The Ombudsman's final decision:
Summary: We upheld Mr X’s complaint about the Council’s handling of his son’s education, health and care plan. The Council delayed issuing an amended plan, missed opportunities to assess how well the plan was working, and failed to provide a coordinated approach. This created uncertainty for Y about whether the right support was in place. The Council agreed to apologise to Y, make a financial payment to recognise the impact on him, and review how it handles decisions following annual reviews in the future.
- Mr X complains there was a lack of oversight by the Council of his son Y’s education, health and care plan. He says the Council delayed amending the plan after an annual review and failed to identify some provision was not in place. He says Y missed out on provision he needed as a result. He would like the Council to accept it was at fault and to apologise.
The Ombudsman’s role and powers
- 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)
- We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
- 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)
How I considered this complaint
- I have considered the complaint made by Mr X and the documents he provided.
- I considered the Council’s comments about the complaint and the documents it provided in response to my enquiries.
- Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
- 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.
What I found
Law and guidance
Education, health and care plans
- The Children and Families Act 2014 sets out how support will be provided to children 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.
- 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.
- Councils must make sure special educational needs provision in the EHC plan is put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
- We expect councils to check provision is in place when a new or substantially amended EHC plan is issued, but it is not practical for councils to monitor provision on an ongoing basis. We may decide council staff visiting the school such as specialist teachers should have alerted SEN officers to the absence of provision, or that inadequate reviews and monitoring required by the plan were carried out. We would not find fault with a council if provision that had been checked as being in place subsequently stopped and it was not made aware.
- The Code says councils must review EHC plans at least annually. The review should focus on the child’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 child’s circumstances. The Code sets out who should be invited to attend the review meeting.
- 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 child’s parents. If the council intends to amend the plan, it should start this without delay.
- When a council proposes to amend a plan, it must send the child’s parents a copy of the existing plan and a notice explaining the proposed amendments. Parents may ask for a meeting with the council to discuss the proposed changes.
- Councils must give parents at least 15 calendar days to comment and make representations on the proposed changes, including asking for a particular school to be named on the plan. Councils must issue an amended final plan within eight weeks of issuing an amendment notice.
- The Code says there may be occasions when a reassessment becomes appropriate, particularly when a child or young person’s needs change significantly. The maximum timescale from the decision to reassess to issuing a final EHC plan is 14 weeks.
Impact of the COVID-19 pandemic
- This complaint involves events that occurred during the COVID-19 pandemic. The government introduced new and frequently updated rules and guidance during this time. The Coronavirus Act 2020 allowed the Secretary of State to temporarily change existing legal requirements and issue guidance about provision of education for children with special educational needs and disabilities.
- On 23 March 2020 schools in England closed to most pupils as part of the first national lockdown, apart from children of key workers and those who were vulnerable. The government asked councils to carry out risk assessments to decide whether children and young people considered vulnerable, including those with an EHC Plan, should stay at home or go into school.
- When the government issued this guidance councils still had a duty to ensure the provision in an EHC Plan was in place. But the guidance noted it may be difficult to do so, for example where the school was shut or could not open safely, or where parents had chosen to keep the child at home and agreed temporarily that the child would not be accessing education at the school.
Providing the support in an EHC Plan
- In an open letter to councils and education providers issued on 24 March 2020 the Department for Education advised it would be introducing temporary emergency legislation changing councils’ duties about EHC Plans. It said the overall aim was to “balance the needs of this vulnerable group to receive the support they needed with managing the demands on councils and health bodies to respond to the pandemic”.
- 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.
- 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.
- 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”.
- The guidance noted it may be difficult to provide all elements of support in an EHC plan, for example where the child is not attending their education placement or services are reduced through illness or other COVID-19 related restrictions.
- In deciding what provision can and cannot be made the council had to consider:
- specific local circumstances and workforce capacity.
- the needs and specific circumstances of the child or young person.
- the views of the child, young person and their parents about what may be appropriate.
- 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.
- Mr X’s son, Y, has a diagnosis of autism and has an EHC plan which was amended in September 2019. He experiences anxiety, particularly about school, and difficulty in social situations. Mr X says at the end of 2019, Y’s attendance and attainment began to fall.
- The provision in Y’s EHC plan included but was not limited to:
- use of an area in school as a safe place at breaks and lunchtimes;
- a weekly social skills programme;
- structured opportunities to practice new social skills;
- access to an emotional literacy programme; and
- introduction to a circle of friends or buddy system to support interaction with peers.
- The Council was aware from at least December 2019 that Y was experiencing difficulties attending school. This was reinforced at the annual review meeting in February 2020. It was important the Council acted promptly following the meeting to reflect on these difficulties and the support proposed to address them.
- The Council accepts it delayed in issuing Y’s plan. It says this delay did not make a material difference to Y. I disagree. Had the Council acted promptly to review the plan following the annual review then, allowing for delays caused by the COVID-19 pandemic, I consider it should have issued an amended draft plan before the end of the school year in 2020. This would have given Mr X an opportunity to provide comments on the draft including highlighting where provision which had been suggested at the most recent annual review had not been included. An amended EHC plan could have been ready for the new school year in September 2020. Had the Council proceeded to issue a final amended plan without that provision, Mr X would have had a right of appeal about the content of that plan to the SEND tribunal. Instead, the Council did not issue a final amended plan until one year after the annual review meeting, after a further review meeting had taken place and shortly before it decided to reassess Y.
- The Council says Y’s school did not raise any concerns about Y during the period of school closures. However, records show the school did raise concerns in April 2020. This was a missed opportunity for the Council to assess how well Y’s plan was working during the period of school closures, to consider his needs, seek a view from him and from his parents, and if necessary, make alternative arrangements for his special educational provision.
- In response to Mr X’s complaint, the Council said it would be introducing half-termly meetings for cases which needed a more coordinated approach. In doing so, it appears to me the Council accepts Y’s was a case which required such an approach. The Council failed to do so, and this creates uncertainty about whether it could have identified the need for a reassessment sooner, or could have put different provision in place for Y earlier.
- The Council was not at fault for not attending the annual review meetings. The Code requires officers to be invited but not to attend, and there is evidence to show the specialist teacher provided advice to the school before the meeting. It is also not possible for me to say whether the changes in staff assigned to Y’s case contributed to any of the fault or injustice in this case.
- The Council denies there was a lack of communication from officers about Y’s provision from September 2021. There is no record of any contact from the Council to Mr X about Y’s provision at that time. However, Y’s school was funding the provision and would be expected to take the lead on arrangements. There is evidence of communication from the school to Mr X and the Council at the start of term which suggests Y settled well initially. I therefore do not consider a lack of communication from the Council at that time caused Y an injustice.
- Within one month of the final decision, to remedy the injustice caused, the Council will:
- apologise to Mr X and Y for the injustice caused by the faults identified in this investigation;
- pay £750 to Y to recognise the missed opportunities and uncertainty caused by the Council’s failure to consider whether his EHC plan was being delivered effectively in the reasonable endeavours period; the delay in issuing his amended EHC plan following the review in February 2020; and its failure to take a coordinated approach to Y’s case.
- review its handling of decisions after annual reviews to ensure they are issued on time and that where required plans are amended and issued without delay.
- I have completed my investigation with a finding of fault for the reasons set out in this statement. Y was caused an injustice by the actions of the Council and it has agreed to take action to remedy that injustice.
Investigator's decision on behalf of the Ombudsman