Summary: Ms X complained about the Council’s handling of her son Mr Y’s education, health and care plan. There was some fault by the Council, but this did not cause an injustice to Mr Y or to his mother.

The complaint

1. Ms X complains on behalf of her son, Mr Y, about the Council’s handling of his education, health and care plan. She says the Council failed to comply with an order from the SEND tribunal, has not secured provision for Mr Y and has failed to offer him a personal budget. As a result, she says Mr Y does not have the provision he is entitled to. Ms X would like the Council to amend Mr Y’s plan, compensate him for lost provision, and award him a personal budget.

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What I have investigated

2. I have investigated the Council’s actions from March 2020, when the SEND tribunal concluded, to March 2021 when I issued my enquiries. The final section of this statement contains my reason for not investigating the rest of the complaint.

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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. The courts have said that where someone has used their right of appeal, reference or review, or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
5. SEND is a tribunal that considers special educational needs. We cannot investigate a complaint when someone has appealed to a tribunal. However, we may investigate whether there may have been a delay in the process which led to the tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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

7. I have considered the complaint made by Ms X and the documents she provided.
8. I considered the Council’s comments about the complaint and the documents it provided in response to my enquiries.
9. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
10. Under our information sharing agreement, we will share our decision with Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

Background

Education, health and care plans

11. The Children and Families Act 2014 sets out how support will be provided to children and young people up to the age of 25 with special educational needs and disabilities (SEND). The ‘Special education needs and disability code of practice’ (‘the Code’) gives more details about how councils, colleges and others should carry out their duties.
12. Most children and young people will have their SEND needs met within early years settings, schools or colleges without any need for involvement from a council. Those with more complex needs might instead need 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 ensuring effective coordination of the assessment and development of an EHC plan.
13. The EHC plan is set out in sections which include.
• Section F: The special educational provision needed by the young person, which councils have a duty to secure.
• Section I: The name and type of school or other institution to be attended by the young person. Where the name of a school or institution is not specified, this should include the type of institution to be attended.
14. We cannot direct changes to the sections about education, or name a different school. Only the SEND tribunal can do this in response to an appeal from a young person or their parent.
15. The tribunal may order a council to make changes to the plan. The council has five weeks from the date of the order to make changes to the provision in the plan. If the council fails to comply with the order, the young person or their parent can complain to the Ombudsman.
16. The Code says councils must review EHC plans at least annually. They must seek advice and information about the young person from all parties invited to the review meeting, and send any responses received to attendees two weeks before the meeting.
17. The review should focus on the young person’s progress towards achieving the outcomes specified in the plan and consider whether the outcomes and supporting targets remain appropriate. Councils can consider holding an early review if there is a change in the young person’s circumstances. Reviews must be undertaken in partnership with the young person and must take account of their views, wishes and feelings.
18. Within four weeks of the review meeting, the council must decide whether it will keep the EHC plan as it is, amend it, or cease to maintain it, and tell the young person. There is a right of appeal against a decision not to amend or to cease to maintain a plan.

Personal budgets

19. A personal budget is money identified by a council to deliver provision set out in an EHC plan where the parent or young person is involved in securing the provision. Councils must consider each request for a personal budget on its individual merits.

Transport for adult learners

20. Councils must make such arrangements for the provision of transport as they consider necessary to facilitate the attendance of any adult with an EHC plan receiving education or training arranged for them. Councils may also be able to assist with transport under the Care Act 2014 if the young adult has care needs.

Impact of the COVID-19 pandemic

21. 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”.
22. 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.

What happened

23. Mr Y is in his early-20s. He has complex health and learning needs. His EHC plan dated December 2017 named a college, College C, though Mr Y has not attended there since June 2017. Section F of Mr Y’s plan says he “will require ongoing support to develop his literacy skills and continuation of the approaches Mr Y has found helpful will be important, such as the use of voice recognition and grammar software programmes…the facility to record his ideas and work on a laptop. Ongoing opportunities to develop Mr Y’s keyboard and touch-typing skills will be imperative.”
24. The Ombudsman has previously investigated a complaint from Ms X on behalf of Mr Y about the Council’s handling of his EHC plan. We discontinued our investigation in December 2018 because Ms X applied for a judicial review of the Council’s actions. The court did not give permission for Ms X’s judicial review.
25. Following an annual review meeting in June 2019, the Council decided not to amend Mr Y’s plan. It told Ms X its decision and informed her of her appeal rights. Ms X appealed to the SEND tribunal, asking it to name a different placement.
26. In December 2019, while waiting for the appeal to be heard, College D offered Mr Y a place starting in March 2020, staying with a host family. College D is an independent institution some distance from Mr Y’s home. It is not registered with the Department for Education.

March 2020

27. The SEND tribunal concluded in March 2020. The tribunal found parts of Section F of the plan were unlawful because the Council named Ms X and Mr Y as being responsible for delivering some of the provision. It advised, but did not order, the Council to amend the plan to correct these errors.
28. The tribunal ordered the Council to:
• Remove “College C” in Section I and instead specify “Education Otherwise than at a school or post-16 institution”; and
• In Section F add, “Mr Y to have the GCSE programme in mathematics, English and physics offered by College D, as detailed in their letter of 18 December 2019, to include the tuition and accommodation as offered there, commencing in March 2020.”
29. The Council issued a final amended plan by email on 23 March. It was unable to post a copy due to office closures because of the COVID-19 pandemic. It included the changes set out in paragraph 28 but did not remove Ms X and Mr Y as people responsible for some of the provision in Section F. It told College D funding had been authorised and it should arrange a start date with Mr Y. The Council asked Mr Y how he intended to get to College D.
30. On the same day, all schools and colleges were closed to most pupils as part of the first national lockdown in response to the COVID-19 pandemic. College D moved its learning online.
31. Ms X and Mr Y asked the Council to confirm it had paid for his placement at College D so he could arrange a start date. They also asked the Council to amend the plan to name the college in Section I, and to provide a personal budget for a laptop and transport. The Council said it had amended the plan in line with the tribunal’s order and managers would discuss the request for a personal budget. It asked Mr Y if he had agreed a start date with College D.
32. On 25 March, College D invoiced the Council for Mr Y’s tuition and accommodation from March 2020 to June 2021.
33. Mr Y should have started at College D on 30 March. Ms X told the Council Mr Y could not take up his place on the expected start date because the Council had not paid College D. She said Mr Y’s plan needed to be amended to name College D and to amend the type of placement in Section I.

April 2020

34. On 1 April, the Council paid College D for Mr Y’s tuition and accommodation for the remainder of the summer term.
35. The next day, College D told the Council the safest way for Mr Y to access his course was remotely from his home. This would be reviewed weekly and he could move to live with a host family as soon as it was appropriate. It said Mr Y was due to start the following Monday and it was currently registering him and finalising his tutors.
36. The Council suggested that as funding for a laptop had not yet been agreed, Mr Y could use a family computer for his induction. Mr Y said he needed payment to be made to College D, amendments to his plan and a personal budget before he could start.
37. Ms X and Mr Y contacted their MP for help. In response, the Council said:
• it had paid any invoices directly to College D;
• Mr Y’s start date was likely to be affected by COVID-19 and Mr Y had advised he wanted to remain at home in line with government guidance at the time;
• the final plan had been amended exactly as the tribunal had ordered;
• the tribunal had not ordered provision of a laptop but the Council was working with College D to enable students to access the curriculum;
• Ms X and Mr Y had not made any request for assistance with transport; and
• Ms X had previously brought a judicial review against the Council, including a claim for housing costs, which was dismissed.
38. The next day the Council told Mr Y it had contacted College D about funding and understood this had now been settled. It repeated that the plan had been amended in line with the tribunal’s order. Mr Y reiterated that he could not start the course without a laptop.
39. College D identified a suitable laptop for Mr Y. The Council asked the college to buy the laptop and agreed to reimburse it for the cost, but Ms X and Mr Y opposed this. They said they wanted a personal budget so Mr Y could choose a laptop himself.
40. In further correspondence with Mr Y’s MP, the Council said:
• it had agreed to fund a laptop to enable Mr Y to study virtually with College D;
• there was no requirement in the order from the tribunal to provide transport and Mr Y did not meet the eligibility criteria for the SEND transport service;
• it was paying College D in line with the invoicing and payment schedule which had been agreed;
• Mr Y should agree a start date with the college; and
• it had authorised College D to purchase a laptop for Mr Y so he could take up his place.
41. Ms X and Mr Y continued to ask for a personal budget. The Council said this would be an unusual way to purchase equipment, but it would investigate whether it would be possible.

May 2020

42. By mid-May, Mr Y had still not started at College D. He said he would start once all payments had been made and his EHC plan had been amended to name College D in Section I. The Council told Mr Y’s MP that it had paid his fees for the summer term, and would pay for subsequent terms once College D had provided a signed contract. The Council said Mr Y would have to arrange transport through adult social care services and said it had provided guidance to Ms X and Mr Y about this.
43. The Council agreed to fund Mr Y’s laptop through a personal budget. Ms X responded to say Mr Y needed the laptop specified by his educational psychologist and she was unhappy the Council was choosing what model Mr Y should have.
44. At the end of May, College D suggested Mr Y defer his start until September. It told Mr Y payments for his accommodation were outstanding.

June 2020

45. The Council asked Ms X and Mr Y to provide details of the laptop he needed, and to sign a contract for the personal budget. Despite further requests, Ms X and Mr Y did not respond or sign the contract. The Council said it had checked with the educational psychologist and had reviewed the reports it had about Mr Y and could not find a reference to a specialist laptop. The Council said if Ms X and Mr Y did not complete the paperwork required for the personal budget, the Council would buy a laptop.

July 2020

46. The Council was still waiting for Ms X and Mr Y to complete the paperwork for the personal budget. It said it would move forward with transport arrangements for September. College D sent a revised offer letter to Mr Y inviting him to start in September with the same end date of June 2021.
47. The Council paid invoices for Mr Y’s tuition and accommodation up to the end of the spring term in 2021.

August 2020

48. The Council bought the laptop suggested by College D and had it delivered to Mr Y’s home. In response to my enquiries the Council said any programmes required to enable Mr Y to access his educational provision could have been supported through the college’s learner support provision.
49. College D wrote to the Council to say there was one outstanding invoice to be settled for Mr Y’s accommodation.
50. College D also contacted Mr Y to discuss arrangements for his deferred start in September. It said he could remain at home to access remote learning then move to his host family when face-to-face tuition resumed; move to his host family and access remote learning from there; or defer starting to March 2021.
51. Mr Y said he would not start in September because the Council had not settled all the invoices. The Council told him this should not be a barrier to him starting his course and it was in regular contact with the college about payments. It later told Mr Y the placement and accommodation had been funded in full since March.

September 2020

52. College D and the Council exchanged emails about the invoices. There was some confusion about what was outstanding. The Council’s records showed it had paid all except one invoice, which was for tuition in the summer term 2021. It had not paid this invoice because it was due to be paid in the next financial year. College D had incorrectly recorded this as paid. This was resolved by 10 September, with the Council paying the final invoice.
53. At the end of September, the Council advised Ms X, Mr Y and College D that it would hold an annual review of Mr Y’s EHC plan in mid-October. It asked Ms X and Mr Y to let the Council know if they would not be able to attend the virtual meeting.
54. Shortly afterwards, Mr Y suggested to College D that he did not want to participate in remote learning and would defer starting college until March 2021.

October 2020

55. The Council told Mr Y his placement and accommodation had been funded in full since March and it would discuss transport arrangements with him once remote learning ended and he had a date to move to his host family.
56. The Council held an annual review meeting. Ms X and Mr Y did not attend but College D did. The review noted Mr Y had been provided with a laptop in August but was still not engaging in online learning. College D said it had resumed some face-to-face teaching. It was concerned it had lost tutors and resources because of the COVID-19 pandemic and needed to confirm it could continue to offer a placement to Mr Y.

November 2020

57. College D told the Council it had decided to close its building and teach exclusively online, in response to poor uptake of places for September 2020 and January 2021 and the further lockdown imposed in response to COVID-19. It said it could not give an accurate assessment of what it may be able to offer by March 2021.
58. The Council notified Ms X and Mr Y it did not intend to amend Mr Y’s plan. It said it would carry out another review in March 2021. It recognised Mr Y had not yet started his course and stressed there was an offer of online education available from College D. Ms X and Mr Y did not appeal the Council’s decision.
59. The Ombudsman opened our investigation into Ms X’s complaint.

March 2021

60. As institutions were due to reopen following the lockdown in place through January and February 2021, the Council contacted College D and Mr Y to ask if there were any plans for Mr Y to take up his place, and suggested dates for the next annual review.
61. College D said it would be resuming face-to-face teaching towards the end of March and had sent Mr Y a revised offer letter in February. However, the host family for Mr Y could no longer accommodate him and the college could not recruit new host families due to the pandemic. College D said it was no longer offering a GCSE programme due to a reduction in student numbers. It said it could offer Mr Y one-to-one tuition in his chosen subjects, but this would involve a significant price increase. It had not heard from Mr Y since it sent its offer letter.
62. The Council scheduled an annual review meeting for April.

Analysis

63. There is no fault in how the Council complied with the order from the tribunal. The tribunal did not order the Council to name College D in Section I but directed it to refer to College D in Section F, which it did.
64. However, the tribunal did draw the Council’s attention to parts of Section F being unlawful and the Council failed to address this when it issued an amended final plan in March 2020. This was fault. In response to my enquiries the Council accepted it overlooked the tribunal’s comments. It said the plan would be amended following Mr Y’s next annual review. I do not consider this oversight caused a significant injustice to Ms X or Mr Y.
65. The Council did secure provision for Mr Y at College D in line with his EHC plan. Mr Y did not take up the provision. This is not fault on the part of the Council.
66. The Council paid the invoice for the first term of Mr Y’s tuition and accommodation within five working days of receipt. By 1 July 2020 the Council had paid for Mr Y’s tuition through to the end of the following spring term. Throughout this period there was no suggestion from College D to the Council that Mr Y’s place was in jeopardy due to non-payment by the Council. The Council gave assurances to Ms X and Mr Y that funding was in hand and was no barrier to Mr Y taking up his place. The Council is not responsible for any errors in College D’s accounting which may have led to confusion about what had and had not been paid. Therefore, I do not consider the Council was at fault.
67. While there was some delay, the Council did offer Mr Y a personal budget to purchase a laptop, but he and Ms X did not return the paperwork required. The Council provided a laptop in line with College D’s recommendation. There is nothing in Mr Y’s EHC plan that says he requires a specialist laptop. Given Mr Y declined to take up the offer of online learning once a laptop was provided, I do not consider the delay caused him an injustice.
68. The Council was not required to offer Mr Y a personal budget for transport as transport was not included in Section F of his EHC plan. In any case, Mr Y declined to take up the place he was offered at College D and even if he had, learning took place remotely for almost all the period under investigation. Therefore, there was no need for the Council to consider whether Mr Y was eligible for transport in this period.
69. The Council invited Ms X and Mr Y to attend an annual review in October 2020 but did not seek advice and information from them about Mr Y and circulate it before the meeting. This was fault. However, there had been considerable correspondence between Ms X, Mr Y, College D and the Council in the weeks before the annual review, so I do not consider this caused an injustice to Ms X or Mr Y given their views had been fully expressed in other correspondence. There was no fault in the timing of the annual review.

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Final decision

70. I have completed my investigation. There was fault by the Council, but this did not cause an injustice to Ms X and Mr Y.

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Parts of the complaint that I did not investigate

71. I have not investigated the actions of the Council before March 2020. Ms X applied to judicially review the Council and the court refused permission in November 2018. We issued a previous decision about this case in December 2018. I also cannot investigate events which were considered by the SEND tribunal when Ms X exercised her right of appeal over Mr Y’s plan. As per paragraphs 4 and 5, the Ombudsman cannot investigate a complaint when a person has appealed to a tribunal or used a remedy by way of court proceedings.

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Investigator's decision on behalf of the Ombudsman