Summary: the Council delayed in completing the process to amend X’s Education, Health and Care Plan following the annual review in March 2019 but that this did not cause sufficient injustice to pursue further. There is no fault in relation to the Council’s provision of education for X and no grounds for me to pursue a complaint about any failure to make alternative education provision in late 2018. Any delay in the Council’s handling of Ms B’s complaint is minor and does not amount to fault.

The complaint

1. The complainant, whom I shall refer to as Ms B, says the Council has failed to properly meet her son, X's, identified special educational needs. Specifically, she says it failed to:
1. conduct and take appropriate action following annual reviews of X's Education, Health and Care Plan (EHC Plan) since 2017; and
2. provide suitable alternative education for X when he was unable to attend the school named on his EHC Plan.

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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. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe it is unlikely we would find fault. (Local Government Act 1974, section 24A(6), 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. 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

6. I considered the written information Ms B provided with her complaint and made written enquiries of the Council. I considered all the information before reaching a draft decision on the complaint.
7. Ms B complained about matters dating back to 2017. As this was considerably more than 12 months before Ms B complained to this office and there were no grounds that persuaded me to exercise my discretion to investigate the earlier period, I investigated the matters complained about from October 2018 which is 12 months before she complained to this office.
8. Ms B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
9. The Joint SEN inspection undertaken by Ofsted and CQC in Luton in 2019 identified the Council did not have the staffing capacity to undertake annual reviews of EHC Plans within statutory timescales. The inspection issued a Written Statement of Action due to “significant areas of weakness”.
10. 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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What I found

What should have happened

11. 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.

12. 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.

13. Statutory guidance on special education needs provision (Special educational needs and disability code of practice: 0 – 25 years) 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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.
19. 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.
20. The Council’s complaints procedure states that a response will be provided in 15 working days at stage 1 of the procedure by a manager in the service being complained about and, if then pursued to the second stage, by a more senior manager within 25 working days.

Background

21. X is fourteen years old. He has multiple disabilities and special needs and has had an Education, Health and Care Plan since he was five years old. He attends a special needs school.

What happened

Annual reviews

22. The Council says an annual review took place in February 2018. This predates the period I am investigating but I include this for context.
23. The next annual review took place in mid-March 2019. The form for this review states “This academic year X has only been to school twice due to various health and logistical reasons. For that reason much of this information in the report will be the same as the report before as it has not been possible to observe X and make new observations. This severe absence has a huge impact on X’s wellbeing at school. Although X still appears happy to come to school and will greet staff with a smile, he is less familiar with school routine sounds and therefore more likely to experience startle seizures. This ultimately has an impact on his quality of learning”. There is no content in the sections of the form that relate to outcomes and provision and the section on health needs advises to “see amended EHCP”. Ms B chased up in early May when she had not received any paperwork following the annual review meeting in March.
24. The Council issued an amendment notice in May 2019. This included a small number of relatively small amendments including:
• To special educational needs, the benefits of a multi-disciplinary curriculum and changes to health diagnoses; and
• To outcomes and provision, changes to education provision including to the staff approach being used when working with X, provision of specialist equipment, provision of hydrotherapy and physiotherapy in school.
25. The Council issued the final amended EHCP in August 2019 then a further one in September 2019 to include a personal budget for weekly physiotherapy.
26. The Council says that Ms B has appealed to the SEN Tribunal with a two-day hearing listed for April 2020. I assume this relates to the content of the amended EHC Plan.

Alternative provision

27. The Council says that X’s attendance at school has been low since he began attending secondary school in September 2016. It says that in July 2018 the Council agreed that his attendance should be reduced to three days a week as he was struggling to manage full time attendance which had deteriorated “significantly” from Spring 2018. It was also agreed that Ms B would try to take X to school if she could on days where his health meant that he could not be ready in time to use the transport provided by the Council. At a meeting in July 2018 attended by Ms B and a number of professionals working with X including school teaching staff, social work staff, a physiotherapist and school nurse, Ms B said that X was having seizures in the mornings when he was getting ready to go to school (which meant he couldn’t be ready in time for the school bus) following changes including to his epilepsy medication and that there was ongoing investigation into this by the hospital overseeing X’s care.
28. As stated above the review documentation states X attended school for only two days between September 2018 and March 2019. Ms B says this is not the case and that he attended for twelve days during this period. A review of X’s targets in December 2018 noted that X had not met any of his targets due to his poor attendance at school. In February a review of these targets made changes to these targets.
29. The Council says that alternative provision would not have been appropriate for X and that a reduction in hours was in place to meet his health needs. The Council says that X’s overall attendance in the school year 2018/2019 was 15% and the year 2019/20 40% to date. His highest level of attendance at secondary school was 45% in his first year at the school.
30. In response to my draft decision Ms B said that the Council has specifically failed to put in place alternative education provision for X in ther period following an operation in early November 2018. She says that following the operation X suffered from:
• swelling and severe inflammation in the affected areas of both legs;
• pus forming around the wounds at certain points;
• raised temperature, loss of appetite and general unwellness;
• moaning and crying regularly when being repositioned; and
• needing his legs to be supported on a raised surface above the level of his hips to prevent the pressure of gravity causing him pain and discomfort.

She says that as this situation continued for more than 15 school days alternative education provision should have been made.

31. Ms B did not make this complaint to the Council and so it has not responded to this specific point. She has been unable to provide any evidence to demonstrate a request for alternative provision either to the school or the Council. She says all her conversations with the school were by telephone only.

Ms B’s complaint to the Council

32. Ms B complained to the Council in early March and it appears the Council provided a response by email in early June though it seems it sent this by post in mid-April but Ms B did not receive the posted copy.
33. Ms B remained dissatisfied following the response and asked for the matter to be escalated to the second stage of the Council’s complaints’ procedure in an email to the Council in mid-June. In her email Ms B expressed dissatisfaction that :
• she had not received the Council’s letter of mid-April and wanted to know what had happened to this;
• said that although annual reviews had taken place since 2017 and she had attended these, the Council failed to complete the required follow up action or amend X’s plan; and
• the Council had failed to provide alternative education for X while he had been unable to attend school.
34. A senior Council officer provided the Council’s response in late July. The response stated:
• She apologised for Ms B’s experience of the annual review process and accepted that "there have been some errors in considering and issuing amended EHC plans following annual reviews in some cases and it is a factor that is currently being addressed…”. The officer went on to accept that whilst annual reviews took place “they may not have been reflected in an amended Education, health and Care plan..” However, she went on to say that she had reviewed the annual review documentation form the meetings that took place in May 2017, January 2018 and March 2019 but did not conclude these impacted on provision to X. In relation to the annual review that took place in March 2019 she said “No significant changes were requested” and says that the documentation states that X had only been to school twice in that academic years (ie from September 2018) due to health and logistical reasons. No amendments were proposed to the education, health or social care provision in X’s EHC plan. She went on to say that the all those attending the annual review in March 2019 expressed concerns about X’s school attendance and there was a discussion about how to increase this attendance. She referred to consideration of whether the school placement remained appropriate for X and said that professionals had concluded that it did remain appropriate but that the school was extremely concerned about X’s attendance.

Was the Council at fault and did this cause injustice?

35. There is fault in the process the Council followed to amend the EHC plan following the annual review in March 2019. Specifically:
• the Council’s decision following the review meeting was not notified to Ms B within four weeks of the review meeting;
• whilst the Council did provide details of the amendments it intended making to the EHC plan in May, I have seen no evidence that it provided Ms B with copies of the evidence it relied on to support the proposed changes or that it told Ms B she could request a meeting with the council to discuss the proposed changes or advised her that she had 15 days to comment or make representations on the proposed changes;
• it did not issue the final amended EHC plan within 8 weeks of the original amendment notice. It was in fact issued around 15 weeks after the amendment notice and then again in a further four weeks later when it incorporated the personal budget changes.
36. The amendments to X’s EHC plan were relatively minor and X’s attendance at school in 2018/19 was very low at 15% across the year. I therefore conclude that the delays in completing the amendments caused insufficient injustice for me to pursue further. This is because it seems very likely that the combination of minimal changes to the EHCP and the very low level of attendance meant that X was unlikely to have missed out on any changed provision as a result of the delay in completing the amendments.
37. There are no grounds for me to conclude there was fault in relation to the Council not making alternative provision for X. I recognise that X has not attended school for a prolonged period. The Council convened a meeting to consider this in July 2018 and in order to try to accommodate his health needs that were leading to his poor attendance it agreed to reduce the number of days he needed to attend school and that he could come in late on days there was a problem if Ms B could get him to school. Whilst it does not seem that these changes resulted in X attending more, I cannot conclude that the provision was not suitable. The schooling provision made by X’s school is highly specialised and would be difficult to provide for outside of a school-based environment in any case. The issue was that X’s health was seemingly making it difficult for him to attend any school, not that the provision named did not meet his needs. The issue appears to have been entirely related to X’s health and the Council took action to try to accommodate these difficulties as outlined. It seems clear from the notes of the meeting in July 2018 that health providers were addressing X’s health needs. Social care support continued to be provided by the children’s services team.
38. Ms B did not specifically complain to the Council about a failure to make alternative education provision when X was unable to return to school due to complications following an operation in November 2018. The account of his illness Ms B has provided would raise queries as to whether X was well enough to receive any education at that time but, in any event, there is no evidence provided which would enable me to reach a conclusion on this point (and therefore a finding of fault) as no request for provision or complaint about a failure to do so, was made. So, I have not pursued this specific issue further.
39. In relation to the handling of the complaint the response at stage 1 of the procedure was slightly delayed but not so much as to amount to fault: it appears to have taken the Council around five to six weeks to write the response in April rather than the three weeks allowed for under the complaints process. I am unclear why the Council’s letter of April does not appeal to have been received by Ms B at the time but there are no grounds for me to conclude that this was definitely the result of any failure by the Council. Its letter could have been lost in the post for example. The stage 2 response was provided again around five to six weeks after it was submitted and this is broadly in line with the Council’s timescales for providing this response. I consider the response addressed the complaints made.

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Final decision

40. The Council delayed in completing the process to amend X’s EHC plan following the annual review in March 2019 but that this did not cause sufficient injustice to justify a remedy. There is no fault in relation to the Council’s provision of education for X as it considers the school named is appropriate and has addressed matters related to his attendance due to X’s health needs. There are no grounds for me to pursue a complaint about a failure to make alternative education provision in late 2018 as there is no evidence of a complaint to the Council or of a request to the Council for such provision and so it is unlikely I will find fault. Any delay in the Council’s handling of Ms B’s complaint is minor and does not amount to fault.

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Investigator's decision on behalf of the Ombudsman