The Investigation

The complaint

1. Ms X complained about how the Council handled the education of her foster child, Y, who she looked after under a kinship care arrangement. Specifically, Ms X complained the Council:

• did not complete a review of Y’s Education, Health and Care (EHC) Plan in line with guidance and delayed issuing an amended EHC Plan;

• has not provided an appropriate education or the special educational provision in section F of Y’s Plan since February 2022;

• failed to promote Y’s educational achievement as a looked after child;

• failed to communicate with her properly or support her as a kinship carer; and

• failed to provide the play therapy and life story work that Y needed.

2. Ms X said Y missed the special education provision in their Plan and was isolated from all other children, which affected their education and wellbeing. Ms X said it caused her frustration and distress and put Y’s placement with her at risk. Ms X wanted the Council to acknowledge the impact of its faults on Y.

Legal and Administrative Background

The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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)

5. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (Local Government Act 1974, section 26(6)(a), as amended)

6. 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.

7. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.

8. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, sections 24A(1)(A) and 25(7), as amended).

9. Worcestershire Children First is the company responsible for delivering children’s services across Worcestershire since 2019. It is a not-for-profit company owned by the Council. When a council commissions or arranges for another organisation to provide its services (in this case children’s services and education), we treat actions taken by or on behalf of that organisation as actions taken on behalf of the council and in the exercise of the council’s functions. We therefore consider the actions of Worcestershire Children First are the actions of the Council. From 1 October 2024, Worcestershire County Council has taken back control of early help, children’s social care and education services from Worcestershire Children First.

10. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.

11. Under our information sharing agreement, we will share this report with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

How we considered this complaint

12. We produced this report after examining relevant files and documents and interviewing the complainant.

13. We gave the complainant and the Council a confidential draft of this report and invited their comments. The comments received were taken into account before the report was completed.

What we found

Legislation and guidance 

Foster care

14. Family Courts can make Care Orders which place children in the care of a council

where there are concerns about the adequacy of the parents’ care, which are causing significant harm to the child.

15. A kinship foster carer is a family member or friend that becomes a child’s official foster carer after being assessed and approved by a council.

16. Where a child has been placed in foster care, the council becomes the corporate parent. The council has a collective responsibility for all its services and partners to provide the best possible care and safeguarding for the children it looks after. The council is responsible for making decisions in the child’s best interest, and this is usually done mainly by the child’s social worker.

17. Children in care have an Independent Reviewing Officer (IRO) who is responsible for ensuring councils adhere to a child’s care plan. The IRO chairs the child’s statutory review meeting, which normally takes place every six months. These are multi-agency meetings where important decisions are made about the care of the child.

Education of a looked after child

18. The statutory guidance ‘Promoting the Education of Looked After Children and Previously Looked After Children’, states councils have a duty to safeguard and promote the welfare of a child it looks after with a particular duty to promote the child’s educational achievement.

19. As part of a council’s corporate parent role, it appoints a Virtual School Head (VSH). The VSH acts as an advocate for the educational achievement of looked after children in the council’s care. Among other things the VSH should ensure there are efficient systems in place to avoid drift or delay in providing suitable educational provision, including special educational provision, and encourage multi-agency co-operation.

20. All looked after children must have a Personal Education Plan (PEP). This forms part of the child’s care plan and is an integral aspect of it. A PEP has information on short and long-term education targets, performance against targets and pastoral needs. The PEP should say who is responsible for which aspect of the plan and specify timescales for action and review. It should be reviewed each school term and the IRO must check the effectiveness of the PEP during statutory review meetings.

Alternative educational provision

21. Statutory guidance says the definition of alternative provision is:

• education arranged by councils for pupils who, because of permanent exclusion, illness or other reasons, would not otherwise receive suitable education;

• education arranged by schools for pupils on a fixed period exclusion; and

• pupils being directed by schools to off-site provision to improve their behaviour.

Education, Health and Care Plans

22. In education law, the term ‘parent’ includes:

• those with parental responsibility of a child; also

• people who have care of a child, for example, a foster carer.

23. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document 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 their needs, education, or the name of the educational placement. Only the Tribunal or the council can do this.

24. The EHC Plan sections include:

• Section B: Special educational needs (SEN);

• Section D: Social care needs related to the child or young person’s SEN;

• Section F: The special educational provision needed by the child or the young person;

• Section I: The name and/or type of educational placement.

25. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person, and the educational placement. A review meeting must take place.

26. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)

27. Where the 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. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.

28. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary. The council must tell the child’s parent or the young person whether it will complete an EHC needs reassessment within 15 calendar days of receiving the request. If the decision is not to reassess, the council must also provide information about the right to appeal that decision to the Tribunal.

29. There is a right of appeal to the Tribunal against:

• a decision not to carry out an EHC needs assessment or reassessment;

• the description of a child or young person’s SEN (section B) in their EHC Plan, the special educational provision specified (section F), the school or placement or that no school or other placement is specified (section I); and

• an amendment to these elements of an EHC Plan.

30. The statutory guidance states that a child’s foster carer can appeal to the SEND Tribunal about decisions relating to the foster child’s EHC Plan.

Naming a school in an EHC Plan

31. The child’s parent or the young person has the right to request a particular school, college or other institution, including the following, to be named in their EHC Plan:

• maintained school;

• any form of academy or free school (mainstream or special);

• non-maintained special school; and

• independent school or independent specialist college (where they have been approved for this purpose by the Secretary of State and published in a list available to all parents and young people, referred to as a section 41 list).

32. If a child’s parent or a young person makes a request for a particular school in these groups, the council must comply with that preference and name the school in the EHC Plan unless:

• it would be unsuitable for the age, ability, aptitude or SEN of the child or young person; or

• the attendance of the child or young person there would be incompatible with the efficient education of others, or the efficient use of resources.

33. It is insufficient to say the requested school is ‘full’.

Special educational provision

34. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135).

35. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to:

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement;

• check the provision at least annually during the EHC review process; and

• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.

What happened

36. Y lives with Ms X who is their kinship foster carer. Y has special educational needs (SEN) that means they need special educational provision. In 2022 Y had an Education, Health and Care (EHC) Plan that set out, in section F, the provision they must receive. Section I of the Plan said they should attend School A (a mainstream school).

37. In section F, Y’s EHC Plan said they needed:

• access to a quiet individual workstation, as needed in the classroom, and to work alongside classmates at certain points in lessons and during the day;

• small group interventions for English and maths;

• a high level of adult support for Y’s use of appropriate language, social communication and interaction with classmates and adults; and

• regular pair-work to increase Y’s co-operation with their classmates and praise and rewards for positive behaviour to others.

38. Y was temporarily excluded from School A at the beginning of January 2022 for behaviour issues. School A arranged for Y to return on a part-time timetable as reintegration whilst an emergency review of their EHC Plan took place. Y attended School A for three hours a day. School A told the Council about the reintegration and invited it to the EHC Plan emergency review meeting.

39. Ms X contacted the Council and asked if it would fund tutoring and an alternative setting such as a forest school to provide part of Y’s education and key social skills. She also asked for emergency therapeutic support for her and Y together and a psychological assessment for Y. The Council asked Ms X to provide costings and said it would consider the request.

40. In March 2022 there were several meetings about Y’s care and education:

• Y’s educational advocate from the Council’s virtual school held a Personal Education Plan (PEP) review meeting. It noted Y was receiving one-to-one support outside of the classroom on their part-time timetable. It recorded Y would benefit from four hours a week for group activities at Site B (a wellbeing project). The advocate was concerned about Y’s emotional health and wellbeing. School A arranged for Y to attend Site B as alternative provision to improve their behaviour.

• Y’s independent reviewing officer (IRO) at the Council held a looked after child (LAC) review. It recorded the Council had still not completed life story work with Y to help them explore why they lived with Ms X. The IRO noted this had been raised as an outstanding action from their care plan several times before. The IRO said Y’s social worker should do it by the end of August 2022. The IRO was concerned the part-time timetable meant Y was missing out on education and socialising with friends.

• On 21 March, School A held the EHC Plan emergency annual review meeting. It recommended changes were made to sections B, D, F and I. Ms X requested a placement for Y at either School C, School E or School F (independent special schools, not on the section 41 list). The meeting heard current arrangements were impacting Y’s education and emotional wellbeing. They were not making any progress towards their targets. School A, Ms X, social worker 1 from the Council, and the educational advocate all agreed Y needed a specialist placement and School A could not meet their needs. School A sent the review paperwork to the Council.

41. The advocate contacted the Council’s SEN team at the end of April for an update following the review meeting. The SEN officer sent a letter stating the Council intended to amend Y’s EHC Plan to social worker 2, Y’s previous social worker. It did not send it to Ms X.

42. The advocate held a PEP review in May 2022. It recorded there were no changes to Y’s timetable, and they had not been accessing academic learning. It recorded social worker 1 would explore play therapy for Y. The Council said it planned for the play therapy and life story work to be completed together.

43. The Council considered Y’s EHC Plan at a panel meeting on 15 June 2022. It decided Y needed to attend an appropriate therapeutic educational provision, which would be a special school. The Council consulted the three independent special schools Ms X preferred.

44. The records show that during June, July and August the advocate, social worker 1, Ms X and School A all contacted the SEN team seeking updates, but did not receive any response.

45. Social worker 1 reminded the SEN team in August that Y was missing education and it had not updated Ms X. The SEN officer told social worker 1 it was funding School A to provide a high level of support until an appropriate educational place could be found for Y.

46. School A arranged for Y to attend a different wellbeing project, Site D, instead of Site B for five hours a week in September 2022.

47. The IRO held another LAC review in September. It said Y was still on a reduced timetable at School A with five hours at Site D per week, so was missing education. It was waiting to hear from the SEN team, and it appeared all specialist schools were full. The IRO recorded they had escalated the issue to their manager to progress. The Council had also not arranged play therapy for Y.

48. The advocate held a PEP review in October. It concluded social worker 1, Ms X, the advocate and School A should continue to contact the SEN team for the outcomes of the school consultations, as there had been no update since March.

49. In December the advocate contacted School C which said it had no place for Y. The advocate asked the SEN officer to take action. The SEN officer asked Ms X for other school options for Y. Social worker 1 responded on her behalf and suggested School F (an independent special school that Ms X had already requested), School H and School I (community special schools).

50. The SEN team sent social worker 2 (Y’s previous social worker) a draft amended EHC Plan for Y at the beginning of December. The draft amended Plan recorded ‘[Y] is exhibiting signs of distress whilst in school and has spent large proportions of the school day underneath a table or isolating [themselves]. Even with support [Y] is not able to cope with the school day’. Social worker 1 contacted the SEN officer and said they had asked several times for correspondence to be sent to Ms X as Y’s carer, and not to be sent to social worker 2. They said the draft Plan was not correct and still named School A. Social worker 1 asked for a meeting with the SEN manager to discuss the Plan. The SEN officer asked Y’s advocate to reassure Ms X that ‘w[h]en the final plan is issued it will identify specialist provision, not [School A]’.

51. Ms X provided her comments on the draft amended Plan and stated she disagreed that School A could meet Y’s needs and she did not want it named in the Plan.

52. The advocate asked for a meeting with the SEN officer to discuss the EHC Plan and placement again in January 2023. Following the meeting the advocate asked the SEN team again to follow up with School C as Ms X’s preference and to also consult School J, School K (both mainstream) and School L (community special school).

53. The SEN officer sent consultations to School H, I and J in January 2023. In February, Schools H and J said they could not meet Y’s needs and School I said it was full.

54. Ms X complained to the Council at the start of 2023. She said the Council:

• had not provided an appropriate setting for Y since the emergency review in March 2022 and the Council’s panel decision in June 2022;

• had failed to promote Y’s education as a looked after child;

• had not completed appropriate assessments such as an educational psychologist report to identify Y’s needs;

• had isolated Y from their peers which was impacting their mental and emotional health and the education they were receiving; and

• had not reviewed Y’s EHC Plan in line with the timescales in the statutory guidance.

55. The advocate held a PEP review for Y in February 2023. It recorded Y was now in School A full time, except for the five hours they spent at Site D. It said social worker 1 was organising play therapy through the Council’s integrated services for looked after children. It recorded the Council was still searching for a new school for Y.

56. The Council issued a further draft EHC Plan in March 2023 for social worker 1 and Ms X’s comments.

57. The IRO held a LAC review the same month. It noted the same as the PEP in February, but that Y was now attending Site D for six and a half hours a week instead of five hours a week.

58. The Council responded to Ms X’s complaint in March. It said:

• it had delayed in securing a new educational setting, it was consulting schools but there were no spaces;

• School A was providing alternative provision through Site D and it would continue to ensure that was suitable in the interim;

• it could direct a mainstream school that said it was full to accept Y as they were a looked after child, but not SEND settings (special schools and independent schools). It could not direct Schools C or E to accept Y as they were not section 41 independent special schools;

• it had delayed the EHC Plan review process and apologised. It had since set up a dedicated team to deal with delays in the process;

• the SEN team had not always included Ms X in communication with Y’s social worker about Y’s education, and it would now ensure she was included in all communication;

• Y was not on a part-time timetable but at alternative provision two days a week. It accepted it had not monitored the alternative provision arranged by School A to make sure it was delivering the provision in Y’s EHC Plan, and apologised. It said it would ask School A to complete an annual review so it could consider Y’s provision.

59. Ms X escalated her complaint and said the Council was consulting schools with an outdated EHC Plan which may affect the results, and was still not communicating with her about the situation.

60. A new SEN officer took over Y’s case in May 2023. They said they needed to update Y’s EHC Plan before they sent out any consultations to schools. They issued a further draft amended EHC Plan for Ms X and social worker 1’s comments. The draft continued to name School A in section I.

61. The Council responded to Ms X’s stage two complaint as if she was at stage one of the Council’s complaint process two months later. It said it could not give a timeline for finding an appropriate school place for Y. It said its ongoing communication issues and the delay in further progress was caused by staff changes. The Council confirmed the new SEN caseworker had sent a new draft Plan and would arrange a meeting with Y’s social worker to discuss it.

62. The advocate held a PEP review for Y in May 2023. Ms X asked if Y could go back to Site B instead of Site D. The record shows School A arranged for Y to attend both Site B and Site D one afternoon a week. That arrangement started in June 2023.

63. The Council consulted three special schools, School C, School E and School H again in May 2023.

64. In a professionals’ meeting in June 2023 the Council agreed to complete an educational psychologist assessment for Y, as the previous one was completed three years ago. It said it would reconsult schools once the Plan was amended and would consider adding play therapy as part of the EHC Plan.

65. School A temporarily excluded Y in June for behaviour reasons. An annual review meeting of the EHC Plan recorded Y struggled to make progress even with one- to-one support ‘every minute of the school day’. It made the same recommendations as the review in 2022, including that School A could not meet Y’s needs.

66. The Council issued a further amended draft EHC Plan at the end of June 2023, the third draft since December 2022. Ms X provided her comments and asked for section I, the educational setting, to be left blank. She noted it did not specify anywhere that Y needed a specialist educational placement, as agreed by the Council’s panel in June 2022. Ms X told the Council her preferences were for School H, School O (both community special schools), School M (an independent special school) and School N (an academy special school).

67. Ms X contacted School A about Site D in July and said that Y was no longer happy there. She said there were no activities for them to do, and no other children attending in the same time slot, which was part of the reason Y was going there. Y stopped attending Site D in July and attended Site B for six and a half hours a week.

68. Social worker 1 contacted School A and said Y felt they were not being treated fairly in being isolated from their peers. The social worker asked School A if they could join their peers. School A responded and said Y was on a bespoke curriculum for a reason and that was why mainstream provision was not the right setting. It said it was ‘well aware that it could not meet [Y’s] needs’.

69. The Council issued a final amended EHC Plan for Y on 26 July 2023. The Council informed Ms X of her right of appeal to the SEND Tribunal if she was unhappy with the EHC Plan. The special educational provision in section F that Y needed remained the same as that set out in paragraph 37. It recorded that ‘in [their] current school, [Y] has limited interaction with all aspect of school life and [Y] has not been in a classroom environment since February 2022… [Y] is currently not given the opportunity in school to help develop [their] social skills and to form and maintain friendships’. The EHC Plan continued to name School A in section I. The SEN officer told social worker 1 and Ms X they could not remove School A from section I as that is where Y remained on roll.

70. Following a consultation, School O told the Council at the beginning of September it could not meet Y’s needs.

71. The IRO held a LAC review in September 2023. It recorded there had not been any progress with Y’s education and the IRO had started a formal dispute under the Council’s Dispute Resolution Procedure to challenge the lack of progress with Y’s education placement.

72. The Council held a professionals’ meeting at the end of September. It agreed to consult further afield for schools for Y, and noted social worker 1 would seek funding through social care for an educational psychologist assessment and play therapy.

73. The SEN team consulted School P (an independent school) and School M (an independent special school) and School Q (an academy special school) in September. School P said it could not meet Y’s needs.

74. Ms X complained to the Council in October 2023. She repeated her points of complaint from February about the delay in the EHC Plan review, and the provision Y was offered in the interim. She also said it had used an outdated EHC Plan to consult schools which meant Y was not offered a placement.

75. Y stopped attending School A in October 2023.

76. In October 2023:

• School M said it did not have a space for Y;

• the educational psychologist (EP) reviewed the request for an assessment. The EP decided that the fact the Council had issued an amended EHC Plan for Y showed all professionals involved with them agreed on the provision in the Plan. The EP felt that a reassessment was not necessary on that basis;

• the Council agreed to pay for play therapy for Y;

• a PEP recorded Ms X was struggling to motivate Y to access education;

• social worker 1 told the educational advocate Y was no longer attending School A and asked the Council for more time at Site B;

• Ms X asked the SEN team for tutoring for Y;

• the SEN team chased School Q for a response to the recent consultation, and School C and School E for a response to the consultations it sent in May 2023.

77. At the end of that month the educational advocate asked the SEN team for a bespoke package for Y at School R (a community special school) with additional hours at Site B. It contacted School R for information and the cost for a placement for Y. The Council’s SEN panel declined to provide additional hours at Site B and tuition for Y. It agreed to School R to support Y’s reintegration to school which would include one hour of play therapy. It also said it would consult School S (an independent special school, not registered under section 41) for a permanent placement.

78. The Council responded to Ms X’s complaint. It upheld the complaints and apologised for the delay in the EHC Plan review process. It gave an overview of the places it had consulted and said it had reconsulted with the new EHC Plan where the old Plan was previously used.

79. Ms X told the Council she was dissatisfied with its response. She said it did not respond to all the points she had raised including the lack of provision and the impact on Y. She said the Council’s SEN panel had agreed to School R 25 working days ago and it was still not in place.

80. In November 2023:

• the SEN officer told social worker 1 and the advocate that School R was intended to reintegrate Y, not to educate;

• social worker 1 cancelled the play therapy as it would be provided by School R;

• School A told the SEN team that it had been ‘baby sitting’ Y for a long time as it was not able to meet their needs;

• the SEN team asked School A to arrange and fund a second session for Y at Site B, but Site B did not have any more sessions available. The records show that at that time the advocate, School A and Ms X agreed that tuition at home was not a feasible option for Y;

• School C again told the Council it was full;

• the Council consulted School T (an independent school) but it could not offer Y a place.

81. At the end of November Ms X told the Council the impact of the situation on her and Y. She said it was ‘clearly having a detrimental effect on [Y’s] social and emotional state causing anxiety which is clearly worsening and has left both of us at rock bottom now – it has left me feeling not only frustrated, but I feel like a prisoner in my own home’.

82. The Council refused to consider Ms X’s complaint further. It said it upheld the complaint and was working on providing a suitable school. It said some points of complaint were new and Ms X could raise a new complaint for those matters. It did not specify which matters were new complaints.

83. The SEN officer told the advocate in December that School R was now not taking referrals until the summer term and so Y could not attend. In response to a query from the advocate, the SEN officer said they did not know if they could direct a special school to admit Y.

84. The Council consulted School N (an academy special school) in January 2024 for a placement for Y from September 2024.

85. Ms X raised a further complaint in February 2024. She said the Council:

• had offered no support via play therapy or life story work for Y during their educational difficulties since February 2022;

• had not completed an educational psychologist assessment of Y’s needs;

• continued to delay the EHC Plan process, naming a suitable school and providing appropriate alternative provision in the interim.

86. The Council issued a further final amended EHC Plan for Y in February 2024, it said Y should attend School A until July and then School E, an independent special school, from September 2024.

87. A PEP was held at the end of February 2024. It recorded Y was not in school and was attending Site B for six and a half hours a week. After the meeting, School A said it would fund a placement for Y at a new alternative provider (Site V) for wellbeing activities.

88. There was a LAC review in March 2024. It recorded Ms X wanted support to maintain Y’s placement with her, and so the Council had sought play therapy and an independent visitor to provide support and advice to Y. It recorded there was no educational tuition in place and that not being in school was taking a huge toll on Y emotionally, and they were refusing to leave the house which was also impacting on Ms X.

89. The Council responded to Ms X’s complaint and said:

• it apologised it had not contacted the educational psychology service in June 2023 when it said it would. However, this had not caused an injustice

  because when it had made a referral, the EP had decided an assessment was not needed because the professionals involved with Y said the Plan met their needs;

• it had offered several options for provision, but Ms X had declined them, including tuition and Site D in June 2023. It said it would consider tuition again;

• it apologised it had not kept Ms X informed; and

• it apologised for the delay in arranging play therapy and life story work for Y and said it had been working to secure it.

90. The Council told Ms X in March 2024 that Y had a place at School S (an independent special school) starting in June 2024, and it would amend the EHC Plan to name that school. It issued the amended EHC Plan in April 2024 and told Ms X of her appeal rights if she disagreed with the Plan.

91. In mid-April 2024 Y began to receive play therapy. The Council also sent a request for education tutoring to tuition companies. At the end of April, Y began attending Site V for four hours a week. They attended five sessions and stopped at the end of May.

92. Ms X responded to the Council and said the EP assessment of Y’s needs was still required and asked which professionals agreed that Y’s EHC Plan met their needs. She said she had only declined tuition because tuition in the home was felt not to be suitable by various professionals, and Y was still without any provision. She said she had still not had contact from the SEN team. Ms X said she had requested tuition in 2022 and if it had been arranged then, Y would have been in a better position now.

93. Ms X said Y did not receive any tuition. Y began to attend School S at the beginning of June 2024 on a phased transition.

94. The Council responded to Ms X at stage two of its complaint process and said the EP based their assessment on the amended Plan that she and social worker 1 had commented on. It apologised the changes it made to the EHC Plan led the EP service to decide no further input was required. It said a SEN officer had been in touch about Y’s provision since Ms X’s stage two complaint. It apologised for the delays Ms X experienced.

95. The Council said it allocated Ms X a kinship social worker to support her in October 2023, who completed weekly supervision sessions to provide emotional support. Ms X said the kinship social worker was allocated to take over from her previous supervising social worker who had moved on, rather than as additional support. Ms X said the social worker provided occasional support and only carried out supervision sessions every six weeks. The Council stated it had not been able to identify an appropriate independent visitor for Y, or respite care for Y during the day to provide a break for Ms X. The kinship social worker looked after Y for a few hours on one occasion when Ms X was at crisis point.

Conclusions

What we have and have not investigated

96. We have investigated matters that happened more than 12 months ago. Ms X complained to the Council within 12 months of becoming aware of the matter and has not allowed the matter to rest at any time since then. The Council upheld Ms X’s complaints twice during that period and so Ms X believed it was taking action to resolve the issue. When she was aware that it was not, she complained to us. There was good reason Ms X did not complain to us earlier, so we investigated matters that began in February 2022 until June 2024.

97. In July 2023 the Council issued an amended EHC Plan for Y, which said Y should attend a mainstream school despite the fact it had decided in 2022 that Y required a specialist school placement. Ms X had a right of appeal if she disagreed with School A being named in the Plan in July 2023. We cannot normally investigate matters that have a right of appeal to the SEND Tribunal as set out in paragraph 5. However, at the time it issued the final EHC Plan, the Council told Ms X it was continuing to look for a specialist school placement, and it had to name School A as that was the school Y was attending. That information was incorrect, as the Council could have specified a type of placement in the Plan, in this case, a specialist school. Because Ms X believed the Council had to name School A, and was continuing to search for an appropriate placement, we have decided it was not reasonable for her to have appealed. Therefore, we have considered the special educational provision in section F of Y’s Plan, that they received at School A from July 2023 to the end of our investigation in June 2024.

EHC Plan review and reassessment

98. School A held an emergency review meeting for Y’s EHC Plan on 21 March 2022 as it no longer felt it could meet Y’s needs. Following this meeting, the Council should have issued its decision to amend the Plan and provided a draft amended Plan within four weeks and by 18 April 2022. In line with the guidance, it should have gone on to issue a final amended EHC Plan within a further eight weeks and by 13 June 2022. The Council did not issue the first draft Plan until December 2022 and did not issue the amended final Plan until 26 July 2023. That was an overall delay of 58 weeks (over a year) and was fault. It caused Ms X significant distress and frustration. On balance, if it were not for the delays in the process, Y should have been attending a special school by September 2022 at the latest.

99. Each of the three times the Council issued a draft amended EHC Plan (December 2022, March and June 2023), it continued to name School A in section I. It said it had to name School A as Y was on roll there. That explanation was wrong and not in line with the Code. This was fault. The Code says the draft Plan must not name the school. The Council should have left Section I blank in the draft stages and named the type of School Y should attend in the final amended Plan if it could not name a specific school. The Council had already decided the type of school was a specialist school, not a mainstream school like School A. The fault caused Ms X frustration and confusion and may have caused confusion with schools when the Council was consulting for placements.

100. The Council’s SEN team allowed there to be significant drift and delay in Y’s case. There were several months at a time where the records show it took no action in finding an appropriate school for Y, as set out here:

• three months between the annual review meeting in March 2022 and the SEN panel decision in June 2022;

• six months between June 2022 when it consulted the first three schools and January 2023 when it consulted the next three schools; and

• three months between February 2023 when the previous three schools provided negative responses and May 2023 when it consulted the first three schools again.

101. The SEN team told Ms X it could not direct a SEND school to admit Y, and the case worker said they did not know if they could direct a special school. The Council should be aware of its power to name certain types of schools in a child’s EHC Plan. Although it could not direct the independent schools that were not on the section 41 list, the Council consulted six schools between January 2023 and January 2024 that were either maintained schools or an academy or non- maintained special school. It could have considered naming those schools on Y’s EHC Plan if they were Ms X’s preference and in line with paragraphs 31 and 32. The Council failed to properly understand its powers and on the balance of probabilities it is likely it missed opportunities to identify an appropriate placement for Y earlier.

102. Ms X asked for a reassessment of Y’s needs in February 2022. The Council should have considered the request and told Ms X of its decision, and her right to appeal that decision to the SEND Tribunal within 15 days. The Council did not do so, which was fault and frustrated her right to challenge that decision.

103. The Council agreed to arrange a reassessment by an educational psychologist in June 2023, but the service did not respond until October 2023. There was a significant delay, which was fault.

104. The EP, acting on the Council’s behalf, decided Y’s draft amended Plan meant all professionals working with Y agreed it met their needs, and so a reassessment was not necessary. There is no evidence that any professional working with Y had commented on the draft amended Plan. The EP’s decision was flawed, which was fault and added to Ms X’s frustration. The Council should have told Ms X of its decision not to complete a reassessment, and her right to appeal that decision to the SEND Tribunal within 15 days. The Council did not do so, which was fault and frustrated her right to challenge that decision.

Education and Special Educational Provision

105. Since February 2022, Y has had an EHC Plan that sets out, in section F, the specialist educational provision they must receive, as set out in paragraph 37. Throughout this period, the Council had a duty to ensure that provision was in place under section 42 of the Children and Families Act. Y’s July 2023 amended final EHC Plan contained the same main elements in section F.

106. When Y returned to School A following an exclusion in February 2022, they were on a part-time timetable to support their reintegration to school, as a short-term measure. Y also received some alternative provision at Site B, arranged by School A. We cannot investigate this alternative provision as it was arranged by the School, and the law prevents us from investigating internal school matters. Nevertheless, the Council should have had oversight of what section F provision Y was receiving each week, as it was aware School A said it could not meet Y’s needs and that School A had arranged this alternative provision to support Y’s behaviour for several hours a week.

107. In June 2022 the Council agreed Y needed a specialist school placement. It should have taken action to ensure the special educational provision set out in Y’s EHC Plan was in place while searching for another school.

108. Y remained on the part-time timetable and while in School A was kept on a one- to-one arrangement away from their peers from February 2022 until February 2023. This was not in line with section F of their Plan that required: access to a quiet individual workstation as needed in the classroom, and to work alongside classmates at certain points in lessons and during the day; small group interventions for English and maths; a high level of adult support for Y’s use of appropriate language, social communication and interaction with classmates and adults; and regular pair-work to increase Y’s co-operation with classmates and praise and rewards for positive behaviour to others. This is a non-delegable duty and because the Council did not ensure Y received the section F support, this was fault.

109. From February 2023 until October 2023 Y attended School A full time, except where they had been at Sites B or D for alternative provision between five and six and a half hours a week. While Y was in School A they remained outside of the classroom and did not interact with their peers. Again, that was not in line with section F of their Plan. The Council accepted it had not reviewed the special educational provision Y was receiving to ensure it met their needs. That was fault and meant Y did not receive all the section F support in their Plan.

110. From October 2023 until the end of April 2024 Y did not attend School A. The Council declined Ms X’s request for tutoring, and social worker 1’s request for additional time at Site B, but agreed for Y to attend School R as a short-term measure. It then took no action to arrange that provision until December, by which time the place was not available. The Council did not take any action to arrange any other educational tuition, or special educational support as set out in section F until April 2024, when it contacted a tuition company. This meant that Y was without any education, or specialist provision (save for the six and a half hours a week at Site B which did not meet all the support required by section F) which was fault causing Y an injustice.

111. The Council’s March 2024 complaint response suggested that Ms X declined a number of options for alternative educational provision for Y. We are not persuaded by that argument as School A, the virtual school and Ms X all agreed tuition in the home would not be appropriate for Y when it had been discussed previously. Ms X did ask for Y to stop attending Site D, but only when it was clear it was not meeting their social needs, the reason she felt Y was attending, as there were no other children present.

112. From April to June 2024 Y received four hours at Site V and six and a half hours at Site B each week. Y had been out of education for a significant period and was about to begin the transition to a permanent placement, which was likely to have caused disruption and to have been challenging for them. On the balance of probabilities, Y would not have been able to benefit from any additional alternative educational provision between April and June 2024. Therefore, Y was not caused any significant injustice in this period. However, it caused Ms X uncertainty about whether Y would have been able to access tutoring had the Council acted sooner to identify a tuition company and provide tuition.

113. In June 2024 Y began the transition process to School S, the independent special school named in their EHC Plan.

114. The injustice caused to Y by the faults identified in paragraphs 108 to 110 have been clearly set out by the professionals involved in Y’s case. The IRO and educational advocate from the virtual school both noted they were concerned about Y’s emotional health and wellbeing because of the lost education and special educational provision. The SEN team recorded Y was distressed and was unable to cope with the school day when working one-to-one. School A set out Y struggled to make any progress, could not access academic work and spent time hiding under tables. Social worker 1 reported Y was isolated and felt they were being treated unfairly. Ms X reported that Y was beginning to disengage from school altogether, which then did happen.

115. Ms X was also caused frustration and distress as a result of the Council’s faults. She told the Council it was impacting both of their mental health and emotional wellbeing and they became more isolated at home as Y did not attend school and would not leave the house.

Promoting the educational achievement of a looked after child

116. Y has special educational needs, and they are a child who is looked after. The Council had a duty as Y’s corporate parent to promote Y’s education.

117. The records show the virtual school’s educational advocate had concerns about Y’s education and took appropriate action by escalating their concerns within the Council. They were proactive in identifying placements, gathering information, making suggestions to the SEN team and maintaining communication between the Council’s services and Ms X. The IRO also identified concerns about Y’s educational placement and took appropriate action in progressing the case by raising it with their managers and raising a formal dispute within the Council.

118. The Council’s SEN team should have acted on the concerns of the educational advocate and IRO as a council has a duty to safeguard and promote the welfare of a child it looks after with a particular duty to promote the child’s educational achievement. The Council failed to do this. Overall, the Council failed in its role as Y’s corporate parent to promote Y’s education as a looked after child, which was fault. It caused Y an injustice of missed education, missed special educational provision and distress, as already identified, and Ms X distress and frustration.

Communication and support as a kinship carer

119. As Y’s kinship foster carer, Ms X should have been included in the correspondence about Y’s education and placement. The education law defines her as a parent for these purposes. The records show Ms X was often excluded. The Council identified this in its complaint responses of March 2023, May 2023 and in March 2024 and despite this, there was no meaningful improvement in how it sought Ms X’s views or kept her informed about Y’s education. The Council’s failure to keep Ms X informed and updated, to learn lessons and to improve its service after March 2023 was fault. It caused Ms X significant avoidable frustration and distress, and undermined the valuable role she has as Y’s kinship carer.

120. Ms X first requested therapeutic support for her and Y in February 2022. Ms X told the Council the impact Y’s educational struggles were having on her and asked the Council for support. She said she was struggling to motivate Y in October 2023, and she felt like a prisoner in her own home in November 2023. The Council provided a social worker who contacted Ms X to offer emotional support in October 2023, 20 months after she first requested it. That was fault. The Council did not provide any practical support, such as respite. The failure to provide any meaningful, practical support for Ms X was fault. These faults caused Ms X significant distress and put Y’s placement with her at risk.

Play therapy and life story work

121. Y’s care plan stated they should have received life story work prior to February 2022. This would be to explain to Y how they had come into Ms X’s care. Throughout the period we have investigated the IRO continually requested the Council complete life story work with Y. In May 2022, the educational advocate identified through the PEP that Y should receive play therapy to support them.

122. The Council noted the play therapy and life story work should have been combined to support Y. However, it did not provide that therapy until the end of April 2024. It accepted it had taken too long in its complaint response to Ms X. That is a delay of more than two years, which was fault. Y was a vulnerable looked after child whose educational placement was inadequate which put their kinship care placement at risk. They should have been provided with the therapeutic support the Council identified they needed much sooner. It is likely this would have helped Y to engage in education. This in turn would have supported Ms X as Y’s kinship carer.

Recommendations

123. The Council has been working with the Department for Education and NHS England to improve its SEND services resulting in the development of a SEND Improvement Plan. The Council received an 18-month progress review against that plan in November 2023 from the Department for Education. It recorded staff attended training from an external provider to ensure they understood the law relevant to their role. We considered this when making service improvement recommendations below.

124. When a council commissions or arranges for another organisation to provide services, we treat actions taken by or on behalf of that organisation as actions taken on behalf of the council and in the exercise of the council’s functions. Where we find fault with the actions of the service provider, we can make recommendations to the council alone. Here we have found fault with the actions of Worcestershire Children First and make the following recommendations to the Council.

125. The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended)

126. In addition to the requirements set out above the Council has agreed to take the following action to remedy the injustice identified in this report.

127. Within one month of this report the Council will:

• Write to Ms X and apologise for the injustice its faults caused to her and Y. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology we have recommended.

• Place a copy of the apology letter and this report on Y’s case file.

• Pay Ms X £9,060 to recognise the combined five and a half terms of education and special educational provision Y missed between June 2022 and April 2024.

• Pay Ms X a symbolic amount of £1,000 to recognise the injustice caused to Y by its two-year delay in providing therapeutic support to them as a looked after child.

• Pay Ms X a symbolic amount of £1,000 to recognise the injustice caused to her by the Council’s faults.

128. The payments we have recommended total £11,060. They are in line with our guidance on remedies and take into account Y’s vulnerabilities as a looked after child with special educational needs and the length of time the situation has been unresolved for. Ms X should use the £10,060 payment recommended for the injustice caused to Y, for Y’s benefit as she sees fit.

129. Within three months of this report the Council will review the training provided under its SEND improvement plan. It will ensure the staff involved in Y’s case receive that training, and that it covers:

• the timescales for reviewing and amending EHC Plans;

• how and when the Council can direct a school to admit a child;

• naming a parental preference school in an EHC Plan;

• not naming a school that a child or young person should attend in a draft EHC Plan; and

• decision and appeal rights for reassessment requests.

Decision

130. We have completed our investigation. There was fault by the Council causing injustice. The Council has agreed to our recommendations to remedy that injustice and to avoid the same faults occurring in the future.

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