Summary: Mr and Mrs E complained about the Council’s delays in dealing with their son’s Education, Health and Care plan. They also complained about the Council’s communication with them. We find the Council delayed dealing with Mr and Mrs E’s son’s Education, Health and Care plan and delayed providing him with alternative and specialist provision. The Council also failed to update Mr and Mrs E and delayed responding to their correspondence. The Council has agreed to our recommendations to address the injustice caused.

The complaint

1. Mr and Mrs E complained about the Council’s delays in dealing with their son’s (F) Education, Health and Care (EHC) plan. They say the Council delayed issuing and finalising the EHC plan after the emergency annual review meeting. They add the Council delayed providing F with a home tutor, Speech and Language Therapy (SALT), occupational therapy (OT) and full-time education.
2. Mr and Mrs E also complained about the Council’s poor communication. They say they have had to constantly chase the Council for updates.
3. Mr and Mrs E say the Council’s actions have had a detrimental impact on F and the wider family. They say F has missed out on a significant amount of education and they are concerned about his social isolation the longer he is out school.

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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. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
6. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (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)
8. 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

9. I considered information Mr and Mrs E submitted with their complaint. I made written enquiries of the Council and considered information it provided in response.
10. Mr and Mrs 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

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 tribunal can do this.
12. 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. 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.
13. 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.
14. Section 19 of the Education Act 1996 says councils are responsible for the provision or suitable education for children of compulsory age who, ‘by reason of illness, exclusion or otherwise’ may not for any period receive suitable education unless such arrangements are made for them.
15. Councils need to ensure children with health problems are not without education for more than 15 working days. So, if a child cannot attend school because of a health problem, after 15 days a council must intervene and provide suitable education for a minimum of five hours a week.
16. Statutory guidance issued by the government called “Alternative Provision” says while there is no legal requirement as to when full-time education should begin for children placed in alternative provision for reasons other than exclusion, councils should ensure children are placed as quickly as possible.
17. Statutory guidance on special educational needs provision (Special educational needs and disability code of practice: 0-25 years) confirms that councils must review an EHC plan at least once every 12 months. The guidance says that within four weeks of the review meeting, the council must decide whether it will keep the EHC plan as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school.
18. Paragraph 9.194 says where the council proposes to amend an EHC plan, it must send a copy of the existing plan, and a notice providing details of the proposed amendments, to the child’s parent or the young person.
19. Paragraph 9.195 confirms the parent or young person must be given 15 days to comment on the proposed changes. The parent or young person can request the council name a school or institution in the EHC plan.
20. Paragraph 9.196 says that after receiving any representations from the child’s parent or the young person, if the council decides to continue to amend the EHC plan, it must issue the amended plan as quickly as possible and within eight weeks of the original amendment notice.

What happened

21. Mr and Mrs E’s son, F, has complex needs and a diagnosis of autism. Mr and Mrs E requested an emergency interim annual review meeting because F’s mainstream school said it could not meet his needs. F had previously been excluded from school on two occasions and Mr and Mrs E were concerned that any further incidents would result in a permanent exclusion.
22. The annual review took place on 10 July 2019. The result of the meeting was that F required more specialist provision than his school could offer. F did not return to school to complete the end of the summer term after the annual review meeting because of his anxieties.
23. Mr and Mrs E emailed the Council at the end of July. They described the difficulties F was having at school and that he was becoming more isolated. They also said they were concerned that no specialist provision for F could be provided until his case went to a placement panel in September. A placement panel helps councils make the best decisions possible about the efficient education for children who have special educational needs.
24. The Council responded to Mr and Mrs E in August. It said that due to the timing of the interim annual review being towards the end of the academic year, it was not possible for it to consult with special schools. It said it would decide on the most suitable placement for F at the end of September. It also said it had arranged a meeting at F’s school in September to see if it could support him.
25. F did not return to school in September because of his anxieties. The Council consulted with several special schools at the beginning of September. On 26 September, the placement panel agreed that F needed to attend a special school because of his needs.
26. The Council consulted with another special school in October. It also received several responses from schools that said they could not meet F’s needs.
27. Mr and Mrs E wrote to the Council at the end of October. They said it was in breach of its duty because it had not written to them within four weeks of the annual review meeting with its decision on whether it would maintain, amend, or cease to maintain F’s EHC plan. They also said the Council was aware that F had not been able to attend school since the end of July but that it had failed to provide any education or SALT for him in the meantime. The Council responded to Mr and Mrs E and said it would deal their immediate questions about SALT and a home tutor.
28. The Council made a referral for F to get home tuition on 31 October. It provided a tutor on 8 November.
29. Mr and Mrs E emailed the Council on 24 November and said it had not resolved their concerns. The Council responded the following day and said it would aim to respond to their complaint within 20 working days.
30. The Council sent Mr and Mrs E a copy of its proposed amended EHC plan for F on 25 November 2019. The Council did not name a school because it had not found one to accept F.
31. Mr and Mrs E met with the Council on 5 December to discuss the amendments to F’s EHC plan. The Council also agreed to find a SALT for F and to update Mr and Mrs E on school placements for him. The Council emailed Mr and Mrs E on 9 December and said it would find out more information on school placements the following day.
32. Mr and Mrs E chased the Council for an update on 16 and 22 December. The Council responded on 8 January 2020 and said the officer who had been dealing the matter was off work. It said it would review the matter and then contact Mr and Mrs E.
33. Mr and Mrs E emailed the Council on 21 January and asked for an update on a school placement for F. They also said F had not received any SALT since July the previous year and asked how the shortfall would be made up. Finally, they asked when they could expect to receive the amended EHC plan that was agreed in the meeting on 5 December 2019.
34. The Council issued its stage one response to Mr and Mrs E’s complaint on 5 February. It said:

• That it delayed responding to the complaint and it apologised for this.
• It was working hard to secure a specialist school for F and was aiming to secure the placement by the end of February.
• There was a delay in sending the proposed amended EHC plan after the annual review and it apologised for this.
• It would source SALT for F until it could secure a school placement for him.

35. Mr and Mrs E chased for a response to their email of 21 January on 10 February.
36. On the same day, the Council received further information from Mr and Mrs E’s preferred school (School A) on why it could not accept F. This was in response to the Council’s email from January asking for further information.
37. Mr and Mrs E emailed the Council on 16 February and asked for a stage two response to their complaint. They said the Council had failed to compete the agreed action points from the meeting on 5 December 2019. They also said the Council had not responded to their emails and it was depriving F of the opportunities and provision he needed to meet the outcomes in his EHC plan.
38. The Council responded to Mr and Mrs E’s emails from 21 January and 10 February on 17 February. It said it would hopefully have an answer about F’s school placement within the next two weeks. It also said it was arranging SALT for F.
39. The Council issued the final amended EHC plan on 17 February. It did not name a specific school. It also made Mr and Mrs E aware of their right to appeal to the SEND tribunal if they were not happy with the provision in the plan or that it had not named a school.
40. The Council updated Mr and Mrs E on 18 March and said it was in discussion with School A and would hopefully have an outcome soon. It also said SALT would start on 26 March.
41. The Council emailed Mr and Mrs E on 23 March said it would chase for an update about School A.
42. Mr and Mrs E emailed the Council on 29 March and said when they met with the officer in December 2019, she agreed the EHC plan would be a working document, but this had not happened. The Council responded and said it would be happy to make changes if necessary.
43. F started receiving SALT on 14 April.
44. The Council issued its stage two response to Mr and Mrs E’s complaint on 15 April. It said:

• Its overall communication was unsatisfactory.
• There were periods when it failed to give updates on progress.
• It took too long to amend F’s EHC plan.
• There was a delay in providing SALT for F.

45. Mr and Mrs E emailed the Council on 12 May and asked for a response to their email of 29 March. The Council responded on the same day and said it was waiting on an update from the officer that dealt with the matter. It also said it would be reissuing F’s EHC plan and would name School A. It issued F’s final amended EHC plan on 27 May. It also sent a letter to School A on the same day and directed it to take F from September.
46. School A responded to the Council in June and asked it to reconsider its decision. It said it could meet F’s needs, but it would be to the detriment of other pupils. School A is in a neighbouring authority. The Council wrote to the special educational needs department in the neighbouring authority in July 2020 and said the direction remained in place.
47. Mr and Mrs E emailed School A in August and asked for a start date for F. School A responded and said it could not offer F a place.
48. Mr and Mrs E emailed the Council on 1 September and said they were disappointed that School A could not take F. They asked the Council why it did not tell them. They also said that F had not received OT since July 2019 and asked how he would meet the outcomes in his EHC plan without the relevant support.
49. The Council responded to Mr and Mrs E and said it would enforce the direction for School A to take F. It emailed School A on the same day.
50. School A appealed to the Department for Education (DfE) against the Council’s direction.
51. Mr and Mrs E emailed the Council and said F had not had any OT for over a year. The Council said it would wait to see whether School A would admit F. However, School A still had not admitted F by the end of October and so the Council agreed to arrange OT.
52. The DfE contacted the Council in December. It said that School A had to legally admit F. It also said the Council had to consult with School A again and show it had fully considered its objections.
53. The headteacher from School A contacted Mr and Mrs E on 7 December to discuss F’s transition.
54. School A offered F a place on 16 January 2021. He is currently having a gradual transition into the school community and has not yet started at School A.

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Analysis

55. Mr and Mrs E could have appealed to the SEND Tribunal about the Council’s decision not to name a school in the final amended EHC plan on 17 February 2020. I have decided it was not reasonable for Mr and Mrs E to have appealed and therefore I will exercise discretion to investigate their complaint after this date. This is because there was no disagreement about the content of the EHC plan. The Council assured Mr and Mrs E it would soon have an answer about School A. Therefore, it was reasonable for them to have waited until the Council had a response.
56. The law and statutory guidance states that within four weeks of the annual review meeting, the Council should decide whether it will keep the EHC plan as it is, amend, or cease to maintain the plan. The annual review took place on 10 July 2019. The Council issued the proposed amended EHC plan on 25 November 2019. This is a delay of over three months. This is fault. This caused Mr and Mrs E uncertainty and upset.
57. The Council agreed to amend F’s EHC plan on 5 December. However, it took the Council a further two months to issue the final amended EHC plan. This caused even further uncertainty for Mr and Mrs E.
58. The Council was aware that F had not returned to school in September 2019. The Council has a duty to provide suitable education where a child cannot attend school because of exclusion, medical reasons or otherwise. The Council took two months to arrange home tuition, which started on 8 November. This is fault. F was without any education for two months.
59. The Council assured Mr and Mrs E it would arrange SALT for F. Despite repeated assurances, it did not start until 15 April 2020. F has not received any OT since he last attended school in July 2019. When the Council responded to my enquiries, it said it agreed the OT provision in November 2020. However, it still has not taken place because of administrative difficulties.
60. Mr and Mrs E say F has been out of full-time education since July 2019 and it has had a significant impact on him. It is clear the Council had difficulties in finding a school for F. It consulted with several schools in September 2019. It did not receive a positive response from any school.
61. However, I do find there were some delays in the Council’s correspondence with School A. School A responded to the Council’s consultation in November 2019. The Council did not follow this up until January 2020. School A then responded again in February 2020. The Council did not follow up with School A and issue the direction letter until the end of May 2020. Mr and Mrs E’s email in September 2020 also prompted the Council to follow up with School A. The Council should have been acting quicker given that F had been out of school for a significant amount of time.
62. The statutory guidance says councils should review an EHC plan every 12 months. However, the Council failed to review F’s EHC plan in 2020. The Council accepts it should have taken place regardless of the ongoing negotiations about the school placement.
63. The Council was also at fault for its communication with Mr and Mrs E. It delayed dealing with Mr and Mrs E’s complaint. The evidence also shows it took several weeks to respond to emails and Mr and Mrs E had to chase in the meantime which caused them frustration. The Council did not update Mr and Mrs E on the agreed actions from the meeting in December. The Council also failed to update Mr and Mrs E that School A had refused to accept F. They found this information out from School A rather than the Council.
64. The Ombudsman’s guidance on remedies says where fault has resulted in a loss of provision, we will usually recommend a remedy payment of between £200 and £600 a month to acknowledge the impact of that loss.
65. F did not receive any education during September and October 2019. F has complex needs and so I recommend a rate of £600 per month for that period, a total of £1,200.
66. F has received home tuition since November 2019. However, he did not receive any SALT until 14 April 2020 and has not received any OT since July 2019. I therefore recommend a payment of £300 per month from November 2019 to March 2020, a total of £1,500. I recommend a further £200 per month from April 2020 until February 2021, a total of £2,000. I have taken the summer holiday into account in this calculation.
67. F is still transitioning to School A and he still has not received any OT. The Council has found an occupational therapist for F. If the Council still has not arranged it, I recommend it contacts Mr and Mrs E within two weeks of my final decision with a start date of OT for F.
68. The injustice caused to F because the OT provision is still not in place is ongoing at the time of this decision. We expect the Council to now move quickly to overcome its administrative difficulties and begin providing it to F. This matter should not have to return to the Ombudsman. Any failure to put in place the OT provision will be further avoidable fault causing an increasing injustice to F. OT is a type of physical therapy and the injustice caused by not having it is cumulative and cannot simply be remedied by a financial payment.

Agreed action

69. To remedy the injustice caused by fault, by 6 April 2021 the Council has agreed to:

• Resolve the administrative difficulties and write to Mr and Mrs E with a start date of OT for F within one month.

70. By 20 April 2021 to:

• Pay Mr and Mrs E £4,700 for the loss of education and specialist provision for F from September 2019 to February 2021. We would suggest this payment is used for the educational benefit of F.
• Apologise to Mr and Mrs E.
• Make a further payment to Mr and Mrs E of £400 for the distress and frustration caused to them.

71. By 19 May 2021 to:

• Complete an annual review of F’s EHC plan.
• Issue written reminders to its staff to ensure they are aware of:

1. Their duty to provide full-time education where a child cannot attend school because of exclusion, medical reasons or otherwise.
2. Their duty to provide the provision set out in a child’s EHC plan.
3. Their responsibility to complete reviews annually.
4. The timescales set out in legislation after the annual review of an EHC plan.

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Final decision

72. I have found fault by the Council, causing an injustice to Mr and Mrs E and F. The Council has agreed to my recommendations and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman