Summary: We find the Council failed to provide Miss X’s son (Y) with education in line with his EHC plan between January 2021 and February 2022. There were also delays in completing Y’s annual review and responding to Miss X’s communications. The Council has agreed to apologise for the identified faults, make payment to reflect Y’s missed education and uncertainty and distressed caused to Miss X. The Council has already introduced suitable service improvements to address complaint delays and improve communication.

The complaint

1. Miss X complains the Council failed to:
1. Provide her son (Y) with education in line with his Education, Health, and Care (EHC) plan between December 2020 and February 2022.
2. Complete a review of Y’s EHC plan in line with statutory timescales.
3. Respond to her communications in a timely manner.
2. Miss X says Y missed education and could not complete his GCSEs.
3. Miss X says this caused her distress, frustration and she went to time and trouble trying to resolve her complaint with the Council.

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The Ombudsman’s role and powers

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. 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. Miss X first complained to the Council in May 2020. She approached us in January and August 2022. This is more than 12 months after she first became aware of the complaint issues. Evidence indicates the Council delayed responding to her communications, providing complaint responses, and taking subsequent remedial action. She therefore had to re-escalate her complaint in 2021. I have therefore exercised discretion to investigate matters from January 2021.
7. 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”.
8. Our COVID-19 guidance advised Council’s to adapt procedures, anticipate backlogs and ensure service users received updated advice on any potential changes to timescales or delays.
9. 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)
10. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

11. I have considered information provided by Miss X and discussed the complaint with her. I also made enquiries with the Council and considered its response and evidence provided.
12. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before reaching a final decision.

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What I found

Education Health and Care Plans

13. A child with special educational needs (SEN) may have an EHC plan. This sets out the child’s needs and what arrangements should be made to meet them. This includes details of the child’s school or educational placement and educational provision needed by the child.
14. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 ss1&2 Children and Families Act).

EHCP Process and Reviews

15. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC plans.
16. Where a child has an EHC plan the local authority must review the plan as a minimum every 12 months.
17. When a child with an EHC plan moves between local authority areas, the new local authority:
• Has 15 working days from becoming aware of the move to transfer the EHC plan.
• Must arrange the special educational provision set out in the existing EHC plan from transfer, although the child may be placed in a new school.
• Must advise parents within 6 weeks of transfer if it will bring forward the annual review or if it intends to reassess the child.
18. Within four weeks of the annual review meeting, the council must decide whether it will keep the EHCP as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school.
19. If it needs to amend the plan, the council should start the process of amendment without delay.
20. The council must send the draft EHC plan to the child’s parent and give them at least 15 days to give views and make representations on the content.
21. When the parent suggests changes that the council agrees, it should amend the draft plan and issue the final EHCP as quickly as possible.
22. The timescale from the annual review meeting to the final amended EHC plan should take no longer than 12 weeks.

What happened

23. Mrs X’s son (Y) is autistic and has an EHC plan. In mid-December 2020, Miss X moved into the Council’s area when Y was in Year 10.
24. The Council immediately requested Y’s updated EHC plan from the previous council. It was advised the plan was under review.

Year 10 (2020-2021)

25. In early January the Council wrote to Miss X inviting her to select preferred schools for Y for consultation. It said it would be reviewing Y’s EHC plan within three months (by April).
26. The evidence indicates the Council decided to adopt Y’s EHC plan from the other council. The EHC plan had a mainstream school setting and provided for:
• 3.5 hours (one to one) teaching assistant support with functional skills.
• 18.75 hours of targeted teaching assistant support with revision, keyboard skills, and (one to one) literacy and numeracy development.
• 7.5 hours support during breaks, for behaviour reviews and soothing strategies.
27. In January 2021, the Council’s attendance officer identified Y was out of school and alerted the education team.
28. The records show the Council consulted School A in late January. School A declined to offer a place.
29. The records indicate the Council had internal team meetings to update Y’s EHC plan and address his lack of placement. It contacted School B, which declined to offer a place.
30. In early February, the Council considered on-line provision. In March the Council sought a specialist teacher (ST) for Y and confirmed Miss X's agreement with on-line provision.
31. Miss X said she contacted the Council numerous times (between February and May) by phone and email requesting updates without response.
32. In April the Council discovered it had not sent the referral for on-line provision correctly. It rectified the error and arranged on-line provision to start in late April.
33. The records show Y refused to engage with online learning and missed three introductory sessions which were rescheduled. Miss X said she reported Y’s refusal to log in for online lessons to the Council. The records show the ST also emailed the Council suggesting it consider an alternative method.
34. The records indicate, in mid-May the Council received a home visit progress report from the ST. The Council has not provided a copy of the report. However, given the recent background set out in paragraph 33 (above), it is likely the ST updated the Council of Y’s continued difficulties with remote learning.
35. At the end of June, the Council had a strategy meeting about how to support Y with his educational needs. The records say it agreed to refer Y to a specialist youth support service which would collaborate with the Council to try help Y engage with his education. The records do not show if this was successful.
36. The available evidence also does not set out the steps the Council took to progress Y’s EHC plan annual review which it had said would take place within three months.

Miss X’s complaint and the Council’s Stage 1 response

37. In May, Miss X complained to the Council about the matters she raised with us.
38. In its August 2021, Stage 1 response letter, the Council upheld Miss X’s complaints about:
• Poor communication and apologised for delays. It explained it was short-staffed due to illness and staff turnover combined with increased demand. This impacted services but it was taking action to prevent recurrence.
• Y not having suitable education. It accepted Y had missed seven months of education and offered Miss X £1400. It said it was working to re-integrate Y into education from September 2021.
• Its failure to issue Y’s amended EHC plan within statutory timescales. It said it would provide the plan by 13 August.
39. The records show Miss X accepted the payment and was happy with the Council’s plans.
40. The Council issued Y’s draft EHC plan on 5 August 2021. Y’s special educational provision was the same as the existing plan. (Paragraph 26).

Year 11 (2021-2022)

41. The records show the Council arranged educational provision for Y with a specialist provider (SP) from September 2021. This was a combination of home and online learning. However, in mid-October the SP informed the Council Y was not engaging as he was finding it difficult.
42. The records indicate Y wanted to be a school setting to prepare for GCSE exams and college. The SP also informed the Council Y was missing sessions from mid-October 2021.
43. Miss X said Y stopped attending the new provision completely until February 2022.
44. The Council issued a further draft EHC plan for Y on 26 November. This included an additional requirement for Y to have access to specialist keyworkers in small group sessions to re-integrate him into education.
45. In early December the Council referred Y’s case to its specialist provision panel. The panel concluded Y’s needs could be met in a specialist setting for young people with autism.
46. The evidence shows the Council then completed five further consultations (Schools/Colleges D-G) between December 2021 and February 2022. Miss X said Y did not attend the SP sessions during this period.
47. College G offered Y a place. The records indicate Y expressed interest in attending College G.
48. In late February the Council agreed funding for Y’s attendance at College G for the remainder of Year 11. The Council explained it wanted to support Y’s reintegration to education with a course which held his interest.
49. The Council issued Y’s final EHC plan on 16 February 2022 which named College G and sets out the same special educational provision as set out in paragraph 26.
50. The Council said it also consulted a further college (College H) which offered Y a place from September 2022. It said College H would be able to provide Y with the opportunity to complete his GCSEs with appropriate support.

Miss X’s further complaint and the Council’s Stage 2 response

51. Miss X escalated her complaint.
52. In its March 2022, Stage 2 response, the Council said:
• Y had received home tuition and adequate support since September 2021. However, it accepted Y found it hard to engage with home learning and wanted an educational setting where he could prepare for exams and plan for college.
• Y had started a construction course in February 2022, which he could continue post-16 or consider alternative college courses from September 2022.
• It apologised for not responding to Miss X’s enquiries in a timely manner. It reiterated the same reasons as its Stage 1 response.
53. Unhappy with the Council’s response Miss X approached the Ombudsman in August 2022.

Council’s response to our enquiries

54. The Council told us it:
• Was sorry for the delays and distress caused to Miss X and Y. It was under significant pressures due to the COVID-19 pandemic, which impacted its services into 2021.
• Carried out a full SEND Pathway review which resulted in a restructure of the SEND Team and further recruitment.
• Formed new sub-teams dealing with SEN enquiries, provision, placement, and a dedicated complaints team to ensure early resolution. These teams were working to manage backlogs, day to day work and improve response times. The Council provided evidence in support of these changes.

Was there fault and did it cause injustice?

i) Miss X says the Council failed to provide education for Y in line with his Education, Health and Care Plan (EHC plan) between December 2020 and February 2022.

55. The Council had a legal duty to secure the provision in Y’s EHC plan from December 2020. However, the records show Y did not have in place any provision in line with his EHC plan until the Council arranged on-line provision in late April 2021. This is fault, which caused Y to miss out on education and special educational provision between January and April 2021. It also caused Miss X avoidable distress. This is injustice.
56. The Council began school consultations in January 2021 (School A) and continued in February (School B). They both refused places. The Council did not consult with any more schools and allowed the case to drift, despite Y being without a placement. It meant Y was not in a school setting and left reliant on online learning which he found difficult. Miss X said she informed the Council Y had stopped attending online learning but did not get a response. The records say the specialist support teacher visited Y at home and sent the Council a progress report in May. The Council has not provided a copy of the report, but the records show Miss X and the ST both informed the Council Y was missing online sessions shortly before the visit (paragraph 33). It is likely the ST would have reiterated the issues in her progress report. In my view the Council should have reviewed Y’s situation at this stage. Its failure to do so was fault. It meant Y continued to miss out on education between April and July 2021, which also caused Miss X distress. This is injustice.

ii) Miss X says the Council failed to complete a review of Y’s EHC plan in line with statutory timescales.

57. The evidence shows the Council sought Y’s EHC plan from the previous Council area as soon as it became aware of his move in December 2020. In early January 2021, it informed Miss X the EHC plan would be reviewed within three months (by April) and decided to proceed with Y’s previous plan. This was in line with the SEND Code (paragraph 17). I do not find fault in relation to this.
58. The Council should have ensured the annual review meeting took place by the end of April because it told Miss X it would complete an annual review within three months. Y’s final EHC plan should have been issued by July 2021, within 12 weeks of the review meeting (paragraph 21). However, the final EHC plan is dated 16 February 2022 and is late by seven months (28 weeks). This delay is fault which meant Y’s EHC needs were not properly reviewed according to statutory timescales, and he missed out on provision in his amended plan which included access to specialist keyworkers in small group sessions to re-integrate him into education (paragraph 44). This also caused Miss X avoidable uncertainty and distress and delayed her appeal rights. This is injustice.

iii) Miss X says the Council did not respond to her communications in a timely manner

59. The evidence shows the Council delayed responding to Miss X’s communications on various occasions between 2021 and 2022. The Council also accepts it did not respond in a timely manner in its complaint responses. It has apologised and explained this was due to COVID-19 pressures and increased demand which impacted its services. However, its failure to keep Miss X informed of delays and updates about changes to timescales on responses is not consistent with our COVID-19 guidance on good administrative practice (paragraph 8). The Council’s poor communication is fault which caused Miss X avoidable distress and uncertainty about whether her complaint issues were being managed properly. This is injustice.

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Agreed action

60. When recommending a remedy, we seek to remedy the injustice caused because of identified fault. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as severity of the child’s SEN, any education or alternative provision made, if additional provision can now remedy some or all the loss and whether the period concerned was significant, such as period preparing for public exams.
61. The Council has explained it instigated changes to minimise recurrence as set out in paragraph 54 (above). However, I will make a separate recommendation to address Miss X’s distress and uncertainty.
62. The Council has also made a payment (£1400) to Miss X in recognition of Y’s missed education between January and July 2021. This is a partial remedy but does not reflect the additional missed periods and full extent of Y’s injustice. Within one month of my final decision the Council should also:
• Write to Miss X and apologise to her for:
1. Falling to provide Y education in line with his EHC plan between January and July 2021 and between mid-October 2021 and February 2022 and any uncertainty and distress caused.
2. Its failure to complete Y’s annual EHC review in line with statutory timescales.
3. Its failure to respond to her communications in a timely manner between 2021 and 2022.
• Pay Miss X an additional £2850 in recognition of its failure to provide Y education in line with his EHC plan between January and July 2021 and between mid-October 2021 and February 2022. This recommendation reflects that Y was in a year preparing for GCSE exams and was without a school place.
• Pay Miss X £300 in recognition of her distress and uncertainty.
63. The Council should provide us with evidence it has complied with the above actions.

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Final decision

64. I find the Council failed to provide Miss X’s son (Y) education in line with his EHC plan between January 2021 and February 2022. There were also delays in completing Y’s EHC plan annual review and responding to Miss X’s communications. The Council has agreed to apologise for the identified faults, make payment to reflect Y’s missed education and uncertainty and distress caused to Miss X. The Council has already introduced suitable service improvements to prevent complaint delays and improve communication.
65. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman