Summary: Mr B complained the Council initially refused to assess his son for an Education, Health, and Care Plan and when it did, did not put the provision in place. Mr B says his son has lost out on three years of education. We have found fault with the Council for its delay issuing C’s final amended EHCP. Because of the Council’s delay, C did not receive suitable education provision for almost a year. The Council has agreed to make a financial payment to remedy the injustice caused to Mr B and his son.

The complaint

1. Mr B complained the Council initially refused to assess his son for an Education, Health, and Care Plan (EHCP) and when it did, did not put the provision in place. Mr B says his son lost out on three years of education and this caused him stress because he had to chase the Council to secure suitable provision.
2. Mr B also complained the Council did not provide C with school transport.

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What I have investigated

3. I investigated whether the Council’s delayed issuing C an EHCP and, if it did, what the impact of this was on C’s education provision.
4. I did not investigate Mr B’s complaint about the Council not providing C with school transport. This is a new complaint.

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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. 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)
6. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
7. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
8. If we are satisfied with a council’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)
9. 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 report with Ofsted.

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How I considered this complaint

10. I considered:
• Mr B’s complaint and the information he provided;
• documents supplied by the Council;
• relevant legislation and guidelines; and
• the Council’s policies and procedures.
11. Mr B and the Council commented on a draft decision. I considered their comments before making a final decision.

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What I found

Legislation and guidance

12. A child with special educational needs may have an Education, Health and Care plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The Council is responsible for the EHCP procedure and for making sure arrangements specified in the EHCP are in place.
13. When a parent or carer asks a Council for an EHCP assessment, the Council must reply within six weeks. (Special Educational Needs and Disability Regulations 2014)
14. If a council decides, following an EHCP needs assessment, not to issue a plan, it must inform the child’s parent or the young person within 16 weeks from the request for a EHCP needs assessment.
15. The EHC plan is set out in sections which include.
• Section F: The special education provision needed by the child or the young person.
• Section I: The name and type of school.
16. When a council sends a draft plan to a child’s parent or young person it must give them at least 15 days, 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)
17. A council must send the finalised EHC plan as soon as practicable, and in any event within 20 weeks of the Council receiving a request for an EHCP needs assessment in accordance with section 36(1) of the Act, or of the Council becoming responsible for the child in accordance with section 24 of the Children and Families Act 2014. (Special Educational Needs and Disability Regulations 2014)
18. The finalised EHCP must be in the form of the draft plan sent in accordance with regulation 13(1), or in a form modified because of the representations made in accordance with that regulation. (Special Educational Needs and Disability Regulations 2014)
19. EHCPs should reviewed by the council at a minimum every 12 months.
20. Within four weeks of the review meeting, the council must decide whether it proposes to keep the EHCP as it is, amend the plan, or cease to maintain the plan. It must notify the child’s parents, or the young person and the school or other institution attended.
21. Where the council proposes to amend an EHCP, 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 parents or the young person should be told that they can ask for a meeting with the council to discuss the proposed changes.
22. The parent or young person must be given at least 15 days to comment and make representations on the proposed changes, including asking for a particular school or other institution be named in the EHCP.
23. Following representations from the child’s parents or the young person, if the council decides to continue to make amendments, it must issue the amended EHCP as quickly as possible and within 8 weeks of the original amendment notice.
24. When sending the final EHCP, the council must notify the child’s parent or the young person of their right to appeal and the time limit for doing so, of the requirement for them to consider mediation should they wish to appeal, and the availability of information, advice and support and disagreement resolution services. (Special Educational Needs and Disability Regulations 2014)
25. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’)) The Tribunal hears appeals against decisions made by councils in England about children's and young people’s EHCP needs assessments and EHCPs. (Special Educational Needs and Disability Regulations 2014)
26. On 1 May 2020, some aspects of the law relating to EHCPs changed temporarily to allow councils, health commissioning bodies, education settings and other bodies who contribute to these processes more flexibility in responding to the demands placed on them by coronavirus (COVID-19).

Council’s complaint procedure

27. Stage one: A manager will then investigate your complaint and usually reply to you within 15 working days. If we cannot reply within this time, we will let you know the reasons.
28. Stage two: The Director of the service will usually send you a stage 2 response letter within 25 working days. If we cannot reply within this time, we will let you know why, and when you can expect to get a response.

What happened

29. This chronology includes key events in this case and does not cover everything that happened.
30. The Council commissions a social enterprise company Achieving for Children (AfC), to manage the EHCP procedure for children in its borough. The Council keeps legal responsibility for providing these services.
31. Mr B has a son, C. C has a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD). He also has communication and emotional difficulties.
32. In February 2018, Mr B asked AfC to assess C for an EHCP. AfC held a multiagency meeting to discuss C’s case. The Special Educational Needs and Disabilities (SEND) panel considered C’s case and decided not to assess him for an EHCP. The panel said it did not have enough evidence to make an informed decision. It offered Mr B a meeting with those involved to discuss a support plan for C.
33. Mr B and the school C attended, School 1, made another request for an assessment in April 2018. In May 2018, AfC confirmed the Council would assess C’s special educational needs.
34. In June 2018, Mr B told AfC C was on a reduced timetable and asked for extra tuition. AfC said School 1 should put alternative support in place. School 1 advised AfC it had used all the resources at its disposal and was paying for two learning support assistants to work with C full-time. It told AfC C needed to be in provision equipped to meet his needs.
35. AfC decided it was not necessary for special education provision to be made for C under an EHCP in August 2018. AfC said School 1 could meet C’s needs using its delegated SEN budget. AfC sent Mr B a copy of its feedback and educational psychologist report. It told him about his right of appeal to the SEND tribunal.
36. School 1 told AfC its decision was unacceptable, and it would work with Mr B to appeal its decision. It advised AfC, C could not access the curriculum and was likely to be permanently excluded if he remained in mainstream education.
37. AfC met with Mr B, School 1 and other professionals involved in C’s case to explain its decision. AfC agreed to revisit whether C should have an EHCP. It said C should continue to attend School 1.
38. School 1 asked AfC to reassess C for an EHCP in October 2018. AfC issued a draft EHCP that month.
39. In December 2018, C changed schools and moved to School 2, a mainstream school.
40. AfC issued a second draft EHCP for C in January 2019 and a final EHCP in February 2019. AfC named School 2 in the plan. AfC told Mr B about his right of appeal to the SEND tribunal.
41. School 2 held an EHCP review meeting in June 2019. C’s school attendance was 76%. Mr B reported C was not coping in a mainstream school. Attendees agreed C needed cognitive behavioural therapy (CBT). School 2 had referred C to the Children and Adolescence Mental Health Service (CAMHS). AfC said it would request funding for C to have more time with an educational psychologist. In August 2019, AfC wrote to Mr B with a proposal to amend C’s EHCP.
42. School 2 held a meeting in September 2019. It said it could not meet C’s needs. Mr B advised C had stopped attending. AfC stated School 2 needed to offer C educational provision until the SEND panel decided whether to fund a specialist placement for C.
43. In October 2019, the SEND panel discussed C’s case. It did not agree a change in placement for C. It said it needed more information from CAMHS.
44. AfC held a meeting in November 2019. C said he wanted to return to School 2. School 2 put together a reintegration timetable.
45. Mr B complained to AfC in January 2020. He said C had missed three years of education and AfC’s failures had caused C stress and anxiety. The Council responded in February 2020. AfC did not uphold his complaint. Mr B was dissatisfied with AfC’s response. He complained C had a period without education and needed an emergency EHCP review.
46. AfC told Mr B because it had held an EHCP review recently, it would not hold another one now. Mr B’s solicitors sent AfC a pre-action protocol for judicial review letter before action. It challenged AfC’s decision not to hold an emergency EHCP review for C. AfC agreed to hold an emergency review meeting.
47. In February 2020, the Emotional Health Service assessed C. It put C on the waiting list for CBT, the waiting list was three to six months. The service also referred him to CAMHS for a medication review.
48. AfC held an emergency EHCP meeting in March 2020. School 2 reported C was not accessing education and his behaviour was escalating. School 2 said C needed a new educational placement and one-to-one tuition in the interim. Attendees agreed AfC should make a case to the SEND panel for interim tuition and a change of placement for C. They noted C’s EHCP needed to be amended.
49. AfC sent Mr B an amended draft EHCP in March 2020. The plan did not name an educational provider. It told Mr B he had 15 days to give his views on the plan.
50. Mr B emailed AfC to say he agreed with the amended draft EHCP and wanted School 3 named as C’s education provider. School 3 provides education for students with social, emotional and mental health (SEMH) needs. AfC told Mr B it had consulted with education providers and was waiting for their responses. It advised it would finalise C’s EHCP naming School 2 until a suitable specialist placement was agreed. Mr B said he would appeal to the SEND tribunal if AfC did not name School 3 in C’s EHCP. AfC said it could not name School 3 in C’s EHCP because it had not responded to its consultation. AfC gave Mr B a list of the schools it had sent consultations to.
51. In May 2020, AfC issued C’s final amended EHCP. In section I it recorded, “[School 2], a mainstream local secondary school, until a placement in a specialist school to meet the needs of young people with Social, Emotional and Mental Health needs is confirmed.” AfC told Mr B about his right of appeal to the SEND tribunal.
52. In June 2020, Mr B made an appeal to the SEND tribunal.
53. AfC arranged for Mr B to visit alternative education providers, including School 3 and School 4. AfC sent Mr B a proposal to amend C’s EHCP with a draft amended EHCP. It gave Mr B 15 days to comment on the plan.
54. The Council wrote to Mr B because it had included C in an audit of EHCP cases. We told the Council to complete an audit following a report we published about AfC and three other cases where we found fault with its management of EHCP’s. The Council said the audit found problems in C’s case. The Council apologised for its failings and said it was taking urgent action to resolve them. The audit told the Council to issue a final amended EHCP for C by 30 July or eight weeks from issuing the amended EHCP.
55. In July 2020, AfC responded to Mr B at stage 2 of the complaint procedure. It apologised for the delay in holding an emergency EHCP review for C. It did not uphold Mr B’s complaints the Council let C down, C missing education, AfC initially refusing C an EHCP or AfC failing to consider the abuse C experienced in his EHCP.
56. AfC arranged a placement for C at School 4. School 4 is a School for children with high functioning autism and associated needs. AfC asked School 4 if it could provide C with CBT while he was waiting for the Emotional Health Service to provide this. School 3 said it could offer C counselling.
57. AfC sent Mr B C’s final EHCP in October 2020. AfC named School 4 as C’s education provider in section I of the plan.

Analysis

58. There are limits on our powers which mean I cannot consider all of this complaint. Where there is a right of appeal to the SEND tribunal, the Court has decided the decision, and the consequences of it, are matters which are ‘inextricably linked’(R (on the application of ER) v the Commissioner for Local Administration, 2014). This means I cannot consider those periods where Mr B had a right of appeal.
59. Mr B asked for an EHCP assessment for C in February 2018. AfC responded to his request in April 2018, one week later than the deadline of six weeks. This delay was fault.
60. AfC agreed to assess C for an EHCP in May 2018. If a council decides, following an EHCP needs assessment, not to issue an EHC plan, it must inform the child’s parents or the young person within 16 weeks of the request. In this case it took AfC 18 weeks to tell Mr B it would not issue C with an EHCP, a delay of two weeks. This delay was fault.
61. In October 2018, AfC agreed to issue C with an EHCP. AfC issued C’s final EHCP in February 2019. In June 2019, it held an EHCP review meeting. Within four weeks of the review meeting AfC should have told Mr B whether it proposed to amend C’s EHCP or stop maintaining it. AfC wrote to Mr B in August 2019, a delay of two weeks and fault.
62. AfC should have issued C’s final amended EHCP within eight weeks of the amendment notice issued in August 2019. AfC did not issue C’s final amended ECHP until May 2020, a delay of 29 weeks. This delay was fault.
63. In the final amended EHCP, AfC stated C needed a placement in a specialist school but did not name one. Mr B’s appeal rights were engaged once AfC issued the final EHCP. I cannot consider the period between AfC issuing C’s final amended EHCP in May 2020 and when it issued a notice to amend C’s EHCP in June 2020.
64. AfC’s 29-week delay issuing an amended EHCP prevented C from accessing a specialist placement sooner. Over the period of delay, C’s behaviour deteriorated, he stopped attending for a period, risked exclusion and could not access the curriculum. Where a child has lost education provision because of a Council’s fault, we can recommend a financial remedy.
65. AfC’s delay included weeks when schools were closed because of COVID-19 and on holiday. Taking account of school holidays, in total C missed 19 weeks of term-time specialist provision when the schools were open. During this time C attended School 2, however, it could not meet his needs and therefore the provision was inadequate. C missed four weeks of provision when schools were closed because of COVID-19. There is uncertainty about what the Council would have provided during this period. I have recommended the Council make a financial payment for the 19 weeks of inadequate provision and four weeks of uncertainty about what it would have provided when the schools were closed because of COVID-19.
66. During AfC’s delay issuing C’s EHCP, Mr B was put to time and trouble having to chase AfC to try to get it to fulfil its statutory duties. Mr B had to send the Council a pre-action protocol for judicial review before it agreed to hold an emergency EHCP review. Mr B complained about the service he and his son received from AfC. AfC delayed responding to Mr B’s complaint. Its stage two response was 14 weeks late. AfC told Mr B the delay was because of COVID-19. If AfC had met its complaint procedure timescales it would have responded to Mr B in March 2020 before lockdown restrictions were implemented. I do not accept COVID-19 as a reason for the delay, the delay was fault. I have recommended the Council make a financial payment to acknowledge the time and trouble Mr B was put to and the stress this caused.

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Agreed actions

67. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the actions of the AfC, I have made recommendations to the Council.
68. Within one month of the final decision, the Council will:
• Apologise to Mr B and C for the faults identified.
• Pay Mr B £250 for time and trouble and the stress this caused.
• Pay Mr B £300 a month for 19 weeks of inadequate provision during the period of delay when schools were open. This is to be used for C’s educational and social development.
• Pay Mr B £300 to recognise the uncertainty about the education provision C missed when schools were closed because of COVID-19. This is to be used for C’s educational and social development.
69. Within two months of the final decision the Council should review how it monitors whether AfC is meeting the statutory requirements related to EHCPs, including meeting timescales and securing provision.

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Final decision

70. I have completed my investigation and uphold Mr B’s complaint. Mr B and C were caused an injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.

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Parts of the complaint that I did not investigate

71. I have not investigated Mr B’s complaint about the Council not providing C with school transport. This is a new complaint.

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Investigator's decision on behalf of the Ombudsman