Summary: Ms B says the Council delayed completing a review for an education, health and care plan, failed to provide education to her son from September 2021, failed to put in place provision in his education, health and care plan from the same date and refused to obtain an up to date occupational therapy report. The Council delayed completing an annual review, gave Ms B wrong information, failed to provide education for most of the time Ms B’s son could not attend school, failed to put in place provision in his education, health and care plan and failed to consider whether an updated occupational therapy report was required. An apology and payment to Ms B, alongside procedural remedies already agreed following other Ombudsman investigations is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Ms B, complained the Council:
• delayed reviewing her son’s education, health and care plan (EHCP);
• failed to provide full-time education to her son from 10 September 2021;
• failed to put in place provision in her son’s EHCP from September 2021; and
• refused to obtain an up-to-date occupational therapy report as part of the reassessment of her son’s EHCP.
2. Ms B says the Council’s actions resulted in her son’s behaviour deteriorating and him having to go into local authority care temporarily. Ms B says this has had a significant impact on her mental health.

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The Ombudsman’s role and powers

3. 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)
4. 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)

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How I considered this complaint

5. As part of the investigation, I have:
• considered the complaint and Ms B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
6. Ms B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
7. 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.

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What I found

What should have happened

8. Councils’ responsibilities towards children with special educational needs (SEN) are set out in the special educational needs code of practice (the code of practice).
9. An EHCP is a legal document which describes a child or young person’s special educational needs, the support they need, and the outcomes they would like to achieve. The Council is responsible for making sure the arrangements specified in a child’s EHCP are put in place. The Council will usually do this by funding to a school or college to provide the necessary support.
10. The code of practice says EHCP’s must be reviewed by the local authority as a minimum every 12 months. The local authority’s decision following the review meeting must be notified to the child’s parent or the young person within four weeks of the review meeting (and within 12 months of the date of issue of the EHCP or previous review).
11. The code of practice says the local authority should provide a list of children and young people who will require a review of their EHCP that term to all headteachers and principals of schools, colleges and other institutions attended by children or young people with EHCPs, at least two weeks before the start of each term.
12. The code of practice says local authorities must conduct a re-assessment of a child or young person’s EHCP if a request is made by the child’s parent. A local authority may refuse a request for re-assessment if it thinks that a further needs assessment is not necessary, for example because it considers the child or young person’s needs have not changed significantly.
13. The code of practice says the local authority must notify the child’s parent or the young person of its decision on whether it will undertake a re-assessment within 15 calendar days of receiving the request to reassess.
14. The code of practice says the process for re-assessment will be the same as the process for a first assessment (once the decision to carry out an assessment has been taken). Re-assessments must follow the same process as for the first EHC needs assessment and drawing up of the EHCP, with the same timescales and rights of appeal for the child’s parent or the young person.
15. As the process is the same for a reassessment as for a needs assessment the Council should consider with the child's parent or the young person and the parties listed in paragraph 9.49 of the code of practice the range of advice required to enable a full needs assessment to take place. The local authority must not seek further advice if such advice has already been provided (for any purpose) and the person providing the advice, the local authority and the child's parent or the young person are all satisfied it is sufficient for the assessment process. In making this decision, the local authority and the person providing the advice should ensure the advice remains current.
16. Paragraph 9.49 of the code of practice says in seeking advice and information, the local authority should consider with professionals what advice they can contribute to ensure the assessment covers all the relevant education, health and care needs of the child or young person. Advice and information must be sought from various sources, including advice and information from any person requested by the child's parent or young person, where the local authority considers it reasonable to do so.
17. The code of practice says the overall maximum timescale for a reassessment is 14 weeks from the decision to reassess to the issuing of the final EHCP, subject to some exemptions. However, the local authority must aim to complete the process as soon as practicable.
18. Section 19 of the Education Act 1996 (the Act) 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.
19. 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.
20. 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.

What happened - SEN

21. Ms B’s son has special educational needs and has had an EHCP since 11 December 2019.
22. On 28 April 2021 Ms B asked the Council for a reassessment of the EHCP as she felt her son’s needs had changed. The Council initially told Ms B she could ask for a reassessment at the next annual review.
23. The Council then contacted the school and arranged an annual review, which took place on 12 May 2021. On 4 June 2021 the Council told Ms B it would begin a statutory reassessment. As part of that reassessment the Council asked for an updated educational psychology report, which it received on 12 October. As Ms B asked for changes to that report a further report was provided to the Council on 12 November. On 1 December the Council decided to issue an amended EHCP.
24. The Council issued a draft EHCP on 23 December.
25. The Council initially issued a final EHCP on 27 June 2022. However, it amended that to a further draft as Ms B had asked for education other than at school for her son.
26. Ms B provided the Council with an occupational therapy report she had commissioned in July 2022.
27. The Council issued a final EHCP on 11 August.

What happened – education

28. On 18 May 2021 Ms B told the Council her son's allocated school had said it could not meet his needs. Ms B said her son was on a part-time timetable, awaiting a managed move and asked the Council to call her to discuss next steps. As she had not received a response to Ms B chased the Council on 2 June.
29. On 10 June the Council told Ms B it would need to find the right school for her son and therefore he would need to continue to attend his current school until the Council completed the reassessment for his EHCP.
30. Ms B’s son stopped attending his allocated school on 30 June 2021.
31. The Council began consulting alternative schools in July 2021. None of those attempts identified a school which could meet Ms B’s son’s needs.
32. The Council began providing tuition at home to Ms B’s son from 5 October 2021. That tuition was not successful and stopped on 21 December 2021.
33. The Council continued to consult alternative schools for Ms B’s son but none of those consultations resulted in the offer of a place.
34. The Council again offered Ms B’s son tuition at home at the beginning of May 2022. Ms B reminded the Council though that this had been unsuccessful before and had resulted in her son having to be taken into care for a week. The Council therefore agreed to look at an alternative provider which could provide tuition outside the home.
35. The Council identified a provider to provide 10 hours per week tuition to Ms B’s son, accompanied by a learning mentor, alongside an additional one or two sessions per week on construction. That provision began in September 2022.

Analysis

36. Ms B says the Council delayed completing a review of her son’s EHCP. The Council accepts it failed to carry out a review within 12 months of issuing the first EHCP. The Council accepts the review was therefore five months late and only took place because Ms B asked for a reassessment. Failure to review the plan within 12 months is fault. The Council also accepts it gave Ms B the wrong information about when she could request a reassessment as it initially told her she had to ask for that at the annual review. That is also fault.
37. The Council also accepts it delayed issuing the final plan. The Council accepts it should have issued the final plan within 14 weeks of beginning the reassessment. The Council therefore accepts it should have issued the final plan by 8 September 2021. However, the Council did not issue the final plan until 12 August 2022. That is a significant delay. I recognise some of that delay was due to the Council having to wait for the educational psychologist report, which was then amended. However, the Council remains responsible for ensuring the process is completed within the statutory timescales and failure to do that is fault. That delay meant Ms B was denied her right of appeal, which she later exercised. The final EHCP issued in 2022 contains some different provision to the 2020 EHCP and it is therefore likely the delays meant Miss B’s son missed out on some provision. That is particularly the case because Ms B’s son was not receiving education for a large part of the period and therefore he was also missing out on special educational needs provision in the existing plan.
38. Ms B says the Council failed to provide full-time education to her son from 10 September 2021 and failed to ensure he received the provision in his EHCP as a result. The evidence I have seen satisfies me the Council put in place interim tuition for Ms B’s son while it sought a suitable school placement. That provision was in place between October 2021 and December 2021. I therefore could not say the Council failed to put in place provision for Ms B’s son between those dates. However, the Council accepts it failed to put in place provision between 30 June 2021 and October 2021 and then between December 2021 and the end of May 2022. I recognise the Council was trying to find a school placement for Ms B’s son and had been unable to do so during those periods. However, the Council retains responsibility for ensuring a child receives education and failure to put in place education between 30 June 2021 and October 2021 and then between December 2021 and the end of May 2022 is fault.
39. I am also concerned the Council did not put in place provision for Ms B’s son until September 2022. I recognise the Council was still trying to find a suitable school placement from 31 May 2022. I also recognise the Council again had difficulty identifying a suitable school placement for Ms B’s son. As I said in the previous paragraph though, the Council was responsible for ensuring Ms B’s son received an education. Failure to put in place education for Ms B’s son until September 2022 is therefore fault. In total this means Ms B’s son missed out on education for nine months longer than he should have. During that period Ms B’s son did not receive any education at all and therefore also did not receive any provision in his EHCP. In those circumstances I consider an appropriate remedy would be for the Council to pay Ms B £500 for each month of missed education, in line with what the Ombudsman would normally recommend. That makes a total financial payment for the missing education and missing provision in the EHCP of £4,500, for Ms B to use for her son’s educational benefit. In addition, I recommended the Council pay Ms B £500 to reflect the impact the lack of education had on her mental health, as well as her time and trouble in pursuing the complaint. The Council has agreed to my recommendations.
40. Ms B says the Council unreasonably refused to obtain an up-to-date occupational therapy report to inform the EHCP process. Ms B says because the Council failed to do that she had to pay for her own report. The Council though says it cannot insist the NHS complete an assessment. The relevant section of the code of practice is outlined in paragraphs 15 and 16 of this statement. This makes clear the Council should satisfy itself any advice considered remains current and should seek any advice and information from any person requested by the child’s parent or young person where the Council considers it reasonable to do so.
41. I am therefore satisfied the issue in relation to the occupational therapy assessment is not whether occupational therapy was involved with Ms B’s son but whether an updated occupational therapy report was required given Ms B had requested a reassessment and had therefore indicated her son’s needs had changed. In this case the EHCP the Council completed in 2020 partly relied on advice from an occupational therapist and I would therefore have expected the Council to consider whether it was necessary to commission an updated occupational therapy report. I have seen no evidence the Council gave any consideration to that. Instead the Council relied on the NHS simply advising it had no involvement with Ms B’s son. Failure to consider whether an updated assessment was required is fault.
42. I am aware that Ms B commissioned her own occupational therapy assessment. The Council has accepted some recommendations from that assessment and has amended the EHCP to include occupational therapy input. Taking that into account it seems likely, on the balance of probability, if the Council had properly considered whether an updated occupational therapy assessment was required it would likely have commissioned one. In those circumstances I recommended the Council refund the £645 Ms B paid for the occupational therapy report. The Council has agreed to that recommendation.

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Agreed action

43. Within one month of my decision the Council should:
• apologise to Ms B;
• pay Ms B £4,500 to reflect the missing education and special educational needs provision for her son, to be used for his educational benefit; and
• pay Ms B an additional £500 to reflect the impact on her and the time and trouble she had to go to pursuing her complaint;
• pay Ms B £645 to reflect the costs of the occupational therapy assessment she paid for.
44. For service improvements, we have made recommendations about carrying out annual reviews on time in several other cases over the previous 12 months. As a result the Council has begun reviewing the annual review process, has implemented some improvements and arranged training for staff. I hope that will prevent similar issues arising in future.
45. For providing alternative education, we have asked the Council on several occasions in the last 12 months to remind staff of the Council’s statutory duty to do so. I note the Council has recently agreed a recommendation on another case to undertake a detailed review of the Council’s policy and procedure for responding to situations where a child is out of school and not receiving education and suggest improvements which can be made to improve staff understanding and implementation of this key duty. I welcome that.

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Final decision

46. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman