Summary: Mrs X complained about the Council’s failure to support her daughter’s special educational needs and its response to difficulties in her educational settings. We have found the Council to be at fault. There was delay in the process, poor communication and lack of oversight when problems arose at one setting. To remedy the injustice caused, the Council has agreed to apologise, make a payment to Mrs X and review its procedures.

The complaint

1. Mrs X complains about how the Council failed to properly recognise and support her daughter’s (Child Y) special education needs since February 2020. In particular, she complains about:
1. delay;
2. issuing two final Educational, Health and Care Plans without proper consultation;
3. failure to ensure adequate support was in place at two educational settings;
4. poor communication; and
5. failure include relevant information in Educational, Health and Care Plans;
2. As a result, Mrs X says Child Y was not provided with the support she needed and this had a negative impact on her educational progress and mental health. Mrs X has also suffered distress, frustration, time and trouble dealing with the Council.

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What I have investigated

3. I have investigated 1 (a) – (d) above. I have not investigated 1 (e) for the reason explained at paragraph 85 below.
4. I have investigated events from February 2020 to February 2022. I have used my discretion to investigate events that took place more than 12 months ago because I am satisfied it would not have been possible for Mrs X to have complained to us sooner due to both the pandemic and her attempts to work with the Council.

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The Ombudsman’s role and powers

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. 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)
7. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)

8. 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. Where someone has appealed we cannot investigate the matter under appeal. (Local Government Act 1974, section 26(6)(a), as amended)

9. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.

10. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

11. If we are satisfied with an organisation’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

12. I spoke to Mrs X and considered the information provided by her regarding her complaint.
13. I made enquiries of the Council and considered its response.
14. I also considered the relevant legislation and statutory guidance as set out below.
15. Mrs X and the Council were given an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Special educational needs and Education Health and Care Plans

16. A child with special educational needs (SEN) may have an Education, Health and Care Plan (EHCP). An EHCP describes the child’s special educational needs and the provision required to meet them.
17. The procedure for assessing a child’s SEN and issuing an EHCP is set out in legislation, regulations and Government guidance.
18. When a council sends a draft plan to a child’s parent or young person it must give them at least 15 days, beginning with the day on which the draft plan was served, in which to: 

• make representations about the content of the draft plan, and to ask that a particular school or other institution be named in the plan; and 
• require the council to arrange a meeting between them and an officer of the council at which the draft plan can be discussed. (Special Educational Needs and Disability Regulations 2014) 

19. We cannot investigate complaints about the support set out in the EHCP nor the educational placement named in it. Parents can appeal to the Tribunal if they are unhappy with those aspects.

Responsibility for making arrangements

20. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
21. The Ombudsman recognises it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHCP. The Ombudsman considers that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:

• check the special educational provision is in place when a new or substantially different EHCP is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.

Coronavirus

22. Between 1 May 2020 and 25 September 2020, emergency Coronavirus legislation was in force. This meant that if the Council could not meet the usual time limits for a reason relating to the incidence or transmission of coronavirus (COVID-19), the time limits did not apply. (The Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020).

Children out of education

23. 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.
24. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)

What happened

Key events leading to the complaint

25. Below is a summary of the relevant facts in this complaint. It is not meant to record everything that happened.
26. Child Y has special educational needs, including autism and ADHD, that require additional support. She has an EHCP.
27. Child Y attended School P for her secondary education. An annual review took place in February 2020. It was agreed some amendments were necessary. This did not happen due to Covid-19 lockdown restrictions being imposed soon afterwards.
28. An annual review was held in March 2021. This highlighted problems at School P. Mrs X was disappointed a member of the SEN did not attend the review. A further emergency review was held soon afterwards due to the placement at School P having broken down. Identifying a placement for September 2021 was agreed to be a priority.
29. Mrs X provided the Council with information she wanted included in the ECHP. She was disappointed when the draft amended plan failed to include this information.
30. She requested a meeting with the SEN manager (Officer J) to discuss this.
31. Before this meeting took place, the final EHCP was issued.
32. Shortly afterwards she met with Officer J. She says he agreed to make amendments to the Plan but failed to do so.
33. After several options were considered, Child Y started a placement at College Q in September 2021.
34. An early annual review was held at College Q in October 2021. This was prompted by Mrs X’s concerns about its suitability and lack of insight into Child Y’s SEN. College Q had also expressed concerns to the Council about the placement. Arising from this, the Council agreed an educational psychology report would be commissioned to gain a better understanding of Child Y’s current needs. This was completed in late November 2021.
35. An amended final EHCP was issued in January 2022. Mrs X says this plan did not properly reflect Child Y’s SEN, the recommendations of the educational psychologist and, as before, was finalised prematurely without her agreement or her amendments included.
36. Child Y was permanently excluded from College Q in February 2022.
37. Child Y remains out of full-time education. She continues to attend a horse-based therapy service. For the reason explained below, I have not investigated events since Child Y left College P.

Mrs X complaint to the Council and the Ombudsman

38. Mrs X’s complaint to the Council was partially upheld. It accepted there had been problems with communication, delay and lack of oversight at School P. Mrs X was disappointed by this outcome and so brought her complaint to the Ombudsman.
39. She says Child Y did not have the benefit of a relevant EHCP since February 2020 and the breakdown of both School P and College X were a direct result of Child Y being inadequately supported, in part because the EHCP was inaccurate. She also strongly feels children with SEN should not be excluded and the Council should have responded to early warning signs given by her and College Q.
40. This is disputed by the Council. It is satisfied that, notwithstanding the delay in amending Child Y’s EHCP, suitable provision remained in place at School P and both ECHP’s accurately reflected Child Y’s SEN.

Analysis

41. I will consider each of Mrs X’s specific areas of complaint 1 (a)-(d) below.

Delay

42. Child Y’s annual review took place in February 2020. This recommended some amendments to the EHCP. This included a reference to a diagnosis of perceptual processing disorder. This did not happen and so there was a significant delay in the EHCP process for over 12 months. The Council says this was due to the pandemic.
43. While the Ombudsman accepts this unique situation created significant challenges to local authorities, we would nevertheless expect cases to be progressed in a reasonable timeframe afterwards. We would also expect, where matters were outstanding from before the pandemic, for parents to be kept informed about when cases were to be progressed. While the government relaxed the relevant EHCP deadline for several months, they ended in September 2020.
44. There is no evidence that the Council contacted Mrs X from February 2020 until after the emergency annual review held in February 2021.
45. The proposed amended EHCP was not issued until April 2021. This should have happened much sooner and is fault.
46. The Council has said no significant injustice arose from this fault because the proposed amendments were minor. While I cannot comment on this, Mrs X was clearly of the opinion the content of the EHCP lay at the heart of the matter. I am satisfied she suffered an injustice because she was frustrated by the Council’s delay in making amendments she saw as critical.
47. She was also denied her right of appeal to the Tribunal. Although I accept it is probable she would not have exercised this right in any event

Issuing two final Educational, Health and Care Plans without proper consultation

48. The records show Mrs X emailed Officer J on 27 May 2021 to advise him she had concerns about the draft EHCP. She did so within the allowed consultation period.
49. Despite this request, the final EHCP was issued on 6 June 2021. Mrs X was understandably frustrated by this unexpected event and when Officer J subsequently failed to make amendments she believed to have been agreed at their meeting on 15 June 2021.
50. It is disappointing that I have not been provided with any notes of what happened at the meeting on 15 June 2021. I would expect the Council to have kept a record of this.
51. The only relevant record is an email from Officer J to Mrs X prior to this meeting stating that following a discussion and agreement, “I can make changes to the plan and issue new drafts/finals when required”
52. This seems to confirm Mrs X’s own clear recollection that there was an understanding that, at the very least, amendments would be made.
53. In response to Mrs X ‘s complaint about this, the Council explained it was satisfied the final EHCP accurately reflected the totality of Child Y’s needs. Information provided to Officer J had been reasonably considered, but there was no obligation on the Council to agree to parents’ information if not supported by professional evidence.
54. While I accept the Council was not required to amend the EHCP as requested by Mrs X, the Council should have a record of why it was not doing so, especially as there was an expectation that this would happen. The lack of any meaningful contemporaneous records, in my view, raises doubts over the Council’s overall decision-making process. It also does not account for clearly out of date information not being changed.
55. Nor should the Council have issued the final EHCP when a dialogue with Mrs X was ongoing within the consultation period. If its intention was to go ahead, it should have notified her of this fact. This was another example to poor communication both with Mrs X and between officers.
56. This poor record keeping and case handling in May/June 2021 is fault, causing both uncertainty and distress to Mrs X.
57. Sadly, this fault was repeated. On 23 December 2021, Mrs X received a draft amended EHCP. From the date it was received, she believed to have until 18 January 2022 to provide her comments. She told the Council by email she would not have chance to provide her comments before then. This was not unreasonable position considering the festive period.
58. She contacted the Council on 11 January 2022 asking for the time to be extended to 1 February 2022 due to her realising no changes had been made and there was no reference to the educational psychologist’s report.
59. The SEN officer agreed and said in an email I have seen, “we will consider any further recommended changes you wish to suggest before the final is issued”.
60. However, the Council had in fact already issued the final EHCP on 10 January 2022.
61. Mrs X was understandably disappointed and frustrated by this, particularly as it appeared no consideration had been given to the Educational Psychologist’s report. When she asked to Council about this, there is no record of Mrs X being provided with an answer.
62. The Council has also not explained why, in both final EHCP’s, reference was made to Child Y remaining at School P, despite her having already left.
63. While I am unable to comment on the content of the two ECHP’s, from the evidence I have seen, that the Council acted with fault during this amendment process.
64. These faults occurred at particularly difficult times when placements at both educational settings had either broken down or about to. Mrs X had justifiable concerns that Child Y’s SEN were not being recognised and was frustrated by the Council’s failure to have a meaningful dialogue with her. Both plans included out of date information. This led to an understandable loss of confidence that sufficient care and attention was being paid to the concerns raised by Mrs X.
65. I cannot say with certainty that the outcome for Child Y, particularly at College Q would have been different had the Council engaged properly with Mrs X but I am satisfied it caused but uncertainty and distress that requires a remedy.

Failure to ensure adequate SEN support was in place at two educational settings

66. In its complaint response, the Council accepted it could have done more to secure the SEN provision at School P through increased attendance at meetings, mediation and proper auditing of the placement. Her complaint about this was partially upheld.
67. The Council said it would review its approach to ensure SEN duties are discharged and not rely solely on the school.
68. As I have stated above, we do not expect Council’s to carry out a watching brief, but we do expect councils to be able to demonstrate they have been able to demonstrate due diligence in discharging it statutory duties.
69. Child Y stopped attending School P in March 2021. She was therefore out of education for the whole of the summer term 2021. There is no evidence the Council took any action to liaise with the school to find out what the issue was or provide alternative education. While I cannot comment on the actions of the school, in the absence of any evidence of the Council having any involvement I am satisfied there is enough uncertainty about what happened to make a finding of fault.
70. I have therefore made additional recommendations below to acknowledge the impact on Mrs X and Child Y of this missed term of full-time education.
71. Child Y started College Q in September 2021. Mrs X told the Council immediately that she was concerned suitable SEN support was not in place because the EHCP had not been amended. Mrs X pointed out that the Plan still referred to Child Y remaining at School P for another year until 2022.
72. The evidence I have seen shows Mrs X’s early concerns about the suitability of College Q were justified. Child Y was temporarily excluded in late September due to her behaviour. Mrs X told the Council immediately that she was not receiving the support she needed.
73. The Council did take action to respond to this and this is reflected in the case records I have seen.
74. It is too speculative to say that Child Y’s exclusion was preventable. The decision to exclude Child Y was made by the College Q and not the Council.
75. The Council did respond to College Q’s suggestion that it should start trying to source an alternative setting. It also commissioned the educational psychologist report quickly. The Council arranged for Child Y to attend supplementary animal-based placement.
76. Overall, I am satisfied there is insufficient evidence to make a finding of fault here.

Poor communication

77. In its complaint response, the Council accepted there were several occasions where Mrs X did not receive a timely response to her enquiries.
78. In response to my own enquiries, the Council has also acknowledged it holds no case records between February 2020 and March 2021. This is strongly indicative that there was very little, if any, Council input into the case during that time.
79. The case records I have seen from the later period show Mrs X had concerns about Child Y’s EHCP and wanted a dialogue about this. Despite the Council agreeing to meet with her, it then failed to make the necessary arrangements until it was too late. It did not keep Mrs X informed.
80. Mrs X’s complaint about poor communication was upheld by the Council and an apology given. The Council acknowledged the SEN team was understaffed but would review its policies to ensure staff responded proactively to concerns raised.
81. This is borne out by my own analysis of the case records. I have not been provided with any records about internal decision making. This has made it difficult to establish exactly what happened.
82. The Council has also accepted Mrs X was not notified of its intention to amend Child Y’s EHCP following the annual review held in February 2021. There was also delay in sending a later amendment notice.
83. On the evidence available, I am satisfied that communication with Mrs X has been problematic throughout. This is fault and has caused both distress and uncertainty to Mrs X. The case has been allowed to drift and this has impacted on Child Y’s education

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Agreed action

84. Within four weeks from the date of my final decision, the Council has agreed to take to following action to remedy the injustice I have identified:
1. Apologise in writing to both Mrs X and Child Y.
2. Pay Mrs X £500 to recognise the delay, poor communication and case handling.
3. Pay Mrs X £1000 to acknowledge the summer term of missed education and specialist provision in 2021. We suggest Mrs X uses this payment for Child Y’s educational benefit.
4. Provide evidence to the Ombudsman of the action taken by the Council to ensure educational placements are properly monitored, particularly where problems have been identified.
5. Put processes in place to ensure parents are regularly updated by their designated case worker throughout the EHCP review process and provide evidence of this to the Ombudsman.

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Final decision

85. I have found the Council to be at fault and the Council has agreed to take action to remedy the injustice caused. On this basis I have completed my investigation.

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Parts of the complaint that I did not investigate

86. I have not investigated Mrs X’s complaint about the content of Child Y’s ECHPs. This is because I am not able to say what provision should be included in an EHCP. Concerns about the content of an EHCP should be directed to the Tribunal.
87. I am aware Child Y remains out of full-time education. I have not investigated Mrs X’s complaint about this because it had not exhausted the Council’s own complaint’s procedure when Mrs X complained to the Ombudsman.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman