The Ombudsman's final decision
Summary: Ms X complained the Council delayed completing her son’s Education, Health and Care Plan review and did not provide alternative provision while he was out of school, resulting in missed education. We found the Council at fault. We recommended the Council provide an apology, pay £4400 for missed education; pay £500 for distress and uncertainty and; act to prevent recurrence.
The complaint
Ms X complains the Council delayed reviewing her son’s Education, Health and Care Plan (“EHCP”) and failed to provide alternative provision while he was out of school. She says her son, Y, has missed education including GCSEs, which will impact him in the longer term.
Ms X also complains the Council delayed issuing a final EHCP following a Tribunal order.
What I have investigated I have investigated the complaint at paragraph 1. I have not investigated the further complaint for reasons set out at the end of this investigation.
The Ombudsman’s role and powers
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) 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) The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended) We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended) The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply (Local Government Act 1974, section 26(5)) We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended) 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.
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)
How I considered this complaint
I spoke to Ms X’s representative, Mrs Y, and I reviewed documents provided by Mrs Y and the Council.
Mrs Y and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
While both Mrs Y and Ms X had contact with the Council, for ease I have only referred to Ms X below.
What I found
Education, Health and Care Plan An Education, Health and Care Plan (“EHCP”) sets out the extra help and support a child may need to overcome barriers to learning. It is a council’s duty to secure and arrange the educational provision set out in an EHCP.
In May 2020 the Government temporarily amended this duty such that a council only had to make reasonable endeavours to secure or arrange the provision. This was due to the COVID-19 pandemic and remained the case until 31 July 2020.
This amendment did not apply to or affect the Council’s section 19 duties under the Education Act 1996.
SEN Code of Practice; Annual Reviews The Government issues statutory guidance to councils which covers the EHCP review process. The usual timescales are below. However, from 1 May 2020 until 25 September 2020 the Government replaced these with the requirement to do ‘as soon as reasonably practicable’ whenever the COVID-19 exceptions apply.
Councils must review an Education, Health and Care Plan (“EHCP”) at least every 12 months.
Within 2 weeks of the review meeting the school must provide a report to the council with any recommended amendments.
Within four weeks of the meeting, the council must decide whether it will keep the EHCP as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school. If it needs to amend the plan, the council should start the process of amendment without delay.
The council must send the draft EHCP to the child’s parent and give them at least 15 days to give views on the content.
When the parent suggests changes that the council agrees, it should amend the draft plan and issue the final EHCP as quickly as possible.
Where the council does not agree the suggested changes it may still issue the final EHCP.
In any event the Council should issue a final EHCP to the parent and any school named within 8 weeks of issuing the amendment notice. It must also notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so.
Right to Education Section 19 of the Education Act 1996 says councils must make suitable educational provision for children of compulsory school age who, because of illness, exclusion or otherwise, may not receive suitable education unless such arrangements are made for them.
The provision can be at a school or otherwise, but it must be suitable for the child’s age, ability and aptitude, including any special needs. The only exception to this is where the physical or mental health of the child is such that full-time education would not be in his/her best interests.
Full time education is usually between 22 and 25 hours per week unless it is clear a child cannot cope with full time education. The law allows councils to view 1:1 provision as worth more than provision delivered in groups.
Jurisdiction The Ombudsman has no jurisdiction to investigate a complaint where a parent has appealed to the SEN Tribunal from the date the SEN appeal right arises (i.e. when the final EHCP is issued) until the appeal is completed.
What happened Y attended secondary school from September 2017.
Y’s EHCP of May 2018 detailed support and strategies for education in school. It included: a speech and language programme to be devised, 45 minutes per week group sessions for social skills, 1 hour per week specialist intervention to support auditory skills, small class sizes of 12 or less.
An annual review meeting took place in June 2019.
Documents provided by the Council show Ms X requested a further review to follow a preferred format. This review meeting took place on 2 July 2019.
Y’s school completed the review paperwork. This said the current provision in the plan met Y’s needs but the outcomes should be amended.
Ms X she received no further contact from the Council following the review. And the Council has since accepted it did not progress the review.
Y started in year 9 from September 2019. Ms X says his school could no longer provide a small class size. Y struggled to attend a larger class and stopped attending school after a few days.
I have not seen any evidence to suggest Ms X told the Council Y was out of school prior to January 2020.
A further review meeting was held on 14 January 2020. The notes of this meeting show those present, including the Council, were concerned about Y’s attendance as he had only attended school for five days since September. Y said he could not cope in the larger classes. The school agreed to make a referral for home tuition as an interim measure while the Council completed the EHCP review.
Ms X chased the Council seeking progress on the EHCP review in February, May and August 2020.
Ms X complained to the Council on 7 September 2020. In summary she said: Y’s school accepted in January 2020 it could not meet his needs as it was unable to offer small class sizes; There had been no tuition since the January 2020 review; The Council had not completed the review, preventing any appeal; The Council had not found a new placement; Y remained out of school.
The Council replied on 24 September. In summary it said: It could not locate the review paperwork and had now asked Y’s school for this; Y’s school had told the Council: It made a referral to the home education service on 24 January: Its virtual offer was available during the Covid-19 lockdown from 16 March 2020 to the end of term; It discussed reintegrating Y back into school during calls with Ms X in early September; It had a small study centre building separate from the main body of the school. It proposed Y could receive his education in that building with only a small group of other pupils.
It could meet Y’s needs if he attended school.
It was concerned Y was out of school and suggested a meeting to resolve.
A meeting took place on 21 October 2020. In brief the Council: reoffered home education with transport (while it took place away from home due to Covid-19); confirmed it would complete the EHCP review; said it would reassess Y’s needs.
The Council says it sent a notice to amend Y’s EHCP on 28 October.
A report from the home education service says it started doorstep visits from November 2020 but Y would not engage.
In response to enquiries the Council explained there was a delay arranging the tuition from September to November due to the time taken for practical arrangements; including the meeting, gaining parental consent and transport.
In December Ms X chased a response to her complaint and the Council confirmed this was provided on 24 September.
On 31 December Ms X asked to escalate her complaint to stage 2 as the Council’s complaint response was inadequate and it had still not completed the review.
The Council provided its stage 2 response on 4 February 2021. This enclosed an investigation report which found the Council: did not send Ms X any paperwork following the review meetings and so held a further meeting in October 2020; issued a notice to amend on 28 October, but did not issue a final EHCP within 8 weeks of that notice; delayed providing paperwork and failed to complete the EHCP review within statutory timescales; did not make clear its reply of 24 September was a stage 1 response or say how to escalate further; should apologise, offer a payment for time and trouble, remind staff of the need to comply with statutory timescales, and issue a final EHCP.
The Council accepted the recommendations made and offered Ms X £250 for time and trouble. It referred her to the Ombudsman.
The Council issued a final EHCP on 25 February 2021 naming an independent special school. I note this EHCP was based on information from the December 2020 reassessment. The Council has provided a copy of the dated EHCP and the accompanying letter of 25 February 2021.
Ms X appealed to the SEN Tribunal regarding the needs, provision and placement set out in this plan.
Ms X contacted the Ombudsman in June 2021. We told her to come back to us after the Tribunal process completed.
Ms X contacted the Ombudsman again in February 2022. She said on 8 December 2021 the Tribunal had ordered the Council to issue a final EHCP within 5 weeks. However, it only issued this on 18 February 2022. This provided for Y to be educated other than at school.
In response to enquiries the Council outlined further action take to prevent delays in EHCP reviews in future. It said it would provide further instruction to SEND staff in relation to procedural compliance. It was also recruiting five Annual Review Officers responsible for ensuring that it completes annual reviews and shares relevant paperwork with parents and carers within the timescales set out in the SEND Code of Practice. Furthermore, it had invested in a new case management system to ensure one central repository for all paperwork supporting the work of the SEND Service.
In comments on a draft decision Ms X said: The review began in June 2019 and the meeting in July was intended to conclude the review. Therefore, the overall timeframe for failing to complete the review was 19 months from June 2019.
The Council attended a meeting with her and the school in September 2019 and so knew then Y was out of school.
She did not get the final EHCP until April 2021.
An annual review should have taken place in summer 2020 but this was missed due to the Council’s delay completing the previous review.
The home education service started with doorstep visits as this was all the Council could offer due to Y’s difficulties and COVID-19 restrictions. Y’s ability to engage was hampered as a result and because he had been out of education for so long. In any event she did not consider this offer suitable for Y’s age, aptitude, ability and SEN.
In response to further enquiries the Council said: It had no records evidencing its officer was involved in discussions about Y in September 2019. The evidence showed discussions took place between Ms X and the school from 13 September. The school suggested a way forward on 25 September but Y would not accept this as he did not trust staff to keep to the plan.
It acknowledges the Council’s case management system was not used effectively for the recording of correspondence or actions. It has put actions in place to address this through investment in a new case management system and providing training to case workers. Since the period in question, the officers responsible for Y’s case have left the Council.
It confirms it issued the final EHCP to Ms X on 25 February 2021. It also received a mediation certificate in early March in response to this, confirming Ms X did not wish to proceed to mediation. It did resend the same EHCP documents to Ms X in April.
During the COVID-19 pandemic it offered Y doorstep or online teaching or teaching at a base which was risk assessed as a Covid Secure Environment. However, Y was unable to undertake online teaching or teaching at a base due to his medical needs.
It considered the education provided was commensurate with Y’s health needs at the time, given his inability to leave the house and engage further in education.
It has no records to show Ms X raised concerns about the education offered.
In response to enquiries Ms X provided copies of her communications with the Council from September 2019. On review I note Ms X exchanged text messages with a Council officer regarding Y’s education from 12 September 2019 to October 2019. Within these messages Ms X makes clear Y is out of school.
Findings
The fault and injustice Ms X complains of was ongoing from 2019 to February 2021 when the Council completed the EHCP review and named a setting. I therefore consider Ms X’s complaint to us in June 2021 was in time.
Schools and councils must act within weeks of a review meeting. In this case I am satisfied the review meeting concluded in July 2019 and therefore the timescales applied from July 2019.
Following the review of July 2019 the Council should have told Ms X whether it would amend the EHCP by 30 July and then issued a final EHCP by 24 September 2019. However, the Council took no further action to complete the EHCP review process until January 2020. This is fault. Ms X suffered uncertainty and a delayed right to appeal. This is injustice.
Y stopped attending school from September 2019. On review of text messages provided by Ms X I am satisfied the Council knew Y was not attending. Although some action was taken by the school to support Y to attend, this was not successful. At the very least, there was a missed opportunity for the Council to act itself to ensure Y received education in school or otherwise. The Council’s lack of action from September 2019 to January 2020 amounts to fault. I am satisfied on balance Y missed education as a result. This is injustice.
It is clear there was an issue with the Council’s record keeping on this case. This is fault. I note the Council has recognised this and taken action to improve its records. I am satisfied with its proposed actions.
Following the review of January 2020 the Council should have told Ms X whether it would amend Y’s EHCP by 11 February and then issued a final EHCP by 7 April 2020. However, the Council took no further action to complete the EHCP review process until September 2020. This is fault. Ms X suffered uncertainty and a delayed right to appeal. This is injustice.
The Council knew Y was out of school in January 2020. Although Y’s school offered home tuition it was the Council’s duty to ensure Y received suitable full time education and that his SEN needs were met while out of school. There is a lack of any evidence the Council took any steps in this regard, until Ms X complained in September 2020. This is fault. I am satisfied on balance that Y missed education as a result. This is injustice.
While the Council has provided reasons for its delay in arranging tuition from September to November 2020, it remains that this was a further period where the Council did not ensure Y had access to suitable education. This is fault. Y missed education as a result. This is injustice.
From 24 September 2020 the Council again agreed to progress Y’s EHCP review. The Council has provided no good reason for its delay in issuing a notice to amend on 28 October. It should have issued a final EHCP by 23 December at latest but did not do this until 25 February 2021. This is fault. Ms X suffered uncertainty and a delayed right to appeal. This is injustice.
From November 2020 the Council offered home tuition, initially as doorstep visits. Both parties say this was the only option at the time given COVID-19 restrictions and Y’s needs. I therefore consider the Council could rely on the exception; that full time education was not appropriate for Y at that time. There is no evidence Ms X complained the provision was not suitable for Y in order for the Council to address any concerns. And there is evidence to show Y did not engage. I recognise one reason for Y’s lack of engagement may have been the time spent outside of education. However, it remains that I cannot say Y missed further education through the Council’s fault. Once the Council issued the final EHCP in February 2021, the Council named a school for Y to attend. As this was subject to appeal I cannot consider any further fault or injustice arising if Y did not attend this setting.
I am satisfied the Council sent Ms X the final EHCP on 25 February 2021 as per its letter of that date. While Ms X may not have received this, I cannot say this was through any fault of the Council.
Overall the Council delayed completing Y’s EHCP review for 16 months from September 2019 to February 2021. The Council’s offer of £250 for time and trouble does not adequately remedy the distress, uncertainty and delayed right to appeal arising from this. I will therefore recommend a higher remedy payment.
I acknowledge a further annual review was missed due to the Council’s delay. However, I cannot say this resulted in any further distress, uncertainty or missed opportunities than that already considered.
Overall Y missed education from September 2019 to November 2020, approximately 11 months term time only. I will recommend a payment to remedy this in line with the Ombudsman’s Guidance on Remedies.
Sometimes we can say but for the council’s fault, a child may have got the provision directed on appeal sooner. However, due to the time passed from when a review should have been completed in September 2019 to the Tribunal order of December 2021, changes in Y’s circumstances over that period and the information available at each stage, I cannot say Y would have got such provision earlier, but for the Council’s fault.
I am satisfied with the Council’s taken and proposed actions to improve its EHCP review process and record keeping. However, I consider it should also remind staff of their s19 duties.
Agreed action
To remedy the injustice set out above the Council should carry out the following actions within one month of the date of my decision: Provide Ms X with a further written apology; Pay Ms X £4400 in recognition of Y’s missed education; Pay Ms X £500 for distress and uncertainty; Remind those staff responsible for children’s education that the s19 duty under the Education Act 1996 places a duty on the Council; the Council should not rely on a school to meet this duty.
The Council has accepted my recommendations.
Final decision
I find the Council at fault for delay in its EHCP review process and failing to arrange suitable education for Y while he was out of school. The Council has accepted my recommendations and I have completed my investigation.
Parts of the complaint that I did not investigate I did not investigate Ms X’s complaint that the Council delayed issuing a final EHCP following a Tribunal order of December 2021. This is because it was premature at the time of her complaint to the Ombudsman. It is a separable issue and it is reasonable to allow the Council the opportunity to investigate and respond first.
Investigator's decision on behalf of the Ombudsman