Summary: Mrs X complained about the way the Council met her son Y’s educational needs since 2019. The Council delayed 53 weeks in issuing an amended final Education, Health and Care Plan and failed to ensure the special educational provision was in place for Y between May 2021 and July 2022. The Council agreed to pay Y £6,325 to recognise the impact the loss of education and specialist provision had on him.

The complaint

1. Mrs X complained about the way the Council met her son Y’s educational needs since 2019. Mrs X stated the Council failed to:
1. provide a suitable educational placement for Y between September 2019 and March 2020;
2. provide the provision specified in his Education, Health and Care (EHC) plan since March 2020 to date;
3. failed to amend Y’s EHC plan following an annual review in May 2021; and
4. properly respond to her complaints about the matter.
2. Mrs X stated this had a devastating impact on Y as he had no social interaction and missed two and half years of education leading up to his GCSEs.

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What I have and have not investigated

3. I have exercised discretion to investigate point B of Mrs X complaint. Mrs X has been aware of the issue for more than 12 months however I consider there is continuing injustice to Y as a result of this fault.
4. I have investigated point C of Mrs X’s complaint.
5. 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). I have not investigated point A of Mrs X’s complaint about the suitability of the educational placement for Y between September 2019 and March 2020. There is not a good reason why Mrs X did not complain to us earlier about this issue.

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The Ombudsman’s role and powers

6. 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)
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)
8. 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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How I considered this complaint

9. I read the documents provided by Mrs X and discussed the complaint with her on the telephone.
10. I read the documents the Council sent in response to my enquiries.
11. I considered our Guidance on Remedies, which is available on our website.
12. 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

Education, Health and Care Plans

13. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.
14. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
15. EHC plans must be reviewed every 12 months. 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. If it decides to amend the plan, it should start the process of amendment “without delay”.
16. Where a council proposes to amend an EHC plan, it must send the child’s parent the proposed amendments. The child’s parent has 15 days in which to comment on the draft amendments. If the council decides to continue to make amendments after receiving the comments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the proposed amendments to the parents.

The SEND Tribunal

17. There is a right of appeal to the Special Educational Needs and Disability (SEND) Tribunal if a parent disagrees with the special educational provision or the school, or type of school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.

Duty to secure provision

18. 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). 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)
19. 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. 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.

What happened

20. Y lives with his parents Mr and Mrs X and sibling. In 2019, Y was high school age and had additional needs that meant he needed support in some areas of his life.
21. In Summer 2019 Y moved to the Council’s area from Council B. Council B had previously refused to issue an EHC plan for Y and Mrs X had appealed to the SEND tribunal. After the family moved, the Tribunal listed the Council as a respondent to the claim.
22. Mrs X contacted the Council in September 2019 about a school place for Y.
23. The Council wrote to the SEND tribunal in November 2019 and stated it conceded the appeal and intended to issue a draft EHC plan for Y within the next 7 to 14 days.
24. At the beginning of March 2020 Y began attending school A.
25. In March 2020 the Council issued a final EHC plan for Y. It wrote to Mrs X and told of her of her right of appeal to the SEND tribunal if she disagreed with the content of the plan. The plan named school A and stated that Y required:

• small classes of 12 people or less;
• full access to the curriculum; and
• support to develop social skills and reduce anxiety.

26. At the end of March 2020 the country was impacted by COVID-19 and all schools closed to most pupils. Schools re-opened to pupils in September 2020.
27. In November 2020 the school contacted the Council and stated it had concerns about Y’s attendance and whether it was the appropriate provision for Y.
28. In December 2020 the school held an early annual review meeting because of its concerns. A Council officer attended the annual review. The Council provided some advice to the school about gathering further professional advice. Mrs X requested amendments to the provision specified in Y’s plan. After the annual review, the Council did not notify Mrs X whether it intended to maintain, amend or cease the plan, nor did it take any other action.
29. The school held another annual review meeting of Y’s EHC plan in May 2021. It said it could not meet Y’s needs. It stated Y needed a specialist school. The meeting record states a Council officer attended the meeting and agreed the school could not meet Y’s needs.
30. In July 2021 the Council wrote to Mrs X and told her it intended to amend Y’s EHC plan.
31. The Council sent Mrs X the draft amended plan in September 2021. It recorded that Y’s anxiety and attendance was a serious barrier to his learning. It recorded Y needed one-to-one teaching and a gradual transition into a school. The Council asked Mrs X to provide her comments on the amendments. Mrs X provided her comments on the draft plan.
32. Mrs X complained to the Council in October 2021. She stated Y was not getting an education or help with his anxiety and was being failed by the Council. Mrs X asked where she could get help for Y. The Council did not respond to this complaint.
33. Mrs X asked the Council for a progress update. In November 2021 the Council stated it was continuing to consult with schools to find a suitable placement for Y. It assigned Y a new caseworker.
34. The Council sent Mrs X a further draft amended plan, with some minor changes in October 2021 and asked her to provide her comments within 15 days.
35. Between December 2021 and March 2022 school A repeatedly contacted the Council to try and discuss Y’s provision. The Council did not respond.
36. In March 2022 Mrs X chased the Council for an update. The Council assigned Y another new caseworker. It had still not finalised Y’s plan.
37. Mrs X complained to us in April 2022. We asked the Council to consider Mrs X complaint. Mrs X complained that:

• the Council had not provided education to meet Y’s needs;
• Y had not been in school for two years and was only receiving three hours online tuition per week;
• the Council had failed to take action following the EHC plan review in May 2021; and
• there had been a high turnover of caseworkers and poor communication.

38. The Council consulted some schools in April 2022. It consulted school A which said it could not meet Y’s needs. It sent the Council an outline of an alternative provision it could put in place for Y along with the cost of that provision. The Council did not respond.
39. The Council responded to Mrs X in May 2022. It said:

• it had significantly delayed in processing Y’s annual review;
• school A was responsible for delivering provision and was providing an alternative provision for Y;
• it should have logged Mrs X contact in October 2021 as a request for information not a complaint, and it had not responded to it; and
• there were significant gaps in its communication with Mrs X and changes in caseworkers.

40. The Council apologised to Mrs X and said the caseworker would contact school A about the provision it ‘may be able to provide’ for Y.
41. Mrs X asked the Council to reconsider her complaint as she was dissatisfied with its response. The Council responded in June 2022 and confirmed it partially upheld its previous findings about the delays in the EHC plan review process and poor communication. It did not explain why the complaints were partially upheld when it had fully upheld them previously. It said it had spoken to the school about the provision for Y and it could not be increased and it would keep Mrs X updated with the progress on Y’s case. It also said its complaint policy did not allow it to provide compensation.
42. The Council issued Y’s final amended EHC plan in August 2022. It included the amendments identified in September 2021. In section F it recorded Y’s education would be delivered through an education otherwise than at school programme (EOTAS). The Council told Mrs X of her right of appeal if she disagreed with the content of the plan.
43. The Council held a meeting with Mrs X in August 2022. It apologised for the delays in the statutory timeframes, poor communication and lack of oversight of the provision implemented by the school. It discussed how the Council would support Y in the future.
44. At the end of September 2022 the Council caseworker wrote to a letter to Y. They apologised for the delay relating to his EHC plan and in progressing his educational provision. Mrs X states the council sent the letter to her, she asked it to personalise the letter before sending it to Y, but did not receive a further response.

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My Findings

Education, Health and Care Plan

45. When Y’s EHC plan was reviewed in December 2020 and Mrs X requested changes to the specified provision, the Council did not take any action or tell Mrs X whether it intended to maintain or amend the plan. That was fault and caused uncertainty about whether the agreed to her requests or intended to amend the provision in Y’s plan.
46. When it reviewed Y’s EHC plan in May 2021 the Council should have told Mrs X of its intention to amend the plan within four weeks. It took nine weeks which is fault. The Council then made the amendments and sent the draft amended plan to Mrs X for her comments without delay. The Council should then have issued the amended final plan within eight weeks. The Council took 44 weeks. The overall delay of 53 weeks was fault. Y was without a plan that appropriately reflected his needs, and without a final plan Mrs X was unable to appeal to the tribunal about the provision or the named educational setting.

Provision

47. The Council was responsible for ensuring Y received the specified provision as set out in his EHC plan. The Council cannot delegate that responsibility. The Council should have ensured the provision was in place when it was initially arranged in March 2020, when it attended the early review in December 2020, when it completed the annual review in May 2021 and when Mrs X complained it was not in place in October 2021. The Council took no action and missed the opportunities to ensure the specified provision was in place for Y earlier.
48. The school stated it could not meet Y’s needs in May 2021. The Council was aware Y was only receiving 3 hours online tuition and did not take any positive action until August 2022. This was fault and meant that Y did not receive the special educational provision specified in his EHC plan for 14 months. Y lost access to education, personal and social development opportunities and this negatively impacted his mental health.

Complaint handling

49. The Council told Mrs X at both stage one and stage two of its complaint procedure that delivering the special educational provision in Y’s plan was the responsibility of School A. This was incorrect and was fault. Although a council can ask a school to deliver provision on its behalf, it must ensure the provision is in place and respond to any concerns raised that it is not being delivered. It is ultimately the Council’s responsibility to ensure a child receives provision set out in their EHC plan. The Council should have done more to investigate Mrs X’s concerns. This was fault which caused Mrs X frustration.
50. The Council acknowledged its communication with Mrs X was poor during both its complaint responses. The records show this did not improve after the Council considered Mrs X’s complaint and said it would maintain better communication. That was fault and caused Mrs X further frustration.
51. The Council upheld all of Mrs X’s complaints, apologised and stated it would improve its service. When it considered the complaint at stage two it stated that it partially upheld her complaint, but did not explain why. It took no further action to identify or remedy the injustice caused to Y or to Mrs X. It stated that its policy did not allow it to provide compensation. This is not the case. The policy makes no reference to the remedial actions the Council can or cannot take in dealing with an upheld complaint. That was fault and caused Mrs X further frustration. I have recommended appropriate actions in line with our guidance on remedies, to remedy the injustices caused and improve the Council’s service below.
52. The Council stated it provided training to staff in June and September 2022 in relation to the importance of adhering to statutory timescales for issuing and amending EHC plans. However, I found ongoing fault in the Council in relation to the statutory timescales, which suggests the Council needs to take further action.

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Agreed action

53. The Council has acknowledged it was at fault and has apologised for the delay in the EHC plan process and the lack of appropriate provision. However, it has not taken any steps to remedy the injustice caused to Y or to Mrs X. I have therefore made appropriate recommendations to remedy the injustice caused.
54. Within one month the Council will:

• Write to Mrs X and apologise and pay her £500 to recognise the uncertainty and frustration caused to her by the Council failing to adhere to the statutory timescales, delaying in providing her right of appeal and its poor complaint handling;
• pay Mrs X £6,325 to recognise the impact on Y of the lack of education and special educational provision between May 2021 and July 2022. Mrs X should use this for Y’s educational benefit in a way that she sees fit.

55. Within three months the Council will:
1. remind all relevant officers that the Council’s duty to secure the specified special educational provision in an EHC plan is owed personally to the child and is non-delegable;
2. review how it tracks the progress of EHC plans from assessment to issue, and annual reviews. It will ensure it has a robust system in place for identifying and addressing cases that are exceeding statutory timescales; and
3. share the learning from this case with all relevant caseworkers and consider whether any additional training is needed.
56. The Council will provide us with evidence it has complied with the above actions.

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Final decision

57. I have completed my investigation. I found fault causing injustice and the Council has agreed to my recommendations to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman