Summary: Somerset County Council failed to make provision for X, who had an Education, Health and Care Plan, when her school placement ended and when she was unable to attend before that. This caused her injustice. The Council will take the action detailed in this decision statement to recognise the injustice to X and her mother and to ensure that such failures to not happen to others in future.

The complaint

1. The complainant, whom I shall refer to as Ms B, complains about the Council’s handling of her daughter, X’s, special educational needs since February 2019. Specifically, she says the Council failed to:

1. consider what provision it should put in place immediately it was informed that X’s placement at School 1 formally ended in February 2019 and instead advised that no provision could be made until September 2019;
2. review or amend X’s EHC Plan when her placement ended at School 1 meaning the EHC Plan wrongly continued to name School 1 as her placement until August 2019 when it issued a revised EHC plan;
3. make education or any other provision detailed in X’s EHC Plan from February 2019;
4. agree to placement at School 2 when it was the only placement that had been identified;
5. undertake occupational therapy and speech and language therapy assessments as directed by the SEND Tribunal in January 2020;
6. provided such poor information and advice that X had to instruct a solicitor to advise her on how to proceed in August 2019; and
7. offer sufficient remedy to recognise the lack of provision or to apologise or properly acknowledge the impact of its failings on X or to ensure that similar failings do not affect others in future.

2. X says that the impact of the above failings have been that she has missed out on education including taking GCSE exams, has been caused avoidable distress by its handling of her education and her special educational needs, and missed out on the opportunity to receive education and the other support detailed in the EHC Plan including social contact in a school/college setting.

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What I have investigated

3. I investigated parts a), b),c), e), f) and g) of the complaint. The final section of the statement explains why I did not investigate part d).

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The Ombudsman’s role and powers

4. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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.
6. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
7. 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)

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How I considered this complaint

8. I considered the information Ms B provided with the complaint and discussed the complaint with her. I made written enquiries of the Council and considered all the information before reaching a draft decision on it.
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 decision with Ofsted.
10. Ms B 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

What should have happened

11. 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.

12. We can consider the other sections of an EHC plan. We do this by checking the Council followed the correct process, and took account of all relevant information, in deciding what to include. If we find fault affected the outcome, we may ask the Council to reconsider. We will not usually substitute our judgement for the judgement of professionals.
13. 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.

14. The Children and Families Act 2014 is the law that includes legal requirements in relation to children and young people with special educational needs and disabilities. The SEN and Disability Regulations 2014 (the Regulations) provide more detail on what councils are required to do when assessing and planning the education, health and care needs of children with special educational needs under the Act.

15. The SEN Code of Practice 2014 (the Code) is statutory guidance that provides councils with further guidance on how to implement the legal requirements.
16. Councils are required to regularly review a young person’s EHC Plan with the first review being held within 12 months of the Plan being issued and thereafter within 12 months of the previous review. An early review may be needed in certain circumstances where an EHC plan needs to be amended including, for example, where a school placement has broken down. The Council is required to issue its decision on whether to cease, maintain or amend the Plan within 4 weeks of the meeting. Each of the decisions may be appealed.
17. The council must secure the special educational provision detailed in the plan. The council is only relieved of this duty if the child or young person has made suitable alternative arrangements themselves. If a parent does make alternative arrangements the council must satisfy itself those arrangements are suitable.
18. Education Otherwise Than At School (EOTAS) is educational provision for a child or young person who is unable to attend mainstream or special needs schooling. It can include online schooling and home tuition. It is only provided where a council decides it is inappropriate for provision to be made in school.
19. A special educational needs personal budget is a payment made by a council to a parent or young person to enable them to buy provision detailed in an EHC Plan. They are optional for the parent or young person but councils are required to prepare one if it is requested by the parent or young person.
20. Councils are required to provide support to children, young people and parents with information and advice on matters related to SEN and disability including signposting to alternative sources of support and information via its own SEND Information, Advice and Support Service (commonly referred to as SENDIAS). These services should be impartial, confidential and accessible. I note the Council’s website provides information about SENDIAS and how to contact that service.
21. The Council’s complaints procedure comprises two stages. At stage 1 it aims to provide a response in 10 working days and if unhappy with the response the complainant can ask for the matter to be considered at stage 2 of the process where the Council undertakes to respond in 17 working days.

Background

22. X attended School 1, a specialist independent residential school placement, until February 2019. That placement was named on the Education, Health and Care Plan issued in September 2017. X is now 23 years old. Her secondary education was significantly disrupted by a long period of time spent in a medical school and then a psychiatric hospital. X has a history of self-harm and mental health diagnoses.
23. Section F of X’s 2017 EHC Plan clearly referred to some very specialised and targeted provision in a residential placement and it included, for example:
• organisational support to get ready for school and to get to and from the educational setting;
• 1:1 and small group teaching;
• High expectations to recognise X’s cognitive ability and aspirations;
• A highly specialised and personalised approach to developing communication and interaction skills recognising X’s complex social and emotional needs and the importance of this to enable her to succeed;
• Access to a member of staff connected to the education setting who could continue therapeutic work as needed and directed by the Community mental health team or the educational psychologist;
• A personalised plan to prepare staff on how to support X if she was feeling overwhelmed; and
• Opportunities to practise independence skills with a trusted tutor.

What happened

24. In February 2018 shortly after X began attending School 1, the school carried out what it referred to as a “mini review” which highlighted that X was struggling with the GCSE subjects she had started and as a result she and the School decided to reduce the number of subjects she was studying. No change to her EHC Plan was considered necessary. Whilst it was a residential school I understand that at that time X was attending on a daily basis and had missed a large amount of schooling due to her mental health difficulties.
25. In April 2018 School 1 arranged an Annual Review of X’s EHC Plan. The notes of that Review confirm that the SEND worker did not attend but that X, her parents and a number of school staff did attend. The notes show that X’s school attendance was still quite low but she had started to spend some time overnight at the school. Ms B provided a note to express how well X was doing at school compared to the significant disruption over previous years. The Council says it did not receive the notes of that review from Q School until September 2019.
26. It appears from an adult social care assessment completed in January 2019 that X’s placement at School 1 was deferred in September 2018 due to the impact of an incident in the placement that had a severe and negative effect on X’s mental wellbeing. Ms B states there was also a safeguarding concern connected to this incident which involved another person at the placement and that the Council’s safeguarding team were informed of it. Ms B also says that the adult transitions team began working with X in November 2018. Ms B also states that she told the Council’s SEN team in December that X would not be returning to School 1.
27. A further review took place in February 2019. This confirms that X’s placement at School 1 was “deferred due to mental health concerns on 18 September 2018. During previous academic year her attendance to lessons was sporadic”. The School decided that it could no longer keep X in the school because it could not keep her safe and the safeguarding concern that meant that X had also decided she did not want to return to School 1. So a new educational placement was required. The review notes state that section I of the Plan was to be amended. The Council says it received the notes of the annual review from the School in November 2019.
28. In May 2019 X’s Transitions Adult Social Care Worker wrote to the Council to say that she had been working with X since November 2018 and that she supported X’s wish to attend School 2. The Transitions Worker completed an assessment of X in January 2019 and this assessment notes that the Council’s SEND worker was at that time looking to see whether X could be offered a residential placement at School 2.
29. The Council’s correspondence refers to an Amendment Notice (to amend X’s EHC Plan) being sent to Ms B at the end of July. I have not seen a copy of this or of the covering letter.
30. In early August Ms B instructed a solicitor on X’s behalf. The solicitor wrote to the Council expressing dissatisfaction with the Council’s proposed amendments to X’s EHC Plan issued at the end of July. It refers to the Amendment Notice stating that specialist provision would be sought for X and that two named colleges would be consulted. The solicitor argued that the Council should obtain new clinical psychologist, educational psychologist, OT and SALT assessments in order to ensure it was seeking the most appropriate placement for X. The solicitor expressed concern that that Council had refused to agree to a placement at School 2 arguing that it was incompatible with the efficient use of its resources to do so but failing to identify an alternative placement.
31. The Council responded by stating it intended naming EOTAS as the provision.
32. In August 2019 the Council consulted a local further education college to see if could offer X a place.
33. In September the Council issued a final amended EHC Plan for X naming a mainstream FE college in section I and informing Ms B of her right of appeal.
34. Shortly after Ms B lodged an appeal with the SEND Tribunal challenging the school named in Section I.
35. In late September an EOTAS package was put in place for the duration of the appeal. This was facilitated by a personal budget in the form of a direct payment of £594 per week. In October this was increased to just over £800 a week after Ms B negotiated with the Council about the need for a higher payment to meet the costs of the provision X needed.
36. In January 2020 the SEND Tribunal ordered that a Final EHC Plan to be issued naming X’s preferred school, School 2, in section I.
37. In February 2020 the Final EHC Plan with the agreed amendments was issued.
38. X began attending School 2 but unfortunately in March 2020 her placement there had broken down and she stopped attending.
39. In April 2020 the Council reverted to the EOTAS package again.
40. In June 2020 the Council arranged an Annual Review to review the provision and the Plan. It says it issued a final EHC Plan in October 2020 naming EOTAS and says that at that time it made a referral for Speech and Language and Occupational Therapy. I have seen the Council’s referral to the NHS for these assessments
41. In June 2021 the Council arranged the next annual review to review the EOTAS package. It says this was revised and the personal budget and direct payment was increased. It confirms the EHC Plan and provision remains in place to date.

The decision of the SEND Tribunal in January 2020

42. The order issued by the Tribunal stated that the parties had reached an agreement that the Council would issue an EHC Plan as agreed as soon as possible and by 20 January at the latest, that the EHC Plan would name School 2 in section I, and that there would be no order as to costs. It does not refer to any requirement of the Council to complete occupational or speech and language therapy assessments.

Ms B’s complaint to the Council

43. Ms B complained to the Council in May 2020. In its response in July 2020 the Council accepted that the SEN team did not provide sufficient or clear advice to Ms B or X until September 2019 when the appeal was submitted to the Tribunal but said that it had improved after that time. She also said “it is difficult to understand why interim provision was not offered when the placement at School 1 ended and said the officer who has been working on X’s case then had left. She apologised and advised that Ms B could pursue the complaint at the next stage of the procedure if she remained dissatisfied.
44. Ms B duly asked for the matter to be progressed to stage 2 of the complaints procedure in August 2020. The Council provided its response in October 2020. On the same day Ms B expressed her dissatisfaction with the response and said she would complain to the Ombudsman. The Ombudsman’s office subsequently advised Ms B that she had not completed the complaints procedure and referred her back to the Council. It appears there was some confusion on which process was being followed as the Council says it corporate complaints procedure comprises two stages but the Ombudsman’s office understood that a three stage procedure was being used. Instead the Council offered Ms B a payment of £3500 as s remedy for the 7 months missed education between February and September 2019. This was calculated at a rate of £500 per month. X replied later that month rejecting the offer as she considered it insufficient and was unhappy with the absence of an apology. Ms B then complained again to the Ombudsman’s office.

Was the Council at fault and did this cause injustice

45. The Council accepts that it should have arranged interim education for X before September 2019. The Council has already apologised to Ms B about this failure and has offered her a payment of £3500 to acknowledge the impact of that failure. I will address the payment offered further below.
46. The Council accepts it made no education provision for X between February and September 2019. This amounts to fault. It appears there was an annual review in February 2019 when the placement at School 1 ended. The Council did not attend this review meeting and it says it was not provided with the notes of that review until November 2019. It seems clear however that the Council was aware that X had not been attending the placement from at least November 2018 when its adult transitions social care team was working with X and also that it was aware of or involved in a safeguarding investigation in relation to the incident at X’s school before that. The Council accepts that it was aware the placement had broken down before this official notification in November 2019 and it is my view that the evidence suggests it was aware of the deferment in the Autumn of 2018 and, given the ongoing involvement of its adult social care team in 2019 its officers were likely to have been aware of the termination of the placement around the time it ended in February despite it not receiving the annual review paperwork for several months after that. It is entirely clear that the adult social care social worker made the SEN team aware of this in May 2019 which is when she wrote to them to support X’s wish to attend School 2 and it also appears that in January 2019 a SEND worker was already looking to see whether X could be offered a residential placement at School 2.
47. The Council has already accepted that it failed to put provision in place from February and the evidence referred to seems to confirm that it was aware that provision was not being made and that the placement had formally ended in February 2019.
48. In addition, it was clear that X was not receiving any educational or special needs support from at least November 2018 and there is no evidence that the Council took any action to put anything in place at that time. Councils are required to make the provision detailed in a child’s EHC Plan and it is clear that the Council failed to do this despite being aware of this from at least November 2018. So there was also no provision from then to February 2019.
49. The lengthy period of no provision caused avoidable distress and anxiety to both Ms B and X. This is particularly significant given X’s history of mental health problems. Ms B also suffers mental health problems so was notably affected by the effect on X.
50. Whilst a review was arranged and took place in February 2019 the Council did not attend the review. I have no reason to believe that the Council was not invited or made aware of the review but it seems clear that it did not chase up the outcome of the review even though it was aware of the difficulties in X’s placement. This amounts to fault. I consider this caused X injustice in the form of missed opportunity for action following the formal ending of the placement to be expedited at that point.
51. The Tribunal did not order the Council to complete SALT and OT assessments so there are no grounds for me to conclude the Council was at fault in failing to arrange such assessments. I note that the Council accepts that it should have taken action to arrange SALT and OT assessments following the breakdown of the placement at School 2 as it was envisaged that such assessments would be arranged there. This relates to a delay in amending the EHC Plan following the review meeting in June 2020 due to the breakdown of the placement at School 2. Ms B did not specifically include this as part of her complaint but given she has complained about the delay in arranging SALT and OT assessments I will make a finding of fault in relation to the delay in amending the Plan as this caused injustice in terms of lost opportunity for X to have this addressed and to appeal to the Tribunal if she was unhappy about the content of any amended plan.
52. The Council accepts that its communication and action between February and August 2019 was inadequate. As I have said above I consider it amounts to fault. However, the instruction of a solicitor appears to have been the result of receiving the draft amended EHC Plan in late July and specifically around its proposal to not name Ms B’s preferred school in section I. Ultimately this was a decision that Ms B had the right to, and did in fact, challenge by appealing to the SEND Tribunal. Ms B was not required to instruct a solicitor to respond to the proposed amended draft plan or to appeal to the Tribunal and this was a matter for her. As I have said I have not seen the amended Plan that the Council issued in July or the Council’s covering letter and this may have included details of where Ms B could seek advice or support. However, I am satisfied that, at least, this information is provided on the Council’s website and so Ms B could have approached that service. As this is the case it is my view that her decision to approach a solicitor was a choice and not a result of no other service or advice being made available and so there are no grounds for me to consider there was fault in relation to her complaint about this.
53. I consider the Council’s record keeping in relation to the SEN team was very poor. There appears to be very little evidence about what happened between September 2018 and September 2019 from the SEN service and I have relied on communications from the social care team to provide some evidence of what happened during that period. This amounts to fault.
54. I consider the Council’s handling of Ms B’s complaint was poor in the way that Ms B has suggested: it accepted that it had failed to make provision between February and September and apologised for this but took no action to recognise that or draw any wider conclusions to ensure it did not happen in future apart from to say that by the time of the complaint support was in place for X. The responses also took much longer that the Council’s complaints procedure allows for. These failings amount to fault that caused Ms B injustice in the form of avoidable frustration.

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Agreed action

55. In order to remedy the injustice caused to Ms B and X the Council will, within one month of the date of the final decision on this complaint:
• formally apologise to Ms B and X for the identified faults and the injustice these caused;
• make a payment of £3600 to recognise the impact of X having no educational provision between February and July 2019. I calculated this at a rate of £600 a month which is the highest monthly amount we usually recommend and reflects the complete absence of any provision during that period of time and the impact of this. The Council offered £3500 to cover the period from February to August. This equated to a rate of £500 a month. We do not ordinarily ask councils to make payments to recognise lost provision over periods that include school holidays so whilst the amount I am recommending is very similar to that proposed by the Council I have recommended a higher monthly rate to recognise the complete lack of provision from February to July but have not included the summer holiday period
• make an additional payment of £1500 to recognise the complete lack of provision made between November 2018 and February 2019 as it was clear the Council was aware of the non-provision during this period. This equates to around a term of lost provision as it approximately covers the period after the October half-term in 2018 to the half-term of the Spring term in 2019. Again I have calculated this on the basis of £600 a month for November, December and January but have deducted £300 form this total to take account of the two week Christmas holiday period;
• make a payment of £1000 each to Ms B and X to recognise the significant avoidable distress and anxiety caused over a prolonged period of time when no provision was made;
• make a payment of £200 to recognise the injustice caused by the delay in completing the amendments to X’s EHC Plan; and
• make a further payment of £200 to recognise the avoidable frustration caused by the poor handling of the complaint.
56. To remedy the wider issues this complaint has highlighted in terms of the Council’s service the Council will, within three months of the date of the final decision on this complaint:
• ensure it has a mechanism in place to track and chase up where is knows an annual review is overdue and it has not received any notification of the outcome from a school or where it is aware a review has taken place but has not received the written decision. The Council will provide us with evidence of this; and
• ensure that the SEN team keeps clearer and more comprehensive records and has a mechanism to track and take action where children are not receiving education to ensure that provision is put in place as promptly as possible. The Council will provide us with evidence of what it has put in place to achieve this.

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Final decision

57. There was fault by the Council and this caused injustice to Ms B and X. The Council will take the agreed action to recognise this.

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Parts of the complaint that I did not investigate

58. I cannot consider part d) of the complaint. This is because we cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended) and Mrs B appealed about the refusal to name School 2 to the First-tier Tribunal (Special Educational Needs and Disability).

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Investigator's decision on behalf of the Ombudsman