Summary: There is fault in Kent County Council’s handling of Mr B’s son’s educational provision and meeting his special educational needs under an Education, Health and Care Plan. This fault has resulted in injustice. The Council will take the agreed action, which includes making an apology and a payment, to recognise and remedy this injustice and will also review its practice and procedures to improve future services

The complaint

1. The complainant, whom I shall refer to as Mr B, complains the Council has failed to properly meet his son’s special needs even though he has an Education, Health and Social Care (EHC) Plan. Specifically, he says it:
1. delayed putting in place one to one school support for his son, M, from September 2017 to February 2018 following agreement by the Council to do this (which resulted in the withdrawal of an appeal to the Special Educational Needs Tribunal) in Summer 2017;
2. failed to put alternative education/provision in place after M stopped attending the school named in his EHC Plan in July 2018 and failed to properly consider the Educational Psychologist’s suggestion as to alternative provision in Autumn 2018;
3. failed to ensure that provision detailed in the EHC Plan was provided after July 2018;
4. failed to amend the Plan after the school place was no longer available and following an emergency annual review meeting where it was agreed changes to the content of the Plan were needed in summer 2018; and
5. failed to respond to his complaint about these matters in a timely or thorough manner.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I discussed the complaint with Mr B and considered the written information he provided with his complaint. I made written enquiries of the Council and considered all the information before reaching a draft decision on the complaint.
5. 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) Part a) of Mr B’s complaint relates to matters that he was aware of for more than one year before he complained to this office. I decided to exercise my discretion to investigate this part of Mr B’s complaint as the significance of those earlier actions only became fully apparent until some time later. That is sufficient to persuade me that Mr B had good reasons not to pursue this issue with us earlier.
6. 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.
7. I gave the Council and Mr B the opportunity to comment on my draft decision and took account of these comments before reaching a final decision on the complaint.

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What I found

What should have happened

8. The Education Act 1996 (Section 19) states that education authorities must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special needs.
9. 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 Special Educational Needs Tribunal can do this. We can consider the other sections of an EHC plan.

10. 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.

11. Statutory guidance on Special Education Needs provision confirms that EHCPs must be reviewed at least once every 12 months. The guidance says that the Council’s decision following the review meeting must be notified to the child’s parent or the young person within four weeks of the review meeting.
12. The statutory guidance goes on to detail from paragraph 9.193 how amendments to an existing EHC plan should be carried following a review, or at any other time a local authority proposes to amend an EHC plan other than as part of a re-assessment.
13. Paragraph 9.194 says that where the council proposes to amend an EHC plan, 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. It says the child’s parent should be informed that they may request a meeting with the council to discuss the proposed changes.
14. Paragraph 9.195 confirms the parent must be given at least 15 calendar days to comment and make representations on the proposed changes, including requesting a particular school or other institution be named in the EHC plan.
15. Paragraph 9.196 says that after receiving any representations from the child’s parent, if the council decides to continue to make amendments, it must issue the amended EHC plan as quickly as possible and within 8 weeks of the original amendment notice.
16. There is a right of appeal to the SEN Tribunal where the Council issues or amends an EHC Plan but a parent disagrees with any or all of Section B (special educational needs), Section F (special educational provision) or Section I (placement) or if the Council decides not to amend an EHC Plan after an annual review.
17. The Council’s complaints’ procedure states that written complaints will be responded to within 20 working days of receipt and if this is not possible an interim reply will be sent at four weekly intervals until a full response can be provided.

What happened

Background

18. M is now 14 years old and currently in year 9 of his education. He is diagnosed with autism and Pathological Demand Avoidance Syndrome. M started attending Q School in 2016 following an appeal to the SEN Tribunal. Q School is a specialist provision for pupils who have an EHC Plan and behavioural, emotional and social difficulties, many of whom also have a diagnosis of autism.

What happened

19. M’s EHC Plan dated August 2017 specifies M will have “a dedicated one to one at all times”. This means that an identified individual will be available for M all the time. In its comments to me the Council states one to one provision was not made between September 2017 and February 2018 as it was not specified in the EHC Plan. The Council also argues that as M was attending a specialist school where staffing levels are high, one to one support would not usually be expected.
20. Q specialist school told the Council in April 2018 that they were giving notice on M’s placement as the school could no longer manage his behaviour. As a result of a meeting with the school, the school agreed to try again with M and an annual review was arranged for June 2018.
21. In May 2018 Mr B asked the Council about a personal budget stating ‘M’s education could be provided through a mixture of tutoring and access to other provisions which would be funded by KCC…To be clear this is not home schooling’. In response by email the Council stated “Special schools are commissioned in such a way that means the special educational provision a child requires is normally included in the commissioned funding so personal budgets via direct payments are rarely available. In general a personal budget delivered via a direct payment may be available where there is high needs funding in place or in those rare examples where a child or young person’s needs are so great it would be inappropriate for them to be educated in a school. These are extremely rare cases. A parent/carer/young person can make a request for a personal budget when the EHC assessment is taking place or when the EHC Plan is being reviewed…Requests for a personal budget need to be submitted in writing by the parents for the LA to then consider”.
22. The Annual review took place shortly after (around mid-June 2018) but following further violent incidents involving M and school staff, Q School requested that the school named in the EHCP was altered and wanted the placement ended. M stopped attending the school in June and the placement was formally ended in July 2018.
23. The Council confirms it did not write to Mr B following the annual review to say whether or not it intended amending the plan. The Council says the reason for this was a high workload and unexpected staff absences and vacancies. The plan was not amended even though the school placement had changed and suggested amendments had been identified in the annual review meeting. Mr B was not advised of his right of appeal to challenge any decision either to nor not to amend as the Council did not write to him.
24. At the Council’s request, an Educational Psychologist completed an assessment and produced a report in October 2018. This report noted that Mr B and his wife were teaching M at home and stated that a change of placement nor residential care were appropriate at that time. The EP was clear that the parents did not wish to be providing home tuition to M and wanted to look into a “bespoke, flexible and individualised programme of provision for M whilst continuing to include the provision outlined in his EHC plan” The EP went on to name two schools that Mr B and his wife would consider as providers of education for M. There is no evidence that the Council approached either of these schools. The EP’s conclusions were that M needed the bespoke, creative and flexible provision provided at home in the first instance with a view to gradually increasing provision outside the home leading to an education setting in future. She went on to also say that Mr B and his wife considered an individualised programme that included counselling and therapeutic support together with a programme of online learning with support from a tutor would be beneficial for M. She emphasised that these were ideas for incorporating into a plan for M that would require discussion with Mr B and his wife.
25. In January 2019 Mr B complained to the Council. His complaint included that the Council:
• had failed to re-assess M’s special educational needs under the statutory process;
• failed to update the EHC Plan following agreement to do so following an appeal to the SEN Tribunal in Summer 2017;
• failed to amend the Plan following an annual review in June 2018 thus denying a right to appeal to the Tribunal; and
• had not put in place any provision since June 2018.
26. In April 2019 the Council provided a response to the complaint. In the response the Council accepted that “very little progress has been made since the Annual Review was held in June 2018” and confirmed that M’s school placement had formally ended in July 2018. The Council apologised and said it considered the best way forward was to arrange some home tuition for M “until a suitable placement is found”. The officer said she recognised that the EP had recommended “highly bespoke, creative, flexible provision” for M and suggested a meeting was arranged for Mr B to discuss how M’s needs could be best met as soon as possible. Shortly after Mr B expressed his dissatisfaction with the response and asked for his response to be escalated to the next stage of the complaints’ procedure.
27. The Council provided its response at stage 2 of the complaints’ procedure just over a month later. In its response the Council said that one to one support had not been provided to M at Q School as it was not specified in his EHC Plan and the placement was specialist small therapeutic placement so this would not ordinarily be considered necessary. The Council again apologised that it had not secured educational provision since September 2018 though said it had consulted with schools but these had not been successful (it has since told me that it did not consult any schools during this period). It said that Mr B had stated in the Summer of 2018 that he did not want individual tuition for M but said it should have revisited this when a school placement could not be identified. Mr B is clear that he did not simply reject an offer of individual tuition but that the standard individual tuition package was not suitable for M’s needs and this had already been recognised at the annual review meeting.
28. In its comments to me the Council has confirmed that in 2016 when seeking a school place for M it consulted a very large number of schools and only one school responded but was not taken up as Q School was preferred by the Council. The Council confirms it did not approach any of these schools again for a place following the end of his placement at Q School in July 2018. The Council says it spoke to Mr B about the option of looking for a residential placement but did not pursue this as Mr B did not want this for M. Again Mr B clarified that it was simply a case that he did not want this for M but that this was discussed with professionals at M’s annual review and was not considered suitable for M.
29. In June 2019 W specialist school offered a place from September 2019 following formal consultation by the Council. W school is a specialist school for children with emotional, social and mental health difficulties including those with autism. At the time the school was new and not yet registered with Ofsted.
30. In June the Council also arranged individual tuition (about 4 hours a week) for M and also offered access to online tuition though I understand the online tuition was not successful and did not proceed.
31. The EHC Plan issued in August 2019 still specifies one to one support at all times and names W specialist school from September 2019.
32. M began attending W School in September 2019. The Council says that W School is working hard with M to enable him to settle and access the school environment. After a difficult start in the school building the Council says that staff from the school started to visit M at home weekly to work directly with him and he was also given a computer package to access work from home. Staff aimed to enable M to work directly with staff for 2 hours a day and to access computer work by the end of the Autumn term 2019. It was trying to work further with him to enable him to join small group activities.
33. The Council says its complaints and complex case officer is now closely involved in the monitoring of M’s education provision and is working closely with Mr B and his wife. This officer was also due to attend M’s annual review at the beginning of this year. I understand this annual review has taken place.

Was the Council at fault and did this cause injustice

34. The Council states it did not provide one to one support for M between September 2017 and February 2018. It argues this is because such support was not detailed in the EHC Plan at that time. But this is not the case as the EHC Plan dated August 2017 specifies one to one support for M at all times. The Council argues that as a specialist school Q would not ordinarily expect one to one support would be needed due to high staffing levels. This argument is undermined however by the fact that the EHC Plan names Q School, which is a specialist provision, but also states that one to one provision is necessary. As it is the Council’s responsibility to ensure that EHC Plan provision is put in place I therefore conclude that the failure to make this provision amounts to fault by the Council. This caused injustice to M as it would have significantly impacted on his ability to cope in the school setting and the impact of this was exacerbated by the matter not being resolved for a long period of time.
35. It is clear that no education provision was made for M from June 2018 to June 2019 and the Council accepts this. This amounts to fault and it has caused significant injustice to M as he has missed out on receiving any formal education or special needs provision for that period. There is no evidence the Council approached any schools but no alternative provision was considered either. This was the case even though Mr B suggested a package of tutoring and other support for M in May and the advice provided by the Educational Psychologist in October 2018 endorsed such an approach. The Council did not consider this advice until it responded to Mr B’s complaint in April 2019 and did not revisit Mr B’s earlier request after the school placement ended. Mr B and his wife have also been caused injustice as a result of the non-provision of education for M during the period June 2018 to June 2019. Both parents gave up working in order to look after and teach M in the absence of educational provision and special needs support for him and the situation has caused then significant avoidable worry and distress.
36. The Council failed to write to Mr B as it should have done or issue an amended EHC Plan following the annual review and termination of the placement at Q School in the summer of 2018. This amounts to fault. This caused injustice as it denied a right of appeal to the SEN Tribunal to challenge any refusal to amend the EHC plan or to name a new school. Any such appeal may have resulted in a resolution to M’s education provision before the Council acted in response to Mr B’s complaint in June 2019.
37. The Council took over three months to provide a response to Mr B’s complaint from late January to late April 2019. There is no evidence that it provided the four weekly updates that its procedure says it will when it could not provide a response within 20 days. This amounts to fault as it does not comply with the Council’s published procedure on this. The initial response did not respond to all the elements of Mr B’s complaint either though I recognise that it did try to resolve the immediate lack of education albeit this was three months after the matter was brought to the Council’s attention in the complaint. I recognise also that the Council apologised for the late response and says that the response was delayed by staff illness. The response to the second complaint was more thorough and timely and I find no fault with this. This slow response to Mr B’s complaint caused particular injustice to M as it delayed the resolution of an ongoing and increasingly urgent situation for M in terms of the non-provision of education and special needs support.
38. In its comments to me the Council accepts that its record keeping has been poor in relation this complaint as email correspondence between Mr B and the Council have not been retained. It says the Council has already taken steps to ensure this does not happen in future.

Agreed action

39. To remedy the injustice caused to M and his family by the fault identified above the Council will:
• send Mr B a formal written apology;
• make a payment of £5400 to recognise the injustice caused to M by a year of missed educational and the associated failure to make the special needs provision detailed in M’s EHC Plan. This sum is calculated at a rate of £1800 a term or £600 a month for the nine months of term-time education provision. This is the highest monthly amount we usually recommend and reflects the complete non-provision made and the significant impact of this;
• make a further payment of £1800 to recognise the failure to put in place one to one support for M at school between September 2017 and February 2018. This is figure is calculated at a rate of £300 per month and recognises that whilst educational provision was being made, the failure to provide the one to one support detailed in the EHC plan caused significant injustice to M and may have contributed to the deterioration in M’s ability to manage at school which in turn led to the total breakdown of the school placement shortly after;
• a further payment of £3000 to recognise the avoidable distress and loss of opportunity caused to Mr B and his wife. Again, this payment is a higher payment for distress than we would usually recommend but this reflects the significant distress, frustration and loss of opportunity caused for both parents over an extended period of time;
• pay Mr B £300 for the uncertainty caused by its failure to write to tell him whether it intended amending the EHC plan following the annual review in June and to then undertake these amendments including the need to amend Section I following the termination of the placement at Q School. This payment recognises that these failings denied Mr B a right of appeal to the SEN Tribunal where he could have challenged the failure to name a school and make amendments; and
• a further payment of £250 to recognise the avoidable time and trouble Mr B was caused in having to complain to the Council in order for it to take action to provide education for M and to recognise the poor handling of this complaint.
40. For the sake of clarity the total amount of payments I am recommending amounts to £10725. This should be paid to Mr B within one month of the date of the final decision on this complaint.
41. Within two months of the date of this final decision statement the Council will make and provide me with evidence of improvements to its practices and procedures to remedy faults identified as a result of this complaint by ensuring that it:
• reviews the failings identified in this case to pinpoint what specifically went wrong and why and update this office on its findings and what action the Council will take to resolve them in the future;
• names an individual who will promptly to take responsibility for overseeing situations where a child is out of school so the child does not get lost in the system as M did here;
• has systems in place to ensure that the required processes following annual review meetings are completed;
• ensures staff are aware of and comply with the requirements of the Council’s published complaints procedure. It will also consider whether a named officer should oversee timescales for responses to complaints to identify where there is delay and take action to avert lengthy delays; and
• confirm what action it has taken to ensure its systems for record keeping are improved and that officers are aware and understand this.

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Final decision

42. The Council was at fault in failing to:
• make any educational provision for M between June 2018 and June 2019;
• put in place special educational needs support over the same period;
• put in place one to one support for M between September 2017 and February 2018 when this was support to be provided under the EHC plan;
• follow proper procedures following the annual review in June 2018 and consequently denying Mr B an opportunity to appeal to the SEN Tribunal; and
• provide a complaint response in line with its published procedure or respond in a timescale that recognised the urgency of the ongoing situation being complained about.
43. The fault caused injustice as detailed and the Council will take the recommended action to recognise and remedy the injustice caused and to improve its processes and practice in future.

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Investigator's decision on behalf of the Ombudsman