Summary: the Council failed to follow the code of guidance when reviewing Mrs B’s daughter’s education, health and care plan, failed to ensure the school made all the provision available in the plan, delayed naming a secondary school, failed to put in place alternative education provision and failed to communicate effectively with Mrs B. Changes to procedures already agreed by the Council along with an apology and payment to Mrs B is a satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mrs B, complained the Council:
• delayed reviewing her daughter’s education, health and care plan (EHCP) following her request in February 2018;
• delayed issuing a revised EHCP between 2018 and March 2021 which meant her daughter missed out on provision;
• failed to ensure the schools allocated to her daughter implemented the provision in the EHCP from 2017 onwards;
• failed to provide her daughter with full-time education while she was out of school between November 2020 and July 2021;
• delayed naming the school for September 2021 in her daughter’s EHCP; and
• repeatedly failed to respond to her communications.
2. Mrs B says fault by the Council led to her daughter missing out on special educational needs provision and education. Mrs B says this has caused her and her daughter significant stress, has made her daughter unwell and has led to her going to time and trouble to pursue her complaint.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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)

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How I considered this complaint

6. As part of the investigation, I have:
• considered the complaint and Mrs B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
7. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
8. 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

9. The Special Educational Needs Code of Practice (the code) says the first review of an EHCP must be held within 12 months of the date when the EHCP was issued, and then within 12 months of any previous review.
10. The code says within four weeks of the review meeting, the local authority must decide whether it proposes to keep the EHCP as it is, amend it, or cease to maintain it, and notify the child’s parent or the young person and the school or other institution attended. If the EHCP needs to be amended, the local authority should start the process of amendment without delay.
11. The code says following representations from the child’s parent or the young person, if the local authority decides to continue to make amendments, it must issue the amended EHCP as quickly as possible and within 8 weeks of the original amendment notice. If the local authority decides not to make the amendments, it must notify the child’s parent or the young person, explaining why, within the same time limit.
12. The code says an EHCP must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education, to allow for planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year of the transfer at the latest for transfers into or between schools.
13. The Education Act 1996 (Section 19) provides the basis for statutory guidance. This says education authorities must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or otherwise, but must be suitable for the child's age, ability, and aptitude, including any special needs.
14. The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
15. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. (Out of school… out of mind? How councils can do more to give children out of school a good education, published in 2016).
16. We made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
• decide, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.
17. We make clear in our guidance that if a child cannot reintegrate into the school or the school is unsuitable, and the council decides not to take legal proceedings, the council has a duty to provide an alternative. The time taken to make such a decision will depend on circumstances in each case, but we will criticise councils for unnecessary delay.

What happened

18. Mrs B’s daughter has a diagnosis of autistic spectrum disorder and the Council issued an EHCP in September 2017. In February 2018 Mrs B asked for an urgent interim review as she felt her daughter’s needs had changed as she had suffered a number of accidents at school and had a range of complex difficulties which had not been included in her plan.
19. Mrs B chased the Council about the review in March 2018. The Council held the review in April and June 2018. The Council wrote to Mrs B in August 2018 to say it intended to amend the EHCP.
20. Mrs B contacted the Council in October 2018 to raise concerns about not receiving a revised EHCP. The Council provided a revised EHCP at the end of November 2018. Mrs B met with the Council to discuss proposed changes to the EHCP in January 2019. The Council issued a second draft amended EHCP in February 2019.
21. Mrs B’s daughter started a new school in July 2019.
22. The Council held an annual review in January 2020. The Council then did not contact Mrs B to tell her it intended to amend the EHCP until November 2020. The Council issued a draft amended EHCP later that month. The Council apologised for the delay, explaining the officer dealing with the review had left the Council’s employment. The Council told Mrs B it would work with her to identify the right school placement for the September 2021 transfer.
23. Mrs B’s daughter stopped attending school in November and December 2020. There is no evidence the school told the Council about the absence.
24. Mrs B asked for a coproduction meeting to discuss amendments to the EHCP in January 2021. Coproduction meetings took place later that month. The Council issued a further draft amended EHCP in February 2021. The Council provided a copy of that EHCP to the school attended by Mrs B’s daughter. The school then contacted the Council to advise it no longer considered it could meet Mrs B’s daughter’s needs.
25. The Council began consulting with alternative schools for the phase transfer planned for September 2021 in February 2021. Mrs B told the Council about a specialist school she had identified as suitable in February 2021. The Council referred Mrs B’s daughter’s case to its specialist education panel to consider consulting specialist schools. The Council’s specialist education panel asked for an up-to-date assessment of Mrs B’s daughter’s progress before it would agree to consult special schools.
26. The school provided Mrs B’s daughter with online learning in January 2021 due to the Covid 19 lockdown. When that was coming to an end the school contacted Mrs B to discuss a phased return for her daughter. Mrs B provided a shielding letter which meant her daughter could not attend school before the end of March 2021.
27. Mrs B contacted the Council in March 2021 to raise concerns about returning her daughter to a school which had said it could not meet her needs. Mrs B asked the Council what she was supposed to do. The Council told Mrs B the school had said it would put in place the majority of provision in the EHCP.
28. The Council issued a final EHCP in March 2021.
29. In March 2021 the Council’s specialist education panel agreed to consult the school chosen by Mrs B. The school later advised it had a place for Mrs B’s daughter.
30. The Council contacted the allocated school in March 2021 to ask it for details of the provision in place. The school provided that to the Council later in March.
31. The Council issued a final amended EHCP in April 2021.
32. Mrs B’s daughter began attending school on a part-time basis in April 2021. That attendance ended on 12 May 2021 as Mrs B’s daughter was struggling to cope. The school contacted the Council on 18 May 2021 to advise it had not received any reports from professionals suggesting Mrs B’s daughter needed tutoring at home on a full-time basis. The school outlined the options it had offered Mrs B’s daughter.
33. The Council’s inclusion support service held a virtual meeting with Mrs B on 27 May 2021. Mrs B told the Council her daughter was struggling to cope with the three-day timetable and she did not feel the provision in the EHCP was being implemented at the school. Mrs B said she felt her daughter was not coping with school.
34. The school contacted the Council on 11 June to advise that despite offering more time in school to Mrs B’s daughter the family were not engaging.
35. After considering a complaint from Mrs B the Council accepted it had failed to review Mrs B’s daughter’s EHCP in accordance with the guidance. As remedy for the complaint the Council agreed to:
• improve communication between the inclusion team and schools to ensure schools are invited to coproduction meetings where requested by families and to ensure a Council representative attends annual reviews;
• provide clear communication with families about who is responsible for what part of provision and service;
• put in place monitoring for section F of the EHCP to ensure schools are meeting the requirements and take action where needed;
• provide clear communication and a point of contact for families within the inclusion team with clear guidance on how often contact can be expected during the process;
• monitor caseloads during staff absence to ensure cases do not get missed or annual reviews delayed;
• provide timely contact with schools should concerns be raised about provision of services within section F of the EHCP;
• put in place further measures to meet consultation phase deadlines;
• discuss the provision/availability of specialist schools and ability of mainstream schools to meet young people's needs with senior managers; and
• offer Mrs B an apology and £400 towards supporting Mrs B’s daughter with any missed opportunities and £100 to Mrs B for the time and trouble in bringing the matters to the Council's attention.

Analysis

36. I have exercised the Ombudsman’s discretion to investigate what has happened since the Council issued an EHCP in September 2017. That is because I am satisfied Mrs B has been in contact with the Council throughout that period.
37. The Council accepts it delayed reviewing Mrs B’s daughter’s EHCP in 2018. The evidence I have seen satisfies me Mrs B asked the Council for an urgent review in February 2018 as she did not feel her daughter’s EHCP reflected her needs. There is no evidence the Council began that review process until April 2018. The Council then did not tell Mrs B of its intention to amend the plan until August 2018. The Council’s actions did not meet the timescales set out in the code, as set out in paragraphs 9-12 of this statement either in terms of the timescale for carrying out the review, for telling Mrs B of its intention to amend the EHCP or for when the amended EHCP was issued. I am further concerned although the Council issued an amended EHCP in November 2018 it did not issue a final EHCP until March 2021, following two further reviews. Delay carrying out the reviews, failure to follow the timescales set out in the code and failure to issue a final EHCP until March 2021 is fault. That meant the schools attended by Mrs B’s daughter had an outdated EHCP between 2017 and 2019 and then only a draft of a proposed new plan between 2019 and 2021. Mrs B is therefore left not knowing whether provision for her daughter would have been improved at an earlier stage if the Council had carried out the review process properly. Mrs B also missed out on her right to appeal between 2018 and 2021.
38. I am also concerned about the delay issuing a final plan in 2021. As I said in paragraph 12, the code is clear revised plans should be issued by 15 February of the year in which a child moves between key stages of education. In this case Mrs B’s daughter was due to start high school in September 2021. The Council should therefore have issued the final plan by 15 February 2021. Failure to do that is fault. That again delayed Mrs B’s appeal rights and also caused her distress and some uncertainty about the likely placement for her daughter.
39. Mrs B says the Council failed to ensure the schools attended by her daughter implemented the provision in her EHCP between 2017 and 2021. The Council accepts it did not have any process in place to monitor how a school was implementing provision in a child’s EHCP. As a result, the Council accepts it cannot say Mrs B’s daughter received all the provision in her EHCP.
40. The evidence I have seen satisfies me Mrs B’s daughter attended one school until July 2019 and a second school between 2019 and 2021. For the school attended between 2017 and 2019 I have no documentary evidence showing what was and was not in place during Mrs B’s daughter’s time at the school. The Council accepts though as it did not monitor provision it cannot confirm all elements were in place. I therefore consider it likely, on the balance of probability, some provision was missing between 2017 and 2019.
41. I also do not have any evidence about whether the initial school implemented what was in the revised plan in 2018 or 2019. That is not surprising because the plan had not been finalised at that point. I therefore consider it likely the Council’s delay issuing the final plan meant Mrs B’s daughter also missed out on provision between 2018 and when she moved to her new school in July 2019.
42. For the period from July 2019 the new school has confirmed it received a copy of the draft plan from February 2019 as well as the 2017 plan and it implemented provision based on the two plans. It is also clear from the school’s communications with the Council in 2021 though that once further amendments to the plan took place the school advised it did not consider it could meet Mrs B’s daughter’s needs. In saying the school could not meet Mrs B’s daughter’s needs based on her new plan the head teacher listed those areas where provision could not be made. For some of those areas this relates to the information included in the later plans. In some cases though it includes provision made in the February 2019 plan. Given the information provided by the school I consider it likely, on the balance of probability, Mrs B’s daughter missed out on some provision set out in her February 2019 plan between July 2019 and May 2021, when she stopped attending the school. Some of that period though will have been affected by the impact of Covid 19 and the fact Mrs B’s daughter was shielding and unable to attend school. Taking that into account, plus my view that it is likely some of the provision for Mrs B’s daughter was in place, I recommended the Council apologise to Mrs B and pay her £750 to reflect the uncertainty about the likely lost provision due to the delay reviewing the EHCP and to reflect those elements of the EHCP that were not provided by the schools. The Council has agreed to my recommendations.
43. Mrs B says the Council failed to ensure her daughter received education while she was out of school from November 2020. Having considered the documentary evidence I have not identified any notification from the school to the Council about Mrs B’s daughter being out of school in November or December 2020. While it was mentioned in an EHCP review meeting in December 2020 the school’s view was that there was no reason Mrs B’s daughter could not attend. Given that, and the proximity to the Christmas break, I do not criticise the Council for not acting to provide alternative education to Mrs B’s daughter in November or December 2020.
44. For the period between January 2021 and May 2021 I am satisfied the school put in place alternative provision for Mrs B’s daughter even though, until she provided a shielding letter in March 2021, the school’s view was that there was no reason Mrs B’s daughter could not attend school. That also appears to have been the view of the paediatrician who recommended a short period at home followed by a phased return. As I am satisfied the school put in place online learning, as it did for other children unable to attend school due to shielding, I cannot criticise the Council for any inaction before April 2021.
45. Between April 2021 and May 2021 I am satisfied the school had in place a part-time timetable where it was seeking to reintegrate Mrs B’s daughter into school on a full-time basis. As I am satisfied the school provided evidence to the Council that it had put in place alternative provision I have no grounds to criticise the Council for the period up until 12 May 2021 when Mrs B’s daughter stopped attending school.
46. The situation is more confused in relation to the period after May 2021 until the end of term in July 2021. It is clear from the documentary evidence the school continued to take the view that Mrs B’s daughter had no medical reason not to attend school and that a part-time timetable, leading to a full-time timetable, was the appropriate way forward. It is equally clear though Mrs B did not consider the school could provide suitable education to her daughter and I am satisfied Mrs B had raised those concerns with the Council. The Council also had evidence from the school to say it could not provide some parts of the EHCP. In those circumstances, in line with the Ombudsman’s guidance referred to in paragraphs 15-17, I would have expected the Council to consider what approach to take and how education should be provided to Mrs B’s daughter if it was satisfied she could not attend school. However, I have no evidence to show the Council took any action to address the issue of education for Mrs B’s daughter between May and July 2021. That is fault and meant Mrs B’s daughter received no education from 13 May 2021 until the end of term on 20 July 2021. That is seven weeks and four days without any education, taking into account half term in May 2021. As the Council remains responsible for ensuring a child receives full-time education I recommended the Council pay Mrs B £600 for the lack of education in that period. The Council has agreed to my recommendation.
47. Mrs B says the Council delayed naming a school for September 2021 in her daughter’s EHCP. As I said earlier in this statement, the Council was at fault for not completing the review of the EHCP by the deadline of 15 February, which then delayed the Council naming the school in the plan. It is possible, if the Council had completed the review earlier and in accordance with the guidance, it would have identified the need for a specialist school placement earlier which may have allowed it to identify a suitable school by February 2021. Mrs B is therefore left with some uncertainty about whether the situation would have been resolved quicker if the Council had completed the review process properly.
48. The Council accepts it failed to communicate effectively with Mrs B. That is supported by the documentary evidence which shows Mrs B repeatedly sending chasing emails to the Council due to lack of response. Failure to respond to Mrs B’s contact and communicate with her effectively is fault. That clearly caused Mrs B to have to go to time and trouble to pursue her complaint. It is also clear this has added to Mrs B’s distress. In addition to an apology and the financial remedies for the delays and failure to provide education referred to earlier I recommended the Council pay Mrs B £250 to reflect her time and trouble in pursuing the complaint. That makes a total financial remedy of £1,600. The Council has agreed to my recommendations.

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Agreed action

49. Within one month of my decision the Council should:
• apologise for the faults identified in this statement;
• pay Mrs B £750 to reflect her uncertainty and distress about whether the provision her daughter received would have been improved had the Council completed the review processes in accordance with the timescales set down in Government guidance;
• pay Mrs B an additional £600 to reflect the failure to ensure her daughter received education between 13 May 2021 and 20 July 2021; and
• pay Mrs B £250 to reflect her time and trouble pursuing the complaint.
50. Within two months of my decision the Council should provide the Ombudsman with evidence of the changes it has put into place to reflect the remedy it offered for the complaint as outlined in paragraph 35.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman