Summary: Mrs X complained the Council failed to secure education provision for her daughter since January 2022 and delayed in amending her Education, Health and Care Plan. She says this caused distress to both herself and her daughter. There was delay in amending the EHC plan and a lack of suitable education throughout 2022. A suitable remedy for the injustice caused is agreed.

The complaint

1. Mrs X complained the Council failed to secure education provision for her daughter since January 2022 and delayed in amending her Education, Health and Care Plan.
2. Mrs X says both herself and her daughter have experienced distress and her daughter has missed out on essential education.

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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)
5. 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

6. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

7. Mrs X’s daughter, who I will call B, has Autism Spectrum Condition (ASC), Sensory Processing Disorder (PSD) and Tic Disorder. She has an Education Health and Care Plan (EHC plan).
8. From September 2021 B was due to attend a new school. A reintegration plan was put in place in order to ease B back into full time education as she had not been in school the previous term. From September, B’s attendance at school was fairly consistent and in accordance with the reintegration plan. There was an incident in November when another pupil threatened B with a knife which set her back but B attended for four days a week for the last three weeks in December.
9. B’s attendance from January 2022 was poor. Some of this was due to medical appointments and illness. However, I also understand that she was experiencing anxiety which affected her ability to attend school.

Delay in reviewing EHC plan

10. When a council decides to amend an EHC plan it must notify the parent of this decision within four weeks of the review meeting. While there is no specified timeframe for how long the Council can take to do the amendments, guidance says this should happen without delay. Once the amended plan is ready it must be sent to the parent with an amendment notice. The Council then has to issue the final plan within eight weeks of the amendment notice. A recent court case, said when the Council notifies the parent of the decision it must also issue the amendment notice so the maximum time from the annual review meeting to the final plans should be 12 weeks.
11. In this case an annual review meeting in respect of B’s EHC plan took place on 4 July 2022. On 24 August, the Council sent Mrs X the amendment notice. It issued the final EHC plan on 30 March 2023. This was a total of 38 weeks.
12. The Council accepts it delayed in this case and says this was because of reduced capacity within the service due to staff retention and sickness. The failure to meet the statutory timeframe for the review of B’s EHC plan is fault.

Failure to provide suitable education from January 2022

13. As explained above, B’s attendance at school from January 2022 was limited. The Council said in the complaint response that B had attended 20 sessions between January 2022 and the end of the academic year. Mrs X disagrees with this figure saying B only attended on four days. Information provided by the school to the Council confirms attendance for 20 sessions.
14. On 26 February 2022 the Council was beginning the EHC plan annual review process. There is an email in which concerns about her attendance were identified.
15. On 2 March 2022, the Council sought information from the school about B’s attendance. The Headteacher responded saying B’s transition had taken longer than expected due to health issues and an incident in the school which set her back a little. The Headteacher said B’s planned attendance pattern is now full time but did not say whether this was happening. I have not been provided with any information to suggest the Council followed up on this.
16. The school wrote to the Council on 8 July 2022 and confirmed that B’s placement at the school would cease at the end of the academic year.
17. Mrs X made a complaint to the Council on 16 September 2022. She stated that B did not return to school in January 2022 as it could not meet her needs and that she had not received any education since that date. An internal Council email requests an officer to follow up with Mrs X to discuss and offer interim provision for B and to confirm the next steps in the annual review process.
18. I have seen a case note dated 17 October which provides details of an email sent to Mrs X. It refers to the annual review process and issues with the wording of the amended EHC plan. There is no mention of any interim education provision.
19. The Council sent the stage one complaint response to Mrs X on 11 October 2022. It confirmed B’s low attendance at the school with only 20 sessions attended between January and the end of the academic year. It also confirmed a delay in issuing the amendment notice following the annual review meeting and a delay in the Assessment and Reviewing Officer contacting Mrs X. It offered an apology for the delay in the annual review process. It also said that it had asked an officer to contact Mrs X to discuss B’s current provision and to provide an update on the annual review process.
20. An internal email dated 1 November 2022, makes a request to an officer to ensure “things are moving forward” for B. It said there was nothing on file to show any conversation had taken place with Mrs X about interim provision. In response, there is mention of a telephone discussion and email of 17 October. The officer says that it was the manager’s understanding that interim provision was offered but there is nothing recorded.
21. I have not seen any other evidence to show the Council’s actions following the complaint response. However, I am aware that a tutor began to visit B in January 2022. I have seen weekly reports from the tutoring service detailing the sessions that have taken place and the learning that was carried out. The reports indicate that four sessions a week were originally planned. In the first weekly report the tutor noted that lessons should be taken slowly to build up B’s confidence. It also notes Mrs X’s concerns that four sessions a week is too much.
22. In the first week two sessions were completed on 16 and 17 January. A further session took place on 23 January and another on 27 February. The information provided indicates that no further session took place up to 31 March. The reports say the sessions were cancelled by Mrs X, often at short notice, due to illness and emergency medical appointments for B. Mrs X says that B was very ill during this period, refusing to eat and undergoing many tests.

Analysis

23. The Council failed to complete the review of B’s EHC plan within the statutory timeframe which is fault. The new plan was issued on 30 March 2023 and at that point, Mrs X then had the right of appeal if she was unhappy with the plan. I have not seen anything to suggest Mrs X did appeal.
24. The delay in issuing the amended EHC plan caused uncertainty and distress to both Mrs X and B. The previous school placement ended in July 2022 and the delay in issuing the amended plan meant B did not know where or what education would be provided. I am recommending payments to both Mrs X and B to acknowledge the distress and uncertainty caused by this delay.
25. I am satisfied that from September 2021 a transition plan was in place for B to return to school. The information provided shows that she was to attend for three days per week initially, rising to four and that by January 2022 she would attend full time. Aside from a delay due to an appendix operation and a set back in November due to an incident at school, the transition plan was effective up to the end of December 2021. I am therefore satisfied suitable education was provided in that term.
26. However, from January 2022 to the end of the school year in July 2022, B’s attendance was very poor. The Council became aware of this in March 2022 but there is no evidence it followed this up. There is nothing to suggest the Council instructed its Education Welfare Officers to investigate further B’s non-attendance or that it took action to ensure a suitable education was being provided. The failure to take action at that time is fault.
27. Following the annual review meeting in July 2022, the Council was aware that B had no school to attend from September 2022. However, there is no evidence it took any action to provide alternative education. B had an EHC plan and so it was aware of her special education needs but it seems that it took a formal complaint from Mrs X in September for this to be recognised. While there is evidence officers were instructed to provide alternative education, the Council has failed to provide any evidence that it took prompt action to put this in place. The failure to provide any alternative education from September to December 2022 is fault.
28. A tutoring service started to visit B in January 2023. The information provided shows this was for four sessions a week initially but after the first week it was reduced to two sessions. The notes indicate this was agreed by the tutor and Mrs X as it was considered B could not manage four sessions. From January to March 2023 only four sessions actually took place. I note that B was very ill at that time and was attending frequent medical appointments, often at short notice. The sessions were cancelled by Mrs X because B was not able to attend them. While it is unfortunate the sessions did not happen as planned, I do not consider this is due to fault by the Council.
29. I consider a payment should be made for the benefit of B to recognise the loss of education provision in 2022. Our Guidance on Remedies suggests a payment of between £900 and £2400 per term to recognise the impact of that loss. In reaching my view on quantum, I have taken account of B’s age and stage of education and the amount of alternative education provided. I consider a payment at the higher end should be made for the September 2022 term as there is no evidence of any education being provided. For the first two terms of 2022, I am minded to recommend a payment at the lower end due to the fact B did manage to attend 20 sessions and provision was in place at the school. I consider that if the Council had acted at that time, it may have helped B’s mental health and prevented the situation in January 2023 when she was severely ill and unable to engage with the alternative provision that had then been put in place. I am not recommending any payment for loss of provision from January 2023 onwards as B was too ill to engage with the provision that was considered to be suitable.

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Agreed action

30. To remedy the injustice identified in this statement, the Council will, within one month of my final decision, take the following action:
• Apologise to Mrs X and B;
• Make a symbolic payment of £4,200 to be used for the benefit of B to recognise the loss of educational provision in 2022;
• Make a symbolic payment of £300 to Mrs X to recognise her distress, uncertainty and time and trouble in pursuing this complaint;
• Make a symbolic payment of £200 to B to recognise her distress and uncertainty;
• Remind staff of the timescales set out within the SEN code of practice for issuing and reviewing EHC plans; and
• Remind staff it is the Council’s responsibility to ensure education provision is in place if a school fails to make alternative provision even if the child remains on a school roll.
31. The Council should provide us with evidence it has complied with the above actions.

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Final decision

32. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman