Summary: Ms X complained the Council delayed providing her child (C) with specialist education provision and failed to communicate. This caused C to miss a full term of education and caused C and her family distress. The Council delayed in reviewing, amending, and completing C’s Education Health and Care Plan and failed to communicate effectively with Ms X.

The complaint

1. Ms X complains the Council delayed providing her child (C) with specialist education provision and failed to communicate. C missed a full term of education. This caused Ms X and C stress, anxiety and frustration. Ms X wants the Council to be accountable, communicate clearly and not treat children as numbers on the computer.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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

4. As part of the investigation I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to my enquiries.
• The Children and Families Act 2014 and the Special Educational Needs and Disability Regulations 2014, Statutory Guidance Special educational needs and disability Code of Practice: 0 to 25 years.
5. Ms 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

Relevant legislation

The Education, Health and Care Plan

6. 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.
7. 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.

Assessing and drafting an Education, Health and Care Plan

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. It says:

• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;
• the process of assessing needs and developing EHC plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable;
• the whole process from the point when an assessment is requested until the final EHC plan is issued must take no more than 20 weeks (unless certain specific circumstances apply); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.

9. When a council sends a draft plan to a child’s parent or young person it must give them at least 15 days, beginning with the day on which the draft plan was served, in which to: 
• make representations about the content of the draft plan, and to ask that a particular school or other institution be named in the plan; and 
• require the council to arrange a meeting between them and an officer of the council at which the draft plan can be discussed. (Special Educational Needs and Disability Regulations 2014) 

Implementing and maintaining the Education, Health and Care Plan

10. 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)
11. 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 Education, Health and Care Plan

12. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
13. 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. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
14. Where a council proposes to amend an EHC plan, 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 within four weeks of the annual review meeting. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
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 EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan 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 EHC plan. The right of appeal is only engaged when the final amended plan is issued.

Alternative provision

17. 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.
18. 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)

What happened

19. I have summarised below the key events; this is not intended to be a detailed account.
20. C has an EHC Plan. The first version is from November 2020 which named a mainstream primary school (the Primary School) where C already attended, the plan included support.
21. The Primary School held a EHC review meeting in May 2022. C’s parents, the special education needs and disabilities coordinator (SENDCO), head teacher and caseworker attended the meeting.
22. The notes from the review meeting say C has a full-time 1:1 teaching assistant who tailors the work specifically to C’s needs, and they have a good relationship. C’s teacher said she has made slow/no progress despite intervention and support. The Primary School said it did not feel it could meet C’s needs any longer. Her teaching assistant was leaving after the summer term and the school had not appointed C’s new class teacher. This made transition planning difficult if C was to remain at the Primary School.
23. The notes said C’s parents had considered alternative educational establishments and found a school they would like C to attend. Ms X had enquired with the alternative school (School A) which said it had space for C.
24. In correspondence with me, Ms X said the caseworker and head teacher told her C would move to a specialist provision. They hoped she would start the new academic year at School A. Because of the timescales outlined above, they thought there may be a two-week gap between the start of the new term and the provision being in place. Ms X said the Primary School head teacher granted a two-week approved absence to cover this gap. All parties agreed C returning to Primary School for a short time would cause her anxiety.
25. The Council said the Primary School had appointed a new head teacher and deputy head teacher since July 2022. It could therefore not provide details about the provision provided by the Primary School, the approved absence or transition arrangements.
26. Ms X told me her caseworker telephoned her late in July 2022. She apologised for the delay in writing the draft EHC plan and said she would complete it soon and send a copy to Ms X by the beginning of August, which she did.
27. At the beginning of August, the Council sent the draft EHCP to schools as part of the consultation. The Council consulted with the parental preference (School A), and others. None of the schools could place C. The Council consulted again in September. The Council received all the responses back by the end of October.
28. During this time, the Council said it worked with schools to increase capacity and inclusion opportunities for children with SEND. This increased the capacity at School B. The Council consulted with School B again and on this occasion, it agreed the Council could name it in C’s EHC plan.
29. Ms X said C did not return to Primary School at the start of the academic year in September 2022 because of the arrangement made with the head teacher and caseworker. The Councils complaint response says it believes the caseworker intended to prioritise C’s case and draft the plan before the summer so C would not need the approved absence. In response to my enquiries, the Council said it has not been able to find further detail about this.
30. Ms X told the Council towards the end of September C was not attending school, the Council’s records confirm this. In response to my enquiries, the Council referred to an email from early December about providing a home tutor.
31. In the middle of September, Ms X complained to the Council. The Council issued a stage one response in the middle of October and a stage two response in early December. The Council partially upheld Ms X’s complaint and apologised for the delay in reviewing the EHC Plan. It said there was still a place open to C at the Primary School named on her original EHC Plan so did not consider C was without a school placement. The Council apologised for delay and failing to respond to Ms X’s correspondence with SEN caseworkers and delay in responding to her complaint.
32. The Council drafted a new version of the EHC plan, dated early December 2022. It names School B as being effective from the beginning of the spring term 2023.
33. C is attending School B full time. Ms X said she is making slow progress academically.

Analysis

Meeting the statutory deadlines

34. The original EHCP is from November 2020. The Council should review the EHCP at least yearly. This means the Council should have reviewed the plan in November 2021. The Council reviewed the plan in May 2022, this is a delay of six months. This is fault.
35. Following the annual review meeting in late May 2022, the Council should have told Ms X within four weeks (end of June) whether it intended to maintain, amend or discontinue the EHC plan. It should have sent details of the proposed amendments to the plan with evidence to support the proposed changes. Within eight weeks of receiving parental responses to the draft EHC Plan, the Council should have issued a final EHC Plan. The Council should have issued the final EHC Plan in September. The final EHC Plan was completed late December 2022. This is over three months late, this is fault.
36. In response to my enquiries, the Council said ‘Our finding is there was an evident delay and that the EHC Plan was not amended within the required 8 week timeframe.’ The Council accepts there was delay.

Meeting need and alternative provision

37. The Council’s response to Ms X’s complaint said it did not consider C was without education as there was a place open to her at the Primary School, as set out in her EHC Plan. In response to my enquiries, the Council could not evidence what suitable provision was in place at the Primary School should C have returned after the summer holidays. Neither could it evidence transitional planning to support C at the Primary School with a new teaching assistant and class teacher. The Council could not explain why it considered it suitable for C to return to the Primary School, when the EHC review meeting said it did not meet her needs. While there was technically a place available to C at the Primary School, there is no evidence this met her needs. It was not reasonable to expect Ms X to encourage C to follow the EHC Plan dated November 2020 in September 2022, following the review. It follows that C missed a full school term, from September 2022 to January 2023.
38. In response to my enquiries, the Council said it could not find out what action it took when it became aware C was not attending school although it referred to an email from December which mentioned providing C a tutor. By this time, C had missed at least three months of education. When the Council was aware C was not attending school, it should have considered if its section 19 duties were engaged or if it needed to take alternative action. I have not seen evidence it did, this is fault.

Record keeping and correspondence

39. In response to my enquiries, the Council said some staff in C’s case no longer work for the authority and the electronic file does not provide a detailed record of what happened and why. The Council is at fault for not keeping accurate records.
40. The Council admits its communication with Ms X was poor. The Council was either slow to reply to correspondence or did not respond. This is fault.

Injustice

41. I have considered the impact the Council’s faults had on C, Ms X and their family.
42. Ms X complained C missed a full term of education. C did not return to the Primary School after the summer holidays and her new school place was not available until January. C missed the full autumn term; this is her injustice.
43. The Council issued a Final EHC Plan in December 2022 and secured provision for C starting January 2023. The Council has limited any further injustice.
44. The Council’s delay in reviewing and amending the EHC Plan caused C, Ms X and the rest of the family stress and anxiety. The Council’s delay and failure to respond to correspondence made this worse. This is their injustice.

Remedies

45. The Council has made several service improvements. It has reviewed its systems and processes to improve the delivery of the SEND provision and moved to locality working. The Council has completed a successful pilot of its SEND Portal which enables parents to track progress of assessments, view advice and dates for the annual review. It has also invested in recruitment and training of staff in the SEN team and is improving service delivery and communication.
46. As well as these service improvements, within four weeks of my final decision, I suggest the Council:
• Apologises to Ms X for its failure to review, amend and fulfil the EHC Plan for C within the statutory timescales.
• Pays Ms X for the benefit of C, £1200 to recognise she missed a full term of education, from September 2022 to January 2023.
• Pays Ms X £250 for the avoidable distress caused by the Councils failure to review, amend and complete the EHC Plan for C and its failure to communicate effectively.

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Agreed action

47. The Council should provide us with evidence it has complied with the above actions.

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Final decision

48. I have completed my investigation. The Council delayed in reviewing, amending, and completing the EHC Plan and failed to communicate effectively.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman