Summary: Mrs B complained that the Council in respect of her son C’s special educational needs, failed to provide adequate full-time education when he was unable to attend school, delayed in carrying out an adequate social care assessment or provide social support to enable a successful transition to college, and failed to communicate properly with her throughout this period. We found fault with the Council’s actions. The Council has agreed to increase its payment to Mrs B and C and improve its monitoring of alternative education provision.

The complaint

1. Mrs B complained that Durham County Council (the Council), in respect of her son, C, failed to:
• provide adequate full time education from 2018 until he started at College in September 2021;
• carry out an adequate social care assessment sooner which impacted on the support available to C; and
• communicate properly with Mrs B throughout the whole period.
2. As a result, C missed out on important educational and social experiences, including taking only three GCSEs which affected the level of college course he was able to access and negatively impacted on his mental health. Mrs B also had to take time off work due to the stress of the situation and incurred costs in securing independent help for C.

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What I have and have not investigated

3. I have investigated the events from November 2019. I have not investigated the provision of education prior to this point as some of the period is outside our jurisdiction due to an appeal to the Special Educational Needs and Disability (SEND) tribunal and the events before this are too old for us to investigate now.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. 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.
7. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
8. 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

9. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
10. 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

Special Educational Needs

11. A child with special educational needs may have an Education, Health and Care plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP 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.

Appeal rights

12. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHCP or about the content of the final EHCP. Parents must consider mediation before deciding to appeal. 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 EHCP has been issued.

Timescales and EHC assessment process

13. The statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ sets out the process for carrying out EHC assessments and producing EHC Plans. It says:
• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;
• the process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable;
• the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.

Social care advice for EHC plans

14. The law defines an EHC assessment as including an assessment of the child’s social care needs. Where a child is not previously known to social care this will require a new assessment to identify if there are social care needs which need to be included in the EHC plan.

EHCP reviews

15. A Council must notify the child’s parent within four weeks of a review meeting of its decision to maintain, amend or discontinue the EHC plan.
16. Where a council proposes to amend an EHC plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. If a council decides to amend the plan, it should start the process of amendment “without delay”.
17. 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.
18. For young people moving from secondary school to a post-16 institution or apprenticeship, the review and any amendments to the EHC plan must be completed by the 31 March in the calendar year of the transfer. 

Educational provision

19. Under section 19 of the Education Act 1996 councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
20. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
21. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
22. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
23. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

What happened

Background

24. C stopped attending school due to anxiety in October 2018. In November 2018 he received one tuition session outside of school. He became overwhelmed so Mrs B agreed he should take a break. In January 2019 the school asked the Council to carry out an EHC assessment. From February/March 2019 C started to build up a relationship with his tutor and from April 2019 received an hour a week, increasing to five hours a week at a local centre.
25. In March 2019 the Council agreed to carry out an assessment.
26. At the end of May 2019 the Council decided not to issue an EHCP. Mrs B appealed to the SEND Tribunal. The appeal was decided in October 2019, with the Council agreeing to issue a draft EHCP. It did so on 14 November 2019 naming C’s current school.

November 2019 - July 2020

27. By November 2019 C had been diagnosed with autism. In December 2019 C said he preferred online learning to attending school, but he agreed that working with his current tutor had been good and he would like that to continue. Mrs B raised concerns that the EHCP did not include anything about GCSEs or post-16 transition. She said the tutor acknowledged that C was very far behind and was unlikely to catch up.
28. In January 2020 Mrs B raised concerns about the lack of a social care assessment. Mrs B provided details of organisations that could provide social support to help C re-engage with the community and transition to college.
29. The Council issued the final EHCP on 2 March 2020. It wrongly said a social care assessment was underway when no referral to social care had been made. The national COVID19 lockdown started on 26 March 2020. Mrs B said there was no long-term plan to increase C’s tuition in preparation for his GCSEs and no acknowledgement that he required assistance to address his social anxiety.
30. In April 2020 C started to receive six hours a week of online learning. Some other plans to provide face-to-face support were not possible due to the national COVID19 lockdown. The school said that transition back to the school environment was not viable at that time and the current online provision was appropriate for his needs and capabilities.
31. In July 2020 Mrs B agreed that the online tuition was working well. She said:

I think any increase in learning time would need to happen gradually and be planned well but we need to focus on the social side of things before he can access any face to face education.

32. Mrs B says that she had made this point repeatedly to the Council: that the barrier to C accessing education was his social anxiety and until this was addressed it was difficult to see how he could progress.

Annual review (transition)

33. On 25 November 2020 an Annual Review was held to discuss C’s progress and transition to post-16 education. The tuition service was very impressed with C’s progress. The Council’s records said Mrs B was happy and said C was enjoying the learning. She said he was mentally in a much better place and ‘ready to get back out into the world’. The School said it would liaise with the proposed college to arrange some regular transition over the coming months: a half day or day placement each week, with transport. Mrs B says she had no paperwork prior to this meeting, she did not know the purpose of it and does not recall saying she was happy with the provision.
34. The second lockdown ended on 4 December 2020. The third started on 6 January 2021, ending on 8 March 2021.
35. In mid-January 2021 the school sent the annual review paperwork to the Council and on 15 January 2021 the Council issued a draft amended EHCP naming the agreed college. Mrs B said it still contained no information or plan to address C’s social anxiety.

Social care assessment

36. Mrs B took advice and realised that a social care assessment should have been carried out as part of the EHC process. In February 2021 Mrs B self-referred C to the Speech and Language Therapy Team and to the Social Care Team. The school referred C to the Educational Psychologist. She also submitted comments on the draft EHCP.
37. Mrs B says the EP declined to do an assessment until C was in college.
38. The Council visited the family and started a social care assessment. It liaised with some voluntary and community groups regarding possible social opportunities for C and provided information to Mrs B about short breaks. C did not wish to attend short breaks or take up social opportunities. But he did express his wish to spend time with friends and make new ones and how difficult he found this.
39. The Council said a voluntary organisation agreed to offer weekly support to C and his family to help C with his transition to college, reintegration into a peer group and social opportunities. A different organisation offered C transition support over the summer holidays. Mrs B said this only materialised on two occasions at most. A multi-agency meeting was held on a monthly basis to provide support to C and the family, the last one being in May 2021.
40. The Council completed the social care assessment at the end of March 2021 and the Council issued an amended version of the EHCP. In April 2021 Mrs B raised concerns about the assessment and the EHCP. The Council issued another version of the EHCP at the end of April 2021.
41. After several visits to Mrs B the Council amended the social care assessment and in May 2021, she said she was happy with the support.

Final EHCP

42. The Council issued a final EHCP in June 2021. I do not know the exact date. It named the agreed college. Mrs B appealed against the content of the EHCP. Mrs B said it contained errors about C’s academic ability and failed to address what support he needed both within college and before starting.
43. She employed the services of an advocate to attend a meeting with the college and the Council to discuss C’s support needs and proposed course. It was agreed he would attend the level 2 course of his choice. Initially the Council had proposed a non-accredited course. The Council said the educational psychologist would assess C once he started at college.
44. C gained three GCSEs and started at college in September 2021. Due to illness the educational psychologist did not meet with him until late September 2021. She issued her report on 12 October 2021 and the college held an Annual Review the following day. The Council also carried out a further social care assessment as part of the review but concluded that C did not meet the threshold for services.
45. In January 2022 the content of the EHCP was agreed at Tribunal.

Formal complaint

46. Mrs B made a formal complaint on 28 March 2022. She complained about:
• the failure to provide C with full time education between October 2018 and November 2021.
• the failure to consider if he could take more GCSEs which would have given him access to a higher level course at college.
• disability discrimination by the social care team and its failure to consider the needs of the whole family.
• the fact she had to hire an independent advocate to ensure C could do his preferred course.
• the fact the Educational Psychologist assessment was not done before C started college and so he did not get support he needed during the transition.
47. She requested reimbursement of £500 for the independent advocate and an assessment.
48. The Council responded at stage one of its complaints process on 11 April 2022. It said:
• The school and the Council had provided tuition up to a level C could cope with.
• He had done well and achieved sufficient GCSEs to attend his chosen course at college.
• It agreed the initial social care assessment had been inadequate but it had been amended.
• The Educational Psychologist recommended not doing the assessment until C was at college.
49. The Council offered £100 in recognition of the poor communication and problems with the EHCP process. It did not refund the cost of the independent advocate or assessment as it did not consider they were necessary.

Stage two complaint

50. On 14 April 2022 Mrs B escalated her complaint to stage two of the procedure. She said between April 2020 and June 2021 C had only received six hours a week of online tuition. The Council had failed to offer any face to face options even once schools reopened in September 2020. She said that C’s college tutor had noted that C’s knowledge of the subject exceeded any other level 3 student they had ever taught and he was more than capable of attending the level three course. She said C could not do this because he had not been allowed to take sufficient GCSEs and had not been given the necessary transition support at an earlier point.
51. She also said that because C had not had the full time support the needed from September 2021, he had failed to find a work placement, and this meant he had to catch up the following term causing him stress. By the time the Educational Psychology assessment was completed it was too late and C did not want any additional support.
52. The Council responded in July 2022. It said that it had provided appropriate education from April 2020 and that Mrs B had agreed it was working well. It noted that in November 2020 the Annual Review had discussed a transition placement but due to further COVID lockdowns this had not been possible. It also said that it considered the content, and quantity of the education provided and throughout the process of producing the final EHCP, it had supported C in accessing learning.
53. The Council said after the Annual Review in November 2021, the Council liaised with the college to resolve the placement issue. It agreed that the initial social care assessment had been inadequate and that although it was amended, it had delayed the EHCP process. But it did not consider this affected the outcome because the Council had appropriately advised Mrs B how to appeal.
54. The Council offered Mrs B £500 for the failure in the social care assessment and the delay it caused to the EHCP. It did not consider it was appropriate to reimburse the professional fees. Neither did it consider it was appropriate to offer C anything for lack of educational provision because the Council had provided appropriate education for his circumstances.
55. Mrs B complained to us.
56. Following my enquiries, the Council met with Mrs B. The Council apologised for the faults identified during the complaints process in relation to the social care assessment; both the delay in starting one and the failure to include the whole family’s needs. It also discussed Mrs B’s experience of the services and informed them of some improvements it had made since her complaint.

Analysis

Full-time education

57. Between November 2019 and July 2020, I consider that the Council provided adequate tuition for C and reviewed its suitability. There is evidence that Mrs B and C were happy with the content and amount of the tuition provided. Mrs B was more concerned about C’s need for social support during this period.
58. But when C restarted the tuition in September 2020 there is no evidence that the Council reviewed C’s progress or the suitability of the provision. At the Annual Review in November 2020, it was clear that C was doing well and that he could participate in a weekly transition placement to college. I understand that the third national lockdown prevented the transition placement from happening and that this was out of the control of the Council. But there is no evidence that the Council considered any alternatives or increasing the online provision to expand the number of GCSEs C was taking. This was fault which created uncertainty for C and Mrs B, that with the right support he could have achieved more and perhaps accessed the higher level college course.

Social care assessment and support

59. The Council accepts that it failed to carry out a social care assessment as part the EHC assessment process in 2019/2020. It did not pick up the error at the Annual Review in November 2020 and it was only when Mrs B referred the case herself to social care that the Council started an assessment in late February 2021, over a year later than it should have done. This was fault.
60. The Council also accepts that the initial assessment was inadequate and did not reflect the needs of the whole family. It took prompt steps to correct the assessment, but this caused another two months’ delay. This was fault.
61. It is difficult to assess the injustice. The Council says it is unlikely to have made a significant difference to C because he has, since the assessment was done, declined to engage in any suggested social activities. However, I agree with Mrs B’s view that if the support had been offered earlier, it is possible C may have reacted differently and the support could have been more tailored to his transition to college, as well as provided social opportunities for him sooner. After the weekly transition placement fell through in early January 2021, the Council did not consider any other measures to assist C with his transition to college. It appears he did experience difficulties in the first term as a result. By the time the Educational Psychologist met with him he was 17 years old and did not want to engage.
62. So, I have concluded the fault created uncertainty for Mrs B and C as to whether offers of social support, particularly with the transition to college, at an earlier stage, could have helped C settle in and progress more quickly to the higher level course.

Delay to EHCP process

63. The Council issued a draft EHCP on 14 November 2019 and finalised the document on 2 March 2020. This was a period of just over 15 weeks. Taking into account six weeks of the maximum 20 allowed for the whole EHCP process, I do not consider there was significant delay here.
64. However, following the annual review on 25 November 2020, the Council should have notified Mrs B within four weeks (by 23 December 2020) whether it intended to amend the EHCP and then issue the amended plan within a further eight weeks (by 17 February 2021). The Council issued an amended plan on 15 January 2021 and several versions in March and April but did not issue a final amended plan until June 2021, over four months late. This was fault.
65. I understand that some of the reason for this delay, was the delayed social care assessment and the Council’s attempts to respond constructively to Mrs B’s comments. But the delay affected the timely provision of social and educational support to aid C’s transition to college and denied Mrs B an opportunity to appeal at an earlier point to resolve her concerns before C started college.

Communication

66. The Council has accepted its communication was at times poor and untimely. I agree that there were long gaps where Mrs B was left in the dark as to progress with C’s case, leading to her taking steps herself to obtain a social care assessment and engage the help of independent professionals.

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Agreed action

67. I welcomed the Council’s offer of £500 to recognise the impact of the delay in completing the social care assessment. However, I considered the Council should increase the payment to include recognition of the injustice to C and Mrs B’s time and trouble in pursuing the complaint.
68. I recommended that within one month of the date of my final decision, that Council:
• pays Mrs B a total of £1250 comprising:
1. £500 already offered for the delays in the social care assessment;
2. £500 to be used for the benefit of C’s educational and social progress; and
3. £250 for Mrs B’s time and trouble in pursuing the complaint.
69. I also recommended that the Council within three months, reviews the monitoring of alternative educational provision to ensure it regularly assesses if the provision remains suitable.
70. The Council has agreed to my recommendations. The Council should provide us with evidence it has complied with the above actions.

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Final decision

71. I consider this is a proportionate way of putting right the injustice caused to Mrs B and C and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman