The Ombudsman's final decision
Summary: Ms X complains the Council was at fault in the way it dealt with her son’s Education, Health and Care needs assessment, an annual review decision and in ensuring her son received the provision in his Education, Health and Care Plan causing distress to Ms X and her son and lost educational provision. We found fault as the Council delayed issuing a decision following an annual review in 2019. But this did not cause a significant injustice to Ms X and her son. We found no evidence of fault in the way the Council dealt with an Education, Health, and Care needs assessment in 2019 and in its response to Ms X’s concerns about the educational provision being made for her son by his school. So, we have completed our investigation.
The complaint
I have called the complainant Ms X. She complains the Council has: failed to provide her son Y with suitable education and provision as set out in his Education Health and Care Plan (EHCP) from September 2019 to October 2021.
delayed finalising Y’s EHCP annual review carried out in October 2020 until July 2021.
failed to communicate with her.
Ms X says the Council’s failings have caused her and Y significant distress and uncertainty. Ms X says Y has been denied access to suitable education and provisions. Ms X says it has also caused her financial loss and time and trouble chasing the Council for updates on Y’s education, provision and EHCP matters.
The Ombudsman’s role and powers
The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide: there is not enough evidence of fault to justify investigating, or any fault has not caused injustice to the person who complained, or any injustice is not significant enough to justify our involvement.
it would be reasonable for the person to ask for an organisation review or appeal.
(Local Government Act 1974, section 24A(6)) The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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). 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.
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)
How I considered this complaint
I have read the documents submitted by Ms X and spoken to her about the complaint. I considered the Council’s comments on the complaint and the supporting documents it provided.
Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
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.
What I found
Education, Health and Care Plan (EHCP) A child with special educational needs (SEN) may have an 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 SEND Tribunal can do this.
Appeals Parents have a right to appeal to the SEND Tribunal if a council refuses to carry out an assessment. Or they disagree with the special education provision, or the school named in the child’s EHCP.
Assessments 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. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says: Where a local authority 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).
Annual Reviews Councils must review EHCP’s at least every 12 months.
Councils must decide whether to maintain the EHCP in its current form, amend it, or cease to maintain it within four weeks of the review meeting. The Council should issue the final EHCP or decide not to amend the EHCP at all as soon as practicable and within eight weeks of the date it sent the plan to the parents/young person with the proposed amendments. Decisions to amend or cease a plan can be appealed to the Tribunal.
What happened in this case This section sets out the key events in this case and is not intended to be a detailed chronology.
EHC Needs Assessment and EHCP 2019 In April 2019 Ms X asked the Council to carry out an EHC needs assessment on her son Y who was then 4 years old and attending pre-school provision. Y suffered from anxiety, a speech disorder and social communication difficulties. The Council carried out the needs assessment and issued a draft EHCP in July 2019. This proposed Y continue to attend his mainstream pre-school provision. This would meet his special educational needs until statutory school age, and he transferred to a local mainstream school. The Council consulted with the designated school for Y’s address (School J) and Ms X’s preferred school (School K).
Ms X commented on the draft EHCP and expressed a preference for Y to attend School L, an independent school because of the small class sizes. The Council consulted with School L in July 2019. School J responded it could meet Y’s needs and be named on the draft EHCP.
Ms X disagreed with information from an education psychologist about Y and asked for amendments. Ms X asked the Council not to finalise the EHCP until it received a report from an occupational therapy assessment Y was due to have.
The Council chased School L for a consultation response during August 2019. Ms X complained about the delay as Y would not have a named placement in time for September 2019. The Council said it sent the consultation to the school’s main email address according to its protocol. But the school might not have seen it due to the summer holiday closure and so not obliged to respond. The Council explained the Department for Education allows councils an exception to cases falling during the summer holiday as it will delay the assessment.
The Council told Ms X it could not name a school in the final EHCP until it had a consultation response. But Y had choices for September 2019. It could name School K in the final EHCP, or Ms X could keep Y at his pre-school. This was because the law did not need Y to be in full time education until the school term after he turned five years old. This would be January 2020 and the Council should decide his placement by then.
Ms X home-schooled Y from September 2019. The Council received the OT report and chased school L for a consultation response. Ms X asked the Council for a personal budget to pay Y’s education costs while it finished the statutory assessment as it had made no school provision for Y.
The school sent a consultation response in September 2019 as it had not seen the email. The Council was satisfied School L could admit Y and meet his SEN. The Council issued a draft EHCP in October 2019 naming School L as Y’s placement and agreeing to fund a full time Teaching Assistant (TA).
Ms X asked the Council to reimburse her for Y’s educational costs while he was at home. The Council refused Ms X’s request. This was because the Council would not have a final EHCP and support in place for September 2019 due to the assessment falling over school holidays and request to wait for the OT report. But it had advised Ms X School J had a place and Y did not need to be in school until January 2020.
Ms X commented on the draft EHCP, and the Council issued a second amended draft. Ms X confirmed she was happy for the Council to issue the final EHCP which it did so in October 2019. This named School J as the nearer school to Y’s home address. But also named School L as parental preference on the condition Ms X paid all transport costs. Y remained at School L. Ms X says Y started at the school in January 2020. The Council paid Y’s school fees.
EHCP Annual review October 2020 School L carried out Y’s annual review in October 2020 and sent a report to the Council in December 2020. The Council says the report did not highlight any concerns about Y’s attendance, behaviour, or delivery of provision in the plan on behalf of the school. The review noted Ms X did not believe Y was making progress towards the outcomes in his EHCP but there were no other parental comments.
The review of outcomes noted that Y was not attending school because of the Covid-19 pandemic. It also noted Y did not return to school after lockdown due to a family member shielding. But Y took part in virtual learning and was now being gradually reintegrated into school by a step-by-step approach.
Ms X’s complaints June 2021 Ms X complained to the Council in June 2021 about Y’s mental health and concerns on the school placement. Ms X said she had been trying to contact Y’s caseworker since the beginning of March 2021 about it without success. Ms X said she recently found out Y’s caseworker had changed but her messages had not been passed on.
Ms X complained Y had only been attending school for two hours a day due to his mental health. Ms X considered the small class sizes at School L were not working, and Y not managing without support. Ms X said there were no other school placement options and so she had paid for a tutor for Y since March 2021 due to the lack of contact from the Council. Ms X asked the Council for a personal budget to meet Y’s educational needs while his mental health was supported to pay for the tutor. Ms X noted it was seven months after the annual review and the Council had not issued the review decision.
The Council apologised for the delay in responding to Ms X and it would only consider a personal budget as a last resort once it looked at other schools. If Y remained on School L’s roll it would consider supporting the school to put some alternative provision in place. The Council asked Ms X if she wanted a specialist provision for Y as the initial assessment in 2019 showed mainstream schools felt unable to support him.
Y’s caseworker spoke to Ms X who agreed to wait to see how things were after the summer holidays. The caseworker agreed to contact School L to discuss Ms X’s concerns and request a review of Y’s EHCP early in the Autumn term. The Council’s records noted it was unaware of any issues with Y at the school and unaware of any attempts by Ms X to contact it before her conversation with Y’s caseworker.
Ms X contacted the Council requesting a package of support over the summer for Y with a personal budget. The Council said it would contact the school and see if it could provide Y with any support.
The case worker contacted school L who said Y did not behave at school as Ms X described at home. Y presented as comfortable in class and not anxious. Y engaged in classwork and seemed fine in the classroom. The school said it had good support in place for Y and the family. But this broke down recently with Y disengaging and his attendance dropping slightly. The school said Y received one to one support and was on a part-time timetable. The school felt it was doing all it could. The school was due to close for the summer so agreed to a meeting in the autumn term to discuss Ms X’s concerns.
The Council issued its annual review decision in early July 2021. It did not intend to make any changes and would maintain the plan. The Council advised Ms X of her rights of appeal to the SEND tribunal and planned Y’s next review for July 2022.
The Council responded to Ms X’s complaint and accepted it did not carry out the review within statutory timeframes. The Council apologised for any distress and anxiety caused. The Council apologised it had not told Ms X about the change of Y’s caseworker. But noted when she contacted a caseworker, they contacted the school about Ms X’s concerns and arranged a review of Y’s EHCP. The Council noted Y’s attendance at school had improved.
Annual Review October 2021 The Council contacted School L early in September 2021 to arrange an annual review meeting. It explained Ms X needed it to decide whether to request a change of Y’s current placement or have a personal budget. School L confirmed Y’s attendance had been better in the autumn tern with most unattended sessions in the afternoon. The school agreed it would discuss an early review meeting with Ms X.
School L told the Council things were going well with Y, so Ms X no longer needed the early review. Both the school and Ms X were happy with the arrangements in place. Ms X contacted the Council to confirm this but raised concerns about Y’s TA . Ms X said the school employed a new TA she considered did not understand Y’s needs. The Council advised Ms X to speak to the school and seek a review if she wanted to explore alternatives.
Ms X contacted the caseworker in January 2022 to ask about possibly changing Y’s placement for the next academic year in September 2022 and raised concerns about Y’s TA. Ms X said she would consider her options and contact the caseworker with her preferences. The caseworker said the Council could consult with other placement options once Ms X decided.
The Council contacted School L for Y’s absence rate and what support was in place to increase his attendance. The school said Y attended nearly full-time last term and most absences caused by his anxiety. The school said Y tended to make a step backwards at the start of each term before finding his confidence again. The school was running a graduated attendance programme to support Y’s anxiety needs. This meant increasing his daily hours over time following a recommendation from the team working with him. The school said it had shared the approach taken with Ms X.
The Council says it is waiting to hear from Ms X about her school preference. Once received it will propose amendments to Y’s EHCP outside of the review process and carry out consultations on the parents’ choice of school.
The Council’s comments on the complaint Delays in carrying out the EHC needs Assessment in 2019 The Council confirmed it agreed to do an EHC needs assessment on Y in April 2019 and should have finalised the plan by 31 July 2019 in line with the 20-week requirement. But it could not do so as Ms X disputed the Education Psychologist report and asked for amendments. Ms X also asked the Council not to complete the Plan until it received the OT report of an assessment taking place during the summer holidays. In addition, School L did not respond to the consultation within the required 15 days.
The Council took steps to finalise the plan without further delay. This was by engaging with School L to support it meeting Y’s needs and amending the draft EHCP to Ms X’s satisfaction. This enabled the final plan to be issued on 24 October 2019. While it was taking these steps Ms X chose to educate Y at home. Ms X sought a personal budget to help her meet Y’s costs. But the Council advised her a personal budget was not an option as it had a school place available for Y at School J, his local school.
My assessment
The Council accepts it took longer than 20 weeks to finalise the EHCP. This was due to the lack of response from the school and the case falling over the summer holidays which allows an exception to the timescales. Ms X also requested amendments to a report and asked the Council not to finalise the plan until it received an OT report. So, while the EHCP took longer to complete than the statutory timescales I cannot say it was due to any fault by the Council.
The Council received the OT report in September 2019 and finalised the EHCP in October 2019. The Council had advised Ms X of options for a place at school J for Y in September 2019. Or she could wait until January 2020 to send Y to school when the placement would be decided. Ms X chose to educate Y at home in September 2019 and so became responsible for any costs up to the date the Council issued the EHCP.
Annual review in October 2021 The Council accepts it delayed in completing Y’s review in October 2020. This was due to the challenges facing the SEN team then in dealing with the number of EHCP’s in the County, amendments requested and agreed. The Council has addressed this by employing more staff and allocating a caseload to a caseworker. But the SEN team remains under significant pressure with the number of requests for statutory assessments expected to increase in line with the national trend and issuing of statutory plans.
My assessment
The Council accepts delays in issuing the annual review decision following the meeting in October 2020. This should have been done within 4 weeks of the meeting. The Council did not issue the decision until July 2021. This is fault by the Council as it did not comply with statutory timescales. However, I consider the injustice to Ms X and Y is limited. This is because the Council established Y was receiving virtual learning as he did not return to school after the second national lockdown at the end of 2020 due to the Covid-19 pandemic. The school confirmed to the Council and provided evidence it was supporting Y. It was also helping him return to school in 2021 and involving Ms X in the approaches used. There is no evidence Ms X pursued the issue of the annual review decision before May 2021 when speaking to a caseworker. I would expect her to have done if she had concerns about Y’s EHCP provision.
Y receiving a part time timetable The Council became aware Y was not attending school L full-time in July 2021. But the school did not formally tell the Council of the arrangement as required through form Annex R. This notifies the Council a child is on a temporary part time school timetable. The Council has explained the Annex R procedure to the school which allows for ongoing review. However, the Council checked the situation with the school in June 2021. School L explained the timetable arrangements and approaches to managing and supporting the increase in Y’s attendance. These were agreed in discussion with Ms X, and she was involved throughout the process.
The Council confirms Y’s caseworker contacted Ms X in June 2021 to check Y remained on School L’s roll. This was because Ms X advised the placement had broken down with her engaging a private tutor. Ms X confirmed Y remained on the school roll but wanted to wait and see how things were after the summer holidays. The caseworker discussed matters with the school and Ms X in the autumn term. The school confirmed Y’s attendance had dropped but it was not experiencing the behaviours Ms X described. The school confirmed Ms X did not want a review as she was happy with the arrangements in place.
The Council says Ms X sought funding for the tutor in June 2021. The caseworker was engaging with School L to see what education was in place for Y at the time of the request. School L continued to maintain that Y was able to access the education on offer to him while at school. It did not experience the behaviour Ms X described from Y at home. So, the Council refused the request to pay for the tutor. It says it continued to communicate with Ms X offering advice and support to her and the school when requested.
The Council says from the date of the final EHCP in October 2019, Y’s admittance, and review in 2020 neither Ms X or the school have raised concerns about his attendance or the placement being at risk. It has also never been identified that Y is unable to attend school on medical grounds. Neither has School L made any request for Y to attend alternative provision.
The Council remains waiting to hear further from Ms X about a possible request to change Y’s placement.
My assessment
The Council’s documents show it was unaware Y was on a part time timetable until June 2021 as the school did not formally notify of this as required. There is also no evidence recorded that Ms X raised any concerns with the Council before contacting the caseworker in May 2021. The Council responded and contacted the school. It was satisfied the school was supporting Y and he was able to access the education in place for him. The school confirmed again Ms X was involved and agreed the approaches used by the school to increase his attendance.
The Council has no evidence Y cannot attend school for medical reasons. So, it has declined Ms X’s request to pay a tutor. The Council has offered Ms X the option of an early annual review if she remains unhappy with Y’s provision. But so far Ms X has chosen not to take this option. There is no evidence of fault in the Council’s response to Ms X’s concerns about Y’s EHCP provision by School L.
Final decision
I am completing my investigation. There was fault by the Council as it delayed issuing an annual review decision in 2020. But this did not cause a significant personal injustice to Ms X and her son. There is no evidence of fault in the way the Council dealt with an EHC needs assessment in 2019 and responded to Ms X’s concerns about the provision of her son’s EHCP by his school.
Investigator's decision on behalf of the Ombudsman