Summary: Mr X complained the Council failed to ensure his son (Y) received an adequate fulltime education and his special educational need provision from September 2021 as set out in his EHC Plan. We found no fault by the Council on the substantial matters complained about. However, it was at fault for its delay to plan and implement Y’s SEN provision at the start of the academic year. It has agreed to apologise and make payment to remedy the injustice this caused.

The complaint

1. The complainant, whom I shall refer to as Mr X, complained about the Council’s handling of his son’s (Y) special educational needs provision (SEN). He said it:
• caused delays in producing an amended version of Y’s Education, Health and Care Plan;
• failed to collaborate with Mr X as agreed to plan Y’s SEN provision for the start of the 2021/2022 academic year;
• failed to ensure the provision and dedicated school staff were in place to support Y with his SEN as set out in his EHC Plan; and
• failed to follow procedures to assess and monitor Y’s progress in line with his EHC plan.
2. As a result, Mr X said Y experienced distress and had a loss of SEN provision. Mr X also said he and Mrs X experienced distress due to having to provide care and support for Y, and he had time and trouble to bring his concerns to the Council’s attention.

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What I have investigated

3. I have investigated Mr X’s complaint for the academic year from September 2021 to February 2022.
4. The final paragraph of this decision explains why I have not investigated Mr X’s other concerns after this period.

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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 question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
7. 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

8. As part of my investigation, I have:
• considered Mr X’s complaint and the Council’s responses;
• discussed the complaint with Mr X and considered the information he provided;
• considered the information the Council provided in response to my enquiries;
• considered the law, guidance and policy relevant to the complaint, including Child Y’s Education, Health and Care Plan.
9. Mr 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

Education, Health and Care Plans

10. A child with special educational needs may have an Education, Health and Care (EHC) Plan. An EHC Plan describes the child’s special educational needs and the provision required to meet them.
11. Once the Council has issued a EHC Plan, it must secure the special educational provision specified in the Plan for the child or young person. (Children and Families Act 2014, section 42)
12. The Ombudsman does recognise 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 EHC plan. The Ombudsman does consider 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 EHC plan 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.
13. The procedure for reviewing and amending EHC plans is set out in legislation and Government guidance.
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. (s20 (10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
15. The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
16. 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. (s22 (3) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.196)
17. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
18. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))

Background

19. Mr X’s son, Y, has an EHC plan due to his complex needs relating to his autism, ADHD, extreme anxiety, demand avoidance and cognitive processing.
20. Y has had low school attendance in school for several years, which has partly been due to past failures by school placements and the Council to manage and meet his special educational needs (SEN).
21. Y’s EHC Plan set out his SEN and how his needs should be met to ensure he could access his educational provision. This included:
• 1:1 support in class;
• 2:1 support for any off site activities;
• a named keyworker and a team of no more than three trusted adults;
• access to a suitable space for regular sensory breaks (designated safe space);
• access to a quiet and private space for time alone (designated safe space);
• small group learning when Y was not able to engage in whole class teaching;
• regular meetings between the school and Y’s parents;
• a multi-agency approach to agree shared outcomes to support Y to re-engage in education and promote the family stability. This was to be reviewed at regular intervals during the year.

What happened

22. In May 2021 the Council held an EHC Plan review meeting to discuss its previous delivery of Y’s EHC Plan and to put plans in place for his 2021/2022 academic year SEN provision. It considered the views and information from several professionals involved with Y, including the view of Mr and Mrs X.
23. In June 2021 the Council held its EHC Plan review for Y and decided amendments to his Plan was needed. It also decided to continue its Child in Need meetings to provide suitable support for Y.
24. During summer 2021, Mr and Mrs X had arranged various out of school activities for Y, which the Council had funded. They asked the School what provision had been arranged for the start of the academic term.
25. The School told Mr and Mrs X it had arranged some of the proposed SEN provision for Y for the start of the academic term. It also agreed with Mr and Mrs X to arrange an enabling service to ensure Y could attend planned SEN provision with 2 adults. This was in place at the start of the academic year.
26. After the academic year had started, the School, Council and professionals met to agree Y’s 25 hours of SEN provision for the autumn term. It was agreed the enabling service should fulfil the proposed timetable, and the School should share the costs of the package with the Council for approval. Some further potential SEN provision was also identified. It was decided Y’s SEN provision should be gradually increased to develop his engagement.
27. In early October 2021 the School shared its proposed funding package with the Council.
28. Initially Y was able to engage with most of the SEN provision timetabled for him. However, during October 2021, his attendance reduced. This meant he was attending less provision which had any likelihood of engagement with other children. So, his attendance gradually became even worse.
29. The School put in place an agreement (Annex R) to Y’s EHC Plan, which reduced the hours of SEN provision he would receive temporarily.
30. The Council held Child in Need meetings and asked the School to ensure Y received his 25 hours of provision as set out in his EHC Plan, and for any reduction in this to be agreed with Mr and Mrs X and set out in Annex R.
31. In November 2021 the Council told to School it had not received its funding request. The School told the Council it had already sent this and shared it again with some changes.
32. 3 weeks later, the Council agreed to the School’s funding package. The Council again told the School this should include the 25 hours of SEN provision for Y as set out in his EHC Plan, and any reduction set out in Annex R.
33. In late 2021, the Council, School professionals and Mrs X met to discuss Y’s placement and SEN provision. It was found the School could not meet Y’s SEN and an amendment notice to his EHC Plan should be issued. This was because some off-site SEN provision had worked relatively well for Y, and he had been able to engage with this. However, the School had not been able to assign Y to a suitable peer group as he did not match its core cohort and Y was still developing his ability to engage in activities for a sustained period of time. It was agreed for Y’s SEN provision to continue until a suitable placement was found.
34. In early 2022 Y was unable to engage in almost all of the SEN provision identified for him.
35. In February 2022 the Council issued Y’s final amended EHC Plan following its review June 2021. This removed the School as the education provider and said Y was under elective home education.
36. Y started receiving SEN provision from an alternative provider in May 2022.

Mr X’s complaint

37. Mr X complained to the Council about its handling of Y’s EHC Plan and his SEN provision. He said it:
• caused delays in producing an amended version of Y’s Education, Health and Care Plan over an 8-month period;
• failed to collaborate with Mr and Mrs X as agreed to plan Y’s SEN provision for the start of the 2021/2022 academic year;
• failed to ensure the provision and dedicated school staff were in place to support Y with his SEN as set out in his EHC Plan. This included provision at the start of the academic year, producing visual timetables, and ensuring Y had access to peers and social interactions; and
• failed to follow due diligence and procedures to assess and monitor Y’s progress in line with his EHC plan.
38. In response, the Council found it had acted appropriately and worked with Mr and Mrs X, the School and the professionals supporting Y to ensure he received his SEN provision. It said:
• it had secured Mr and Mrs X’s preferred full time School placement after a comprehensive review of his EHC Plan. It had worked with the School and sought external input from alternative providers which had worked successfully with Y in the past. However, despite its well-planned transition plan and specific staffing and management oversight to make this work, it had not been successful in meeting all of Y’s needs over the Autumn term. A reduced timetable set out in Annex R was therefore in place;
• Y’s SEN package was highly personalised following input from Mr and Mrs X and recommendations from professionals. However, in line with his preferred way of working, much of his provision had been off-site from the School;
• it acknowledged Y was keen on engaging with other peers, but found the cohort at the School were older, had their own needs and had been unable to engage with Y in shared activities. It had therefore funded activities and opportunities for Y in the community to address his needs;
• it had asked the School to ensure Y had a visual timetable available. The School had confirmed Mrs X had been producing these and it had offered her support when Mr X asked for this. This was because the School found it challenging to produce such visual support given Y’s need for flexibility and the ongoing changes in the SEN provision he could engage with;
• it had regular contact with the School and Mr and Mrs X throughout, including its involvement in review and Child in Need meetings and when concerns about Y’s provision had been raised. It had responded to Mr and Mrs X’s concerns and addressed these with the School; and
• it had recently completed Y’s final amended EHC Plan with its proposed amendments. This included the exploration of a change of provision and educational setting.

Analysis

Amendment of final EHC Plan

39. Following the Council’s meeting in May 2021 in which it considered the past delivery of Y’s EHC Plan, it reviewed his Plan in June 2021. It also told Mr and Mrs X about its intention to make amendments to the plan.
40. The Council was therefore required to issue an amended draft EHC plan without delay for Mr and Mrs X’s comments. There was no fixed deadline for the Council to do so and it took 8 months for it to issue Y’s final amended EHC Plan.
41. While I acknowledge this is a long time, the reason the Council did not do so sooner was because:
• it sought the views of the School, Y’s past placement, the views of Mr and Mrs X and professionals working with Y;
• Y’s ability to engage with the proposed SEN provision worsened and his attendance gradually reduced, which led to the implementation of his temporary reduced timetable set out in Annex R;
• there were concerns about whether the School was able to meet the SEN provision Y needed; and
• Y’s placement with the School broke down in late 2021.
42. I understand this meant Mr and Mrs X could not appeal to the tribunal until the amended EHC Plan was issued. However, I am conscious they did not complain about this at the time, and they have since said they do not intend to appeal to tribunal.
43. At this stage, I am therefore satisfied it was appropriate for the Council to continue to review and monitor Y’s progress, including whether the School could meet Y’ needs, before it issued an amended EHC Plan.
44. In addition, Y’s final amended EHC Plan in 2022 contains very limited changes. I therefore found, even if the Council was at fault for causing delays in completing the process, Y did not experience an injustice from this.

SEN provision

45. Y started the academic year of 2021/2022 with limited or no provision delivered at the School. It was not until October 2021 when most of the planned provision at the School started.
46. Mr X said this was because the Council failed to arrange Y’s provision before the academic year started.
47. The Council arranged a meeting with the School and professionals involved with Y during the second week after the academic year had started. At this stage, this was fault. I have seen no good reason why this did not take place before the end of the summer term, or before the start of the autumn term.
48. This therefore meant Y’s SEN provision at the School during September 2022 was not arranged as set out in his EHC Plan, and it was not until a month later he started receiving most of the intended SEN provision. However, I do acknowledge he did receive some alternative provision outside the School during this time, which the Council funded, this mitigated the impact this would have had on him.
49. I am also satisfied this caused Mr X some distress due to the uncertainty and the time he and Mrs X had to support Y during this time.
50. It is clear Y’s attendance during the autumn term gradually worsened, which Mr X believes was due to the Council’s failure to take enough action, allocate funding, and ensure appropriate staffing had been recruited to support Y. Including, its failure to ensure Y had a peer group he could engage with.
51. However, I have not found the Council at fault for causing Y a loss of SEN provision from October 2021 when the School’s Annex R was in place until it issued Y’s final amended EHC Plan. This is because:
• while the School and the Council disagrees about when the request for the funding of Y’s amended SEN package was provided, the Council agreed and provided the funds to the School. This did not prevent the recruitment of a staff member (a teaching assistant) as Mrs X agreed with the School’s proposal to use the enabling service to support Y;
• the Council had ensured the School had allocated an appropriate staff member and management oversight to deliver and oversee Y’s SEN provision;
• initially Mr and Mrs X agreed with the SEN provision which had been planned for Y. When Y was unable to engage with the planned provision, a reduced timetable was put in place to provide the SEN he could engage with. The arrangement was extended when Y’s placement at the School broke down;
• it considered the School difficulties in providing Y with peer engagements as its cohort did not match Y and they had their own needs, but it facilitated some social interactions through activities outside of the School;
• Mrs X had created Y’s visual timetables since late 2021. When the Council became aware of Mr X’s concerns the School had not created these, it asked the School to do so. However, Mrs X told the School she would continue to make the timetables as this had worked for Y.
52. I acknowledge one of the key needs for Y to engage with his SEN provision was to have other peers and social interactions. This was clear from his previous successes from other providers and activities. The Council placed Y in School Mr and Mrs X’s had agreed to and provided the necessary funding and support to make the placement work. It is clear Y did not have a peer group in school. However, I cannot fault the Council for the School’s lack of peers which could or would engage with Y. Nor, the limited success of his engagement with peers at other activities the School arranged.
53. When it became clear to the Council, the School and Mrs X that Y’s placement had broken down as Y was unable to access the SEN provision available to him, it started the process of finding a suitable alternative placement for him with Mr and Mrs X’s agreement.
54. I understand Mr X feels it took the Council too long to reach this conclusion and to find alternative educational provision for Y. However, I am satisfied the Council properly considered the efforts the School was making and allowed it time to increase Y’s engagement with the SEN provision made available to him, before it reached its decision. It also ensured the school provided some SEN provision and activities for Y with until a suitable alternative provision was identified and available to Y.

Collaboration and communication

55. When reviewing, amending or maintaining Y’s EHC Plan, the Council was required to collaborate and communicate with Mr and Mrs X to ensure it considered their views.
56. The Council gave Mr and Mrs X opportunities to raise their views, and it considered and responded to the concerns they raised. It also held reviews with the School and professionals, including Child in Need reviews at regular intervals or when concerns had been raised. It also responded to each concern or complaint Mr and Mrs X made.
57. I have therefore found the Council did collaborate and communicate with Mr and Mrs X. It and the School were thereafter entitled to reach their views on how Y’s SEN provision should be delivered, and I cannot criticise such decisions.

Due diligence

58. The Council agreed to list and fund the School which Mr and Mrs X had agreed to, and provide Y’s SEN provision as set out in his EHC Plan. Although, the Council delegated this responsibility to the School, it remained responsible for ensuring the provision was delivered.
59. The Council had ongoing communication with the School. This was through scheduled review meetings, Child in Need meetings and as a result of concerns raised by Mr and Mrs X.
60. I have not found fault by the Council for failing to properly review and monitor Y’s progress and attendance. In reaching my view, I am conscious it:
• had a funding package in place, which it asked the School to review following changes to Y’s SEN provision at the start of 2021/2022 academic year;
• considered the views of Y’s previous successful placements, the School, professionals and Mr and Mrs X, and agreed with the provision and timetables the School set out;
• reminded the School of its responsibility to ensure Y received 25 hours of SEN provision and agreed to provide the necessary funding;
• considered and reviewed the School’s Annex R for Y’s reduced SEN timetable when he was unable to attend and engage with the planned activities; and
• discussed the concerns Mr and Mrs X raised to it with the School.
61. I acknowledge Mr X believes the Council failed to ensure Y met the outcomes and progress set out in his EHC plan. However, I am not satisfied Y’s lack of attendance and his lack of progress was due to a failure by the Council to review and monitor his progress.

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Agreed action

62. To remedy the injustice the Council caused to Mr X and Y, the Council should, within one month of the final decision:
1. apologise in writing to Mr X, and pay him £150 to acknowledge the distress and time and trouble he and Mrs X experienced as a result of the Council’s failure to ensure all of Y SEN provision was planned and delivered as set out in his EHC Plan from the start of the academic year;
2. pay Mr X a further £100 to acknowledge limited loss of SEN provision in School which Y missed on in September 2021.
63. Within three months of the final decision the Council should also:
1. Remind its staff to ensure SEN provision set out in children’s EHC Plans are planned and ready to be delivered at the start of the academic year, unless there are circumstances outside its control which prevents this.

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Final decision

64. There was no fault on the substantial matters of the complaint. However, the Council was fault in its delay to plan and implement the SEN provision at the start of the academic year, which caused some limited injustice.

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Parts of the complaint that I did not investigate

65. I understand Mr X may be dissatisfied with the content of the Council’s February 2022 final amended EHC Plan for Y and the SEN provision Y received after February 2022. I have not considered these matters as these can either be appealed to tribunal or it is a new matter which should be brought to the Council’s attention first.

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Investigator's decision on behalf of the Ombudsman