Summary: Mrs X complained the Council failed to review her daughter’s Education Health and Care plan (EHC) within the required timescale and that her daughter did not receive a suitable education or the EHC plan provision that she should have had. This impacted her education and progress. It also caused anxiety and distress. We found the EHC plan timescales were not met and Y did not have a suitable education in the period of the complaint. We recommended the Council apologised and made a payment to reflect the injustice caused.

The complaint

1. Mrs X complains the Council failed to ensure her daughter received the support required by her Education and Health Care (EHC) plan. She also missed education because of the impact of this.
2. In addition, Mrs X complains the Council failed to meet the timescales required by the SEN code when reviewing her daughter’s EHC plan.
3. Mrs X complains the impact of unmet needs and delays with the EHC plan affected her daughter’s health and delayed her progress and educational attainment.

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The Ombudsman’s role and powers

4. 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)
5. 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

6. I spoke to Mrs X and considered the information she provided. I asked the Council for information and I considered its response to the complaint.
7. Mrs X and the Council had an opportunity to comment on my draft decision. I considered the comments I received before making a final decision.

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What I found

SEN Code of Practice 2015

8. 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.
9. Section 42 Children and Families Act states Councils have a duty to secure the specified special educational provision in an EHC plan for the child or young person. 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)
10. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance. The requirements include:
11. 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. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
12. If a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
13. Where a council proposes to amend an EHC plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
14. 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. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)

What Happened

15. Mrs X complains on behalf of her daughter (referred to in this statement as Y). Y has had an Education and Health Care (EHC) Plan since April 2020.
16. Y’s EHC Plan specified the provision she needed. This included:
• a bespoke timetable with a high level of flexibility.
• a predictable and reliable learning environment, where changes are not made without prior knowledge.
• a place to go where she can rest and relax.
• a key adult with whom she can build a trusting bond.
• generally making reasonable adjustments so Y can access a broad and balanced curriculum.

Review of the EHCP - Timescales

17. An annual EHC plan review meeting took place on 10 March 2021 and the Council received the annual review report from Y’s school on 29 March 2021.
18. On 21 April 2021 the Council sent a letter to Mrs X confirming the outcome of the Annual Review would be amendments to the EHC plan. This was six weeks after the review.
19. The Council sent an amended notice on 28 June. Mrs X provided comments on 5 July. The Council sent further amendment notices on 29 July and 8 October 2021. Y’s final, amended EHCP was issued on 10 February 2022.
20. The revised EHC plan included much of the support set out previously, but it also set out the need to:
• Make reasonable adjustments so that Y could access her lessons when too unwell to attend school and to enable Y to listen to a recording of lessons, either live or recorded.
• A weekly 1-2-1 session with a key adult (overseen by a teacher) and monthly 1-2-1 with a teacher to enable her to ask questions.
21. I note the EHC review for 2022 took place on 2 March 2022, after which an amendment notice was issued on 13 April.
22. There is evidence Mrs X was chasing progress alongside raising concerns about her daughter’s existing provision not being met (see below). This was because of difficulties at school. As of 6 September 2022, the revised EHC had not been issued.
23. We asked the Council what was causing the failure to meet the EHC timescales. The Council stated that it had struggled with staff sickness, retention and recruitment. It stated this resulted in cases being handed between officers and it also affected its ability to meet the required timescales.
24. The Council told us there had been improvement in its overall performance. The Council noted it was working to a Written Statement of Action following an internal review and findings of an Ofsted and CQC inspection in 2020. The action plan was signed in late 2020. It identified amongst other things that the timeliness of assessing, writing and publishing EHC plans was poor and improving this should be a priority. As at 2020 it only issued 41% of EHC plans within the 20 weeks required. The Council aimed to gradually improve its performance to ensure at least 50% of EHC plans were issued within 20 weeks by August 2021, and 75% were issued in 20 weeks by January 2022 (top quartile of national performance).
25. The Council stated it has put in place measures to support recruitment and retention and three new staff were due to start in September 2022.

Y’s attendance at school and receipt of EHC provision

26. Y’s EHCP as at April 2020 required a bespoke timetable to be provided that took account of her medical and emotional needs and that her learning environment was as predictable and reliable as possible. Amongst other things it stated an individualised approach would be needed and reasonable adjustments should be made so that Y could access a broad and balanced curriculum.
27. Mrs X provided evidence that she had been raising concerns and chasing the progress of updates to Y’s EHC plan during the Summer Term 2021. This followed the March 2021 EHC plan review meeting. Mrs X explained that to support Y when she was not able to attend school she had asked the school to consider using an AV Robot (a device to live stream a class to a pupil at home or elsewhere, which also allows the pupil to speak and participate in the class). Mrs X told us the school would not agree to use this due to safeguarding concerns, although it had recorded classes during the COVID-19 lockdown.
28. Mrs X says she raised concerns several times with assessment and review officers, but the person in this role changed. The school did not respond to questions asked about how they were meeting Y’s needs and using the funding they had to do so.
29. Mrs X stated, at the start of the Autumn term, there were a number of issues with the school not putting in place the provision Y needed. In September 2021 Mrs X made the Council aware that problems at the school were continuing. In particular, the timetable that Y was sent was not correct or sufficiently detailed (the timetable was a standard system produced timetable not the bespoke timetable which reflected what Y would be doing). Further details of the timetable were only sent the evening before Y was due to start. The school had also made changes to tutor groups and which classes Y would be in, Y had not had prior introduction to the new tutor or the new classroom. There was poor communication about these changes.
30. There was also confusion over what date Y was due to start school. This meant that other children in her year group started before she did. In addition, the school had not identified Y’s key support worker or explained how she would be supported in lessons.
31. Because of the confusion, the failure to set out what Y would be doing in advance and because Y’s year group returned to school ahead her, this made Y feel anxious and at a disadvantage. It heightened her anxiety for various reasons. The impact of the anxiety made Y ill and she was not able to return to school in September 2021.
32. In early October Mrs X raised concerns about how the school would meet Y’s needs while she was too ill to attend school. She stated the software, Google Classroom, was not sufficient to meet Y’s needs. Although it had been used during the COVID-19 pandemic, I understand it allowed access to documents and enabled pupils to ask questions, but this was not a substitute for seeing the lesson being taught. Mrs X referred again to the use of an AV Robot. Mrs X told us the school would not agree to stream/record the class citing safeguarding concerns.
33. After contact from the Council on 8 October 2021, the Council agreed to fund an online A level course for Y to access at home (later documented in Y’s revised EHCP). I understand Y started this course and returned to school attending a small number of lessons in November 2021.
34. Between October and December 2021, Y attended some classes on a part-time basis, as much as her health would allow. In January and February Y was ill and this meant she was unable to attend school. Mrs X stated from January 2022, recordings of parts of the lessons was put in place. (I note that the need for Y to listen to or view the lesson live or recorded was included in the revised EHC plan)
35. Mrs X stated there was confusion about which modules of her BTEC course were a priority and because Y was unable to attend school and trying to access the course outside school was causing stress and anxiety, Y decided she should stop this course in March 2022. Although other modules of the course had been done, this meant the qualification could not be completed.
36. Mrs X explained that because Y would not gain the BTEC qualification, the issue that prevented her completing the final modules, put Y’s progress back and delayed her progress to higher education and ultimately into work.

Was there fault by the Council

37. There was fault in the way the Council dealt with Y’s EHCP. To adhere to the SEN Code, the revised EHCP should have been in place by 28 July 2021. The delay in issuing the final EHC plan was fault.
38. Y’s conditions, and the affect that these had on her school attendance were understood. Mrs X had raised concerns during the summer term that the school were not making adjustments to meet Y’s needs, and this was affecting Y’s health and her educational progress. Several of the requests Mrs X made to try and help Y continue with her education while she was unable to attend school full time were included in her final EHCP in February 2022. Most notably for Y to be able to listen to lessons, in addition to receiving course content material. Had the Council issued the EHC plan within the statutory timescales, it is likely that the support provided to Y would have been improved.
39. Y’s ECHP both before and after February 2022 explained Y’s need for a predictable environment and bespoke timetable. Unfortunately, the school actions in the days leading up to the start of the Autumn Term 2021 did not adhere to these principles. This caused anxiety and led to a worsening of Y’s health. While obviously difficult for Y, these were the actions of the school rather than the Council. Because these events happened just before the start of term the Council is unlikely to have been able to step in to rectify the issue immediately.
40. However, given there was ongoing delay in issuing the EHC plan for a further 5 months, again, it is likely that had the EHC plan been in place sooner, additional support may have been available to Y that helped her continue education until she was in a position to attend school more regularly.
41. The delays in considering Y’s needs and producing an EHC plan that supported them, and the overall failure to meet Y’s EHC plan provision over the same period represent fault that caused Y an injustice.
42. Y is likely to have suffered anxiety and more isolation from not being well enough to attend school, that may have been limited had the situation been dealt with sooner. Also, in March 2022 Y decided she could no longer continue with the BTEC course, this meant, unfortunately, that she did not achieve a qualification for the work that she had done, to a high level, up that point. Mrs X notes that this put back her daughter’s progression. This was through no fault of Y’s.
43. I found that Y was without suitable education for much of the period between September 2021 and February 2022 because, largely she was unable to attend school and suitable alternatives were not found to maintain her education. Y’s EHC plan needs were also not being met within that period. This was exacerbated by the delays in issuing her updated EHC plan. The EHC plan, when issued, contained additional support, that, if provided earlier, could have helped avoid some of the impact upon Y and Mrs X. In stating Y was without a suitable education I note that Y was able to attend a small number of classes within this period, and some lessons began to be recorded from January 2022. However, in the period overall, the predictable learning environment that Y needed was not available to her. Funding for a separate online course was made available, but I have reflected in my recommended remedy that the impact on Y was her inability to continue on and complete the course she had been working towards for some time. It also caused distress as Y was anxious and the situation affected her physical health.

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Agreed action

44. To recognise the impact of the failings we have identified on Y, the Council should apologise and pay her £1800.
45. To recognise the time and trouble Mrs X was put to in pursuing the situation and her complaint I recommend the Council pays her £200.
46. I note that the Council has been working to a Written Statement of Action following an internal review and findings of Ofsted and CQC inspection in 2020. The Ombudsman has made four recommendations for improvement in 2022/2023 following findings of fault about adherence to EHC plan timescales or provision of alternative education. I recommend the Council reviews its progress towards improving these areas of its practice in the light of this further finding of fault.

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Final decision

47. There was fault that warrants a remedy. I have completed my investigation and closed my file on the basis the Council provides the remedy and takes the actions set out in this statement.

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Investigator's decision on behalf of the Ombudsman