Summary: Mrs X complained her son, Y, was not provided with an education from March 2021 until February 2022. Mrs X also complained the Council did not adhere to the statutory timescales to amend Y’s Education, Health and Care Plan (EHCP) and her complaints have not been responded to within appropriate timescales. This has caused Mrs X distress. The Council was at fault for not amending the EHCP within timescales and did not ensure Y received an appropriate education or provision. There have been delays throughout this case and Mrs X has been put to time and trouble to complain. The Council has agreed to our recommendations to remedy the injustice these faults have caused.

The complaint

1. Mrs X complained her son, Y, was not provided with an education from March 2021 until February 2022. Mrs X also complained the Council did not adhere to the statutory timescales to amend Y’s Education, Health and Care Plans (EHCP) and her complaints have not been responded to within appropriate timescales. This has caused Mrs X distress and she has been put to time and trouble to complain. Y has not received an appropriate education or provision during this time.

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The Ombudsman’s role and powers

2. 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)
3. If we are satisfied with a council’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)
4. 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.
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.

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How I considered this complaint

6. I read Mrs X’s complaint and spoke to her about it on the phone.
7. I considered information provided by Mrs X and the Council.
8. 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

Background information

9. A child with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP 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.
10. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
11. The procedure for reviewing and amending EHCP is set out in legislation and government guidance.
12. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHCP. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
13. Where a council proposes to amend an EHCP, 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. The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
15. 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 EHCP as soon as practicable and within eight weeks of the date it sent the EHCP and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
16. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHCP. The right of appeal is only engaged when the final amended plan is issued.
17. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHCP or about the content of the final EHCP. Parents must consider mediation before deciding to appeal. 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 EHCP has been issued.
18. The council has a duty to secure the specified special educational provision in an EHCP 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. 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.
20. 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)
21. The Ombudsman has issued a focus report on alternative provision. Out of school, out of sight? Focus Reports - Local Government and Social Care Ombudsman

What happened

22. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
23. Y has complex special educational needs and his school requested a needs assessment for him in March 2018. The Council agreed to assess Y and issued an EHCP in December 2018. Mrs X appealed against the contents of the plan to the SEND Tribunal and an updated final EHCP was issued in May 2019. The EHCP named a specialist education placement for Y. The EHCP detailed Y’s sensory needs and detailed advice and therapies for staff to use when working with him. It did not specify Occupational Therapy (OT) or Speech and Language Therapy (SALT) provision. Y was attending school, but he was educated out of the classroom on a part-time timetable with one-to-one support.
24. Y could not access the classroom because of previous incidents in different placements which resulted in a school phobia and significant trauma. Y could not attend school from March 2020 because of the Covid 19 pandemic. He could not return to school when government guidelines following the first school closures were relaxed, allowing children to return to school. This was due to his significant anxiety about the virus being transmitted to family members and his school phobia being exacerbated due to being away from school for so long.
25. Throughout 2020, Y was at home without formal education. The school did try to support Y to access education away from the school building, but this was unsuccessful. Schools were closed again in November 2020 and reopened in December. Schools were closed again in January 2021 and when Y’s school reopened after the third national lockdown in March 2021, it attempted to support Y to get back to school but this was not successful. There were no further attempts to engage Y in education. Mrs X was supporting Y to engage with some education, but he was not accessing appropriate education. He was also not able to access OT and SALT provision she stated he needed and that he had received when he was in school.
26. In May 2021, Y’s school completed an annual review. The school confirmed it could no longer meet his needs. The review confirmed Y’s needs had significantly changed. It recommended the Council amend the EHCP. The Council emailed Mrs X in June and agreed to amend the plan and consult other education providers for a placement for Y.
27. Mrs X contacted the Council several times after the annual review to provide information to inform the updated plan. The Council consulted with education providers, but none were able to offer a place. The Council did not ask professionals for up-to-date reports or assessments to inform the plan.
28. The school arranged a tutor for Y in June 2021, but this tuition did not start. Mrs X had concerns about the tutor’s knowledge about Y’s SEN and their ability to engage with him. Mrs X also stated the location of the tuition could not be at home due to Y’s difficulty separating education and home and issues with professionals coming into the family home.
29. Mrs X complained to the Council in September. She complained Y was not receiving an education and not getting the SALT and OT support he had when he was in school.
30. In September 2021, the Council issued a proposed amended EHCP. This was four months after the annual review.
31. In October, Mrs X wrote to the Council, providing ten pages of suggested changes to be made to the draft plan. She stated OT and SALT has not been included and additional assessments needed completing. She also applied for a personal budget for Y’s education.
32. The school kept Y on roll until December. When Mrs X contacted the Council from May until December, the Council referred her back to school who had already said it could not meet Y’s needs. The Council did consult with other education providers in December, but none were able to meets his needs and offer any provision for Y.
33. The Council agreed at a panel in December, Y needed a tutor. In January 2022, Mrs X accepted the offer of a tutor. The level of tuition was agreed between Mrs X and the Council and started in February.
34. The Council responded to Mrs X’s complaint in late January 2022. The Council upheld the complaint that Y was not being provided with full time education. The Council did not uphold Mrs X’s complaint about Y not receiving OT and SALT she stated he needed due to his significant sensory needs and that he was receiving when he was able to attend school. The response confirmed OT and SALT were not included in Y’s EHCP.
35. Mrs X responded. She said:
• The Council delayed in responding to her complaint.
• Y’s EHCP was four years out of date and did not contain the provision he required.
• Y received no education from March 2021 until February 2022.
• She paid for some educational services, and this caused her financial hardship.
36. In February, Mrs X requested the Council escalate her complaint to stage two. The Council acknowledge this letter and stated it would respond within 25 working days, by the end of March 2022.
37. The Council refused Mrs X’s request for a personal budget to support Y’s education in March 2022, six months after the original application. Mrs X submitted a further request in May and to date Council has not made a decision on the request.
38. The Council responded to Mrs X’s stage two complaint at the end of March. The response upheld the complaint Y has not been provided with an appropriate education from March 2021 until December 2021. The complaint acknowledged the delay in the EHCP process. The response partially upheld the complaint about the OT and SALT provision as this should have been explored as part of the annual review. The response did not provide any remedy for any part of the upheld complaints. The outcome of the complaint was the officer investigating asked for a copy of the EHCP and regular updates about progress.
39. The Council issued a further draft plan in April 2022 including updates provided by Mrs X and professional reports she sourced. Mrs X requested some changes to this draft and the Council issued the final EHCP in June 2022.
40. Mrs X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mrs X would like the Council to provide a financial remedy.
41. In response to my enquiries the Council stated there have been delays in this case, both in the EHCP and complaints process. It stated some delays occurred when Mrs X requested additional time to comment on the draft EHCPs that were issued.

My findings

Delay in issuing amended EHCP

42. It is clear from the documentation, and the Council has acknowledged, there have been significant delays in this case. An annual review was completed in May 2021. The updated plan was not issued within the eight weeks specified in the Special Educational Needs and Disability Regulations 2014. The Council did not issue the initial plan for four months. After another six months and following comments from Mrs X, a further draft plan was issued. The Council issued the final EHCP in June 2022, 13 months after the annual review. Y was taken off roll from the school in December 2021. This would have been an opportunity to hold an emergency review of the plan as there was a significant change in circumstances. However, the Council had not amended the plan from the annual review in May, so this was not possible. This has caused Y an injustice as the Council did not update his EHCP to ensure it was still correct and could meet his needs.
43. The Councils failure to issue an updated EHCP also meant appeal rights were not engaged within an appropriate time so the family could not challenge the content of the plan. This caused further frustration and distress.
44. The Councils complaint response stated OT and SALT were not included in the plan, so it did not have a duty to provide this to Y. The amended final EHCP which the Council issued in June 2022, does contain these therapies. On the balance of probabilities, and given Y was receiving this support when he was in school, it is reasonable to assume if the Council had issued the EHCP within the timescales specified in legislation, these therapies would have been included. If the Council decided not to include OT and SALT, Mrs X would have had the opportunity to appeal. Y lost out on these additional therapies due to the Council’s delay.
45. The Ombudsman takes the view that Councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the required timeframes here amounts to fault.

Alternative provision

46. The Council did not ensure Y received appropriate education from March 2021 until February 2022 when a tutor started. The Council agreed to provide a tutor in December 2021, but the tuition was not set up until February 2022.
47. Sometimes we will recommend a financial payment to the person who brought their complaint to us. This might be to reimburse a person who has suffered a quantifiable financial loss, or it might be more of a symbolic payment which serves as an acknowledgement of the distress or difficulties they have been put through. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider.
48. The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice because of fault by a Council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
49. When a young person has missed education because of fault by the Council, we may recommend the Council makes a symbolic payment to acknowledge the education they have missed and help them to catch up. We usually recommend a payment of between £200 and £600 per school month to acknowledge the impact of that loss, to be used for the young person’s educational benefit.
50. Y did not receive any education. Mrs X funded some education materials during this time. Y has additional needs, and it was recognised he required support for this, as detailed in the EHCP. He did not receive any of this provision either. This adds to the injustice Y was caused. This is not a key stage of education so I consider any payment should be at the middle of the scale set out in our guidance on remedies.

Delays in the complaint process and personal budget request

51. Mrs X submitted the initial complaint in September 2021, but the Council did not respond until January 2022. This is additional delay which has caused further uncertainty and frustration for Mrs X.
52. The Council has still not made a decision about Mrs X’s second personal budget request. This continued delay has resulted in further uncertainty. The communication with the Council has at times been difficult. This is fault and Mrs X has been put to time and trouble pursuing this complaint.

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Agreed action

53. To remedy the outstanding injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Mrs X and Y for not ensuring Y was provided with appropriate education, therapy and for the delays in the EHCP and complaints process.
• Pay Mrs X £300 as an acknowledgement of the time and trouble she has spent pursuing this complaint.
• Pay £2,700 for not ensuring Y had a suitable education from March 2021 until February 2022. This sum includes a remedy for the OT and SALT provision which would have been in place had the final EHCP been issued within an appropriate timescale. This money should be used for Y’s benefit.
• Mrs X should provide receipts to the Council of the money she has paid to provide education materials for Y from March 2021 to February 2022. The Council should make a decision about which of these costs it is willing to reimburse. If it decides it will not reimburse certain of the costs, it should clearly set out its reasoning for this.
• The Council should issue a decision on Mrs X’s personal budget request. If the request is refused, the Council should fully explain its reasons.
• Mrs X would be entitled to make further complaints if she is dissatisfied with any decisions the Council makes about these costs or her personal budget request.

54. The Council should take the following action within three months of my final decision:
• Review its procedures and provide guidance to its staff to ensure EHCP annual reviews are completed within 12 months of the date the EHCP was issued and then within 12 months of any previous review. It should also ensure decisions made to maintain, amend or cease EHCP’s following reviews are issued within the statutory timescales.
55. The Council should provide evidence of the actions taken to satisfy the recommendations.

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Investigator's decision on behalf of the Ombudsman