Summary: The Council was at fault in failing to make most of the provision detailed in the complainant’s child’s Education Health and Care Plan since January 2020. It also failed to properly conduct reviews of the Plan during this period. These faults have caused injustice to the complainant and to her child. We have reconsidered how the Council should remedy the injustice, having taken into account the Council’s and the complainant’s additional comments. The Council has agreed the revised remedy for the injustice caused by its faults. We have therefore completed our investigation and are closing the complaint.

The complaint

1. The complainant, whom I shall refer to as X, says that Bury Metropolitan Borough Council has failed to meet her child, Q’s, educational and special educational needs since they stopped attending school in 2019. Specifically, she says it has failed to:
1. put in place suitable education for Q since their school placement at P School broke down in the autumn term in 2019;
2. make any of the special needs provision detailed in Q’s Education, Health and Care (EHC) Plan since the autumn of 2019;
3. arrange an early review or amend Q’s EHC Plan following the breakdown of the placement at P School which means the Plan still names P School as Q’s placement though they have not attended there for nearly three years;
4. properly complete annual reviews that took place in September 2020 and May 2021 even though the meetings decided the Plan needed to be amended on both occasions;
5. deal with the complaint X submitted about these issues adequately or in a timely manner.
2. The injustice X says she and Q have suffered is:
• Q has missed out on educational and special educational needs provision that meets their needs since September 2019 and has been caused avoidable distress as a result of this;
• X has been caused avoidable distress as a result of the poor provision for her child and it has affected her ability to work;
• X has been denied the opportunity to appeal to the SEND Tribunal as a result of the failure to complete annual reviews; and
• avoidable frustration as a result of the poor handling of her complaint.

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The Ombudsman’s role and powers

3. 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)
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. A previous investigator discussed the complaint with X and considered the written information provided. We made written enquiries of the Council and considered all the information before reaching the first draft decision.
7. We decided to exercise discretion to consider the matters X has complained about since November 2019. This is because X complained to the Council initially in late 2019 and had repeatedly tried to resolve matters in the period since then. X hoped that agreements reached at the EHC Plan reviews would result in improvements that never materialised, and we do not consider it was unreasonable for X to expect these agreements would be honoured before she complained again in 2021.
8. We issued a draft decision statement to the Council and to X. The Council disagreed with aspects of the draft statement, in particular the recommended remedy. I have taken into account the Council’s further comments when amending the draft statement. I also spoke to a senior Manager in the special educational needs department, and I spoke to X on the telephone. The Council and X has now had an opportunity to comment on my amended draft decision. I have taken into account their further comments before reaching my final decision.
9. 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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What I found

What should have happened

10. 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 Special Educational Needs and Disability (SEND) Tribunal can do this.
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. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
12. 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 special educational provision is detailed in Section F of the Plan.
13. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance. Councils must review EHC Plans at a minimum once every 12 months.
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. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
15. Where a council proposes to amend an EHC plan it should start the process of amendment without delay. 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)
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. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
17. A parent may request an early review of an EHC Plan if they believe a child’s needs have changed or the plan is no longer meeting the child’s needs. This could include where a school placement has broken down.

Personal budgets

18. A personal budget is an amount of money identified by a council to deliver provision set out in an EHC Plan where the parent or young person is involved in securing that provision. Councils must provide information that sets out a description of the services across education, health and social care that lends itself to the use of personal budgets.
19. Councils should prepare a budget when requested. Parents/carers can ask for a personal budget when an EHC assessment confirms that a council will prepare an EHC Plan or during a statutory review.
20. Parents/carers can be involved in securing provision through the use of direct payments, or an arrangement where the council or school hold the budget, or third party agreements where direct payments are managed by an individual or organisation, or a combination of the above. Parents/carers should be given an indication of the level of funding at the planning stage. The final allocation of funding must be sufficient to secure the agreed provision and should be set out in section J of the draft EHC Plan.
21. If a council refuses a direct payment, it must explain its reasons in writing to the parents/carers and inform them of their right to ask for a review of the decision.
22. Direct payments are governed by separate regulations-the Special Educational Needs (Personal Budgets) Regulations 2014.

Children who cannot attend school for medical reasons

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. Statutory guidance confirms that, while there is no legal deadline to start alternative provision, it should be arranged as soon as it is clear that a child will be absent for health reasons for more than 15 days.
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)
25. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
26. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

The Covid-19 period

27. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published “Principles of Good Administrative Practice during COVID-19”. The relevant legislation to this complaint:
• on 18 March the Department for Education announced that from 23 March 2020 all schools were to remain closed until further notice, except for children of key workers and vulnerable children, as part of the country's ongoing response to coronavirus. Vulnerable children included those with EHC plans; and
• on 30 April the Secretary of State for Education published a notice to modify the duty relating to EHC plans during the coronavirus outbreak, so that local authorities could discharge this by using their 'reasonable endeavours'. The notice applied from 1 May 2020 to 31 May 2020 which was extended to 30 June 2020 and then extended again to 31 July 2020. So, councils should have considered what EHC plan provision they could make during the reasonable endeavours period and provided parents with a copy of their decision on this.

What happened

Background

28. Q is now 15 years old. Q is diagnosed with Autistic Spectrum Condition (ASC), significant sensory processing difficulties and struggles with extreme anxiety.
29. Q stopped attending school in the first year of secondary school in November 2018. Q found it difficult to leave the house unaccompanied. X says that between November 2018 and October 2019 Q attended school on a maximum of four days.
30. Q was issued with an EHC Plan in July 2019. It named the school that Q should attend as P School, an independent special needs day school. Q attended P School until the end of the term in July 2019 but did not return in September 2019 and did not attend after that.
31. Section F of Q’s EHC Plan detailed what provision should be made by education staff to meet Q’s educational needs and this included:
• Support with developing skills around social interaction;
• Structured opportunities for positive interaction with their peers;
• Access to a flexible and creative curriculum to build Q’s resilience, attention and concentration;
• Sensory input to support Q’s attention and concentration across the curriculum based on Occupational Therapy (OT) advice received in January 2019, and attached as an Appendix to the EHC Plan;
• to apply strategies to regulate their response to challenging emotions seeking advice from Child and Adolescent Mental Health Services (CAMHS) when needed;
• support and encourage Q to develop their understanding of friendships and to develop their friendships;
• support Q to identify risk and keep themselves safe online and in the community;
• enable Q to build positive relationships with education staff;
• enable Q to build confidence and self-esteem by focussing on her strengths; and
• access to sensory input to support Q’s attention, concentration and emotional wellbeing including incorporating OT advice.

Provision since 2019

32. The Council says that between September and November 2019 P School tried to work with Q and X to enable Q to return as things had gone well there in July.
33. The Council says that a number of multi-disciplinary meetings took place to try to resolve matters and to “track support” between September and November 2019.
34. In December 2019, seemingly further to a complaint submitted by X, the Council made a referral for alternative education provision for Q. The referral stated:
• Q had not attended school since November 2018;
• Was diagnosed with ASC;
• Was issued with an EHC Plan in July 2019;
• Provided with a place at P School in July 2019;
• After Q left, P School sent homework and some home visits were undertaken by the school but the relationship between Q and the School had broken down. It was agreed that home tuition would be arranged as alternative provision;
• A meeting had been arranged for January 2020 to reach a decision on whether to formally end the contract with P School and make long alternative arrangements for Q in line with her EHC Plan;
• The tuition requested was to be one to one, initially homebased then moving to a different venue outside the home and starting with four one hour sessions a week to be gradually increased to 25 hours a week;
• A named tuition provider was detailed and described as having a proven track record of engaging well with children who were unable to attend other forms of education and children with ASD.
35. Face to face home tuition commenced in January 2020 initially with two to four hours a week of Maths and English with agreement to gradually increase this to 25 hours a week. The tutor confirmed that she was provided with a copy of Q’s EHC Plan before she began working with Q. The tutoring moved online in March 2020 due to Covid-19 restrictions and X’s health needs and a need for her to shield. The Council says that these arrangements needed to remain in place throughout the Covid-19 period for the benefit of X’s health needs.
36. The Council says the tutor was a specialist in ASC, a registered teacher and experienced in working with children with ASC and children who “have a history of non-engagement with other provision”. The notes of review meetings note that the tutor worked well with Q and the relationship appears to have been positive.
37. The local Child and Adolescent Mental Health Service (CAMHS) also began working with Q in January 2020 and provided mental health support to her including prescribing medication and help to manage anxiety.
38. In August 2020 X emailed the Council about possible alternative school placements for Q. X named two schools for consultation. The Council agreed to approach these two and suggested approaching a Pupil Referral Unit (PRU) as well. X replied by stating she did not consider the PRU would meet Q’s needs in the way the two schools named would.
39. The Council’s chronology confirms that it did consult these two schools in November 2020. It says neither of these consultations were successful. The Council says it could not have begun the process of identifying possible school before this as it was not possible to visit schools during the Covid-19 lockdown period due to X’s need to shield and that Q was only agreeable to online learning during the period.
40. In March 2021 a psychiatrist who had seen Q, had advised continued medication for anxiety and also put in place sessions with a clinical psychologist to do further work on managing anxiety and “emotional dysregulation”. In June 2021 the psychiatrist provided an account of a further review which noted that Q was still receiving online tuition but was struggling to engage with this. It also confirms that the psychiatrist increased Q’s anxiety medication and that sessions with the clinical psychologist would continue.
41. In April 2021 the Council agreed to provide funding for Q to have a laptop to support learning. X purchased this and the Council reimbursed the costs as agreed.

X’s request for a personal budget of May 2021

42. X wrote to the Council asking for a one-off payment of between £5,500 to £6,000 for a swimming pool in the garden. X explained that Q could not access communal pools because of the sensory difficulties around noise and light. X explained that Q was good at swimming and this increased self-confidence, emotional regulation and reduced stress. It was also the only form of physical exercise appropriate for Q. The tutor working with Q supported the request and attached a letter to X’s request confirming this.
43. This request was refused by the Council.
44. X has provided a copy of an email, sent in June 2021 which said the Council had refused to agree to the personal budget request at that time because “the EHCP is out of date and needs amending with updated information”. The panel that had considered the request wanted CAMHS to conduct a review of Q’s sensory needs and provide updated recommendations given Q was not in school.
45. The Council says the SEN team did not agree to the request and forwarded the request to CAMHS as it considered the provision was related to health needs rather educational needs. It says that in August 2021 CAMHS considered this was not a matter for it to consider and suggested the OT service might be the most appropriate service to approach. The Council says the OT service has not yet provided a response. There is no evidence to show that the Council has chased up a response from the OT service.
46. In September 2021 the Council again decided the EHC Plan needed to be updated and that another school should be considered. There is no evidence any further action was taken regarding that school. However, an Educational Psychologist (EP) assessment was completed in January 2022. According to X this was completed over the phone by a student EP who spoke only to X and not to Q. X says that the sufficiency of that assessment has been queried by social work staff currently working with the family. In its recent comments, the Council says it has commissioned an external service to undertake some one‑to‑one work with Q to establish their views and then put together a bespoke education package and social opportunities to meet needs around that.
47. In October 2021 an email refers to a multi-disciplinary meeting regarding Q. The email confirms that Q’s EHC Plan was to be amended, Q was to be referred to the Principal Educational Psychologist for their advice and to update the assessment from 2017 and a sensory assessment was to be arranged. Other online work for Q was to be investigated.
48. In December 2021 a further multi-disciplinary meeting again agreed that an updated EP and sensory assessments would be sought. The email following this meeting states the Council aimed to update the EHC Plan by mid-December.
49. The Council has provided details of the financial support it has put in place towards Q’s education since 2019. This amounts to around £33,000. It has not however provided details of how many hours of teaching have been provided or what this tuition has covered or provided except to say this initially focussed on Maths and English.
50. The Council says that appointments for Q with CAMHS have been missed. I am unclear how many appointments this covers but the CAMHS provision was not provision the Council was required to provide. The Council also accepts, however, that it should have referred some matters to the CAMHS provider earlier including supporting Q to find ways to engage with others and activities outside the home as part of the Section F provision.

The EHC Plan

51. Q’s most recent final EHC Plan is dated July 2019. It named P School as the placement. The EHC Plan has not been amended even though Q has not been attending P School. The Council recognises this is the case and says a new school would have been named when one was identified. It also says that the Covid-19 period caused issues with visiting schools as this could not have happened as X was shielding during this period. It says it began consulting schools when it could (October 2020) but these were not successful. It says that the Council decided in September 2021 that an updated EHC Plan was needed and an EP assessment to inform this and that this assessment took place in January 2022. However, X has raised a concern about this EP assessment.
52. There was a review of the EHC Plan in September 2020. This confirmed that a specialist tuition service was providing tuition to Q at that time. At that time, following the Covid-19 lockdown period earlier in the year, Q was receiving three hours a week face to face tuition at home. The review identified that Q was agreeable to investigating school placements with a view to a planned return. Two possible schools to approach were identified. The review meting recommended that the EHC Plan was to be amended. Additional actions were identified to undertake formal consultation with three named schools and for the tutor to look for online maths work for Q. It does not seem that any amendments were completed.
53. A further review took place in May 2021. At this time Q’s educational attendance was noted as “Lessons proceed online 100% of the time but Q’s engagement varies dramatically”. The two schools Q had expressed an interest in, and which were consulted, both said they were unable to meet Q’s needs. In addition, however, the annual review report stated that Q’s mental health had declined, and she was no longer in a position mentally to be able to transition back to school. The report noted that Q was still working with the one-to-one tutor at home for six hours a week. This had seemingly been online but was reverting back to face-to-face provision. The recommendations of the review included that the Plan needed to be amended and that X had asked for a personal budget for Q. In addition, agreement was made for a new EP assessment to revisit the outcomes detailed on Q’s EHC Plan given Q was not attending school and to try to investigate options for future provision for Q.
54. The Council says a draft plan was issued in December 2021 but what appears to have been produced then is a copy of the 2019 Plan with some notes added by one of the professionals involved. This does not amount to a Plan that had been formally amended following the May 2021 review.
55. In April 2022 X chased the Council about updating the EHC Plan and making adequate provision for Q.
56. In July 2022 the Council wrote to X to say it intended amending Q’s EHC Plan. I assume this related to the decision made at the review that took place in May 2021. The Council says it envisaged the amended draft plan would be issued by mid-August. X heard nothing further and did not know who Q’s caseworker was. X emailed and chased the SEN team a number of times but received no response.
57. By way of explanation of what happened following the second review, the Council says the work was allocated to an agency member of staff due to staff shortages and the agency worker left prior to the end of their contract. There was a change in Team Manager at the same time, so it seems the combination of these two events resulted in the work not being completed. The Council is clear that this is not an excuse but an explanation as to what happened at the time.
58. X says no sensory assessment has yet been completed.

X’s complaints to the Council

59. X complained to the Council in September 2021. In the complaint, X said:
• the Council had failed to provide education in a school for Q for nearly three years;
• Q’s ability to engage with their one-to-one tutor was variable and made worse by the lack of other support provided and detailed on the EHC Plan;
• X’s request for a personal budget to purchase equipment to meet Q’s sensory and physical activity needs had been wrongly refused;
• no sensory input had been made since November 2018;
• the review of the EHC Plan in September 2020 and May 2021 both recommended amendments to the Plan but none were completed;
• Q’s EHC Plan should have been reviewed in late 2019 when the school placement broke down but no review took place until nearly a year later;
• the Council failed to issue letters to X following review meetings in 2020 and 2021;
• an agreed EP assessment in the review in May 2021 had not been followed up.
60. The Council provided its response to this complaint in April 2022 which was seven months later. It stated:
• it would not consider complaints about matters that took place in 2018 and 2019 as its policy states it will not consider complaints about matters that took place more than 12 months after the matter complained about and relevant staff had left the Council’s employment;
• the Council had employed more staff in the SEN team so services should improve in future;
• Q’s case would be overseen by a senior SEN caseworker going forward, a copy of the updated EP assessment had been received and the new caseworker would update the EHC Plan;
• the new SEN caseworker would consider and assist with X’s request for a personal budget.
61. X then complained to the Ombudsman.
62. In its comments to me the Council has acknowledged responses to X’s complaints “drifted” as a result of significant staff turnover in the SEN team. It also says this meant that X did not have a named officer for Q for much of the period in question and this added to the difficulties. It also says that whilst its investigation of X’s complaint was delayed as a result of the involvement of another Council department it failed to properly explain this to X.

Additional comments from the Council

63. The Council told me that children services became involved because of child protection concerns about X over-medicalising issues, referred to by the Council as Fabricated Induced Illness (FII). This meant that the SEN staff thought they should not take further action until a decision had been made on this. Q is still subject to a child protection plan.
64. The Council also says that X was requesting hydrotherapy for Q, but Q could not attend a communal swimming pool and therefore X was requesting a swimming pool to be installed in the garden. The Council says that there was no professional support for this request. It is not clear whether the Council has an appeal process for negative decisions about personal budget requests.
65. In addition, the Council says that, during 2020 and 2021, over the Covid-19 period, X said that they had to shield because of health needs. It was agreed in April 2021 that face-to-face tutoring could be resumed. The Council considers it is not reasonable to make a symbolic payment for missed education for this twelve month period.
66. The Council also says it is liaising with its Education Psychology Service and has asked a local charity to ascertain Q’s wishes.

X’s additional comments

67. X explained that she had made a complaint about a CAMHS doctor and after that he referred her to Children Services as possible FII. Q is still subject to a child protection plan. But X says that she has asked for this to continue because Children Services has been putting pressure on SEN to update Q’s EHC Plan. X confirmed that Q has a tutor and in theory Q should receive 25 hours tuition per week. But since Covid-19, Q has regressed and sometimes refuses to come out of the bedroom.
68. X says that Q’s sensory needs are extensive: Q cannot cope with noise, light, changes in temperatures, certain foods or materials including buttons and fasteners. When writing, Q presses too hard and suffers wrist pain. Q suffers from motor tics. Q is now very isolated, often preferring to remain in the bedroom, and spending time on his computer games. X says that Q is good at Maths and is intellectually able. Q enjoys History and Science, and X thinks there is no reason why Q cannot obtain necessary qualifications to be able to pursue some form of training. X wants Q to be able to live more independently of her.
69. X confirms that she did ask for a personal budget to have a swimming pool because swimming was the only activity Q could cope with and X was desperate to meet Q’s sensory needs. Q could not cope with a communal pool. But, since Covid-19, X thinks that even swimming would now be a struggle and X could not afford to heat a pool.
70. X told me that she finally received a draft EHC Plan this month (March 2023) but the current draft Plan is not informed by an up-to-date EP or OT assessments. X says that, without dealing with Q’s extensive sensory needs, Q will struggle with receiving education. X says that she has explained this many times to the SEN department, but it has ignored her request for OT therapy and assessment. While this has not been provided, Q’s condition has seriously deteriorated.
71. X now considers Education Otherwise Than At School (EOTAS) may be the only option. X thinks a personal budget, where she can buy in the education and sensory support, might be best. Q needs extensive help to engage both in social situations and tutoring.

Findings-Was the Council at fault and did this cause injustice?

Complaints a) and b)

72. The Council put in place some home tuition from January 2020. Based on the information provided and what X has told me this has mostly amounted to between two and four hours a week with slightly more occasionally. X is clear that Q is unable to properly manage even a low level of educational input without the sensory support detailed in the EHC Plan and this has not been provided at any point since January 2020. The failure to make this provision is fault and has resulted in Q being restricted to receiving a very low level of education since April 2021, when it was agreed that face-to-face tuition would resume.
73. I recognise that following its refusal of X’s request for a personal budget in May 2021 to enable her to buy facilities to provide this sensory support for Q, the Council said it would seek updated information/assessment of these needs. It had still not done so by October 2022 and I cannot see that this has been obtained for the recent draft EHC Plan. This is also fault that has caused injustice in the form of missed educational and special educational provision.
74. It also appears that Q received no education for most of the 2019 Autumn term. I recognise that during this period attempts were being made up to November 2019 to reintegrate Q into P school and that the school was sending work home for Q and undertaking home visits. It was only in November that the school abandoned these attempts. Given this I consider the Council should have started to seek alternative provision for Q in November 2019 rather than December and so I consider that one month delay in seeking alternative provision amounts to fault. Had it started seeking this provision earlier it seems reasonable to assume it may have been able to secure this earlier, but I cannot say this would certainly have been the case as I do not know whether a specialist tutor would have been available at that time. The injustice this caused therefore is lost opportunity for tuition to have been in place a month earlier than it was.
75. The tuition put in place was originally two to four hours a week with the intention that this would be increased to 25 hours a week when Q began to manage the new arrangement. I have no reason to believe that the Council would not have made this arrangement had Q been able to manage it. However, the apparent failure to put in place the sensory support meant that Q was never in a position to manage much more than four hours tuition a week. As I have stated above, this amounts to fault that caused injustice in lost provision and lost opportunity for increased hours to have been provided to Q.
76. CAMHS provision was in place from January 2020. This no doubt provided Q with emotional/psychological support. However, there were number of provisions in section F of Q’s most recent final EHC Plan that were not addressed at all. These include those related to social skills and relationships and Q’s sensory needs. I recognise that the Covid-19 lockdown period made provision of this difficult, but the Council has provided no comment to confirm it considered how it could make “reasonable endeavours” to meet Q’s sensory needs during this period as it was required to do, and there were no grounds for it to not provide what was detailed in the EHC Plan outside this period. The failure to make this provision amounts to fault that has again resulted in injustice in the form of missed provision.
77. However, I will take into account that X had asked to shield because of her health needs during the lockdown periods.
78. The request for a swimming pool was unusual. But X was desperate to provide an activity for Q which would help with sensory and emotional needs. The Council should have provided an opportunity for Q to appeal the negative response. My view is that it was fault not to do so and a lost opportunity for X to provide any further professional advice to support the request.

Complaint c)

79. The EHC Plan has never been amended or updated so has continued to name P School as the organisation providing Q’s education. This has not been the case for a long time and the Plan should have been amended to reflect this. This omission amounts to fault. The Plan also referred to Q by a name they have stopped using since the Plan was issued in 2019. This also needed to be altered but I believe it has now been amended. I do not accept that the child protection process was a valid reason not to amend the EHC Plan, or carry out any further assessments required to inform an amended EHC Plan. On the contrary, having an updated EHC Plan for Q, covering current education, health and care needs would only have been beneficial to Children Services. It would have put the required provision on a statutory setting. And, if X is correct in saying, Children Services were requesting the SEN department to update Q’s EHC Plan, this should have been done in Q’s best interests.

Complaint d)

80. There is fault in the handling of the reviews in 2020 and 2021: the review meetings that took place in May 2020 and September 2021 were not followed up as they should have been. It seems the meetings decided amendments were required but no action was taken to complete these amendments and the Council did not write to X to tell her either that it did or did not intend to amend the Plan as it should have. This fault caused injustice in the form of frustration, uncertainty and lost opportunity to appeal to the SEND Tribunal.
81. There is further fault in relation to events in July 2022 when the Council wrote to X to say that it was amending Q’s EHC Plan which does not appear to have been a decision following a further review in 2022. The Council should have held a review in 2022 and its failure to do so means that there are more than 12 months since the previous review. This is fault that has caused injustice as Q has lost the opportunity to have the EHC Plan reviewed and a further opportunity to appeal to the SEND Tribunal if X was dissatisfied with the outcome of that review.
82. It is only recently that X has received a draft EHC Plan despite the Council telling her that it would be in touch with her regarding the amendments by mid‑August 2022.

Complaint e)

83. The handling of X’s complaint was delayed, and the response was poor when it was provided, failing to address all the issues raised or acknowledge what had gone wrong or explain why this was the case. It did provide details of action it had taken or would be taking to try to improve services, in future, but these do not mostly seem to have been effective or completed. For example, the Council said a new caseworker would update the EHC Plan, but this was not done until recently. This amounts to fault that has caused X injustice in the form of avoidable frustration and avoidable time and trouble as X has had to complain to this office to have the issues she complained about addressed.

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Agreed actions

84. When recommending a remedy, we seek to remedy the injustice caused as a result of identified fault. The Ombudsman’s guidance on remedies states:
• for injustice such as avoidable distress we usually recommend a symbolic payment to acknowledge the impact of the fault as we cannot put the complainant in the position they would have been had the fault not occurred;
• distress can include anxiety, uncertainty, lost opportunity and frustration;
• where there has been a loss of education, the Ombudsman recommends between £200 to £600 per school month. The amount takes into account a variety of factors including the child’s special educational needs and whether any partial provision was made.
85. I have considered the Council’s comments about the difficulties in providing education during the Covid-19 period and I amended the original recommended actions.
86. I am mindful that Q is in the last year of secondary school, and it is now important to ensure Q’s EHC Plan correctly identifies needs, provision and desired outcomes so that Q can achieve some qualifications for later life, as well as help Q to engage in social situations and OT provision.
87. To remedy the injustice to Q and X the Council will, within four weeks of the final decision on this complaint:
• apologise to X and Q for the identified faults;
• pay £100 to recognise the lost opportunity caused by the failure to seek alternative provision in November 2019;
• make a payment of £500 to recognise the lost opportunity to appeal to the SEND Tribunal as a result of the failure to complete annual reviews in 2020 and 2021;
• make a payment of £100 for the frustration and avoidable trouble caused as a result of the poor handling of X’s complaint to the Council in September 2021;
• make a payment of £3,000 (paid to X) to recognise the avoidable upset, worry and frustration the prolonged period of uncertainty and inaction has caused X and Q;
• make a payment of £8,500 to acknowledge the inadequate and very partial educational provision and special educational needs support provided to Q between April 2021 and October 2022. This is calculated at a rate of £500 per school month (I calculate 17 school months) and takes account of the complete absence of any sensory support which Q needed to enable access to the educational provision and the complete absence of any of the social opportunities and support detailed in Q’s EHC Plan. I have not recommended the highest tariff because online educational provision was offered;
• make a payment of £500 to X for the failure to evidence the Council used ‘its best endeavours’ during the Covid-19 period to ensure Q’s sensory and social needs were met;
• make a payment of £500 to X for the Council’s failure to issue a draft EHC Plan sooner than March 2023 after the annual review of August 2022;
• I am very concerned that a sensory assessment has been identified and agreed several times since June 2021 but has yet to be completed. Moreover, the Council has continued to fail to provide an updated OT report. The Council now agrees to commission such an OT assessment promptly and this now will commence on 4 May 2023. The Council and X will have to accept that any commissioned OT may need time to engage Q. So, it is not appropriate for me to give an end date for the completed OT assessment;
• the Council has now issued a final amended EHC Plan which means X can appeal to the SEND Tribunal if dissatisfied with the EHC Plan. This is the best way for X to ensure that appropriate special educational needs provision is made for Q;
• ensure Q and X are told who Q’s SEN caseworker is and how they can contact them; and
• ensure that the Council gives proper consideration to X’s request for a personal budget, if that is what she considers is best.
88. To improve the service the Council will take the following action, within three months of the final decision on this complaint:
• tell us how it will ensure that EHC Plan reviews are held on time and that the action required following the review meeting is taken according to guidance and timescales;
• the Council says it has already improved its records system which now triggers missed letters including letters following reviews of EHC Plans. The Council should confirm that this is fully operational and confirm that, now it is in operation, it is highlighting where letters have not been sent;
• tell us about its procedure for requesting a personal budget and how a parent/carer can appeal a negative decision.
• confirm how it will ensure that timescales are met in responding to complaints and that complaints are properly addressed in future.

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Final decision

89. There has been fault by the Council. These faults have caused injustice to Q and to X, which the Council has agreed to remedy. I have therefore completed my investigation, and am closing the complaint.

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Investigator's decision on behalf of the Ombudsman