Summary: The Council was at fault when it delayed issuing an updated Education, Health and Care plan for Mrs X’s daughter, Y after an annual review in November 2020 and reassessment of needs it started in February 2021. This led to Y missing the support she needed and caused her mother, Mrs X, distress and frustration. The Council agreed to follow the recommendations set out to remedy the injustice its actions caused to Mrs X and Y.

The complaint

1. Mrs X complains about the way the Council has dealt with her daughter, Y’s Education, Health and Care (EHC) plan and educational provision since September 2020. She says the Council failed to:
• issue an amended final plan after the annual review in November 2020;
• ensure that Y got the provision specified in her EHC plan;
• ensure Y received the educational provision she was entitled to when she stopped being able to attend school in September 2020; and
• effectively communicate with her about what action the Council was going to take after Mrs X told the Council she was experiencing issues.
2. Mrs X says the Council’s actions had a detrimental impact on Y and the wider family. The lack of support for her daughter meant she had to give up work, and this had a financial impact on the family. Mrs X also says that Y missed out on education that she was entitled to because the Council did not act fast enough.
3. She would like to Council to secure an appropriate school placement for Y. She would also like the Council to learn lessons from what happened with Y and make service improvements.

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The Ombudsman’s role and powers

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. 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)
6. 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.
7. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

8. I considered the information Mrs X sent me, and I have spoken to her about her complaint.
9. I considered the Council’s response to my enquiries
10. Mrs X and the Council have had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Annual Reviews

11. The Department for Education publishes statutory guidance, the SEND Code of Practice, which sets out the duties of councils.
12. Councils must review an EHC plan at least every 12 months.
13. Within two weeks of the review meeting the Council must prepare and send out a report setting out any amendments to the EHC plan it is recommending.
14. Within four weeks of the review meeting, the Council must decide whether it will keep the EHCP as it is, amend, or cease to maintain the plan. It must notify the child’s parent of its decision.
15. If the plan needs to be amended, the Council should start the process of amendment without delay.
16. The Council must send the draft EHCP to the child’s parent and give them at least 15 days to give views and make representations on the content.
17. When changes are suggested to the draft EHCP and agreed by the Council, it should amend the draft plan and issue the final EHCP as quickly as possible, but within eight weeks of the date the Council sent the proposed amendments to the parents.
18. Where the Council does not agree the changes suggested by the child’s parent it may still proceed to issue the final EHCP.
19. In any case the Council must notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so.

Re-assessment of an EHC plan

20. The Council must re-assess the young person’s EHC plan if it receives a request to do so. It can also do it without a request, if the Council considers it necessary.
21. The Council must tell the young person or their parent whether it will carry out a re-assessment of the EHC plan within 15 days of the request it received.
22. The process of re-assessment follows the same steps as the process of first EHC plan assessment.
23. The overall maximum timescale for the re-assessment is 14 weeks from the date the Council agreed to carry it out.

Alternative provision

24. Under Section 19 of the Education Act 1996, councils are responsible for arranging suitable education for permanently excluded pupils, and for other pupils who – because of illness or other reasons – would not receive suitable education without such arrangements being made.
25. The Children, Schools and Families Act 2010 clarified that a suitable education meant a full-time education. The only exception to this is where the physical or mental health of the child means that full-time education would not be in their best interests. Full-time education is not defined but is commonly held to be equivalent to between 22 and 25 hours, depending on the child’s age.
26. The Government’s statutory Guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ outlines councils’ responsibilities towards children with medical health needs. It states that councils must:
• have a written, publicly accessible policy statement which explains how it will meet its legal duty towards children with additional health needs. This policy must make links with related services in the area, such as the Special Educational Needs and Disability Service (SEND), Children and Adolescent Mental Health Service (CAMHS);
• have a named officer responsible for the education of children with additional health needs, and parents should know who that person is; and
• not “have processes or policies in place which prevent a child from getting the right type of provision and a good education” or “inflexible policies which result in children going without suitable full-time education”.
27. Councils should provide education as soon as it is clear the child will be away from school for 15 days or more and where suitable education is not being provided by the school.
28. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible. If the medical evidence is not quickly available, the guidance states councils “should consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
29. The statutory guidance ‘Alternative Provision’ says the duty to provide a suitable education applies “to all children of compulsory school age resident in the local authority area, whether or not they are on the roll of a school, and whatever type of school they attend”.
30. The Ombudsman issued a focus report in September 2011 amended in June 2016, “Out of sight…. out of mind?”. This gives guidance for local authorities on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. The report made six recommendations for Local Authorities, including they:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (with the exception of minor issues that schools deal with on a day-to-day basis) even when a child is on a school roll;
• consult all the professionals involved in a child’s education and welfare, taking account of the evidence in coming to decisions;
• choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.
31. The report states local authorities should not assume that schools shoulder the entire responsibility for a child’s education.

What happened

32. Y has a diagnosis of Autistic Spectrum Disorder (ASD) with learning disabilities and associated anxiety. In September 2020 Y was due to start attending a secondary school. However her transition to a new school environment was disrupted by the COVID-19 pandemic and the rise of her anxiety associated with attending a new school environment.
33. Mrs X said that Y’s transition did not go as expected and since September 2020 she attended school on a reduced timetable and only for five hours a week. This was because the school said it was finding it difficult to manage Y’s escalating behaviours.
34. In November 2020 Y’s school held an early EHC plan annual review for Y. Y’s school said this was necessary as it felt it could no longer meet her SEN needs. The Council did not attend this review meeting.
35. The Council did not issue a draft EHC plan or a final EHC plan following the annual review from November 2020.
36. Mrs X told us that since December 2020 Y stopped attending the school altogether.
37. In early February 2021 Mrs X asked the Council to reassess Y’s SEN needs. A couple of days later the Council emailed Mrs X and agreed to the reassessment. The Council said that it would take 14 weeks to complete the reassessment. This means the Council should have finished the re-assessment by mid May 2021.
38. In April 2021 the Council wrote to professionals involved in Y’s care and asked them for input into the reassessment of needs it was carrying out.
39. In the same month Mrs X complained to the Council. She said that:
• since September 2020 Y had only been accessing school for five hours a week, and since December 2020 she stopped going all together;
• the Council did not attend Y’s annual review where the school made it clear that it could not meet Y’s SEN needs;
• the SEN case workers were not replying to her emails and she had to ask Special Educational Needs and Disabilities Information Advice and Support Services (SENDIASS) to help her make a request for a reassessment of Y’s needs;
• the Council had still not sent her Y’s final EHC plan, despite saying it should have done this within 14 weeks from the date it accepted it would reassess Y’s needs;
• the Council did not fulfil its duty to provide Y with a suitable education if she could not attend school;
• Y had had four case workers by now, and none of them were communicating effectively with her; and
• the lack of educational provision for Y had negatively impacted the entire family.
40. At the beginning of May 2021, the school contacted the Council to ask for more funding in order to better support Y. The Council agreed to the additional funding for the school. The Council told us this was the first time it realised that Y was not attending school.
41. In June 2021 the Council replied to Mrs X’s complaint and said that:
• the school should have provided alternative provision for Y using the funding it received from the Council;
• the case workers do not have to attend all the annual review meetings;
• the Council had agreed to the reassessment of needs and this would be discussed during a co-production meeting;
• the Council was expecting to send Y’s draft EHC plan out in June 2021;
• it apologised for the disruption in communication Mrs X experienced. It explained that this was caused by the changes to the SEND team and the demands of the COVID-19 pandemic. The Council said it had put in place new measures to address this in the future; and
• it apologised for the impact the lack of support and the distress the process has caused to Mrs X’s family.
42. In June 2021 Mrs X complained to the Ombudsman. We asked her to complete the Council’s complaints procedure before we would assess her complaint to us.
43. In the same month Mrs X asked the Council to consider her complaint further as she was not happy with the response she received in June 2021. She said that:
• Y’s reassessment was not finalised. The provision listed in the educational psychologist’s report was not specific enough, which meant the case worker had to contact the educational psychologist for clarification; and
• this caused further delays to the process that had already exceeded the statutory deadlines for completion.
44. In July 2021 the Council apologised to Mrs X for not keeping the statutory deadlines when managing Y’s EHC plan. It said that it would issue the final EHC plan by the end of the week. This did not happen.
45. In August 2021 the Council agreed to put in place alternative provision for Y alongside provision from her school.
46. In mid-September 2021 Y started to receive 14 hours per week of support. This consisted of eight hours of mentoring and six hours of tutoring.
47. At the end of September 2021 the Council issued Y’s draft EHC plan following the reassessment of her needs. This is approximately 33 weeks after the Council started the process in February 2021.
48. The following day the Council began consulting schools to see if they could meet Y’s needs. Two days after this, the Council met with Y’s parents. The Council confirmed it would continue funding the 14 hours of alternative provision Y was accessing since mid-September but said that her school should fund an additional 11 hours.
49. In January 2022 the Council issued Y’s final EHC plan following the reassessment of needs it started in February 2021.

Our analysis

Annual Review in November 2020 and reassessment of Y’s needs

50. The Council accepted that it did not follow the statutory timescales following the early annual review of Y’s EHC plan in November 2020. This is fault.
51. It also accepted that it did not follow the statutory timescales following the reassessment of Y’s needs it started in February 2021. This is fault.
52. The Council did not issue Y’s draft EHC plan until September 2021. This is approximately 33 weeks after the Council started the process in February 2021. This is fault.
53. The Council issued Y’s final EHC plan in January 2022. This is further 17 weeks after it issued the draft EHC plan. This is fault.

Provision specified in Y’s EHC plan after November 2020

54. The Council said that its case officer did not attend Y’s early EHC plan review in November 2020. The Council explained the case officer in charge of Y’s case at the time has since left the service and it was now unable to confirm if they were aware of the difficulties the school was experiencing in meeting Y’s needs. This is fault
55. Whilst we understand the case officers do not have to attend every EHC plan annual review, we would expect the Council to have a system of monitoring the outcomes of a review, even when the officer did not attend.
56. As the school called for an early EHC plan review and said it could not meet Y’s SEN needs it is likely that she has missed out on some of the specialist provision that she needed. This includes the provision from her EHC plan before the November 2020 review, and the provision from the final EHC plan the Council issued in January 2022.
57. The Council accepted that between November 2020 and September 2021 Y did not receive any alternative provision, despite the fact her school attendance was below 14%. This is fault.
58. The Council offered to pay Mrs X £2000 for the lost education for period between November 2020 and June 2021. After considering the impact the lack of alternative provision has had on Mrs X and Y we do not consider this to be a suitable remedy. When deciding this we also considered that the fault occurred at an important transition point for Y, when she started secondary school.

Provision Y received when she stopped attending school in September 2020

59. The records showed that since September 2020 the school found it difficult to manage Y’s behaviour and her SEN needs.
60. Between September 2020 and November 2020 Y was on a reduced timetable and only accessed five hours per week of education.
61. The Council was not aware of this at the time. We cannot hold the Council responsible for not acting about something that it was not aware of. However we consider the Council could have known about this since November 2020, when the school called Y’s early EHC plan review because it could no longer meet her needs.

Council’s communication with Mrs X

62. The Council accepted the service it delivered to Mrs X and Y was poor. In the course of the investigation it identified that it has gaps in its records and not all the relevant information was recorded as it should have been.
63. The Council recognised that high turnover of staff and poor record keeping contributed to delays Mrs X and Y experienced and led to missed opportunities in progressing their case sooner.
64. This caused Mrs X avoidable distress and led to avoidable time and trouble in chasing the Council to implement the changes needed to meet Y’s needs.
65. The Council offered to pay Mrs X £250 in recognition of the distress and a further £250 for the time and trouble she has been put to.
66. We have considered the impact the Council’s faults had on the family and we are of the opinion that the injustice resulting from the faults is significant enough to warrant a higher remedy.

Injustice to Y

67. Y is a young person with Autism Spectrum Disorder (ASD). She struggles to talk about her thoughts and feelings. Y has difficulties with social communication, and she can find interactions with others very challenging. She also struggles with interpreting other people’s emotions, which can sometimes leave her vulnerable.
68. The fact that Y has an EHC plan means that she needs special educational support to be able to interact and achieve education to the best of her abilities. It is likely that after November 2020 Y has missed direct educational support she needed.
69. The fact that Y missed out on essential support means that an already vulnerable young person has been further disadvantaged.
70. Therefore, I recommend the Council should pay Mrs X an increased remedy to recognise the education that Y lost between November 2020 and September 2021. This remedy should be used for the benefit of Y’s education.

Injustice to Mrs X

71. Mrs X has also been caused an injustice because she has experienced distress and frustration because of the Council’s failure to support Y properly and to meet her educational needs. She has also been caused unnecessary time and trouble in pursuing a complaint to try to get the matter resolved.
72. Additionally, Mrs X provided evidence that shows that she raised with the Council her concerns about poor communication and lack of responses from the case officers.
73. Mrs X said this was time consuming and frustrating as nothing seemed to improve, despite her best efforts to coordinate the support for Y. She also said that because of the lack of education, she is concerned about Y’s academic progress. We cannot say if things would have been different if the Council acted without fault. However, we consider the poor communication and delays in the Council’s actions contributed to Mrs X’s uncertainty of what would have happened had the Council acted without fault.
74. Therefore, I recommend the Council should pay Mrs X a remedy in recognition of the avoidable time and trouble the Council put her to in chasing her complaint.
75. I also recommend the Council should pay Mrs X a remedy in recognition of the avoidable distress the Council’s faults have caused her. This also incorporates a remedy for the uncertainty Mrs X experienced about Y’s readiness to continue her education in a school setting.

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Agreed action

76. Within one month of the date of the final decision statement, the Council will:
• pay Mrs X £300 to recognise the distress and frustration the Council’s faults have caused her;
• pay Mrs X £300 to recognise the unnecessary time and trouble she experienced in having to chase the Council to take action; and
• pay Ms X, on behalf of Y, £4,375 to remedy the injustice caused by the loss of education and SEN provision between November 2020 and September 2021. Mrs X should use this as she feels best to support Y’s social and educational needs. In coming to this figure, I have taken into consideration the Ombudsman’s Guidance on Remedies and acknowledged that Y received some, albeit minimal, education.
77. The Council will also, within three months from the date of my final decision:
• share this decision with the Council officers dealing with cases of this nature and emphasise the importance of keeping the statutory timescales when issuing the EHC plans;
• review its policies and procedures to ensure SEN officers keep appropriate case records; and
• confirm to us how it will record and action outcomes from annual EHC plan reviews when an SEN case officer cannot attend the meeting.

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Final decision

78. There was fault which caused Mrs X and Y an injustice. The Council agreed to my recommendations and my investigation is now complete.

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Investigator's decision on behalf of the Ombudsman