for taking too narrow a definition about what Mrs B’s complaint was in November. This was especially so, given that it responded to Mrs B in defining her complaint which included ‘delay in service provision’.
55. I find it properly responded in February when Mrs B highlighted this.
56. The fault in not properly defining what Mrs B’s November complaint was, meant there was a delay in the Council assessing the extent of the SEP the school were delivering between November to February.
57. I cannot say for a certainty what the outcome would have been if the Council had raised the matter with the school in November. This is because the school were providing provision during this academic year. The evidence also says where there were gaps, these were because of school staffing issues or a difference of agreement about how the SEP should be delivered. This is different from a fault on the Council to ensure the school were delivering provision.
58. The delays in issuing the EHCP did cause Mrs B uncertainty about what specific provision the school should be providing to G.
59. The fault in the Council not responding to Mrs B’s concerns about provision in November meant she was left with an increased amount of uncertainty about what the Council were doing between November and February. It also likely meant she felt disempowered on challenging the school to ensure G received the SEP Mrs B believed he was entitled to.
60. The Council also missed an opportunity to fully address Mrs B’s concerns specifically about the SEP in its second stage response. It asked for more time to look at this after its first response and it had a response from G’s school at that point. It could have given Mrs B this update.
61. Mrs B went to extra time complaining to the school about this, after incorrect advice from the Council and this was a matter the Council needed to respond to.

Complaint handling

62. The Council admitted it took too long to respond to Mrs B’s complaints and its response fell outside expected timescales. That is fault.

Injustice

63. The collective faults caused Mrs B an injustice because she experienced avoidable distress caused by the uncertainty in the provision she could expect for G. It also caused her uncertainty because she was unable to effectively challenge this.
64. The Council have already accepted its actions will have caused frustration and apologised to Mrs B. It has agreed to make a symbolic payment for the injustice this collective fault caused to the amount of £350.
65. I believe this is an appropriate remedy for Mrs B’s injustice.

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Agreed action

66. Within one month of the date of my decision, the Council has agreed to pay Mrs B;
• £250 for avoidable distress caused by delays in handling G’s EHCP;
• £100 for delays in responding to Mrs B’s complaint.
67. The Council should provide us with evidence it has complied with the above actions.

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Final decision

68. I have found fault.

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Investigator's decision on behalf of the Ombudsman