Summary: Ms E complained the Council failed to provide her son with the provision required in his Education, Health and Care plan. She also complained the Council failed to respond to her complaints about the matter. We find the Council was at fault by not providing Ms E with a realistic timescale of when it would complete the agreed points to resolve her complaint. The Council has agreed to apologise to Ms E for the injustice caused to her.

The complaint

1. Ms E complained the Council failed to provide her son (F) with the provision required in his Education, Health and Care (EHC) plan. She also complained the Council failed to respond to her complaints about the matter.
2. Ms E says it has had a detrimental impact on her and her son.

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What I have investigated

3. I have investigated Ms E’s concerns about the Council’s failure to provide her son with the provision required in his EHC plan from October 2019 onwards. I have not looked at the Council’s actions before October 2019 for the reasons set out at the end of this statement.

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The Ombudsman’s role and powers

4. 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)
5. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to Covid-19”.
6. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
7. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
8. 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)
9. 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

10. I considered information Ms E submitted with her complaint. I made written enquiries of the Council and considered the information it provided in response.
11. Ms E 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

Relevant law and statutory guidance

12. 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.
13. The Children and Families Act 2014 says councils are responsible for making sure that arrangements specified in EHC plans are put in place and reviewed each year.
14. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out in an EHC plan has not been provided or where there have been delays in the process.
15. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision, the school named in their child’s plan, or the fact that no school or educational setting is named.
16. The Government made changes to Special Educational Needs legislation due to COVID-19. From 1 May 2020 to 31 July 2020, the Council’s absolute duty to secure or arrange provision set out in an EHC plan was temporarily modified to a duty to use ‘reasonable endeavours’ to do so.

What happened

17. Ms E’s son, F, has special educational needs and has an EHC plan. In May 2019, Ms E appealed to the Tribunal about the content of F’s EHC plan.
18. The Council issued F’s final amended EHC plan in August 2019.
19. On 30 September 2019, Ms E withdrew her appeal to the Tribunal.
20. On 7 October 2019, Ms E emailed F’s school and she copied in the Council. She confirmed a meeting was arranged at the school because most of the provisions from F’s EHC plan were not in place. She asked for an officer from the Council to attend the meeting.
21. On 14 October 2019, Ms E emailed the Council and said she had attended a meeting at the school. The Council did not attend this meeting. She asked for the Council to intervene and secure the provisions in F’s EHC plan. The Council officer apologised for not responding previously and said she had been on annual leave. She agreed to a meeting at the school the following month to discuss Ms E’s concerns.
22. A meeting took place at the school on 14 November 2019. Ms E said she was concerned F was not getting Lego therapy as per his EHC plan and he was becoming socially isolated because he did not have a one-to-one teaching assistant to support him at lunchtime. The Council agreed to look at the advice provided for the writing of F’s EHC plan over the issue of one-to-one support.
23. Ms E complained to the Council on 18 November 2019. She said the Council was still failing to ensure F was getting the provision in his EHC plan. She listed the specific provision F was not getting, such as no one-to-one support during his lessons and at lunch.
24. Ms E’s MP also wrote the Council and expressed concerns that F did not have a one-to-one teaching assistant at lunch.
25. The Council acknowledged Ms E’s complaint on 2 December 2019. Ms E chased for a response to her complaint on 16 December 2019. The Council responded to Ms E’s complaint on 17 December 2019 and said it had provided the school with additional resources to meet F’s needs. It said F was making progress. It also said it was trying to understand what Ms E understood to be one-to-one support from a teaching assistant at lunchtime. The Council suggested a meeting with Ms E to try and understand and resolve her complaints.
26. Ms E responded to the Council on 14 January 2020. She said F was not making progress and the Council had failed in its duty to make provisions. She said she had no other option but to take the legal route.
27. The Council emailed Ms E on 25 February 2020 and asked her again to attend a meeting to discuss her complaints.
28. Ms E attended a meeting with the Council on 5 March 2020. The Council agreed to:

• Meet with the school to:

1. Arrange for F to have a one-to-one teaching assistant during lunchtime to promote social interaction and games.
2. Arrange for F to have a one-to-one teaching assistant during lessons.
3. Remove specific subjects from F’s timetable.

• Arrange for pre-teaching material to be sent to Ms E.
• Provide Ms E with information on how F’s funding had been used.

29. The Council agreed to complete the above actions by 19 March 2020.
30. F started online lessons on 16 March 2020 because of COVID-19.
31. Ms E emailed the Council on 20 March 2020 and asked for an update. She said the school was going to be closed until further notice. The Council responded on 24 March 2020, apologised for the delay, and said it was preoccupied with other matters due to COVID-19. It said it could not provide a detailed answer until later in the week.
32. The Council emailed Ms E on 27 March 2020 and explained further delays because of COVID-19. Ms E emailed the Council in April 2020 and asked for an annual review of F’s EHC plan. The Council responded and said it would get back to Ms E the following week. It did not do so.
33. In June 2020, Ms E emailed the Council and asked for an update on the agreed points from the meeting in March 2020. The Council responded and said it would discuss with the school what was going to be in place at the start of the academic year.
34. The Council updated Ms E in July 2020 and said it had arranged a meeting with the school to discuss the provision in F’s EHC plan. Ms E responded and said it should have implemented the agreed provisions after the meeting on 5 March 2020 as the school did not close until two weeks later.
35. The annual review of F’s EHC plan took place on 17 July 2020. Ms E emailed the Council on 23 July 2020 and asked for a response to her previous email. The Council responded and said it had a positive meeting with the school and it would update her the following month.
36. The Council emailed Ms E on 6 August 2020. It provided her with a breakdown of the allocation of F’s funding and confirmed the school had sent her pre-teaching materials. The Council also said:

• F had a one-to-one teaching assistant during lunchtimes, but the member of staff also focused on other pupils. The school agreed to make it more clear to the teaching assistant that their role was to support F in his social interaction.
• F had a one-to-one teaching assistant during lessons, but the member of staff concerned did not always sit directly next to F to encourage his independence.
• The school would remove subjects such as French, German and ethics from F’s timetable.

37. Ms E emailed the Council and thanked it for its help. She said she was concerned that geography, history, and ethics had not been removed from F’s timetable. The Council responded the following month and confirmed those subjects had been removed.

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Analysis

The Council failed to provide F with the provision required in his EHC plan

38. Ms E sent a detailed complaint to the Council in November 2019 and identified parts of the provision set out in F’s EHC plan that she believed were not being made.
39. When the Ms E met with the Council in March 2020, the Council agreed to focus on one-to-one teaching during lunchtimes and lessons, as well as removing specific subjects from his timetable and providing Ms E with pre-teaching material. Ms E says she agreed to these limited provisions because of F’s anxiety and she wanted to have something in place. She says the other provision she complained about in November 2019 was still not being met.
40. F’s EHC plan says:

• He requires one-to-one support throughout the day including lunchtimes.
• He requires one-to-one support from a teaching assistant who is trained and experienced in working with children with autism throughout the school day.

41. When the Council met with the school in July 2020, it confirmed that F had one-to-one support during lunchtimes, but that the member of staff also focused on other pupils. I have read the comments from the school after the annual review. It said F received one-to-one support in every lesson but that at lunchtimes, he received shared support which he was also able to access individually. F was able to build positive working relationships with other pupils.
42. The annual review also demonstrates the school was meeting all the other provision that Ms E complained about in November 2019. Although the school did not have iPad’s, F had access to other computing equipment to assist with his handwriting.
43. The evidence shows the school followed F’s EHC plan and implemented the relevant provision. I therefore find no fault on the Council’s part.

The Council failed to deal with Ms E’s complaints about the matter

44. Ms E says she sent the Council many emails, but it failed to deal with her complaints.
45. The Council’s complaints policy says it will carry out a formal investigation and respond within 20 working days when it receives a complaint. If a customer is not happy with its response, they can ask for a review of its decision. There is no timescale of when the Council will provide a review of its decision.
46. A Council officer went to a meeting at F’s school after Ms E’s email of 14 October 2020. However, Ms E remained unhappy after the meeting and especially over the issue of one-to-one support for F at lunchtime.
47. The Council issued its stage one response to Ms E’s complaint one working day late. This one-day delay is not significant enough to be fault. Ms E raised a detailed complaint and provided many examples of where she believed F was not getting his provision. When the Council responded to Ms E’s complaint, it did not respond to each of Ms E’s points. However, it did ask Ms E to attend a meeting to try and resolve matters. Ms E did not accept the Council’s proposal, and instead said the Council had failed to secure provisions for F and she would pursue the legal route. The Council asked Ms E again to attend a meeting the following month and she accepted. Ms E and the Council agreed a resolution in the meeting on 5 March 2020.
48. The Council agreed to complete the actions from the meeting on 5 March 2020 by 19 March 2020. This did not happen. The Council did not contact the school until 9 July 2020. The Council updated Ms E on 6 August 2020.
49. My role is to consider whether this delay was fault. I have looked at whether the Council followed our published guidance “Good Administrative Practice during the response to Covid-19”. The guidance says councils should be realistic with complainants about the timescale for responding to their complaint. They should also let them know if there is going to be a further delay and explain the reason for any delay.
50. The Council updated Ms E on 24 and 27 March 2020 and explained the impact of COVID-19 on its resources. The Council also emailed Ms E on 15 April 2020 and said it would discuss logistics with the school about an annual review and would get back to Ms E the following week. This did not happen, and there is no evidence the Council updated Ms E until 16 June 2020 after she chased for a response. I consider this is fault. I appreciate the Council was dealing with the impact of COVID-19, but it should have provided Ms E with a realistic timescale of when it would get back to her. It also should have written back to her much sooner than 16 June 2020 and told her about the further delay.
51. I am satisfied this fault caused Ms E an injustice. She had the uncertainty of not knowing when the Council would deal with the agreed actions from the meeting on 5 March 2020.
52. I have also looked at whether the delay caused F an injustice. Even if the Council had completed the actions by 19 March 2020, the agreed changes would not have been implemented until September 2020. This is what has happened even with the delays. This is because F began online lessons on 16 March 2020 and the school closed on 20 March 2020. It did not reopen fully until September 2020.

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Agreed action

53. To remedy the injustice caused by fault, by 19 February 2021 the Council has agreed to apologise to Ms E for the uncertainty caused by failing to give her a realistic timescale of when it would complete the agreed points to resolve her complaint.

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Final decision

54. I have found fault by the Council, causing an injustice to Ms E. The Council has agreed to my recommendation and so I have completed my investigation.

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Parts of the complaint that I did not investigate

55. Ms E exercised her right to appeal to the SEND Tribunal about the content of F’s EHC plan from May 2019 to 30 September 2019. The courts have said where a loss of education coincides with an appeal about an EHC plan and there is a link between them, the period from the date on which the appeal right arises until the appeal is heard cannot be investigated by the Ombudsman. Therefore, the Council’s actions prior to October 2019 are outside the Ombudsman’s jurisdiction.

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Investigator's decision on behalf of the Ombudsman