Summary: Mrs P said the Council failed to implement her son’s special educational needs provision as set out in his Education, Health and Care Plan. She also said it failed to ensure his School properly fulfilled his transition plan, and its complaints response had errors and omissions. We found the Council failed to properly investigate and respond to Mrs P’s complaint. It also failed to show it had properly considered her son’s needs for a suitable designated safe space within the School’s new building. The Council agreed to apologise to Mrs P and make payment for the distress its faults caused.

The complaint

1. The complainant, whom I shall refer to as Mrs P, complained about the Council’s handling of the special educational provision for her son. She said the Council failed to:
• adhere to a tribunal order to implement and provide the provision set out in her son’s Education, Health and Care Plan (EHC Plan);
• ensure her son’s School fulfilled the transition plan as set out in his EHC Plan;
• properly consider her concerns, and its complaint response contained errors and omissions.
2. As a result, Mrs P said her son experienced an educational disadvantage and made his anxiety worse. She also said she experienced distress, uncertainty and had time and trouble to bring her concerns to the Council’s attention.

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The Ombudsman’s role and powers

3. 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)
4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
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. As part of my investigation, I have:
• considered Mrs P’s complaint and the Council’s responses;
• discussed the complaint with Mrs P and considered the information she provided, including her son’s EHC Plan;
• considered the information the Council provided in response to my enquiries; and
• considered the relevant law and Council Policy.
8. Mrs P and the Council had an opportunity to comment on my draft decisions. I considered any comments received before making a final decision.

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What I found

Education, Health and Care Plan (EHC Plan)

9. A child or young person with special educational needs may have an EHC Plan. This sets out the young person’s needs and what arrangements should be made to meet them. This can include the support needed in school.
10. Local authorities are responsible for making sure arrangements for educational and social care provision specified in the EHC plan are put in place.
11. The statutory process for assessing, producing, and reviewing EHC plans is set out in the SEND code of practice. It states the timescales for each part of the process which councils must keep to.

Council’s complaints procedure for EHC Plans

12. The Council has a separate procedure for complaints about EHC Plans (the Complaints Procedure). This includes complaints where parents feel the provision is not being made as set out in a child’s existing EHC Plan.
13. The Complaint Procedure says the Council will investigate complaints by undertaking a Section F Provision Checklist which evaluates whether provision is in place as set out in an EHC Plan, and how the relevant school is delivering this.
14. If provision is found to be lacking, this will be set out in the Checklist. It will send a covering letter to a complainant to explain what will be done to issues and the timescales for doing so.

What happened

15. Mrs P’s son (Child X) has a diagnosis of autism spectrum disorder (ASD) with severe anxiety. He experienced bullying in primary school which affected his anxiety, school attendance and trust in adults.
16. Since 2018 Mrs P and Child X have worked with several professionals to transition him back into a school environment to ensure he receives a suitable education. These included teachers from Education Support for Medical Absence (ESMA), a Child & Adolescent Psychiatrist, and therapeutic counselling.
17. In 2019 Mrs P applied for an EHC Plan for Child X to ensure he received the support he needed to meet his special educational needs (SEN) as identified by the professionals.
18. In late 2019 the Council issued Child X’s EHC Plan. However, Mrs P found the provision set out in the plan to be unsuitable and uncosted. So, she appealed to the Tribunal.
19. In summer 2020, the Tribunal made an order which set out what the Council should include in Child X’s EHC Plan.
20. The Council issued a new EHC Plan in summer 2020.
21. Child X returned to School in the Autumn of 2020 for 3 hours daily.
22. In Spring 2021 the School moved to a new building, which had been planned for some time.

Child X’s EHC Plan

23. Child X’s EHC Plan set out his special educational needs and the outcomes which it aimed to achieve for him. The key aims were to support him to transition back into school and a class-based environment, which included engaging with other peers and forming friendships.
24. Section F of the EHC Plan set out the individuals involved in putting the provision into practice. This included:
• special support assistant (SSA) who were trained and experienced in working with pupils impacted by ASD, anxiety, cognition and learning difficulties. This should be at least 25 hours of support;
• the School’s Special Educational Needs Coordinator (SENCo) should oversee the provision provided within the School to Child X by the class teacher and SSA;
• the Council’s Specialist Advisory Teacher (SAT) should ensure the School staff delivered the support set out in the EHC Plan. This included visiting the School every fortnight to review the provision provided and Child X’s progress. This should be until he attended class-based lessons after which the reviews would be half termly with fortnightly follow up calls to the School;
• a Speech and Language Therapist (SALT) should model sessions and provide training to the School staff; and
• a transition plan to reintroduce Child X into the school and class environment. The plan and barriers should initially be reviewed fortnightly in meetings between Mrs P, the School and the SAT.
25. Section F also set out the specific interventions and activities needed in the School to progress Child X’s learning and development. This included Lego Therapy sessions, News time, Social Stories and a buddy system. These should be with adults first, and then include other peers when Child X was ready for this.
26. The EHC Plan makes it clear Child X needed a structured and predictable daily routine with regular opportunities to take breaks and engage in activities he was comfortable with. This included having access to a designated safe space and a key adult who could support him, when he needed this, to deal with his anxiety.
27. The EHC Plan also made references to how Child X’s transfer to the School’s new building should be considered.

Mrs P’s complaint

28. Mrs P was not satisfied with how the School and the Council delivered Child X’s EHC plan and the agreed provision. She complained to the Council:
• the SAT’s visits to the School were not taking place as often as required, and no visits took place between January and March 2021;
• it was not clear how the SAT was providing targets and training for School staff. She also said the Council wrongly wanted to reduce the SAT’s involvement going forward;
• the Transition Review meetings were taking place every 3-4 weeks, and not fortnightly as required. She also said the duration of the meetings had been reduced to 45 minutes which was not enough to address the barriers and issues identified;
• it used to chair the Transition Review meetings, but it had wrongly ceded this to the School. She also said the SAT did not provide enough input and let the School do its own plans;
• the Transition Review meetings were not resolving identified barriers as set out in the EHC Plan, and she was wrongly asked to put her concerns in writing to the School after the meetings;
• interventions for Child X to work with peers did not take place as needed;
• Child X’s move to the School’s new building was handled poorly. This was because he was not giving enough opportunity to view it before the move and the plans changed;
• Child X had wrongly been timetabled for 24 different rooms. This failed to consider the SAT’s and external professionals’ advice to limit the number of rooms Child X used. It also failed to consider Mrs P’s and Child X’s view; and
• Child X did not have a suitable designated safe space in the School’s new building. She said the open plan area would not meet his needs.
29. The Council acknowledged Mrs P’s complaint. It also sent her a letter when it was unable to respond to her complaint within the deadlines set out in its Policy, and apologised.
30. In June 2021 the Council responded to Mrs P’s complaint. It said it had completed its Section F Checklist with the School to assess if Child X had been provided with the provision set out in his EHC Plan. It found it and the School had delivered the provision as required. It told her if she remained unhappy, she could complain to the Ombudsman.
31. Mrs P was not happy with how the Council had considered her concerns. She also said it had not offered her a stage two review of her complaint before signposting her to the Ombudsman. And so, she asked the Council to reconsider her complaint. She said it:
• had not addressed her complaint concerns, there were errors in its Checklist and it had not considered parts of the EHC Plan’s Section F;
• failed to give her a complaint reference number and another Officer who did not do the investigation signed off the investigation;
• failed to make it clear what complaint process it had used and it had not given her the choice of a stage two review; and
• failed to explain why it did not respond within the expected timeframe.
32. In response the Council did not change its view. It found it had properly investigated and responded to her complaint. It explained:
• a reference number was not required but its acknowledgement did provide one;
• its Officer investigated her complaint, but its Area SEND Team Manager signed it off;
• it had explained what complaint process was used and this was clear; and
• there was no statutory time limit to respond to her complaint, but it responded within the 25 working days as set out in its policy.
33. Mrs P remains unhappy with the Council’s complaint response and how it has handled Child X’s EHC Plan provision. She asked the Ombudsman to consider her concerns.
34. Mrs P has since said there are ongoing issues with the School and the Council. She also said she believes the SAT is now not visiting the School as often as required in the EHC Plan.

Analysis

Complaint’s handling

35. The Council investigated Mrs P’s complaint under its EHCP Complaint Procedure. Its responses to her shows it acknowledged her complaint, sent her a holding letter when it was unable to respond within the deadlines set out in the Policy, and provided her with a response. Although there was a slight delay, its response was as set out in its policy, and it was therefore not at fault.
36. The Council’s complaint response to Mrs P contained a brief cover letter and its Section F Checklist. I have reviewed the response and compared this with Child X’s EHC Plan. This shows there were errors in the Checklist and sections had been renumbered in error. As a result, a large part of Child X’s EHP Plan was not included in the Checklist.
37. I have also considered the Council’s use of a Checklist to respond to Mrs P’s complaint. While it is acceptable for a Council to use a Checklist procedure to assess if Child X’s EHC Plan provision had been provided by the School, it also needed to consider and respond to Mrs P’s specific concerns. This included the Council’s own handling of Child’s EHC Plan provision and the Transition Plan.
38. I found the Council had not properly considered and responded to Mrs P’s concerns. This is because its Section F Checklist only confirmed the School and the Council’s view Child X’s provision had been delivered as a tick box exercise. It may well be the Council and the School properly considered Child X provision and Mrs P’s concerns. However, the Checklist and the cover letter did not show this, and it therefore failed to give her a proper response to her concerns. It also failed to respond to Mrs P’s concerns about the Council’s own handing of the EHC Plan Provision and the Transition Plan. This is fault.

EHC Plan provision

39. The Transition Review Meetings were a key part of Child X’s EHC Plan. These were held to ensure Mrs P’s and Child X’s views were considered and any issues or barriers were address promptly.
40. I acknowledge the Transition Review Meetings were challenging for all parties as there were disagreement on Child X’s progress, and how to resolve barriers and concerns identified. However, I have not found the Council at fault for its handling of these meetings. In reaching my view I am conscious:
• the EHC Plan said these should initially be fortnightly, and thereafter could be held half termly. The Council and School found it was appropriate to have less frequent meetings. It considered Mrs P’s view to continue fortnightly meetings, but disagreed it was needed. As this is in line with the EHC Plan and it considered her view, I cannot criticise the decision it reached;
• the EHC Plan did not specify the required length of meetings;
• it may not always be possible to address barriers, or agree on how such barriers should be addressed in a meeting. I therefore find it acceptable and common for such concerns to be put in writing for the School to consider;
• Mrs P felt the SAT was passive and did not offer enough input in the meetings. I have reviewed the minutes of several meetings and I disagree with this view. The SAT provided suggestions, actions and updates when this was felt appropriate;
• Transition Review Meetings are often chaired by a school due to its detailed knowledge of the child. However, in circumstances where the relationship between a school and parents have broken down, it may be best practice for a Council to take this role. While, Mrs P and the School had their disagreements, I have not seen enough evidence the relationship had broken down, and it was necessary for the Council to continue chairing the meetings; and
• the EHC Plan and Transition Plan does not require minutes to be agreed after each meeting. I understand the Council provided draft minutes to Mrs P when it chaired the meeting, but there was no requirement to do so, or continue to do so.
41. The EHC Plan says the Council’s SAT should visit the School fortnightly to review Child X’s progress, the School’s provision and any identified training to School staff. The evidence available showed the SAT visited the School, reviewed progress, helped develop a Risk Assessment, and provided training to staff. This also happened during the January to March 2021 COVID-19 lockdown, which was conducted remotely due to Government guidance. However, the Council only reviewed Child X’s progress on three occasions during this period, which is half of what was required in his EHC Plan. This was fault.
42. In addition, Mrs P believes the SAT’s visits to the School has since become half-termly or less. This is outside the period I am considering, and she may wish to bring such concerns to the Council’s attention. However, if this is the case this may be fault, as the EHC Plan says this should first happen when Child X is receiving class-based teaching.
43. I understand Mrs P’s concerns about Child X’s progress and exposure to peers as set out in his EHC plan. It is clear all of his provision was with adults until Spring 2021, with no exposure to other peers. However, I have not found the Council at fault on this matter. This is because the concerns were considered in the Transition Review Meetings and Mrs P raised her concerns. It is not my role to make a finding of what would have been appropriate. This is the role of the School and the adults around him who are best placed to make such decisions. This may at times mean outcomes in a child’s EHC Plan may not be achieved without the School or a Council being at fault. In this case, Child X’s needs, the Covid-19 lockdown and the School’s move were factors which I found likely to be the main reasons for this delay.
44. However, going forward there is a clear expectation in Child X’s EHC Plan for him to be exposed to and work with other peers.

EHC Plan Provision (new school building)

45. The School, Council and Mrs P all knew the School would be moving to a new building in Spring 2021. This was also considered in Child X’s EHC Plan.
46. The key consideration was to ensure the move to the new building had as little impact on Child X as possible. It was therefore necessary to ensure he had the opportunity to view the building, have his concerns considered, and a structured plan agreed.
47. The preparation of the move caused some difficulties for Child X and the School as some parts of its building was being closed off in preparation for the move. This included his designated safe space and the rooms he was used to. The evidence available shows Child X’s exposure to the library area was increased to accommodate this and to build his resilience. He had support from his key adult and the plans were discussed in the Transition Review Meetings. Child X also had the opportunity to raise his view. I therefore found this part the move was handled appropriately and had little impact on Child X.
48. The EHC Plan set out Child X should have a good opportunity to view the new building to reduce his anxiety about the move. The School shared the times when he could visit, which Mrs P found to be insufficient. I have not found fault by the Council. This is because this matter was entirely outside its control. The reasons Child X could not visit the building more, was due to safety issues as building works were ongoing, and the impact it would have on him with too many other peers in the building at the same time.
49. When Child X moved to the new School building it did not go as planned. This was because some building works had not been completed. The School therefore had to provide a new timetable for Child X with short notice which included the use of 24 rooms. It is clear this was far in excess of the number of rooms the SAT and external professionals had recommended.
50. I acknowledge Mrs P’s view this should not have happened. However, the Council became aware of the issue and raised the concerns with the School. It was told, due to the building works, it was not possible to limit the number of rooms further for a limited period of time. The School also explained how it intended to support Child X during the period. I cannot fault the Council for circumstances outside its control such as delayed building works. It reassured itself the impact was for a limited period of time and shared the information with Mrs P.
51. However, the School’s new building’s layout was very different to what Child X had been used to. It was therefore even more important he had a designated safe space he felt comfortable in. The information shows his safe space within the new building was in an open plan area which can be cordoned off. I am not satisfied the School or the Council properly considered the impact an open plan safe space would have on Child X, or indeed other peers with similar SEN. In particular, as Child X’s EHC Plan makes it clear such an area is not suitable due to his needs. Nor, have I seen enough evidence Child X’s or Mrs P’s views were properly considered. This is fault.
52. However, Child X has since moved to the new School building. My understanding is he is managing and have overcome any anxiety he may have had about the designated safe space.

Injustice

53. I found the Council failed to properly investigate Mrs P’s complaint. This was because its Section F Checklist contained errors and omitted a large section of Child X’s EHC Plan. It also failed to properly respond to her concerns as its response did not address her specific concerns. This included the SAT’s failure to review Child X’s progress through school visits as often as set out in his EHC Plan between January and March 2021.
54. I found Mrs P experienced distress due to the uncertainty this caused. She also had time and trouble to get the Council to properly respond to her concerns, including to bring her concerns to the Ombudsman’s attention.
55. I also found the Council failed to properly consider Mrs P’s concerns about Child X’s designated safe space with the School’s new building. I am satisfied this caused her some distress due to the uncertainty about how this may impact Child X.
56. While Child X has experienced a difficult time and this would at times have worsened his anxiety, I have not found the Council’s faults caused this.
57. I also understand Child X has managed the transition to the School’s new building and now has a designated safe space. However, any issues following the restart of the new school year is outside the remit of this investigation.

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Agreed action

58. To remedy the injustice the Council caused to Mrs P, the Council should, within one month of the final decision:
1. apologise in writing to Mrs P, and pay her £250 for the distress the uncertainty its failure to properly investigate and respond to her concerns caused; and
2. pay Mrs P an additional £100 for the time and trouble she had to bring her concerns to the Council’s and Ombudsman’s attention.
3. provide Mrs P with:
1. a Section F Checklist response which sets out and considers Child X’s EHC Plan in full for the 2020/2021 academic year;
2. a covering letter which addresses her concerns about the School’s educational provision for Child X for the 2020/2021 academic year, and her concerns about the Council’s handling of ensuring his provision was delivered as set out in his EHC Plan; and
3. a remedy for Child X in line with the Ombudsman’s guidance on remedies, if the Council find his lack of progress toward the outcomes set out in his EHC Plan was due to the School or its failure to provide the agreed educational provision.
59. Within three months of the final decision the Council should also:
1.  
2.  
3.  
4. remind its staff to ensure complaints are investigated as set out in its Complaints Procedure for EHC Plans. This included providing complainants with a cover letter which addresses the concerns raised.

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Final decision

60. There was fault which caused an injustice. The Council has agreed to my recommendations, I have therefore completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman