Summary: Mrs Y complains about delays in parts of the Education Health and Care Plan (EHC) process followed by the Council for her son, D. She also complains about the Council’s failure to ensure that D was registered for all his GCSE examinations and received the appropriate resources and additional time. The Council has already upheld most of Mrs Y’s complaint and apologised. The Council has also agreed to implement the additional actions listed at the end of this statement to fully remedy the injustice caused by fault.

The complaint

1. Mrs Y complains about the Council’s actions in respect of her son’s EHC plan and provision. In particular, she says the Council:
1. delayed when arranging the provision D was entitled to from September 2022.
2. failed to issue D’s EHC plan within statutory timescales and did not properly consult with her about the proposed amendments issued before the June 2023 annual review.
3. failed to make suitable arrangements to enable D to take his Science GCSE examination. For the exams which D did sit, he did not have access to blue paper and the 25% additional time he was entitled to. This directly and negatively impacted D’s GCSE grades.
4. delayed when arranging the agreed educational provision following mediation in July 2023.
2. Mrs Y says the Council’s failures have negatively impacted D’s academic progress and his overall welfare. She has also experienced unnecessary uncertainty and distress.

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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. 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. During my investigation I discussed the complaint with Mrs Y by telephone and considered the information she provided.
6. I made enquiries of the Council and considered its response.
7. I consulted the relevant law and statutory guidance.
8. Mrs Y and the Council had an opportunity to comment on my draft decision. I considered any comments received before making this decision.
9. 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

Summary of key events relating to the complaint

10. D has an EHC plan to meet his identified special educational needs. For the past four years he has received EOTAS (Education Other Than at School).
11. On 9 August 2022 D’s plan was annually reviewed. On 30 August the Council issued a letter to confirm its decision to amend D’s plan.
12. The Council issued a draft EHC plan on 16 September and Mrs Y had 15 days to comment. The Council then issued a final EHC plan on 22 September.
13. On 2 June 2023 the Council reissued D’s EHC plan to name a mainstream post-16 college in Section I. Mrs Y disagreed with the placement but had a right of appeal.
14. The Council held a review of the plan on 14 June.
15. Mrs Y complained to the Council on 20 June. In summary, the complaint said:
• The Council had not put any tutoring in place for D from September 2022.
• D is expected to sit his GCSE exams at a location far from home.
• The Council failed to enter D for his exams in February 2023. As a result, D’s entry for English and Maths GCSE was late and he was not entered for Science.
• The Council did not upload the speaking element for D’s English exam on time.
• D did not receive 25% extra time and blue paper he was entitled to during exams.
• The Council delayed in finalising the final EHC plan naming the post-16 provision. The Council then named a mainstream college without first receiving consultation responses from other providers.
• The placement named cannot meet D’s needs and he does not want to attend college. The SEND team has ignored D’s views and not taken account of his capabilities.
• Mrs Y received the amened EHC plan before the Annual Review took place in June. The SEND team did not therefore follow due process because it did not give her notice of the proposed amendments.
16. Mrs Y challenged the contents of the plan and attended mediation with the Council. The ‘Mediation Agreement Action Plan’ issued on 25 July 2023 outlined an agreement to:
1. Remove the mainstream college from Section I of D’s EHC plan.
2. For the Council to arrange and fund D’s attendance at a wildlife charity, to study towards a Citizenship GCSE and attend at a youth awards program from September 2023.
3. For the Council to arrange and fund a re-sit of the English and Maths GCSE exams if needed.
17. The Council responded to Mrs Y’s complaint on 1 September 2023:
• It upheld Mrs Y’s complaint about the delay in making D’s EOTAS provision available in 2022. The Council said this was due to the unavailability of tutors.
• The Council apologised for the misinformation and significant delays in arranging D’s GCSE exams. The Council pointed to problems with sourcing exam centres in the area and agreed the process of finding one should have started much earlier in the year. The Council upheld the complaint and agreed to allocate D’s case to the preparation for adulthood team.
• The Council has not been able to secure suitable options to allow D to sit his Science GCSE and is looking to resolve this soon. The Council upheld this complaint and apologised.
• The Council acknowledged it should have communicated with D’s examination provider to ensure there was a clear plan in place for D’s English-speaking exam. The Council also accepted it should have told the provider much sooner that D needed extra time. The Council upheld this complaint and apologised.
• The Council previously deemed the mainstream college to be appropriate for D’s needs but changed its view following mediation. The Council has now agreed to fund a package of education in line with Mrs Y’s wishes. Furthermore, if D’s grades are not as predicted he can re-sit English and Maths GCSEs. The Council needs to make a decision about ongoing funding for Science tuition. The Council upheld this complaint.
• The Council undertook a wide range of consultations. It assumed the other provider was not able to meet D’s needs because it did not respond within 15 days. The issue of D’s provision was resolved at mediation.
• One of the providers put forward by Mrs Y could not be named in Section I of D’s EHC plan because it is not a registered educational establishment.
• The Council considered D’s capabilities and has not ignored his views. Although D did not attend the Annual Review, Mrs Y presented views on his behalf. D’s tutors also had the opportunity to provide input into the meeting. Furthermore, Mrs Y had the opportunity to formally challenge the named placement at mediation and appeal.
• The Council agrees it could have had more discussion with Mrs Y before finalising D’s EHC plan on 2 June. The Council also acknowledged it did not issue the proposed amendment to Mrs Y prior to issuing the plan. It says only Section I changed and the reasons for this were in the notes of the Annual Review sent to Mrs Y on 15 June and in a further email. The Council did not uphold this complaint.
18. Mrs Y complained again on 13 September. She raised concerns that nothing from the mediation action plan had taken place. Mrs Y emailed the Council but received no response. In the meantime, the mainstream college was named in D’s EHC plan and D remained without education.
19. The Council responded on 25 September. It apologised and acknowledged the delays in actioning the mediation agreement. The Council accepted it should have completed the actions in the plan by 1 September and would review processes to ensure the delay does not happen again. The Council apologised that it did not always respond to Mrs Y’s emails.
20. The Council said it is arranging tuition for D to sit exams in June 2024 and looking to facilitate his membership at cadets. Once agreed, the Council will re-issue D’s EHC plan with the agreed changes.
21. From 16 October D received ten hours per week for Maths and Science tuition and five hours per week for GSCE Citizenship studies. The Council did not arrange tuition for English because D gained a qualification at a suitable level.
22. The Council issued the final EHC plan on 26 October with a blank Section I and provision for EOTAS detailed in Section F.
23. In response to our enquiries, the Council said that D’s current package of support is going well, and the family have not approached the Council to request for the provision to be increased.

Complaint a)

24. The Council acknowledged there was delay in arranging D’s provision between September and November 2022. It says this was due to the competing priorities of caseworkers and the unavailability of tutors. The Council apologised to Mrs Y and agreed with her view that D’s tutoring provision should have been in place for the start of the 2022 academic year.
25. Whilst the Council has already upheld this part of the complaint and apologised, in my view it has not fully remedied the injustice caused by fault. In line with the Ombudsman’s Guidance on Remedies, we recommend the Council should make a symbolic payment to D in recognition of the impact of the delay in arranging the provision he was entitled to. The Council agreed to this recommendation.

Complaint b) and d)

26. Paragraphs 9.194 and 9.195 of the SEN Code of Practice outline the Council’s responsibilities under Section 37 and 44 of the Children and Families Act 2014 and Regulations 22 and 28 of the SEND Regulations 2014. They say:
• Where the local authority proposes to amend an EHC plan, 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. The child’s parent or the young person should be informed that they may request a meeting with the local authority to discuss the proposed changes.
• The parent or young person must be given at least 15 calendar days to comment and make representations on the proposed changes, including requesting a particular school or other institution be named in the EHC plan.
27. The Council acknowledged it did not issue a proposed amendment and there should have been more discussion with Mrs Y before finalising D’s EHC plan on 2 June 2023. Furthermore, Mrs Y says the Council did not comply with the statutory timescales.
28. Paragraph 9.196 of the Code says that councils must issue amended finalised EHC Plans, “as quickly as possible and within eight weeks of the original amendment notice. If the local authority decides not to make the amendments, it must notify the child’s parent or the young person, explaining why, within the same time limit”.
29. In my provisional view, there was no delay in the process followed in 2022 because the Council issued the final amended plan on 22 September 2022 which was approximately six and a half weeks after the August review.
30. The Council issued another final EHC Plan on 2 June 2023 naming a mainstream college for D’s post 16 provision. Mrs Y disagreed with the contents of the plan and both parties attended mediation in July.
31. Regulations 42 and 44 of the SEND Regulations 2014 say that if the parties agreed to an amendment of the EHC Plan the Council must issue the amended plan within five weeks of the mediation agreement. In D’s case, the Council issued the amended plan 13 weeks after the date of the mediation agreement. This is fault.
32. Consequently, most of D’s provision for the 2023 academic year did not begin until 16 October. The remaining provision started on 27 October. The Council has already apologised for the delays. In line with the Ombudsman’s Guidance on Remedies, we recommend the Council should make a symbolic payment to both Mrs Y and D in recognition of the impact of the delay in arranging the provision D was entitled to.

Complaint c)

33. The Council upheld this part of Mrs Y’s complaint and acknowledged there were “considerable delays during the current academic year to sort out [D] sitting his GCSE exams” and that the “process should have started much earlier”. D achieved a pass for English but not for Maths. The Council arranged for D to re-sit his Maths GCSE exam in November 2023, but he decided he was not ready and will instead sit the exam in summer 2024 along with science.
34. Whilst the Council has already upheld this part of the complaint, apologised and outlined some proposed service improvements, in my provisional view it has not fully remedied the injustice caused by fault. Although we cannot quantify the exact impact on D in terms of exam marks lost, we can say the fault caused avoidable distress which the Council should provide a symbolic remedy for.

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Agreed action

35. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as the severity of their SEN and the period of education affected by the fault, for example a transfer year.
36. Within four weeks of my final decision, the Council has agreed to:
• Make a symbolic payment of £1200 for D to be used for his educational benefit. This is in recognition of the provision D missed between September and November 2022 due to Council fault.
• Make a further symbolic payment of £950 to D for his educational benefit. This is in recognition of the provision D missed between September and October 2023 due to Council fault.
• Make a further symbolic payment of £1000 to D. This is in recognition of the avoidable and significant distress caused by the Council’s failure to ensure he was entered for the Science GCSE exam in 2023 and for failing to ensure D received the extra time and resources he was entitled to.
• Make a symbolic payment of £500 to Mrs Y. This is in recognition of the Council’s failure to seek her input in 2023 when amending D’s EHC Plan and for the general distress, time and trouble caused by the other fault identified in this statement.
37. Within eight weeks of our final decision, the Council has agreed to provide evidence to show:
• The plans it has in place to improve the process for seeking additional time and/or resources for EOTAS pupils sitting exams; and
• The plans it has in place to improve the process of securing examination centres for EOTAS pupils.

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Final decision

38. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The agreed actions listed above will provide an appropriate remedy for the injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman