The Ombudsman's final decision
Summary: There was a failure by the Council to secure provision in an Education, Health and Care (EHC) plan when the NHS did not do so. There was also delay in updating an EHC plan to name a post-16 placement and providing a right of appeal. This led to some special educational provision being missed. There was no fault in failing to secure suitable education during COVID-19 when a place in a school resource centre was made available. The Council will apologise, make a financial payment and implement service improvements.
The complaint
Ms X has raised complaints about the Council’s handling of her child’s special educational needs (SEN). Her complaints include: The Council failed to provide occupational therapy (OT) and speech and language therapy (SLT) in an Education, Health and Care (EHC) plan from 2017.
The Council failed to identify and apply for additional exam arrangements and failed to tell Ms X what reasonable adjustments would be made Her child has not made appropriate educational progress Her child has not had one-to-one adult support with their learning The Council did not use its reasonable endeavours to provide suitable education during COVID-19 when education was disrupted The Council delayed amending the EHC plan to name a post-16 placement The Council did not involve her child in reviews and rewrote the EHC plan in a way that did not reflect him.
The Council failed to adhere to reasonable adjustments she had requested that her dealings with the Council be in writing rather than by phone or in face-to-face meetings The Council refused to refund legal and private tuition fees she incurred.
A transport complaint.
The Council carried out an audit of social care direct payments.
Ms X says the Council’s actions has caused distress and financial loss and that her child’s education has been adversely affected, meaning they under-performed in their GCSE exams.
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 provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide: we could not add to any previous investigation by the organisation, or further investigation would not lead to a different outcome.
(Local Government Act 1974, section 24A(6)) The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), 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) Before considering a complaint, the Ombudsman should be satisfied the Council has had an opportunity to investigate and respond to a complaint. (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) 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) 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.
We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended) A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether an organisation has properly taken account of an individual’s rights in its treatment of them. Organisations will often be able to show they have properly taken account of the Equality Act if they have considered the impact their decisions will have on the individuals affected and these decisions can be challenged, reviewed or appealed.
The reasonable adjustment duty is set out in the Equality Act 2010 and applies to bodies which carry out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people. Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.
This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
If we are satisfied with a council’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)
What I have investigated I have investigated events which took place from March 2019 until July 2021.
We do not usually investigate late complaints unless there is a good reason why someone could not complain to us sooner. I am satisfied Ms X could have raised concerns about events prior to March 2019 during a previous investigation about her child’s special educational needs (SEN) by the Ombudsman.
We investigate complaints where we are satisfied the Council has had an opportunity to investigate and respond to a complaint via the local complaint process. (Local Government Act 1974, section 26(5)) I have therefore investigated events up to July 2021 when Ms X received the Council’s stage two response to her complaint and the school placement ended.
I have not investigated the actions of the School; these are outside our jurisdiction.
Part of Ms X’s complaint relates to the extent the Council took her child’s views into account when drafting the section of the EHC plan that sets out Parent and Child views (Section A). I have not investigated this part of the complaint. While Section A is not appealable, in practice disagreement about the wording of Section A has been resolved through the working document process during an appeal of other parts of the EHC plan. There is nothing further I can achieve by investigating this aspect of the complaint. (Local Government Act 1974, section 24A(6)) I have not investigated the transport complaint. This has been fully resolved via the local complaints process. Ms X has had all costs including legal fees reimbursed. I cannot add to the outcome that has already been achieved. (Local Government Act 1974, section 24A(6))
How I considered this complaint
I have considered information provided by Ms X and the Council.
I have considered relevant law and guidance including: The Children and Families Act 2014 associated Regulations and Code of Practice The Coronavirus Act, Regulations and Guidance The Ombudsman’s Guidance on Remedies The Ombudsman’s Focus Report Unprecedented pressure: learning from complaints about council and care provider actions during COVID-19 pandemic.
Ms X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
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.
What I found
Chronology of events This chronology covers key events. It does not cover everything that happened, but all evidence provided has been carefully considered.
Ms X’s son, whom I shall refer to as Y, attended a resource centre within a mainstream school but also accessed some mainstream lessons with support. Y had an EHC plan issued by the Council in March 2019. An annual review was held in March 2020, the Council did not amend the Plan after that review.
We investigated a complaint about delay in issuing Y’s EHC plan of March 2019, which we upheld. We did not find the delay had caused significant injustice. We issued our decision in July 2019, but the investigation covered the period up to March 2019.
In March 2020 schools closed due to COVID-19 except for vulnerable and keyworker pupils. Y was provided with remote learning by his school. Ms X raised some concerns how Y would manage this. The School said someone would be in the resource centre daily and subject teachers could be contacted directly. It said all Y’s usual lessons would be available online. Ms X corresponded with the school about the provision in April. Ms X did not raise any concerns about the provision with the Council at that point but did chase up action points from the annual review. As Y was due to transfer to post-16 education in 2021, Ms X asked the Council to obtain updated professional advice.
On 1 May 2020 the Secretary of State issued a notice under the Coronavirus Act to give more flexibility to councils in dealing with EHC Plans and provision. It changed councils’ absolute duty to ‘secure’ the education provision in an EHC plan to one of using ‘reasonable endeavours’ to do so. This was a temporary change applying from 1 May to 31 July 2020. At the end of this period, councils’ usual duties returned.
The Government also issued guidance, ‘Education, health and care needs assessments and plans: guidance on temporary legislative changes relating to coronavirus (COVID-19)’. The guidance noted it may be difficult to provide all elements of support in an EHC plan, for example where the child is not attending their education placement or services are reduced through illness or other COVID-19 related restrictions. Factors to be considered included the availability of those who should deliver what was needed and whether anything could be done differently to deliver provision.
Y was offered a place in school from late April 2020, but Ms X declined this.
In late May Ms X told the Council she had raised concerns with the School about the removal of teaching assistant support (including prior to COVID-19) and that the remote learning was not differentiated. Ms X said she may need support from the Council if the School did not provide a satisfactory response. Ms X also chased an Educational Psychology (EP) assessment. The Council said face-to-face assessments had stopped due to COVID-19, but an EP would look at the case and advise.
In June schools reopened to more pupils and Y was again offered a place in the resource centre. Ms X again declined. Ms X says her understanding was that pupils in school were doing the same online learning as those at home. Ms X also says Y was identified as a cause for concern in not keeping up with online learning.
The Council spoke to Ms X in July. Ms X agreed to a phone call although she had previously stated she preferred email contact as a reasonable adjustment. The Council offered to be involved in a meeting with school. Ms X replied that she considered the Council should be leading on the issue of whether Section F provision was in place. The Council said it would arrange a meeting.
The meeting took place in early September, by which time Y had returned to school.
In June 2020 the Council says Ms X and her child will have received an invitation to make a preference for post-16 placements for September 2021. The Council says this is so it can consult and name placements for pupils with EHC plans by March 2021. It says Ms X did not reply.
In September 2020 the School, Council and Ms X met to examine what provision from Section F of the EHC plan was in place. It was noted Ms X’s child was discharged from NHS SLT and OT a long time ago. It was agreed that: School would monitor Y’s progress and update Ms X The EP would be asked to contact Ms X about executive functioning skills A learning support plan, revision and exam techniques would be shared with Ms X.
Ms X says these actions did not happen.
In September 2020 the School reminded Ms X she needed to name a preference for post-16.
In October 2020 Ms X found out the School did not have a copy of the correct EHC plan.
Ms X also complained to the School about arrangements for mock exams.
In November 2020 Ms X instructed solicitors who wrote alleging the Council was failing to secure special educational (Section F) provision and had failed to make reasonable adjustments for exams. They said Ms X was having to fund a private tutor as Y was behind with learning and an EP assessment had not taken place.
The Council denied agreeing an EP assessment would take place, only that the EP would be asked to consider the case. It said Y had not followed the GCSE remote learning or completed coursework. The Council refused to fund tuition as catch-up provision was available within school. The Council said the School had put access arrangements in place after the first mock exam.
In November 2020 the Council consulted a post-16 placement. It says the School told it Ms X’s child wished to apply. Ms X disagreed with this preference and in February 2021 the Council consulted two additional placements requested by Ms X. The Council says this is when it became aware of her preferences. There is correspondence between Ms X and the School in December when Ms X indicated she considered Y required updated assessments to inform post-16 choices.
A mediation meeting was held in February 2021. The Council agreed to refer for updated EP, OT and SLT advice before the next annual review in March. Ms X said the Council only did so due to the threat of judicial review. The EHC plan should have been updated by March 2021 to name the next placement but was not updated until advice from OT, SLT and EP had been obtained. The Council said it was in the child’s best interests to obtain this evidence before updating the EHC plan.
The Council issued a draft amended plan in April and a final plan in May naming Ms X’s preferred placement. A further final Plan was issued in July after therapy advice was received. Ms X appealed the content of this Plan to the SEND Tribunal as she says therapy and teaching assistant support was removed. The Council conceded the appeal in November 2021. The appeal did not alter the college Y attended from September 2021, just the provision to support the placement.
In May 2021 the Council’s social care department sent Ms X a letter advising it was auditing her child’s direct payments. Ms X found this distressing and asked for direct payments to stop rather than complete the audit at that time. Her solicitors said the Council should have found out why Ms X wanted the payments to stop. Ms X asked the Council to pay her legal costs for this issue.
Analysis Failure to provide SLT and OT Ms X states her child has not received SLT or OT since 2017. I have not investigated the period prior to March 2019. I have exercised discretion to investigate the period from March 2019. Although this is more than twelve months before Ms X came to the Ombudsman, Ms X started to raise this from Summer 2020 and the Council has addressed it in its complaint responses. The impact of COVID-19 meant schools were partially closed for long periods in 2020 and 2021.
The Council’s response to the complaint was that SLT and OT had discharged Ms X’s child in 2017.
The Council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty is owed personally to the child and is non-delegable. This means if a council asks another organisation, such as the NHS, to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135) Y’s EHC plan required three annual contacts with SLT in Section F (special educational provision) and three annual contacts with OT in Section G (health). The therapists would share strategies during these visits for School to implement. The Council is responsible for the delivery of Section F, not Section G provision. It was responsible for the missed SLT contacts, but not for any missed OT contacts, although it was still responsible for the School implementing OT strategies.
I find Y missed out on SLT and OT strategies in his EHC plan between Spring 2019 and Spring 2021. However, Y did not attend school between March and September 2020 even though a place in school was available. Most therapists also stopped visits during the two COVID-19 ‘lockdowns’ (March 2020 and January 2021). Provision may have been affected in any event at those times, although if Y had attended school, then remote support may have been possible.
Failure to identify and advise of exam arrangements Differentiated exam arrangements were not in place when Y sat his first mock exam in Autumn 2021, however this was not fault by the Council as the arrangements were made by School. The School responded to concerns raised by Ms X and ensured extra time to complete the exam was in place by the second mock exam. Ms X was unhappy the School went ahead with the second mock exam when she had withdrawn consent. This was an issue between Ms X and the School. The actions of the School are not within the scope of this investigation.
I would not have expected the Council to have become involved in exam arrangements. Day to day implementation of the EHC plan, curriculum and exam arrangements are matters reasonably delegated to schools. If the matter had not been resolved between the School and Ms X then I would have expected the Council to intervene, but this was not necessary. My understanding is that appropriate arrangements were in place for the public exams in Summer 2021.
The Council did not use its reasonable endeavours to provide suitable education during COVID-19 when education was disrupted During the first COVID-19 ‘lockdown’ councils were asked to conduct risk assessments in conjunction with schools and families to determine whether a child’s needs could be met safely or more safely in school and to keep the risk assessment under review.
I have not seen Y’s risk assessment but assume that as he was offered a place in school in late April 2020 that the outcome of the assessment was that his needs would be better met in school due to him having an EHC plan. The Government guidance indicates pupils with EHC plans were generally expected to attend school, although families were not compelled to ensure they attended.
While the Government guidance modifying the duty to provide special educational provision only came into effect in May 2020, in practice the Ombudsman takes the view that councils and schools faced the same difficulties providing education in the period from March to May 2020 when most services were closed.
As well as offering a place on site, the School provided remote learning and offered direct contact with individual teachers and the resource centre. It is unclear whether Ms X and Y took up the offers of direct contact with individual teachers.
I do not find evidence the Council failed to provide suitable education, including for Y’s SEN, between March and July 2020. A place in the resource unit was available to Y from late April 2020. It was understandable Ms X had concerns on health grounds about Y attending school, but her decision for Y to remain at home when a place was available within school was not fault by the Council. Y fell behind with his remote learning, but it was not fault for the Council not to provide one to one support or therapy at home, when it had offered Y his usual place in the resource centre in school.
The Council delayed amending the EHC plan to name a post-16 placement There was some confusion about the family’s choice of placement. The Council consulted a placement which the School suggested was Ms X’s preference, this was not fault by the Council. Indeed, the Council was entitled to consult any placements it considered may be suitable.
When Ms X clarified her preference, this placement was consulted and offered a place.
There was delay in issuing a final amended EHC plan naming the post-16 placement. This should have been issued by 31 March and was not issued until May 2021. While Ms X did request further assessments which delayed the issue of the Plan, the Council did not hold the annual review meeting until March. The Council should have timed the review meeting earlier to ensure it could complete the annual review, including issue of a final Plan by 31 March. The reason why the Government sets a deadline of 31 March is so if parents disagree with the placement there is enough time for an appeal to be heard by September. As the review was held so close to the deadline it was inevitable the deadline would be missed. This delayed Ms X’s right of appeal so the SEND Tribunal could not hear the appeal in time for the new term.
It is not for the Ombudsman to advise what assessments should be completed. This is a matter for the Council’s judgment. If families are unhappy with the description of their child in the EHC plan or the provision allocated, they can use their right of appeal to the SEND Tribunal. The Council issued two versions of the final plan to incorporate the outcomes of assessments so as not to delay the appeal right further. Ms X could have used the appeal right granted in May.
The Council failed to adhere to reasonable adjustments The Council has apologised for not fully respecting Ms X’s request for all communication to be in writing. It has also made a record to ensure her reasonable adjustments are adhered to in future. An apology is an appropriate response to this aspect of the complaint; I cannot add to the outcome achieved via local complaint resolution.
Audit of social care direct payments Councils have to check that families are using direct payments correctly. I understand that Ms X had not been previously audited and so the request came as a surprise. Ms X may have felt the timing of the review was related to her raising other complaints. We would not criticise councils for auditing direct payment accounts, if there is fault it appears to be that the Council had not audited Ms X’s account for a long time.
Ms X asked for the payments to stop. The Council provided the payments to Y as a child in need under Children Act 1989. The child in need process is a voluntary one, families with disabled children do not need to engage with children’s social care if they do not want to or to accept support offered. It was not fault for the Council to take Ms X at her word and cease payments. There is no basis to refund Ms X’s legal costs relating to the direct payment audit which was an appropriate step for the Council to have taken.
Injustice The delay in holding the transition review and missing the post-16 deadline delayed the right of appeal and the appeal being resolved. If there had not been delay by the Council in the timing of the review, the appeal would, on the balance of probabilities, have been resolved before September 2021. Y would have started his placement with all the additional provision achieved via appeal in place. The impact of delay in Spring 2021 was that Y missed out on this provision for three months in Autumn 2021.
Y did not receive all the speech and occupational therapy input he was entitled to between 2019 and 2021.
We do not generally make a recommendation to refund legal costs where someone has exercised a personal preference to use solicitors when they can use our service and the complaint process for free. I am not persuaded there is any basis to recommend payment of legal costs in this case.
Agreed action
Within four weeks of my final decision: The Council will apologise to Ms X and Y for the faults identified.
The Council will pay Y £600 to acknowledge the loss of therapy provision and the impact of the delayed appeal in 2021. This figure takes into account the period in 2020 when Y did not attend school although a place was available.
The Council will pay Ms X £200 for her time and trouble bringing the complaint and the distress caused to her by the faults identified.
Within eight weeks of my final decision the Council will: Remind officers that the legal duty to secure special educational provision in an EHC plan is non-delegable.
Ensure it has processes in place to check provision in an EHC plan is secured when a new or amended EHC plan is issued.
Remind officers to diary transition review meetings in time to complete the annual review paperwork and consult placements so the new placement can be named by statutory deadlines.
Final decision
There was a failure by the Council to secure provision in an EHC plan. There was also delay in updating an EHC plan to name a post-16 placement. There was no fault in failing to secure suitable education during COVID-19 when a place in a school resource centre was made available. I am satisfied the agreed actions set out above are a satisfactory remedy for the injustice caused.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman