Summary: The Council failed to review B’s Education, Health and Care (EHC) Plan in 2018 and 2019. Although councils, schools and parents faced new and difficult restrictions as a result of the pandemic, the delay of 12 months reviewing and amending B’s EHC Plan in 2020 was fault. The Council made significant changes to B’s Plan in 2021. The Council has offered to arrange extra tuition for B.

The complaint

1. Mrs M complains about her son B’s education. B has an Education, Health and Care (EHC) Plan maintained by the Council. He is a pupil at a community special school, although he attends a mainstream school where he is studying subjects for GCSE. In particular, Mrs M complains:
1. the Council did not complete annual reviews of B’s EHC Plan between March 2017, when the Plan was first issued, and March 2021.
2. during the Covid-19 pandemic, B has missed out on his mainstream classes as he has been taught in a ‘special school bubble’ and not attended the mainstream school.
2. Mrs M would like B to receive extra tuition in his mainstream subjects to help him catch up on the education he has missed.

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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 have considered:
• information provided by Mrs M; and
• information provided by the Council.
6. I invited Mrs M and the Council to comment on my draft decision.

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What I found

Education, Health and Care Plans: the law

7. A child with special educational needs may have an Education, Health and Care (EHC) Plan. An EHC Plan describes the child’s special educational needs and the provision required to meet them.
8. The Council must review a child’s EHC Plan at least every 12 months. (Children and Families Act 2014, section 44)
9. The procedure for reviewing a child’s Education, Health and Care Plan is set out in legislation and Government guidance.
10. The Council may ask the head teacher to arrange a meeting to review the child’s progress. Following the meeting, the head teacher must prepare a report for the Council. The Council must then decide whether to continue the child’s EHC Plan in its current form or amend it. (Special educational needs and disability regulations 2014 (as amended), regulation 20)
11. Parents have a right of appeal to the SEND Tribunal if they disagree with the Council’s plans following the review.

What happened

12. The Council issued B’s first EHC Plan in March 2017.
13. The school held annual review meetings in March 2018 and March 2019. The March 2020 annual review meeting was delayed because of the pandemic.
14. The Council says it did not receive the reports from the annual review meetings, and did not chase the school. The Council did not complete the annual reviews. The Council has apologised.

Complaint a) failure to hold annual reviews in 2018, 2019 and 2020

15. The Council’s failure to review B’s EHC Plan in 2018 and 2019 is fault.
16. The 2020 annual review should have happened just as the pandemic began. This review was delayed by 12 months. The Government introduced new and frequently updated rules and guidance during the pandemic. The main change that is relevant to Mrs M’s complaint was to make the timescales which normally apply ‘targets’ which Councils should aim to meet wherever possible.
17. The Council amended B’s EHC Plan in March 2021. The Council says it made significant updates to sections A (views and aspirations of the young person), B (special educational needs), C (health care needs), E (outcomes), F (special educational provision) and G (health care provision). B’s amended EHC Plan says he will have access to mainstream classes where he will study subjects at GCSE.
18. Although councils, schools and parents faced new and difficult restrictions as a result of the pandemic, the delay of 12 months reviewing and amending B’s EHC Plan was fault. The review was already two years overdue and should have been a priority.
19. Where we find fault, we must also consider whether it caused injustice that requires a remedy. A remedy is usually action by the Council to put the person affected by the fault back in the position they would have been in if the fault had not occurred.
20. The Council’s failure to review B’s EHC Plan has caused Mrs M considerable frustration. She has gone to considerable lengths through her complaint to ensure B’s Plan was reviewed. The Council has apologised. I consider its apology a suitable remedy for Mrs M. I have more to say about injustice to B below.
21. The Council says it is looking to increase the number of staff in the assessment team to make sure the same fault (failure to ensure annual reviews are completed) does not happen again and affect others.

Complaint b) access to mainstream education during the pandemic

22. B’s school, the community special school, is ‘co-located’ with the mainstream school where he is studying subjects for GCSE.
23. When children returned to school after the first ‘lockdown’, they were placed in ‘bubbles’ to minimise contact and reduce the spread of the virus. In B’s case, he was included in a ‘bubble’ at the community special school where he received the majority of his education. This meant he could not take part in the mainstream classes where he was studying for GCSEs.
24. I understand B had access to remote learning for the subjects he was studying at the mainstream school for some of the time. While I appreciate this was not ideal, it was the experience of many children during the pandemic.
25. The Ombudsman cannot investigate complaints about education delivered by schools. Our role is to check the Council delivered the special educational provision required by B’s EHC Plan.
26. I asked the Council about the impact of remote learning and its plans to help B catch up. I was particularly concerned because of the Council’s failure to review B’s EHC Plan in 2018 and 2019 and the delay in the 2020 review and the impact this may have had on his education.
27. The Council said it would provide extra tuition for the subjects B was studying for GCSE. I welcome the Council’s offer. Mrs M suggested one hour for each of the GCSE subjects for each of the 13 weeks that B missed in the Autumn term 2020.

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Agreed action

28. We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
29. I recommend within one month of my final decision, the Council:
1. apologises to Mrs M for the complaints I have upheld; and
2. arranges 13 hours of tuition for B in each of the two subjects he is studying for GCSE at mainstream school (in consultation with Mrs M, B and the school).

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Final decision

30. I have completed my investigation as the Council accepted my recommendations.

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Investigator's decision on behalf of the Ombudsman