s X complained the Council did not ensure her child, Y, received the provision set out in their Education, Health and Care Plan. She also complained it delayed in completing Y’s annual review s . The Council is at fault. It did not ensure Y received the provision in their Education, Health and Care Plan and delayed in completing annual review s .
T he Council has agreed to apologise, make a financial payment to be used for Y’s educational benefit and for the distress the matter caused Mrs X.
The Council has also agreed to make service improvements.
The complaint
Mrs X complains that following an annual review of her son’s Education, Health and Care (EHC) Plan in March 2020 the Council failed to: follow the statutory timescales in finalising his Plan; secure and provide the Special Educational Needs (SEN) provision set out in section F of his Plan; and finalise his Plan after the latest review in 2021.
Mrs X says that these failures caused her distress and unnecessary time and trouble in having to chase the Council for updates and the necessary provision.
Mrs X also says that because of the Council’s actions her son missed out on education and on the SEN provision he needs and is entitled to.
The Ombudsman’s role and powers
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) If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs.
We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended) 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) 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.
How I considered this complaint
I considered Mrs X’s complaint and the information she provided. I made enquiries of the Council and considered its response.
Mrs X and the Council had the opportunity to comment on my draft decision. I considered all comments before reaching a final decision.
What I found
Education and Health Care Plans 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 tribunal can do this.
After an EHC Plan is finalised, councils have a duty to ensure the special educational provision set out in the Plan is delivered. This duty is set out in the Children and Families Act 2014 and is non-delegable.
Annual Reviews Councils should ensure an annual review of the child’s EHC Plan is carried out within 12 months of the issue of the original plan or the completion of the last annual review. The purpose of the annual review is to consider whether the special educational support and educational placement is still appropriate.
Councils usually use the annual review process to satisfy themselves that school-based provision listed in the Plan is being delivered and the child is achieving or making progress towards their identified outcomes. If in between annual reviews, a council becomes aware of concerns a school is not delivering provision, we would expect it to act to address this.
The annual review is not complete until the council has decided to either maintain, amend or cease to maintain the EHC Plan.
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. (s20 (10) Special Educational Needs and Disability Regulations 2014) 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. (s22 (1) & (2) Special Educational Needs and Disability Regulations 2014) The council must give the parent or young person at least 15 calendar days to comment on the proposed changes. (s22 (2) (c) SEND Regulations 2014) 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 within 8 weeks of the date it sent the EHC Plan and proposed amendments to the parents. (s22 (3) & (4) SEND Regulations 2014) Councils are not obliged to provide exactly what each parent requests, but they should be able to explain clearly why they consider a suggested provision meets the assessed needs of any individual child.
Where a parent or young person disagrees with the contents of the EHC Plan there is a right of appeal to the Special Educational Needs and Disability (SEND) Tribunal.
Parents do not have a right of appeal until a final EHC Plan (or decision not to issue a Plan) is made and a decision letter is issued by the council.
SEN and Disability Regulations 2014 (Regulation 6(1)(h) state that when writing the EHC Plan the Council must obtain information and advice from such persons as the parents or any person the Council considers appropriate.
What happened
Background
This statement includes key events in this case and does not cover everything that happened. I am investigating this complaint from March 2020 to May 2022.
Mrs X’s son, Y, has Special Educational Needs (SEN). In May 2018 the Council issued a final statement of SEN which set out specialist provisions to meet his needs. This included Speech and Language Therapy (SALT), Occupational Therapy (OT) and support with Y’s diet.
The EHC Plan stated that a SALT assessment from a specialist Speech and Language Therapist should be completed. The Plan also stated: Y should be given additional time to process verbal information; verbal information should be supported; give whole class instructions to Y; enable Y to get verbal ideas in written form; tasks should have dates and targets; ensure staff are aware of the key factors of Y’s medical conditions; and key vocabulary identified by teachers to enable Y to access the curriculum.
In June 2018 the SALT service completed an assessment and reported its findings in July. It concluded that Y presented with age appropriate receptive and expressive language skills, and he did not require further input from the service. This did not happen, and the provision was not removed from subsequent draft EHC Plans.
The EHC Plan stated that Y required an OT program to meet his needs including: a number of OT sessions with feedback to teachers and parents with termly assessments to develop a programme of intervention to be carried out outside of school timetable; targeted SMART OT goals to be set; sensory toolbox to be created with OT input and available and utilised for Y; Y may use of a fiddle toy or sensory object during the school day; and staff will be aware of the effects of Y’s medical conditions on his ability to learn especially the ability to access his learning area due to hypermobility and poor co-ordination and fatigue related to Neurofibromatosis and Hypermobility.
The EHC Plan stated that Y is to be encouraged to eat more and a wider variety of foods and this should be carefully managed by dieticians. The Plan also stated that: Y requires supervision at mealtimes because he is easily distracted from food; and Y should be allowed to eat his meal in a quiet area while being supervised by an adult.
Annual reviews The Council carried out an annual review of Y’s EHC Plan in March 2020. The Council has accepted it was at fault for the delay in issuing the final Plan following the review. Because the Council has accepted fault it is not necessary for me to investigate this aspect of the complaint further. However, I must consider whether the apology offered by the Council was sufficient to remedy any injustice caused by the delay.
The purpose of conducting annual reviews is to consider whether the special educational support and educational placement is still appropriate. The evidence shows Y was left without an up-to-date EHC Plan after the 2020 review meeting until April 2021.
The Council held annual review meeting in March 2021 but to date a final Plan has not been issued.
Analysis The purpose of conducting annual reviews is to consider whether the special educational support and educational placement is still appropriate. The evidence shows Y was left without an up-to-date EHC Plan for 13 months after the 2020 review. The Council’s faults have caused Mrs X and her family significant distress, uncertainty, frustration and avoidable time and trouble chasing the Council. Mrs X was left without any appeal rights for a year.
The Council held a further review meeting in March 2021 but to date a final Plan has not been issued. This is not in line with statutory guidance. I find had the Council issued the final Plan in line with the SEN code, Mrs X would have had the opportunity to exercise her appeal rights. It would have been open to Mrs X to appeal the fact that SALT provision was not included in Y’s EHC Plan. The delay and failure to issue a final Plan has added to Mrs X’s distress. I have recommended a suitable remedy below.
Speech and Language Therapy As part of the annual review in 2020, Mrs X requested a speech and language therapy program to be developed by SALT and delivered outside of school or during lunch times. This provision was set out by the Council in an amended draft Plan issued in September 2020 and final Plan issued in April 2021.
In response to the Ombudsman’s enquiries the Council said the inclusion of the provision upon request by Mrs X was made in error since no additional assessment was undertaken following the assessment report in July 2018 and there was therefore no evidence that Y required speech and language therapy interventions to be delivered by a speech and language therapist.
The Council accepts that it did not check whether Y was receiving the provision nor discussed amending the EHC Plan to reflect the changes in the expert advice. It says these issues were not addressed within a reasonable time and this special provision was not delivered.
Because the Council has accepted fault it is not necessary for me to investigate this aspect of the complaint further. However, I must consider whether the apology offered by the Council was sufficient to remedy any injustice caused.
An annual review of Y’s EHC Plan took place in March 2021. The Council issued a draft Plan in early September with no amendments to the SALT provision. Mrs X explained that Y had not received any SALT provision. Three weeks later the Council issued a further draft Plan with the provision removed.
In October 2021 Mrs X said in her stage two complaint that: The Council had failed to secure the assessments detailed in Y’s EHC Plan; Y’s parents have had to request the assessments themselves which has delayed the annual review process as they were waiting for finalised reports to be able to amend the Plan accordingly, had these assessments been carried out prior to annual review there would not have been such a significant delay; an amendment to the EHC Plan that removes significant provision should not be made without supporting evidence; and failure to secure appropriate assessments prior to annual review has had a substantial impact on Y’s education in particular his mental health needs, sensory and physical needs and communication and interaction.
The SALT assessment requested by Y’s parents was completed in October 2021. The Council received a copy of the assessment in January 2022. This assessment was discussed at annual review in February 2022 where it was agreed that the school were able to deliver on the provision identified as targeted support delivered through quality first teaching.
The Council amended the Plan and issued a further draft in May 2022 reflecting there would be no requirement for a SALT programme to be delivered by a speech and language therapist.
Analysis The Council has a legal duty to ensure provision in an EHC Plan is delivered.
An annual review of Y’s EHC Plan took place in March 2020. The Council issued a final Plan in April 2021 with no amendments to the provision.
The final EHC Plan issued in April 2021 included Mrs X’s request for a speech and language therapy program to be developed by SALT and delivered outside of school or during lunch times. I accept the Council’s comments this decision was made without an assessment or identified need that Y required specialist SALT. This was fault.
The SALT assessment completed in October 2021 identified a need for targeted support for Y delivered through quality first teaching in a school environment. The assessment did not identify a need for a specialist SALT provision. I consider that, if the assessment had been completed in March 2020, the outcome would have been the same or similar.
The injustice to Y is therefore limited however it is clear that Y has missed out on some provision since March 2020, although I cannot know how much. This will have affected Y’s communication skills and educational progress.
It would have been appropriate for the Council to have requested a SALT assessment prior to removing the provision from Y’s EHC Plan in September 2021. The Council relied on a SALT assessment from 2018 to support its decision. This was fault and meant that Y’s parents were put to the time and trouble of requesting assessments from the NHS. I have recommended a suitable remedy below.
Occupational Therapy An annual review of Y’s EHC Plan took place in March 2020. The Council issued a final Plan in April 2021 with no amendments to the provision.
An annual review of Y’s EHC Plan took place in March 2021 and the Council issued a draft Plan in early September with no amendments to the provision.
An OT assessment was requested by Y’s parents in October 2021. The Council received a copy of the assessment in January 2022. This assessment was discussed at the annual review in February 2022. The Council issued a draft Plan in May 2022 which included provision from March 2020 and new provision, because of the assessment requested by Mrs X.
In response to the Ombudsman’s enquiries the Council said no concerns had been raised about the provision not being made available by the school. Therefore, it assumed the provision was in place for Y. However, the Council accepts that because it did not ask whether Y was receiving this special provision the issue was not addressed within a reasonable.
Because the Council has accepted fault it is not necessary for me to investigate this aspect of the complaint further. However, I must consider whether the apology offered by the Council was sufficient to remedy any injustice caused.
Analysis The Council has recognised that it did not provide OT provision from March 2020 to May 2022 and apologised. While this is welcomed, I do not consider it has gone far enough to remedy the injustice caused or make up for all the OT sessions Y missed. I cannot say what the impact may have been if Y had received the full support, he was entitled to, but it is clear he has missed provision. This will have affected Y’s sensory and physical needs and his communication and interaction at school and at home. I have recommended a suitable remedy below.
Diet and eating support An annual review of Y’s EHC Plan took place in March 2020. The Council issued a final Plan in April 2021 which included provision from 2018 and new provision.
An annual review of Y’s EHC Plan took place in March 2021 and the Council issued a draft Plan in early September with no amendments to Y’s provision.
In response to the Ombudsman’s enquiries the Council said that there was no advice within the OT assessment completed in January 2022 that suggested Y required support with regards to diet and eating. I note the provision remains the same in the draft Plan issued in May 2022.
Analysis There is no evidence to show how staff monitored this provision between March 2020 and May 2022 or how it satisfied itself that the school was delivering the provision. This is fault. There is no evidence to suggest that Y has received this provision since March 2020. This lost provision caused Y an injustice and will have affected his dietary intake. I have recommended a suitable remedy below.
Failure to provide appropriate education between March 2020 and May 2022.
Mrs X says that Y has missed out on education during this period due to delays in finalising his EHC Plan and missed provision.
I have reviewed Y’s attendance records and there is no evidence to suggest that Y was not attending school and no concerns had been raised. I find no fault.
Agreed action
To remedy the injustice caused by the faults identified, the Council will complete the following within one month of the final decision: apologise in writing to Mrs X and Y; pay Mrs X £500 to recognise the significant distress, time and trouble and frustration caused by the delay in completing the 2020 annual review, non-completion of the 2021 annual review and time and trouble pursuing assessments with the NHS; pay Y £500 to remedy the injustice caused by the Council’s failure to ensure SALT provision in line with his EHC Plan. Mrs X should use this to provide additional provision or support for Y to make up for the missed provision; pay Y £5200 to remedy the injustice caused by the Council’s failure to ensure OT provision in line with his EHC Plan. This remedy covers the 26-month period (March 2020 to May 2022) at £200 per month. Mrs X should use this to provide additional provision or support for Y to make up for the missed provision; and pay Y £500 to remedy the injustice caused by the Council’s failure to ensure eating and drinking provision in line with his EHC Plan. Mrs X should use this for Y’s benefit as she sees fit.
These payments are in line with our guidance on remedies.
To improve its services, within two months of the final decision the Council will: review its processes to ensure annual review decisions and any draft EHC Plans following that decision are issued within the timescales set down by the Code of practice; review its processes to ensure it monitors how provision is being delivered in an educational setting; ensure it has a procedure in place to track the progress of EHC plans during the review process and flag cases subject to delay; ensure officers receive up to date professional advice/input when relying on previous advice about provision; and review and prioritise the completion of the 2021 annual review of Y’s EHC Plan.
Final decision
I have found fault by the Council causing an injustice to Y and Mrs X. I have completed my investigation on this basis.
Investigator's decision on behalf of the Ombudsman