Summary: Ms J complained the Council failed to act when her daughter’s school stopped providing her educational provision as set out in her Education, Health and Care plan. The Council agreed it was at fault and apologised. We found its remedy was not enough to acknowledge the loss of educational provision and distress Miss X and Ms J experienced. The Council agreed to make payment to acknowledge the injustice its faults caused them.

The complaint

1. The complainant, whom I shall refer to as Ms J, complained the Council failed to act when her daughter’s (Miss X) school stopped providing her educational provision in March 2022. She said the Council failed to:
• attend the annual emergency review it arranged and meet the timescales to review and find solutions;
• provide any support and properly communicate with Ms J until July 2022;
• provide Miss X’s educational provision as set out in her Education, Health and Care plan; and
• properly investigate and consider her concerns and respond to her complaints in line with its Complaints Policy.
2. Ms J said, as a result, she experienced distress and uncertainty, and had time and trouble to get the Council to address her concerns. She also said Miss X had a loss of education and experienced distress, which was worse due to her existing health conditions.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. As part of my investigation, I have:
• considered Ms J’s complaint and the Council’s responses;
• discussed the complaint with Ms J and considered the information she provided;
• considered relevant law, guidance and policy to the complaint.
6. Ms J and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
7. 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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What I found

Relevant law, guidance and policy

Education, Health and Care Plans

8. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.
9. 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 tribunal can do this.
10. EHC plans must be reviewed every 12 months. 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. If it decides to amend the plan, it should start the process of amendment “without delay”.
11. Where a council proposes 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

Duty to secure provision

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). 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)
13. 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. 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.

Council’s Complaints Policy

14. The Council’s Policy says it will attempt to resolve complaints informally first. If this does not resolve the complaint will acknowledge a complaint within 3 days and provide its final response within 20 working days.

Background

15. Ms J’s daughter, Miss X, has a diagnosis of autism and anxiety. Her specific learning difficulties were set out in her EHC plan in 2019.
16. In 2020 Miss X was unable to access her education in a school setting, the Council reviewed Miss X’s EHC plan, which:
• listed a specialist education provider (School Y) from September 2020, and the SEN provision it should provide such a tutoring, mentoring and access to significant adults. The provision was to be delivered in Miss X’s home;
• set out support from an art tutor should continue and would be funded by the Council, as Miss X had worked with the tutor successfully over several years; and
• any transitions should be managed with significant preparation to limit the impact changes may have on Miss X.
17. In March 2022, School Y’s tutors stopped providing Miss X’s tutoring and support. It did not tell Ms J beforehand, and she tried to resolve the issue with School Y directly.
18. Ms J said School Y stopped communicating with her two weeks later, so she told the Council School Y was no longer supporting Miss X and the placement has ceased.
19. In response the Council arranged an emergency review for five weeks later.
20. On the day of the review, Ms J contacted the Council to confirm it was attending. She said the Council then became aware its allocated case worker was no longer working for the Council, and no other case worker had been allocated. The Council therefore did not attend the review meeting.
21. The emergency review was held where timescales were set out for the Council to progress Miss X’s lack of education and SEN provision.
22. Ms J said following the review meeting no educational provision, or funding for this was offered, and she received no communication or responses to her concerns from the Council. She also said the Council had stopped paying its funding for Miss X’s tutor shortly after she had told it the placement with School Y had ended.
23. In Summer 2022, as Ms J had not had a response to her concerns, she wrote to a senior Council Officer and a Councillor for help to resolve her concerns about Miss X’s education.
24. In August 2022, the Council arranged a payment for Ms J to pay Miss X’s art tutor for the Summer term.

Ms J’s complaint

25. In August 2022 Ms J complained to the Council. She said it had failed to:
• attend the emergency review meeting it arranged as it had not allocated a new case officer, and failed to meet the timescales to review and find solutions following the meeting;
• provide any support and communicate properly with Ms J until July 2022;
• provide any suitable educational provision for Miss X; and
• it had wrongly stopped its funding for Miss X’s art tutor in March 2022.
26. The Council acknowledged Ms J’s complaint a week later and set out its understanding of her complaint.
27. The Council responded to Ms J’s complaint two months later and apologised for its delayed response. It upheld all point of her complaint and apologised. It explained:
• it would discuss the breakdown of the placement with School Y as part of its quality assurance of independent providers;
• it had made a payment to Ms J for the cost of Miss X’s art tutor for the Summer term;
• it would recruit additional staff to improve its service due to the poor service Ms J had received from its SEND team, a new case management system had been developed which it expects will improve services, and a new senior lead had been employed to oversee quality of annual reviews;
• it intended to attend as many annual reviews as possible, but decisions about new placements were not made at such meetings and would be decided by the Council afterwards;
• it had taken steps to progress Miss X’s EHC plan and an amended draft EHC plan had been issued.
28. Ms J was not satisfied with the Council’s response to her complaint and asked the Ombudsman to consider her concerns. She said the Council had upheld all points of her complaint, but it had not provided remedies for Miss X’s loss of educational provision and the distress she and Ms J had experienced.
29. Ms J has subsequently raised a new complaint with the Council regarding how it has handled Miss X’s educational provision from September 2022 and delays in the EHC plan process.

Analysis and findings

30. Ms J complained about the Council’s handling of her concerns between March 2022 to July 2022, when the academic year ended.
31. The Council has agreed it was at fault on each point of Ms J’s complaint. I agree with the Council’s findings, it was therefore at fault for failing to:
• act when Ms J told the Council Miss X’s placement with School Y had broken down. Its fault was its failure to adhere to its duty to provide Miss X with educational provision as set out in her EHC Plan within a reasonable period of time. I found this should have been in place at least four weeks after it became aware Miss X was not receiving her education;
• progress timescales and solutions following the emergency annual review, and failing to have proper oversight of the annual review process;
• communicate properly with Ms J when she raised her concerns and ensure a caseworker was allocated to Miss X’s case; and
• pay Miss X’s art tutor as agreed in her EHC plan.
32. I found the Council’s apology and refund of the cost Ms J had paid for Miss X’s art tutor was not enough to remedy the injustice its faults caused Ms J and Miss X. This is because:
• Miss X had a loss of educational provision and some SEN provision set out in her EHC plan for a three-month period, which also caused her distress and uncertainty; and
• Ms J and Miss X experienced distress and uncertainty and Ms J had unnecessary time and trouble to get the Council to address her concerns.
33. In addition, the Council also acknowledged it had failed to respond to Ms J’s complaint within the timescales in its complaints policy. I found this caused Ms J some limited additional distress due to the loss of trust in the Council’s ability to resolve her concerns.
34. I acknowledge the steps the Council said it had taken to recruit more staff, put in place a new case management system, and allocated a senior manager to oversee the quality of annual reviews. I have therefore not made service improvement recommendations on these parts of the complaint.

EHC plan delays and educational provision from September 2022

35. Ms J raised a new complaint with the Council regarding its handling of Miss X’s EHC plan review process and the education it should have provided from September 2022.
36. I understand these issues are ongoing and Ms J is awaiting the Council’s final response to her new complaint. I have therefore not considered these issues.
37. If Ms J is unhappy with the Council’s response, she can return to the Ombudsman for our consideration of her complaint.

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Agreed action

38. To remedy the injustice the Council caused to Ms J and Miss X, the Council should, within one month of the final decision:
1. pay Ms J £300 to acknowledge the distress and uncertainty the Council’s faults caused her, including the unnecessary time and trouble she had to bring her concerns to its attention and to arrange some educational provision for Miss X;
2. pay Miss X £300 to acknowledge the distress and uncertainty the Council’s faults caused her; and
3. pay Miss X a further £1200, to use as she sees fit, to acknowledge the loss of education she had between March 2022 to July 2022.

In total the Council should pay Ms J £300 and Miss X £1,500.

39. Within three months of the final decision the Council should also:
1.  
2.  
3.  
4. remind its SEND staff of the Council’s duty to provide post-16 educational provision to young people with EHC Plans without delay. This includes during periods where a placement has broken down and where emergency annual reviews are taking place; and
5. remind its staff to respond to complaints within the timescales set out in the Council’s Complaints Policy and inform complainants if there are delays in providing a response.
40. The Council should provide us with evidence it has complied with the above actions.

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Final decision

41. The was fault which caused an injustice. The Council’s apology was not enough to remedy the injustice it caused, it is on the basis I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman