Summary: We upheld Miss X’s complaint about the Council’s handling of her son’s education, health and care plan. Her son, Mr Y, lost out on provision he was entitled to. Miss X and Mr Y also experienced frustration and uncertainty due to faults by the Council. The Council agreed to apologise to Mr Y and Miss X and make a payment to recognise their distress and time and trouble.

The complaint

1. Miss X complains on behalf of her son, Mr Y, about the Council’s failure to amend and implement his education, health and care plan. She says he has missed provision he was entitled to as a result. Miss X would like the Council to compensate her and her son for the distress and lack of support.

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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. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. (Local Government Act 1974, section 26(6)(a), 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 Miss 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. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
8. 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

Law and guidance

Education, health and care plans

9. The Children and Families Act 2014 sets out how support will be provided to young people with special educational needs and disabilities (SEND). The ‘Special education needs and disability code of practice’ (‘the Code’) gives more details about how councils, schools and others should carry out their duties.
10. Most young people will have their SEND needs met within schools or colleges without any need for involvement from a council. Young people 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.
11. The Code says councils must send a copy of a final EHC plan to the school or college the young person attends.
12. A parent can appeal to the SEND tribunal about the provision in the EHC plan. If the tribunal orders the council to amend the plan it must do so within five weeks. If a council does not carry out a tribunal’s order within the time limits set, parents can complain to the Ombudsman.
13. Once it issues an EHC plan, the council is responsible for ensuring the special educational provision in the plan is in place. We usually expect straightforward provision to be in place within no more than four weeks and complex provision to be available within no more than half a term.
14. Councils must review EHC plans at least once a year. Reviews must focus on the progress the young person is making towards the outcomes in their plan and whether the outcomes and targets remain appropriate. The Council must tell parents within four weeks of the review if it intends to maintain, amend or cease to maintain a plan.
15. Ofsted and the Care Quality Commission inspected this Council’s SEND service in 2018. The inspection raised concerns about the timeliness, process and quality of EHC plans. The Council published a written statement of action following the inspection setting out how it would address the identified failings.

Impact of the COVID-19 pandemic

16. 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.
17. 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.
18. 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”.
19. The guidance noted it may be difficult to provide all elements of support in an EHC plan, for example where the young person is not attending their education placement or services are reduced through illness or other COVID-19 related restrictions.
20. 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; and
• the views of the child, young person and their parents about what may be appropriate.
21. 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 could be done differently to deliver provision.
22. 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.
23. 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; and
• keep decisions under review, with an early review if necessary if the child or young person’s needs change.

What happened

24. Mr Y has learning difficulties and attends a post-16 college, College A. The Council sent a draft copy of Mr Y’s EHC plan to College A in August 2019. The Council issued a final EHC plan for Mr Y in September 2019 but there is no record it sent a copy to the college.
25. Mr Y’s EHC plan included support with his organisational skills and social and emotional well-being.
26. In October, Miss X contacted the Council to raise concerns about the content of the plan. She said Mr Y was experiencing high levels of anxiety and difficulties at College A.
27. Mr Y, represented by Miss X, appealed to the SEND tribunal about his plan. They wanted speech and language and occupational therapy, as well as some additional classroom support, to be added to the plan.
28. In February 2020, Miss X contacted the Council with further concerns about College A. She said Mr Y was not attending his maths and English lessons and College A was not recognising his needs. She said College A had told her it did not have a copy of Mr Y’s final EHC plan. The Council suggested holding an interim review meeting. No meeting took place. In response to my enquiries, the Council acknowledged officers failed to arrange an interim review meeting and apologised that this did not take place.
29. In March 2020, schools and colleges closed to most children and young people in the first national lockdown in response to COVID-19. According to records provided by the Council, an officer contacted Mr Y to see how he was doing but there is no record of what was discussed.
30. In early April, Mr Y’s college told the Council Mr Y was doing well. An officer contacted Mr Y to ask about his support needs at college and his long-term aspirations. Mr Y asked for more support through email while he was unable to attend college. Council records suggest an officer emailed College A, but it is unclear whether Mr Y’s request was passed on.
31. I asked the Council what reasonable endeavours it had taken to secure the provision in Mr Y’s EHC plan in this period. It said it had asked College A to complete a COVID-19 risk assessment but the college did not do so. It says officers were in contact with the college before it closed, and the Council was confident sufficient support was available for Mr Y. It said there was a difference of opinion between Miss X and Mr Y about the support he required, with Mr Y saying he needed less help than Miss X was seeking. College A reported Mr Y was on target to achieve the qualifications he was aiming for.
32. In May 2020, the tribunal directed the Council to amend Mr Y’s EHC plan. The order from the tribunal noted Mr Y had only been attending half of his maths and English lessons. The tribunal directed the Council to include speech and language therapy in the plan and provide Mr Y with a laptop. It also directed one-to-one support in maths and English and input from an occupational therapist be added to the plan. The Council should have issued an amended final EHC plan by 11 June.
33. Miss X contacted the Council at the end of July seeking the amended final EHC plan for Mr Y. Internal emails show there was uncertainty about the status of Mr Y’s plan and who was responsible for updating it. The tribunal’s order had not been placed on his file. In September, the Council reissued Mr Y’s previous plan, dated September 2019. Records show the officer overseeing Mr Y’s plan thought any changes to the plan would need to be completed as part of the annual review process which was due shortly.
34. Internal communications in early October show Miss X had sought a laptop for Mr Y though two different schemes but had been declined as the family did not meet the criteria. An officer noted, “It is obviously not ideal that [Mr Y] does not have a laptop but he is now back at college and can use the college IT equipment to complete his work.” The same officer noted, “my understanding is that an EHCP can only be updated following a review.”
35. Miss X complained to the Council about its failure to issue Mr Y’s amended plan and to secure the provision in it. She was also concerned about a lack of support and a laptop for Mr Y during lockdown.
36. The Council accepted it had not amended the EHC plan as directed by the tribunal. It apologised to Miss X and said it had identified changes to its service to ensure the problem did not recur. The Council also said Mr Y was offered telephone support by his course tutor when he was having difficulties with his work during lockdown. It said it would include provision of a laptop and one-to-one support for Mr Y in maths and English in the amended EHC plan. The Council said it would hold an annual review once it had issued Mr Y’s amended final plan.
37. Miss X was unhappy with the Council’s response to her complaint. She said the telephone support was not appropriate for Mr Y given his needs. She was concerned a lack of equipment and support would affect Mr Y’s performance in his upcoming exams. The Council said it would not investigate Miss X’s complaint further as it had fully upheld it and directed her to the Ombudsman.
38. The Council issued Mr Y’s final amended plan on 5 November. It increased the funding available to College A to deliver the provision in the plan.
39. In the same month the Council contacted the local speech and language service to ask about setting up the provision in the plan. The Council also contacted NHS colleagues about occupational therapy support and was told there was no occupational therapy service available. It decided to look for an alternative provider.
40. College A held an annual review for Mr Y in late November. College staff said Mr Y had benefitted from the support of his learning facilitator in maths and might also benefit from some one-to-one dyslexia strategy sessions. Attendees, including Miss X and Council officers, agreed the support that should be in place for Mr Y following the updates to the plan from the SEND tribunal.
41. In January 2021, Mr Y bought himself a laptop. In the same month, records show the Council was still trying to arrange the speech and language therapy in Mr Y’s plan. College A updated the electronic record of Mr Y’s annual review with a recommendation that his plan be amended.
42. The Council issued a draft amended plan on 12 February and a final amended plan on 3 March.

Analysis

43. I cannot investigate the contents of Mr Y’s plan issued in September 2019, as he used his right of appeal about this. However, I can consider whether the provision in the plan was delivered and any other faults by the Council in this period.
44. The Council cannot evidence it sent Mr Y’s final EHC plan to College A. The Council has been unable to show how it satisfied itself the provision in Mr Y’s plan was in place from September 2019. It says the exact provision to be delivered was under dispute; however, it still had a duty to secure the provision while the appeal was underway. It cannot demonstrate that it did so, and this is fault.
45. Miss X shared her concerns about a lack of provision with the Council in February 2020. The Council accepts it failed to arrange an interim review meeting. This fault caused frustration and uncertainty for Miss X and Mr Y about his special educational needs provision.
46. There was a concerning lack of understanding about the tribunal process among officers involved in Mr Y’s case. The tribunal order had not been placed on his records, his plan was not updated within the five weeks required by law, and officers appeared unaware changes could or should have been made following the tribunal’s decision. This contributed to the 21-week delay in issuing Mr Y’s amended final plan after the tribunal decision.
47. If the Council had issued Mr Y’s amended plan following tribunal on time, it is likely provision could have been put in place by the start of September 2020. Other provision, such as a laptop for Mr Y, could have been provided sooner. Because of the Council’s delay, Mr Y was without the additional provision in his plan for at least one full term with records showing arrangements had still not been made for some of the provision by mid-January.
48. The Council has failed to evidence how it made reasonable endeavours to secure the provision in Mr Y’s plan during the period he was not attending due to COVID-19 related closures. It did not follow up the lack of risk assessment by College A and has not shown how it considered what provision could have been made in the period. It did not consult with Mr Y or provide any information to him about what it had decided to do or explained why his provision might differ from what was in his plan. Mr Y requested additional support by email but there is no evidence the Council passed this request to College A. This is fault and creates uncertainty about whether further provision could have been secured for Mr Y during this period.
49. In response to my enquiries, the Council said it had appointed new managers to oversee SEND tribunals and complaints as well as other officers to support these functions. It has introduced a ‘team around the complaint/tribunal’ process to ensure there is a coordinated approach to each case. This includes seeking professional advice and ensuring all actions are completed following a tribunal. It has also introduced a tribunal and complaint tracker so actions, themes and learning are tracked and monitored. Complaints and tribunals are a standing item on weekly SEND management team meetings and a new training programme covers the complaint and tribunal process.
50. The Council accepts there were unacceptable delays in its response to the tribunal’s order. It proposed a financial remedy to Mr Y of £150 for three months to recognise that while a place at college was available, one-to-one support was not put in place for one term. It also proposed £250 to acknowledge the inconvenience caused. The Council also agreed to meet the cost of the laptop Mr Y bought, on the production of a receipt.
51. While I acknowledge the offer made by the Council, I do not consider it is sufficient to remedy the injustice in this case. I have therefore made further recommendations below. In doing so have considered the Ombudsman’s Guidance on Remedies. We aim to put the person who has suffered an injustice back in the position they would have been in, but for the fault. Where that is not possible, we suggest a financial sum instead to recognise the injustice. This is not compensation. Compensation is a matter for a court and the sums awarded are on a different basis.

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Agreed action

52. Within one month of the final decision, to remedy the injustice caused, the Council will:
• apologise to Mr Y and Miss X for the faults identified in this investigation;
• pay Mr Y £2,200 to recognise his lost special educational needs provision from September 2019 to the end of January 2021;
• pay Mr Y a further £250 to recognise the uncertainty of not knowing what further provision could have been made available for him had the Council made reasonable endeavours during the period College A was closed in response to COVID-19;
• pay Miss X £250 to recognise the time and trouble she was put to in pursuing this complaint; and
• reimburse Mr Y for the cost of the laptop he bought.
53. The Council will also issue a reminder to staff about the timescales for issuing an amended final plan following a decision from the SEND tribunal.

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Final decision

54. I have completed my investigation with a finding of fault for the reasons set out in this statement. Mr Y and Miss X were 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