The investigation

The complaint

1. Ms B complains that Dorset Council failed to meet her 11-year-old son’s, educational needs between February 2020 when he stopped attending school, and November 2021 when he began attending a special needs school. She also says it failed to meet his identified special educational needs between May 2020 when it issued an Education, Health and Care plan, and November 2021.

2. Ms B claims that her son missed educational provision and specialist support for his special educational needs. She says he became increasingly anxious about his schooling over the period he did not have a suitable school place and that she was unable to obtain paid employment or pursue other activities. She also says she was caused avoidable frustration and time and trouble by the Council’s poor handling of her enquiries and complaint about this.

Legal and administrative background

Our jurisdiction

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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. 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. 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 report.

6. 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 A to K. We cannot direct changes to sections B and F about education, or name a different school in section I. Only the SEND Tribunal can do this.

7. 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.

8. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.

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 report with Ofsted.

Impact of COVID-19

10. 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 “Principles of Good Administrative Practice during COVID-19”. The relevant legislation to this complaint:

• on 18 March the Department for Education announced that from

  23 March 2020 all schools were to remain closed until further notice, except for children of key workers and vulnerable children, as part of the country's ongoing response to coronavirus. Vulnerable children included those with EHC plans;

• on 30 April the Secretary of State for Education published a notice to modify the duty relating to EHC plans during the coronavirus outbreak, so that local authorities could discharge this by using their 'reasonable endeavours'. The notice applied from 1 May 2020 to 31 May 2020 which was extended to

  30 June 2020 and then extended again to 31 July 2020. So, councils should have considered what EHC plan provision they could make during the reasonable endeavours period and provided parents with a copy of their decision on this; and

• temporary regulations in force up to 25 September 2020 which allowed for the usual deadlines, such as for carrying out reviews and issuing EHC plans, to be relaxed. This applied where it was not reasonably practicable or it was impractical to complete the actions within the usual timescale required, for a reason relating to COVID-19. But the guidance made it clear that “if the final deadline …. had passed before 1 May, the relaxations to timescales for a reason relating to coronavirus …….could not apply because they were not in force then”.

The relevant law and guidance on education and special educational needs

11. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:

• the whole process from the point when an assessment is requested until the final EHC plan is issued must take no more than 20 weeks (unless certain specific circumstances apply); and

• councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.

12. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)

13. The procedure for reviewing and amending EHC plans is set out in legislation and the Code. The plan should be reviewed by the council and the school with the parents and/or the child at least once a year. Sometimes an early review may be requested if there is a need to amend a plan more urgently. For example, if a school placement has broken down. An EHC plan must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education, such as from primary to secondary education, to allow for planning for and, where necessary, commissioning of support and provision at the new institution. In these circumstances the review and any amendments must be completed by 15 February in the calendar year of the transfer at the latest.

14. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)

15. Where a council proposes to amend an EHC plan, the law says 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. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)

16. The Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)

17. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)

18. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.

19. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.

The Council’s procedures and arrangements

20. The Council has a published complaints procedure. It comprises an initial informal stage which seeks to resolve a complaint without the need to progress to the formal stage. It is designed to reach a quick resolution and if this is not possible the complaint proceeds to the formal stage where the team manager will provide a response in 20 working days of receipt up to a maximum of 60 working days where this is not achievable.

21. The Council uses an alternative education provider that we will refer to as Provider Z. The Council says Provider Z supports children and young people with complex needs including, for example, those with autism and Attention-Deficit- Hyperactivity-Disorder (ADHD).

How we considered this complaint

22. We produced this report after examining relevant documents, discussing the complaint with Ms B and making targeted enquiries of the Council.

23. We gave the complainant, Council and Provider Z a confidential draft of this report and invited their comments. We considered the comments before making our final decision.

What we found

Relevant background

24. Ms B’s son, C, is diagnosed with Attention-Deficit-Hyperactivity-Disorder and traits of Autistic Spectrum Condition. He is described as experiencing “…high levels of emotional and overall stress and…anxiety…” and has had an EHC plan since May 2020.

25. C was due to transfer from primary to secondary school in September 2021.

26. To meet C’s identified needs, provision detailed in section F of the May 2020 EHC plan included:

• a broad and balanced curriculum, including the national curriculum differentiated to ensure flexibility and ensure his academic and personal development was attended to;

• one to one support and an adapted curriculum to access learning;

• gradually building C’s ability to stay on task;

• imaginative and role play to gradually reduce stress and anxiety;

• closely supervised collaborative and turn-taking games; and

• a differentiated multi-sensory curriculum.

EHC Assessment

27. C’s school asked the Council to assess his education, health and care needs in December 2019. The Council agreed to do so. At this time C was nine years old and in the penultimate year of primary school.

28. The Council duly completed an assessment and issued a draft EHC plan in mid-April.

29. The Council issued and emailed the final plan to Ms B in early May 2020. It named C’s existing mainstream primary school as his school placement. The Council’s covering letter to Ms B told her of her right to appeal to the SEND Tribunal if she was unhappy with the assessment, content or provision detailed in the plan.

30. In late October 2020 the Council emailed Ms B a copy of C’s EHC plan. The email said the Council would also send her a copy of the plan in the post. It appears this was agreed because of a complaint Ms B submitted in October when she stated she had not been sent a copy of the plan yet. Ms B says she asked for copies of the EHC plan and letters to be sent to her by post as she is only able to access her emails on her phone and it is difficult to read large documents and long letters on a small screen.

Review of EHC plan

31. The Council says it does not have any documents relating to a transfer or annual review in late 2020 but says “…it appears a review has taken place as the EHC plan was amended…and consultations were issued…as part of the phase transfer process”. The Council issued a draft amended EHC plan in early February 2021. So, the Council assumes that a review took place because an amended plan was issued but there is no evidence of any annual review/transition review that led to that amended plan being issued in February 2021. Ms B is clear that she was not invited to an annual review for C and did not attend any meetings about C and his EHC plan. Staff at Provider Z do not recall attending any kind of review meeting for C when they were involved in late 2020.

32. The Council emailed the draft amended plan to Ms B in February. This draft did not name a school in section I but stated that Ms B could express a preference for the school she would like to be named in the final plan. However, the covering letter also emailed to Ms B states the Council intended to name the primary school where C remained on roll (though was not attending) until July 2021 unless Ms B requested otherwise and that it would name a new secondary school setting from September 2021 when that was agreed.

33. A final amended EHC plan was issued later in February 2021. This did not name any current educational provision for C in section I and said that provision from September 2021 would be in a specialist secondary school. The Council wrote to Ms B when it sent her this final amended plan. This letter provided her with details of how to appeal to the SEND Tribunal if she was unhappy with the plan. Ms B says she did not receive this as it was again emailed and not posted to her. In October 2021 Ms B complained that she had not received this and the Council then sent her a copy in the post.

Education provision

34. The Council says that C was on roll at his primary school from September 2019 to July 2021 and states that its records show that C was still attending the school in May 2020. The Council also says its officers believe C continued to attend until at least the end of the academic year in July 2020. The Council has not provided any evidence to substantiate its belief. Ms B says C stopped attending that school in February 2020 because the school was no longer able to manage him.

35. In an email to the Council in April 2020 the school said it did not want to be named as C’s provision in the EHC plan because he needed a more specialist placement. The Council says that in May 2020 it agreed to increase funding to enable the school to make EHC plan provision for C but also sent out a consultation to Q School (a special needs school) for a place from September 2020. The Council says it also consulted a second school which is a small mainstream secondary school. Both these schools responded saying they could not offer C a place.

36. In September 2020 C was due to move into the final year of primary school: Year 6.

37. Ms B emailed the Council in late August 2020 asking for clarification on what would be happening about C’s education from September. The headteacher of C’s primary school also emailed the Council’s SEN team around that time to say that it could not meet C’s needs and it was not an option for him to attend the school in September.

38. The Council emailed Ms B in early September 2020 stating it agreed that

C needed specialist provision either at Q School or another specialist school. The Council confirmed this would be discussed at a termly panel but that a panel date had not yet been identified. The Council said that in the meantime C would remain on roll at his primary school but, since both the school and Ms B felt the primary school was not suitable, alternative provision would be made with Provider Z and possibly a home tutor. Ms B replied asking for confirmation of when the alternative provision would be made. The Council replied saying the referral was being made and that officers hoped something would be arranged in September.

39. The Council emailed the primary school’s head teacher in late October confirming C would attend Provider Z from early November and that the school would be expected to use its funding for C to pay for this. Provider Z confirms the Council sent it a copy of C’s EHC plan in late October.

40. The Council confirms C was to attend Provider Z four hours three days a week and that it was also providing four hours tuition once a week. Ms B says tuition was not provided but that a mentoring service was in place for a short while around that time.

41. In December 2020 Provider Z sent the Council a report saying that C had been attending for four hours on four days a week. It said he had been spending time with animals, that he enjoyed creative activities such as model building and that his concentration span was short but was being helped by his love of arts and craft activities which he was happy to do for long periods of time. He was also trampolining and go-carting. He was described as being happy in the setting and was sociable, confident and happy when there.

42. Unfortunately, in January 2021 Provider Z emailed the Council to say " (C)…is extremely anxious and is likely to move to online from next week. His Mum has been invited to bring him when he will be the only one there - even if that is at the weekend - so that he can still visit the animals. At the moment he is too nervous to do this."

43. Provider Z says its last contact with the Council about C was in January 2021 when it invoiced the Council.

44. In its comments to us the Council says it accepts C’s placement at Provider Z was not very successful. It appears the placement broke down after C had attended for around 10 weeks between November 2020 and January 2021. There is no suggestion that any provision was made by Provider Z or any other service after January 2021.

45. The Council says that in February 2021 it again consulted Q School and at least six other independent special needs schools for a place for C from September 2021. It says that all these schools responded stating they could not offer C a place. Another school offered an assessment but in May 2021 told the Council it would not be able to offer a place.

46. The Council says that another special needs school, School P, offered an assessment in September 2021 and then offered C a place. We understand from Ms B that he started attending that school in November 2021. The Council says that it wanted to be certain School P was the right place for C before agreeing to the offer of a place there. This is why he did not start attending immediately the school offered a place.

Contact with SEN staff

47. In its comments the Council has confirmed there were six SEN Provision Leads responsible for C's EHC plan and provision between February 2020 and November 2021. The Council said it was not able to say whether Ms B was told about these changes but said that it was not standard practice to do this. It went on to say, however, that as C’s case was complex and given the “understandable stress and anxiety caused by him not having a school place” the Council should have ensured that Ms B was kept informed of staff changes.

Ms B’s complaint to the Council

48. Ms B complained to the Council several times between October 2020 and

June 2021. Ms B’s complaints during this period were consistent and focussed on the Council’s failure to:

• provide education from February 2020;

• respond to her emails about this;

• provide her with copies of EHC plans; and

• make adequate alternative educational provision.

49. The Council responded in October 2020, November 2020 and June 2021. The October response was provided promptly but Ms B was dissatisfied with it and asked to move to the next stage of the complaints procedure. Instead the Council says it arranged a meeting with Ms B in November. It considered this meeting resolved matters and closed the complaint. Ms B complained again in May and June reiterating the same concerns.

50. In its June response the Council accepted that its communication with Ms B had been poor and accepted that C had been out of school since February 2020. Ms B remained dissatisfied at the end of this process and complained to us.

Conclusions

Was the Council at fault?

51. From February 2020 to November 2021 very little suitable education provision was made to C. A limited amount of social and emotional support was made at Provider Z for a short period but otherwise no real education or special educational needs provision was made. This is fault. Specifically:

• we have been unable to determine exactly what provision was made between February and July 2020 but part of this period was affected by the COVID-19 pandemic. Ms B says C stopped attending in February because the school was struggling to manage his behaviour. The Council’s response to her complaint in June 2021 seems to accept C did not attend his primary school after February 2020;

• from May to July 2020, by which time C had an EHC plan, the Council had a duty to make provision using “reasonable endeavours”, because of the impact of COVID-19. There is no confirmation from the Council that it looked at C’s individual circumstances and considered whether it was possible to make EHC provision between May and July, or make any alternative arrangements. It is clearly recorded that the school was struggling to meet C’s needs by this time. On balance, though it did agree additional funding for the school, we find the Council has not provided any evidence to confirm that it considered what “reasonable endeavours” it could make to deliver the EHC plan provision for C from May to July 2020. This is fault;

• between September and November 2020 it is clear from emails that C did not attend school. In September the Council accepted that both the school and Ms B considered the school could not meet C’s needs. But no alternative provision was in place until November. Since Ms B and the school had been expressing concerns several months by then we consider the failure to make arrangements for suitable provision between September and November 2020 is fault;

• in November 2020 the Council says it arranged provision of four hours a week and later 16 hours a week at Provider Z. The email from Provider Z to the Council in January 2021 suggests that provision changed to online provision then. It says its only further communication with the Council about C was its invoice in January. This strongly implies the placement ended in January 2021. We find that some alternative provision was made to C between November 2020 and January 2021;

• the provision made by Provider Z may have met some of C’s defined social and emotional needs as detailed in his EHC plan but there is no evidence that any national curriculum or other academic work was completed by them. There is no suggestion that C was not academically capable of completing academic work. In fact, his EHC plan seems to confirm that he is academically able; and

• between February and October 2021 no education or special needs provision was being made to C. The Council accepts the provision at Provider Z was problematic and simply says that C was still on roll at his primary school though it was aware from September 2020 that the school had no intention of having him back. We conclude that no suitable education was provided to C between February and October 2021. This is fault.

52. Ms B says the Council failed to send her a copy of the draft plan or the final EHC plan in May 2020, failed to ask her to provide details of her preferred school for C and failed to name a school in section I of the EHC plan. The evidence suggests the Council did send a copy of the final plan to Ms B by email in May 2020 and a covering letter which detailed her right to appeal to the SEND Tribunal. However, it is also clear that Ms B did not receive this or was unable to access this email and she later asked for a hard copy when she complained in October 2020. We have not seen any evidence that Ms B told the Council that she needed it to post hard copies of documents to her before October 2020. Therefore there was no fault in the Council emailing her these documents in May 2020. However, it later failed to post documents related to the revised draft and final plans in early 2021 by which time it did know these should be posted. We therefore consider the failure to post documents at that time is fault.

53. The Council says that the EHC assessment process was delayed and attributes this to the COVID-19 national lockdown that started in March 2020. There was a delay of around four weeks in issuing the final EHC plan. However, we recognise that there were exceptional circumstances at that time and do not therefore consider this delay is fault.

54. We are concerned that there is no evidence of any review having taken place after the EHC plan was issued in May 2020. The Council says it has no paperwork to confirm that one took place, Ms B says she was not invited to a review and it is also clear that Provider Z was not invited to any reviews despite being the only service that had made any provision. On balance therefore we conclude none was arranged or took place. Despite this the Council issued an amended draft plan in February 2021. The review that should have taken place was a transfer review so its absence is especially significant. The failure to conduct a review is fault.

55. The final EHC plan issued in February 2021 named a type of school: a specialist secondary school from September 2021 but failed to name any school or type of provision between February and July 2021. The failure to name a school between February and July was appealable to the SEND tribunal. We have found fault in the Council’s failure to post the EHC plan documentation and correspondence to Ms B in February 2021 as she was not able to access these by email, we consequently consider that, even though it did email the documentation to Ms B, she was wrongly denied a right of appeal to the Tribunal. This is fault.

56. In its response to her complaint in June 2021 the Council accepted that its communication with Ms B had been poor. We agree and this is fault.

57. The Council accepted that there were frequent changes of staff who were dealing with C’s case. The Council has also accepted that it was not its usual procedure to advise parents of changes in staff but that in Ms B’s case it should have done so given the complexity of the case. We therefore consider its poor handling is fault.

58. The Council provided a response to Ms B’s first complaint reasonably promptly. She then asked for further consideration at stage 2 of the procedure but instead a meeting was arranged and the Council appears to have considered the matters were resolved in that meeting and emailed Ms B confirming this. It does not seem Ms B pursued the matter again at that time so we assume she was satisfied with that response. The fact that she complained again in 2021 about the same matters however suggests that whatever resolution was agreed was not effective and meant she had to start pursuing the same matters again to try to resolve the ongoing issues. Given there was no change to C’s situation between

November 2020 when the resolution was agreed and May 2021 when Ms B reiterated her complaint we conclude that any resolution or action agreed was not effectively put in place and conclude that this is fault.

Did the fault cause injustice?

59. The periods where no alternative education provision was in place for C meant he missed out on significant periods of education and special educational needs support. The provision made between November 2020 and January 2021 met some of his needs but failed to address his educational needs in terms of teaching according to the national curriculum.

60. The failure to post the draft and final EHC plans and documents to Ms B in February 2021 meant that Ms B lost the opportunity to provide comments, request a school or to appeal against the content or schools in section I in the final plan.

61. Ms B lost the opportunity to seek employment or pursue other activities that she would reasonably have been expected to because of C being at home during the period when suitable education was not made.

62. Both C and Ms B were caused avoidable stress and anxiety because of the delays and failure to make suitable education and special educational needs support for C over the period covered by this complaint.

63. Ms B was caused avoidable frustration because of the poor communication, numerous and poorly managed changes of SEN staff. She was also caused avoidable frustration and avoidable time and trouble because of its poor handling of her complaint.

64. Whilst we do not consider the delay in completing the EHC assessment amounts to fault for the reasons given, its apparent failure to consider its reasonable endeavours duty caused injustice in the form of avoidable uncertainty and lost opportunity.

Recommendations

65. The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended)

66. When recommending a remedy we seek to remedy the injustice caused as a result of identified fault. Our guidance on remedies states:

• for injustice such as avoidable distress we usually recommend a symbolic payment to acknowledge the impact of the fault as we cannot put the complainant in the position they would have been had the fault not occurred;

• distress can include anxiety, uncertainty, lost opportunity and frustration;

• we may recommend a payment to recognise time and trouble where this is more than would usually be expected due to fault in the way the council considered the complaint; and

• where there has been a loss of education, we recommend between £200 to £600 for each school month. The amount takes into account a variety of factors including the child’s special educational needs and whether any partial provision was made.

67. The Council has agreed to take the following action to remedy the injustice identified in this report. Within one month it will:

• apologise in writing to Ms B;

• pay £250 to recognise the lost opportunity for C to have received provision between May and July 2020 when it seems unlikely the Council made “reasonable endeavours” to provide education after his EHC plan was introduced;

• pay £6,300 to recognise the impact of lost education and special education provision on C. This comprises £4,800 for the periods February to July and September to October 2020 when no alternative provision was made and C was transferring to secondary school. This is calculated at £600 a month. For the three month period from November 2020 to January 2021 when some partial provision was made we recommend a further payment of £1,500 which is calculated at £500 a month;

• pay £250 to recognise the lost opportunity to comment on the draft EHC plan in February 2021 or to appeal to the SEND tribunal when the final plan was issued in the same month;

• pay £750 to C to recognise the avoidable distress and anxiety caused by the extended period of uncertainty around his education and special educational needs provision and the particular impact of this on him given his propensity for stress and anxiety;

• pay for Ms B to recognise the impact on her of the failure to make adequate provision for C in the form of lost opportunity, stress and frustration;

• pay to recognise the avoidable time and trouble Ms B was caused in having to complain to the Council and to us for the matter to be resolved; and

• pay a further £250 to recognise the avoidable frustration caused by the Council’s poor communication with Ms B over a protracted period of time.

68. To ensure that similar faults do not occur in future the Council has also agreed to make a number of service improvements. These take account of recommendations made on other recent complaints where we have identified faults that are similar to those identified here and also a report against the former Dorset County Council (case reference 18 016 599) where Dorset Council, as the newly formed unitary authority for the area, undertook to make systemic improvements to its service. Despite all these agreements and assurances it is concerning that we continue to see the same faults. The Council will, within three months tell us and provide evidence of how it will:

• ensure that annual reviews and transfer reviews will be tracked for all children with an EHC plan to ensure that these are arranged, that they take place and that the proper action is taken to then amend, maintain or cease a plan and that this happens without delay;

• improve its record-keeping and communication with parents to ensure that parents know who their child’s allocated SEN officer is, parents are informed of changes and there is an efficient handover of information and outstanding tasks when new staff take over a case;

• improve its handling of complaints to ensure that responses are provided according to the published process, that any verbal agreements to resolve complaints result in clear action and are clearly recorded; and

• ensure that suitable alternative provision is made for children who require it and more broadly what steps it will take to ensure that it can access a supply of suitable alternative provision that is able to meet a range of children’s educational and other needs. The Council should also provide us with details of how it will track alternative provision that is being made to children and how it will ensure that support for children who are out of school meets their educational and special educational needs.

Decision

69. We have completed our investigation into this complaint. There was fault by the Council which caused Ms B and C injustice. The Council will take the action identified in paragraphs 67 and 68 to remedy that injustice.

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