Summary: We upheld a complaint about a delay in issuing an Education, Health and Care Plan. The delay caused avoidable distress, a delay in appeal rights and a loss of education provision for Y who has autism. The Council will apologise, make payments and take action described in this statement.

The complaint

1. Mrs X complained about Kent County Council (the Council). She said:
1. There was fault in the way it completed the Education, Health and Care (EHC) assessment and plan process for her son Y since 2017.
2. The SEN department failed to contact her in March 2020 when schools closed or make sure Y’s needs were being met. The provision offered by school during the first lockdown was not tailored to Y’s needs and no action was taken despite her requests
3. The Council said Y could not start at school in September 2020 because of a forthcoming tribunal hearing in November, despite having agreed with the parents preferred specialist provision.
4. The Council did not secure tuition from the Education Programme team who provide support for children awaiting a school place.
2. Mrs X said this caused her and Y avoidable distress and she had to pay for education packages for Y’s education at home.

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What I have investigated

3. I have investigated complaint (a) between March 2020 and March 2021 and complaint (b). I have not investigated complaints (c) or (d).
4. My reasons for not investigating all of Mrs X’s complaints are at the end of this statement.

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The Ombudsman’s role and powers

5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal (including the Special Educational Needs and Disability Tribunal (SEND 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)
6. The courts have established that if someone has lodged an appeal to a SEND Tribunal, we cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC Plan or with the SEN provision on the plan, we cannot seek a remedy for lack of education after the date the appeal was submitted, if it is linked to the disagreement about the school place named or about the SEN provision. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
7. 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)
8. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
9. 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

10. I considered Mrs X’s complaint to us, the Council’s responses to her complaint and documents set out in this statement. I discussed the complaint with Mrs X.
11. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

12. 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”.
13. Children and young people with special educational needs may have an EHC plan. The council has a duty to secure the specified special educational provision in an EHC plan. (Section 42 Children and Families Act 2014).
14. Supporting vulnerable children and young people during the coronavirus outbreak – actions for educational providers and other partners (in force between March and August 2020) said education providers and councils should identify vulnerable children and young people, (including those not in education, those with EHC plans and those who are classed as vulnerable at the discretion of the council) and consider how best to support their welfare and education both remotely and on-site. There should be a risk assessment.
15. When a child or young person is going to transfer between phases of education, the council must review and amend their EHC plan before 15 February in the calendar year where the transfer is between primary and secondary school (Regulation 18(1)(b) of the Special Educational Needs and Disability Regulations 2014)
16. Where the SEND tribunal has ordered to amend the provision in an EHC plan, it must issue an amended plan within five weeks of the order. (Regulation 44 of the Special Educational Needs and Disability Regulations 2014)

Key facts

17. Y has had an EHC plan since 2019. He has autism and was in Year 6 in the academic year 2019-2020. By way of background, the SEND Tribunal ordered amendments to Y’s 2019 plan at an appeal hearing in November 2019. This amended EHC plan did not specify Y’s secondary school placement.
18. The Council issued an amended final EHC plan at the end of April 2020 naming School A (a mainstream secondary school) as Y’s placement from September 2020. It sent a copy of the EHC plan to Mrs X with a covering letter setting out her appeal rights.
19. Y’s primary school completed a COVID-19 risk assessment at the start of May and sent a copy to the Council. The risk assessment said:
• Y had asthma. His parents held medication for him and an asthma plan
• There was no risk identified to Y because school would provide suitable activities linked to the provision in his EHC plan for Y to complete at home
• Mrs X was very supportive and would ensure she supported his learning at home
• Mrs X reported Y was anxious at school although school did not see evidence of this. The lockdown would provide an opportunity for home schooling
• The inclusion co-ordinator had been in contact with Mrs X and emailed her and received some lovely emails and photos in return
• If Y could not be supported safely at home, then he should attend school.
20. Mrs X complained to the Council at the start of May. She complained about the placement named on Y’s EHC plan and said she intended to appeal to the SEND Tribunal. She complained about the description of Y’s SEN, the provision on the plan and said Y’s emotional well-being had improved since lockdown when she had been home schooling him. Mrs X’s letter did not mention any complaints about having to home school Y during lockdown or about the resources available to do so.
21. The SEND tribunal informed the Council Mrs X had lodged an appeal in July.
22. The Council’s response to Mrs X’s complaint in September referred to a child with a different name and said the SEND tribunal would be dealing with the issues Mrs X had raised. Mrs X was unhappy with the response and pointed out the Council had referred to another child.
23. The SEND Tribunal heard the appeal in November and issued a consent order on 1 December.
24. In the first week of January 2021, Mrs X chased the Council for Y’s amended EHC plan. The Council issued the amended EHC plan on 13 January naming School D (a special school).
25. The Council issued a second complaint response in the middle of January. It did not uphold her complaint, apologised for the delay in both complaint responses and also apologised for referring to the wrong first name in the previous response.
26. Y started at School D in March 2021. He had been home-schooled from March 2020 until March 2021. (His primary school placement had ended in July 2020 so there was no SEN provision in place for Y from September 2020 to January 2021. The EHC plan in the recent SEND tribunal appeal named a mainstream secondary school.)
27. The Council told me:
• Its Emergency Placement Team (EPT) liaised with schools to secure education provision where a parent had asked for this and where schools were not open during COVID-19. The Council said the EPT was not aware of any concerns about Y during lockdown, but the primary school sent it a copy of Y’s risk assessment. The school was open for those pupils with EHC plans but Mrs X decided to keep Y home for medical reasons. (Mrs X told me it was correct that she kept Y at home for medical reasons.)
• It was sorry for the delay in issuing the amended EHC plan following the consent order.

Findings

Complaint a: There was fault in the way the Council completed the Education, Health and Care (EHC) assessment and plan process

28. There was a slight delay of one to two weeks in issuing the amended EHCP plan in January 2021 following the Tribunal’s order, but I do not consider this caused significant injustice.
29. Y was in a transfer year in 2020, so the Council should have issued his EHC plan naming the secondary placement by 15 February. It did not do so until 23 April. I see the Tribunal had recently heard an appeal and this may have confused matters for the Council, but the SEND Regulations described in paragraph 15 applied and so there was a delay of just over two months. This was fault and caused avoidable distress, a delay in appeal rights and a loss of education for Y.
30. The Council apologised for the delay in responding to both stages of Mrs X’s complaint. It failed to recognise the faults I have identified in this statement. This was poor complaint handling.

Complaint b: The SEN department failed to contact Mrs X in March 2020 when schools closed or make sure Y’s needs were being met. The provision offered by school during the first lock down was not tailored to Y’s needs and no action was taken despite her requests

31. There was no fault by the Council. The guidance in paragraph 14 required the Council or school to complete a risk assessment and this happened. The risk assessment did not include any concerns from Mrs X about educating Y at home or about the on-line/home-based provision from the school. Had Mrs X had any concerns about the provision from school during lock down, I would have expected her to raise these in her complaint to the Council in May 2020. She did not.

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Agreed action

32. The Council will within one month of my final decision:
• Apologise for the delay in issuing the EHC plan of April 2020
• Make Mrs X a symbolic payment of £250 to reflect her avoidable distress and time and trouble complaining
• Make Y a payment of £1500 to recognise the impact of the delay. This is in line with our Guidance on Remedies which suggests a payment of between £200 and £600 a month for a loss of two and a half months’ education which I have assessed to be at the top end of this range. I have taken into account that:
1. the Council’s delay in issuing the amended plan meant Mrs X was denied the ability to appeal for two and half months. Consequently, the SEND Tribunal could have decided the case two and a half months earlier that it did and would have named the parental preference and the SEN provision agreed through the working document process and approved by the Tribunal
2. Y was in a transfer year starting secondary school which is a key stage of education and so the impact on him was high.
33. Within three months of my final decision, the Council will ensure relevant staff (for example in the Tribunal and SEN teams) are instructed to ensure that statutory timescales for issuing transfer EHC plans are adhered to even when a case is under consideration by the SEND Tribunal. I will require evidence of compliance.

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Final decision

34. I upheld a complaint about a delay in issuing an Education, Health and Care Plan. The delay caused avoidable distress, a delay in appeal rights and a loss of SEN provision. The Council will apologise, make payments and take action described in this statement.
35. Subject to further comments, if the Council accepts my recommendations, I intend to complete the investigation.
36. 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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Parts of the complaint that I did not investigate

37. Matters before March 2020 are late complaints and/or matters that were determined by the SEND Tribunal.
38. Mrs X appealed the EHC plan of April 2020. This means we have no power to investigate complaints c and d because they concern matters closely linked to the appeal. The legal case I have described in paragraph seven applies which means we cannot seek a remedy for the lack of education for Y after April 2020.

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Investigator's decision on behalf of the Ombudsman