Summary: the Council was at fault in failing to ensure education and special educational provision was made for X between January and March 2020, in delaying issuing the decision of the annual review that took place in June 2019 by eight months and in its poor handling of Ms B’s complaint from September 2019. The Council will apologise, make a payment to recognise the impact of the missed provision and take action to ensure the identified fault does not occur again in future.

The complaint

1. The complainant, whom I shall refer to as Ms B, complains that Hampshire County Council failed to meet its duties in relation to meeting her daughter, X’s, educational and special educational needs since summer 2019. Specifically, that it:

1. failed to provide X with any education between September 2019 and May 2020;
2. failed to provide sufficient education in the form of home tuition from May 2020;
3. failed meet her special educational needs and provide the support detailed in X’s Education, Health and Care Plan since September 2019;
4. delayed issuing the decision of an Annual Review meeting in June 2019 until March 2020 delaying Ms B’s right to appeal to the SEN Tribunal; and
5. failed to deal properly with her complaints about this in September 2019, and January and February 2020.

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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 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)
4. 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)
5. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
6. 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

7. I considered the information Ms B provided with her complaint and discussed the complaint with Ms B before making written enquiries of the Council. I considered all the information before reaching a draft decision on the complaint.
8. Ms B and the Council had an opportunity to comment on my draft decision. I considered the comments received before making a final decision.
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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What I found

What should have happened

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. We can consider the other sections of an EHC plan. We do this by checking the Council followed the correct process, and took account of all relevant information, in deciding what to include. If we find fault affected the outcome, we may ask the Council to reconsider.
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. The Annual Review of an EHC plan considers whether the provision remains appropriate and whether progress is being made towards the targets in the EHC plan. The statutory guidance in the Special Educational Needs Code of Practice (the Code) says 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. In practice the review process includes the annual review meeting and the Council’s decision following the meeting. Parents have a right of appeal to the SEN Tribunal if they disagree with the decision to maintain, cease or amend the EHC plan at the end of that process.
15. Where a council decides to amend the EHC plan following a review it must notify the parent of this decision within four weeks of the review meeting. There is however no statutory timeframe for how long the Council can take to do the amendments, the Code simply says this should happen ‘without delay’.
16. The Code states that where a Council is maintaining an EHC plan for a child it must secure the provision that is specified in the plan.
17. 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.
18. The Council has a three stage corporate complaints procedure. This procedure does not include timescales for providing responses but confirms that the complainant may progress through the three stages if they are dissatisfied with the response received at stages one and two.

What happened

Background

19. X is fifteen years old and has an EHC plan to ensure she receives suitable support as a result of needs associated with her diagnoses of high functioning autism, selective mutism, anxiety disorders and Obsessive Compulsive Disorder (OCD).
20. X’s EHC plan notes that from 2016 to 2017 X had progressed from not attending school to attending part-time on a regular basis. However, from April of the academic year 2018/2019 X’s attendance began to decline again.
21. Ms B says that X stopped being able to attend occupational therapy sessions in 2017 though they continue to be detailed on her EHC plan.
22. Ms B lodged an appeal with the SEN Tribunal about the content of the EHC plan and the education provision named in Spring/Summer 2020 and this was due to be determined by the Tribunal in November 2020.

Education provision between September 2019 and March 2020 and what attempts the Council made to identity a placement or home tuition during this period

23. At a meeting in early September 2019 to discuss X’s timetable for the new term, Ms B told the school that X’s mental health had declined since the summer term and over the summer holidays and suggested that starting with a part-time timetable may be beneficial. The school however considered that it was best to try starting on a full-time timetable at the beginning of her GCSE courses. X then managed to attend around one week of school before ceasing to attend at all other than to attend two sessions a week with an Emotional Literacy Support Assistant (ELSA) in school.
24. In late September the school advised the Council’s special needs officer that X was not attending school due to her anxiety levels and said that her mother was requesting home learning for her. The Council says that in October learning support staff conducted home visits. Ms B refutes this stating home visits were suggested but she refused them as the proposal was for a Learning Support Assistant to provide education to X and she did not consider this suitable as teaching should have been provided by a qualified teacher. X was also reported to be very anxious about school staff coming into her home. The school suggested trying to reintegrate X by using an existing in-school provision teaching a small number of students not attending school with the aim of trying to reintegrate them back into school. The Council’s records state that neither X nor her parents felt this would work as X had no friends in that group of children. Ms B also says that X was scared to attend the unit and it was unsuitable for X as it was for “difficult” students.
25. The Council engaged an Autistic Spectrum Disorder consultant to conduct an assessment of X and the School to try to find the best way forward regarding X’s education. The consultant completed this assessment around mid-November. The Consultant concluded:
• X did not want to return to school;
• a bespoke package was the best option at that time but X was unable to contribute any suggestions as to what she might want this to include;
• a home tutor for maths and English for 10 hours per week and to be introduced gradually and built up to 2 hours per day;
• Parents felt that this home tuition and some on-line learning for other subjects could work but that currently this would prove too much;
• Ms B was reported to be keen for X to continue to do some ELSA work, possibly going into school as she recently was able to do this and meet with staff she liked and trusted or a therapy session once per week provided by an outside source visiting at home;
• A weekly activity to be considered but none identified at that time as X was not able to identify anything she would like to do;
• A mentor was suggested but X was said to not be agreeable;
• Clarification on how X could take exams if she was not attending school.
26. In an email to the Council’s SEN team in November the Consultant recommended:
• Parents would talk to X and let the consultant know if there are any activities she would be interested in;
• A home tutor to be arranged for Maths and English after Christmas to start with and ELSA work if X could go into school for this and they could provide this. If X was agreeable she suggested a tutor could start before Christmas to get to know her and build a relationship before academic work commenced;
• Parents wanted to be able to add some on-line learning and an activity at a later stage, once X was able to access this.
27. As I understand it X attended a 12 week well-being course and some sessions with the ELSA. Ms B says that X struggled to manage these and so her attendance was irregular. The Council says that X was also seeing the Communication and Language Team in school and had input from a sensory Occupational Therapist. Ms X says that as X was not attending school she did not receive any input from the Communications team and did not receive any OT provision either as this had not been in place after 2017.
28. In early December the Council emailed Ms B to say it would be putting in home tuition as recommended together with ELSA provision at the school.
29. Shortly after, the school told the Council that Ms B had declined the school staff providing home tuition as the people they were proposing to provide this were not qualified teachers.
30. In late January an annual review of the EHC plan took place due to further deterioration of X's mental health and disagreement between the school and parental views about what education was being offered. X's parents were still unhappy with any intention that unqualified staff from the school should provide home tuition. The meeting agreed tuition should be arranged and put in place as soon as possible. At this meeting the school said it could not meet X’s needs, requested another school placement was sought and agreed that until then the bespoke package would be put in place.
31. Further discussions took place between the school, the Council and X's mother during February and March regarding the package of support. It was concluded that the school were not able to provide teachers to home tutor and the Council says that whilst it asked the school to seek home tuition providers it did not do this.
32. The Council says that there was some delay at the beginning of the March Covid 19 lockdown period but that following the Easter holidays it contacted a tuition firm to provide 10 hours per week of home tuition and this started in May 2020.

SEN provision since September 2019

33. The EHC plan in place between September 2019 and March 2020 provided for:
• Specified teaching and support approaches by school staff eg incorporating approaches with the advise of a speech and language therapist, a social skills programme;
• 12 sessions of OT support which would include advice to school staff to deliver OT and sensory support with termly monitoring by the OT; and
• Frequent access to individual or small group support.
34. A mentor was advised by the ASD consultant but X is noted not to have wanted this.
35. The Council says that X continued to access ELSA until February 2020 and wellbeing input in school as provided for in her EHC plan and this provided her with support around her social, emotional and mental health needs. The Council says that X continued to receive the sensory OT provision described in her plan, although not within the school environment. Ms X says this OT was not provided from 2017 when it was suspended because X was struggling to engage with the sessions. The Council also says the staff team were appropriately trained by the Communication and Language Team to support her needs but this was not delivered when they stopped educating X at school.

Annual review in June 2019

36. An annual review of the EHC plan took place in January 2020 and notes the previous annual review took place in June 2019.
37. The annual review notes show that the background to X’s non-school attendance was covered and a conclusion reached that the school had tried all options to try to help and support X and a new placement was required that could provide a bespoke provision to meet X’s autistic spectrum needs and her emotional needs and to reintegrate her back into education.
38. In relation to the June 2019 annual review the Council says it was unusual to hold an annual review meeting so soon after an SEN tribunal had been concluded and consequently it was missed by the SEN team. The Council says a further annual review meeting was held in January due to the deteriorating nature of X's mental health needs and the disagreement with regards to provision being proposed by the school.
39. The Council says that error in relation to the June annual review was responded to as part of the complaint Ms B submitted in February/March 2020.
40. I have seen an email from the Council’s SEN worker stating that he was sending Ms B the paperwork for the June 2019 annual review in March 2020 and that this provided her with a right of appeal. I understand from Ms B that this followed a threat of judicial review made by her solicitor to the Council on her behalf.

Ms B’s complaints to the Council

41. Ms B submitted a complaint in early September 2019. This focussed on the Council’s failure to complete the annual review paperwork and process following the annual review meeting that took place in June 2019. The Council acknowledged this complaint promptly and provided its substantive response in mid-September. In its response the Council apologised for the delay in progressing the annual review paperwork, said X’s school had passed on the paperwork to the Council in July and agreed that its officers would be discussing the review’s recommendations after which the Council would provide its response to the annual review by the end of September.
42. Having not received this response, Ms B submitted the same complaint in January 2020 stating also that X had not been provided with any education since September 2019 and the ASD consultant’s recommendations had not been actioned.
43. The Council provided a response at stage 2 of its complaints procedure in early February 2020. This response:
• Accepted that the Council had not responded or taken any action following the June 2019 annual review. The Council said this would be provided immediately;
• Accepted that it had failed to take action following the September 2019 complaint about this;
• Partially upheld the complaint about lack of education since September 2019 stating that attempts had been made to help X re-engage with school and when these were not successful they asked the ASD consultant to complete the November assessment; and
• Upheld the complaint that the ASD consultant’s recommendations were not actioned. The Council agreed that the SEN would set up the home tuition the ASD consultant had recommended urgently.
44. When the agreed actions were not completed by early March Ms B submitted a further complaint for consideration at stage 3 of the complaints procedure. In this complaint Ms B stated that she wanted to appeal against the placement named in the EHC plan following the June 2019 and had been prevented from doing so by the failure to issue a decision and therefore a right of appeal. The Council says it agreed the stage 3 statement of complaint with Ms B in late March.
45. The Council provided a response at stage 3 of the complaints procedure in early May 2020. This response stated:
• The annual review paperwork was sent out in March 2020;
• The Council had contacted a tuition service to provide the 10 hours tuition and chased this up in late April;
• The Council would be willing to consider paying for a gym membership for X if Ms B could provide costing details for this;
• Stated that there were a large number of cases awaiting work so progress was delayed in relation to the actions agreed at stage 2 in February and said that more staff had been employed in the SEN team. The officer offered a further apology for this;
• Advised that Ms B should complain to the school about the home tuition it offered to provide as the Council would expect the School to arrange a qualified teacher to provide this under its own budget; and
• That the council would usually identify and liaise with tutoring services before contacting parents about this and that this was being conducted at the time of her letter.

Was the Council at fault and has any fault caused injustice?

46. The Council says that its SEN Service took the view that the CAMHS team had not described X as being too unwell to attend school in September 2019 so it attempted to work with the school and family to provide a bespoke package, involving onsite attendance. It says that in hindsight it may have been better for the school to have referred to the Inclusion Service team responsible for pupils who are too ill to attend school. I note this.
47. In September and October the school tried to find ways to provide X with education by providing learning support staff to provide education at home and by offering reintegration using its in-school provision to try to reintegrate pupils who were not attending. When the Council recognised this was not effective in providing X with education, it asked an ASD consultant to assess and recommend how to best provide X with education. I am satisfied that the Council was therefore fully aware of the difficulty the school was having in making suitable provision to X from November and that it was aware of the ASD consultant’s recommendations from then. I therefore consider that from that time the Council should have ensured that the provision was in place from after Christmas which is what the ASD consultant recommended. It did not do this and in fact it was not until April that it started seeking suitable tuition and it was not in place until May. I therefore consider that the Council failed to make adequate provision for X’s educational needs from January 2020. This caused X injustice as she did not receive suitable education from then. As Ms B had a right of appeal to the SEN Tribunal from March 2020 I am unable to consider provision after that date. I therefore consider that the Council was at fault for making education provision for X between January and March 2020. This caused X injustice in the form of missed provision.
48. I am not able to consider what provision was put in place from May 2020 as it is clear that Ms B had a right of appeal to the SEN Tribunal from March and she did appeal about the provision and the school named in June. As this is the case I am unable to consider this part of the complaint further.
49. Much of the provision detailed in the EHC plan does relate to being provided in a school environment so much of this was inevitably not provided when X was not at school. It seems she did continue to receive ELSA support and the Council also says she received some OT support though Ms B says this was not the case. With regards to the OT support, based on Ms B’s comments to me this has not been provided since 2017 when X decided she did not wish to engage with this. From our perspective, any complaint dating back to 2017 would not be a matter we would pursue as we will usually only consider matters the complainant becomes aware of within 12 months of the complaint being made to us and, in any case, Ms B has not complained to us about this provision having not been in place from 2017. The EHC plan in place in September 2019 stated X had 6 of 12 direct OT sessions left by April 2018. I am unclear whether X was willing to engage with an OT in the Autumn term of 2019 but it seems possible that she was not given she was too unwell to attend school for most of that term and the rest of the OT provision in the EHCP relates to provision by school staff which could not be provided when she was not attending. I have seen no evidence to suggest that X had reached a point where she as able to re-engage with the OT in 2019. It is certainly the case that X was attending school to see the ELSA in the Autumn term but I have not seen evidence of any ELSA provision having been made in the Spring term in 2020 so I conclude it seems likely this was not in place to any great extent, if at all, during this period.
50. The Council significantly delayed in issuing the annual review decision between the meeting that took place in June 2019 and issuing the decision in March 2020. It should have been issued by July 2020 there was a delay of eight months and this was only then issued after Ms B had chased the Council with three complaints and she had issued a threat to judicially review the Council about this. This amounts to fault. Ms B is clear that she was likely to want to appeal to the SEN Tribunal about the provision named and the content of the plan following the annual review so her opportunity to do this was also significantly delayed. I am satisfied that the delay caused Ms B avoidable frustration and uncertainty.
51. The handling of Ms B’s complaint was poor. It did not complete the action it agreed to take in the response it provided to her first complaint in September. In order to follow up this lack of action she complained again in January. This was then responded to quite promptly at stage 2 of the complaints procedure but then none of the agreed action was taken again requiring her to pursue the complaint again in March. The response at stage 3 took two months to be provided from the time she submitted it. This response demonstrated further that no real action had been taken to follow up on the provision of home tuition until she chased it up again with her further complaint in March even though the response provided in early February said this would be sorted out. The response at stage 3 also wrongly told her that she should complain to the school about the home tuition when the responsibility for ensuring provision was made rested with the Council as it was fully aware that education was not being provided and has a duty under section 19 to ensure that it was. It was for the Council to pursue any issue it had with the school and not for Ms B. It was for the Council to ensure that provision was made. These failings in the complaints handling process amount to fault which caused Ms B injustice in the form of avoidable time and trouble and frustration.

Agreed action

52. Within one month of the final decision on this complaint the Council will:
• formally apologise to Ms B for the identified faults;
• pay Ms B £250 to recognise the significant time and trouble and frustration she was caused in having to repeatedly pursue her complaint the Council;
• pay Ms B £1500 to recognise the failure to make any educational or special educational needs provision between January and March 2020 to acknowledge the significant impact of this on X. This is a payment to recognise two and half months of non-provision and is at the top of our scale for such payments and this is because the failure to make provision was at a significant time in X’s schooling (GCSE learning), no provision was made at all and I cannot now recommend any additional provision now to make up for this loss; and
• pay Ms B £250 to recognise the injustice caused in the form of avoidable frustration and uncertainty by the delay in issuing the annual review decision.
53. Within three months of the final decision on this complaint the Council will:
• provide details of the action it has taken to address delays in processing annual reviews to ensure such delays do not continue to occur and say how this has been implemented; and
• provide details of how it monitors how children with EHC plans not attending school are accessing education and ensures that effective action is taken to deal with this promptly meeting its statutory requirement under Section 19 to ensure that education provision is being made. It will also say what action it takes to effectively resolve situations where a school is not providing adequate home tuition given it is ultimately the Council’s responsibility to ensure the provision is in place. If no such arrangements are currently in place it will confirm it will put in place a process for this and provide details of this process and how it will work.
54. The Council has already confirmed that, as a result of this complaint, the Children’s Services Complaints Team and the Information Governance Team have put in place processes to ensure that they monitor agreed action more closely by more proactively ensuring that the manager who agrees to take the action follows this up by ensuring it happens.

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Final decision

55. The Council was at fault in failing to ensure education and special education provision was made for X between January and March 2020, in delaying issuing the decision of the annual review that took place in June 2019 by eight months and in its poor handling of Ms B’s complaint from September 2019. The council will take the agreed action to recognise the injustice this caused and to ensure that such faults do not occur in future.

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Investigator's decision on behalf of the Ombudsman