Summary: Mrs X complained about how the Council dealt with her son’s Education, Health and Care (EHC) Plan. We find the Council was at fault through delay, failing to put some of the provision in place and failing to complete a review of the EHC Plan. This resulted in some loss of provision and a lack of planning for post-16 education. The Council has agreed a suitable remedy including payments, an urgent review of the EHC Plan and a review of procedures.

The complaint

1. Mrs X complains about the way the Council dealt with her son's Education, Health and Care (EHC) Plan. This includes:
1. delay in issuing the final Plan;
2. delay in consulting schools;
3. failing to write to her with the outcome of an interim review meeting in November 2020;
4. failing to ensure her son received the support set out in his EHC Plan; and
5. failing to plan for his post-16 education.
2. As a result she says her son has missed out on education and support, has become disengaged from learning and has no plans for his future education.

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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 law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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 statement.
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 discussed the complaint with Mrs 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 pupils with special educational needs. I took account of comments I received from Mrs X and the Council in response to my first draft decision. Mrs 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 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

9. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the SEND Tribunal can do this.
    
10. Parents have a right to appeal to the SEND Tribunal over the special educational needs support or the placement named in the EHC Plan, and about a decision not to amend a Plan following a review.
11. Councils have a duty to ensure the special educational provision set out in an EHC Plan is arranged. (Children and Families Act 2014 section 42)
12. Statutory guidance 'Special educational needs and disability Code of Practice: 0 to 25 years' (’the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.

Assessment timescales

13. The Code says:
• Where a local authority receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment.
• The whole process from the date of the request until the final EHC Plan is issued must take no more than 20 weeks, unless certain exceptions apply.

School consultations

14. Where a parent asks for a particular school to be named in an EHC Plan, the council must consult the school concerned, giving it 15 days to respond.

Reviews

15. Councils must review an EHC Plan at least every 12 months. They may carry out a review earlier.
16. The council must write to the child’s parent or the young person within four weeks of the review meeting to say whether it proposes to keep the EHC Plan as it is, amend it or end it.
17. If the Plan needs to be amended the council should start the process of amending it without delay. It must:
• send the child’s parent or the young person a copy of the EHC Plan with details of the proposed amendments and any evidence it has supporting the amendments;
• tell them of their right to ask for a particular school or other placement to be named in the Plan and advise where they can find information about placements available;
• give the parent or young person at least 15 days to make representations on the proposed changes or request a particular school.
18. If the council decides to amend the EHC Plan following the representations it must issue the final amended EHC Plan within eight weeks of the original amendment notice. It must tell the parent or young person about their right of appeal.
19. If the council decides not to amend the EHC Plan it must write to the parent or the young person with its decision and tell them about the right of appeal.

Phase transfer reviews

20. The Code says “for young people moving from secondary school to a post-16 institution or apprenticeship, the review and any amendments to the EHC plan – including specifying the post-16 provision and naming the institution – must be completed by the 31 March in the calendar year of the transfer”.

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. The Secretary of State issued a notice under the Coronavirus Act 2020 to give councils more flexibility in dealing with EHC Plans and provision. It temporarily changed councils’ absolute duty to ‘secure’ the education provision in an EHC Plan to one of using ‘reasonable endeavours’ to do so. This change applied from 1 May to 31 July 2020. At the end of this period, councils’ usual duties resumed.
23. In March 2020, all schools were ordered to close, retaining some staff to provide education for the children of key workers and some 'vulnerable' children. These included children with an EHC Plan. Schools did not have to allow all children with EHC plans to attend. Instead, the government asked councils to carry out a risk assessment with children who had an EHC plan to determine whether their needs could be met at home and whether they would be safer there than attending an educational setting.
24. The Government issued guidance, ‘Education, health and care needs assessments and plans: guidance on temporary legislative changes relating to coronavirus (COVID-19)’ (‘the Guidance’) about how to carry out the risk assessment. It also gave guidance on the ‘reasonable endeavours’ duty. Councils had to consider whether alternative arrangements for delivering the provision in an EHC Plan were possible if the full support in the Plan could not be provided. They needed to consider the local conditions and the individual circumstances of the child or young person, and tell the family the outcome.
25. The Government also introduced temporary regulations in force up to 25 September 2020 which allowed for the deadlines for completing EHC needs assessments and issuing EHC Plans to be relaxed. This applied where it was not reasonably practicable or it was impractical to complete the actions within the usual timescale required, for a reason relating to COVID-19.
26. However the Guidance made it clear that “if the final deadline (such as the end of the 20 weeks) had passed before 1 May, the relaxations to timescales for a reason relating to coronavirus …….could not apply because they were not in force then”.
27. There was no change in timescales for education placements to respond to consultations. But the Guidance advised there might be delays in responding because of staff absence through illness or self-isolation. It suggested councils contact potential placements by telephone as well as in writing to help with effective decision-making.

What happened

28. Mrs X’s son, M, turned 16 in April 2021. In October 2019, the school he was attending, School 1, asked the Council to carry out an EHC assessment of M’s special educational needs. This was because of the effect on his learning of his difficulties with social communications skills, anxiety and low self-esteem. The Council received the request on 11 October and made the decision agreeing to carry out the assessment on 21 November, within the required six-week deadline. The Council then had until 28 February to complete the assessment and issue a final EHC Plan.
29. The Council issued a draft EHC Plan on 23 January 2020. It consulted Ms X’s preferred school, School 2, about naming it in the EHC Plan. When School 2 declined, saying it could not meet M’s needs, the Council contacted neighbouring councils about places at specialist schools. All said they had no places available.
30. Following a discussion with Mrs X at the end of January, the Council consulted another of her preferred schools, School 3. School 3 said it had no places available at the time but might be able to offer M a place in September. The Council says it tried to see if School 3 could make a place available earlier. Mrs X visited the school but it said it could not meet M’s needs. She discussed other possible placements with the Council but she did not consider those suggested were suitable.
31. On 24 March, after the Government announced the national COVID-19 lockdown, the Council sent an email to Mrs X to say it would not be able to consult any more schools until after the Easter holidays. This was because of staff shortages and because schools were now closed to visitors.
32. The Council finalised the EHC Plan on 15 April 2020. Mrs X received it on 30 April. It named the type of school as a ‘mainstream high school’ and the placement as ‘continued attendance’ at School 1.
33. The Plan included the following provision:
• Access to a broad personalised curriculum which includes topics where M is more likely to succeed and which he finds more motivating e.g. PE, design technology, food technology, mechanics, citizenship, art, drama, music.
• Use of a high level of practical learning opportunities throughout his curriculum.
• Small group teaching environments with high levels of adult support and guidance.
• A key worker to be identified to build a trusting relationship with M and provide a mentoring session at least once a week.
• Daily access to a personal and social development curriculum, which helps to develop social thinking and social interaction skills.
34. Although Mrs X did not think School 1 was an appropriate placement for M, she understood the Council was going to continue to look for a suitable placement and so she did not appeal.
35. From the end of April up to mid-May the Council consulted three more schools and Mrs X arranged visits in June. Two of the schools offered places but Mrs X rejected them because M did not want to attend a specialist school. Also Mrs X wanted one with a sixth form so he would not have to change placement again.
36. Between October 2019 and April 2020 M attended school but was often placed in isolation and he received a fixed term exclusion.
37. During May and June M did not go into school. Mrs X says she asked School 1 if he could attend but it said he could not as she was not a key worker. Mrs X says she does not remember any discussion with the Council or the School about a risk assessment or how the support in his EHC Plan could be delivered during the lockdown. She says the School did not send work home for M or provide any online learning. She says he had one visit from his key worker. Mrs X says she did activities with M herself and found online lessons.
38. When schools opened to more pupils in June, M refused to go in to school. He received tuition for two hours a day three times a week. School 1 suggested M remain on roll there but attend an alternative provision site. The Council asked School 1 to arrange this in late June. M started at an alternative provision placement, ‘AP1’, which offered vocational courses, for three days a week. School 1 continued to offer 1:1 tuition on the remaining days but M would not go into school.
39. In September 2020 M continued attending AP1 for three days a week with School 1 offering tuition in Maths and English on the other two days. As M was still refusing to go into school and not engaging with home tuition, the Council’s Provision and Placement Panel in early September considered options for venues for the 1:1 tuition.
40. In mid-October School 1 contacted the Council to ask for an urgent review of M’s EHC Plan to look at the provision and whether School 1 was a suitable placement.
41. The interim review meeting took place on 9 November. The meeting agreed the placement at AP1 was going well. M should continue there for three days a week. The meeting also identified another independent alternative provider, ‘AP2’, as a potential placement for the academic tuition on the other two days.
42. M started at AP2 in late November but did not settle in. The placement broke down in January 2021 when M refused to attend, and Mrs X asked the Council to end the placement.
43. The Council considered the request to end the AP2 placement at the Provision and Placement Panel. The Panel decided “it would be too destabilising for M to move to a new placement this late in Year 11”. It recommended that he needed to remain on roll at School 1 and “they need to find suitable education for him”. The Council told Mrs X the outcome in February 2021. It said it had referred M to the multi-agency NEET (Not in Education, Employment or Training) Team who would provide support for M to transition to post-16 provision. Along with the NEET Team, M has been looking into options for education or training, so far without success.
44. The Council says since February 2021 it has worked with School 1 to try to establish a suitable package of alternative provision and seek a placement at a sixth form. It also says M continued to attend AP1 part-time for the rest of the school year up to July 2021.
45. The Council did not send Mrs X a notice following the November 2020 review meeting to say whether it intended to amend M’s EHC Plan. It says it received the review report from School 1 in June 2021. The report said M was not engaging and not attending school at all. School 1 explained the attempts it had made to support M through 1:1 tuition at school and in a local community centre, and with a personalised curriculum at school. M was still attending the AP1 placement. The report said M was “desperate to get back into education” and would like a smaller, specialist setting such as one he identified. He said he would not go back to School 1 as he felt he would end up back in isolation or excluded. The recommendations from the meeting were to maintain M’s EHC Plan but with a change of placement, and consider a personal budget to cover the cost of attending AP2. The report confirmed that School 1 did not consider M's needs could be met in a mainstream placement.
46. Since then the Council has not issued any draft amended EHC Plan or identified any other post-16 placement. M has explored various options. Towards the end of the summer term in 2021 he received an offer of a place at a college but not on the course he wanted. In September 2021 Mrs X told the Council M had an apprenticeship arranged. Then in October, following an interview at another college, M was due to take up a place in early November. However he then had to withdraw for health reasons. The Council says this happened before work could take place with the college to update the EHC Plan.
47. Mrs X says M remains at home with no education or training. The Council says it is providing coaching through the NEET team while he recovers. Mrs X says this amounts to short unannounced visits once or twice a month.

Analysis – was there fault causing injustice?

Complaint a) - delay in issuing the final Plan

48. To meet the required timescale the Council should have issued the final EHC Plan by 28 February 2020, 20 weeks after receiving the request for an assessment. This is before the lockdown was announced and the timescales temporarily relaxed. It actually issued the Plan on 15 April 2020, nearly 7 weeks late. This is fault.
49. If it had been issued in time, there would have been an opportunity to put the provision in place before the national lockdown. Allowing a reasonable period of, say, three weeks to put the provision in place, this meant M lost around four weeks of potential support.
50. The Council says the reason for the delay was that it was trying to work with the family to accommodate their wishes for a school placement. However it recognises on reflection that it should have named a school in the EHC Plan and if Mrs X was unhappy with it she could have appealed. The Council confirms that the delay meant a lack of provision for four weeks.

Complaint b) – delay in consulting schools

51. There was some delay in consulting schools from the end of March to the end of April 2020. But I do not consider this was a result of fault by the Council as it had to take account of the circumstances in schools at the time as they coped with the initial impact of the pandemic.
52. Also the one-month delay did not affect the outcome, as when the Council started the consultations again it contacted several schools but none of them resulted in a placement being named in the EHC Plan. Mrs X says she did not appeal the named placement, School 1, as she understood the Council would continue trying to identify a suitable placement. But she had two months to appeal and if she felt Council had failed to name a suitable school by then it is reasonable to expect her to appeal for any placement she considered suitable.

Complaint c) – lack of action following the November 2020 interim review meeting and Complaint e) – lack of planning for post-16 provision

53. In response to the Ombudsman’s enquiries the Council has recognised it failed to issue a notice saying whether it would be amending M’s EHC Plan following the review meeting. It has apologised to Mrs X for this. The Council says it did not receive the review report from the School until June 2021. This is seven months after the review meeting took place.
54. It was the Council’s responsibility to ensure the review was completed in time. It failed to chase School 1 for the report. It failed to meet the deadline at the end of March 2021 for amending M’s EHC Plan for his transfer to post-16 education. This is fault and meant the Council failed to act on all the recommendations in the report. The Council says the meeting, including Mrs X, agreed M should have a part-time placement at AP2, and that this is what the Council arranged. But the meeting also heard that School 1 felt it was no longer a suitable placement, M was ‘desperate’ to get back into education, and he had identified a placement he was interested in. There is no evidence the Council explored this option.
55. The Council failed to complete the review process. If it had issued a notice saying it was not going to amend the Plan or if it had issued an amended plan without naming a placement Mrs X and M considered suitable, they would have been able to appeal to the SEND Tribunal. Without a decision following the review meeting they lost the opportunity to appeal.
56. The delay and lack of decision meant there was no plan for M’s transition to post-16 education or training from September 2021. This left M and Mrs X in a state of uncertainty and anxiety, and M lacking in educational support.
57. I do not know what the outcome would have been if they had been able to appeal, but the loss of opportunity and the uncertainty this caused is an injustice to Mrs X and M.

Complaint d) - failing to ensure M received the support set out in his EHC Plan

58. I have already looked at the period of delay in issuing the final EHC Plan, resulting in around four weeks of missed provision.
59. From 1 May 2020 the Council had a duty to make reasonable endeavours to put the support in the EHC Plan in place. Mrs X says there were no discussions about this. As the Council has not provided any information to show what attempts were made to put provision in place until June 2020, I conclude on balance it did not meet its duty at this stage. I do not know what more it might have been able to provide if had considered matter properly. But given the evidence that M did not engage with home tuition or the School’s offer of tuition on school premises it seems unlikely it would have been able to provide more. I do not know if AP1 would have been able to offer M a place before June.
60. From June 2020 M received some of his provision through AP1. According to the Council AP1 provided vocational studies in topics M asked for, opportunities for practical learning, and small group teaching. It offered an opportunity to work on personal and social development and M had a key worker from School 1 who visited him every week at AP1. I am satisfied this represents support set out in M’s EHC Plan. The Council was aware School 1 was offering the academic side of the curriculum through 1:1 tuition. I do not consider the Council was at fault in failing to make reasonable endeavours to provide the support under M’s EHC Plan up to the end of term.
61. From September 2020 the Council’s full duty to deliver the support resumed. The placement at AP1 continued, where M received support in line with his EHC Plan, but only part-time. School 1 was offering tuition but M did not wish to take part. Then following the review meeting in November 2020, the second placement, AP2, which Mrs X agreed to, failed in January 2021. But this was not through fault of the Council.
62. Partial EHC Plan provision continued until the end of the school year in July 2021 at AP1. I consider the Council was at fault in failing to provide full provision from February 2021. At that point it knew School 1 did not consider itself a suitable placement. M had been engaging well at AP1. The Panel decided not to look for an alternative as it felt it would be “too destabilising” for M. But this meant he was left with only part-time provision from February 2021 to the end of the school year. Mrs X says she asked if he could attend full-time at AP1 but was refused. The Council said the referral to the NEET Team was to help with post-16 transition, but that was from the beginning of the next academic year in September 2021. There were no plans for full-time EHC Plan provision for the remainder of the school year.
63. As the Council never amended the EHC Plan and has not proposed to cease it, it confirms that the April 2020 Plan remains the current one. This means the Council is still under a duty to deliver the provision in that Plan. None of the support set out in the EHC Plan has been provided since September 2021, apart from some coaching sessions, as M is not in any placement. M’s plans have changed as options have fallen through for various reasons and this has contributed to the Council’s delay in amending the Plan to name a placement. Nevertheless the lack of provision from September 2021 is in large part a consequence of the failure to complete the review of his EHC Plan in a timely way. On balance I consider the Council should offer a financial remedy to recognise this lack of support, as set out below.

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Agreed action

64. To remedy the injustice caused by the Council’s fault I recommended that the Council take the action set out below. I have based the recommended figures on the Ombudsman’s guidelines. Where fault has resulted in a loss of educational provision, the Ombudsman normally recommends a remedy payment of up to £600 per month to acknowledge the impact of that loss. The figure is based on the impact of the loss on the child or young person and takes account of factors such as their special educational needs, any educational provision made in the period, and whether the period was particularly significant, for example a transfer in phases of education.
65. The Council has agreed that within one month of the final decision on the complaint it will:
• Apologise directly to Mrs X and M for the faults identified in the investigation.
• Make a payment of £200 to recognise four weeks’ lack of EHC Plan provision because of the delay in issuing the final Plan.
• Pay £500 to recognise the partial delivery of EHC Plan provision from February to July 2021. This sum is based on around five months of missing support, taking account of school holidays, at the rate of £100 per month.
• Pay £400 per month for the lack of special educational needs support from September to December 2021 taking account of the partial support provided.
• Make a payment to recognise the impact of the failure to complete the EHC Plan review process. This was the loss of opportunity to appeal and the lack of preparation for education from September 2021 causing anxiety and distress. I recommend £500 for M, and £300 for Mrs X.
66. All sums for M should be used for the benefit of his education or training.
67. I also recommend that within two weeks of the decision the Council should set a date for an urgent review of M's EHC Plan, with Mrs X, M and all relevant parts of the Council's service, to ensure it is still suitable, and to plan for the next steps in M's education, training or employment. The Council says it will hold the review within six weeks of the decision. If it does not do so, Mrs X or M may approach the Ombudsman again and we will consider whether to recommend a further payment.
68. Within three months the Council will review its procedures for carrying out interim/emergency reviews of EHC Plans to ensure it completes the process in line with the Code. It should pay particular attention to the point of transfer between phases of education. It should provide the Ombudsman with a copy of its improvement plan.

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Final decision

69. I have found fault by the Council causing injustice to Mrs X and M. I am satisfied with the action the Council has agreed to take to remedy the injustice and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman