Summary: Ms Y complained about the Council’s provision for her daughter's special educational needs and a suitable education otherwise than at school. We have found fault by the Council in failing to provide Z with a suitable education, and with its delays in completing the review of Z’s Education, Health and Care plan, between November 2020 and September 2021, causing injustice. To remedy this injustice the Council has agreed to apologise to Ms Y, make payments to acknowledge the impact on Z of the missed provision and reflect Ms Y’s upset and distress, and service improvements.

The complaint

1. The complainant, who I am calling Ms Y, says the Council failed to provide services to her and her daughter, Z, in relation to Z’s special educational needs since March 2020. Specifically, she says it:

1. failed to make suitable educational provision as detailed in Z’s EHC plan between March 2020 and September 2021 or to provide Z with suitable learning resources or equipment during that period;
2. failed to consider its duties to make alternative provision under section 19 of the Education Act 1996 when Z stopped attending school in March 2020;
3. delayed agreeing to name education otherwise than at school (EOTAS) in an amended EHC plan and wrongly tried to suggest that Ms Y asked to electively home educate Z;
4. wrongly sent Z’s details to a tuition agency as part of a consultation which amounts to a breach of Z’s data;
5. failed to make reasonable adjustments in the way they worked with Ms Y which meant she had to employ an advocate;
6. discriminated against Z’s disability by failing to provide staff who were sufficiently knowledgeable or expert in autism; and
7. failed to deal properly with Ms Y’s complaints about the issues detailed in a) to f).

2. Mrs X, as Ms Y’s representative, has conducted the complaint with us on Ms Y’s behalf.

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What I have and have not investigated

3. I am considering complaints a), b), c), e), f) and g).
4. I am not considering complaint d). This is because this complaint is about an alleged breach of data, and we normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. We may decide to consider such a complaint it there are good reasons for us to do so but I have not seen any evidence to persuade me there are good reasons in this case (Local Government Act 1974, section 24A(6), as amended)

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The Ombudsman’s role and powers

5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these.
6. 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)
7. 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)
8. 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

9. I read Ms Y’s complaint and the Council’s response to our enquiries, together with all the other information Ms Y, Mrs X, and the Council provided about the complaint.
10. I invited Ms Y, Mrs X and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

What should have happened

Education, Health and Care Plan (EHC plan)

11. A child with special educational needs may have an EHC plan. This sets out the child’s needs and arrangements for meeting them.
12. Local authorities (councils) have a duty to arrange the special educational provision set out in an EHC plan. (Children and Families Act 2014 section 42)
13. We recognise it is not practical for councils to keep a “watching brief” on whether schools are providing all the special educational provision for every child with an EHC plan. We consider councils should be able to demonstrate due diligence in discharging its duty to make sure the arrangements in the EHC plan are put in place, and as a minimum have systems in place to:

• Check the special education provision is in place when a new 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 the provision is not in place at any time.

14. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.

Inability to attend school because of health needs

15. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
16. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))

Arrangements for reviewing an EHC plan

17. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance. This says a council must review an EHC plan at least every 12 months.
18. 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)
19. 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)
20. 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)
21. 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.

What happened

Background

22. Z has special educational needs. She has had an EHC plan for a number of years.
23. From January 2019 Z attended the placement named in her EHC plan, a resource base in a mainstream primary school. The SEN provision in her plan was to be provided by appropriately trained teaching staff with Occupational Therapy (OT) and Educational Psychologist (EP) input commissioned by the school.

March 2020

24. Z was away from school, because of medical issues, for some days during the first week of March. Her last recorded attendance was on 6 March.
25. The annual review meeting for Z’s EHC plan was held on 6 March. Ms Y raised concerns about how much Z was finding hard at school, in particular the impact of wet playtimes when she was not allowed to go outside.
26. I understand Z did not return to school after 6 March. Ms Y has said she did not send her back because of Z’s anxiety about school.
27. Ms Y told the school, due to concerns about Covid-19 and family vulnerability, they were keeping away from people as much as possible and doing home learning with Z. In emails with the school on 17 and 18 March Ms Y asked for learning resources Z could use at home.

23 March – July 2020

28. Z’s school, together with all schools was closed from 23 March following the national lockdown.
29. Z did not attend school for the rest of the academic year. The Council says the school provided home tuition via Google classrooms.

September to November 2020

30. Z did not return to school at the start of the autumn term. The Council says Ms Y spoke to the school about ways to support Z’s learning at home.
31. Ms Y asked the Council to arrange an emergency review of Z’s plan. She told the Council Z could not attend school and asked it to provide Z with education otherwise than at school (EOTAS).
32. Ms Y provided a letter of support from Z’s GP who said the closure of schools and changes brought about by the initial Covid 19 lockdown period were very difficult for Z. By the time schools were due to restart Z had settled into the new situation and was calmer and sleeping better than previously. Rather than risk disrupting this by Z returning to a school situation different to that which she had previously known, Ms Y decided to keep Z away from school and provide some education from home.
33. An emergency annual review was held on 20 November. My understanding is that it was accepted at the meeting the school could not meet Z’s needs and she should be provided with EOTAS. The notes say Ms Y had asked for a personal budget for the EOTAS provision.

December 2020 to January 2021

34. Based on the information provided by the Council and Ms Y, my understanding is:

• In December, the Council’s SEND panel considered Ms Y’s request for a personal budget for Z’s EOTAS provision. The panel asked for more information about what this would cover and the cost;
• The Council sent Ms Y a draft amended EHC plan. Ms Y sent her comments by email on 8 January. She queried changes to Z’s SEN provision from that in her existing plan and said that, as the Council was aware, Z had been out of a school setting since March 2020; and
• Z was still on the school’s roll at this stage. Ms Y told the Council she was not receiving much support from Z’s school. She was only being provided with online resources and not any differentiated work.

February to April 2021

35. I have not seen evidence of any further progress regarding a personal budget or proposals for Z’s EOTAS provision during this period.

May to August 2021

36. In May the SEND panel considered a further submission about a personal budget for the provision for Z of tuition, art and OT. It had additional questions.
37. The Council says its SEN team had a meeting with Ms Y on 29 June to discuss her requests for amendments to Z’s EHC plan and EOTAS provision.
38. The panel agreed the re-submitted personal budget request in June.
39. The draft amended plan was issued on 20 July.
40. Then:

• On 6 August the panel agreed a budget of £7,860 to fund EOTAS provision of weekly 1:1 tuition, specialist art sessions and OT;
• Ms Y appealed the panel’s decision and requested an increase in the budget to cover the cost of her preferred tuition agency, Speech and Language Therapy (SALT) and EP support; and
• On 24 August, the panel agreed the increased budget request.

41. The Council issued a second draft amended plan on 2 September.

September 2021: issue of Z’s final amended plan

42. Z’s final plan was issued on 14 September. It named Z’s placement as EOTAS with a personal budget of £15,960 for the provision of tuition, specialist art sessions, OT, SALT, and EP input.
43. I understand Z began receiving EOTAS provision towards the end of September.

Ms Y’s complaint

44. In her complaint to the Council on 13 September, Ms Y said:

• At the review meeting in March 2020, Z’s school said it could not provide all of her provision. Because of Z’s increasing anxiety she had not been able to attend school since 13 March 2020;
• The Council had failed to provide Z with any alternative provision from March 2020. CAMHS contacted the Council’s inclusion team about their concerns that Z could not attend school, but the Council did not respond;
• Z had the support of a teaching assistant when in school, but she was not provided with any home schooling adapted to her specific needs during lockdown; and
• The Council agreed, at the emergency review in November 2020, the school could not meet Z’s needs and she should be provided with EOTAS. But this had still not been arranged. The Council should issue the final plan, put EOTAS in place, and pay financial redress for Z’s missed SEN provision and education, and the delays in completing the annual review and issuing the final plan.

45. Ms Y also told the Council:

• She was autistic;
• She gave the Council her email address and said it should not contact her by phone as this was not accessible for her as an autistic woman; and
• She’d had to employ an advocate from September 2020 in order to get things resolved.

46. As Ms Y’s advocate and representative, Mrs X told the Council in October 2021:

• Ms Y had asked her to reply on her behalf to the Council’s stage one complaint response.
• Although EOTAS provision was agreed in principle and signed off in June 2021, there was no action by the Council to progress this until August;
• The Council’s lack of provision and support for Z had a negative effect on her and the whole family;
• As a reasonable adjustment under the Equality Act 2010, the Council should send copies of its correspondence to Mrs X. It had failed to do this; and
• She enclosed Ms Y’s GP’s letter of 8 September 2021. This confirmed Ms Y had been recently diagnosed with Autistic Spectrum Condition and would benefit from a consideration of, and reasonable adjustments for, her communication needs.

The Council’s complaint response.

47. The Council had sent its stage one complaint response by email to Ms Y. It sent its final response in November 2021 by email to Mrs X
48. In its response to Ms Y and Mrs X’s complaints, the Council said:

• Z last attended school in March 2020. The school said she was invited to attend school during both lockdowns on several occasions, but Ms Y chose not to take up the invitation. Home learning was provided via Google classrooms;
• At the beginning of autumn term in 2020, in response to Ms Y’s request for a meeting, the class Teacher and SENCO spoke to her by phone to advise ways to support Z’s learning. Resources to support learning at home were sent by post;
• It referred to the steps taken from June to September 2021 to discuss and agree the proposed EOTAS provision and issue a final plan;
• The provision of services outlined within section F of Z’s final plan issued on 14 September would be provided, and the Council would be invoiced directly by the providers. It had been in contact with the providers in August and September about start dates;
• It would look into their request for financial redress for the impact of the missed education and upset, and uncertainty caused by its failures and delays. It would respond once it had received further information from the school. It would contact them to arrange a meeting to discuss this; and
• Free support was available via the Lambeth Information, Advice and Support Service (IASS) which provided free and impartial support for children, young people, and their parents relating to special educational needs and disability. IASS had advisers who had expertise in autism. It was Ms Y’s choice to pay for an advocate to support and communicate on her behalf with the Council. It would not provide financial recompense for these costs.

49. It also told Ms Y if she was not satisfied with its final response she could refer her complaint to us.
50. Ms Y and Mrs X brought Ms Y’s complaint to us in August 2022.

My analysis – was there fault by the Council causing injustice?

Complaints (a) and (f)

51. As, in my view, these two complaint issues are linked I have considered them together. Complaints a) and f) are that the Council:

• failed to make suitable educational provision as detailed in Z’s EHC plan between March 2020 and September 2021, and failed to provide Z with suitable learning resources or equipment during that period; and
• discriminated against Z’s disability by failing to provide staff who were sufficiently knowledgeable or expert in autism.

52. I appreciate Ms Y had concerns in early March 2020 about the school’s provision of Z’s SEN support and how Z was managing at school. These issues were discussed at the annual review meeting on 6 March.
53. But schools had to close at this point because of the national lockdown. This meant Z, like other children, had to continue their education through home schooling.
54. Because she was not in school, Z did not have the support of a teaching assistant or other provision in her plan. But this initial period of lockdown presented huge challenges to councils and schools around the delivery of services, including education and SEN provision.
55. Although the Council still had a statutory duty to arrange the SEN provision in Z’s plan from March to 1 May 2020, I do not propose finding fault with the Council for not doing so during this period.
56. And from 1 May 2020 to 31 July 2020 the law was changed to modify councils’ absolute statutory duty to arrange the SEN provision in EHC plans to a duty to “use reasonable endeavours to do so”.
57. I have not seen any information to indicate the Council was made aware of concerns about Z’s provision during lockdown or failed to use reasonable endeavours to resolve this.
58. I do not propose finding fault by the Council with regard to Z’s SEN provision during the period from May to July 2020.
59. I will consider the position regarding Z’s provision from September 2020 to September 2021 together with complaint (b) below.
60. With regard to issue (f) my understanding is Ms Y is saying the school staff were not sufficiently trained to support Z. But Z was attending a school with a resource base, which had said it could meet Z’s needs and was named as her placement in her plan. I have not seen any information to show that Ms Y raised concerns with the Council before March 2020 about the way the school was providing Z’s support.
61. I do not consider there was fault by the Council with regard to any concerns Ms Y had about the level of training of the school staff.

Complaint (b)

62. This complaint is that the Council failed to consider its duties to make alternative provision under section 19 of the Education Act 1996 when Z stopped attending school in March 2020.
63. I have not seen any information so far which shows the Council was told before the autumn term in 2020, Z could not return to school (after schools had re-opened following lockdown).
64. When Ms Y asked the Council, at the start of the autumn term, to arrange the emergency review she provided it with a letter from Z’s GP which said by the time schools re-opened, Z had settled into the new situation and rather than risk disrupting this Ms Y decided to keep Z away from school.
65. I don’t consider the Council knew Z was no longer able to attend school, because of her anxiety and other issues, until the emergency review in November 2020. The Council accepted, at that point, the school could not meet Z’s needs and she should be provided with EOTAS. And as it knew in November she had not returned to school at the start of the autumn term, in my view it should have made immediate arrangements to provide Z with a suitable education at home as required by S19 (1) of the Education Act 1996.
66. But the Council did not put EOTAS provision in place for Z until September 2021. I note it had discussions with Ms Y about the type of provision and providers and it took some time to agree with Ms Y what should be arranged. But this did not remove its duty to ensure Z was being provided with a suitable education in the meantime. I understand the school continued to provide some resources for Z, but it is clear Ms Y was concerned this was not suitable or sufficient educational provision and raised these concerns with the Council.
67. In my view the Council failed to provide Z with a suitable education from November 2020 to September 2021 and this was fault.
68. I will consider the impact of this fault below.

Complaint (c)

69. This complaint is that the Council delayed agreeing to name EOTAS in an amended EHC plan and wrongly tried to suggest that Ms Y asked to electively home educate Z.
70. During the period from May to July 2020, the specific timescales in the SEND code of practice were removed and replaced with a requirement to do so “as soon as reasonably practicable”.
71. I consider the Council promptly arranged the emergency review of Z’s plan in November 2020, in response to Ms Y’s request for this at the start of the autumn term.
72. The information I have seen indicates the Council accepted it should provide Z with EOTAS going forward. But it failed to comply with the specific timescales, which had now been reinstated, for completing the review, sending Ms Y a draft amended plan and issuing a final plan.
73. To meet the specific timescales the Council should have:

• Told Ms Y within four weeks of the review meeting (on 20 November) it intended to amend the plan and provided details of the proposed changes; and then
• Issued the final plan within eight weeks from the date it notified Ms Y of the amendments.

74. This means the Council should have sent Ms Y a draft amended plan by 18 December 2020, and issued the final plan by 12 February 2021.
75. But it does not appear to have taken any steps towards considering how EOTAS should be provided or amending Z’s plan until the start of 2021. And it did not issue the final plan until September 2021. This was way outside the required timescales.
76. I note there was some reference in the paperwork in 2021 to Z’s placement being either EOTAS or electively home educated. This may have caused some confusion, but I do not consider I have sufficient evidence on which to make a finding of fault with regard to this part of Ms Y’s complaint.
77. But I consider the delays and failure to meet the timescales between November 2020 and September 2021 in completing the review and issuing the final amended plan were fault by the Council. I will consider the impact of this fault below.

Complaint (e)

78. This complaint is that the Council failed to make reasonable adjustments in the way it worked with Ms Y which meant she had to employ an advocate.
79. I have not seen any information which shows Ms Y told the Council about her communication difficulties or asked for any adjustments before her complaint letter in September 2021. In that letter she told the Council she was autistic, asked it not to contact her by phone and to only use email.
80. The Council sent its complaint response to Ms Y by email as requested.
81. Mrs X replied to the stage one response on Ms Y’s behalf. She said the Council should be sending correspondence to her as a reasonable adjustment but had failed to do so. I haven’t seen any information to show that the Council had previously been asked to do this.
82. The Council sent its reply to Mrs X as requested.
83. I haven’t seen any information which indicates Ms Y had to employ an advocate because of any failure by the Council to properly consider a request by her for reasonable adjustments.
84. Based on the evidence seen, I do not propose upholding this part (e) of Ms Y’s complaint.

Complaint (g)

85. This complaint is that the Council failed to deal properly with Ms Y’s complaints about the issues detailed in a) to f)
86. Ms Y complained to the Council in September 2021. The Council provided its initial, stage one, response in October 2021, and its final response in November 2021.
87. I appreciate Ms Y and Mrs X feel it did not deal properly with the issues they raised with it. But I consider the Council provided its response and did so promptly. And it correctly advised them of Ms Y’s right to refer the complaint to us if she was not satisfied with its response.
88. Based on the evidence seen, I do not propose upholding this part (g) of Ms Y’s complaint.

Impact of the Council’s faults

89. Because of the Council’s failure to provide Z with a suitable education from November 2020 to September 2021, Z missed out on educational provision and all her SEN support during this period.
90. Where fault has resulted in a loss of educational provision, we normally recommend a remedy payment of between £200 and £600 a month to acknowledge the impact of that loss. The figure is based on the circumstances of each case, to reflect the particular impact on that child or young person.
91. I have considered the impact on Z of the loss of SEN support and educational provision. She is a child of primary school age. She did not receive any SEN support and, save for some limited resources from her school, missed out on education for a significant period of time at a stage when children are developing essential literacy, numeracy and social skills.
92. For these reasons, I consider the payment should be towards the higher end of the scale from November 2020 to September 2021.
93. And I consider the Council’s failure to meet the timescales for completing the review and issuing Z’s final amended plan, together with the delay in providing Z with a suitable education caused Ms Y significant worry and upset. The uncertainty about what provision would be agreed and when it would be put in place caused her additional distress.

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Agreed action

94. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:
1. apologise to Ms Y for its failure to meet the timescales for completing the review and issuing Z’s final amended plan, and the delay in providing Z with a suitable education; The apology should reflect the principles about making an effective apology set out here Guidance on remedies - Local Government and Social Care Ombudsman in in our published Guidance on Remedies;
2. pay Ms Y £600 to reflect the worry and distress its failures caused her. This is a symbolic amount based on the Ombudsman’s published Guidance on Remedies; and
3. pay Ms Y £550, on Z’s behalf as a remedy for the injustice caused to Z, for each school month from November 2020 to September 2021 Z did not receive a suitable education. I have assessed this as being 9 school months and an amount of £4,950.
95. And within three months from the date of our final decision, the Council has agreed to review its policies and procedures for:

• deciding whether it is required to make alternative provision where it knows a child is no longer able to attend school and making the alterative provision promptly; and
• ensuring annual reviews are completed within the required timescales and its SEN officers are aware of these timescales and their importance.

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

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Final decision

97. I have found fault by the Council as set out above, causing injustice. I have completed my investigation on the basis the Council will carry out the above actions as a suitable way of remedying the injustice.

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Investigator's decision on behalf of the Ombudsman