Summary: Miss X complained the Council failed to provide her son, G, with appropriate education in line with his Education, Health and Care (EHC) Plan during 2020. The Council was at fault when it failed to provide G with provision in line with his EHC Plan between January and June 2020. The Council agreed to pay Miss X a total of £1,200 to acknowledge the loss of education and social development it caused G and the uncertainty and time and trouble it caused her.

The complaint

1. Miss X complained the Council failed to provide her son, G, with appropriate education in 2020. Miss X said G did not receive provision in line with his Education, Health and Care Plan during this period.
2. Miss X said G lost out on education and the matter caused her stress, uncertainty and time and trouble.

Back to top

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 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.
5. 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)
6. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
7. 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)
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.

Back to top

How I considered this complaint

9. I considered Miss X’s complaint and information she provided.
10. I considered the Council’s response to my enquiry letter.
11. Miss X and the Council had an opportunity to comment on my draft decision. I considered comments before I made a final decision.

Back to top

What I found

Education, Health and Care Plan (EHC) Plan

12. Children with complex needs may require an Education, Health and Care (EHC) Plan. This is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what must be done to meet those needs by education, health and social care. This can include support needed in school.
13. Councils are responsible for making sure all the arrangements named in the EHC Plan are put in place.
14. Once the Council completes the EHC Plan it has a legal duty to deliver the educational and social care provision set out in the EHC Plan. This duty is non-delegable. The local health care provider will have the duty to deliver the health care provision.

Annual Reviews

15. Councils must review an EHC Plan at least every 12 months.
16. Councils must decide whether to maintain the EHC Plan in its current form, amend it, or cease to maintain it within four weeks of the review meeting. Although there is no statutory timeframe for how long the council can take to do the amendments, the guidance says this should happen ‘without delay’.
17. The Council must issue the final EHC Plan or decide not to amend the EHC Plan as soon as practicable and within eight weeks of the date it sent the Plan to the parents/young person with the proposed amendments. Decisions to amend or cease a plan can be appealed to the Special Educational Needs and Disability Tribunal (SEND) Tribunal.

SEND Tribunal

18. The Ombudsman cannot investigate complaints about the content of the EHC Plan. This includes provision specified in section F and the school or setting named in section I. These are appealable to the SEND Tribunal.
19. Caselaw has established that where someone may appeal to the SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the contents of an EHC Plan or the type of educational placement it specifies, we cannot seek a remedy for lack of education after the appeal rights are triggered on the date of the final EHC Plan.
20. The Council issued G’s amended final EHC Plan in June 2020 which triggered Miss X’s appeal rights to the SEND Tribunal. She later exercised these rights when she appealed the school named in Section I. The lack of provision from June onwards is inextricably linked to the subject of her appeal. This means I can only consider the events which took place in the period January to June 2020. Any loss of education or injustice from June 2020 is out of our jurisdiction, even if this means this injustice will not be remedied.

The Coronavirus Act 2020

21. In May 2020 some aspects of the law on education, health and care (EHC) needs assessments and plans changed temporarily to allow councils, health commissioning bodies, education settings and other bodies who contribute to these processes more flexibility in responding to the demands placed on them by COVID-19.
22. The changes meant the absolute duty of councils to secure or arrange provision set out in section F of an EHC Plan was modified to a duty to use ‘reasonable endeavours’ to do so. These changes were applicable until 31 July 2020.

What happened

23. Miss X has a son, G, who has a diagnosis of autism and other learning difficulties. In 2020 G attended a mainstream primary school (School A) with an EHC Plan. Section F of G’s EHC Plan said he required:
• a consistent approach to incorporate his social and communication needs.
• teaching by staff to promote his interpersonal and emotional skills.
• a mixture of one-to-one and small group settings and a low arousal environment with suitable adaptations.
24. In January 2020 School A told the Council it could no longer meet G’s needs. The Council carried out an emergency annual review and agreed that F required an alternative placement. Records show the Council began sending consultations to alternative schools including those preferred by Miss X and other schools it felt appropriate.
25. G remained on roll at School A. Records show he received a part-time timetable outside of the main classroom and away from other pupils.
26. At the start of May 2020 Miss X chased the Council for an update and asked it to issue a formal notice of its intention to amend F’s EHC Plan. Miss X said this then would trigger her appeal rights to the SEND Tribunal. The Council issued Miss X with this along with a draft EHC Plan at the end of May. It issued Miss X with G’s final amended EHC Plan in June 2020. The Plan named School A in section I.
27. Records show the Council consulted various alternative placements between February and June 2020 of which most stated there was either no space for G or they could not meet his needs. Miss X declined some of the others due to other reasons. Miss X told the Council her preferred option was a residential placement for G. Records show School B, which had residential facilities, asked the Council for further information about F before it would make a decision.
28. During this period G remained on roll at School A on a part-time basis outside of his main classroom at a desk in the deputy head teacher’s office.
29. In August 2020 Miss X appealed to the SEND Tribunal about the named placement, School A, in section I.
30. Following an assessment, School B indicated to the Council that it could offer G a place and could meet his needs. Miss X contacted the Council in October 2020 asking it for an update on when G could start at School B. Miss X said G had not received an adequate education during 2020 and she wanted his placement at School resolved as soon as possible.
31. Miss X did not receive a response, so in November 2020 she formally complained. She said staff at both School A and School B agreed that School B was an appropriate setting for G; however, the Council had made no progress. The Council responded to Miss X later that month and apologised for the delay in confirming G’s placement at School B. It said it would issue an amended EHC Plan naming School B in section I until the end of the academic year when it would carry out another annual review for the following year.
32. Miss X was unhappy with the Council’s response and complained to us.
33. In December 2020 the Council amended G’s EHC Plan and named School B in section I. As both Miss X and the Council had agreed with the amendment the SEND Tribunal ended its involvement. G started at School B at the end of January 2020.

My findings

34. The Council was aware in January 2020 that School A could no longer meet G’s needs and agreed at the annual review, also in January, that he required an alternative placement. The law says that the Council must inform parents within 4 weeks of the annual review whether it intends to amend the EHC Plan or not. The Council did not send Miss X its formal notification until the end of May 2020. This was a delay of 11 weeks and is fault. This caused Miss X uncertainty and time and trouble chasing the Council about the matter.
35. Following School A’s notification that it could not meet G’s needs, he remained on roll there for the rest of the academic year. This meant G remained in a setting between January and the end of March 2020 which could not meet all his needs or deliver all the provision outlined in section F. This is fault. As a result, G missed on the provision around his social development because he was taught on his own and away from his peers. He also did not receive a full-time education.
36. The country entered a national lockdown in March 2020 due to COVID-19. Regardless of the circumstances G would have received a full-time education in line with his EHC Plan during this period. However, the Council was obliged to use ‘reasonable endeavours’ to provide G with provision outlined in section F. The Council has not demonstrated or provided evidence of the ‘reasonable endeavours’ it took during this period secure G with the provision outlined in section F of the EHC Plan. G remained on roll at an unsuitable placement between March and June 2020 and did not receive provision in line with his EHC Plan which is fault.

Back to top

Agreed action

37. Within one month of the final decision the Council agreed to:
• pay Miss X a total of £1,100 to remedy the loss of education and social development caused to G between January and June 2020 by its failure to deliver the provision set out in G’s EHC Plan. Miss X should use the payment for G’s educational benefit as she sees fit.
• pay Miss X £100 to recognise the uncertainty and time and trouble caused by the Council’s delay in formally notifying her of its intention to amend G’s EHC Plan.

Back to top

Final decision

38. I have completed my investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by that fault.

Back to top

Investigator's decision on behalf of the Ombudsman