Summary: Miss X complained the Council failed to provide her son, F with an education in line with his Education, Health and Care (EHC) Plan and then delayed issuing an amended EHC Plan in 2020. The Council was at fault. It failed to use reasonable endeavours between May and July 2020 to provide F with education in line with his Plan. It then failed to issue his amended EHC Plan in line with statutory timescales following an annual review in March 2020. The Council had already offered Miss X a total of £1,000 to remedy the injustice caused to her and F which was insufficient to remedy the injustice we have identified. The Council agreed pay Miss X a further £250.

The complaint

1. Miss X complains the Council failed to provide her son, F, with an education in line with his Education, Health and Care (EHC) Plan between March and December 2020. She also complains the Council delayed issuing F’s amended EHC Plan by eight months following an annual review in February 2020.
2. Miss X said the Council’s faults caused her and F distress and uncertainty and meant he did not have a suitable school in place for the start of the academic year in September 2020. She said F missed out in education and social development during this period.

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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)
5. 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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How I considered this complaint

6. I spoke to Miss X about her complaint and considered information she provided.
7. I considered the Council’s responses to my enquiry letter and Miss X’s complaint.
8. Miss X and the Council had an opportunity to comment on my draft decision. I considered comments before I made a final decision.

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What I found

Education, Health and Care Plan (EHC) Plan

9. 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 needs to be done to meet those needs by education, health and social care. This can include support needed in school.
10. Councils are responsible for making sure all the arrangements set out in in the EHC Plan are put in place.
11. The Council has a legal duty to ensure the educational and social care support set out in a final EHC Plan is delivered. This duty is non-delegable.

Annual reviews of EHC Plans and statutory timescales

12. The annual review of an EHC Plan considers whether the provision remains appropriate and whether progress is being made towards the targets in the plan.
13. The review covers the council’s decision to maintain, cease or amend the plan following the meeting. Councils must notify parents or the young person of its decision within four weeks of the review meeting.
14. If the Council decide to carry out a reassessment of a child or young person’s needs then it must complete the reassessment process and issue the final plan within 14 weeks of the decision to reassess.

Alternative provision law and guidance

15. Under Section 19 of the Education Act 1996, councils have a statutory duty to provide full-time education where a child cannot attend school because of exclusion, medical reasons, or ‘otherwise’ and where suitable educational arrangements have not been made.

The Coronavirus Act 2020

16. When England entered a national lockdown on 23 March 2020 schools were closed to the vast majority of children. They remained open only to vulnerable children, and children of specified key workers. Children with EHC Plans were included in the Government’s definition of potentially vulnerable children. Councils were advised to carry out risk assessments, to decide whether a child with an EHC Plan would be safer in a school setting. The aim of the measure was to ensure the child’s safety, rather than to ensure they received their normal educational entitlements. 
17. 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.
18. Our general view is that we are unlikely to criticise a Council for not arranging the full provision in an EHC Plan from 23 March to 1 May 2020, despite the fact they remained under a statutory duty to do so until 1 May.   

What happened

19. Miss X has a son, F, who has special educational needs (SEN) and learning difficulties. He has an EHC Plan. In September 2019 F transferred from a mainstream primary to a mainstream secondary school (the school).
20. The Council carried out an annual review of F’s EHC Plan in March 2020. Records of the meeting show professionals felt the Plan did not accurately reflect F’s needs. The school also said it was unable to meet F’s needs, even with 1:1 support for the whole school day. The Council agreed to carry out updated assessments and then issue an amended EHC Plan. Miss X wanted F to attend a specialist school setting. She asked the Council to consider dual registration for F where he would split his time and attend both the school and a specialist setting (School B).
21. Following F’s annual review, the country entered a national lockdown because of the COVID-19 pandemic and F remained at home. In June 2020 Miss X contacted the SENDCo (SEN co-ordinator) at the school for an update on F’s EHC Plan reassessment as she had received no update since the annual review. The SENDCo told Miss X that F’s case was going before the Council’s panel for consideration towards the end of June. Miss X tried to contact the Council’s SEN officer but did not receive a response until early August 2020. The caseworker confirmed the annual recommendations had not gone to panel, but it was doing so the next day. The SEN worker said the panel would consider Miss X’s dual registration request.
22. There is no evidence F received any education or contact from the Council about education between March and July 2020.
23. Records show the panel considered F’s case at panel in August 2020 and requested updated assessments from the relevant professionals. The panel also confirmed the Council would consult with School B.
24. The Council sent Miss X F’s draft amended EHC Plan at the end of August. Miss X was unhappy as it did not incorporate any of the recommendations from the annual review and also referred to F by the wrong name. Miss X told the Council she did not accept the draft Plan and raised a formal complaint about the matter, including the delays in amending it.
25. Due to the delays in issuing F’s amended EHC Plan F, remained on roll at the school and started attending there again in September 2020. However, the placement broke down after only two weeks. The Council referred him to a tutorial agency which offered F two hours tuition a day. However, due to a lack of communication and structure around this, Miss X did not feel it was suitable for F. Towards the end of the autumn term in December 2020 the Council put a private tutor in place for F.
26. The Council responded to Miss X at stage 1 of its complaint’s procedure at the start of October 2020. It said it had no sent Miss X a further draft of F’s EHC Plan and had allocated the case to a new caseworker who had re-written the plan. It accepted it had not met its statutory duties following the annual review in March 2020 and apologised.
27. Miss X was unhappy with the stage 1 response and asked the Council to consider her complaint at stage 2. Miss X said that had the Council adhered to statutory timescales and issued F’s amended EHC Plan earlier it could have put in place dual registration. Miss X said there had been a lack of support from the Council and F had now been without any education since March 2020.
28. The Council issued F’s final amended EHC Plan in December 2020 which named School B as F’s placement. F began attending School B in January 2021.
29. The Council responded to Miss X at stage 2 of the complaints procedure in February 2021. The Council reiterated its apology for failing to follow statutory timescales and for the distress that caused. The Council offered Miss X £500 to buy F a new laptop to remedy the interruption to his learning. It also said it had put in place a new supervision model for staff who are under performing.
30. Miss X remained unhappy and asked the Council’s independent adjudicator to look at her complaint at stage 3 of the complaints procedure. Miss X said the Council had failed to acknowledge the impact the matter had on her and was unhappy with the £500 offered for a laptop given the amount of education F had missed. She also complained about delays in responding to her complaint.
31. The Council’s independent adjudicator responded to Miss X in May 2021. The adjudicator found the Council did not meet the statutory timescales following the annual review in March 2020 and its communication following the review was poor. They found that by offering F tuition between October and December 2020 that the Council had met its statutory duty; however the offer of the laptop was sufficient to remedy any injustice caused during that period. The adjudicator offered Miss X a further £500 to acknowledge the avoidable distress and time and trouble caused to her by the Council’s faults.
32. Miss X remained unhappy and complained to us.

My findings

33. F, like most children, was out of school during the period complained about because of the national COVID-19 lockdown. He therefore did not receive education or provision in line with his EHC Plan. As explained in paragraph 20, our view is generally not to criticise a Council where full provision was not provided during this period. However, from May 2020 the Council had a duty to use reasonable endeavours to secure or arrange provision for children with EHC Plans. There is no evidence the Council contacted Miss X at all about provision or education for F during this period, even after Miss X contacted it about the delays in amending his Plan. That was fault. While it is unlikely given the circumstances that F would have attended the school, the lack of communication or endeavours from the Council leaves uncertainty around what education F could have received during this period.
34. Following F’s annual review in March 2020 the Council agreed to carry out a reassessment of F’s needs and issue an amended EHC Plan. The Council therefore should have issued F’s amended Plan by mid-July 2020. Instead, it delayed taking the case to panel which caused a delay in issuing F’s final plan until December 2020. That was fault which the Council has already accepted. The lack of communication with Miss X around the matter compounded the frustration and distress caused to both F and Miss X. It also caused uncertainty around whether the outcome may have been different with regards to F’s dual registration had the case gone to panel earlier.
35. The delay in issuing F’s amended EHC Plan meant he started attending the school again in September 2020 despite the fact it had informed the Council it could not meet his needs. As a result, the placement broke down after only two weeks. The Council offered alternative provision and met its statutory duty in this regard, however F remained out of school for the remainder of the term when Miss X decided the tuition offered was unsuitable. Had the Council followed statutory timescales it is likely that it would have named School B and issued the amended Plan in time for F to start there in the September 2020.
36. The Council has accepted that it failed to follow statutory timescales during 2020 and delayed issuing F with an amended EHC Plan. It has offered an apology to both Miss X and F for the injustice this caused.
37. The Council has also offered Miss X £500 which is line with our guidance on remedies and appropriate to remedy the injustice she was caused.
38. However, the Council’s actions also caused F distress, uncertainty and delay in starting at school B which caused a loss of educational opportunity between October and December 2020. The Council has offered Miss X £500 to buy F a new laptop to recognise the interruption to his education during this period. £500 is appropriate to remedy the injustice caused, however Miss X should have the choice on how those funds are used.

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Agreed actions

39. Within one month of the final decision the Council agreed to:
• pay Miss X the £500 already offered to recognise the distress, uncertainty and time and trouble caused to her by the Council’s poor communication, the failure to follow statutory timescales and the delayed in issuing F’s amended EHC Plan during 2020.
• pay Miss X £500 to recognise the uncertainty, distress and lack of educational opportunity caused to F when it delayed issuing his amended EHC Plan in 2020. Miss X should use this payment as she sees fit for F’s educational benefit.
• pay Miss X £250 to recognise the uncertainty caused to her and F between May and July 2020 when the Council failed to use reasonable endeavours in providing F with education and provision in line with his EHC Plan during this period. Miss X should use this payment as she sees fit for F’s educational benefit.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman