The Ombudsman's final decision
Summary: Hampshire County Council has failed to put in place all the education and special education provision in the complainant’s son’s Education, Health and Care Plan since autumn term 2021. There was also delay in completing a review of the EHC Plan. These faults have caused injustice and the Council will take the action detailed to recognise and remedy the injustice caused.
The complaint
The complainant, whom I shall refer to as Ms B, says the Council failed to ensure that Section F provision in her son, X’s, Education, Health and Care (EHC) Plan has been fully delivered since September 2021. Specifically, she says it: failed to properly plan and renew the contract with X’s 1:1 teacher sufficiently early to ensure this continued from September 2021. This failure resulted in the 1:1 teacher being lost and a period during which the tutoring provision detailed in the EHC Plan was not made for X; lost emails from X’s 1:1 teacher before September when she told the Council about the need to renew the contract. This contributed to the failure to ensure this arrangement was put in place; failed to make other provision detailed in the EHC Plan since September 2021 including provision of a personal budget; delayed paying the new tutor when he submitted invoices thereby risking the provision; failed to provide her with a named lead person as detailed in the EHC Plan; handled her complaint about these matters poorly and wrongly decided the complaint should not be upheld; and failed to meet its duty to promote integrated provision under Section 25 of the Children and Families Act 2014.
I have decided to also investigate a complaint the review of X’s EHC Plan as this matter has now been fully considered under Council’s complaints procedure and the issue is highly connected to the matters raised in the complaint summarised above.
The injustice Ms B claims is loss of provision for X and avoidable distress for her and X.
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) 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 discussed the complaint with Ms B and considered the written information she provided with her complaint. I made written enquiries of the Council and considered all the information before reaching a draft 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.
Ms B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
What should have happened 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.
There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
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 procedure for reviewing and amending EHC plans is set out in legislation and government guidance. Councils must review EHC Plans at a minimum once every 12 months.
Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) Where a council proposes to amend an EHC plan it should start the process of amendment without delay. 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) Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196) Education Other Than At School (EOTAS) is provision that may be suitable for a child for who education in a school setting is not appropriate. It means the child has education provision delivered somewhere other than a school. If this is named provision in an EHC Plan the Council remains responsible for arranging and paying for the provision and for ensuring the special needs provision is made.
Section 25 of the Children and Families Act 2014 says that councils must exercise its functions under this part of the Act with a view to integrate educational provision with health and social care provision where it considers this will promote the wellbeing of children with special educational needs or improve the quality of special educational provision. Section 42 of the Children and Families Act 2014 states that the CCG must ensure that health provision specified in an EHC Plan is made available to the child. The statutory guidance says that CCGs need to satisfy themselves that they have arrangements in place to agree health provision when participating in EHC Plans.
What happened X is 12 years old. He has not attended school since 2019. He has a number of medical diagnoses including Autistic Spectrum Condition, Attention Deficit Hyperactivity Disorder symptoms and intense anxiety.
A final amended plan was issued in April 2021. In section F of this Plan, it is stated that X was not in school and was in receipt of an EOTAS package that was partially funded by a personal budget and with a plan to reintegrate him back to school “as soon as practicable”. Provision included: one hour a week of Speech and Language Therapy (SALT); term time teaching from a named qualified teacher experienced in supporting children with complex needs “…employed by the named school”. This was to consist of 12 teaching hours and 3 hours for the teacher to liaise with other professionals. A second adult would support X for 15 hours a week so that he had 2 to 1 support during curriculum teaching and at a coding club (3 hours weekly in term time); attendance at a named outdoor school placement one day a week in term time to encourage social opportunities; one hour a week Occupational Therapy (OT) with a second adult in attendance; a personal budget to cover: a laptop 2 hours a week for activities related to engineering a personal assistant for X for 10 hours a week 2 hours a week for other activities including physical and enrichment activities.
The Plan states the entirety of the provision is made as EOTAS, that the education programme is led by the school who takes the role as lead practitioner. As lead practitioner the school was tasked with liaising with CAMHS and arranging annual reviews. It was also required to arrange a termly meeting for all providers to evaluate the EOTAS and set targets with the aim of getting X back into school as soon as practicable. The Plan states that, in order to transition back into school, X would need a gradual introduction by way of short visits and support from those working with him to make him feel safe.
There was no school named in Section I. The section is left blank.
Arrangements for education from September 2021 I understand from the Council that in March 2021 Ms B expressed interest in place for X at Q School, an independent special needs school which was in the process of being approved and registered. The Council says it consulted with Q School then.
In late June 2021 the Council confirmed that, following approval and registration, a place had been arranged for X in year 7 at Q School from September 2021. The Council confirmed there would be a transition programme. In response to the offer Ms B emailed the Council to say she and X were “delighted” and “I’m guessing transition arrangements, including details on retaining current providers during the transition with go via Q School”. She said she had emailed the primary school about retaining X’s teacher who was paid by the primary school. The Council’s view is that Ms B accepted the place at Q School at this time. The Council says some transition visits took place before the end of the summer term.
In late July following a transition meeting with Q School, X’s primary school SENCo emailed the Council to query how X’s teacher would be retained as her contract with the primary school was due to end at the end of August. She also said that she understood from Ms B that during the initial period at Q School X would be spending most of his time out of class with an LSA and that Ms B was concerned this would not meet the requirements for his learning to be provided by qualified and skilled teacher.
The Council issued a revised amended EHC Plan in late July 2021 naming Q School from September 2021. Around the same time Q School contacted Ms B with some details about the start of term. In response Ms B contacted the School’s head of admissions to ask that X’s details were not provided to a particular member of staff in the school due to previous personal issues with that member of staff. Ms B later added that she did not want X to have any direct contact with this member of staff. The head of admissions responded to say she could not agree to this as the school was small and all staff were required to work across the school with all children. The head of admissions forwarded the email trail to the Council. The head of admissions also emailed the Council to say that the placement could not proceed with such stipulations from Ms B and asked for the Council to confirm the situation with Ms B and that she still wanted to pursue the placement at School Q. In response the Council emailed the School to say it intended arranging a review and then a right of appeal would be available for Ms B should she want to challenge School Q being named in the EHC Plan.
Ms B then submitted a complaint about the Council issuing a revised amended plan without following the proper process including arranging a review beforehand.
On 12 August X’s tutor (until July 2021) emailed the Council to say that it had been suggested by School Q that she continue to support X during his transition to the school and asked for clarification on the arrangements for this. Having not received a response around a week later the teacher emailed the Council again about this. Ms B also emailed the Council about this.
Q School emailed the Council in late August to say that Ms B had declined a meeting to discuss progress with the school in September and requested a discussion with the Council about how to move forward.
In late August the Council issued a decision on Ms B’s complaint at stage 2 of the complaints process. The decision upheld Ms B ‘s complaint that the amended EHC Plan was issued without the proper process having been followed. The Council apologised for this and said the Plan had been withdrawn and that a review was being arranged. The Council also said that staff training as being put in place. It declined to offer a financial remedy for this which Ms B had requested.
In early September Ms B chased up what was happening and said that the reason X had not started at school was the failure to resolve the contract with his 1:1 teacher. She also said she had not heard anything about the personal budget for the EOTAS provision.
Review of the EHC Plan The Council arranged a review of the EHC Plan for early October 2021. The Council says it initially tried to arrange this for early September due to the problems with the placement at Q School but says that Ms B and School Q asked for the meeting to be delayed until late September so they could attend. The Council says that Ms B then said she would not agree to the review going ahead at Q School and that in mid-September they withdrew their consent for the school to retain any records related to X.
The review meeting went ahead in early October and the Council says it wrote to Ms B in late November confirming it intended to amend the Plan. I have not seen a copy of that letter but accept it was sent.
The Council issued a draft amended EHC Plan in April 2022. The Council asked Ms B to name a provider or school for X if there was one she would like to be considered. The Council says Ms B has not replied to this draft. As I understand it the Council has not yet proceeded to issue a final amended Plan.
The lead practitioner is detailed in the April 2021 EHC Plan as the primary school that was employing the tutor. It seems reasonable to assume that this would have transferred to Q School had the placement there gone ahead. The role was in fact taken over by a member of staff in the Council’s SEN team. This was confirmed in December 2021 with the Council saying the named officer “remains your single point of contact”. In its comments to me the Council says this named officer was the single point of contact from mid-October 2021. Evidence in the form of recent emails confirms the same person is still this point of contact.
What was actually provided from September 2021 The April 2021 EHC Plan remained in place in September 2021 so the provision detailed in that should still have been provided after it was clear that the placement at School Q not going ahead.
The Council accepts there was a delay in re-establishing direct payments for the EOTAS provision in September but says the direct payments were back in place from late September 2021.
In mid-November 2021 the Special Needs team emailed Ms B to confirm that the Council agreed to maintain the EOTAS package with the addition of a technology tutor. Ms B had in fact identified a tutor who could provide the technology teaching in September 2021. The Council suggested that, as the direct payments in place were already complex, the SEN team would commission and pay the technology teacher directly. The Council agreed the technology teacher’s payments would be backdated to September which is when he began teaching X. The Council asked Ms B to advise of the costs of the tutor to date so it could arrange to reimburse Ms B for the costs already incurred and for November and the Council would then pay directly from December. The Council confirmed the EHC Plan would be amended to reflect continuation of the EOTAS package and to add the technology provision in to Section F.
There was seemingly a delay in payments to the technology tutor in December as the tutor and Ms B were chasing this up. I understand the SEN team was, at that time, seeking a form from Ms B detailing what had been provided by the technology tutor to that point. It says the payment was processed on 22 December 2021.
The Council has accepted there was some delay in paying the new tutor but says this was caused by the Council checking the amounts invoiced for. It argues X was not disadvantaged as the tuition continued.
The Council also accepts there were some issues with payments in 2022. It says the reason was the amounts invoiced were above the agreed amount. There were delays in February, March and April which were resolved in May when, having investigated, the Council agreed to pay the tutor £10 more a week than had been agreed but for which he invoiced. The Council says the tutor also invoiced for an additional £500 for “technological activities” in April. This had not been agreed and the Council says it has asked the tutor to provide a breakdown of these costs to consider them further.
Stage 3 complaint in December 2021 The stage 3 decision letter states: a complaint relating to provision of services by the Clinical Commissioning Group (CCG), which Ms B considers falls under the Council’s remit as a result of Section 25 of the Children and Families Act 2014, was a matter for the CCG; it accepted that some of the emails the tutor who was working with up to July 2021 sent to the Council over the summer period regarding any continuation of her contract, were not found by the Council in its records; the Council accepted there was a delay in renewing the personal budget in the autumn term; confirmed the name of the case manager at the Council who was now overseeing the provision as X was no longer attached to a school; the Council contacted an agency that had previously provided tutors for X in mid to late September 2021 before it was aware Ms B had identified her own tutor who could provide tuition across subject areas. The Council said the agency it had identified met Ms B and X in October but which time X had sufficient tuition in place but advised Ms B that she could go back to the agency if more tuition was needed for X in future.
Further complaints in 2022 The Council issued stage 2 and 3 responses in April and May 2022.
The stage 2 response addressed complaints about the delay in completing the annual review process following the review meeting in early October 2021, a failure to arrange a professionals meeting when Ms B asked for this and failure to make section F provision for X. The response stated: the Council upheld the complaint about the failure to complete the annual review process in a timely manner having taken account of a recent high court judgement which stated the timescale for completion of amendments was 12 weeks from the date of the review meeting. It also said a recently issued draft statement was issued incorrectly and was being amended and would be reissued shortly; upheld the complaint that regular professionals meetings had not been arranged as detailed in X’s EHC Plan and provided dates when these meetings would take place up to the end of the summer term in July 2022; upheld the complaint that the provision made did not appear to accord with what was being commissioned and what is detailed in the Plan stating what was missing included: 4 hours of direct teaching a week 2 hours planning and liaison time for the tutor; 30 mins of coding tuition to X; 2 hours engineering tuition to X; regular professionals meetings The Council said this was being investigated further with a view to resolving it promptly.
The stage 3 response was provided in May and focussed on Ms B’s request for a remedy for the complaints upheld. The Council accepted the resolution for the missing provision had not been completed yet and said it would be in the following 2 weeks. The Council also said a referral for a science tutor would be made. The Council offered Ms B a payment of £250 to recognise the time and trouble caused to Ms B.
Was the Council at fault and did this cause injustice?
Arrangements for education from September 2021 The Council issued a final amended Plan naming Q School in late July 2021. It did so without having followed the proper processes around this. It subsequently withdrew this Plan having accepted its actions were not correct. I agree the Council did not follow the proper process and so its actions amount to fault. I do not however consider this caused injustice beyond frustration given the speed the draft amended plan was withdrawn.
In the summer of 2021 Q School was Ms B’s preferred placement and she was seemingly happy with it when the Council confirmed the offer of the place in June. The Council could not have known that Ms B would withdraw her agreement to X going to the school in August and it was not until the head teacher of Q School told the Council about this that it became aware the placement was unlikely to start at the beginning of the autumn term. It seems the reason that X did not start at Q School was not that the Council had failed to make arrangements with his former tutor but that Ms B no longer wanted the place at Q School due to her concerns about a member of its staff. The Council had understandably assumed that the tutor would not be needed as X was starting at a school. I can see nothing in the EHC Plan dated April 2021 that specifically provided for the tutor to continue to work with X as part of his transition to school. For these reasons I have no grounds to conclude that not making arrangements for the tutor to continue working with X following the planned transition to Q School amounts to fault. Consequently, I find no injustice as a result of any fault in the loss of emails from the tutor about this over the summer period.
Provision since September 2021 and review of the EHC Plan The Council tried to arrange a review quickly when it because clear that the transition to Q School was not going ahead in September 2021. It did not take place until early October. Any delay was not attributable to the Council however but was caused by the availability of other parties. I therefore find no fault that this review did not happen earlier. The April 2021 Plan remained in place and so the Council was required to continue to provide what was detailed in that Plan. However, as it believed X would be starting school in September it had not made arrangements for tuition under EOTAS to continue as it assumed this would not be needed. The Council contacted an agency that had provided tuition to X in the past in mid-to-late September but by then Ms B had already identified a tutor who was able to provide most of the tuition detailed in the EHC Plan with the exception of that listed under 44 above. I find the Council’s failure to ensure full provision was made amounts to fault that has caused X injustice as he has missed out on some EHC Plan provision from September to the current time.
The Council has accepted it did not complete the annual review process in a timely manner. I accept this finding and consider it amounts to fault that has caused injustice in the form of uncertainty.
There was clearly some delay in paying the tutor identified by Ms B in the Autumn term as a result of the direct payment not being made to Ms B. Even though I can see the Council had assumed this would not be needed given it believed the school place would have commenced, I consider the delay in resolving this issue amounts to fault that caused injustice to Ms B and X in the form of avoidable anxiety, uncertainty and frustration. There are no grounds for me to consider there was fault in any delays in payments in 2022 as they seem to relate to invoices above the agreed amounts for which the Council understandably wanted more information.
Complaints e), f) and g) The contact person for the Plan was the tutor up until the end of the summer term. This would have had to change with the planned move to Q School in September. The Council provided one of its staff as the point of contact from mid-October after the school placement did not go ahead. I recognise the Council could have arranged this slightly earlier but on balance do not consider this relatively short delay, given the late changes in arrangements and the delayed review meeting, amounts to fault.
I do not consider the Council’s handling of Ms B’s complaint has been poor. As outlined above the Council has upheld many of the complaints Ms B has made since autumn 2021. I recognise that Ms B has asked the Council to remedy the complaints that were upheld and is not satisfied with the time and trouble payment offered. I will consider a remedy for the complaints where I have found fault and injustice below.
Ms B complains the Council failed to meet its duty to promote integrated provision under Section 25 of the Children and Families Act 2014. Section 25 is a broad requirement for councils to promote integration of services for children with special needs. However Section 42 of that Act clearly and specifically states that where there is an EHC Plan in place it is the responsibility of the CCG to ensure provision is made. For this reason I find no fault in relation to this part of the complaint.
Recommended action When recommending a remedy we seek to remedy the injustice caused as a result of identified fault. The Ombudsman’s guidance on remedies states: for injustice such as avoidable distress we usually recommend a symbolic payment to acknowledge the impact of the fault as we cannot put the complainant in the position they would have been had the fault not occurred; distress can include anxiety, uncertainty, lost opportunity and frustration; where there has been a loss of education, the Ombudsman recommends between £200 to £600 per school month. The amount takes into account a variety of factors including the child’s special educational needs and whether any partial provision was made.
To remedy the identified fault the Council should within a month of the final decision on this complaint: apologise to Ms B and X for the identified fault; pay £1900 To Ms B on behalf of X to recognise the impact of the partial loss of EHC Plan provision from September to the end of the Summer term in July 2022; immediately ensure that the ongoing missing provision is put in place; pay Ms B £200 to recognise the uncertainty caused by delays in completing the review process; and pay Ms B a further £200 to recognise the injustice caused by the delays in making payments for tuition.
I make no recommendations for any procedural improvements regarding the arrangements for, and the conduct of, annual reviews of EHC Plans. This is because these have already been identified in other recent complaints and so I understand they are already being addressed.
Final decision
There was fault that caused injustice in the form of some missing EHC Plan provision since the Autumn term 2021. There was also delay in completing a review of the EHC Plan which has caused uncertainty. The Council will take the action detailed in paragraph 54 to recognise the injustice caused.
Investigator's decision on behalf of the Ombudsman