The Ombudsman's final decision
Summary: We found fault with the Council for failing to organise Y’s annual review of their Education, Health and Care plan. We also found fault with the Council for failing to ensure Y was entered for their GCSE grade assessment. This caused Y significant distress. The Council agreed actions to remedy the injustice.
The complaint
Mrs X complained about the Council’s failures in respect of her child, Y. She complained the Council: Failed to ensure Y was entered for their GCSE assessments in 2021.
Failed to carry out Y’s EHCP annual review prior to their transition to College in September 2021.
Changed section I of Y’s EHCP to ‘education other than at school’ without agreement from parents.
Mrs X said this caused significant distress to both Y and the family. Mrs X also experienced time and trouble resolving the issues herself.
The Ombudsman’s role and powers
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) 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”.
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) 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.
How I considered this complaint
I spoke to Mrs X and considered the information she provided with her complaint. I made enquiries with the Council and considered its response with relevant law and guidance.
Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Law and guidance Education, Health and Care plan review The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.
For young people with an EHC plan, preparation for transition to adulthood must begin from year 9 (age 13 to 14). Transition planning must consider the young person’s needs as they move towards adulthood. It should plan to support their choices for further education, employment, career planning, financial support, accommodation, and personal budgets where appropriate.
An EHC plan 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.
For young people moving from secondary school to a post-16 institution or apprenticeship, the review and any amendments to the EHC plan – including specifying the post-16 provision and naming the institution – must be completed by the 31 March in the calendar year of the transfer.
Alternative provision Alternative provision settings are places that provide education for children who can’t go to a mainstream school.
Councils are responsible for arranging suitable full-time education for pupils who would not receive suitable education without such provision. This applies to all children of compulsory school ae resident in the Council area, whether or not they are on the roll of a school.
What happened What follows is a brief chronology of key events. It does not contain all the information I reviewed during my investigation.
Y was unable to attend mainstream school. They had an EHCP and were educated online from 2019. Y initially remained on roll at School A and the online tuition was provided by Academy B, an online provider.
In 2021 Y was in Year 11 and due to take their GCSE’s. They wanted to go to College C from September 2021. Due to COVID-19 the 2021 GCSE’s were based on teacher assessed grades and students did not sit exams.
In January 2021 Mrs X requested Y’s predicted grades for their college application. Academy B sent the grades to Y’s EHC co-ordinator.
In January Academy B told the Council it was unlikely GCSE exams would take place.
In February a new EHC co-ordinator wrote to Mrs X about Y’s EHCP review. They asked Mrs X if Academy B had done an EHCP review. They also asked Mrs X what Y’s preferred setting was for September 2021.
Between March and June Mrs X contacted the Council about Y’s grades and end date for Academy B. There was no EHC co-ordinator allocated for Y during this period.
In July Mrs X emailed the Council because she did not know who Y’s EHC co-ordinator was and there had been no EHCP review. The EHCP review took place on 23 July. It named College C in section I of Y’s EHCP.
In August Mrs X contacted the Council because she was unable to get Y’s grades on GCSE results day. Mrs X made a complaint. She complained the Council: Allowed School A to ‘off role’ Y despite Academy B being clear pupils should remain registered at their school.
Failed to enter Y for her teacher assessed grades.
Failed to respond to calls and emails.
The Council responded in September. It said: The decision to take Y off role at School A meant she was unable to have her teacher assessed grades moderated by the school and this caused Mrs X and Y anxiety about her grades and place at College C.
The high turnover of officers and impact of COVID-19 had affected the communication with Mrs X. It made changes to the EHC coordinator allocation. It told Mrs X the name of the EHC coordinator for College C.
There was a breakdown in communication and the Council failed to register the teacher assessed grades with the exam boards.
Mrs X was unhappy with the Council’s response and asked for her complaint to be considered at stage two of the complaint process.
In January 2022 Mrs X emailed the Council again about Y’s GCSE’s. She said: “It is now almost a year since Y should have been registered for their GCSE exams. (The exam board) have informed me that (Y) still hasn’t been registered for their English Language and Literature GCSEs.
If Y is not registered soon they may no longer be able to achieve grades for English GCSEs. This will impact their whole life.
Someone at the LA (Council) needs to take responsibility and find out why provider Z have still not registered Y.
This issue has gone on for too long and is causing undue stress”.
In March the Council gave its final complaint response. It said: Education other than at school (EOTAS) should only be named in Section I of the EHCP with parental agreement. It apologised and explained the action it took to prevent it happening in the future.
The email about Y's exam registration was sent to an individual’s email address who had left the department. There was no auto forward in place so the email was not read.
It apologised for the stress and anxiety it caused Mrs X and Y.
It acknowledged the time Mrs X spent contacting organisations about the GCSE results and pursuing her complaint. It offered Mrs X £250 in recognition of this.
It apologised for the delay and lack of communication during the EHCP process.
The Council also agreed to other desired outcomes Mrs X requested, including an early EHCP review.
Mrs X remained unhappy with the Councils response and complained to the Ombudsman.
My findings
My findings are summarised under the main complaint headings: Education other than at school (EOTAS) I found fault with the Council for failing to consult Mrs X about its decision to remove School A from Section I of Y’s EHCP. It replaced School A with EOTAS without discussing the decision with Mrs X.
The decision in respect of naming EOTAS in Section I is appealable so my decision only relates to the failure to consult Mrs X not the decision itself.
The Council acknowledged the fault in its own complaint handling: “The guidance confirms taking a child off role should only be done in exceptional circumstances when parents agree to EOTAS”.
As a result of this complaint the Council reminded its officers of the relevant guidance.
EHCP review I found fault with the Council for failing to carry out Y’s EHCP review in 2021. It also failed to finalise the EHCP by 31 March 2021, as set out in the statutory guidance.
It appeared to expect Academy B to carry out the EHCP review and provide the paperwork. It was clear from the information that Academy B do not co-ordinate or organise EHCP reviews.
I had several concerns about the Council’s actions and response to the EHCP review and Mrs X’s complaint: The Council asked Mrs X if an EHCP review had been done since Y started Academy B. It was clear it did not know and had no record of any reviews.
It failed to hold an EHCP review in a key transition year for Y.
On balance, the failure to hold the review and carry out the correct process contributed to the failures that followed in respect of the GCSE grades.
The Council failed to work effectively with Y and Mrs X during the EHCP process which caused additional, unnecessary distress.
The Councils communication about the review was inconsistent, poor and disorganised.
The Council let Y down in a significant and key period of their education and transition to further education.
GCSE exam entry I found fault with the Council for failing to register Y for their teacher assessed grades in 2021.
The failure to enter Y for the GCSE grades was indicative of the service failure in this case. There was no allocated EHC co-ordinator for four months, no EHCP review and a high turnover of officers. The Council did not have a system in place to allow for effective handover and oversight and prevent Y’s case being missed.
Whilst COVID-19 contributed to the difficulties it was not the main factor that led to the failure to enter Y for their assessed grades. There was a lack of understanding about Academy B’s role and a failure to communicate and share information.
The complaint responses acknowledged the fault but attempted to explain the miscommunication that took place amongst various officers and individuals rather than acknowledge the service issues that led to the failures in this case.
I cannot overestimate the impact this had on both Y and Mrs X. Y had worked hard in difficult circumstances and overcome significant challenges to obtain their GCSE’s, only to find out on results day that they had not been entered or awarded their grades. This also cast doubt on their college place and whether they would have to re-sit some subjects.
The Council’s failures caused both Mrs X and Y significant distress. The Council’s complaint response remedied some of the injustice to Mrs X but it did not go far enough. It failed to fully acknowledge and remedy the injustice it caused Y. It missed an opportunity to resolve the complaint during its own complaint handling and caused Mrs X further time and trouble bringing her complaint to us.
The Council agreed actions to remedy the injustice to Y and Mrs X. I did not made further service improvement recommendations because I was satisfied with the actions the Council took following its own complaint investigation.
Agreed action
Within one month of my final decision the Council agrees to: Apologise to Y for the faults in this case and the injustice this caused.
Pay Y £1000 in recognition of the significant distress it caused them.
Pay Mrs X £1000 in recognition of the significant distress it caused her.
The Council should provide us with evidence it has complied with the above actions.
Final decision
I found fault with the Council and completed my investigation.
Investigator's decision on behalf of the Ombudsman