Summary: Mr X complains the Council was fault in the way it dealt with his daughter Y’s Education Health and Care Plan following an annual review in May 2022 causing distress and uncertainty. The Council has accepted it was at fault as it delayed issuing an updated EHC Plan. The Council has already apologised, taken action and proposed a financial payment to Mr X in recognition of the distress caused which is suitable to remedy the injustice caused to Mr X and Y. So, we have completed our investigation.

The complaint

1. I have called the complainant Mr X. He complains there were failings in the way the Council dealt with the Education Health and Care Plan (EHC Plan) for his daughter Y following an annual review in May 2022. Mr X says the Council failed to issue an amended EHC Plan after the annual review and failed to maintain Y’s SALT and physiotherapy provision causing loss of provision and distress to the family.
2. Mr X wants the Council to issue an updated EHC Plan. And to put Y’s physiotherapy and SALT provision in place with either extra provision or a financial payment to catch up on missed provision.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:

• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

4. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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 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

8. I spoke to Mr X and considered the information he provided with his complaint. I made enquiries with the Council and considered its response along with relevant law and guidance.
9. Mr X and the Council 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

Education, Health and Care Plans (EHC Plans)

10. 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. We cannot direct changes to the sections about education or name a different school. Only the SEND Tribunal can do this.
11. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC plan or about the content of the final EHC plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC plan has been issued.
12. The Council is responsible for making sure that arrangements specified in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.

Due diligence

13. 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.

Arrangements for reviewing an EHC Plan

14. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
15. 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)
16. 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)
17. 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)

Personal Budgets

18. A personal budget is an amount of money identified by the council to deliver provision set out in an EHC plan where the parent or young person is involved in securing that provision.

What happened

19. What follows is a brief chronology of key events and information. It does not contain all the information I reviewed during my investigation.
20. Y has an EHCP. She has multiple needs that affect her both physically and mentally. Y lives with her family. Y moved to a mainstream special school in September 2021. The school confirmed when consulted it could meet Y’s SALT and physiotherapy needs and it arranged for an independent physiotherapist to make the provision. The Council allocated Y a place at the school on that basis.
21. The school and Council held an annual review of Y’s EHC Plan in May 2022 and considered it needed some amendments. The Council received physiotherapy and SALT reports as part of the annual review. The reports raised no issues and indicated provision was being made in line with the EHC Plan. The Council told Mr X it would send him an amended EHC Plan for comments soon.
22. In October 2022 Y’s physiotherapist told the Council she was discharging Y from her services. This was because she had not received an amended EHC Plan or a response from the Council after raising issues in November and December 2021 that Y’s physiotherapy needed further input.
23. The Council says it has no record of the physiotherapist raising issues with it or the school in 2021 and considered it contradicted the physiotherapy report received in May 2022. This report said the physiotherapy provision was appropriate to review and progress Y’s exercises in school. The report recommended the Council use NHS physiotherapists as a statutory service for providing increased input for mobility at home. The report said the physiotherapy needed to continue and the physiotherapist would facilitate a referral to the NHS. The Council says it had not sent an EHC Plan to the physiotherapist because it had not yet been drafted.
24. Mr X complained to the Council in November 2022 about the lack of physiotherapy provision for Y, limited communication from the Council and no draft EHC Plan following the annual review. The Council apologised for the delays, and said it planned to issue the EHC Plan in the next few weeks.
25. The Council issued the draft EHC plan during November 2022 and sent it to Mr X. Mr X responded in December 2022 seeking a few changes.

Early Annual Review January 2023

26. The school and Council held an early annual review of Y’s EHC Plan in January 2023. It considered the school remained appropriate, but the EHC Plan needed changes. As there was no updated EHC Plan the Council included suggested amendments from the May 2022 annual review.
27. Mr X complained the Council failed to issue an amended EHC Plan following the May 2022 annual review, a lack of physiotherapy provision and the Council’s failure to source a new provider. The Council recognised Mr X’s concerns and said it would investigate the matter. Mr X complained the SALT provision had not been maintained as well and asked how he as a parent could be in control of the provision. The Council said it would contact Y’s school about the SALT provision as it had received a SALT report in June 2022 as part of the review.
28. Mr X chased the Council for a response in February 2023. The Council apologised for the delay and asked if Mr X would consider a personal budget for the physiotherapy and SALT provision. Mr X agreed to a personal budget.
29. The Council told Mr X the independent physiotherapist considered the provision suitable to meet Y’s needs for reviewing and progressing exercises in school. The provision did not provide for assessing Y’s mobility at home as it was standard practice for this to be done through the NHS as a statutory service. The physiotherapist discharged Y but did not tell the school or council. The school was now using its SALT service to ensure it was meeting the provision in the EHC Plan and referring Y to the NHS SALT service. The Council noted Mr X sought a personal budget and asked if he intended to source the SALT provision and provide the Council with costings. The Council asked Mr X how the family wanted to move forward.
30. Mr X agreed to source the provision and asked for a further early annual review. This would enable the SALT and physiotherapy assessments to be added to the outdated EHC plan to establish what Y’s needs were.
31. The Council received the annual review documents from the school in February 2023. It considered the school setting remained appropriate for Y, but the EHC Plan needed amendments. Mr X complained to the Council it had been unaware Y’s physiotherapy provision had stopped and asked to discuss the current provision, personal budget and to resolve issues.
32. An officer spoke to Mr X about the physiotherapy and SALT provision. The officer noted Mr X was aware that NHS SALT and physiotherapist can do work outside the school day but there was a two-year waiting list for the service which Y was on. Mr X requested a personal budget and agreed to send the provider’s initial costs to the Council. The Council told Mr X it had received the annual review documents.
33. The Council responded to Mr X’s complaints. It accepted it should have issued an updated EHC Plan within 20 weeks (October 2022) of the annual review. Mr X had requested an early annual review to ensure any SALT and physiotherapy needed was properly understood. The Council said it made sense to wait for this information before finalising the EHC Plan. The Council accepted it failed to respond to Mr X’s correspondence until he made a formal complaint and apologised. It explained it was working to increase capacity within the service and make improvements.
34. The Council was aware Mr X had discussed using NHS SALT and physiotherapist but was reluctant to do so because of a long waiting list. The Council agreed it would provide funds for Y’s SALT and physiotherapy as set out in the EHC Plan. It agreed to hold an early annual review to ensure any new information could be incorporated into the EHC Plan. It noted the school was using its own SALT provider to support Y in the short term. The Council advised that once the SALT and physiotherapy was resolved it would consider any redress for the impact of missed provision. This could be extra sessions or a compensation payment depending on the views of the professionals in each area.
35. The Council offered Mr X a £200 payment for his time and trouble and recognising the delay in responding to his complaint. It also offered Mr X a £200 payment in recognition of the delay in finalising the EHC Plan. The Council considered it had agreed an appropriate way forward with Mr X.
36. Mr X sent the Council SALT and physiotherapy quotes for Y’s provision. The Council and Mr X discussed the personal budget provision during April and May 2023. The Council agreed to the personal budget in June 2023 which would be made using a direct payment (DP). The Council gave Mr X a DP card and funds of over £3000 to pay for SALT and Physiotherapy services from 1 June 2023 for 12 months. It enabled Mr X to be responsible for Y’s SALT and physiotherapy provision. The Council will review the personal budget each year to ensure Mr X is managing the support and meeting agreed outcomes.
37. The Council received the SALT and Physiotherapy assessment reports in July 2023. The Council issued a second proposed EHC Plan to Mr X which included the SALT and physiotherapy provision. Mr X responded in July 2023 and confirmed his agreement with the proposed EHC Plan. The Council issued the final amended EHC Plan on 31 July 2023.

My assessment

Delays in issuing an amended ECH Plan after the May 2022 Annual Review

38. The Council accepts it delayed issuing an updated EHC Plan after the May 2022 annual review due to administrative issues and changes of key personnel. It recognises there were issues with the EHC Plan review process which led to delays in this case. It is continuing to make service improvements through its Accelerated Progress Plan approved by the Department for Education. This sets out actions taken to address matters of timeliness for EHC needs assessments and annual reviews. The Council also has a transformation programme which includes reviewing all work processes and redesigning its SEN assessment service. The service will be restructured from September 2023 to include an annual review team. The team will ensure the Council knows when annual reviews are due and to be proactive in carrying them out.
39. The Council offered Mr X a £200 payment for his time and trouble and delays in responding to his complaints. And a further £200 payment in recognition of the delays in finalising the EHC plan.
40. The Council’s failure to meet the timescales set out in Government guidance to issue the updated EHC Plan is fault. It will have caused an injustice to Mr X and Y though uncertainty about the provision to be made for her. Mr X has also been put to time and trouble in pursuing his concerns about the delays. The Council has now issued an update EHC Plan which is an outcome Mr X was seeking.
41. We would normally make service improvement recommendations to the Council about its EHC Plan process. However, the Council has already taken such action and following plans drawn up to ensure it improves its service in this area. This is appropriate action for it to take. It has apologised to Mr X and offered a payment of £400 to recognise his time and trouble, delay in responding to his complaint and the delay in finalising the EHC Plan. This is an appropriate payment to Mr X and is in line with our Guidance on Remedies. I do not consider I can achieve anything further for Mr X on the issuing of the EHC Plan.

Missed SALT and physiotherapy provision

42. The Council accepts it has a duty to deliver the provision set out in the EHC Plan. It means schools use their best endeavours to ensure provision is delivered and the Council has responsibility for ensuring it is delivered. When it is informed that provision is not being made the Council accepts it should take action immediately to resolve the situation. It expects that any issues with provision would be raised by the school or parent at the time or for it to be identified at annual review.
43. The Council allocated Y a place at the school because it could provide her SALT and physiotherapy needs. The Council confirmed the physiotherapy report from May 2022 did not raise any issues. The physiotherapist letter in October 2022 referred to communication in November and December 2021. The Council says neither it nor the school received this correspondence. It is unaware of what significant changes happened between May and October 2022 to make the physiotherapist discharge Y especially when it was clear the support was still needed. The Council accepts that it should have followed the matter up with the physiotherapist and the school in October 2022 to establish the situation and make any necessary appropriate arrangements.
44. The Council says the SALT report dated June 2022 for the annual review noted some missed sessions. The report noted there would be a discussion with Y’s family to offer a short block of weekly sessions to make up for those missed. The Council says this indicated the provision was being provided.
45. The January 2023 annual review noted Y was to be assessed by an independent SALT through the school. But the Council had no indication the provision was not being made until Mr X reported it in January 2023. As part of the review of the case, the Council has now received a discharge letter from a SALT therapy service sent to the school in June 2022. This found that Y would continue to benefit from the natural support being provided to her at the school.
46. The Council says Mr X claims Y has received no SALT provision since October 2021, but it paid the SALT service for provision made during the Spring term of 2022. The Council says it was not told until January 2023 the SALT provision was not in place and the school then ensured it was being made.
47. Between the start of the summer term 2022 and 1 June 2023 the Council says there should have been 14 sessions of SALT provision at 1.5 hours per session making 21 hours of provision. The school arranged for their independent SALT service to support Y after the January 2023 annual review. This included observations and 1:1 sessions on a weekly basis until the end of the academic year 2022/23 and support for Y’s class teacher. The sessions were 30 minutes long and started on 24 January 2023. The Council says the school has provided 8.5 hours of support until the DP started in June 2023 leaving Y’s provision 12.5 hours short.
48. The Council confirms the school continued to support Y with the physiotherapy exercise programme drawn up by the previous physiotherapist for three to five times a week for 15 minutes each session. The Council accepts the two hours each term for the physiotherapy programme to be updated and to assess progress was not provided between 17 October 2022 and 26 May 2023 when it completed a new assessment. This makes four hours of missed provision. The Council will make a remedy payment of £1,195 to Y’s DP card to allow Mr X to arrange with his chosen provider to make up for the missed sessions. The Council based the amount on the hourly rates being paid to the current provider for SALT and physiotherapy support.
49. I consider it was fault by the Council not to have followed up the physiotherapist’s contact in October 2022 as it brought the Council’s attention to the fact that there was an issue with the provision. This caused an injustice to Mr X and Y as she was not receiving the agreed provision. To resolve the matter the Council agreed to allow Mr X to source the SALT and physiotherapy provision through a DP. It will make a remedy payment to Y’s DP account to enable Mr X to arrange with his providers to make up for the missed sessions. This is another outcome Mr X was seeking so I do not consider further investigation will lead to a different outcome for Mr X and Y. Or that I can achieve anything more for Mr X and Y as the Council has provided the outcomes they were seeking.

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Final decision

50. I have completed my investigation. There was fault by the Council as it delayed in issuing an updated EHC Plan following an annual review in May 2022. The Council has apologised, taken action and proposed a financial payment to Mr X which is suitable to remedy the injustice caused to Mr X and Y.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman