Summary: Mrs X complained about the way the Council assessed, issued and reviewed her daughter Z’s Education, Health and Care Plan, that it failed to ensure the specified provision was in place and refused her request for a personal budget. The Council failed to ensure the specified provision was in place. The Council agreed to pay Mrs X £2,150 to recognise the impact of the lost provision and the anxiety and distress this caused to Z, to be used for Z’s benefit, and Mrs X £700 to recognise the frustration, distress, time and trouble and financial cost caused to her.

The complaint

1. Mrs X complained the Council:
• failed to properly incorporate expert advice from an educational psychologist within her daughter, Z’s, Education, Health and Care (EHC) plan;
• failed to issue Z’s EHC plan within the statutory time frame and then ignored family views;
• failed to ensure the provision in Z’s EHC plan was secured and provided;
• refused a request to consider a personal budget as an alternative to the existing provision in the EHC plan;
• repeatedly changed the caseworker for her daughter, Z, leading to a lack of continuity, repeated conversations and requests;
• failed to communicate in a timely manner with her; and
• failed to deal with the complaint in a timely manner.
2. Mrs X said that as a result, Z missed out on the education she needed during her GCSE years and was caused unnecessary and avoidable anxiety. Mrs X says her own health was also affected, she had to leave her job and her university course to support Z.

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What I have and have not investigated

3. I have investigated Mrs X’s complaint about the provision Z received between April 2021 and March 2022, the change in caseworkers and about the way the Council communicated with Mrs X and considered her complaint.
4. I have not investigated Mrs X’s complaint about the personal budget. Mrs X’s requested a personal budget because she was dissatisfied with the provision and setting in Z’s EHC plan. Mrs X had a right of appeal to the SEND Tribunal if she was dissatisfied with the specified provision. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would have been unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended). Although Mrs X has not used her appeal rights, it was reasonable for her to do so, so we will not investigate this.
5. For the reason outlined in the above paragraph I have not investigated the educational provision Z received after the Council issued the amended final EHC plan in March 2022. The provision was directly linked to the named school. Mrs X had the right of appeal to the SEND tribunal about the named school. Although Mrs X has not used her appeal rights, it was reasonable for her to do so, so we will not investigate this.
6. I have not investigated events before the date the Council issued the first final EHC plan in April 2021, including the incorporation of expert advice and the timeframe within which it was issued. This is because we cannot direct changes to the content of the plan therefore, I cannot achieve anything by investigating these points.

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The Ombudsman’s role and powers

7. 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)
8. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. 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)
9. 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.
10. 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)
11. 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

12. We spoke to Ms X and considered her view of her complaint.
13. We made enquiries of the Council and considered the information it provided.
14. Mrs X 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

The Guidance

15. 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 educational provision (section F) or name a different school (Section I). Only the tribunal can do this.
16. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.
17. There is a right of appeal to the SEND Tribunal about the content of the final EHC plan. An appeal right is only engaged once a final EHC plan has been issued.
18. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
19. Councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to check the special educational provision is in place when a new EHC plan is issued and investigate concerns that provision is not in place at any time.
20. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance. 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. If it intends to amend the EHC plan, it must send the child’s parent the proposed amendments for their comments. It must then issue the amended EHC plan within eight weeks of the date it sent the parent the proposed amendments.

What happened

21. Mrs X’s daughter, Z, has autism and other conditions including anxiety. Z attended a secondary school and was in her GCSE years. Mrs X had requested an EHC plan for Z due to her special educational needs.
22. The Council issued Z’s final EHC plan on 29 April 2021. It sent Mrs X a copy on 19 May 2021 with details of her appeal rights to the SEND Tribunal.
23. Z’s plan named the school she was already attending and included requirements for provision of the following:
• opportunities for Z to meet and interact with her peer group through an interest such as performing arts; and
• access to a range of extra-curricular activities centred around her special interests of music, singing and drama.
24. Z’s plan said the above would be facilitated by the teachers and learning support assistants at Z’s school.
25. Z’s plan also included the following provision:
• access to a quiet area when she became emotionally overwhelmed;
• access to smaller group teaching sessions; and
• the provision of specialised teaching approaches as advised by the Occupational Therapist (OT), Educational Psychologist (EP) and Communication and Autism Team (CAT) teacher.
26. Mrs X was unhappy with Z’s final EHC plan and in May 2021 she asked the Council if she could request amendments. The Council responded and said she could request an early review of the plan with the school for any amendments.
27. At the end of May 2021, Mrs X sent the Council details of the amendments she wanted it to make to Z’s plan. Many of these amendments were to Section F which specified the special educational provision Z needed.
28. The Council spoke to Mrs X a month later and said it would consider her amendments. Mrs X raised concerns about Z’s low attendance at school and enquired about implementing a hybrid learning approach involving some provision outside the school.
29. In the middle of November 2021, Mrs X chased again for an update on the amendments she had requested. Two days later the Council told her it had allocated a new caseworker.
30. In January 2022, Z was assigned another new caseworker and Z’s annual review was held mid-January 2022. The school recommended the Council amended Z’s EHC plan. The school said it was unsuitable because Z needed small group teaching which was not available. In addition, it did not have a quiet space for her when she experienced sensory overload. The school said Z was struggling to attend school for a whole day. Mrs X stated her parental preference for a particular independent school and also wanted to consider a home tutoring package.
31. In January the caseworker identified three options to consider for Z:
• consulting with other alternative independent and mainstream provisions;
• a tutoring package and a personal budget; or
• enhancing the current school provision with additional tutoring.
32. Mrs X identified a tutor agency to support Z to catch up on lessons she had missed from low attendance. Mrs X stated the tuition was for maths and physics primarily. The school sent the Council details of the costs. The Council did not agree to progress this option but said the school could organise this if it wished.
33. In February 2022, Z was assigned a new caseworker. The caseworker sent Mrs X a copy of the draft amended plan. They told Mrs X they had included some of the comments she provided on the EHC plan in May 2021. They said they could not amend section F and Mrs X should liaise with the special educational needs co-ordinator at the school. Mrs X sent the Council her comments on the draft plan.
34. Mrs X requested a personal budget in March 2022 so she could secure academic tuition, drama and gymnastic provision for Z. She explained the gymnastic provision would meet Z’s therapeutic sensory needs and help to reduce her anxiety.
35. The Council issued Z’s final amended EHC plan on 25 March 2022. It named Z’s current school as her placement. It made some minor amendments to the SEN provision. It did not include the hybrid approach the previous caseworker considered. It sent a copy to Mrs X at the beginning of April 2022 with a letter telling her of her right of appeal to the SEND tribunal if she disagreed with the content of the plan.
36. The Council refused Mrs X personal budget request at the end of March 2022. It said drama and gymnastic opportunities were not specified provision in section F.
37. Mrs X complained to the Council about the issues in paragraph 1 of this decision statement in March 2022. Mrs X said Z was being seen by the Children’s and Adolescence Mental Health Service (CAMHS) who said her anxieties were being triggered by the school which was unsuitable.
38. In April 2022, the Council responded to Mrs X’s complaints. It said:
• Z’s school had stated during the EHC plan process it could meet her needs; and
• it had received no communications from CAMHS to say Z’s school was unsuitable. It requested Mrs X send this information.
39. Mrs X asked the Council to consider her complaint at stage two. She repeated her request for a personal budget for drama opportunities and gymnastic therapy as she said they were not accessible to Z at school.
40. In April 2022 the caseworker received an email from a specialist teacher in the communication and autism team (CAT). It said “I had not been asked to see [Z] for some time… so when I was asked to see her this year the change in her presentation was a shock…[she] presented as extremely anxious… she struggled to express herself… I do think [Z] would have benefitted from regular CAT input… the recommendations have not always been followed and if they had… the outcome may have been different”.
41. In May 2022 the Council responded to Mrs X’s complaint at stage two. It said:
• it had established communication between Mrs X and the case officer;
• it had contacted the CAT and EP services for advice to support Z and would support the school to implement any recommendations; and
• it would continue to work with Mrs X to find a way forward.
42. In May 2022 Mrs X complained to us. She raised the complaint outlined in paragraph 1. She stated she wanted Z to have an appropriate package of support and a personal budget.
43. In May 2022 Z’s caseworker left the Council.
44. In June 2022 the Council allocated Z a new caseworker.
45. In August 2022 the Council allocated Z a different new caseworker.
46. The Council told Mrs X it would provide a personal budget to cover maths and chemistry tuition, drama and gymnastics activities and an equine therapy course in August 2022. It said it would begin the process to amend Z’s EHC plan to include this provision.
47. In September 2022 the Council issued a notice to amend Z’s EHC plan. Mrs X stated the Council issued the amended final EHC plan in October 2022.
48. Mrs X told me she had to give up work and leave her university course as she often had to leave to collect Z from school early, or she would be unable to attend school at all due to anxiety. Mrs X paid for Z to access tuition, drama and gymnastic provision during 2021 and 2022 and funded a home tutor.

My findings

Final EHC plan

49. We cannot direct changes to the EHC plan sections about education, or name a different school. Only the tribunal can do this. Once a council has issued a final plan and given the right of appeal, we cannot look at matters that could have been appealed except in limited circumstances. This includes where we decide it was reasonable for the parent not to have appealed.
50. The Council issued the final EHC plan in May 2021 and told Mrs X of her right of appeal to the SEND tribunal about the content of the plan. But the Council also told Mrs X she could request amendments by requesting an early review. Mrs X did not use her right of appeal and instead sent her amendments to the Council as it had suggested, which the Council accepted. The Council said it would consider them. The Council did not take any action and did not start the early review process. This was fault.
51. The Council did not clearly explain to Mrs X the consequences of seeking an early review, rather than appealing to the Tribunal. That was fault causing confusion to Mrs X about what was the best route. This was compounded by the Council’s failure to then take action as it had promised, to consider suggested amendments. This led to drift and delay and uncertainty about whether changes would have been made to Z’s EHC plan had it considered the matter without fault.
52. In January 2022 the Council reviewed the EHC plan, issued a draft amended final plan for Mrs X’s comments and issued a final amended EHC plan in March 2022. This was completed within the timescales set out by the legislation. It told Mrs X of her right of appeal to the SEND tribunal if she disagreed with the content of the plan. There was no fault in the Council’s actions.
53. The Council has since reviewed Z’s EHC plan again and issued a final amended plan. Mrs X can now appeal to the SEND tribunal if she remains dissatisfied with the content of the plan.

Provision

54. When the Council issued the EHC plan in April 2021 it should have ensured the specified provision was in place, there is no evidence it did so and that was fault. Nine months after it was issued the school stated it could not provide small group teaching or a quiet space for Z. Both were specified provision set out in the final plan. In April 2022 the CAT specialist teacher stated the recommendations in the April 2021 EHC plan had not always been followed.
55. The Council’s failure to ensure the provision in Z’s EHC plan was in place between April 2021 and March 2022 meant Z did not receive the support she required to access all elements of her academic and personal education for 11 months. This caused Z anxiety, distress and had a negative impact on her education in her GCSE years. Mrs X employment was affected as she had to collect Z from school when she was too distressed to continue.
56. The impact on Z was lessened by the actions of Mrs X. Mrs X funded Z’s academic tutoring and drama provision that she otherwise would not have received.

Changes of caseworker, communication and complaint handling

57. The records show Z had at least six caseworkers between April 2021 and August 2022. There were also months where Z did not have a caseworker and the Council did not inform Mrs X. The regular changes and gaps in caseworkers was fault and caused drift and delay in Z’s case. There is no evidence of adequate handovers to ensure continuity. This caused Mrs X frustration as caseworkers provided conflicting advice, guidance and solutions which were not continued by the following caseworker.
58. The Council responded to Mrs X complaint at stage one within a week and at stage two within five weeks. There was no fault in the timeliness of the Council’s complaint response.

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Agreed action

59. In making my decision on appropriate remedies in this case I considered our guidance on remedies. I also took in to account the impact on Z as outlined by the CAT teacher in paragraph 40 and that she was in a GCSE year which is an important stage of her education.
60. Within one month the Council will:
• write to Z and apologise for the distress and anxiety caused to her and the lost opportunities caused by its failure to ensure the provision specified in her EHC plan was in place between April 2021 and March 2022;
• pay Mrs X £1,850 to recognise the injustice caused to Z by the Council failing to provide some of the specified provision between April 2021 and March 2022, and £300 to recognise the additional distress and anxiety caused to Z. Mrs X should use this for Z’s education and wellbeing as she sees fit; and
• write to Mrs X and apologise for the frustration, distress, drift, delay and time and trouble caused to her by the Council’s failure to act on her request for an early review of the EHC plan, to provide continuity of service and to clearly communicate with Mrs X. It will pay her £300 to recognise the same; and
• pay Mrs X a symbolic amount of £400 to recognise the drama provision and home tuition she arranged for Z between April 2021 and March 2022 to compensate for the failure to secure provision required by the EHC plan.
61. Within three months the Council will create an action plan to ensure where a change of caseworker is necessary that decisions, reasons and actions are accurately and thoroughly recorded and followed through by the following caseworker.
62. The Council will provide us with evidence it has completed all of the above recommendations.

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Final decision

63. I have completed my investigation. I found fault leading to injustice and the Council agreed to my recommendations to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman