The Ombudsman's final decision
Summary: Ms X complained the Council has failed to provide the therapies specified in her daughter’s EHC Plan since September 2022. She says this has left her daughter unsupported and jeopardised her placement. Ms X also complains the Council has delayed in carrying out an annual review of her daughter’s EHC Plan. The Council’s failure to ensure Miss Y received the therapies specified in her EHC Plan since September 2022 is fault. As is the failure to hold an annual review of Miss Y’s EHC Plan in 2023. These faults have caused Ms X and Miss Y an injustice.
The complaint
The Complainant, whom I shall refer to as Ms X complained the Council has failed to provide the therapies specified in her daughter’s EHC Plan since September 2022. She says this has left her daughter unsupported and jeopardised her placement. It has also caused distress and anxiety for her daughter and the family.
Ms X also complains the Council has delayed in carrying out an annual review of her daughter’s EHC Plan.
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 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) 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 our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
How I considered this complaint
As part of the investigation, I have: considered the complaint and the documents provided by Ms X; made enquiries of the Council and considered the comments and documents the Council provided; discussed the issues with Ms X Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Education, Health and Care Plans 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. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or council can do this.
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 (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) Reviewing EHC Plans 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 take place. The process is only complete when the council issues a decision about the review.
Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
Where the 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. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.
What happened here Miss Y has complex medical needs. She has had an EHC Plan for many years. The most recent Plan was issued in September 2022 and includes provision for Speech and Language therapy (SALT), Physical and Sensory support, Occupational therapy (OT) and input from an Advisory Teacher for Hearing impairment.
In September 2022 Miss Y moved to a new education setting. Although her previous college provided Miss Y’s therapies, her new setting does not deliver therapies.
In May 2023 Ms X made a formal complaint that Y had not received any of the therapies set out in her EHC Plan. She complained the Council had not informed her when the new setting was named in Miss Y’s Plan that it did not deliver therapies. In addition, Ms X complained an annual review of Miss Y’s Plan was overdue. She said the Council’s failure to meet its statutory obligations had had a detrimental impact on Miss Y’s ongoing need for support around her ability to communicate, her emotional wellbeing and her physical health. Ms X also complained about poor communication from the Council and said Miss Y’s case officer had not responded to any attempts to contact them.
In its response the Council acknowledged it was not always able to respond to communication in line with its service expectations due to the high volume and competing demands on staff. It apologised for this. The Council was unable to comment on the lack of contact from the case officer as they and their manager were off work. It would however be brought to the senior case manager’s attention.
The Council upheld Ms X’s complaint that Miss Y had not received the therapies in her EHC Plan since September 2022. But as the case officer and their manager were off work, the Council had been unable to gain their perspective on this. It noted another officer had now instructed the SALT team to carry out an assessment and had contacted three OT providers and was awaiting a response.
The Council also upheld Ms X’s complaint about the delay in holding an annual review. It noted the last review was in December 2021 and said a review would be arranged in the summer term of 2023 once the Council had more information regarding SALT and OT involvement.
Ms X was not satisfied with the Council’s response and asked for her complaint to be considered further. She was disappointed the Council had upheld her complaints but not offered any form of redress. Ms X was also unhappy her complaints had not been fully investigated due to staff absences.
The Council acknowledged Ms X’s request and explained it had been difficult to obtain the information necessary within its complaint response deadline. It confirmed it had asked another officer to make enquiries to ascertain what provision Miss Y had received since September 2022. It would share this information and the responses from SALT and OT with Ms X. The Council acknowledged its stage 1 complaint response was not as robust as it would have liked, and said it was trying to find a resolution.
Ms X asked for a further issue to be added to her complaint. She said Miss Y’s EHC Plan also sets out the input / support she should receive from Physical and Sensory Support Service. This support was vital but had not been provided for the last 10 months. Ms X asked whether this issue could be included in her complaint.
At the end of June 2023 the Council apologised for the delay in confirming whether it would consider Ms X’s complaint at stage 2 of its process. It said this was due to a high workload within the service. The Council then confirmed on 2 July 2023 it would review Ms X’s complaint and an officer arranged to speak with Ms X to discuss her concerns.
The Council wrote to Ms X at the end of August 2023 setting out its findings. It agreed there was fault on the part of the Council in the following respects: The standard of communication was poor. There was a lack of consistency from services in relation to Miss Y’s capacity to understand the implications of information shared with her and in the records showing Ms X was Miss Y’s appointee, and that Miss Y had an advocate. There was also evidence of a delay in updating Ms X and in responding to her contact.
Miss Y’s annual review was significantly over due; and There was no evidence to show the therapies set out in Miss Y’s current EHC Plan had been appropriately delivered.
The Council asked for Ms X’s comments before issuing a final decision. The Council then upheld its decision and recommended the service apologise to Ms X and Miss Y for the missed therapy provision, explain the action it was taking to ensure the therapies were in place and consider a symbolic financial payment.
Ms X chased the Council regarding these recommendations in October 2023. On 25 October 2023 the Council wrote to Ms X apologising for the missed therapies and setting out the action it had taken in relation to the SALT assessment and OT provision. It also offered to pay £400 as a symbolic remedy for the distress caused to Ms X and Miss Y.
As Ms X does not consider the Council has adequately addressed her concerns she has asked the Ombudsman to investigate her complaint. Ms X says the failure to provide therapies has had a detrimental impact on Miss Y. She says it has also jeopardised her educational placement. Without support and interventions from SALT and the Physical and Sensory Service and input from an Advisory Teacher for Hearing impairment, Miss Y’s struggle to communicate has worsened. Ms X says the lack of OT support has also meant that Miss Y has missed days as she struggled to physically access the placement.
Ms X says the Council’s failings have caused stress, upset, anxiety and distress to both Miss Y and her.
In response to my enquiries the Council apologised that the OT provision in Miss Y’s EHC Plan was not provided from September 2022. It says it attempted to secure this provision but it was not successful. The Council recognises this should have been followed up in a timely manner and apologised for the delay. It says OT Provision was arranged by 9 August 2023.
In a further response the Council confirmed that although funding was agreed on 9 August 2023, Miss Y did not receive OT provision between August 2023 and January 2024. It says it is difficult to explain this delay due to staff changes. The Council notes it was difficult to source OT provision for a young person of Miss Y’s age and suggests a lack of therapists could be part of the reason for the delay.
The Council also acknowledged it should have adhered to the statutory timeframes and apologised that amendments to Miss Y’s EHC Plan were not considered through the annual review process.
It says that due to staff changes it is unable to explain why an annual review was not held in 2023. The Council says an annual review meeting was held in 2024 and it shared a draft amended EHC Plan with Ms X on 2 May 2024.
Analysis The Council has a legal duty to make sure all of the special educational provision specified in Section F of Miss Y’s EHC Plan is delivered. This includes the SALT, OT, Physical and Sensory Support and input from an Advisory Teacher for Deaf Students. The Council’s failure to ensure Miss Y received these therapies since September 2022 is fault.
Although the Council says it attempted to source OT provision, I have not received evidence of any attempts prior to Ms X’s complaint in May 2023. The Council’s records show that in June 2023 the Council identified a private OT company to work with Miss Y from September 2023. Funding for provision was agreed on 9 August 2023, but the provision was not put in place.
The Council says it is difficult to explain this delay in providing this provision. However, correspondence between Ms X, the OT company and the Council in December 2023 and January 2024 shows the delay was because the Council had not processed the funding. It is unclear when, or whether this was resolved. Ms X says the provision was still not in place in March 2023.
Correspondence from the Advisory Teacher for Deaf Students confirms they were not aware of Miss Y’s move to the new setting in September 2022. As a result they did not meet with Miss Y until October 2023. The Advisory Teacher for Deaf Students identified support and training to assist Miss Y.
The Council’s failure to complete an EHC Plan annual review in accordance with the statutory timeframes is also fault. The Council must review Miss Y’s EHC Plan at least every 12 months. The Council carried out an annual review in December 2021, so should have reviewed Miss Y’s EHC Plan by early 2023. The Council did not review Miss Y’s Plan at all in 2023. It did not hold a review meeting until the end of March 2024 and then issued a draft amended Plan in early May 2024. Delays of this nature in reviewing Miss Y’s EHC Plan are both concerning and clearly unacceptable.
The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to review Miss Y’s EHC Plan and meet the required timeframes here amounts to fault.
The Council’s delays in considering Ms X’s complaints and the failure to meet its own timeframes for responses is also fault. The Council’s complaints procedure says it aims to respond to complaints at stage 1 within 10 working days and at stage 2, within 20 working days. The Council did not meet these timeframes in this instance.
The Council’s failings have caused Miss Y an injustice. She has not received the therapies specified in her EHC Plan for at least five terms. This has had a detrimental impact on her wellbeing and her ability to access the educational placement.
The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
When a young person has missed education or therapy provision as a result of fault by the Council, we may recommend the Council makes a symbolic payment to acknowledge the provision they have missed and help them to catch up. In determining an appropriate remedy, we will take account of the level of provision missed and the impact of this on the child or young person.
In this instance I consider a payment of £500 per term of missed provision would be appropriate.
The delay in holding an annual review caused Ms X and Miss Y frustration and uncertainty. Ms X also experienced frustration and distress and has been put to unnecessary time and trouble as a result of the Council’s poor communication and failure to respond to her correspondence or keep her updated.
Agreed action
The Council has agreed to: apologise to Ms X and Y for the failure to provide the therapies specified in Miss Y’s EHC Plan since September 2022. And for the delays in the EHC plan review process. 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.
make a payment of £2,500 to Miss Y to acknowledge the impact of the missed therapies she should have received between September 2022 and March 2024.
make a payment to Miss Y of £500 per term from April 2024 until the therapies specified in her EHC Plan are in place or a final EHC Plan, giving rise to a right of appeal to the SEND Tribunal, is issued.
make a symbolic payment of £400 to Ms X to acknowledge the distress, frustration, and uncertainty she experienced as a result of the Council’s failings.
The Council should take this action within one month of the final decision on this complaint and provide us with evidence it has complied with the above actions.
Final decision
The Council’s failure to ensure Miss Y received the therapies specified in her EHC Plan since September 2022 is fault. As is the failure to hold an annual review of Miss Y’s EHC Plan in 2023. These faults have caused Ms X and Miss Y an injustice.
Investigator’s final decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman