Summary: Ms X complained about the way the Council dealt with her son’s Education Health and Care Plan and his special educational needs support following a Tribunal decision. The Council failed to take reasonable steps to put the support in place during the COVID-19 lockdown, and delayed in reviewing his Plan. This meant Y lost the opportunity to receive support he needed and there was a failure to plan for his future, causing him anxiety and uncertainty. The Council has agreed a remedy, including payments and a review of procedures.

The complaint

1. Ms X complained on behalf of her son, Y, that the Council:
1. failed to take all reasonable steps to ensure the provision set out in his Education Health and Care (EHC) Plan issued in April 2020 was put in place while his college was closed due to the COVID-19 pandemic;
2. failed to ensure there was a risk assessment; and
3. delayed in carrying out the Annual Review of his EHC Plan and deciding how to deal with the Plan following the Review.
2. As a result she says her son did not get the support he needed and is being denied the chance to take the course he wants.

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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. 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 discussed the complaint with Ms X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I considered relevant law and guidance on provision for special educational needs. I have looked at events from February 2020 as events before then are covered in a previous complaint to the Ombudsman.
6. Ms X and the Council had an opportunity to comment on my draft decision. I considered the comments I received before making a final decision.
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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What I found

Education Health and Care Plans

8. A child or young person with special educational needs may have an Education, Health and Care (EHC) plan. This sets out their needs and what arrangements should be made to meet them. The EHC plan is set out in sections. Section F sets out the special educational provision the child or young person needs, and Section I gives the name and type of school or other education placement. The Ombudsman cannot direct changes to the sections about education, or name a different school. Only the Special Educational Needs and Disability (SEND) Tribunal can do this.
    
9. Councils have a duty to ensure the special educational provision in Section F of an EHC Plan and the placement in Section I is arranged. (Children and Families Act 2014 section 42)
10. The ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the law and statutory guidance for councils to follow in carrying out EHC assessments and producing EHC Plans.
• Councils must issue a final amended EHC Plan within five weeks of a Tribunal Order.
• Councils must review an EHC Plan at least every 12 months. The purpose of the review is to consider whether the provision remains appropriate and whether the child or young person is making progress against the outcomes set out in their EHC Plan. The council must ensure there is a meeting as part of the review.
• Within four weeks of the review meeting the council must tell the parents or the young person whether it intends to keep the EHC Plan as it is, amend it or end it. If it decides not to amend the Plan or to end it, it must give details of the right of appeal to the SEND Tribunal.
• If the council proposes to amend the EHC Plan it should do so without delay. It must send a copy of the amended final Plan to the parents or young person within eight weeks of the amendment notice.

Preparation for adulthood

11. The Code gives detailed guidance on preparing for adulthood. This includes looking at higher education, training or employment. For young people with an EHC Plan, preparation should start in Year 9. Under the Care Act 2014 councils must carry out a social care needs transition assessment for the young person where there is likely to be a need for care and support after they turn 18. For young people with an EHC Plan this planning should take place as part of the annual review process.
12. The Code says the local authority should ensure the transition to adult care and support is “well planned [and] is integrated with the annual reviews of the EHC plans”.

Impact of the COVID-19 pandemic

13. 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’. This reminds councils that basic record keeping is vital during crisis working, and decision-making should be open and transparent even under emergency conditions. There should always be a clear audit trail of how and why decisions were made.
14. The Coronavirus Act 2020 allowed the Secretary of State to temporarily modify existing legal requirements and issue guidance about provision of education for children with special educational needs and disabilities.

Risk assessments

15. On 23 March 2020 schools and colleges 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 issued an open letter on 24 March asking councils and education providers to carry out risk assessments to decide whether children and young people considered vulnerable, including those with an EHC Plan, should continue to go to school or could have their needs safely met at home.
16. The Government issued guidance ‘Coronavirus (COVID-19): SEND risk assessment guidance’ on 19 April 2020 with advice about how to carry out the assessments, including the following.
• 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.
• Local authorities and education settings should decide together who is best placed to undertake the risk assessment, "noting that the duty to ensure provision remains with the local authority".
• Risk assessments should be ‘proportionate’.
• 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 a number of 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.

Providing the support in an EHC Plan

17. On 1 May 2020 the Secretary of State issued a notice under the Coronavirus Act to give councils more flexibility 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.
18. 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. I will refer to this as the ‘Guidance on the temporary changes’.
19. It 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”.

20. The guidance notes 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.
21. In deciding what provision can and cannot be made the council has 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.
22. If it is not possible to arrange or secure full provision detailed in an EHC plan, factors to be considered include the availability of those who should deliver what is needed and whether anything can be done differently to deliver provision.
23. The guidance provides 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; widening the use of personal budgets or direct payments to enable purchase of equipment to support home learning.
24. 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.

Annual Reviews

25. 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.

Background

26. Ms X’s son, Y, has a diagnosis of Asperger’s syndrome and a sensory processing disorder. He suffers from anxiety and has social communication difficulties. Y started attending a mainstream further education college, (’the College’) in September 2018 at the age of 16 to do a two-year BTEC course. The College also offers a variety of post-18 courses including foundation degrees, university level courses and apprenticeships. Y turned 18 during the summer term in 2020.
27. Following an EHC assessment the Council issued a final EHC Plan for Y in June 2019, naming the College as his placement. Provision in section F included approaches to communicating with Y and breaking down tasks, support with structuring written work and managing deadlines, and daily mentoring. Ms X was not happy with the SEN support in the Plan and appealed to the SEND Tribunal.

Events from February 2020

28. The Tribunal hearing took place on 25 February 2020. The Tribunal:
• ordered extra support to be included in Y’s EHC Plan;
• noted Y wanted to do a university foundation course that could be delivered through the current college to begin in September 2020, although one of the professionals involved suggested he might need to wait an extra year to help him gain more independence skills;
• recommended a full social care assessment.
29. The Tribunal issued the Order on 11 March 2020 and so the deadline for the Council to issue the amended EHC Plan was 15 April.
30. When the Government announced the national lockdown in March, the College initially contacted all students with EHC Plans to ask if they would like to attend the campus or remain at home. The College spoke to Ms X over the telephone. She discussed the matter with Y and replied to the College by email. She said they agreed it would not be a good idea for Y to into college as he could work from home.
31. The Council says the College set up a self-contained area of the campus to remain open for students with EHC Plans. It said there were COVID-19 safety measures in place and a rota of staff to support the students. However Ms X has provided evidence showing the College sent her an email advising Y not to come in to college, and it closed completely from 24 March.
32. The Council produced the final amended EHC Plan on 27 April 2020. The Plan included the following extra provision ordered by the Tribunal:
• 15 hours a week 1:2 support in lessons plus one hour a day 1:1 support outside lessons.
• A half termly session of speech and language therapy (SaLT) ‘review meeting’ with a therapist trained and experienced in working with pupils with Y’s conditions. The therapist to work with a member of the College support staff to put in place a ‘small steps programme’.
• A programme to help Y develop his self-regulation, delivered by an Occupational Therapist (OT) for one hour a week, with a further 30 minutes preparation and feedback time, for up to 12 weeks. After the 12 weeks, the OT to review Y’s progress and deliver a further block of sessions if considered necessary.
• 1:2 support from an adult to help reduce anxiety and offer regular encouragement and support.
• 1:1 support from an adult to manage assignment deadlines.
• Advice and an exercise routine from an OT.
33. The Plan also said in Section F that Y “needs support transitioning to University. If he doesn’t achieve the entry requirement to access the degree he wants at university, then he can re-do this course next year with support”.
34. It noted that the next Annual Review was due in June 2020.
35. The Council did not send a copy of the final amended EHC Plan to the College.
36. The Council wrote to Ms X on 27 April 2020 but did not send her a copy of the EHC Plan. It apologised for this and said it was “due to the current situation relating to Covid-19”. But it said it had secured a placement for Y at the College for September 2020 and would send the finalised plan by 31 May.
37. Ms X received the final amended EHC Plan on 4 May 2020, after her solicitor wrote to the Council threatening legal action if it did not issue the Plan.
38. In mid-July Ms X made a complaint to the Council about failure to put the support in the EHC Plan in place. Part of the complaint was about the period from September 2019 to 1 May 2020, some of which was under investigation by the Ombudsman in another complaint. Ms X also complained that from 1 May 2020 the Council had not used ‘reasonable endeavours’ to arrange the support set out in Y’s latest EHC Plan. She listed all the provision in section F. She said she had received very limited communication from the College since it closed on 20 March. She said the College had not offered any of the support in the EHC Plan and had made no attempt to find out or monitor how the lack of support was affecting Y’s work. She referred to an email from the College saying Y would have to do one unit of his course without any support.
39. Ms X also complained that the Council had not arranged any OT or SaLT support which she said could have been done remotely. She said as a result of the lack of support Y had struggled with his second year on his current course and was likely to receive a much lower grade than expected. She said he had applied to do a new Level 3 BTEC course at the College but had been refused. Ms X said she would like the Council to support her and Y in negotiating with the College for Y to retake his BTEC course there.
40. On 27 July 2020 the Council contacted the College to query why an Annual Review had not taken place as this was due in June. The College said it had not seen the new EHC Plan following the Tribunal. The Council sent the College a copy on 30th July 2020 but by this time the College was closed for the summer holidays.
41. Because of the pandemic students could not sit their exams and in July the College gave Y a grade for his course based on his past work. The grade was not high enough to allow him to apply for the university course he wanted to take.
42. Y was now 18 and did not have a plan for his education from September 2020. Ms X engaged a solicitor for Y who sent a letter to the Council in mid-August threatening legal action for alleged failure to:
• secure a programme of study for Y at the College from September 2020;
• arrange an Annual Review; and
• put in place the provision in his EHC Plan including OT and SaLT.
43. The letter said the lack of support had impacted on Y’s grade. Y wanted the Council to amend his EHC Plan so he could either re-take the second year of the course or enrol on a new similar course at the same level, which the College had refused.
44. The Council replied, resisting the claim, saying Y’s grades would enable him to move on to higher education. However it was checking with the College about its view of the course Y wanted to take there. It said once it had clarified the issue it would be “in a position to address the matter of the annual review”.
45. In September Ms X chased the Council for a response to her complaint and sent copies to her local councillors and her MP. On receiving the enquiries from the councillors, the Council replied to them that it was still dealing with Ms X’s complaint. It said unfortunately there had been a disagreement with the College about suitable courses for Y. The College was adamant he could not do the course he wanted in the coming year as it was essentially a repeat of the previous year’s course. The Council confirmed it was in the process of arranging a date for an Annual Review meeting.
46. The Council replied to Ms X’s complaint on 21 September. It noted the Council had been working with her ‘and all the stakeholders involved’ since receiving her complaint. It was hopeful it could find a satisfactory solution in a meeting due to be held with the College. It said once this meeting had established the best way forward for Y and agreed this with Ms X, the Council would review his EHC Plan. It would then ensure Y was “fully supported in whatever education direction is deemed most appropriate”. The Council concluded:

“Clearly the situation has been less than ideal. At the very least, insufficient planning and forethought appears to have been given to advising [Y] on suitable educational options. As a result, the continuity and momentum of his educational provision have been lost, which is a cause of considerable regret”

47. An Annual Review meeting took place on 6 October 2020, by which time Y was no longer on roll at the College. Ms X attended along with an advocate for Y, and representatives from the Council and the College. The College representative withdrew saying he wanted the meeting adjourned. He said this was because Ms X and Y’s advocate wanted to discuss issues in legal proceedings Y was taking against the College. He wanted to take advice before discussing the matter further. After he left Ms X and the advocate discussed the current EHC Plan with the Council representative. They said Y not had any of the SaLT or OT ordered by the Tribunal. They also argued the Council should fund the College to enable Y to do the course he wanted, referring to the statement in section F that Y would receive support to re-take the course if he did not get the grades he needed.
48. The Council representative said she would discuss all the points raised with senior managers and get back to Ms X and the advocate. She said she would email them by the end of the week to say what would happen next, even if she did not have all the answers they were looking for. I have not seen evidence of any further contact.
49. On 11 October Ms X made a further complaint to the Council. She complained about failure to put the provision in Y’s EHC Plan in place, including the support to transition to university, the OT, and the SaLT.
50. Ms X followed this in early November with a further complaint about the lack of a decision following the Annual Review meeting on 6 October. She said this was delaying Y’s right of appeal.
51. The Council replied in early December 2020, with apologies for the delay. It said the College had not provided information at the meeting in October about Y’s progress against the outcomes in the EHC Plan. So it said the meeting did not meet the requirements for a proper Annual Review under the Code. The Council said it would have to arrange another review meeting so it could decide whether to amend, reassess or cease the Plan.
52. There were then discussions about finding a mutually convenient date when everyone involved could attend a meeting. The Annual Review meeting took place remotely on 28 January 2021. The meeting discussed Y’s wish to re-take his course and the College’s view that this was not possible. The Council agreed to explore options for Y’s education as well as internships and apprenticeships. It also agreed to follow up on the social care assessment the Tribunal had recommended.
53. The Council sent Ms X and Y an amended draft EHC Plan on 9 February 2021, and Ms X provided her comments. The Council confirmed it would consider the comments. Also the Post-16 Adviser wanted to discuss options with Ms X and Y because of the difficulties of him returning to the College to do another BTEC course when he had already completed one. He suggested Y could apply for higher education and the Council would cease the EHC Plan, or it could maintain the Plan and support Y to do access courses to prepare for higher education.
54. The Council then wrote to Y on 12 March proposing to cease his EHC Plan. Following representations from Y the Council agreed to continue and amend his EHC Plan. It issued an amended final EHC Plan on 26 March. Section I no longer named the College, but said Y would attend a post-16 mainstream placement, to be confirmed. Section F contained the same provision as previously, including the OT and SaLT, with some added support with communication.
55. Y appealed to the SEND Tribunal in June 2021. He said he was looking into course options but in the meantime was asking the Council to identify a placement for him urgently.

Analysis – was there fault causing injustice?

Complaint a) putting in place the support in the EHC Plan

56. The Council should have issued the amended EHC Plan following the Tribunal Order by 15 April 2020. It did not send it to Ms X until 4 May, a delay of three weeks. The Council says the reasons were related to the COVID-19 pandemic, but it has not explained how. The deadline for issuing the EHC Plan came during the first lockdown but before the temporary changes in the law came in, so at that point the usual timescales applied. So I consider the delay was fault by the Council.
57. More importantly it meant the Council still had a duty to secure the provision in the EHC Plan. I recognise that when the Council produced the amended EHC Plan, it would have been aware that the duty was due to be relaxed in a few days’ time. However, as the law and guidance made clear, the Council was not absolved of its duty to arrange the support altogether. It still had to make ‘reasonable endeavours’ to put the provision in place.
58. The Council has provided no evidence it took any steps to put any of the increased or new provision in place. It failed to send the amended final EHC Plan to the College until after the summer term had ended. This is fault, and meant the College was not aware of the increase in support needed.
59. In response to the Ombudsman’s enquiries about what steps the Council took to arrange the provision, the Council said it had asked the College. It has provided information from the College which says Y continued his studies remotely, had access to the same technology and software as he had in college, and had online access to a support tutor and Learning Support Assistant ‘as required’. This shows Y was able to continue self-directed studying and received some support. However the information from the College shows it was referring to the previous EHC Plan before the Tribunal increased the support. There is no reference to the extra College-based support the Tribunal ordered. So I find that because of the Council’s failure to provide the updated EHC Plan to the College and failure to check it was putting the provision in place, Y missed out on the opportunity to have the extra provision in place, even if remotely.
60. Ms X also says Y has received no OT or SaLT support since it was included in the EHC Plan. In response to the Ombudsman’s enquiries about what steps it took to arrange this provision, the Council said Y was not attending the College during lockdown and there was no OT service being delivered. But the Council has provided no evidence that it approached the therapy services to try and put the provision in place or explore alternative methods such as providing sessions remotely. In the absence of any evidence, I consider the Council failed in its duty to make reasonable endeavours to put the provision in place. I do not know what support the therapy services would have been able to provide to Y, and indirectly to the College, if the Council had taken steps to arrange it. But Y has suffered an injustice through the lack of opportunity to have access to any of this support and the uncertainty about what might have been provided.
61. Ms X feels that if the proper support had been in place Y would have achieved the grades he needed to allow him to qualify for the higher education course he wanted to take from September 2020. It would be too speculative for me to reach that conclusion. Nevertheless she and Y have experienced uncertainty about what he might have achieved.
62. From September 2020 Y was no longer on roll at the College and had no education placement. However the Council continued to maintain his EHC Plan which included OT and SaLT provision. The Council was under a duty to arrange this support and but took no steps to do so. The Council is at fault and Y has missed out on therapies he needs as a result.
63. I have also seen no evidence that the Council recorded or asked the College to record what provision it could make under the EHC Plan during the lockdown. If it did, it did not share this information with Ms X and Y as the Guidance on the temporary changes says it should. This was fault and compounded the mistake in failing to send the EHC Plan to the College. It meant Y did not know what support he could expect. If Ms X and Y had received the information, they would have realised the College was still working to the pre-Tribunal Plan and could have raised this with the Council.

Complaint b) – risk assessment

64. I do not have details of what information the Council provided to schools and colleges about carrying out risk assessments to decide whether pupils with EHC Plans should stay at home during the lockdown. But I have not seen evidence of fault causing injustice in the way the risk assessment took place. It was legitimate for the College to do the assessment through a telephone conversation. Ms X confirmed she wanted Y to remain at home and he agreed.

Complaint c) – arranging the Annual Review

65. Y’s Annual Review meeting was due to take place in June 2020. There is no evidence that the failure to hold it then was connected to difficulties caused by the pandemic. So I can see no reason why the usual timescale would not apply. The Council is responsible for ensuring a review takes place every year, although the education placement usually makes the arrangements for convening the meeting. In this case the Council contacted the College a month after the Annual Review was due. It had not taken place because the College had not received the EHC Plan. So I find the Council was at fault in failing to arrange the Annual Review due in June. It was particularly important to review the EHC Plan at this stage in order to prepare for the next stage in Y’s education from September 2020.
66. The meeting did not take place until October, after a threat of legal action and a complaint from Ms X. Then the Council failed to ensure it was carried out properly in line with the Code. The Council also failed to re-arrange the Annual Review meeting until after Ms X had made a further complaint. It did not take place until January 2021. This was seven months late and several months after Y had left college.
67. The Council’s failure to arrange a timely Annual Review was fault. It meant there was a failure to plan for Y’s future and his transition to adulthood. The Council should have been focussing on this as part of the EHC Plan review process. The problems were compounded by the failure to send the EHC Plan to the College. If the College had received it in time, it would have seen the statement in section F about support to re-take the course. This would have provided an opportunity to resolve the issue earlier. As it is, Y is left not knowing what the next steps in his education or training will be.
68. The delay in completing the Annual Review and issuing an amended EHC Plan also delayed Y’s right of appeal. Until we know the outcome of his appeal I cannot say whether this has prevented him attending his preferred course. He might have decided to delay moving on to higher education until September 2021 in any event, as suggested during the Tribunal proceedings. However the delays and lack of proper planning has resulted in significant uncertainty and anxiety for Y and Ms X.

Other faults

69. I consider the Council was at fault in failing to carry out a transition social care assessment of Y’s needs as recommended by the Tribunal. This may have delayed him receiving extra support.
70. I also find the Council failed to deal with Ms X’s complaints properly. The Council has recognised some lack of ‘planning and forethought’ in dealing with Y’s future education. But it did not address the complaint about lack of support under the EHC Plan, including OT and SaLT, in any of the responses to Ms X’s complaints.

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Agreed action

71. The Council has agreed that to remedy the injustice caused to Ms X and Y it will take the following steps within one month of the final decision on the complaint:
• apologise to Ms X and Y for the failings identified in this investigation;
• pay Y £500 to recognise the lack of opportunity to potentially access the extra provision ordered by the Tribunal, including OT and SaLT, up to the end of July 2020, and the uncertainty about what might have been provided;
• pay Y £1,000 to recognise the lack of actual OT and SaLT provision since September 2020;
• pay Y £500 to recognise the anxiety and uncertainty caused by the delay in the review process and the lack of planning for his future;
• pay Ms X £300 to recognise the anxiety and uncertainty and her time and trouble in pursuing her complaint; and
• arrange support for Y from the OT and SaLT services in line with his EHC Plan, even if he is not attending an education placement.
72. The therapy services should be arranged without further delay and should continue as long as the Council continues to maintain the EHC Plan. All the payments to Y should be used for the benefit of his education or training.
73. The Council has also agreed that within three months it will:
• review its processes for checking it sends new and amended EHC Plans to education settings and that provision is being delivered;
• review its process for ensuring Annual Reviews are completed on time, especially at key stages in the young person’s education; and
• tell the Ombudsman the outcome of these reviews and its plans for improvements.
74. I am not making recommendations about discussing options for Y’s future as this is something that can be explored as part of the appeal process.

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Final decision

75. I have found that the Council was at fault in the way it dealt with Y’s EHC Plan and provision of support. The Council has agreed a suitable remedy for the injustice caused and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman