Summary: There was fault by the Council in the annual review of Mr Y’s Education, Health and Care Plan and a delay in issuing a final plan following the review. This caused avoidable distress, time and trouble and a loss of education. The Council will apologise and make payments in this statement.

The complaint

1. Ms X complained about Oxfordshire County Council (the Council). She said the annual review of her son Mr Y’s Education, Health and Care (EHC) plan in April 2021 was not carried out in line with guidance, as it was so light-touch she did not realise it had taken place despite being present.
2. Ms X also complained:
1. The named education placement in Section I of Y’s EHC plan in 2020 was not suitable because he could not leave the house due to his anxiety.
2. When the Council named a new education placement in Section I on 2021, it was still not suitable as staff were not available to support Mr Y, so he stayed at home.
3. The social care team did not follow child protection procedures before they took her to court, did not follow guidance in Mr Y’s EHC plan, or respect his boundaries when communicating with him. They also put words in Y’s mouth.
4. The Council’s secure email system (Egress) was inadequate.
5. Mr Y has missed education since 2018 because of failings by his then school and the Council.
3. Ms X said this caused them avoidable distress and meant Mr Y missed out on education.

Back to top

What I have and have not investigated

4. I have investigated the complaint in paragraph one. I did not investigate the complaints at paragraph two. My reasons are in the following three paragraphs.
5. Complaints 2(a) and 2(b) had a right of appeal to the SEND Tribunal. We expect people to use this form of redress unless we consider it unreasonable for them to have done so. In Ms X’s case, I consider it reasonable for her to have appealed. Ms X told us she did not appeal because:
• She was unaware of her rights of appeal. However, these rights are set out clearly in the letters which accompany a final EHC plan.
• She has heavy family responsibilities, is a single parent working two jobs and has elderly parents who was home-schooling her other child during lock-down. I note however, that Ms X has support from the local SEN advice service, although limited. And she also had the benefit of legal advice from a firm of lawyers during other court proceedings. Despite these challenging family circumstances, I do not consider it unreasonable for her to have appealed.
• She was attending to court action the Council was taking against her. However, those proceedings took place in 2021 and so were not relevant for the October 2020 EHC plan. The court action ended in August 2021 and Mr Y’s amended EHC plan was issued in September 2021. So, I do not consider proceedings were an obstacle to Ms X appealing the 2021 EHC plan as they ended a month before the final plan was issued.
• Professionals assured her College B could meet Mr Y’s needs, so she did not appeal the 2021 plan to the SEND Tribunal, even though what the professionals were saying did not tally with her own knowledge of College B. This indicates Ms X was aware College B may not be suitable for Mr Y at the time and therefore strengthens my view that it was reasonable for her to appeal to resolve the dispute between her and professionals.
6. We usually expect complainants to use all stages of a council’s complaints procedure. The Council has told us there is still a final response outstanding and has agreed to provide a final response (see reference 22006612). So, I have not investigated complaint 2(c).
7. Complaint 2(d) is about information sharing and I consider the Information Commissioner is best placed to deal with it. In addition, we may choose not to investigate complaints where there is no indication of fault. Egress is a system commonly used by public bodies to transmit information securely. The LGSCO uses it. Using a secure system is generally good practice and we would not regard it as fault.
8. Ms X told us Mr Y has missed education since 2018. She complained to us (through the Parliamentary and Health Service Ombudsman) in February 2022. Complaints about matters before February 2021 are therefore late (see paragraph nine) because they happened more than 12 months before she contacted us. I have investigated matters from February 2021 connected to the annual review process. The court proceedings in 2021 did not prevent Ms X from complaining within 12 months of Mr Y being out of school because they were not until 2021 by which time Mr Y had been out of education for three years. Ms X told me she did not complain earlier because she spent time trying to get support in place for Mr Y and was in the dark about how to complain. She also said she had to use different organisations’ complaints procedures (she has also complained to the NHS) and this was confusing and time consuming and the bodies involved delayed. However, I note Ms X was receiving support from the local SEND advice and information service which could have given her support to complain. On balance I do not consider Ms X’s explanation for her delay in contacting us is a good enough reason for me to investigate matters from 2018.

Back to top

The Ombudsman’s role and powers

9. 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)
10. 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)
11. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan
12. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
13. We provide a free service, but we must use public money carefully. We may decide not to start an investigation if there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6))
14. 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)
15. 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)
16. 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.

Back to top

How I considered this complaint

17. I considered:
• Ms X’s complaint to us, the Council’s responses to her complaint
• Documents set out later in this statement. I discussed the complaint with Ms X.
• The parties’ comments on a first draft of this statement.
18. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and guidance

19. 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 2014). 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)
20. We recognise it is not practical for councils to keep a close eye on whether schools are providing all the special educational provision for every pupil with an EHC plan. We consider 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.

21. Regulation 20(1) of the Special Educational Needs and Disability Regulations 2014 says: “as part of a review of a child or young person’s EHC plan, the local authority must ensure a meeting to review that EHC plan is held… and can require the head teacher or principal to arrange and hold that meeting”
22. Regulations 20(2) and (3) say the child’s parents, the education provider, the SEN officer, healthcare professional and an officer from social care must be invited to the meetings and there must be two weeks’ notice.
23. Regulation 20(4) says the person arranging the annual review meeting must obtain advice and information from those invited to the meeting and circulate it to attendees at least two weeks before.
24. Regulation 20(7) says the local authority must ask the head teacher or principal to prepare written reports on the child or young person setting out any recommendations on amendments to the EHC plan and referring to any difference between those recommendations and recommendations of others attending the meeting.
25. The Special Educational Needs and Disability Code of Practice (the Code) emphasises ‘reviews are generally most effective when led by the education institution’ (paragraph 9.175)
26. The Code also says (paragraph 9.176):
• the school must prepare and send a written report of the meeting to those invited within two weeks of the meeting. The report should set out recommendations about amendments to the EHC plan and refer to any differences in recommendations between the attendees
• within four weeks of the review meeting, the council must decide whether to maintain, amend or cease maintaining the EHC plan and notify the parents and school
• the amendment process should start without delay.
27. The Code goes on to say parents can make representations about any proposed amendments and/or request a particular school/college is named. The parent should have at least 15 days to do this. (paragraph 9.195)
28. The Council should issue a final amended EHC plan as soon as practicable and within eight weeks of sending the proposed amendments (Regulations 22(3) and (4)).

What happened

Background events

29. Mr Y has autism and mental health problems. He has had an EHC plan since October 2020 when he was in Year 12, naming College A. Mr Y never attended College A because of anxiety leaving the house. Mr Y received support from a worker from Children and Adolescent Mental Health Services (CAMHS) (referred to in this statement as ‘the mental health practitioner.’)

Key events

30. At the start of February 2021, Mr Y’s mental health practitioner emailed the SEN officer asking for a review of his EHC plan and for changes to the plan because his anxiety was getting worse.
31. At the start March of 2021, the SEN case officer replied describing the annual review process and asking if there was any information from mental health services available to feed into an early annual review. The SEN case officer said she would expect College A to hold an early annual review if it could not meet Mr Y’s needs.
32. At the end of March 2021, the SEN case officer emailed College A asking if Mr Y was attending college. College A replied saying Mr Y’s mental health practitioner had been working to engage Mr Y and had arranged times to do virtual calls, but Mr Y only greeted the teacher, then asked her to leave call. Mr Y’s mental health practitioner emailed to confirm College A had been flexible in trying to work with Mr Y, but he was not able to manage it because of his mental health.
33. At the start of April, the mental health practitioner emailed the SEN case officer saying Mr Y’s current education was not effective and needed to be adapted.
34. On 8 April, an email from a manager at College A said the college could not meet Mr Y’s educational needs. The manager emailed the following week to say the college would organise an annual review.
35. On 20 April, Ms X emailed the SEN caseworker asking for a bespoke outreach education provider to be put in place for the remainder of the school year.
36. The annual review meeting took place on 21 April, attended by the SEN case officer, a manager from College A and Ms X. Nobody from health or social care attended or were named on the minutes as invited. There were no reports circulated in advance.
37. The Council sent me two written records of the annual review meeting. They are both identical apart from one sentence which is not relevant to the complaint. The record of the review meeting said:
• Mr Y had not attended College A which could not meet his needs because he could not leave the house and there was no on-line course available.
• College A had set up a link to work with Mr Y, the plan had been for virtual calls with the mental health practitioner and College A to engage him to do some online art, however attempts were unsuccessful.
38. The annual review record recommended the EHC plan needed amending and concluded Mr Y needed bespoke one-to-one provision, noting the college environment was too big for Mr Y. Some possible education providers were suggested.
39. On 13 May, the Council consulted with some of the education providers discussed at the review meeting including College B.
40. College B responded on 10 June offering Mr Y a place and one-to-one support for 24 hours a week. Initially there was to be support at home (weekly walks) with a long-term goal of transition to the college site.
41. On 24 June, the Council issued a draft amended EHC plan.
42. An internal email from the SEN case officer at the end of July indicated the Council had consulted with some other placements including residential ones. The email noted Mr Y’s preferences for a visual media or animation course. The email went on to say the SEN officer had met with Ms X who had met with staff at College B.
43. Ms X complained to the Council at the start of September 2021. She said the Council had failed to give Mr Y an education placement and there were delays in the EHC plan process.
44. Also, at the start of September, the SEN case officer referred Mr Y the outreach provider Ms X had asked for in April (see paragraph 35) asking for extra one support for Mr Y for one term to help him transition and reintegrate back into education. (The Council advised me it commissioned the outreach provider for assistance in social, emotional wellbeing and mental health support for Mr Y. The Council explained the outreach provider ‘delivers a variety of highly bespoke social and emotional wellbeing positive behaviour support and alternative education provisions’)
45. On 9 September the SEN officer emailed Ms X saying the placement at College B was agreed with the outreach provider supporting Mr Y the during the first term. On 21 September, the SEN case officer said she had asked College B and the outreach provider for start dates.
46. The final amended EHC plan was issued on 22 September and named College B. It said:
• Ms X reported Mr Y had not left the house for the last two years and had recently been out for short walks around the village. He could not go far from home
• It took several months for Mr Y to build up a trusting relationship with a person before he would speak full sentences and have meaningful interaction.
47. The Council’s first response to Ms X’s complaint in October 2021 said:
• College A held an early annual review meeting on 21 April because of Mr Y’s difficulties attending college.
• The SEN team received incomplete annual review papers three days after the review meeting and fully completed papers on 23 May.
• Consultation letters were sent in May including one to College B. The providers all responded by 22 June. They were based on the previous EHC plan due to delays in receiving the annual review papers.
• The SEN team issued a draft EHC plan on 24 June and the consultation letters were re-sent. The responses were the same.
• The annual review process took longer than the statutory timescales. The Council was sorry for this.
• Mr Y started College B in September (this was not the case). Mr Y also had a support package from a specialist provider to help him transition back to education.
• The final EHC plan naming College B was issued on 22 September 2021, a delay of two months. The Council was sorry for this.
48. On 10 November, the SEN officer noted in an internal email that College B was recruiting staff and trying to source agency staff to support Mr Y. Mr Y’s provision had not started.
49. On 7 December, the SEN case officer chased College B for Mr Y’s start date. It responded saying it aimed to have reduced provision in place for one or two days by the end of January. The outreach support provider emailed the SEN case officer on the same date to say its first session with Mr Y was on 30 November and he was getting two three-hourly sessions a week.
50. Ms X was unhappy with the first response to her complaint and so escalated it to the second stage. The Council’s second complaint response in December 2021 said:
• The outreach provider should have started on 20 October. It visited Mr Y on 23 November
• Mr Y should have started at College B on 22 September. College B told the Council his start date would be 4 January 2022, for two sessions a week with a gradual increase. The Council would discuss this with the college and was sorry for the delay.
• The SEN officer would confirm transitional arrangements and planning to extend Mr Y’s timetable
• It was College A’s responsibility to gather views, collate appropriate reports and circulate these two weeks before the review meeting. These papers were not available, so the SEN case officer contacted the mental health practitioner for an update and this was shared at the review meeting. Social care was contacted at the end of July 2021 for input and Mr Y’s views were included in the final EHC plan.
51. Further emails show College B did not give a start date until after February half term in 2022. The record of the most recent annual review said Mr Y started at College B on 25 March 2022 for one session a week with a facilitator.

Comments from the Council

52. The Council told me:
• It accepted there was a delay in issuing the final EHC plan of October 2021.
• Everyone involved agreed that Mr Y would not be able to access College B from September 2021 and that a gradual reintegration process and building up of trusting relationships would need to take place first. It was therefore not reasonably practical for all provision in the EHC plan to be in place. The college’s consultation response (see paragraph 39) was clear that transition to the college building was not an immediate goal as Mr Y was not able to access the provision.
• The outreach provider offers specialised support in relation to social emotional and mental health needs and is the same type of provision College B put in place once it had staff.

Findings

53. Responsibility for ensuring an annual review meeting happens sits with the Council as per Regulation 20(1). We consider this when we look at where fault which arises from the arranging or holding of a review meeting lies. Regulation 20 and the Code envisage councils may delegate arrangements for the annual review to the school or college and this is what happened in Mr Y’s case. However, the Council is ultimately responsible for ensuring the review arrangements comply with the Code and with Regulation 20.
54. The Council did not ensure College A followed the statutory process for the annual review meeting and this was fault. There was a failure to:
• invite mental health services or social care
• give two weeks’ notice
• obtain advice and information from those invited or circulate this in advance of the meeting.
55. The Council has already accepted it was at fault as it did not keep to the timescales for amending Mr Y’s EHC plan following the annual review meeting. The amendment process should have been completed no later than 12 weeks from the date of the review meeting so by about the middle of July. There was therefore a delay of about two months because the final EHC plan was not issued until 22 September. This was fault causing uncertainty. It meant Ms X had avoidable time and trouble chasing up the Council and making a complaint. It delayed her appeal rights, although this did not cause significant injustice as Ms X did not use those rights.
56. Mr Y should have started receiving some of the special educational provision on the EHC plan at the beginning of term in September 2021. Had the Council followed the statutory timescales for reviewing and amending the EHC plan, on balance he would have started at this point. But Mr Y did not start receiving the bespoke educational outreach provision until 23 November 2021 (as set out in the Council’s final complaint response). This was a delay of two and a half months not including school holidays.
57. We recognise we cannot expect councils to oversee SEN provision closely, but in this case the Council knew there was an issue with Mr Y’s educational provision in that he wasn’t getting any at all. It knew (or ought to have known) the statutory timeframes for amending his EHC plan and that this amendment process should have been complete in July. It also knew Mr Y was not having any education at all at the start of September because all the professionals knew this and Ms X had drawn it to the Council’s attention in her complaint at the start of September. My view is the Council was placed on notice at the start of September through Ms X’s complaint that Mr Y was not getting any provision and should have arranged the bespoke provision at the beginning of September upon receipt of her complaint about the matter.
58. Mr Y did not start at College B until the end of March 2022 because of staffing and other issues. Although College B was named in Section I, other sections of his EHC plan noted he had not left the house for two years and so provision would need to build up gradually. The intention was not that Mr Y would attend college in person straight away, but he would need a gradual transition as he could not cope with being on site from September 2021. On the basis of evidence, it would appear Mr Y could not have coped with any more provision because of his anxiety. I note when he did start to access College B in March 2022, it was only for one session a week in conjunction with the outreach provision. I am satisfied therefore that the injustice to Mr Y is a loss of two and a half months of educational provision (the bespoke transitional outreach provision) that should have started at the beginning of September 2021 had there been no delay in issuing his final EHC plan.
59. I note Ms X requested bespoke provision be put in place in April 2021. However, the Council did not have to secure it then, because it was not on Mr Y’s 2020 EHC plan. There was no requirement to secure provision until the review and amendment process had taken place. So there are no grounds for me to find fault in failing to arrange/secure the bespoke outreach provision before September 2021.

Back to top

Agreed action

60. The Council will, within one month of my final decision:
• Pay Mr Y £1500 to reflect the loss of two and a half months of bespoke outreach SEN provision. This is at the high end of the bracket of between £200 and £600 a month set out in our published Guidance on Remedies and takes account of the fact that Mr Y was not getting any other form of education.
• Pay Ms X £250 to reflect her avoidable distress and time and trouble.
• Apologise to Ms X and Mr Y in writing for the fault and injustice set out in this statement.
61. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

62. There was fault by the Council in the annual review of Mr Y’s Education, Health and Care Plan and a delay in issuing a final plan following the review. This caused avoidable distress, time and trouble and a loss of education. The Council should apologise and make payments in this statement.
63. I have completed the investigation.

Back to top

Investigator's decision on behalf of the Ombudsman