Summary: There was delay by the Council issuing Y’s first Education, Health and Care Plan after the law changed in 2018. This caused avoidable uncertainty. There was also delay securing educational provision on the post-Tribunal Plan of December 2023 which caused Y a loss of educational provision. The Council offered a payment of £18,023 to remedy the loss of educational provision. This is an appropriate remedy for Y’s injustice. The Council will also apologise to Ms X and make her a payment of £150 to reflect the avoidable distress.

The complaint

1. Ms X complained the Council:
1. Delayed transferring her daughter Y’s statement of special educational needs (SEN) to an Education Health and Care Plan (EHC Plan) when the law changed;
2. Failed to name an education setting and removed educational provision from the EHC Plan;
3. Delayed securing therapies in the post-tribunal EHC Plan (physiotherapy, speech and language therapy (SLT) and occupational therapy (OT)); and
4. Failed to arrange alternative provision for Y after an incident at school in 2022.
2. Ms X said this caused her avoidable distress and a loss of education provision for Y.

Back to top

The Ombudsman’s role and powers

3. 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)
4. The courts said if someone has appealed to the SEND Tribunal, we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
5. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example, alternative education when the reason the child or young person is not attending education is, in our view, not connected to or is not a consequence of a matter that was, or could have been, part of an appeal to the tribunal.
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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
7. 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)
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I have and have not investigated

9. I have investigated complaints (a) (c) and (d).
10. Complaints (a) and (d) are late, but I have investigated them because there is evidence of continuing fault from 2018 to 2023 and potential injustice.
11. Complaint (b) is not within our remit because of the Millburn case summarised in paragraphs four and five. Ms X appealed these matters to the SEND Tribunal.
12. Y was assaulted by another pupil at school in November 2022. Ms X told us she refused to go back to school after the assault. The evidence indicates Y’s non-attendance at school was not connected to or a consequence of Ms X’s appeal to the SEND Tribunal. So, I have investigated complaint (d.)

Back to top

I considered this complaint

13. I considered the complaint to us, the Council’s response to the complaint and documents described in this statement. I discussed the complaint with Ms X.
14. Ms X had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and guidance

15. Councils were supposed to have transferred all children with statements of SEN to EHC Plans by the end of March 2018 after completing a transfer review. (Department of Education Notice: Special Educational Needs: Transfer of statements of SEN to EHC Plans, March 2018)
16. A child with SEND 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 including:
• I – the placement
• F – special educational provision (SEP)
17. 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. The process is only complete when the council issues a decision about the review.

18. 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) 

19. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.

20. 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.

21. The council has a duty to secure the specified special educational provision in an EHC Plan for the child or young person (Children and Families Act 2014, section 42).
22. 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. 

23. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision (AP).

What happened

Background

24. Y is 17. She has SEN, sight and hearing loss and physical disabilities. Y had a statement of SEN in 2014 setting out her needs and the special educational provision (SEP) the Council would provide. The placement was a special school, School B. The SEP including support from a specialist teacher and therapies.
25. Y continued to attend School B and transferred to its secondary provision. Ms X told me school held an annual review meeting each year. She said the Council did not amend Y’s statement or issue any decision letters after review meetings.
26. The Council did not issue an EHC Plan by the legal deadline in 2018.
27. Evidence from the Council indicates review meetings were held by School B in 2021, 2022 and 2023. School B sent the Council the review record after each meeting. The Council did not complete the review process by issuing any decision to maintain or amendment notices (see paragraph 18.)

2022

28. The Council issued Y’s first EHC Plan in November 2022. The educational placement was School B.
29. Y was assaulted by an older pupil at School B in November.
30. Ms X told me Y’s attendance at School B after the assault was sporadic. Ms X told me she would go into school once or twice a week at most and school would call her to collect Y because she was distressed. Ms X suggested the Council was aware of this at the time. Ms X said School B sent work home and did welfare visits, but it didn’t do anything else. She said she had not received any letters from School B regarding concerns about Y’s poor attendance record. She thought this was because School B accepted Y would not be able to attend because of the assault.
31. Ms X and a SEND case officer attended a meeting at School B the week after the assault. There is no evidence the Council was made aware (either by School or Ms X) that Y wasn’t attending school, contrary to Ms X’s assertion. The evidence suggests the Council was unaware until much later (in 2023) as I set out in the following section.
32. Ms X appealed Sections B, F and I of the November 2022 EHC Plan. Regarding Section F, she asked the Tribunal to order:
• Music therapy
• Swimming
• A conductor
• An intervenor
• Additional hours of therapy.

2023

33. School B held an annual review meeting in February 2023. It sent the record of the meeting to the Council. There was no mention of any concern about Y’s attendance in the papers. Y was noted to be making good progress in school.
34. Ms X said in an email to Y’s SEND case officer at the end of March that it was difficult to get Y to go to school; there had been two other incidents in March (one where Y slipped and hit her head and the other where another pupil had struck her during an event off school premises).
35. There is no evidence in the Council’s case records that School B raised any concerns about Y’s attendance.
36. In August Ms X complained to the Council about the matters she has raised in her complaint to the LGSCO.
37. Ms X and the Council resolved the issue of Y’s placement (College C) before the Tribunal heard the case.
38. At the end of November, the Tribunal ordered:
• Small group music therapy 40 minutes once a week
• No changes to SLT or Physiotherapy

The Tribunal did not order a conductor (this is a type of physiotherapy.) It also concluded swimming was already part of the existing physiotherapy package.

39. The Council issued Y’s post-tribunal EHC Plan on 8 December.
40. The Council’s stage two response to the complaint in December said:
• There was delay in issuing a final EHC Plan and this caused distress;
• Y’s last day of attending School B was 8 June 2023. She was marked as on holiday from then on. She was still on the roll. The records show she was absent from September 2023;
• The Council had problems finding OTs and SLTs due to a shortage. It had found a provider who could see Y in its clinic and the Council was willing to provide travel assistance;
• It was sorry for inconsistent communication and the delay in securing provision;
• The caseworker had contacted her about college induction once an intervenor had been secured;
• The caseworker would arrange a meeting to discuss outstanding issues around provision on the Plan, including reimbursement of missed therapy sessions;
41. Ms X complained to us in March 2024. Y had started college.

The Council’s offer to remedy Y’s missed educational provision

42. In response to my enquiries, the Council accepted it had a duty to secure all the SEP on Y’s post-Tribunal EHC Plan. The Council said it had not done so, because Y’s SEP is specialised and it had taken time to organise a start date at college and to commission specialist therapists and providers who were all external professionals and in high demand.
43. In response to my enquiries, the Council offered to make the following payments:
• £3200 to recognise the delay in Y starting college (she missed out on a term and a third of college); and
• £14,823 for missed speech and language therapy, occupational therapy, physiotherapy, teaching of the hearing impaired, visual impairment specialist, music therapy, hydrotherapy. (The Council calculated this based on the hourly cost of each of these therapies up to the end of the school year 2023/2024).

Findings

The Council delayed transferring Y’s statement of special educational needs to an Education Health and Care Plan (EHC Plan) when the law changed

44. There was fault by the Council because it did not issue Y’s EHC Plan by the deadline in 2018. The four-year delay was fault. This caused a potential loss of appeal rights and avoidable uncertainty for Ms X. It is not possible to make any findings about what would have happened had the Council transferred the statement to a Plan on time. Provision may have changed or it may have stayed the same. The injustice is avoidable uncertainty.

The Council delayed securing therapies in the post-tribunal EHC Plan (physiotherapy, speech and language therapy (SLT) and occupational therapy (OT))

45. Y should have started at her new placement in December 2023 at the same time as the post-tribunal EHC Plan. She should have been receiving all the therapies in the Plan. The Council did not act in line with the duty in Section 42 of the Children and Families Act 2014 which was fault causing Y a loss of educational provision. The Council has accepted this.

The Council failed to arrange alternative provision for Y after an incident at school in November 2022.

46. I do not uphold this complaint.
47. The Council had a duty to secure provision on Y’s EHC Plan. It also had a duty under Section 19 of the Education Act 1996 to arrange suitable education for Y if it was aware that she was not attending school due to illness, absence or for other reasons. In practical terms, we do not expect councils to keep a watching brief, but we do expect them to investigate concerns raised at any time. In this case, an officer attended a meeting at School B to discuss the assault just after it had happened. This was an appropriate action. There is no evidence the Council was made aware of any attendance concerns at the meeting or subsequently. So in my view, there was no requirement for it to consider the Section 19 duty. Had concerns been raised by school or by Ms X, we would expect the Council to have looked into those concerns and to have considered the Section 19 duty or to have considered taking action against Ms X to enforce Y’s attendance. There is no evidence of concerns about attendance being raised in the February 2023 annual review. While Ms X contacted the case officer by email in March 2023, this was about subsequent incidents and no information or evidence at the time that Y’s attendance at School B was a significant concern. It was only in September 2023 that Ms X raised the matter in her complaint and the Council and Ms X were in the process of resolving the dispute about her post-16 placement before the Tribunal took place.

Back to top

Agreed action

48. The payments the Council offered for Y’s loss of educational provision are more generous than the guidelines suggested in our Guidance on Remedies and they are appropriate to reflect the injustice to Y.
49. The Council will, within one month:
1. Apologise. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
2. Make Y the payment of £18,023 it has already offered.
3. Make Ms X a payment of £150 to reflect her avoidable uncertainty.
50. The Council should provide us with evidence it has complied with the actions in the last paragraph.

Back to top

Final decision

51. There was delay by the Council issuing Y’s first Education, Health and Care Plan after the law changed in 2018. There was also delay securing educational provision on the post-Tribunal Plan of December 2023 which caused Y a loss of educational provision. The Council has offered a payment of £18,023 to remedy the loss of educational provision. This is appropriate to reflect the injustice. The Council will also apologise to Ms X and make her a payment of £150 to reflect her avoidable distress.
52. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman