Summary: We upheld Mrs X’s complaint about how the Council has handled her daughter Y’s education, health and care provision. There was fault in the Council’s approach to Y’s annual reviews and preparation for adulthood. The Council also failed to explain what provision would be delivered when colleges closed to most learners in response to COVID-19. These faults caused an injustice to Mrs X and Y, and the Council agreed to take action to remedy this.

The complaint

1. Mrs X complains about a lack of special educational needs provision for her daughter, Y. She says the Council failed to ensure annual reviews took place and did not respond to her complaint. She would like the Council to review and issue a new education, health and care plan and to secure the education and support her daughter needs.

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The Ombudsman’s role and powers

2. 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)
3. We cannot investigate complaints about what happens in schools or colleges. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
4. 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

5. I have considered the complaint made by Mrs X and the documents she provided.
6. I considered the Council’s comments about the complaint and the documents it provided in response to my enquiries.
7. I took account of the following Ombudsman’s focus reports:
• ‘Education, Health and Care Plans: our first 100 investigations’ published in October 2017.
• ‘Not going to plan? Education, Health and Care Plans two years on’ published in October 2019.
8. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
9. 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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What I found

Legislation and guidance

10. The legal duties of councils towards children and young people with special educational needs or disabilities (SEND) are set out in the Children and Families Act 2014. This is accompanied by regulations and a code of practice, known as the SEN Code.
11. A young person with special educational needs or disabilities (SEND) may have an education, health and care (EHC) plan. This sets out the young person’s needs and what arrangements should be made to meet them. Councils are responsible for making sure that all the provision in the EHC plan are put in place (Children and Families Act 2014, Section 42).

Annual reviews

12. Councils must review EHC plans each year. The first review must be held within 12 months of the date the EHC plan was issued, and then within 12 months of any previous review. Councils must communicate any decision made following the review to the young person or their parents within four weeks of the meeting. If a council decides not to amend the plan, or to stop maintaining a plan, it must advise the young person or parent of their right to appeal the decision.

Preparation for Adulthood

13. 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.

Impact of the COVID-19 pandemic

14. 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’.
15. The Coronavirus Act 2020 allowed the Secretary of State to temporarily change existing legal requirements and issue guidance about provision of education for children with special educational needs and disabilities.

Risk assessments

16. On 23 March 2020 schools in England closed to most pupils as part of the first national lockdown, apart from children of key workers and those who were vulnerable. The government asked councils to carry out risk assessments to decide whether children and young people considered vulnerable, including those with an EHC Plan, should stay at home or go into school. It issued guidance ‘Coronavirus (COVID-19): SEND risk assessment guidance’ on 19 April 2020 with advice about how to carry out the assessments, including:
• Councils and education settings should decide together who is best placed to undertake the risk assessment.
• The risk assessment should determine whether the pupil will be able to have their needs met at home and be safer there than attending an educational setting.
• The risk assessment should take account of the views of the parents or carers and the child or young person. It will need to balance several factors such as: the potential health risks to the child of going into school; the risk of not receiving parts of the support in the EHC Plan in the usual way; and the ability of the parents to ensure they can meet the child’s health and care needs at home for a long period.
• Risk assessments should be ‘proportionate’ and will need to be reviewed as circumstances change.
17. The guidance gave examples of situations where the child was likely to benefit more from remaining in school. This includes where it is not sustainable for parents or carers to meet their child’s needs full-time for long periods. It also includes children and young people whose condition prevents or inhibits self-regulation and whose behaviours cannot be supported or managed by parents or carers at home.
18. When the government issued this guidance councils still had a duty to ensure the provision in an EHC Plan was in place. But the guidance noted it may be difficult to do so, for example where the school was shut or could not open safely, or where parents have chosen to keep the child at home and have agreed temporarily that the child would not be accessing education at the school.

Providing the support in an EHC Plan

19. In an open letter to councils and education providers issued on 24 March 2020 the Department for Education advised it would be introducing temporary emergency legislation changing councils’ duties about EHC Plans. It said the overall aim was to “balance the needs of this vulnerable group to receive the support they needed with managing the demands on councils and health bodies to respond to the pandemic”.
20. On 1 May 2020 the Secretary of State issued a notice under the Coronavirus Act to give more flexibility to councils in dealing with EHC Plans and provision. It changed councils’ absolute duty to ‘secure’ the education provision in an EHC plan to one of using ‘reasonable endeavours’ to do so. This was a temporary change applying from 1 May to 31 July 2020. At the end of this period, councils’ usual duties returned.
21. The government issued guidance, ‘Education, health and care needs assessments and plans: guidance on temporary legislative changes relating to coronavirus (COVID-19)’ on 30 April 2020.
22. This said: “the notice does not absolve local authorities …of their responsibilities under section 42: rather they must use their ‘reasonable endeavours’ to secure or arrange the provision. This means that local authorities and health bodies must consider for each child and young person with an EHC plan what they can reasonably provide in the circumstances during the notice period”.
23. The guidance noted it may be difficult to provide all elements of support in an EHC plan, for example where the child is not attending their education placement or services are reduced through illness or other COVID-19 related restrictions.
24. In deciding what provision can and cannot be made the council had to consider:
• specific local circumstances and workforce capacity.
• the needs and specific circumstances of the child or young person.
• the views of the child, young person and their parents about what may be appropriate.
25. If it was not possible to arrange or secure full provision detailed in an EHC plan, factors to be considered included the availability of those who should deliver what is needed and whether anything can be done differently to deliver provision.
26. The guidance provided examples of the types of alternative arrangements that may be made including moving to a part-time timetable; change in placement to another school; reduced class sizes; specialist teachers providing advice and support to parents; and widening the use of personal budgets or direct payments to enable purchase of equipment to support home learning.
27. The council should keep a record of the provision it decides it must secure or arrange. It should then:
• confirm to the parents or young person what it has decided to do and explain why the provision differs from what is set out in the EHC plan.
• keep decisions under review, with an early review if necessary if the child or young person’s needs change.
28. The temporary changes in the law also gave councils greater flexibility in the timing of annual reviews where it was not practicable to complete one in the required timescales for a reason related to COVID-19. This change applied from 1 May to 25 September 2020.

Complaint handling

29. The Council operates a three-stage corporate complaints procedure:
• At stage one, a member of staff or their manager tries to resolve the complaint.
• At stage two, a senior officer carries out an investigation.
• At stage three, an officer from the Information Governance Team investigates on behalf of the Chief Executive.
30. The Council says it aims to acknowledge complaints within five working days and provide a reply within 20 working days.

What happened

Annual review

31. Mrs C’s daughter is 19 and has a diagnosis of autism spectrum disorder. She experiences learning, social and emotional difficulties. She has an EHC plan which was last amended in June 2018. She has attended a mainstream further education college, College B, since September 2018.
32. The provision in Y’s plan includes positive encouragement from a teacher, regular movement breaks, and opportunities to engage in interactions and shared activities with peers in class and in social situations. It also includes individual support to talk though situations and problems and strategies to develop Y’s independence. Y’s plan also includes support for her to improve her self-esteem and confidence.
33. College B held Y’s annual review in June 2019. The Council did not attend the meeting. The written record of the meeting indicated no amendments were required to Y’s EHC plan but also highlighted some new outcomes that the Council could consider adding to it. These related mainly to Y’s preparation for adulthood.
34. College B emailed the written record of the meeting to the Council. The Council should have issued a decision by mid-July about whether it would maintain, amend or cease Y’s EHC plan.
35. In March 2020, eight months later, the Council contacted College B to ask for the written record of Y’s annual review.
36. College B arranged an early annual review for Y because she was having difficulty accessing education and her well-being had declined. This was due to take place in spring 2020 but due to staff absence and the impact of the COVID-19 pandemic, it was cancelled. A new date for the annual review was set for August. However, as reports from professionals had not been shared with Mrs X and Y in time before the meeting, it was postponed again. It eventually took place in December 2020 and the Council attended.
37. Mrs X complained to the Council about its handling of Y’s annual reviews. The Council said College B sent the written report of the annual review at a time when the Council was moving between two different IT systems. It said the email relating to Y's annual review did not transfer from the old system to the new one. It said pressures on the service meant staff could not follow up on Y’s annual review report. It acknowledged the failure to issue a decision following the annual review frustrated Mrs X’s right of appeal to the SEND tribunal and upheld her complaint.

Preparation for Adulthood

38. Mrs X complained Y’s EHC plan did not include any preparation for adulthood. She said Y was now an adult but was not being supported to develop the independence skills she needed, and the Council had missed opportunities to include this in her plan. She said Y’s well-being had declined as a result.
39. In response, the Council accepted Y’s plan did not include outcomes or provision relating to her independence or preparation for adulthood. It apologised to Mrs X for not meeting its duty to ensure this was in the plan. The Council said that while the provision should be included in the plan, it would expect College B to provide an appropriate level of careers advice, independence training and preparation for adulthood through the provision available to all learners.
40. The Council said it had not been advised of any deterioration in Y’s well-being and said this was not documented in Y’s annual review in June 2019. The Council said it would explore these matters further with College B.

Impact of COVID-19

41. Mrs X emailed the Council in April 2020 to say she had not had any contact about Y’s education. She said Y was struggling being at home and isolated. She asked the Council what help it could offer. There is no record of a response.
42. The Council emailed colleges and post-16 providers in April 2020 to ask how they were supporting vulnerable learners. It asked providers to answer a series of questions including:
• whether they were continuing to provide face-to-face provision for vulnerable learners, including those with EHC plans.
• what arrangements were in place where face-to-face provision was not available and how often providers were in contact with learners and their families.
• if providers required any further support from the Council or other agencies to support vulnerable learners.
43. The Council says Y’s college responded and continued to provide updated information about the attendance of vulnerable learners throughout the lockdown period.
44. In response to my enquiries the Council said it asked colleges to risk assess any pupils where there were concerns for their safety or educational progress. It said it provided advice about expectations of ongoing support for vulnerable learners. It said due to the large number of young people with EHC plans in post-16 education, direct communication from providers was the most efficient means of communicating with the young person and their family. Emails from College B to Mrs X say it completed a weekly return about vulnerable learners, carried out risk assessments for all learners with EHC plans and held a weekly meeting to discuss them.
45. College B provided information to the Council in September 2020 about how it was meeting Y’s needs during the period of school closures. It said Y’s tutor provided work for Y to complete at home but said Y did not complete any for marking. Mrs X disputes this and says Y did complete the work. College B provided online lessons each week, but Y said she could not access them. College B says it offered her support with this.
46. Y’s tutor telephoned her weekly and she was offered an opportunity to meet face-to-face. College B’s well-being service contacted Y regularly from the beginning of May onwards to provide information about support that was available. College B also invited Y to join a Communication and Language group with other learners, run by its learning support team, but says Y only attended for part of one session.
47. Y returned to school for two days a week at the beginning of June. College B continued to offer support from its well-being service until the end of term. Emails between College B and Mrs X indicate the college felt Y had been coping well during lockdown.

Complaint handling

48. Mrs X first complained to the Council in February 2020 about a lack of support and progress for Y and a failure to update her EHC plan following the annual review in June 2019. Although an officer forwarded her email to a more senior officer, the Council did not respond.
49. Mrs X complained to the Council again in April. The Council responded in July. Mrs X wrote to the Council again in July setting out her dissatisfaction with the response she had received so far. The Council sent a further response in August. It upheld most of her complaints but said it did not routinely offer financial compensation at stage two.
50. Mrs X remained unhappy with the Council’s response. The Council investigated at stage three of its procedure and issued its final response in September. It apologised for its poor complaint handling and offered Mrs X £200 to recognise the time and trouble she had experienced making her complaint.

Analysis

Annual review

51. The Council accepts it failed to meet its duty to issue a decision following Y’s annual review in June 2019 within four weeks and that this frustrated Mrs X’s right of appeal to the SEND tribunal.
52. In addition to the fault identified by the Council, I also find it was at fault for not taking steps to ensure College B held Y’s annual review in 2020. The Council was aware by mid-September that Y’s annual review had not yet taken place. However, it failed to follow this up until November, despite the temporary changes which allowed annual reviews to be delayed coming to an end on 25 September. I consider the Council should have acted to ensure College B held Y’s annual review without further delay.
53. We recently found fault in another case with the Council’s handling of annual reviews. In February 2021, the Council developed a recovery plan to address the faults identified. This included recruiting additional staff to upload EHC plans and annual reviews to the Council’s new hub. The hub will allow providers to complete annual reviews online and notify the Council once completed. The Council has also recently completed a restructure and recruited additional caseworkers. This is intended to reduce caseloads and enable caseworkers to complete work such as annual reviews within statutory deadlines.
54. I am therefore satisfied the Council has taken steps to carry out the service improvements necessary to prevent faults in the annual review process occurring again.
55. However, I do not consider it has remedied the injustice to Mrs X and Y satisfactorily. By failing to issue a decision, Mrs X and Y remained uncertain about whether the Council intended to amend Y’s plan to include additional provision which Mrs X felt she needed. They were deprived of an opportunity to appeal any dissatisfaction with the Council’s decision. The delay in holding a review in 2020 compounded this uncertainty and frustration. I have made further recommendations about this below.

Preparation for adulthood

56. The Council accepts it failed to ensure Y’s EHC plan included actions to prepare her for adulthood. I note the Council’s view that it is likely College B would have provided some preparation for adulthood activities during its usual provision for learners. But this does not absolve the Council of its responsibilities to ensure this is reflected in Y’s plan. The lack of preparation for adulthood creates uncertainty about what support may have been offered to Y if the Council had considered this as it should have within the EHC process.

Impact of COVID-19

57. The Council was entitled to ask College B to complete any necessary risk assessment to establish whether Y should remain at home or continue to attend college. I cannot investigate the actions of College B in completing the risk assessments as schools and colleges are not in the Ombudsman’s jurisdiction.
58. However, the Council failed to respond to Mrs X in April 2020 and to take any action when she raised concerns about a lack of communication about provision for Y. This was fault.
59. There is also no evidence the Council considered what provision in Y’s EHC plan could reasonably be provided between 1 May and 31 July 2020. This responsibility could not be delegated to College B. The Council should have considered Y’s needs and circumstances, her views and her parents’ views. The Council failed to keep a record of the provision it decided to secure and arrange and failed to confirm this with Y or her parents. This fault creates uncertainty about whether more provision would have been available to Y in this period.
60. Records from College B show it did take steps to deliver some provision to Y, including regular contact with her tutor and the well-being service and invitations to interact with her peers, though Y’s engagement was limited. These efforts by College B mitigated some of the injustice to Y of the Council’s faults.

Complaint handling

61. The Council accepts it failed to respond to Mrs X’s complaint in February 2020. It has apologised and issued a reminder to staff about forwarding complaints for investigation. In its stage three response, the Council offered Mrs X £200 in recognition of the time and trouble caused by its poor complaint handling. It made this payment in October 2020.
62. I consider the remedy offered by the Council for the faults in its complaints handling is appropriate to the injustice caused and so have not made any further recommendations about this.

Agreed action

63. Within four weeks of this decision, to remedy the injustice caused, the Council will:
• apologise to Mrs X and Y for the additional faults identified in this investigation.
• pay £300 to Mrs X to remedy the frustration and uncertainty caused by the Council’s faults.
• pay £500 to Y to remedy the uncertainty about what further provision may have been available to her if the Council had acted without fault.
• remind caseworkers and providers of the need to ensure preparation for adulthood is discussed at annual reviews from Year 9 onwards, and earlier where this is considered necessary.

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Final decision

64. I have completed my investigation and uphold this complaint. Mrs X and Y have been caused an injustice by the actions of the Council and it has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman