Summary: Mrs X complained about the Council’s actions in relation to her child’s, Y, Education, Health and Care Plan (EHC Plan) and how it managed her complaint. The Council was at fault. It failed to provide some provision as outlined in Y’s EHC Plan. The Council has agreed to apologise to Mrs X and pay her £900 for some of the provision Y lost and for the frustration and uncertainty it caused to her. The Council was also at fault for poorly communicating with Mrs X in relation to her request for mediation and how it managed her complaint. The Council has already offered Mrs X a personal remedy and has made a service improvement. This was appropriate. The Council will also review with staff its complaints procedure to prevent a recurrence of fault.

The complaint

1. Mrs X complained about the Council’s actions in relation to her child’s, Y, Education, Health and Care Plan (EHC Plan). She said the Council:
1. issued a final EHC Plan in December 2021 which she said was not suitable to support Y’s identified needs;
2. failed to engage with the mediation process;
3. failed to deliver some provision in the EHC Plan; and
4. did not provide Y with alternative provision when they were unable to attend school due to mental health matters.
2. Mrs X also complained the Council did not properly manage her complaint.
3. Mrs X said this has negatively affected Y’s mental health as well as their learning and social development. Mrs X had to seek legal and psychiatry advice as the Council did not respond to her request to amend the EHC Plan. Mrs X wants the Council to apologise, provide her and Y with a financial remedy to acknowledge the faults and reimburse her with the legal and psychiatry fees.

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What I have and have not investigated

4. I have investigated sections ‘b’, ‘c’ and ‘d’ of Mrs X’s complaint and how the Council managed her complaint. This covers the period between December 2021, when the Council issued the final EHC Plan and September 2022, when the Council responded to Mrs X’s complaint.
5. I have not investigated section ‘a’ of Mrs X’s complaint. This is because we cannot investigate matters which have been appealed to a tribunal. Mrs X appealed to SEND Tribunal in June 2022 in relation to the contents of the EHC Plan issued in December 2021.

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The Ombudsman’s role and powers

6. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
7. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
8. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6))
9. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
10. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
11. 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)
12. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

13. I spoke with Mrs X and considered information she provided.
14. I considered information the Council provided.
15. I considered our “Guidance on Remedies”.
16. Mrs X and the Council had the opportunity to comment on the draft version of this decision. I considered their comments before making a final decision.

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What I found

Education, Health and Care Plans

17. Some children and young people with special educational needs and disabilities will have an Education, Health and Care Plan (EHC Plan). The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs.
18. Councils are 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.

Appeal rights

19. 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. 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 EHC plan has been issued.

Mediation

20. Mediation allows a parent and council to settle a disagreement about the content of an EHC Plan, with the support of an independent mediator. Guidance states a mediation process must be considered before the parent submits an appeal to the SEND Tribunal. If a council receives a request for mediation, it must complete the mediation process within 30 days of receiving the request and then issue a mediation certificate. If mediation does not take place within 30 days of the request, the council must inform the independent mediator. Following this, the independent mediator will issue the parent a mediation certificate.

Alternative provision

21. Section 19 of the Education Act 1996 states 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.
22. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have.
23. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health.
24. Our 2022 focus report on children out of school, “Out of school, out of sight” highlights what action we expect councils to take to fulfil their responsibilities when children of compulsory school age cannot go to a school. This includes councils to:
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible;
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible; and
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases.

The Council’s complaints procedure

25. The Council investigates complaints in relation to children with special educational needs and EHC Plans under its corporate complaints policy. It has a stage one and stage two investigation process. Under stage one of its process, the Council will:
• send the complainant confirmation within three working days of receiving the complaint; and
• investigate the complaint under stage one and aim to respond to the complainant within 20 working days with an outcome. If the Council cannot meet this deadline, it will contact the complainant, explain its reasons why and advise them when it expects to complete the investigation.
26. The policy states the Council can bypass stage one of its process and escalate the complaint directly to stage two. Under stage two of its process, the Council will:
• aim to respond to the complainant within 25 working days with an outcome; but
• if the investigation is likely to take longer, it will inform the complainant of this, explain its reasons why and aim to respond within 65 working days with an outcome.

What happened

27. Mrs X’s child, Y, has special educational needs and has an EHC Plan.
28. In July 2021, the Council completed an annual review of Y’s EHC Plan. Prior to then, Y received home-based education due to a history of school refusal caused by anxiety. By mid-December 2021, the Council issued a final EHC Plan.
29. The provision outlined in Y’s Plan required a specialist support assistant to act as Y’s key worker and provide 25 hours or more of support each week to Y.
30. Y’s EHC Plan also included:
• a specialist advisory teacher to visit Y in school every two weeks until Y was settled into class-based learning. The specialist advisory teacher would ensure staff at the school supported Y’s social communication which included making and maintaining friendships with their peers. The visits would then be reduced to one visit per half-term but the specialist advisory teacher would continue contacting the school every two weeks via email or telephone;
• the Council to arrange a meeting every two weeks in relation to Y’s transition plan for the School, specialist advisory teacher and Y’s parents to attend;
• Y to receive regular sessions with a mentor/mentors to discuss any difficulties and what was going well. This was to be provided by Y’s specialist support assistant or the classroom teacher; and
• provision for Y to interact with their peers. This included Y to interact with a peer during Lego therapy for 20 minutes each week, Y to start conversations with peers every week for 20 minutes and daily interaction with peers.
31. Towards the end of January 2022, Mrs X told the Council she was unhappy with the content of Y’s EHC Plan. She said:
• some provision which professionals had recommended during the annual review had not been included in the EHC Plan. The missing provision included support for Y’s anxiety; and
• the frequency and quantity of some provision which was in the EHC Plan was not specific.
32. Mrs X asked the Council to consider her comments and to amend the EHC Plan. The Council acknowledged Mrs X’s request and said it would review her comments. However, the Council did not review Mrs X’s request.
33. At the beginning of February 2022, Mrs X and a mediation provider contacted the Council and requested mediation to reach an agreement with it in relation to amending the EHC Plan. The Council scheduled a mediation meeting for mid-March 2022. However, the Council failed to communicate with the mediation provider and provide it relevant documents prior to the meeting. Between March 2022 and May 2022, Mrs X with the mediation provider contacted the Council on numerous occasions to arrange a mediation meeting. The Council was unable to commit to a meeting. At the beginning of May 2022, the mediation provider issued Mrs X a mediation certificate which stated the Council had failed to engage with the mediation process.
34. Towards the end of February 2022, Y stopped attending school due to an incident which occurred between Y and their specialist support assistant. The incident had increased Y’s anxiety. Mrs X said the specialist support assistant the Council had assigned to Y was not suitable as they were not experienced and had failed to develop a good relationship with Y. Y did not want to continue working with the specialist support assistant.
35. Mrs X said during Y’s absence from school, the Council had not provided Y with any education. The Council said it was not aware Y was absent from school until 24 March 2022. Mrs X said she had emailed the School and the Council earlier to inform them Y would not be attending school. Whilst Y was absent from school, the School did not send Y schoolwork to complete at home as it did not want to exacerbate Y’s anxiety. However, Y had access to online learning if they wanted to re-engage with their education.
36. Towards the end of March 2022, the Council met with the School to arrange a plan for Y to return to school. The plan included:
• Y to attend school for two hours per day. The Council was to review this with the School and gradually increase their attendance when appropriate to; and
• Y to have a new temporary key worker in the meantime, whilst the School and the Council arranged for a permanent specialist support assistant to support Y.

Y returned to school at the end of March 2022.

37. At the beginning of May 2022, Mrs X complained to the Council. She said she had to seek legal advice and incurred costs in doing so because the Council had failed to respond to her request to amend the EHC Plan and did not respond to her request for mediation.
38. Mrs X also told the Council during the annual review meeting in July 2021, a specialist advisory teacher had recommended input from a mental health specialist to support Y with their school-related anxiety. As the Council had not included this provision in the EHC Plan, Mrs X had to privately fund a psychiatrist.
39. As part of a resolution, Mrs X wanted the Council to reimburse her with the amount of money she had paid for legal advice and for the psychiatry input.
40. The Council acknowledged Mrs X’s complaint and said it would respond to her within 10-20 working days. However, the Council did not respond to Mrs X until the end of June 2022. It apologised for its delay, told Mrs X it would investigate her complaint at stage two and it would take up to 65 working days.
41. In June 2022, Mrs X’s solicitor wrote to the Council and said Y was not receiving provision as outlined in paragraphs 29 and 30 of this decision. The Council:
• liaised with the School and asked it to confirm if the provision in the EHC plan was being delivered to Y. The School gave a check list which it had completed recently which said the provision was in place; and
• told Mrs X it had funded the School to provide a specialist support assistant to support Y. As the relationship had broken down in February 2022, the School had to allocate an existing member of staff to temporarily support Y as their key worker. The staff member was not able to provide Y with 25 hours of support each week as they were not employed as a specialist support assistant and was committed to supporting other students in their substantive role. The School had managed to secure another specialist support assistant to start from September 2022 who would be able to support Y full-time.
42. The Council was satisfied provision was in place in line with Y’s EHC Plan. By this time, Y’s attendance at the school had increased between 3.5 and 4.5 hours a day.
43. In June 2022, Mrs X also appealed to SEND Tribunal about the final EHC Plan the Council had issued in December 2021. In her appeal, Mrs X said the Council had failed to include provision to meet Y’s identified needs. Whilst Mrs X waited for SEND Tribunal to review her appeal, the Council carried out a reassessment of Y’s needs and as a result, issued a new final EHC Plan in August 2022. This EHC Plan is not part of this investigation.
44. In September 2022, the Council responded to Mrs X’s complaint and:
• recognised it had communicated poorly with Mrs X in relation to her request to amend the December 2021 EHC Plan and her request for mediation. It explained to Mrs X its service had been under pressure due to an increase of caseloads and a shortage of staff;
• apologised to Mrs X and offered a symbolic payment to her of £100 for the time and trouble she had experienced complaining and £250 to acknowledge its failure to commit to mediation;
• told Mrs X it now had a dedicated team to respond to requests from parents for mediation, to prevent a recurrence of fault;
• told Mrs X as she had appealed to SEND Tribunal in June 2022, it was unable to provide any comments on her request to amend the EHC Plan; and
• asked Mrs X to forward her request of reimbursement of fees to another team.
45. Mrs X sent the Council an invoice of fees she had paid however did not receive a response from the Council. The Council told us it had not considered Mrs X’s request for a reimbursement of fees because the invoice did not specify what work had been carried out by the solicitor and the psychiatrist. However, there is no evidence the Council told Mrs X this or asked her for further clarification as required.
46. Mrs X did not accept the Council’s remedy payment of £350. She remained unhappy and complained to us.
47. In her complaint to us, Mrs X said:
• between December 2021, when the Council issued the final EHC Plan, and July 2022, the specialist advisory teacher had visited the school on two occasions only;
• the Council had arranged and attended five transition meetings between December 2021 and July 2022. Mrs X said as a result, Y had little support with their transition into school which affected their learning and mental health;
• Y did not receive regular sessions with a mentor/mentors; and
• Y did not receive sessions where they could interact with their peers, including Lego therapy.

The Council’s response to my enquiries

48. In response to my enquiries, the Council said:
• from the beginning of January 2022, Y attended class-based learning. The specialist advisory teacher observed Y had settled in well. They had visited the school in February and May 2022;
• between December 2021 and July 2022, the Council had arranged and attended six transition review meetings. Mrs X was also present during the review meetings. The Council provided me with a list of the review meetings and when they took place;
• the School confirmed Y had received regular sessions with one of two key workers daily. The School provided a sample of discussions and observations which had taken place between staff at the school and Y; and
• some peer interaction was included in Y’s lesson plans. The Council also provided me with a copy of stories from Y which showed Y was at times meeting with their peers. In relation to the Lego therapy, the Council provided me with lesson plans that included Lego therapy in January 2022 and some in February 2022.

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Findings

Mediation

49. At the beginning of February 2022, Mrs X with a mediation provider requested the Council for mediation to discuss amending the EHC Plan it had issued in December 2021.
50. Between February 2022 and May 2022, there is evidence Mrs X with the mediation provider, contacted the Council many times to arrange a mediation meeting. The Council failed to complete the mediation process, in line with guidance. This was fault. The Council said this was due to an increase of work and a shortage of staff.
51. The Council recognised it had poorly communicated with Mrs X and had failed to engage with the mediation process. It apologised to Mrs X and offered her a symbolic payment of £250 to acknowledge its fault. The remedy the Council offered to Mrs X was in line with our “Guidance on Remedies”. We would therefore not recommend an alternative remedy. As Mrs X previously declined the Council’s remedy, the Council has agreed to offer it again to Mrs X.
52. The Council also made a service improvement to prevent a recurrence of fault. This was appropriate and what we would expect the Council to do.

Y’s provision in the EHC Plan

53. Y’s EHC Plan stated a specialist support assistant would act as Y’s key worker to support them at school. When the Council issued a final EHC Plan in December 2021, Y had a specialist support assistant in place to act as their key worker, however in February 2022, their relationship broke down. Mrs X said this was because the key worker was not suitable. I am not able to comment on whether they were suitably experienced or not to support Y but I am satisfied the specialist support assistant was in place.
54. When Y returned to school towards the end of March 2022, Y had a temporary new key worker in place until the end of term, July 2022. The key worker was not a specialist support assistant and they were not able to provide full-time support to Y during this time. Although I recognise it is difficult to recruit specialist workers at short notice, the Council was under a duty to ensure the educational provision outlined in section F of the EHC Plan was provided to Y. Therefore, as a specialist support assistant was not in place, the Council was at fault. I cannot say if the Council had provided Y with a specialist support assistant to act as their key worker full-time, that Y would have been able to attend school full-time, given Y was absent from school for a month due to anxiety and then required support to gradually increase their hours of attendance at school. However, I recognise this fault would have caused Mrs X uncertainty that Y may have been able to return to full-time education sooner.
55. Y’s EHC Plan stated a specialist advisory teacher would visit the school every two weeks until Y was settled into class-based learning and then visit once every half-term but contact the School every two weeks via email or telephone. This was to support Y with their social communication with their peers. Mrs X said the specialist advisory teacher only visited the school twice between December 2021 and July 2022. The Council’s evidence shows the specialist advisory teacher visited the school in February and May 2022. I recognise the specialist advisory teacher had planned to reduce their visits initially as they believed Y had settled into class-based learning however, considering Y was absent from school due to anxiety between the end of February and March 2022, I would have expected the specialist advisory teacher to increase their visits following Y’s return. Therefore, on the balance of probabilities, I cannot say Y consistently received this provision in line with their EHC Plan. The Council was at fault.
56. Y’s EHC Plan stated the Council would arrange a transition review meeting every two weeks. Mrs X said between December 2021 and July 2022, five review meetings took place. The Council said during this time, six review meetings took place. The evidence shows the review meetings did not take place every two weeks as it was stated in Y’s EHC Plan. This was fault and caused Mrs X frustration.
57. Y’s EHC Plan said Y’s specialist support assistant or a classroom teacher would provide Y with regular mentoring sessions. The EHC Plan does not specify the frequency of this provision. The evidence shows Y was receiving this provision. The Council was not at fault.
58. Y’s EHC Plan stated Y would receive provision to interact with their peers daily and weekly. The evidence shows Y received some of this provision but not all. Therefore, on the balance of probabilities, I cannot say Y consistently received this provision in line with their EHC Plan. The Council was at fault.

Alternative provision

59. Mrs X said during Y’s absence from school between February 2022 and March 2022, the Council had not provided Y with alternative educational provision. The Council said it was not aware Y was absent from school until 24 March 2022. Mrs X disagreed and said she told the Council straight away when Y stopped attending school. Even if the Council was aware earlier Y was absent from school, it is likely there would have been a delay for the Council to get a plan in place to provide Y with educational provision. It would have required some time to assess the matter and the impact their school related anxiety might have on their ability to engage in learning, before starting a plan to reintegrate Y back into school. As a result, I do not intend to investigate this period further as there is not enough evidence of fault to justify investigating it further.
60. At the end of March, the Council took action to arrange for Y to return to school on a gradual basis. The Council with the School put in place a suitable plan for Y, considering their school-related anxiety, for Y to return to school and re-engage with their education. The Council reviewed the reintegration plan and gradually increased Y’s attendance at the school. This is what we would expect the Council to do as it is in line with guidance in our focus report, “Out of school, out of sight”. There was no fault with how the Council made its decision to reintegrate Y back into school.

Mrs X’s complaint with the Council

61. Mrs X complained to the Council at the beginning of May 2022. The evidence shows the Council acknowledged Mrs X’s complaint within three working days. It told Mrs X it would respond to her complaint within 10 and 20 working days.
62. In June 2022, Mrs X contacted the Council on numerous occasions asking it for an update on her complaint as more than 20 days had passed. It was only towards the end of June 2022, the Council told Mrs X it had decided to investigate her complaint at stage two and would respond to her within 65 working days. This was fault. The Council poorly communicated with Mrs X and it did not manage her complaint in line with its complaints policy. The Council should have told Mrs X within 20 working days of receiving her complaint that it was going to investigate her complaint at stage two of its complaints process and that this would take longer.
63. The Council recognised it poorly managed Mrs X’s complaint. It apologised to her and offered her a payment of £100 to acknowledge this. This was appropriate and in line with our “Guidance on Remedies” therefore I have not recommended an alternative personal remedy. As Mrs X previously declined the Council’s remedy offer, the Council has agreed to offer it again to Mrs X.
64. In addition, I have made a recommendation to the Council to make a service improvement to prevent a recurrence of fault.

Mrs X’s request for a reimbursement of fees

65. Mrs X asked the Council for a reimbursement of fees she had paid for legal advice and psychiatry input. She said she had sent the Council a copy of the invoices. The Council said the invoices did not clearly state what Mrs X had exactly paid for. It appears the Council did not inform Mrs X it required a breakdown of the services she had paid for. The Council was at fault as it failed to properly communicate with Mrs X which caused her uncertainty. It should have explained to Mrs X what information it required. The Council should now inform Mrs X what information it requires. It is not our role to decide if it should reimburse Mrs X with the fees she had paid. That will be for the Council to consider, once it has the relevant information it needs.

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Agreed actions

66. Within one month of the final decision, the Council has agreed to:

1. apologise to Mrs X for the frustration and uncertainty it caused her when:

• Y did not have a full-time specialist support assistant to act as their key worker between the end of March 2022 and July 2022;
• the specialist advisory teacher did not visit the school in line with Y’s EHC Plan;
• transition review meetings were not completed every two weeks, as outlined in Y’s EHC Plan; and
• some provision in relation to peer interaction had not been delivered to Y in line with their EHC Plan.

2. pay Mrs X £900. This is to acknowledge some of the provision Y lost outlined as above and for the frustration and uncertainty caused to Mrs X.

3. apologise to Mrs X for not informing her what information it required to consider her request for a reimbursement of fees. The Council will also send Mrs X a letter clearly explaining what information it requires and give her the opportunity to respond; and

4. re-offer Mrs X the payment of £350 to recognise its poor communication in relation to her request for mediation and her complaint.

67. Within one month of the final decision, the Council has also agreed to review with staff its complaints policy and remind staff to keep complainants updated within the timeframe stated in its policy. This means if the Council cannot respond to a complaint within the expected 20/65 working day timeframe, it should tell the complainant within the 20/65 working day timeframe and explain its reasons for the delay.
68. The Council will provide us with evidence it has complied with the above actions.

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Final decision

69. I have now completed my investigation. The Council was at fault. It has agreed to our recommendations to remedy the injustice caused and prevent a recurrence of fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman