Summary: Mrs X complained about how the Council met her son Z’s educational needs since 2019. Mrs X said the Council failed to provide appropriate education, failed to finalise an Education, Health and Care Plan agreed at tribunal and when it issued the plan the provision was not appropriate for Z’s needs. The Council was at fault for delay in finalising an Education, Health and Care Plan, in not providing education from July 2019 and sufficient special educational provision from February 2021 until December 2021. The Council agreed to apologise to Z and pay him £12,600 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, Z’s educational needs since 2019. She said:
1. the Council failed to provide Z with an appropriate education from July 2019 to October 2022;
2. the Council delayed in finalising an Education, Health and Care (EHC) plan from July 2019 until December 2021;
3. the provision it specified in Z’s EHC plan in December 2021 does not meet his needs; and
4. the Council failed to properly respond to her complaints about the matter.
2. Mrs X said this had a significant impact on Z’s mental health and he lost three years of education. Mrs X said it affected her and her husband’s mental health and ability to work as Z was not in school.

Back to top

What I have and have not investigated

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) I have exercised discretion to investigate point A, up until December 2021, and point B of Mrs X’s complaint, even though some of the events occurred more than 12 months ago. This is because Mrs X first raised her complaint with the Council in June 2020 and did not let the matter rest for any length of time. She was in constant contact with the Council to try and find a solution. Furthermore, the Council did not acknowledge her complaints until after Mrs X complained to us.
4. I have not investigated point A after December 2021 and point C because Mrs X had a right of appeal to the SEND tribunal about those matters. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal (Local Government Act 1974, section 26(6)(a), as amended). It was reasonable for Mrs X to use her right of appeal and as such I have not investigated those matters.

Back to top

The Ombudsman’s role and powers

5. 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)
6. 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.
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.

Back to top

How I considered this complaint

9. I read the documents provided by Mrs X and discussed the complaint with her on the phone.
10. I considered the documents the Council provided 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.

Back to top

What I found

Relevant legislation

Education, Health and Care Plans

13. The Special educational needs and disability code of practice: 0 to 25 years (the Code), is the statutory guidance on councils’ duties in relation to provisions for children with special educational needs. It sets out the legal requirements in relation to Education, Health and Care (EHC) plans.
14. A child with special educational needs may have an EHC plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is written in sections. We cannot direct changes to the sections about education, or name a different school. Only the SEND tribunal can do this.
15. The council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
16. 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. The Ombudsman does consider that 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.

Reviewing the EHC Plan

17. Councils must review EHC plans at a minimum of every 12 months to ensure they remain appropriate for the child’s needs. The arrangements for completing annual reviews is set out in the Code.
18. 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. The guidance states if a council decides to amend the plan, it should start the process of amendment “without delay”.
19. Where a council intends 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.
20. In March 2022 new case law specified where a council notifies a child’s parent it intends to amend the EHC plan, it must send the proposed amendments at the same time (within four weeks of the annual review meeting). It must then amend the EHC plan within eight weeks of sending the proposed amendments. The final amended EHC plan should be issued within a maximum of 12 weeks of the annual review meeting. (R (L, M and P) v Devon County Council [2022] EWHC 493 (Admin)).

The SEND Tribunal

21. The Special Educational Needs and Disability (SEND) Tribunal can consider a council’s decision not to issue an EHC plan. Regulations say that where the Tribunal requires a council to make and maintain an EHC plan the council must:
• issue a draft EHC plan within five weeks of the order being made; and
• send a copy of the finalised EHC plan to the child’s parent within 11 weeks of the order being made.
22. There is a right of appeal to the SEND Tribunal against the content of the final EHC plan. An appeal right is only engaged once a final EHC plan has been issued.

Alternative education provision

23. Councils must arrange suitable education at school or elsewhere for pupils who are out of school for more than 15 days because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.

Council complaints policy

24. The Council’s complaints policy states it will acknowledge complaints at stage one within three days and respond in full within 20 working days. It says it will tell the complainant what it will do to put things right if their complaint is upheld.
25. At stage two the Council will consider whether further investigation is necessary. It will provide a full response within 20 working days. The Council’s policy makes no reference to compensation or financial payments.

What happened

Education and SEN provision

26. In 2019, Z was eight years old and should have attended primary school. Z had a number of additional needs that meant he needed support to access education.
27. Z moved with his family from Council B into the Council’s area in summer of 2019. Council B had previously refused to issue an EHC plan for Z and Mrs X had appealed to the SEND tribunal.
28. Mrs X contacted the Council about a school place for Z in September 2019, but the Council did not arrange this. The same month the tribunal listed the Council as a respondent on the appeal.
29. The Council wrote to the SEND tribunal in November 2019 and stated it conceded the appeal and intended to issue a draft plan within the next 7 to 14 days. The Council states it issued four draft EHC plans for Z between November 2019 and February 2021.
30. The records show Mrs X complained to the Council in June 2020 that Z had not been in education for two years, although Z had only lived in the Council area for one year. Mrs X was in monthly contact with the Council trying to arrange suitable education and provision for Z from June 2020.
31. Between September 2019 and February 2021, Z received no education or alternative educational provision.
32. The Council issued a final EHC plan for Z in February 2021. The plan stated that Z need a structured reintegration programme to an educational setting and catch-up intervention for the education he had missed. It stated he needed:
• One-to-one and small group teaching;
• 30 minutes a week one-to-one social communication skills input;
• one hour a week one-to-one emotional literacy intervention;
• one hour a week therapy with a qualified therapist; and
• up to one hour a week cognitive behavioural therapy input.
33. The plan named the type of school in section I of the plan as a specialist school but did not name a school for Z to attend. The Council informed Mrs X of her right to appeal to the SEND tribunal if she disagreed with the content of the plan.
34. Mrs X appealed to the SEND tribunal about section I of the plan in April 2021 as she wanted a school to be named.
35. In mid-June 2021 the Council arranged for Z to receive six hours a week one-to-one tutoring at home.
36. Mrs X arranged for Z to attend one session a week for two hours at an alternative provision from September 2021 which the Council agreed to fund.
37. Mrs X arranged for Z to attend a second alternative provision for one session a week in October 2021, which the Council agreed to fund. Z now had six hours tutoring and four hours of alternative provision a week.
38. The Council stated it would provide an education other than at school (EOTAS) package for Z in December 2021 and Mrs X withdrew her appeal from the SEND tribunal on that basis. The Council issued a final EHC plan for Z in December 2021 and told Mrs X of her right to appeal to the SEND tribunal if she disagreed with the content of the plan. It stated Z’s provision would be an EOTAS package. The provision remained the same as that specified in the February 2021 plan and was to be delivered by;
• ten hours of tuition;
• three lots of two-hour sessions at alternative provider 1; and
• two lots of two-hour sessions at alternative provider 2.
39. Mrs X contacted the Council in January 2022 and stated the EOTAS package was already failing, and Z was not able to attend the alternative provisions for more than one session a week.
40. Mrs X asked the Council for an emergency review of Z’s EHC plan at the end of May 2022. She said Z was not able to attend all of the sessions at the alternative providers due to his SEN.
41. The Council held an annual review meeting for Z in July 2022. It asked Mrs X to tell it what changes she wanted in the outcomes and provisions section of the EHC plan. Mrs X provided this information the same month.
42. The Council wrote to Mrs X in August 2022 and told her it intended to amend Z’s EHC plan. It did not issue a draft amended plan.
43. In September Mrs X contacted the Council asking for an update as the Council had not provided any further information about the provision or the EHC plan.
44. The Council agreed to fund a EOTAS package for Z in October 2022.
45. Mrs X has told us provision is in place for Z for the academic year 2022/2023 but the Council had not issued a draft or final amended EHC plan.
46. Mrs X said that because Z did not have a school place and was of primary school age Mr X was unable to work. This had a significant impact on the family’s finances and the lack of support and provision for Z affected both parent’s mental health.

Complaints

47. Mrs X complained to the Council in June 2020 as set out in paragraph 29. The Council did not recognise this as a complaint and did not respond.
48. Mrs X complained to the Council in May 2021. She said Z was not in school, that he wanted to be and was entitled to be. She said the lack of education was having a detrimental impact on Z’s mental health and the whole family’s wellbeing. The Council did not respond.
49. Mrs X complained to the Council again in October 2021. She said:
• the Council had not provided Z with an education since September 2019;
• the Council had not supported Mrs X to find an appropriate educational setting for Z;
• she had to accept an EOTAS as there was no other option and it was not meeting Z’s social, academic and mental health needs; and
• there had been a high turnover of caseworkers and poor communication.
50. In April 2022 Mrs X contacted us. We asked the Council to consider Mrs X’s complaint. Mrs X repeated the complaint she made to the Council in October 2021.
51. The Council responded to Mrs X in May 2022. It upheld Mrs X’s complaints, apologised and said:
• it had never provided Z a school place;
• it consulted three schools in 2019 and twelve schools in 2021 but none were suitable;
• Mrs X had agreed to EOTAS as the Council had not been able to secure a school placement;
• it had since consulted another school; and
• the caseworker had significantly improved communication with Mrs X.
52. Dissatisfied with the Council’s response Mrs X asked it to consider her complaint at stage two.
53. The Council responded to Mrs X’s complaint at stage 2 in June 2022. It upheld all elements of Mrs X’s complaint. It said it would continue to work with Mrs X on the provision offered and would keep her updated regularly. It also said its complaint policy did not allow it to provide compensation.
54. The Council met with Mrs X in August 2022 to discuss her complaint. It apologised for the ‘unacceptable delays in statutory timeframes [and] poor communication’. It said that it would issue an amended EHC plan for Z for Mrs X’s to comment on and that a robust EOTAS package must be in place for September 2022.

My findings

The EHC plan

55. The Council conceded Mrs X’s appeal to the SEND tribunal in November 2019. The Code states it should have issued a draft plan for Mrs X’s comments and then a final EHC plan within 11 weeks. The Council took 67 weeks to issue the final plan which is significantly beyond the timescales and is fault. This meant that Z was without an appropriate EHC plan to identify and meet his educational needs and he therefore did not receive the provision he was entitled to, as identified in the plan the Council issued in February 2021. It also caused Mrs X frustration as it delayed her right of appeal to the SEND Tribunal about the content of the EHC plan. The Council has apologised for this delay, however that is an insufficient remedy for the injustice caused.
56. When the Council held the annual review in July 2022 it said it would amend Z’s plan. The Council should have provided the amendments for Mrs X’s comments within four weeks and issued the amended final EHC plan within 12 weeks of the annual review meeting. In December 2022 the Council had not issued the draft amendments or amended final plan. That was a delay of eight weeks and is fault. It caused uncertainty about whether the specified provision met Z’s needs. It also prevented Mrs X from appealing to the SEND tribunal about the content of the plan.

Education and special educational provision

57. From September 2019 onwards the Council had a duty to provide Z an education. The Council did not provide Z any type of educational provision until June 2021. That was fault and meant that Z missed 17 months of education.
58. Between February 2021 and December 2021 Z was entitled to the provision specified in his EHC plan. The Council did not offer Z any kind of education or special educational provisions between February 2021 and June 2021. That was fault and meant that Z did not receive the specialist provision he was entitled to.
59. Between June 2021 and September 2021 Z received six hours provision per week, in September 2021 he received eight hours and in October, November and December 2021 ten hours. I have seen no evidence the Council provided the catch-up intervention or any of the specialist interventions as outlined in paragraph 32 other than the one-to-one teaching. That was fault and meant that Z missed out on the education and special educational provision he was entitled to for a further six months.
60. The records show the Council only took action to provide Z educational provision, an EHC plan or an annual review when Mrs X pushed for it to do so. Mrs X organised and arranged Z provision herself and the Council then agreed to fund it. The duty was on the Council to ensure the EHC plan process was adhered to, and the specified provision was in place. The Council relied on Mrs X to meet those duties and that was fault. It caused Mrs X unnecessary frustration and time and trouble.

Communication and complaint handling

61. The Council acknowledged its communication with Mrs X was poor. 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.
62. The Council upheld all of Mrs X’s complaints, apologised and stated it would improve its service. It took no further action to identify or remedy the injustice caused to Z 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 below in line with our guidance on remedies, to remedy the injustices caused.
63. 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.

Back to top

Agreed action

64. Within one month the Council will:
• write to Mrs X and apologise for the injustice caused to Z by the Council’s failure to provide education, the specified provision and for the delays in the statutory EHC process;
• pay Mrs X £12,600 to recognise the lack of any education or special educational provision provided to Z between September 2019 and June 2021 , and the insufficient education and special educational provision between June 2021 and December 2021. Mrs X should use this for Z’s educational benefit in a way that she sees fit;
• write to Mrs X and apologise for the frustration, uncertainty and time and trouble caused to her and pay her £500 to recognise the same; and
• issue the proposed amendments to Z’s EHC plan for Mrs X’s comments. The Council should issue Z’s amended final plan within 12 weeks and provide Mrs X’s appeal rights to the SEND tribunal. It is open to Mrs X to complain to us about any fault in this process in the future.
65. Within three months the Council will:
1. review its processes for monitoring children who are not in education. It will ensure it has a robust procedure in place for escalating cases to senior managers where children have been out of education for 15 days or more;
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 to identify and address 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.
66. The Council will provide us with evidence it has complied with the above actions.

Back to top

Final decision

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

Back to top

Investigator's decision on behalf of the Ombudsman