Summary: The complainant alleged that the Council failed to provide appropriate education and support to her son who has special educational needs and it failed to amend his Education, Health and Care Plan in a timely manner. We find some fault by the Council causing injustice. The Council has agreed the recommended ways to remedy this. We are therefore closing the complaint.

The complaint

1. The complainant, who I refer to as Mrs X, complained that the Council:
1. failed to provide appropriate education and support to her son, B, under his Education, Health and Care (EHC) Plan of November 2018;
2. delayed in carrying out an annual review which was due to be held in November 2019. Instead, this annual review was held in June 2020; and
3. there were delays in issuing an amended draft and final Plan after the June 2020 annual review. Mrs X says that a final EHC Plan is still outstanding.
2. Mrs X says that the injustice caused by the Council’s alleged faults is that B has not received appropriate education and there has been no input from social care despite B having significant behavioural difficulties, at home and at school.
3. In April 2021, the parents had to make the difficult decision to place B into the care of the Council under section 20 of the Children Act 1989 in order to protect their other two children. Mrs X had also reached breaking point.

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What I have investigated

4. I have not investigated Mrs X’s complaint about the lack of social care support for reasons set out in the last paragraph of this statement.

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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. This complaint involves events that occurred before and during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance in response to Covid-19. We can consider whether the Council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
7. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate:
• we cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
• we cannot investigate complaints where complainants have a right of appeal to the Special Educational Needs and Disability (SEND) Tribunal unless we consider that it was not reasonable for the complainant to have pursued this option; and
• we cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
8. Before considering a complaint, the Ombudsman should be satisfied the Council has had an opportunity to investigate and respond to a complaint. (Local Government Act 1974, section 26(5))
9. 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

10. I made enquiries of the Council and provided Mrs X with a copy of the Council’s response. I have spoken to Mrs X on the telephone, and she has provided some copy documents.
11. In April 2019, the Council considered Mrs X’s complaints about the lack of appropriate education and also, in 2020, it considered Mrs X’s complaints about delays in the annual review process. Mrs X considers that the Council has failed to consider properly that B has missed out on education and valuable support.
12. I exercised the Ombudsman’s discretion to investigate events from November 2018 when B’s first EHC Plan was issued, even though Mrs X did not complain to the Ombudsman within the required 12 months of when she first realised something had gone wrong. I have done so because of Mrs X’s particular personal circumstances.
13. Mrs X had a right of appeal to the SEND Tribunal in November 2018 when she received B’s final EHC Plan. She did not appeal, and I have had to consider whether Mrs X had good reasons not to pursue this option. I decided she did because the Council told her it would be looking for a special school for B. So, Mrs X did not consider it was necessary to appeal.
14. I issued a draft decision statement to Mrs X and to the Council and have taken into account their further comments when reaching my final decision.
15. 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 our final decision with Ofsted.

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What I found

Legal considerations

16. The Children and Families Act 2014 changed the way councils should assess the special educational needs and disability of children and young people up to the age of 25.
17. Once an assessment determines that special educational needs provision is required for a child, the council must issue an Education, Health and Care Plan (EHC Plan). The council has a duty to ensure it is in place and is maintained.
18. Councils should issue an EHC Plan within 20 weeks of the request for a statutory needs assessment unless certain exemptions apply.
19. EHC Plans have different sections: section F sets out the special education needs of the child, section H sets out the social care provision to be provided and section I names the appropriate school placement or type of school required.
20. Parents can appeal to the SEND Tribunal within two months if dissatisfied with the final EHC Plan. We cannot direct changes to the sections about education or name a different school. Only the SEND Tribunal can do this. A SEND Tribunal can also make recommendations about health and social care provision.

Annual reviews

21. Councils oversee delivery of EHC Plans through annual reviews, whether by attending meetings themselves, or by reviewing the school’s records of meetings. The Special Educational Needs and Disability Code of Practice January 2015 (the Code) says reviews must be undertaken in partnership with the child and their parent.
22. EHC Plans must be reviewed, as a minimum, every 12 months. The review must consider whether the stated outcomes and supporting targets in the Plan remain appropriate. The first review must be held within 12 months of the date when the EHC Plan was issued and then within 12 months of any previous review.
23. At least two weeks’ notice must be given of the meeting. The person arranging the meeting must obtain advice and information and circulate this two weeks before the meeting.
24. After the review, the council has four weeks to send the child’s parents its decision about whether the EHC Plan is to continue; whether it needs changing or if it is to end. It should issue an amendment notice setting out the proposed changes. If the council decides to amend the EHC Plan it must do that “without delay”.
25. The parents or young person must be given 15 calendar days to comment on the proposed changes. Once a draft Plan has been issued, parents/carers are entitled to request a particular educational placement. Councils should name the placement requested unless they believe that the placement would not meet the needs of the child, would be incompatible with the efficient education of others and incompatible with the efficient use of resources.
26. Section 9.83 of the Code states that, once a school placement is named in the final Plan, the pupil must be admitted to that school.

Pupils out of school

27. Section 19 of the Education Act 1996 says “councils must make arrangements for the provision of suitable education at a 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 arrangements are made for them”.
28. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
29. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)

The Council’s procedures

30. The Council says that it follows the government guidance when dealing with pupils out of school. The Council also has a referral policy for accessing alternative education.

The Coronavirus Act 2020

31. In May 2020 some aspects of the law on education, health and care (EHC) needs assessments and plans 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 COVID-19.
32. The changes meant the absolute duty of councils to secure or arrange provision set out in section F of an EHC Plan was modified to a duty to use ‘reasonable endeavours’ to do so. These changes were applicable until 31 July 2020.

The Children Act 1989

33. Section 17 of the Children Act 1989 says councils shall safeguard and promote the welfare of children within their area who are in need. A child is in need if:
• he is unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support; or
• his health or development is likely to be significantly impaired unless the council provides support; or
• he is disabled.
34. Where a council considers a child is in need it should arrange for a social worker to carry out an assessment. If the council decides the child is in need, it should develop a child in need plan setting out the support the child needs. It will monitor the delivery of that support and keep the plan under review through regular child in need meetings.
35. Section 20 of the Children Act 1989 allows parents to place a child in the care of the council on a voluntary basis. Parents retain parental responsibility and can ask for the child’s return at any point.

Background events

36. During B’s primary school education, he spent three years being educated at home because Mrs X says the school was unable to cope with his behaviours. In 2017, he started at a mainstream secondary school, School Y, aged eleven. However, very soon afterwards, B was on a parttime timetable because of his behavioural difficulties. School Y referred B to the Council’s alternative education provider, Agency G.
37. In May 2018, B was placed in alternative provision at Agency G, but remained on the school roll of School Y. Mrs X says that this alternative provision was inadequate. B was attending school for one hour, four days per week. Mrs X used to take B to Agency G and would wait to bring him home. Mrs X says that the Council was unwilling to pay her petrol costs. The rest of the time, Mrs X says that B was at home with her.
38. In the Council’s consideration of Mrs X’s complaint in April 2019, it accepted that the education provision at Agency G was not sufficient.
39. The statutory assessment of B’s special educational needs (SEN) started on 5 July 2018. B’s final EHC Plan was issued on 15 November 2018, within the 20 weeks statutory timeframe.

Events of this complaint: 2018/2019

40. B’s EHC Plan noted that he has complex difficulties with average cognitive ability. The Community Paediatrician recommended further assessment because he considered B might have a developmental disorder and B required an assessment for a possible autistic spectrum disorder (ASD).
41. B also suffers from mild deafness but is often reluctant to wear his hearing aids. It is felt that this affects his ability to learn.
42. B’s behavioural difficulties mean he can be aggressive and violent, mainly at home, with his two siblings. One sibling has a medical condition which could be life-threatening, if injured. In the EHC Plan, B is described as impulsive and a danger to himself and to others. The pressures on Mrs X and the family were noted.
43. Mrs X says that Children Services told her that the family did not meet the criteria for social care support. She says that there was no social care assessment, as there should have been, for B’s EHC Plan.
44. B’s November 2018 final EHC Plan named School Y as a suitable placement for him with support from Agency G. However, it seems that it was agreed that this was not a suitable placement, and the Council agreed to look for a special school.
45. Mrs X says that the Council found an independent special school placement, School Z, in December 2018. In early January 2019, School Z offered B a place. Mrs X says that the Council wanted to see if there was a maintained school available first. There was not and, in late March 2019, the Council placed B at School Z.
46. The Council’s April 2019 complaint investigation concluded that it should have accepted the place at School Z within three weeks of the offer.
47. School Z is a small school for pupils with a range of severe or complex needs arising from trauma, ASD, attachment disorder or phobia of education. It takes pupils between the ages of eight to sixteen.
48. On 18 June 2019, the Council says that there was an annual review held at School Z. Mrs X disputes that the meeting was an annual review. She says that School Z did not send information two weeks before the meeting. She also says that she was not told the meeting was an annual review. She says that she was asked to agree to the placement at School Z so that B’s EHC Plan could be amended, which she did.
49. The Council has provided a copy of the EHC Plan annual review decision sheet dated 2 July 2019. It is recorded that B had achieved none of the required outcomes. It is also recorded that Mrs X attended the meeting on 18 June 2019.
50. The annual review decision was to maintain B’s EHC Plan without any amendments. The Council says that it wrote to the parents on 26 November 2019 explaining that it intended to maintain B’s EHC Plan with no amendments.
51. Mrs X says that she never received this letter. Had she done so, she would have been alerted to the fact that there was an annual review in June 2019, and she would have enquired about this. Moreover, she says that B’s EHC Plan was not amended to name School Z.
52. According to School Z’s records, and Mrs X’s account, B enjoyed attending School Z. He had one to one support.
53. In October 2019, School Z made a referral to Children Services for an early help assessment. This was because B’s behaviour at home continued to be difficult and at times aggressive. Mrs X says that this request for assessment/support was again turned down.
54. Mrs X says that she started to ask for B to be placed at the residential unit, attached to School Z. This unit had pupils who attended School Z and she considered that B would have been willing to live there, and it could have provided therapeutic care. Some staff worked at School Z and at the residential unit, so there would have been some consistency of care for B, and it would have offered the family respite.

Events of 2020

55. B continued successfully to attend School Z. But problems at home continued. In March 2020, a social worker was allocated. The social worker noted B’s aggression at home, smashing up his room and, on many occasions, the parents had to call the Police. The social worker visited B regularly to try to build up a relationship with him.
56. In May 2020, Mrs X again requested that B be placed in the residential unit, attached to School Z, coming home at weekends and holidays. She explained that she could no longer manage B and the risks he posed to his siblings. Mrs X says that B was also self-harming and she had to keep a constant eye on him, even at night-time.
57. Prior to Covid 19 lockdown, B attended School Z four days per week. At the start of lockdown (23 April 2020), this was reduced to three days per week. The Council says that School Z could only provide full time places to children of key workers or those on child protection plans. However, the Council says that it intervened, and School Z agreed to take B for four days.
58. In June 2020 there was an annual review. Mrs X says that there were delays in providing the necessary paperwork.
59. At the annual review, the social worker said that B was due for an assessment by the Child and Adolescent Mental Health Services (CAMHS) to see if they could provide some additional help. The social worker said that Children Services were looking at providing funding for help during the holidays and that B was considered a ‘section 17 child’ (a child in need).
60. Mrs X asked for a 50 week residential placement at School Z’s unit or a 38 week placement with respite at weekends and holidays. School Z supported this request.
61. The Council agreed to maintain B’s EHC Plan. The Council says that it issued a first amended draft EHC Plan on 2 July and a second draft in August. Mrs X requested certain amendments to the EHC Plan which she believed the Council had agreed to make. In particular, she considered that section F did not specify B’s need for social interaction both in and outside school and the need for physiotherapy to help his hypermobility (which causes pain in his legs and hands).
62. In September, CAMHS concluded that B’s difficulties were because of his ASD and it could not offer any additional help. The social worker said that Mrs X’s request for a residential placement would be referred to the appropriate Funding Panel.
63. Mrs X says that B’s case was considered by the Funding Panel on three occasions. But each time, the Panel refused placement at the residential unit. Mrs X says that there appeared to be disputes between education and Children Services about funding.

Events of 2021

64. On 7 January 2021, the Council issued a further draft EHC Plan and issued a final EHC Plan on 25 January 2021. Mrs X says that she had not appreciated that this was a final EHC Plan because the case officers had said that they were working on her required amendments.
65. The EHC Plan named School Z as the appropriate placement. Under section H.1 and H.2 of the EHC Plan, regarding social care provision, it is stated “no social care provision is currently required to meet B’s physical/sensory difficulties’.
66. In March 2021, the Council told Mrs X that it was still considering her requests for amendments. Because of this, Mrs X thought the EHC Plan, which she had received, was not the final one. Mrs X says that she has been waiting since April 2021 for the Council to amend the EHC Plan.
67. In April 2021, Mrs X says that she and the family had reached breaking point and she did not consider she could keep B or his siblings safe. The parents agreed to B being placed in the care of the Council under section 20. The Council did not place B at the residential unit attached to School Z. Instead, the Council placed B in a children’s home in a neighbouring area. He continues to attend School Z.
68. Responsibility for B’s EHC Plan has been passed to the neighbouring council. Mrs X says that the Council has told her that it would be for the new council to amend the final EHC Plan.
69. The Council says that the new council arranged an annual review in July 2021, but Mrs X says that she was unaware of this.

Analysis

Complaint (a) failed to provide appropriate education and support to her son, B, under his Education, Health and Care (EHC) Plan of November 2018;

70. Between November 2018 (the date I have investigated from) to B’s placement in late March 2019 at School Z, B was receiving very little education. I recognise that the intention was that this would be a temporary situation because the Council was looking for an alternative suitable placement for B.
71. I have not seen evidence from the Council that it assessed whether B was receiving sufficient education during this period. When providing alternative education to a pupil who cannot attend school, it is the Council’s responsibility to ensure that this is suitable and appropriate and should be full-time, unless not in the child’s best interests.
72. The Council has accepted that B was receiving insufficient education during this period. But, the Council knew that B was receiving very little alternative education at Agency G and I cannot see that it stepped in to assess the appropriateness of what was being provided. This has meant that B lost out on education and provision to meet his special educational needs during this period. That is fault.
73. Since March 2019, I am satisfied that the Council was and is providing a suitable education, including during the Covid 19 lockdown period when it had to make reasonable endeavours to meet B’s needs as set out in his EHC Plan.
74. I am not making any findings on the lack of Children Services’ assessment or support since November 2018 for the reasons set out in the last paragraph of this statement.

Complaint (b)- the Council delayed in carrying out an annual review which was due to be held in November 2019. Instead, this annual review was held in June 2020.

75. School Z was responsible for arranging the annual review of 2019. The Ombudsman cannot investigate the school’s actions as they are outside his jurisdiction. However, the Council had a responsibility to ensure School Z carried out the review in accordance with the statutory requirements.
76. The Council, in its 2020 complaint response to Mrs X, initially agreed that there had been a delay in arranging the annual review. But in its comments to the Ombudsman, it has corrected this and shown evidence that an annual review took place in June 2019, earlier than required. I recognise that Mrs X did not know that this was an annual review, but it was for School Z to tell her this.
77. However, the Council was at fault for failing to tell Mrs X within four weeks of the June 2019 annual review whether it intended to amend the EHC Plan. The Council says that it wrote to Mrs X in November 2019 explaining that it intended to maintain the EHC Plan. But this was some three months overdue, and Mrs X says that she did not receive this letter (although I cannot reach a finding on this).
78. The Council also did not amend B’s EHC Plan to name School Z in section I of his EHC Plan as it should have done.

Complaint (c)-there were delays in issuing an amended draft and final Plan after the June 2020 annual review. Mrs X says that a final EHC Plan is still outstanding.

79. The Council did issue a final amended EHC Plan on 25 January 2021. But the Council should have done this within eight weeks of issuing the amended draft EHC Plan on 2 July 2020, ie by 2 September 2020. The Council was at fault here.
80. Mrs X had the right of appeal to the SEND Tribunal when she received the January 2021 final EHC Plan. She has confirmed that the Council told her of this appeal right in the covering letter.
81. However, in March 2021, the Council invited Mrs X to provide details of the amendments which she thought appropriate. That is why Mrs X considered the Council was willing to amend the EHC Plan and therefore the document, which she received in January 2021, was not the final EHC Plan.
82. Mrs X’s main concern is that B’s EHC Plan is not specific enough in section F and therefore he is not receiving all the support he requires.
83. After the issue of the final amended EHC Plan on 25 January 2021, the Council should not have told Mrs X that it would consider her requested amendments. It should have reminded Mrs X of her right of appeal to the SEND Tribunal, which could have dealt with her concerns about the lack of specificity in B’s EHC Plan. Mrs X would still have been in time to submit an appeal.
84. However, Mrs X is now too late to appeal the January 2021 final EHC Plan.

How to remedy the injustice caused by the identified faults

85. The main injustice caused by the faults identified is that B did not have appropriate alternative education provision between November 2018 to March 2019, and there have been delays in amending B’s EHC Plan after the annual review of June 2020, which has caused avoidable frustration and distress.
86. The Council also invited Mrs X to provide information about her requested amendments, after the issue of the amended final EHC Plan in January 2021, rather than reminding her of her right of appeal to the SEND Tribunal. This has caused some confusion and raised expectations.
87. The Ombudsman’s Guidance on Remedies makes the following points:

• for injustice such as distress, harm or risk, the complainant cannot usually be put back in the position they would have been, but for the fault. Therefore, we usually recommend a symbolic payment to acknowledge the impact of the fault; and
• distress can include uncertainty about how the outcome might have been different.

88. Where there has been a loss of educational provision, the Ombudsman normally recommends between £200 to £600 per month.

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Agreed actions

89. Within six weeks of the final statement, the Council will apologise to Mrs X for the faults identified and pay:

• £2,000 to be used for B’s educational benefit for the loss of appropriate education during November 2018 to March 2019. It will be for Mrs X and School Z to decide how best to use this payment;
• £500 to Mrs X for the adverse impact this insufficient education had on her and her family;
• £250 to Mrs X for the avoidable frustration caused by the delays in the 2020 annual review;
• Mrs X remains concerned that B’s EHC Plan is not specific enough to ensure that he receives the support/therapy which he requires. The Council will liaise with the new council to try to ensure it abides by the annual review requirements;
• the Council will ensure its procedures for providing alternative education properly highlights the need for it to provide fulltime education unless the pupil’s needs are such that this is not in their interest. The Council will be reviewing all pupils currently accessing alternative provision to ensure this is the case unless it is not in the pupil’s interest to receive full time education; and
• the Council is commissioning new alternative education provision to meet demand.

90. The Council has told the Ombudsman that it has reviewed its system and processes around annual reviews, ensuring more joint working between education, health and social care, it has provided training to staff and increased staff capacity and management oversight and also arrangements have been made to ensure the quality of social care advice is of the required standard.

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Final decision

91. There is fault causing an injustice to B and to Mrs X and her family. The Council has agreed all the recommended actions to remedy their injustice, and is ensuring procedural improvements. I have therefore completed my investigation and am closing the complaint.

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Parts of the complaint that I did not investigate

92. I have not investigated the actions of Children Services because the Council had not had an opportunity to investigate this complaint.
93. However, the Council has recently agreed to investigate Mrs X’s concerns about Children Services. I suggest that this investigation should include looking at the lack of assessment and support since November 2018 and consider how Mrs X’s requests for a placement at the residential unit, attached to School Z, was dealt with.
94. If Mrs X is dissatisfied with the final outcome of the Council’s investigation, she can submit a complaint to the Ombudsman.

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Investigator's decision on behalf of the Ombudsman