Summary: The complainant alleged that the Council failed to deal properly with her adult son’s special educational needs. The Council has accepted that there were faults and avoidable delay in its management of the case. We have recommended actions to resolve the injustice caused, which the Council has accepted.

The complaint

1. The complainant, Ms X, complained that the Council failed to deal with her adult son’s, (B’s), special educational needs properly and delayed in issuing a final amended Education, Health and Care (EHC) Plan. As a result, her right of appeal to the Special Educational Needs and Disability (SEND) Tribunal was delayed, B was not provided with appropriate education and the family were caused avoidable distress and frustration.

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What I have investigated

2. I am looking at events since early 2019 to 31 July 2020 when the Council issued B’s final amended EHC Plan.
3. Matters which I cannot investigate are set out in the final paragraph.

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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. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
7. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
8. 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

9. I have made enquiries of the Council and Ms X has responded to the Council’s comments.
10. The Council has considered Ms X’s complaints and has upheld many of them.
11. I issued a draft decision statement to the Council and to Ms X and have taken into account their further comments when issuing this final decision.
12. The Ombudsman’s final statement will be sent to the Office for Standards in Education, Children Services and Skills (Ofsted) in accordance with the arrangement the Ombudsman has to share findings with this organisation.

What I found

Legal and administrative background

13. The Children and Families Act 2014 (the Act) sets out the way councils should assess the special educational needs and disability of children and young people up to the age of 25.
14. Once an assessment determines that special educational needs provision is required for a child, the council must issue an Education, Health and Care Plan (EHC Plan). The council has a duty to ensure it is in place and is maintained.

Annual reviews

15. Councils oversee delivery of EHC Plans through annual reviews, whether by attending meetings themselves, or by reviewing the school’s records of meetings. The Special Educational Needs and Disability Code of Practice January 2015 (the Code) says reviews must be undertaken in partnership with the child and their parent.
16. EHC Plans must be reviewed, as a minimum, every 12 months. The review must consider whether the stated outcomes and supporting targets in the Plan remain appropriate. The first review must be held within 12 months of the date when the EHC Plan was issued and then within 12 months of any previous review.
17. At least two weeks’ notice must be given of the meeting. The person arranging the meeting must obtain advice and information and circulate this two weeks before the meeting.
18. After the review, the council has four weeks to send the child’s parents its decision about whether the EHC Plan is to continue; whether it needs changing or if it is to end. It should issue an amendment notice setting out the proposed changes. If the council decides to amend the EHC Plan it must do that “without delay”.
19. The parents or young person must be given 15 calendar days to comment on the proposed changes. Once a draft Plan has been issued, parents/carers are entitled to request a particular educational placement. Councils should name the placement requested unless they believe that the placement would not meet the needs of the child, would be incompatible with the efficient education of others and incompatible with the efficient use of resources.
20. Section 9.83 of the Code states that, once a school placement is named in the final Plan, the pupil must be admitted to that school.
21. Parents and young people can request a council provides a personal budget for special educational provision in an EHC plan and request direct payments. The request must be made when the draft EHC plan is being prepared, reviewed or re-assessed. (The Special Educational Needs (Personal Budget) Regulations 2014 Section 4(1))
22. The Council says that it will allow a personal budget where the educational placement named on an EHC Plan cannot meet a pupil’s needs.
23. In terms of the timescale for issuing an amendment notice following a decision to amend an EHC Plan, the Council says it:

“ does not yet have a local interpretation of the ‘without delay’ timescale as stipulated within the SEND Code of Practice and, as such, endeavours to issue all amendment notices as soon as possible following a decision to amend as per the legislation. This has been identified as an area of development through Central Bedfordshire’s Written Statement of Action and the Local Authority [the Council] is working with Authorities across the Eastern Region in order to set a regional timeframe for this. Whilst this is not a statutory requirement, it is acknowledged that this would be good practice”.

Appeals

24. Parents can appeal to the Special Educational Needs and Disability Tribunal (SEND Tribunal) when a council refuses to carry out an EHC needs assessment, refuses to issue an EHC Plan or a parent is dissatisfied with the final Plan, and the school named on the Plan. Appeals must be made within two months of the disputed decision.
25. SEND Tribunals do not have the remit to consider personal budgets, direct payments and funding arrangements.
26. Under a pilot scheme, SEND Tribunals can make recommendations about health and social care provision.

What happened

27. B has a diagnosis of autism (ASD), has profound learning and communication difficulties and has epileptic seizures without warning. As a child, he was educated at home using a special provider, Agency U, with expertise in teaching pupils with autism.
28. In June 2018, the Council issued an amended final EHC Plan, naming a post 19 provider, Agency Z, which Ms X thought could meet B’s needs. She also asked for a personal budget to be able to continue with some aspects of Agency U’s provision. But the Council refused this on the basis that Agency Z would be able to meet all of B’s needs.
29. In September 2018, B started at Agency Z.

Events of 2019

30. On 27 February 2019, there was an annual review of B’s EHC Plan. On 30 May, the Council issued a draft amended EHC Plan with some proposed changes to sections of B’s EHC Plan and to the provision being provided by Agency Z.
31. In responding to the draft EHC Plan, Ms X told the Council that she did not think Agency Z could provide for B’s needs and she asked for a personal budget to run a full educational programme at home. Ms X submitted a formal request for a personal budget, providing full costings to cover the provision, amounting to £16,590 per year.
32. There was a meeting at Agency Z, but no minutes were kept. The Council says that this was not an interim review. Ms X’s concerns were about the significant increase in B’s seizures which meant that Ms X felt B was at risk of harm when at Agency Z. Ms X also considered B was becoming very anxious and was reluctant to attend Agency Z.
33. The Council’s Panel declined Ms X’s request for a personal budget on the basis that it considered Agency Z was able to meet B’s needs, that Agency U was not appropriate for a post 19 pupil and it was not an efficient use of the Council’s resources.
34. Ms X wrote to the Director of Children Services, explaining why Agency Z could not meet B’s needs. In response, the Council confirmed that Agency Z was appropriate but that, if B was medically unfit to attend, the Council advised Ms X to contact its Medical Service Team, which it said could provide home tuition. However, Ms X learnt that the Medical Service Team only provided home tuition to pupils aged 16 and under.
35. Ms X decided to withdraw B from Agency Z in July 2019. She continued to email the Council about her concerns regarding the placement at Agency Z. Ms X has told us that B was not engaging with Agency Z, was becoming avoidant, angry and exhausted. She felt that Agency Z did not understand the triggers for B’s seizures or how to work with a pupil with his significant difficulties.

Events of 2020

36. In early March 2020, there was an annual review of B’s EHC Plan. Ms X clarified that Agency Z was not a suitable placement for B and that, since he had stopped attending, B’s epileptic episodes had become less frequent. Soon after the annual review, the Council told Ms X that it intended to cease B’s EHC Plan.
37. Ms X escalated her complaints to the Council. In July, the Council wrote to Ms X to say that it would not cease B’s EHC Plan and asking for the parents’ preference for an educational placement for B.
38. On 31 July 2020, the Council issued a final amended EHC Plan. This now is subject to a Tribunal appeal, due to be heard in July 2021. Ms X had appealed about the special educational needs (section B of the Plan), the special educational provision (section F) and the educational placement (section I).
39. However, Ms X and the Council have now reached an agreement that B should receive ‘education otherwise than at school’ (EOTAS). As I understand it, the only outstanding issue for the SEND Tribunal is what Ms X would like it to recommend in respect of social care provision.

Ms X’s complaints to the Council

40. Ms X has had various responses to her complaints. On 7 August 2020, the Assistant Director sent the Council’s final response. It upheld the following faults:

• failed to send notification of its decision to amend B’s EHC Plan within four weeks of the annual review of 2019;
• delayed in confirming the Panel’s decision not to allow a personal budget;
• failed to recognize Ms X’s emails of 2019 to the Director as complaints;
• failed to reply to Ms X’s email of April 2020;
• delayed in issuing a final amended EHC Plan.

41. The Council considered that it should have issued a final EHC Plan by July 2019 and its fault here had delayed Ms X’s right of appeal to the SEND Tribunal.
42. The Council also recognised that it had a duty to provide B with the special educational provision as set out in his 2018 EHC Plan. However, the Council concluded that the special educational provision was available to B during 2019/2020 given he had a place at Agency Z.
43. The Council says that the EOTAS package, now agreed, is due to the current circumstances and should not be viewed as an admission that this would have been appropriate at the point Ms X made this request in September/October 2019.
44. The Council offered Ms X £500 for her avoidable distress and frustration. It explained that there were now new staff and an improved computer system which should prevent a reoccurrence of the faults Ms X experienced. The Council also agreed to look at the way it dealt with email correspondence to the Directorate, so that, if these were complaints, they would be recognised as such and dealt with in accordance with the Council’s complaints procedure.

Analysis

45. It is to the Council’s credit that it has recognised faults in its annual review process. Over and above the avoidable frustration caused to the family, the main injustice by the Council’s faults is that Ms X’s right of appeal to the SEND Tribunal, which she has now used, was significantly delayed. It is the SEND Tribunal which can decide on educational placement when there is disagreement between a council and parent.
46. Ms X withdrew B from Agency Z in July 2019. She says that B’s epileptic seizures were occurring more frequently without warning. While there was an available place for B during the academic year (September 2019 to July 2020) at Agency Z, Ms X considered this placement would not only fail to meet B’s special educational needs, it could also potentially cause harm to him if he remained.
47. Ms X disagrees with the Council’s assessment that Agency Z would have been a suitable placement for B for the 2019 academic year.
48. The legislation about timescales for issuing amended EHC Plans after an annual review says that this must be done ‘without delay’. As the Council has recognised, there was a delay by it in doing this. The annual review was in February 2019, but it was not until the end of July 2020 that the final amended EHC Plan was issued, and Ms X could appeal to the SEND Tribunal.
49. Had Ms X received the final amended EHC Plan sooner in 2019, say by mid 2019, I am satisfied that she would have exercised her right of appeal because she had withdrawn B from the placement at Agency Z and she disagreed with the Council about its suitability. Normally it takes about four months for an appeal to be heard (pre-Covid 19), so Ms X might have had the appeal decision by late 2019. Ms X would have asked then for a funded educational programme for B at home, as she now has done.
50. The main disagreement about B’s placement has now been resolved through the Tribunal. The outstanding issue for the Ombudsman is about the injustice caused to B and to Ms X by the Council’s accepted faults.
51. I accept the Council’s argument that, just because it has agreed EOTAS now, it does not follow it would have done sooner. And it is not for the Ombudsman to decide on the suitability of placements. But the delay in enabling Ms X to appeal to the SEND Tribunal has delayed her opportunity to have her concerns about Agency Z as a suitable placement for B being considered by an independent body, tasked with making decisions on placement issues.
52. On the balance of probability, Ms X is likely to have had a SEND Tribunal decision by early 2020, but for the Council’s delay. Even if this decision did not support Ms X’s preferred placement, the uncertainty about the next educational provision for B would have been removed.

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How we remedy injustice?

53. We take the individual circumstances of each complainant into account when recommending remedies. For injustice such as avoidable distress, harm or risk, the complainant usually cannot be put back in the position they would have been in but for the faults identified. Therefore, we usually recommend a symbolic payment to recognise the impact of the fault on the complainant.
54. Distress can include uncertainty about how the outcome might have been different but for the faults and can include lost opportunity.
55. Where there has been avoidable distress, our recommendation to remedy such injustice are normally between £300 to £1,000 depending on the severity of the injustice, the vulnerability of those affected and whether the injustice is over a prolonged period.
56. In respect of a loss of education, we try to address the educational disadvantage caused. Where there has been no provision or limited provision, we normally recommend between £200 to £600 for each month of lost education.
57. We also can recommend procedural improvements to try to prevent a recurrence of fault and we can consider whether it is likely others may have been affected by the fault identified and caused an injustice.

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Agreed actions

58. B is vulnerable and an earlier SEND Tribunal decision about educational placement would have been beneficial to him and to Ms X and her family. As said, I cannot say what decision an earlier SEND Tribunal would have come to. So, the injustice in this case is avoidable distress, time and trouble and lost opportunity for an independent body to determine B’s educational placement sooner.
59. It also means that the next educational provision for B would have been decided approximately by early January 2020, but for the Council’s delay. So, B has lost out on receiving this provision sooner, whatever it might have been. This amounts to approximately six months of lost provision (January-July 2020 but recognising also the holiday periods and that the latter part falls within the Covid 19 lockdown).
60. After the end of July 2020, the Ombudsman’s remit comes to an end because Ms X exercised her right of appeal to the SEND Tribunal.
61. As B is vulnerable, such lost opportunities would have had a greater impact on him and his family than on others. So, on that basis, I recommended a symbolic payment at the higher end of the Ombudsman’s tariff.
62. Within six weeks of the date of the final statement, the Council will pay:
1. Ms X £500 (in addition to the £500 already offered by the Council) for her avoidable distress and time and trouble;
2. B £2,700 for his lost opportunities to have his educational placement determined by the SEND Tribunal sooner and the lost opportunity to take advantage of what the Tribunal decided. This payment is calculated on the basis of £600 per month for the period of January to March 2020 and then £300 for the subsequent period during Covid 19 lockdown (May to July 2020, three months). The payment should be made to Ms X for her to use for B’s educational advantage as she sees appropriate;
3. the Council has made changes to its procedures, and it is seeking to clarify a timescale, with partner agencies, for issuing a draft amended EHC Plan, after an annual review has decided to amend the Plan. The Council will report back to the Ombudsman within three months of the date of the final statement on how this liaison with partner agencies is progressing and if a decision about timescales has been reached.

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Final decision

63. There is fault by the Council causing injustice. The Council has agreed to the recommended ways to resolve this. Therefore, I have completed my investigation and am closing the complaint.

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Parts of the complaint that I did not investigate

64. I have not investigated the concerns about Agency Z. I have also not investigated matters after 31 July 2020 because matters were subject to appeal to the SEND Tribunal.
65. I cannot comment on the suitability of educational placements. Only a SEND Tribunal can do this.

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Investigator's decision on behalf of the Ombudsman