Summary: Miss F complains the Council has failed to provide her son, J, with education or secure his special educational needs provision since he started college. We found fault as the Council delayed holding an EHCP review and issuing an amended plan, failed to secure J’s SEND provision and delayed providing support to enable him to participate in education. It has agreed to apologise and make symbolic payments to Miss F and J to remedy the distress and uncertainty caused.

The complaint

1. Miss F complains the Council has failed to provide her son, J, with education or secure his special educational needs provision since he started college in September 2022.
2. As a result he has been left at home with no education, his autism has become dysregulated, his epilepsy has returned and he is suffering significant mental health issues. This has also had an impact on Miss F’s physical and mental health and she has been unable to return to work.

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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 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)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. We cannot investigate complaints about what happens in schools unless it relates to their role in delivering special educational needs support, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
6. 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)
7. 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.

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How I considered this complaint

8. I spoke to Miss F about her complaint and considered the Council’s response to my enquiries and:
• The statutory guidance on participation of young people in education, employment or training, 2016 (“the Guidance”)
• The SEND Code of Practice (“the Code”)
9. Miss F 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 law and guidance

Special educational needs

10. A young person with special educational needs (SEND) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the young person's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year. EHC plans cover young people up to the age of 25.
11. Parents have a right of appeal to the SEND Tribunal if they disagree with the SEN provision, the school named in their child's plan, or the fact that no school or other provider is named.
12. EHC plans must be reviewed every twelve months to consider whether the provision remains appropriate and whether progress is being made towards the targets in the EHC plan. A council can consider holding an early review if there is a change in the young person’s circumstances.
13. Within four weeks of the review, councils must decide whether they propose to amend the plan and notify the young person of this decision. If they are amending, they must do so without delay and issue an amendment notice. Although the Code does not give any deadline for the issuing of an amendment notice, a 2022 high court decision says any draft amended plan must be issued within four weeks of the annual review. The final amended plan must be issued within 12 weeks of the annual review. (L & Ors, R (On the Application Of) v Devon County Council [2022] EWHC 493 (Admin))
14. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.

Post 16 participation

15. Compulsory school age ends on the final Friday in the June of the academic year in which the child turns 16. The law requires that young people continue in education, employment or training until the age of 18. The Guidance says councils have a duty:
• To secure sufficient suitable education and training provision for all young people in their area who are over compulsory school age but under 19 (or aged 19 to 25 and for whom an EHC plan is maintained), under the Education Act 1996. and
• To make available to all young people aged 13-19 (and to those between 20 and 25 with SEND), support that will encourage, enable or assist them to participate in education or training under Section 68 of the Education and Skills Act 2008.
16. The Guidance also says (paragraph 44) that if a young person aged under 18 has dropped out, councils should support them to find an alternative place in education, training or employment with training.
17. Paragraph 50 says the Government recognises there will always be a small number of young people who for medical or other good reasons require a temporary break in education or training or for a significant period cannot spend sufficient time in relevant training or work. This might include, for example, some young people who have mental health issues, a serious or short or medium term illness, or some young people with a disability.
18. What this means is that councils have a duty to make sure education and training is available for young people aged 16 to 18, to support them to participate in education, to track if a young person has dropped out, and to support them to re-engage if they have. But if the young person is ill and cannot participate, the duty is deemed to be met.

What happened

19. Miss F’s son, J, is autistic with complex needs including severe mental impairment. He was attending a special school (School X) which he travelled to in a minibus. J had social care support from a provider (Agency Y) to access the community each week and one night’s respite per week.
20. In March 2022 an EHC plan was issued which named School X and said J would start at the sixth form there in September 2022, when he was 16.
21. J had some transition visits to prepare him for sixth form. The transport arrangements were changed to a taxi because the sixth form hours differed to those of the secondary school.
22. Miss F took J to School X on the first day of term. The School says he had a good day, but at the end of the day he would not get into the taxi. School X called Miss F after an hour. Miss F says when she arrived J was distressed, pacing, biting his hands and pulling the skin on his neck. On the way home he went into crisis, head butting, punching himself and pulling his own and Miss F’s hair.
23. Following this J was not able to leave his home or get into a vehicle. Miss F contacted the GP and J had an emergency psychiatric assessment. He was found to have post-traumatic stress disorder and anxiety. A welfare check on 7 October found J was too unwell to engage in education. A later social care assessment said he had regressed and would go into crisis, attack others and himself, his anxiety had increased and he was dysregulated. J also started having seizures after being seizure free for a number of years.
24. Miss F met School X on 18 October. She says the School would not clearly explain what had happened and gave no plan on how to reintegrate J. It was agreed to try a minibus to take J to school, but this was not implemented.
25. Miss F wrote to the Council on 8 November concerned that J was receiving no education.
26. A multidisciplinary meeting led by CAMHS on 7 December agreed that School X, Agency Y and the respite provider should visit J each week.
27. The Council replied to Miss F on 13 December. It said School X was visiting J every week and was supporting him to return to school. Miss F remained concerned and met the Director on 21 December. It was agreed that the Council would send a formal stage one complaint response to her letter of 8 November and there would be an EHC plan review in January 2023. An education welfare officer would attend the review to consider what support needed to be in place as J was currently too ill to attend school. The Director later left the Council and no formal complaint response was issued.
28. The plan was for School X to start visiting J once a week from 18 January 2023. Miss F says there was one visit in the first term.
29. An EHC plan review was held on 30 January. It agreed that School X and Agency Y should visit J. The aim was to reintegrate him into the community and education as he was still unable to leave his home. There would be a further review at the end of March.
30. At the review and child in need meeting on 30 March, Miss F noted that the plan agreed on 7 December had not been implemented so J had made no progress. It was agreed that each provider would visit J so that he had a visit every day. This would include two educational visits each week. It was recommended that J’s EHC plan be amended. The Council started to obtain professional advice to inform a new EHC plan, including a social care assessment and information from CAMHS and the educational psychologist.
31. Miss F made a formal complaint on 4 April that J was receiving no education or special educational needs support. She said School X had only visited four times and none of the agreed actions had been put in place and no changes had been made to J’s EHC plan.
32. There was a child in need meeting on 18 May. A draft EHC plan was issued on 24 May (eight weeks after the review meeting). This set out the support and strategies that would be provided to J during the sessions at home, provided by both School X and Agency Y. It says the aim was for J to be accessing full time education, community activities and respite outside the home by the end of sixth form (Year 14).
33. The Council sent a stage two reply to Miss F’s complaint on 6 June. It said:
• J’s attendance continued to be below the high standards expected which is understood to be due to his mental health and CAMHS was currently supporting with this.
• School X and Agency Y were visiting weekly and the school was working to support J back to school.
• A draft amended EHC plan had been issued.
• The Council had offered a dispute resolution meeting which Miss F had agreed to attend.

34. Miss F came to the Ombudsman.
35. The dispute resolution meeting was on 27 June. This said a multi-disciplinary panel was already in place to reintegrate J back into school, with monthly child in need meetings and regular meetings between Miss F and School X. The educational psychologist would provide an update to inform J’s draft EHC plan and there should be a further review of the plan before the end of 2023.
36. At the July child in need meeting, it was noted that J was now receiving two and a half hours of education per week. He had been able to leave the house and it was hoped this would increase with a possible return to school after the Autumn half term. The Council had agreed six hours per week social care support for the summer holiday. Miss F had wanted this to start sooner due to J’s need for transition and asked if the support could be spread over five days, rather than two. The meeting note says staffing issues made this unfeasible.
37. The educational psychologist’s advice was received on 19 July and a further draft EHC plan issued on 27 July. A final EHC plan had not been issued by September 2023.

My findings

38. As J is over compulsory school age, the Council has two duties. One is to secure the provision set out in his EHC plan, the second is to provide support to enable him to access education, training or employment. If J was too ill to participate in education, the Council’s participation duty is deemed to be met.
39. In relation to the incident in September 2022. Miss F says she was not informed in advance of the changes to the transport and the transition plan was inadequate. Based on the evidence seen, I cannot say that the problem with the school transport was caused by fault by the Council. Miss F is concerned that School X would not explain to her clearly what had happened, which made diagnosis and treatment for J difficult. But I cannot investigate the School’s actions.
40. The Council says it cannot determine from its records when it became aware J was no longer attending School X, but it was aware by 8 November at the latest after Miss F contacted them. Although the Council did not have a duty to provide alternative education, from 8 November it should have considered what support he required to participate in education. To ensure J’s SEND provision was being made after he stopped attending School X, the Council should have asked for an EHC review to be held as there had been a change in circumstances.
41. The review was not held until 30 January. This was delay and fault, as I can see no good reason why it could not have been held sooner.
42. Following a review, there would usually be a recommendation whether to amend the EHC plan. In January 2023 there was not, so I do not criticise the Council for not starting to amend the plan then. But it should have issued the amended draft EHC plan four weeks after the 30 March review. It issued it after eight weeks, which is fault. The final EHC plan was not issued within 12 weeks (i.e. by 23 June 2023) which is further fault.
43. The evidence I have seen shows J was too unwell to participate in education on 7 October, but on 7 December it was recommended he have one visit a week each from School X, Agency Y and the respite provider. I therefore consider that J was well enough to participate in education from then.
44. As the Council had a duty to make support available to enable J to participate in education, I consider it should have commissioned Agency Y and the respite provider to make these visits and worked with School X to ensure educational visits were being made. But School X did not start visiting until 18 January and Miss F says that by 4 April J had only had four visits. It is unclear when Agency Y started visiting J. There is evidence it started to visit twice a week from 2 March 2023. But there is also evidence that the support was not agreed and did not start until 17 April. This is delay in support and fault.

Did the fault cause injustice?

45. If the weekly visits from School X, Agency Y and the respite provider had started in December 2022, it may be that J would have made more progress more quickly than he did, but I cannot say that he would have been able to attend school. Nonetheless he missed out on the recommended support to participate in education and on SEN provision from mid-December to around March 2023, which is an injustice.
46. An EHCP review in December and a final plan within 12 weeks would have meant updated SEND provision could have been put in place from April 2023. Again, I cannot be certain of the impact this would have had on J’s education but this uncertainty is an injustice.
47. Miss F has also been caused distress and uncertainty and her right to appeal the amended EHC Plan has been delayed. I cannot say she would have been able to work if there had been no fault and we cannot remedy potential loss of earnings. This is because we cannot usually, on balance, establish a clear and causal link between the fault and the claimed injustice of lost earnings as there are too many factors involved. Such payments are therefore best resolved by the courts.
48. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on. Our guidance says a moderate, symbolic payment is a suitable remedy for distress and uncertainty. Our guidance on remedies says a moderate, symbolic payment up to £500 may be appropriate to remedy distress, uncertainty and time and trouble.

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Agreed action

49. Within a month of my final decision, the Council has agreed to apologise to Miss F and pay her £300 to remedy the distress and delayed opportunity to appeal.
50. It will also pay J £500 to remedy the uncertainty caused by loss of SEN provision and support to participate in education from December 2022 to April 2023.
51. The Council should provide us with evidence it has complied with the above actions.

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Final decision

52. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman