Summary: Miss X complained the Council delayed amending her son, C’s, Education Health and Care plan and failed to provide alternative education after C could not attend school. The Council accepted it was responsible for faults in the EHC review process and delays in providing C with a suitable education. The Council provided a suitable remedy for C’s missed education and the impact on Miss X. However, it failed to provide a remedy for C’s distress. It agreed to apologise to C and fund a suitable gift to recognise the impact on him.

The complaint

1. Miss X complained the Council delayed amending her son, C’s, Education Health and Care (EHC) plan after a review in September 2019 and failed to provide alternative education after C could not attend school between February 2020 and June 2021. As a result, she said C missed a long period of education, causing him increased anxiety, and Miss X suffered significant worry and distress. She wanted the Council to recognise these failures in a meaningful way and ensure it sticks to the legal timescales in future.

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What I have investigated

2. I have investigated:
• the Council’s actions following the review of C’s EHC plan in September 2019; and
• how the Council secured the provision in C’s EHC plan between February 2020 and January 2021.
3. The final section of this statement contains my reasons for not investigating the rest of the complaint.

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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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
7. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
8. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the SEND Tribunal in this decision statement.
9. 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”.
10. 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

11. I considered the information Miss X provided and discussed the complaint with her.
12. I considered the Council’s comments on the complaint and the supporting information it provided.
13. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
14. 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

EHC plans and reviews

15. 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.
16. The Council is responsible for making sure that arrangements named 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.
17. Councils should review EHC plans yearly. For children who attend school, councils can ask the school to carry out the review on their behalf. Once a review is complete, councils should:
• decide whether to continue, amend or end the plan and tell the child’s parent(s) of their decision within four weeks;
• send any amendments it proposes to make to the child’s parent(s) and invite them to comment; and
• issue a final plan within eight weeks of sending the notice of proposed amendments.
18. EHC plans during the COVID-19 pandemic
19. Between 1 May and 31 July, councils were no longer required to ‘secure’ the provision named in EHC plans. Instead, councils had to make ‘reasonable endeavours’ to arrange the support set out in EHC plans.
20. The Government issued guidance to councils on how to assess children with EHC plans, decide what provision could be made for them safely at home or whether they should continue to attend school. The guidance said councils and schools should assess the risks to children with EHC plans and consider the impact on them of missing some or all the provision in their EHC plans if not all of this could be delivered outside school.

Alternative provision

21. Councils must make suitable arrangements to educate children of compulsory school age who are absent from school because of illness, exclusion or otherwise.
22. For children absent for health reasons, government guidance says councils should arrange such education as soon as it is clear a child will be absent for more than 15 days.

What happened

23. Miss X’s son, C, has special educational needs and had an Education Health and Care (EHC) plan issued by the Council in December 2018. This plan said C needed:
• opportunities to practice his communication skills in a small group setting, with advice from a Speech and Language Therapist;
• an individual literacy programme;
• visual prompts, a distraction free environment and changes/breaks between tasks;
• structure to develop his social skills in small groups; and
• a personalised timetable.

September 2019 – March 2020

24. In 2019, C attended primary school and was due to transfer to secondary school in September 2020. To prepare for this move, C’s primary school reviewed C’s EHC plan in September 2019. However, the Council did not tell Miss X about the changes it proposed to make to C’s EHC plan following the review.
25. Following an incident at school in late January 2020, the school told Miss X she should keep C at home. Miss X said the school did not tell her when C could return to school, although the evidence suggests the school expected C to return after the February half-term.
26. After the half term holiday, Miss X told the school that she would not be sending C to school because he was being bullied and school was affecting his mental health.

March 2020 – June 2020

27. In early March, C’s school closed due to the COVID-19 pandemic. It provided pupils, including C, with remote learning and said it made regular visits to check on their welfare. During the pandemic, Miss X and C were shielding and Miss X said the school did not visit C.
28. C’s school completed a risk assessment to decide how being out of school during the pandemic might affect him. It identified there was a risk C would not engage with the remote learning provided, although he was completing some of the assignments. The assessment also noted that:
• the group work named in C’s EHC plan could not be delivered outside of school;
• the other therapy named in his EHC plan was being provided; and
• Miss X had declined help from the behaviour support service.
29. The Council said that, since Miss X and C did not want him to attend school during that time, it made ‘reasonable endeavours’ to deliver the provision named in his EHC plan during the pandemic though his existing school.
30. C’s school began to re-open to pupils in June 2020. However, C could not attend because of his anxiety, which the lockdown restrictions made worse. Around this time, the Council sent a final amended EHC plan to Miss X. This plan said that C should attend a mainstream secondary school from September 2020.

July 2020 – September 2020

31. Miss X complained to the Council in early July 2020. She told the Council:
• it had taken too long to amend C’s EHC plan and had not sent her a draft plan for her to comment on; and
• the primary school had failed to deliver the provision in C’s EHC plan and had excluded him in January 2020.
32. Around the same time, Miss X also told the Council:
• C could no longer attend school and had not attended school since February 2020;
• C would not be able to go to the planned secondary school in September; and
• she wanted the Council to provide education for C outside of school.
33. In its response to Miss X’s complaint, the Council accepted:
• it had failed to tell Miss X about its decision following the September 2019 review;
• it had failed to send Miss X a draft plan or seek her comments before sending a final plan to her in June 2020; and
• it had taken too long to issue the amended plan.
34. The Council apologised to Miss X for the delays and issued a draft EHC plan to seek her views before producing a final EHC plan.

September 2020 – January 2021

35. Although C was due to start secondary school in September 2020, Miss X said he could not do so because of his anxiety.
36. The Council refused Miss X’s request for education otherwise than at school in November 2020. It issued a final EHC plan in January 2021 which named the mainstream secondary school it had named in June 2020. Miss X appealed to the SEND Tribunal about the named school and the provision in the EHC plan.

Miss X’s complaint to the Ombudsman

37. Miss X complained to the Ombudsman in April 2021 that:
• the school illegally excluded C in January 2020;
• C had not had a suitable education between February and June 2021;
• she had to educate C during that time, including paying for equipment;
• the Council delayed amending C’s EHC plan; and
• the Council had rejected her request for home education.
38. In response to Miss X’s complaint to the Ombudsman, the Council reviewed its responses to her earlier complaints. It decided while it had upheld much of her complaints, it had not provided a suitable remedy. The Council offered Miss X:
• £4,260 for the education C missed between September 2020 and June 2021, when it agreed to a home education package;
• £300 for the distress caused to Miss X by the delays in amending C’s EHC plan; and
• £300 for the time and trouble Miss X was put to in complaining.
39. Miss X accepted the Council’s offer which the Council paid by cheque. However, this cheque was returned by Miss X’s bank.
40. Miss X told the Council about the problem with the cheque on a Saturday. The Council investigated the problem the following week and identified another two cheques which the Council’s bank had wrongly returned. The Council contacted its bank, which confirmed the cheques had been signed correctly but the bank had wrongly rejected them.
41. The Council arranged with Miss X to pay her the agreed amount by bank transfer, which it did the following Tuesday (10 days after Miss X told the Council about the problem). It also took steps to ensure its bank would not repeat the error.

My findings

Delays after September 2019 review

42. The Council accepted several faults with how it reviewed and amended C’s EHC plan. This included:
• not chasing the school when it failed to send the Council the review paperwork;
• not telling Miss X that it intended to amend C’s EHC plan; and
• sending Miss X a final EHC plan in June 2020, without first sending a draft plan.
43. The Council apologised to Miss X for the distress and frustration this caused her, paid Miss X a financial remedy and amended its ‘service action plan’ to improve communication with parents.
44. The remedy the Council provided for Miss X’s distress is in line with our Guidance on Remedies. Considering the distress caused to Miss X and the time over which this was caused, I am satisfied the remedy already provided by the Council is suitable.

Provision during lockdown

45. I have considered the action the Council took to provide everything named in C’s EHC plan during the COVID-19 lockdown. I cannot consider the actions of the school in providing C’s education or when it told Miss X to keep him at home in January 2020.
46. The evidence shows the Council worked with C’s school to assess the risks to him of not providing all the elements of his EHC plan. The school noted C was completing some of the work which it was providing, and the group work was not possible due to the lockdown and because Miss X and C were shielding at home. C’s school provided remote education and said it made weekly visits to check on C’s welfare. Although Miss X disputes the school visited, the evidence shows this is what the school told the Council and I cannot investigate the schools actions when making welfare visits.
47. Although C did not receive all the provision in his EHC plan during the lockdown period, I am satisfied the Council made ‘reasonable endeavours’ to provide C’s special education during that time. It is unlikely the Council would have been able to arrange an alternative at the time.
48. When the Council became aware that C could not return to school in early July 2020 because of his anxiety, there were only a few weeks left until the summer holidays. Therefore, it would have been impractical for the Council to arrange any alternative education for C before the start of the summer holidays.

Missed education between September 2020 and January 2021

49. For the reasons given at the end of this statement, I can only consider any missed education before the Council issued C’s amended EHC plan in January 2021.
50. The Council has accepted it should have agreed to Miss X’s request for home based education sooner and that C was out of education between September 2020 and June 2021. It has paid Miss X £4,260 for the 33 weeks of education C missed between those dates, after taking into account school holidays.
51. This works out as £140 a week for missed education, which is in line with our Guidance on Remedies. I am satisfied the amount the Council paid Miss X includes a suitable remedy for the education C missed between September 2020 and January 2021.
52. I am also satisfied the £600 the Council paid Miss X for her distress and time and trouble is a suitable remedy for the effects on Miss X.
53. However, the Council has not properly considered the emotional and personal impact on C. Given C’s age, the needs identified in his EHC plan, the amount of education he missed and that this was an important stage of his education, the Council should apologise to C directly and should provide a suitable remedy to recognise the distress caused by the delays to his secondary education.

Problems with payment to Miss X

54. The evidence shows the problem with the Council’s first attempt at making the remedy payment was due to errors by the Council’s bank, not the Council. After Miss X told the Council about the problem, it made the payment by an alternative method within 10 days and took steps to ensure this would not happen again. While the delay clearly added to Miss X’s frustrations, I am satisfied the Council did not cause the delay.
55. Miss X said the Council should not have at first offered to pay her by cheque and that she found it difficult to visit the bank to pay this in. It was open to Miss X to ask the Council for an alternative payment method.

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Agreed action

56. Within one month of my final decision the Council will:
• apologise to C, in a way that meets C’s individual needs, for the delays in arranging his secondary education; and
• pay Miss X £100 to fund a meaningful gift or other remedy for C to apologise for the distress caused by the delays to his secondary education.

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Final decision

57. I have completed my investigation. The Council accepted it was responsible for faults in the EHC review process and delays in providing C with a suitable education. It provided a suitable remedy for C’s missed education and the impact on Miss X. However, it failed to provide a remedy for C’s distress. It agreed to apologise to C and fund a suitable gift to recognise the impact on him.

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Parts of the complaint that I did not investigate

58. I have not investigated how C’s school told Miss X to keep him at home or the education it provided. We cannot investigate complaints about what happens in schools.
59. I have also not investigated matters related to the content of C’s EHC plan or any missed education from January 2021. The courts have said we cannot investigate anything someone has appealed to the SEND tribunal about or any injustice caused by those matters. Miss X appealed C’s January 2021 EHC plan, including which school C should attend, to the SEND tribunal, so I cannot consider any education C missed after this because it is related to the matters Miss X appealed about.

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Investigator's decision on behalf of the Ombudsman