Summary: Ms X complains the Council failed to secure the education provision on her son H’s Education, Health and Care Plan, failed to amend the Plan, or complete any post-16 transition assessments. We find fault with the Council for failure to complete reviews or amend the Plan. We have agreed remedies for Ms X’s avoidable frustration, time and trouble and for H’s lost provision. We have also agreed service improvements.

The complaint

1. Ms X complained the Council failed to:
1. Keep satisfactory records;
2. Provide suitable education for her son H;
3. Carry out Annual Reviews;
4. Complete post-16 transition assessments or provide post-16 education for H;
5. Carry out the assessments in H’s 2018 Education, Health and Care Plan (EHCP);
6. Respond adequately to her complaints.
2. Ms X said H does not have any post-16 education in place and the Council has not provided the provision in his EHCP.
3. Ms X also complained the school did not use the funding in H’s EHCP.

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What I have and have not investigated

4. Ms X complained to us in October 2022 about matters from 2018. Matters between October 2021 and October 2022 are in time and I have investigated them. Matters before October 2021 are late (see paragraph seven), but I have started my investigation earlier from May 2021 as that is when the Annual Review should have taken place. Further, Miss X was waiting for the response to her Subject Access Request before she brought her complaint to the Council.
5. I have not investigated the funding between the school and Council (paragraph three) as that is out of our jurisdiction (see paragraph eight).

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The Ombudsman’s role and powers

6. 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)
7. 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)
8. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
9. 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)
10. 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

11. I have considered:
• The information provided by Ms X and in discussion with her;
• The Council’s comments on the complaint and the supporting information it provided; and
• Relevant law and guidance.
12. Ms 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

Education, Health and Care Plan

13. 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.
14. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.

Annual reviews

15. The procedure for reviewing and amending an EHCP is set out in legislation and government guidance. Councils must hold a review meeting once yearly and within four weeks of the meeting, must notify the child’s parent of its decision to maintain, amend or discontinue the EHCP. This is the annual review. Each annual review must take place within 12 months of the last.
16. Where a council proposes to amend an EHCP, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. The Special Educational Needs and Disability Code of Practice (the Code) states if a council decides to amend the plan, it should start the process of amendment “without delay”.
17. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHCP as soon as practicable and within eight weeks of the date it sent the EHCP and proposed amendments to the parents.
18. The High Court decided in March 2022 that if a council intends to amend a child’s EHCP, it must send the draft EHCP (amendment notice) along with the notification it intends to amend the existing plan. This must happen within four weeks of the annual review meeting. Overall, it should take no more than twelve weeks from the annual review meeting to issuing the amended EHCP.
19. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHCP. The right of appeal is only engaged when the final amended plan is issued.

Failure to secure provision

20. The council has a duty to secure the specified special educational provision in an EHCP 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)

Due diligence

21. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHCP.
22. The Ombudsman does consider that 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 or substantially different EHCP is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.

Key transfers

23. An EHCP must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education, to allow for planning for and, where necessary, commissioning of support and provision at the new institution.
24. For young people moving from secondary school to a post-16 institution or apprenticeship, the review and any amendments to the EHCP – including specifying the post-16 provision and naming the institution – must be completed by the 31 March in the calendar year of the transfer. 
25. The Code says an EHCP:

‘‘must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education, to allow for planning and, where necessary, commissioning of support and provision at the new institution.”

What happened

Background

26. Ms X’s son H started his most recent school in 2017, and he will need his post 16 alternatives to start from September 2023. He has been out of education since June 2022.
27. H is autistic and has had an EHCP since 2018. Ms X said she has had to fight with the Council to get any help for H, only securing the EHCP after going to Tribunal.
28. Y’s most recent EHCP is dated October 2018. The placement named is a special school for five to 16 year olds. The EHCP says school provision is time (32.5 hours per week) on a one-to-one basis with H on and off site, with the Council providing extra funding to the school for this.

Key events

29. Ms X says H had impromptu one-to-one sessions every week with a teaching assistant (TA) from 2021, which amounted to two or three one-hour sessions a week.
30. These were not at specific times every week as the sessions had to work around the TA’s school timetable.
31. These sessions stopped in June 2022. Since then H has had no education at all.
32. The 2018 EHCP also says H should have:
• Speech and Language Therapy assessment, with resulting recommendations carried out by the school and incorporated into the next EHCP at the next annual review;
• Assessments to check for dyslexia and dysgraphia; and
• The school’s Occupational Therapist will monitor H, offer individual therapy where needed, and will review H at least three times a year.
33. Ms X made a Subject Access Request for documentation from the Council in February 2022, following delays in H’s annual reviews (AR’s) and failure to carry out assessments named in his EHCP in 2018.
34. Following the response to her Subject Access Request, Ms X complained to the Council in October 2022. She complained the Council failed to provide the provision named in the 2018 EHCP, failed to carry out the AR’s, failed to provide the post-16 transition assessment, failed to provide post-16 education, and failed to respond to her complaints.
35. Ms X says she consistently brought up her concerns with H’s school and social worker, and at child safeguarding meetings, but tells me she was reassured the matter was in hand.
36. In the first complaint response to Ms X, the Council partially upheld her complaint and apologised for not completing the AR’s in the correct time frame.
37. The Council also said in its complaint response that:
• There was no AR in 2021.
• In April 2022, a SEND officer noted the AR had not taken place and sought an emergency review in April and May.
• In July, H’s school told the Council the Educational Psychologist (EP) had said there was no need for a further EP assessment, and any further assessment would be difficult to complete due to H’s low attendance at school.
• The SEND officer insisted a review needed to take place with reports from an Occupational Therapist (OT) and a Speech and Language Therapist (SaLT).
• The school sent the Council a date for the AR and the reports were scheduled for July but the Council had no further documentation on this.
• The school shared concerns with the Council that H found school too stressful and could not attend.
38. Ms X felt the response was inadequate as the Council only gave an apology for the missed AR’s, with no remedial action, so she made a stage two complaint.
39. The stage two complaint response from the Council upheld her complaint due to “significant omissions and delays”. It said:
• H’s EHCP was amended in July 2022 but the SEND officer needed further documents before completing the amendment process. There was no record of the document being sent to Ms X.
• Ms X insisted the OT and SaLT assessments should take place in July 2022. The school arranged these and sent the reports to Ms X.
• It had no discussions or consultations about H’s post 16 placements and apologised for not holding the AR’s on time.
• It offered to hold an AR as soon as possible, then issue an amended EHCP looking at post-16 education and to set up careers advice and support. It also offered to commission the OT and SALT provision for H in the family home.
40. Ms X brought her complaint to the Ombudsman as H still has no amended EHCP, and no post-16 provision in place.

Analysis

The Council failed to keep satisfactory records (complaint a)

41. My provisional view is the Council’s record keeping was inadequate. There should have been a system in place to tell staff in the SEND team, who were responsible for ensuring ARs took place, when they were due. Either the Council did not have a system in place or that system was ineffective because the lack of a 2021 AR was not picked up until April 2022.

The Council failed to provide suitable education for H (complaint b)

42. Although I have started my investigation from May 2021, I have referred to the 2018 EHCP for H as this is the most recent plan and so sets out the educational provision H ought to have been receiving.
43. The 2018 EHCP says H should have 32.5 hours of 1:1 education every week. Since 2021 he has only been getting two to three hours a week. Provisionally, this is fault by the Council as it is responsible for ensuring all provision in the EHCP is being provided (see paragraph 14). We do not expect councils to keep a watching brief on schools, but as I explain in the next section, the failure to ensure there was an AR meant the Council failed to check the school was delivering all the provision on the plan and if not, to consider what action to take to rectify it.

The Council failed to carry out Annual Reviews (complaint c)

44. The Council accepted it failed to carry out the AR in 2021 and apologised. This is fault as councils are required to ensure reviews take place each year (see paragraph 15).

The Council failed to complete post-16 transition assessments or provide post-16 education for H (complaint d)

45. The Council accepted in the complaint correspondence that it held no discussions or consultation about H’s post-16 education.
46. This is fault as this is a key transfer for H. His final EHCP naming his post-16 provision should have been in place by 31 March 2023 (see paragraphs 23 – 25).

The Council failed to carry out the assessments in H’s 2018 EHCP (complaint e)

47. On the evidence provided no assessments were carried out as set out in H’s EHCP until July 2022 (see paragraph 32).
48. This is fault by the Council as it is under a duty to secure provision on an EHCP (see paragraph 20).
49. Assessments were carried out in December 2022, but only after Ms X raised her complaint and the matter was with the Ombudsman.

Respond adequately to her complaints (complaint f)

50. The first complaint response from the Council to Ms X does not address all her concerns and fails to give any remedy.
51. In the final complaint response to Ms X the Council says it will issue the amended EHCP looking at post-16 education as soon as possible. This should have been completed by the end of March 2023 as this is a transfer year for H. This is fault as it is still outstanding.

Injustice

52. Ms X had to make a Subject Access Request to get documents she was entitled to receive under the EHCP review process and then she had to make a complaint to the Council about the lack of education provision for H. The fault I have identified caused her avoidable time and trouble, frustration and distress. There was also a loss of appeal rights which Ms X would have had if the Council had issued amended final EHCPs when it should have done.
53. H did not receive all the provision on his plan. Between May 2021 and June 2022 he received only two to three hours a week, when the plan said he should have been receiving 32.5 hours a week of support in and out of school. And, from June 2022, he has not been getting any education.

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Agreed action

54. When recommending a remedy, we seek to remedy the injustice caused as a result of identified fault. The Ombudsman’s guidance on remedies states:
• for injustice such as avoidable distress we usually recommend a symbolic payment to recognise the impact of the fault as we cannot put the complainant in the position which they would have been had the fault not occurred;
• distress can include anxiety, uncertainty, lost opportunity and frustration;
• where there has been a loss of education, the Ombudsman recommends between £900 to £2400 per term. The amount considers various factors including the child’s special educational needs and whether any partial provision was made.
55. Within one month of the final decision, the Council should:
• Write a personal apology to Ms X for the distress and frustration caused by the faults identified above (the Council should refer to the Ombudsman’s Remedies Guide to making an effective apology);
• Pay Ms X £250 for the distress, uncertainty and frustration caused by the faults identified above;
• Pay Ms X £100 for the time and trouble of bringing her complaint;
• Pay Ms X £15,400 for the loss of education (£2200 per term x 7 terms from May 2021 – July 2023). I have not used the maximum amount as H was provided with some education during this period;
• Complete and issue H’s final EHCP naming his post-16 provision / placement.
56. Within three months of the final decision the Council should:
• Review its procedures to ensure AR’s are held on time and the action required following the review meeting is taken according to guidance and timescales;
• Remind staff to ensure they consult schools and professionals in good time, issue the plan within the timescales and keep young people and parents informed.
57. The Council should provide us with evidence it has complied with the above actions.

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Final decision

58. I find fault with the Council for failing to hold Annual Reviews, delay and missed assessments. We have agreed remedies for Ms X’s distress and frustration, and for H’s lost education provision. We have also agreed actions for the Council to prevent recurrence.

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Investigator's decision on behalf of the Ombudsman