Summary: Mrs X complained on behalf of S, her child, about the way the Council has dealt with his Education, Health and Care plan and educational provision since July 2019. The Council was at fault for the delay in issuing S’s amended Education, Health and Care plan after the annual review in July 2019. This has caused Mrs X distress, uncertainty and put her to avoidable time and trouble. The Council agreed to remedy the injustice its actions caused to Mrs X and S. I have now completed my investigation.

The complaint

1. Mrs X complained about the way the Council has dealt with her son, S’s, Education, Health and Care (EHC) plan and educational provision since July 2019. She says the Council failed to:
• issue an amended final EHC plan after the annual review in July 2019 until October 2020 which meant S’s school was working to an outdated plan that did not meet S’s educational needs;
• hold an interim EHC plan review after it learnt that S’s school placement was at risk at the start of 2020; and
• ensure S received the educational provision he was entitled to during the COVID-19 pandemic when he stopped being able to attend school in March 2020.
2. Mrs X said the Council’s actions had a detrimental impact on S and the wider family. She said the lack of support for them meant she had to significantly reduce her hours at work, and this had a financial impact on the family. She is unhappy the Council has failed to offer a financial remedy despite investigating and upholding most of her complaints.
3. She would like the Council to compensate her and S for the distress it has caused them.

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The Ombudsman’s role and powers

4. 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)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. 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. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
7. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
8. We make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
10. 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

11. I considered the information provided by Mrs X and the Council’s response to her complaint.
12. I have considered the relevant legislation and statutory guidance, set out below.

13. Mrs X and the Council have had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Legal background

EHC plan annual review

14. 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 tribunal can do this.
15. The Council is responsible for making sure that arrangements specified in the EHC plan are 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.
16. An annual review is a meeting where the local authority reviews the EHC plan. It will consider the progress towards achieving the outcomes written in the EHC plan and whether anything has changed. The annual review usually brings together all those involved in helping achieve the outcomes written in the EHC plan. The school must prepare and send a report of the review meeting to everyone invited within two weeks of the meeting.
17. After the review, the Council has four weeks to send the child’s parents a decision notice. This outlines whether the EHC plan is to continue; whether it needs changing or if it is to end. If the Council decides to amend the EHC plan it must do that without delay. It must issue an amendment notice detailing the proposed amendments. The parents or young person must be given 15 calendar days to comment on the proposed changes. Following representations, if the Council decides to make amendments, it must issue the amended EHC plan as quickly as possible and within eight weeks of the original amendment notice.
18. 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 the Ombudsman’s publication “Good Administrative Practice during the response to COVID-19”.
19. Under the Coronavirus Act 2020 the Secretary of State issued a notice which changed the key section 42 duty in the Children and Families Act. The change meant the absolute duty of councils under that Act to secure or arrange the educational provision set out in an EHC plan, was temporarily modified to a duty to use ‘reasonable endeavours’ to do so. The changes under the notice were applicable from 1 May to 31 July 2020.
20. 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. This included children with an EHC plan. Schools did not have to allow all children with EHC plans to attend. Instead, the government asked councils and educational providers to agree which one of them would carry out a risk assessment with children who had an EHC plan. The risk assessment would determine whether their needs could be met at home and whether they would be safer there than attending an educational setting.
21. The Council’s Education Support for Medical Absence (ESMA) team supports schools that have children who cannot attend school for medical reasons.
22. The Council also offers services of the Specialist Advice and Support (SEND SAS) service which is part of Integrated Services for Learning in Children’s Services. They work throughout the Council’s area and support children and young people (0-25 years) with special educational needs and disabilities, their families and schools or settings.
23. The specialist advisory teachers have additional qualifications and/or expertise in their field and are supported by a team of skilled practitioners. They provide specialist advice, guidance, modelling of strategies and interventions to support the children and their families.

What happened

S’s annual reviews

24. S, Mrs X’s child, has autism spectrum disorder (ASD), difficulties in controlling his emotions and behaviours, and experiences severe anxiety. In the period this complaint relates to, S attended a mainstream secondary school and has had an EHC Plan for a number of years.
25. In July 2019 the school held an annual review of S’s EHC plan.
26. At the end of the month the school sent the annual review report to the Council’s SEND Officer dealing with S’s case. The Council sent no further correspondence to Mrs X about S’s EHC plan review, until after she complained.
27. In September 2020 Mrs X emailed the Council and said the lack of an updated EHC plan was negatively impacting S. The following day the Council confirmed it had received all the documents from the school in July 2019. It apologised for not amending S’s EHC plan at the time, and suggested it would finish the EHC plan as soon as possible to be able to call an early annual review for S.
28. A few days later Mrs X emailed the Council again and asked for the timeframe of the early review, but the Council never got back to her about this.
29. The Council should have held another annual review for S in July 2020, but it did not.
30. S temporarily returned to school in September 2020 when they re-opened. However, he found it difficult, and the school said it could no longer support him.
31. In October 2020 Mrs X contacted the Council and said that S’s EHC plan was two years out of date and because of this his placement at school was about to break down. She said the Council advised her to ask the school for an early review of S's EHC plan. Mrs X provided emails showing she had asked S’s school for this, but it told her the Council did not have officers available for a review. In response to my enquiries the Council said this was the first time it realised that S’s school placement was about to break down.
32. The following day Mrs X emailed the Council and asked it to carry out an emergency annual review of S’s EHC plan. The Council’s records show that it started to arrange for this to happen soon after Mrs X made the request.
33. The Council called her, apologised for the delays, and said it would now issue S’s proposed draft EHC plan for her comments.
34. Two days later, and 15 months after the annual review, the Council sent the draft EHC plan with a letter telling Mrs X it was planning to amend S’s EHC plan. The Council also told Mrs X that once this was finalised the school would be able to organise the early annual review.
35. A senior officer called Mrs X and then emailed her. They noted Mrs X explained that she would take S to school, but he would refuse to go in. She said the problems started emerging before the COVID-19 pandemic. She also said she was worried about the letter that she got from school about S’s unauthorised absences.
36. The Council checked with its attendance team who confirmed S’s absences were not marked as unauthorised. The attendance team said the school could make an ESMA referral, but it would have to provide suitable medical evidence for it.
37. The following day the Council told Mrs X about the need for medical evidence for the school to be able to refer S to ESMA. It also said that an Educational Psychologist and advisory teacher would assess S in early November.
38. In the following days the Council met with Mrs X and agreed their joint approach. The Council asked Mrs X to let it know her preferences for specialist provision for S. It also noted that Mrs X had been in contact with Child and Adolescent Mental Health Services (CAMHS), S’s school and ESMA about support for S.
39. After reviewing the amended EHC plan Mrs X said that she would not sign it. The Council told her that it could either:
• issue a final amended EHC plan for S with a clear representation noted from Mrs X; or
• propose further amendments once the emergency review has taken place.
40. The Council asked Mrs X to send in her concerns about the previously proposed content of the draft EHC plan so it could evidence why it did not issue a final EHC plan.
41. In late October 2020, Mrs X sent in her letter and explained that she would not sign S’s draft EHC plan because it was two years out of date and no longer reflected S’s needs.
42. The Council’s SEND team contacted ESMA in November 2020 and asked it to arrange education for S.
43. In mid-December 2020 the school held an emergency annual review meeting for S. The Council and S’s parents were present. After the meeting, the Council emailed Mrs X and said that it would issue S’s final EHC plan following the July 2019 annual review despite her objection. The Council said it issued the final EHC plan for statutory process reasons.
44. The Council issued S’s final amended EHC plan 17 months after the annual review the school held for him in July 2019.
45. Five days later the Council issued S’s draft EHC plan that resulted from the emergency annual review. The Council issued the final amended EHC plan in March 2021.
46. The Council had to reissue S’s plan in April 2021, as the one it sent out in March 2021 contained errors.

Mrs X’s complaint to the Council

47. Mrs X complained to the Council in October 2020. She said that at the beginning of 2020 S stopped attending school because of his anxiety and his placement at school was at a breaking point. Mrs X also complained about the Council’s delay in issuing S’s amended EHC plan following a review in July 2019.
48. At the end of October 2020, the Council replied to Mrs X’s complaint. It partially upheld her complaint and accepted that it did not process S’s statutory annual review in a timely manner. The Council said that it contacted S’s school to make sure he was supported, and that it was hiring more staff to help it with processing the annual reviews. It also apologised for the school not responding to Mrs X appropriately.
49. In addressing Mrs X’s complaint about lack of effective communication, the Council said the SEND officer responded to Mrs X’s emails in line with its policy. However, they did not acknowledge all of Mrs X’s emails as they should have. It apologised for the distress this may have caused to Mrs X. The Council said it was:
• hiring more staff to help it process the EHC plan annual reviews; and
• training all its SEND Officers about their duties.
50. The Council concluded by saying that it was collaborating with the school, and it had scheduled S’s EHC plan review to take place soon. Mrs X was not happy with the response, and she escalated it to the next stage of the complaints process.
51. In December 2020 the Council responded to Mrs X’s escalation request. The Council accepted that it delayed processing S’s EHC plan annual review from July 2019 and that communication from the SEND team was below the Council’s standard.
52. The Council noted the support should have been made available to S regardless of whether the Council issued his final EHC plan. The Council suggested that S’s school should have contacted it and asked for more support if S needed this during the COVID-19 pandemic.
53. The Council explained that S’s school was under exceptional pressure because of the COVID-19 pandemic, however it should have asked for S’s annual review as soon as possible. It accepted that it unnecessarily delayed issuing S’s EHC plan. Additionally, the Council said the draft EHC plan it issued did not contain updated information that reflected the significant changes in S’s needs.
54. The Council said that it would take S’s case to its Local Management Action Group to review his case and decide if the Council needed to re-assess S’s needs. It also concluded that:
• the Council should communicate with families in a timely and responsive manner. This should be done by a key named contact for communication that is a person close to the family; and
• schools should understand their duties when they are supporting children like S that have SEND and mental health needs. The schools should coordinate the annual review process and be able to make the necessary links with the professionals.
55. Mrs X was not happy with the Council response and in January 2021 she complained to the Ombudsman.

S’s provision during the COVID-19 pandemic

56. Mrs X said that S did not receive suitable provision during the COVID-19 pandemic.
57. The Council told me that during the COVID-19 pandemic it asked each school to:
• carry out the required risk assessments;
• work with parents of children with EHC plans to agree what provision it will deliver; and
• flag any risks or concerns to the Council.
58. The Council also said that its staff called each school and asked if there were any children the school wanted the Council to be aware of. At the time, the school staff were calling the families weekly, and they raised no concerns about S with the Council.
59. The Council said that between March 2020 and September 2020 S did not attend school and accessed an online learning programme. As far as the Council knew, S was engaging well with his lessons.
60. Additionally, the Council said that when the schools were closed, it was in contact with S’s family, and they raised no concerns about the quality of provision during that period.
61. In March 2020, the Council assigned a specialist advisory teacher to S. They contacted S's school in April 2020 to talk about how the Council would support S’s return to school in September 2020. They also advised S’s school on strategies they could use to manage his challenging behaviour.

Analysis

Delay in issuing S’s final EHC plan after the annual review in July 2019

62. The Council accepted that it did not follow the statutory time frames when it failed to issue S’s amended EHC plan until December 2020. This is 17 months after the review took place, and we consider it to be a significant delay and fault.
63. I also note the Council did not hold S’s 2020 annual review in time, which should have happened in July, but instead happened in December. We consider this to also be fault.
64. After the emergency EHC plan review the Council held in December 2020 it decided that it would support S in:
• a Social, Emotional Mental Health (SEMH) setting;
• developing his literacy skills by providing him with 1:1 meetings;
• managing his emotional wellbeing which would take place for two 30-minute sessions each week;
• “letting go” of his day by discussing it with an adult for 15 minutes at the end of each day; and
• discussing friendship issues, by weekly meetings with a designated mentor.
65. We consider it is more likely than not the Council would have arrived at this decision earlier if it had acted without delay. This caused Mrs X avoidable distress in the way of uncertainty about what would have happened had the Council followed the statutory annual review timeframes.
66. Mrs X said this delay meant that S was not supported as he should have been. It is impossible for us to say exactly what impact this delay had on S’s mental health. I am aware there were other causes that could have contributed to the way that S was feeling. This includes the effects of the COVID-19 pandemic and his relationship with his older sister.
67. However, the fact that S has an EHC plan means that he has a need for special educational support in order to be able to interact and achieve an education to the best of his abilities. The delay has caused a further injustice to S, as it is likely that he missed out on the additional support identified during the emergency EHC plan review in December 2020.
68. The fact that S missed out on essential support means that an already vulnerable young person has been further disadvantaged.
69. The Council told me it has already carried out the following service improvements:
• reviewed its statutory SEND process;
• spoken to S’s school to agree how the Council and the school can together support the school’s SEND pupils;
• created a new Annual Review Team that is responsible for ensuring annual reviews are finalised within the statutory timeframes;
• opened duty lines to make it easier for parents to contact the Council’s SEND team; and
• hired more staff to help process EHC plan reviews.
70. I note the Council has apologised to Mrs X for the delays in issuing S’s amended EHC plan.

Failure to hold an interim EHC plan review after the Council learnt that S’s school placement was at risk at the start of 2020

71. Mrs X said the Council should have acted sooner and should have held an interim EHC plan review for S at the beginning of 2020.
72. The Council said that in February 2020 the school referred S to the SEND SAS service, but it did not say that S’s school placement was breaking down.
73. The evidence shows Mrs X told the Council the school placement was breaking down for the first time in October 2020. This is also when she told the Council that S was no longer attending school. The Council’s records show that prior to this the school was authorising S’s absences.
74. Once the Council found out the school placement was breaking down in October 2020 it referred S to its ESMA service. It also contacted S’s specialist advisory teacher, an educational psychologist and waited for further professional reports to inform an emergency EHC plan review it held in December 2020.
75. We do not consider the Council was at fault for not holding an emergency review before October 2020. There is no evidence showing that the school or Mrs X told it that S’s school placement was breaking down before October 2020.
76. I note that Mrs X said she asked S’s school for an early review in January 2020, but the law says I cannot consider the actions of a school.
77. The Council acknowledged that it delayed responding to the school’s request for an early EHC plan review for S. This is fault, however we cannot say what would have happened if the Council responded to the school request sooner. It is likely that because of the ongoing COVID-19 pandemic, any alternative provision would have been delivered online, just as the provision S’s school offered him was. This adds to Mrs X’s uncertainty about what would have happened had the Council acted without fault, and caused her distress.
78. The Council apologised for the lack of response to the school’s request for an early EHC plan review.

S’s provision during the COVID-19 pandemic

79. The legislation stated that when schools and colleges closed in March 2020 as the country went into lockdown, councils had to carry out risk assessments for children with EHC plans to determine whether their needs could be met at home and whether they would be safer there than attending an educational setting.
80. The Council said that it asked the school to carry out the risk assessments for the children with EHC plans. The Council told me that S was allowed to attend his school during the COVID-19 pandemic.
81. The Council told me that between March 2020 and September 2020 S did not attend school. Mrs X said that this was because of his anxiety. The Council explained that S’s school provided an online learning programme that S could access, and as far as the Council knew this was taking place.
82. Mrs X considered the online education was not suitable for S’s needs, as he found it difficult to concentrate and she had to spend considerable time in supporting him.
83. The Council said that during this time Mrs X was in weekly contact with the school. We have not seen any evidence to show that she reported concerns about S’s special educational provision between March 2020 and September 2020. We cannot criticise the Council for not acting about something that it was not aware of at the time.
84. I consider it is more likely than not that even if ESMA had been involved before November 2020 the tuition would still have to take place online, because of the COVID-19 pandemic. Therefore, Mrs X would have still had to support S in the same way she did.
85. The Council told me that since March 2020 S’s school was in contact with a specialist advisory teacher for S. This was a result of a referral S’s school made for him in February 2020. The specialist advisory teacher contacted S’s school to discuss how S would return to school after lockdown.
86. Throughout the school closure period the specialist advisory teacher worked with S’s school to offer advice and strategies the school could use to manage S’s behaviour. I therefore consider the Council made reasonable endeavours to ensure that S received the educational provision set out in his EHC plan.
87. Because of this, I cannot say the distress and additional time Mrs X had to spend with supporting S during his online learning sessions were a result of any fault by the Council.

Remedy

88. When we recommend a payment for distress or time and trouble, we only take account of avoidable distress that is the result of fault by the Council. A remedy payment for distress is often a moderate sum of between £100 and £300.
89. We consider the Council should pay Mrs X a remedy to recognise the avoidable uncertainty as well as the avoidable time and trouble the Council’s actions have caused her. In coming to this figure, we have considered:
• the delay in reviewing S’s EHC plan between July 2020 and December 2020;
• the delay in responding to the school’s request for an early EHC plan review in early 2020; and
• the avoidable time and trouble in Mrs X having to complain about the Council’s actions.
90. We also consider the Council should pay Mrs X a remedy to recognise the likely loss of additional provision identified during the emergency EHC plan review in December 2020. Mrs X should use it for the benefit of S’s education.

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Agreed action

91. The Council has already made several service improvements which we consider satisfactory. Because of this, we have not made any service improvement recommendations.
92. Within one month of the date of the final decision statement, the Council will:
• pay Mrs X £100 in recognition of the avoidable time and trouble she was put to by the Council’s delay in issuing S’s final EHC plan;
• pay Mrs X £300 in recognition of the avoidable distress and uncertainty caused by the Council’s failure to follow the statutory timeframes for annual EHC plan reviews;
• pay Mrs X £100 in recognition of the avoidable distress the Council’s lack of response to the school’s early EHC plan review request caused her;
• pay Mrs X £400 in recognition of the provision S is likely to have missed as a result of the delay in reviewing his EHC plan between September 2020 and December 2020. Mrs X should use it for the benefit of S’s education; and
• confirm the approved plans and the timescale for their completion following the initial review of the statutory SEND pathway the Council has conducted.

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Final decision

93. There was fault which caused Mrs X an injustice. The Council agreed to my recommendations and my investigation is now complete.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman