Summary: Mrs B complained the Council failed to provide her son with an education placement and education, health and care provision for over three years. She also complained the Council failed to review her son’s education, health and care plan during this time. Mrs B said because of this her son’s mental health declined and he missed the opportunity to gain qualifications and develop independence skills. The Council was at fault for failing to review Mrs B’s son’s education, health, and care plan. It will make a payment to C to remedy the uncertainty caused by its fault.

The complaint

1. Mrs B complained the Council failed to provide her son with an education placement and education, health and care provision for over three years. She also complained the Council failed to review her son’s education, health and care plan during this time. Mrs B said because of this her son’s mental health declined and he missed the opportunity to gain qualifications and develop independence skills.
2. We usually do not consider complaints where the complainant took longer than 12 months from when they first became aware of the issue to complain to the Council. In this case, I exercised discretion to consider the complaint from December 2018 to when the Council issued its notice to cease C’s EHC plan in July 2022. Mrs B has exercised her right to appeal this decision to the SEND tribunal.

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The Ombudsman’s role and powers

3. 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)
4. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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 provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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)
7. 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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How I considered this complaint

8. I considered:
• Mrs B’s complaint and the information she provided;
• documents supplied by the Council;
• relevant legislation and guidelines; and
• the Council’s policies and procedures.
9. Mrs B and the Council commented on two draft decisions. I considered their comments before making a final decision.

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What I found

Legislation and Guidance

10. A child with special educational needs may have an EHC plan. This sets out the child’s needs and what arrangements should be made to meet them. Part 3 of the Children and Families Act 2014, the Special Educational Needs and Disability (SEND) Regulations 2014 and the SEND code of practice: 0 to 25 years give council’s information about its duties.
11. We cannot direct changes to the sections about education or name a different school. Only the SEND tribunal can do this.
12. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
13. EHC plans should be used to actively monitor children and young people’s progress towards their outcomes and long-term aspirations. They must be reviewed by the Council as a minimum every 12 months.
14. When England entered a national lockdown because of COVID-19 on 23 March 2020 schools were closed to most children. They remained open only to vulnerable children, and children of specified key workers. Schools reopened to all students in September 2020. Schools closed again between 5 January and 8 March 2021.
15. On 30 April 2020 the Government issued new guidance about changes to the law, which temporarily relieved councils of their duty to arrange provisions in EHC Plans (section 42 of the Education Act). The new legislation was enacted the following day (01 May). This meant councils were only required to make ‘reasonable endeavours’ to arrange SEN provision. This power lasted until 31 July 2020, after which point the absolute duty to arrange SEN provision was reinstated.

What happened

16. This chronology includes key events in this case and does not cover everything that happened.
17. C has a diagnosis of autism spectrum condition. He has difficulty with social interaction, anxiety, and emotional regulation.
18. The Council issued an amended EHC plan for C in 2017. The Council named a specialist education provider, provider 1, in his EHC plan from September 2017. Provider 1 offered education and therapeutic support for children and young people with special educational needs. 
19. In September 2017, C transitioned to post 16 education and started a placement at provider 1.
20. Provider 1 reviewed C’s EHC plan in December 2018. The plan states C’s engagement with provider 1 had been inconsistent since the spring term 2018. It said provider 1 had only seen C three times that academic year. It said C was struggling to live with his sibling and he coped with this by being nocturnal, but this limited his ability to engage with provider 1. The review recommended C’s EHC plan was not amended.
21. Following the review, provider 1 said it told the Council’s SEND 0-25 team, C was not attending, and his engagement had been inconsistent since the start of the spring term 2018. Provider 1 said it told the Council it had ended C’s placement because of his absence. The Council said it could not find any evidence provider 1 said it was going to end C’s placement.
22. Provider 1 contacted the Council’s SEND 0-25 team in November and December 2020 about C. It told the Council C’s placement was suspended because of a lack of attendance and engagement. It said C’s parents were seeking to re-engage C with Provider 1. It asked the Council for advice and about funding. The Council said it would hold a review for C and consider what placement would meet his needs.
23. Provider 1 emailed the Council’s SEND 0-25 team again in March 2021. It said Mrs B said for the first time in a long time C was expressing a desire to achieve his GCSE’s and to re-engage in education. Provider 1 asked the Council about it holding a review.
24. In April 2022, Provider 1 told the Council it would remove C from its roll because of his absence.
25. Mrs B contacted the Council in June 2022. She asked the Council for help saying she had been trying for two years to get her son back into education. She said provider 1 had contacted the Council’s SEND 0-25 team but the team did not respond. She told the Council that C’s EHC plan review was four years overdue.
26. Mrs B complained to the Council in June 2022. Her complaints included the Council had not:
• Reviewed C’s EHC plan since 2017.
• Secured education or EHC provision for C since 2017.
• Worked with other agencies despite C’s complex needs.
• Respected C’s human rights.
• Kept her up-to-date.
27. Mrs B said the Council’s faults led to C’s mental health declining and him having no formal qualifications. She said the situation negatively impacted the rest of the family and she had to give up work to care for C when he should have been attending an education placement.
28. The Council held an EHC plan review for C in July 2022. In August 2022, the Council told Mrs B it had decided to cease C’s EHC plan. Mrs B has appealed against the decision to the SEND tribunal.
29. The Council responded to Mrs B’s complaint in August 2022. The Council apologised for not reviewing C’s EHC plan since December 2018. It told Mrs B from September 2017 until March 2022 C was on roll at provider 1 and this provision was available to him. It said it had since carried out a review and decided to cease C’s plan. It advised adult services would review his needs.

Enquiries

30. As part of this investigation, my colleague interviewed the Council’s 0-25 SEND manager and the SEND commissioning officer. The Council:
• Accepted it failed to hold annual EHC plan reviews for C.
• Said it was likely that if it had held an EHC plan review for C in 2019 it would have ceased his plan.
• Stated in December 2020, following a request from Mrs B and provider 1 for C to return to the placement, it asked provider 1 to undertake a review for C. The Council said this did not happen, and it did not follow it up.
• Said Mrs B did not raise her concerns until 2022 when she started to complain.
• Said there were other children whose annual reviews were out-of-date, and it had created a backlog team to work through these cases.
31. The Council advised it has introduced a casework management system which allows team managers to monitor the caseloads for case officers for both statutory assessments and EHC plan reviews. 
32. The Council provided evidence to show it continued to pay for C’s placement at provider 1 from 2019 until the end of the autumn term 21/2022. Provider 1 said the Council gave it a funding schedule each term and C was on it until April 2022. Provider 1 advised after the Council paid, it returned excess commissioned funds for the days learners were not timetabled for. It said all funds were returned for C for the second half of the autumn 2018 term until he was formally removed from the schedule of payments in spring 2022.

Analysis

33. The Council had a duty to ensure C’s EHC plan was reviewed at a minimum, annually. This responsibility was non-delegable. The Council was therefore at fault for failing to review C’s EHC plan in 2019, 2020 and 2021. The Council’s fault meant for three and a half years it did not actively review C’s progress, ensure he was receiving the provision in his EHC plan, or consider whether the provision still met his needs. The Council said in response to enquiries if it had reviewed C’s needs in 2019, it would have ceased his plan.
34. Mrs B reports the Council’s failure to provide C with education and EHC provision had a huge impact on him and their family. She said C’s mental health declined, he missed engaging with peers and did not have the opportunity to develop independence skills. Mrs B said she had to give up her job to care for C full-time. Mrs B is keen for C to receive the education and EHC provision he missed so he can gain qualifications and increase his independence.
35. If the Council had reviewed C’s EHC plan in 2019, 2020 or 2021, it would have been aware of his non-attendance. If the Council had done so, it says it would have ceased C’s EHC plan. I accept this is likely to have been the case as C stopped attending his placement in 2018 and was above compulsory school age. Therefore, I cannot say C missed education or EHC provision because of the Council’s fault. Instead, I consider the injustice to C is the uncertainty about what might have happened if the Council had reviewed his EHC plan as it should have, annually. I recommend the Council make a financial payment to C to remedy this injustice.

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Agreed action

36. Within one month of the final decision, the Council will:
• Apologise to Mrs B and C for the faults found in this investigation.
• Pay C £500 a year for three and a half years for the uncertainty caused by the Council’s faults: £1750 in total.
37. Within two months of the final decision, the Council will:
• Produce an action plan to set out how it intends to address delays in EHC plan reviews, and report on the action plan to the relevant committee.
• Review its policies and procedures to ensure it monitors and audits the funding of placements to ensure payments do not continue to be made when a child or young person is no longer on roll.
38. The Council should provide us with evidence it has complied with the above actions.

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Final decision

39. I have completed my investigation and uphold Mrs B’s complaint. Mrs B and C were caused an injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman