Summary: Miss B complains the Council has not properly provided education for her son, A and has failed to ensure his Special Education Needs (SEN) were met. The Council was at fault because it did not make provision for A before he attended school X, did not provide a professional report, did not provide all support in A’s EHCP, took too long to review A’s EHCP and took too long to respond to Miss B’s complaint. A’s attendance at school X and also his appeal to a tribunal about his EHCP was delayed. The Council has agreed to apologise to Miss B, make arrangements to provide agreed 1:1 tuition, appoint an independent person with a budget of £650 for the support A lost and pay Miss B £150 for the time and trouble in making her complaint.

The complaint

1. Miss B complains that the Council has not properly provided education for her son, A and failed to ensure his Special Education Needs (SEN) were met, because:

• it did not make any alternative education provision for A while he was not attending school in 2017.
• the Council did not assess A to update his EHCP in the timeframe it said it would when it admitted him to school X.
• the Council did not tell her that support arrangements for A meant he would follow a restricted curriculum when it admitted him to school X.
• it failed to ensure that support listed in A’s EHCP was provided whilst he attended school X.
• it did not follow the correct process for updating A’s EHCP in 2018.
• it has handled her complaint poorly because it did not deal with it in the correct timescales, did not deal with the issues she complained about and she had to repeatedly contact the Council over several months to chase her complaint.

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What I have investigated

2. I have investigated that part of Miss B’s complaint about how the Council provided education for her son and met his SEN after he was admitted to school X. The final section of this statement contains my reasons for not investigating the rest of the complaint.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
6. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
7. If we are satisfied with a council’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)

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How I considered this complaint

8. I have spoken to Miss B about her complaint and considered the information she has provided to the Ombudsman. I have also considered the Council’s response to her complaint and its response to my enquiries.
9. I have written to Miss B and the Council with my draft decision and considered their comments.

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What I found

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 tribunal can do this.
11. 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.
12. Where a local authority maintains an EHCP for a child or young person it must secure the specified special educational provision for the child or young person. (Section 42 (1 & 2) of the Children and Families Act 2014)
13. A council must review an EHCP within 12 months of the plan being made. A council may reassess a child’s needs at any time if it thinks it is necessary. (Children and Families Act 2014 s44)
14. Where an EHCP is reviewed, the local authority and school must cooperate to ensure a review meeting takes place. A child’s parents must be invited to attend and given two weeks notice of the meeting. All advice and information should be sent to attendees at least two weeks before the meeting. Within four weeks of a review meeting, the Council must decide what action it is going to take and inform those involved. If the EHCP needs to be amended the Council should start the amendment process without delay. (SEND Code of Guidance)

What happened

15. Miss B’s son, A, is 14 years old. He attended a local mainstream secondary school from September 2016. A was diagnosed with autism which means he has problems with communication, cognition as well as social, emotional and mental health issues.
16. A attended school Y until May 2017. Miss B says A was bullied at school Y and was unable to continue there. Miss B wanted A to attend school X instead of school Y.
17. Miss B appealed the named school in A’s EHCP. The Council agreed to name her preferred school X in A’s EHCP and Miss A withdrew her appeal. The Council provided funding for A as a Resource Provision pupil. A transitioned to school X which involved a graduated start and short time in complex needs.
18. A’s EHCP was reviewed in July 2018. Miss B disagreed with the content of A’s EHCP. The Council negotiated with Miss B about the content of A’s revised EHCP. The Council did not agree to all the changes requested by Miss B and issued a final revised EHCP in November 2018. Miss B appealed to SEND about the content of the revised November 2018 EHCP.
19. Miss B complained to the Council in September 2018 about missed provision in A’s EHCP and about the process of A’s annual EHCP review in 2018.
20. The Council responded at stage one of its corporate complaints process. The stage one response did not deal with Miss B’s substantive complaints and invited her to attend a meeting with the Council about them, “to find a way forward in working together for best outcomes for her son.”
21. Miss B attended a meeting with the Council. She remained unhappy and asked to escalate her complaint to stage two.
22. The Council responded to Miss B’s stage two complaint by arranging a telephone call with a senior officer and another meeting to discuss Miss B’s complaint.
23. Miss B attended a second meeting with the Council. The Council then responded to Miss B at stage two of its corporate complaints process and partly upheld her complaint.

Analysis

Alternative educational provision

24. A was not in school in 2017 between June and mid-November.
25. Miss B withdrew A from school Y. Miss B says she provided doctor’s certificates to the Council which covered A’s absence between June to mid-November and a mental health services referral stated A was affected by bullying which had resulted in him being unable to attend school. The Council did not accept that A could not attend school Y or that the school was not appropriate for him. Miss B appealed to SEND to change the school named in A’s EHCP.
26. The Council agreed to name school X in A’s EHCP in September 2017 and agreed to provide educational psychologist (EP) support for A’s transition to school X.
27. Two transition planning meetings were held with Miss B. The second was at her request because she did not feel the first meeting had been documented well enough and the EP support the Council had agreed to had not been provided.
28. The second transition meeting took place in early November 2017 and minutes show that there was a comprehensive discussion about all aspects of A’s transition into school X. A started attending school X in mid-November.
29. A received support for his transition into school X through October as specified in his EHCP. Miss B’s decision to delay A starting at school X was because the Council did not provide EP support it had said it would.
30. It is not possible to determine whether the school or the Council believed A could have started attending school X earlier because the first transition meeting was not minuted. I note that there is no evidence that the Council or the school disputed Miss B’s reasons for wanting a second meeting. On the balance of probabilities, I am content that the first meeting was not minuted and that the EP support agreed by the Council had not been provided. This was fault by the Council. A’s attendance at school X was delayed.
31. The Speech and Language Therapy (SaLT) observation report in February 2018 which was commissioned by the Council as a result of Miss B’s complaint indicates that A has made good progress and the support in mainstream lessons and the Resource Provision is meeting his needs. Miss B says that there have been problems with SaLT support after February 2018 and that A is now receiving a much more detailed programme of support. A’s current support needs are unlikely to have been caused by the delay in attending school X in 2017. On the balance of probabilities, A did not suffer any significant injustice as a result of the short delay in attending school X.

Updated EHCP assessment

32. The Council agree that Occupational Therapist (OT) advice was not provided, after it had been agreed with Miss B. This updated advice has now been commissioned. This was fault by the Council. A lost the opportunity for his EHCP to be updated to reflect any revised advice.

Support arrangements and curriculum

33. A was funded as a Resource Provision pupil by the Council at school X. School X agreed to place A in the Complex Needs provision for a short initial period at Miss B’s request.
34. Resource Provision pupils require additional support. Complex Needs provision involves more intensive support than Resource Provision.
35. The work that A would be expected to complete in the complex needs provision was discussed in the transition meeting held with Miss B in early November. The minutes do not record any discussion concerning whether or not the complex needs provision followed the GCSE curriculum. The Council say, “Both specialist provisions at the school offer a highly differentiated curriculum and this can and will include GCSE curriculum access for individual learners as identified as appropriate.”
36. The transition meeting minutes show the school wanted to involve A in mainstream lessons as quickly as possible. The 2018 annual review shows:
• A had begun to attend mainstream lessons in two subjects at the time of the EHCP annual review in 2018.
• National curriculum subjects were taught by a SEN teacher in the complex needs provision.
• A should attend more mainstream classes.
37. Miss B says the Council did not make clear there were two types of provision and the offer letter only specified resource provision. Miss B says she discovered by chance at a parent evening that A would not be provided with GCSE curriculum if he remained in complex needs provision.
38. A received the correct support from the Council. The school allowed A to attend the complex needs provision even though he was funded by the Council as a Resource Provision student. The precise nature of the provision made for A was a matter for the school and Miss B to determine. Details of the educational provision for A were discussed prior to him starting to attend school X and were re-iterated in A’s 2018 annual review. The Council was not at fault.

Provision of support in 2017 EHCP

39. Miss B is concerned that provision in A’s 2017 EHCP has not been delivered properly, including:
• Sensory circuits
• Visual aids
• Social interaction skills
• Support and provision during unstructured times of the school day
40. The September 2017 EHCP did not include details of specific provision that should be made for A or details of who would be responsible for delivering them or how the provision would be delivered.
• “A should have access to regular movement breaks in order to remain in a calm-alert state.”
• “A needs visual timetables and cues in school and is reported to respond well to rules and routines.”
• “A would benefit from continued access to a social skills programme for example, to help him to develop friendships and to enable discussion of real world life skills which he may find difficult to understand.”
• “there should be access to support and encouragement to attend extra-curricular activities in lunchtime to support his social integration. He may also benefit from access to a quiet space if he finds the less structured parts of the day overwhelming.”
41. Sensory circuits were included in A’s SEN provision in his 2016 EHCP. SEN provision in his September 2017 EHCP stated he required regular movement breaks but did not specifically refer to sensory circuits.
42. The transition meeting in early November 2017 discussed sensory circuits and how they could be provided. Email evidence from January 2018 shows sensory circuits were being provided at that time. The Council say that A later did not want to leave lessons and the school provided movement breaks between lessons. Miss B says this is not correct and the school carry out this provision to suit staff availability. She says the school has not provided sensory circuits during curriculum time since September.
43. The Council says it sees visual aids in use in school and quality assures the provision. It provided evidence of A’s visual timetable. No other evidence of visual aids was provided by the Council.
44. A Speech and Language Therapy (SaLT) report shows that visual resources were provided to the school in May 2018. The 2018 annual review states that visuals are in use in mainstream classes. Email evidence shows the visual timetable was only produced after July 2018 and Miss B continued to offer the visuals used with A at home during September 2018.
45. Social skills provision was discussed with Miss B at the transition meeting held in early November. Minutes record weekly social skills provision was discussed. Email evidence from September 2018 shows social skill support was provided for A as part of both his year group and as part of a ‘mentor group’. Miss B says the social skills provision was only short blocks and not as detailed in the EHCP. The EHCP provision in section F does not specify how frequently the provision must be delivered.
46. A SaLT observation report in February 2019 says A has made great progress and does not now need an explicit social skills intervention programme.
47. The educational psychologist report in May 2018 recorded that A spent time with his friends at break but also liked to return to the complex needs provision. It is clear that A retained access to support within the complex needs provision at both structured and unstructured times of the day.
48. The Council agreed to monitor A during unstructured parts of the day to inform the SaLT observation report in February 2019.
49. Miss B says a new assessment has determined that that A had missed interventions historically. A is now receiving a detailed programme of support for 1:1 direct SaLT for 45 mins fortnightly and a weekly social skills programme of 30 minutes each session with peers is commencing from today.
50. The SEN provision required to be provided for A specified in the September 2017 EHCP lacked specificity. Some degree of provision was made for A in all the areas Miss B is concerned about. The only specific provision which was not provided to A is in relation to visual aids. On the balance of probabilities, A did not receive a full range of visual aids until May 2018 and did not receive the visual timetable as supplied by the Council until after July 2018. This was fault by the Council. A missed SEN provision that he should have received.
51. I note the updated EHCP dated November 2018 is much more specific in terms of the SEN provision required for A. This EHCP is subject to a tribunal appeal and therefore out of jurisdiction for the Ombudsman.

2018 EHCP review process

52. A’s EHCP review took place in early July. Miss B did not receive all relevant documents two weeks before the review meeting. The Council made a decision and issued a final EHCP for A at the end of November.
53. The Council accept that it did not follow the statutory process for reviewing A’s EHCP in 2018.
54. The guidance is clear that the Council should make a decision about what action it will take within four weeks of a review. This was fault by the Council. Miss B did not receive all the information to allow her to take part in the review in July and the Council’s actions meant Miss B was delayed from appealing to SEND about the content of A’s EHCP for between two to four months.
55. The outcome of the SEND tribunal is not known. It is not therefore possible to identify any injustice that may have been caused. Miss B may come back to the Ombudsman about this when the tribunal outcome is known.

Miss B’s complaint

56. The Council’s stage one response was sent in the required timescales. It did not address Miss B’s substantive complaint and offered a meeting to discuss it.
57. Miss B’s made her stage two complaint outside the required timescales and four weeks after the first meeting with the Council.
58. The Council’s stage two response was provided to Miss B over two months after it should have been and after Miss B had complained to the Ombudsman.
59. The Council responded to Miss B’s complaint by arranging a telephone call and a meeting to discuss the complaint issues with Miss B. The Council partially upheld Miss B’s complaints after meeting with her.
60. The Council acknowledged Miss B’s stage two complaint and engaged with Miss B to try to resolve her complaint. The meeting took place after the stage two response deadline had passed. The council’s substantive stage two response was provided over two months after the timescales outlined in its complaints procedure. Miss B chased the Council and complained to the Ombudsman before the Council met with her or provided the stage two response. This was fault by the Council, because it did not follow its complaints procedure timescales. Miss B received a late stage two response.

Agreed action

61. The Council has already apologised to Miss B for the delays to the OT referral and assessment for A and has agreed to provide additional 1:1 tuition sessions for A. This tuition has not yet been provided. The Council has ensured referral pathways are clear so the problem does not happen again. The Council should arrange for the delivery of the agreed 1:1 tuition sessions for A within 4 weeks of this decision.
62. The Council has agreed to remind schools of legal compliance around EHCP annual reviews and ensuring families have all required documentation and evidence available two weeks before the annual review meeting.
63. The Council has agreed to apologise to Miss B for the delays to the 2018 review process.
64. To remedy the additional injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this decision:
• Apologise to Miss B and A for the missed provision in his EHCP.
• Appoint an independent person, with a budget of £650, to decide in consultation with A and his family, how A’s needs can now best be met in respect of his lost SEN provision. This is based on a total delay of 8 months, accounting for school holidays. Given A’s difficulties, I consider £100 per month of delay for the period before May 2018 and £50 per month of delay for the period after May 2018, to be an appropriate remedy. This sum can be used for A’s educational benefit to ensure he catches up, as far as possible, on SEN provision he missed out on. If the Council wishes to, it may offer options for A, his family and the independent person to consider when making their decision.
• Pay £150 to Miss B for the time and trouble in making her complaint.

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Final decision

65. I have found there was fault by the Council in how it provided education for Miss B’s son, A, and provided for his Special Education Needs, as well as how it dealt with her complaint. A missed some SEN provision he was entitled to and the appeal process for his EHCP in 2018 was delayed.
66. The outcome of the SEND tribunal is not known. It is not therefore possible to identify any injustice that may have been caused. Miss B may come back to the Ombudsman about this when the tribunal outcome is known.
67. I have now completed my investigation.

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Parts of the complaint that I did not investigate

68. I have not investigated the part of the complaint before A attended school X because it was over 12 months ago. This is a late complaint and I have seen no good reason to accept it for investigation now. I have also not investigated any matters that are the responsibility of school X or any period of time where A’s EHCP was subject to tribunal proceedings because this is outside the Ombudsman’s jurisdiction.

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Investigator's decision on behalf of the Ombudsman