Summary: We upheld a complaint about delay in amending an Education Health and Care Plan, poor communication and a failure to arrange alternative educational provision. The Council needs to apologise to Ms X and make her a payment for the avoidable frustration, distress and delay in providing her with SEND tribunal appeal rights. It will also make a payment to Y to reflect a loss of educational provision.

The complaint

1. Ms X complained the Council:
1. Took too long to amend her son Y’s Education, Health and Care (EHC) plan.
2. Did not update her on progress and communication was poor.
3. Did not put in place adequate alternative provision when his school placement ended, in particular did not put in place 15 hours weekly tuition as agreed in October 2022.
4. Delayed securing an alternative school placement.
2. She said this caused avoidable distress and a loss of special educational provision for Y.

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The Ombudsman’s role and powers

3. 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)
4. 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) Some of the events which led to Ms X complaining to us happened more than 12 months from her complaint to us and so are late. However, I have investigated them because they are an ongoing chain of events and there is evidence she was seeking to resolve Y’s schooling proactively with the Council’s SEND team.
5. 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)
6. 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

7. I considered the complaint to us, the Council’s response and documents referred to in this statement.
8. Ms X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

9. 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.
10. 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)
11. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance. EHC plans must be reviewed each year. A parent may ask for an early review. The school is generally responsible for holding and leading the review meeting. (SEND Code paragraph 9.175)
12. 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. (Regulation 20(10) Special Educational Needs and Disability Regulations 2014 and SEND Code paragraph 9.176)
13. Where a council proposes to amend an EHC plan, 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 within four weeks of the annual review meeting. (Regulation 22(2) Special Educational Needs and Disability Regulations 2014 and SEND Code paragraph 9.194)
14. 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 EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Regulation 22(3) SEND Regulations 2014 and SEND Code paragraph 9.196)
15. 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 EHC plan. The right of appeal is only engaged when the final amended plan is issued.
16. Parents have a right to mediation after a council has made, amended or replaced an EHC plan. (Children and Families Act 2014, section 52)

What happened

17. Y is autistic and has ADHD (attention deficit hyperactivity disorder). Y and his family moved to Surrey from a neighbouring borough during the school summer holiday of 2021. The previous authority maintained an EHC plan for Y. This named School A, an independent special school for students with social emotional and mental health issues.
18. A SEND case officer from the Council liaised with Ms X about Y’s EHC plan at the start of September. Ms X emailed saying it had taken a long time to get Y’s placement sorted and she wanted him to attend School A.
19. Ms X emailed the SEND team in the middle of September saying she needed to discuss the transfer of Y’s EHC plan to Surrey. The SEND team confirmed they had received the case file from the other council and confirmation of the move date. The SEND team allocated a case officer and emailed Ms X to say the Council’s funding panel needed to formally accept Y’s EHC plan. The SEND team gave Ms X the case officer’s contact details.
20. In the last week of September, a case officer emailed Ms X to say the funding panel was going to hear Y’s case on 6 October and they would let her know the decision. (Y’s case was being dealt with by the duty officer as his allocated case officer was absent from work.)
21. In the first week of October, the funding panel decided to adopt the other council’s EHC current plan.
22. In the second week of November, Ms S spoke to a SEND senior case manager saying Y was unhappy at school and his behaviour was declining. The case manager emailed her after saying they may need to hold an emergency annual review.
23. On 22 November, the Council issued a draft EHC plan for Y. This is identical in content to the other council’s final plan.
24. The case officer and Ms X spoke on 20 December. The case officer emailed Ms X after to say the school needed to arrange an emergency annual review. The case officer summarised their discussion: Y did not feel safe at school, his mental health was poor and there were attacks on site daily and Ms X feared for his safety. Ms X said she felt School A could not meet his needs and he needed a school specialising in students with autism. The case officer said they could go ahead with an annual review and get an idea of Y’s progress and School A’s view on whether it could meet his needs. The case officer emailed a further copy of the draft EHC plan and letter as she was not sure Ms X had received the first copy (see last paragraph).
25. At the end of January 2022, the case officer asked the school for an emergency annual review. This took place on 3 February. The record said changes were needed to the description of Y’s SEN and to the placement as his primary need was autism. School A said the provision and placement were not appropriate. School A emailed the report of the annual review meeting to the case officer the next day.
26. The following day, 4 February, the Council issued Y’s final EHC plan. This was the same as the previous council’s plan, just in Surrey’s template. It named School A.
27. At the start of March, Ms X and the case officer spoke. The case officer noted Ms X said Y’s behaviour was escalating. The case officer began consulting with special schools and put Y’s case to the funding panel for a change to the type of placement.
28. Also at the start of March, the case officer emailed Ms X with a summary of progress. She said:
• She had consulted with three schools
• The panel would consider the request for a change to the type of placement
• In response to the annual review, she would revert the plan back to a draft plan (aiming for 7 March) and then Ms X could name her parental preference.
29. On 4 April, Ms X emailed the case officer asking for an update on school consultations. Ms X had requested mediation. The case officer said the Council would consult with the parental preference. Ms X said she hadn’t had anything through following the annual review meeting.
30. The Council refused mediation and said the case needed to go to tribunal about naming a placement.
31. On 13 April, Ms X chased the case officer for an update. She replied saying Ms X’s preferred school had declined a place.
32. At the end of April, the case officer organised a co-production meeting for May.
33. The case officer sent a draft, co-produced EHC plan on 10 May. She also said another school had declined a place for Y.
34. Ms X contacted a councillor. An internal email chain between the councillor and a senior manager said Ms X was unhappy her preference had been refused and thought it was because the school had received an out-of-date plan which didn’t describe his needs accurately.
35. On 3 May, School A wrote to the Council saying it supported Ms X’s request for a change of placement. It said the current plan didn’t reflect his needs, he had no violent outbursts contrary to what was said on the plan and he was choosing to isolate himself from peers, as he did not feel safe and he was being teased. His primary needs were around autism.
36. On 18 May, the panel agreed a change of placement to a school for pupils with speech, language and communication needs and autism. Two schools declined to offer Y a place.
37. On 20 May, the case officer told Ms X the case was with her seniors for discussion. On 15 June, the case officer told Ms X one school had declined and she was awaiting one further consultation response.
38. On 28 June, the Council issued a final amended EHC plan for Y. Section I said he needed a specialist school for students with communication and interaction needs. It did not name a school as there wasn’t one identified.
39. The case officer and her colleagues sent consultation letters out to around 20 schools. All but one declined to offer a place. School B (a specialist school for students with autism) offered a place on 18 July.
40. Ms X raised concerns about a lack of contact and said School A intended to remove Y from the roll. At the end of July, School A later confirmed Y’s removal with the case officer.
41. Ms X complained to the Council in September 2022 raising the same issues as she has raised in her complaint to us. The Council responded at the end of October saying:
• It has consulted with many schools and would ask the placements team to chase these up
• The funding panel agreed to fund 15 additional hours of tuition and to continue with the two hours already in place.
42. In the middle of September, Ms X emailed the Council saying Y had been out of school since September. The case officer said she had contacted tuition providers.
43. In the last week of September, the Council consulted with another school which was a parental preference. The Council chased the school for a response and said it intended to name that school if it didn’t hear back.
44. The funding panel agreed 17 hours of tuition on 6 October.
45. The Council issued Y’s second amended final EHC plan on 15 December 2022. This named School B.
46. Ms X escalated her complaint with the Council to the second stage.
47. In February 2023, the Council responded to the complaint at the second stage of its complaint procedure. I have summarised the response below:
• The Council accepted communication with her was poor.
• She had received a final EHC plan naming the type of provision. This gave her a right of appeal.
• The Council agreed on 24 October, to provide 17 hours of tuition until it found a suitable placement. One company continued to provide two hours and a different provider would deliver 15 hours.
• There was a delay finding an education setting. But every effort was made to find a placement and many could not meet Y’s needs
• It offered a payment of £100 to reflect her time and trouble and £250 for missed education from the start of September 2022.
48. Ms X told us Y only ever got two hours a week of tuition from about October 2022 and not the additional 15 hours that were agreed. She said Y had started at School B in January 2023.

Was there fault and if so did this cause injustice?

Complaint a: The Council took too long to amend Y’s Education, Health and Care plan

49. Ms X contacted the SEND team in November 2021 raising concerns about School A. A SEND manager said there may need to be an emergency annual review. Ms X and the case officer discussed this further in December. School A did not arrange a review meeting until the case officer prompted it to at the end of January 2022. Schools are responsible for arranging annual review meetings, but we would expect councils to liaise proactively where they are aware, as here, that an ad-hoc review may be warranted because of concerns from the school and/or parents. The Council was not proactive enough in contacting School A between November 2021 and the end of January 2022 and let the matter drift. If it had been proactive, the review meeting could have taken place sooner. This caused Ms X avoidable frustration.
50. The annual review meeting took place at the start of February. Following receipt of the annual review report (which the Council received the day after the meeting), the Council should have completed the process of issuing a draft plan and finalising it with amendments within 12 weeks. So a final amended plan should have been issued at the start of May. The Council did not issue a final amended plan until 28 June. This was a delay of eight weeks, which is not in line with the timescales set out in the SEND Code and was fault. It delayed Ms X’s right of appeal and caused avoidable uncertainty and frustration.

Complaint b: The Council did not update Ms X on progress and communication was poor

51. The Council accepted in its second stage complaint response that communication with Ms X was poor and this was fault. The records indicate the Council was not pro-active and Ms X had to chase the case officer for updates, which were provided. Communication improved from May 2022 after the involvement of a council Member.
52. In addition, the Council wrongly refused mediation in April. Section 52 of the Children and Families Act 2014 gave Ms X a legal right to mediation. Staff in the SEND team were wrong to refuse it. The refusal denied Ms X an opportunity to resolve the disputed issues around the placement sooner.

Complaint c: The Council did not put in place adequate alternative provision when his school placement ended, in particular did not put in place 15 hours weekly tuition agreed in October 2022

53. School A removed Y from its roll in July 2022. Y did not have a placement for September 2022. The Council knew this because it had issued a final plan at the end of June which did not name a specific placement.
54. The Council was at fault for not securing the equivalent of full-time education provision for Y for the start of the school year in September 2022. The records indicate he only received two hours a week of tuition between September/October 2022 and the end of January 2023.
55. The Council was responsible for securing the provision on Y’s EHC plan. The failure to do so was not in line with Section 42 of the Children and Families Act 2014 and was fault.

The Council delayed securing an alternative school placement.

56. The records show the Council received an offer of a placement at School B in July 2022. It is unclear why it could not have hastened the process of approving funding and amending the EHC plan which only named the type of placement to instead name School B, so Y could start in September 2022. Instead, Y did not start at School B until January 2023. This caused Ms X avoidable distress and frustration and meant Y lost out on an opportunity to settle in at the start of the school year.

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Agreed action

57. The Council will, within one month:
• Apologise to Ms X for the avoidable distress, frustration and delay in appeal rights identified in the last section. Make her a payment of £250 to reflect this.
• Make Y a payment of £2200 to reflect the loss of a term’s education. This is on the higher end of our recommended payments for lost provision in SEN cases. It reflects that Y received two hours a week of tuition when the Council had agreed to provide an additional fifteen hours.
• Remind staff in the SEND team that the parental right to mediation cannot be refused under section 52 of the Children and Families Act 2014
58. The Council should provide us with evidence it has complied with the above actions. The Council has already issued the reminder to staff about mediation.

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Final decision

59. We uphold a complaint about delay in amending an Education Health and Care Plan, poor communication and a failure to arrange alternative education provision. The Council will apologise to Ms X and make her a payment for the avoidable frustration, distress and delay in securing appeal rights. It will make Y a payment to reflect loss of education provision.
60. I completed the investigation.

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Investigator's decision on behalf of the Ombudsman