Summary: The Council failed to ensure some of the support in Miss Y’s Education Health and Care plan was provided between November 2019 and February 2020. In addition, there were failings in the annual review process and the issuing of an amended plan for Miss Y in 2020. The Council should apologise and pay Miss Y £500 and Mrs X £250 for the injustice caused. It should also review its processes.

The complaint

1. Mrs X complained about the Council’s handling of the annual review and amendment of her daughter, Miss Y’s, Education Health and Care (EHC) plan, in advance of her transition to post-16 education.
2. She said this led to delays in confirming the college placement and ensuring suitable support was available from September 2020. She said it also meant Miss Y missed out on appropriate transition support in her final year at secondary school.
3. Mrs X also complained the Council failed to ensure the support set out in the EHC plans dated November 2019 and April 2020 was delivered by Miss Y’s school to July 2020 and by a post-16 college from September to November 2020. She said this meant Miss Y missed out on support that would have helped her moving into and managing post-16 education.
4. Mrs X also complained the Council did not carry out a thorough and impartial investigation of her complaint and did respond to all aspects of the complaint.

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The Ombudsman’s role and powers

5. 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)
6. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
7. When considering complaints, if there is a conflict of evidence, 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.
8. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
9. 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)
10. 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.
11. 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

12. I considered:
• the information provided by Mrs X and spoke to her about her complaint;
• the information provided by the Council in response to our enquiries about this complaint and an earlier complaint by Mrs X;
• relevant law and guidance, as set out below; and
• our guidance on remedies.
13. Mrs X and the Council had an opportunity to comment on my draft decision and I consdered their comments before making a final decision.

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What I found

Relevant law and guidance

Special educational needs

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. We can consider the other sections of an EHC plan. We do this by checking the Council followed the correct process, and took account of all relevant information, in deciding what to include. We will not usually substitute our judgement for the judgement of professionals. However, if we find fault affected the outcome, we may ask the Council to reconsider.
16. 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.
17. EHC plans should be reviewed annually. The first review should be held within 12 months of the date the EHC plan was issued. The Special Educational Needs and Disability Regulations 2014 (the Regulations) and the Statutory Guidance: Special educational needs and disability code of practice (the SEN Code) sets out how the annual review should be managed, including:
• who should be invited to the review meeting;
• the information that should be shared with those invited two weeks before the review meeting;
• what should be discussed at the review meeting;
• the need to plan for a young person’s transition to adulthood from school year 9 onwards;
18. Following the review, the Council should decide whether to maintain the EHC plan in its current form, amend it or cease to maintain it. It should write to the parents with its decision and any proposed amendments within four weeks of the review meeting.
19. Where the young person is due to transition from secondary to post-16 education, the Council should review the EHC plan and issue a final amended plan by the end of March, prior to the transition in September. The amended plan will either specify a type of post-16 placement or name the educational setting.

CAMHS

20. CAMHS is a health service for children, and their families, who need support for mental health issues. CAMHS also carries out assessments for conditions such as autism.

Complaints handling

21. The Council’s complaints policy has two stages. The Council says it will acknowledge complaints at both stages in five working days. It will respond to stage one complaints in 20 working days and stage two complaints in 25 working days. Where the stage two complaint is of a complex nature, the Council might extend the timescale for response to a maximum of 65 working days.

What happened

Background

22. I investigated the period from November 2019 to July 2020. Concerns about support after Miss Y started college in September 2020 will be considered separately. This decision covers the key events only. It is not a comprehensive account of everything that happened.

Key dates

March 2019 The Council issued a final EHC plan for Miss Y

April 2019 Mrs X appealed to the SEND Tribunal

13 November 2019 Tribunal order issued

27 November 2019 Final amended EHC plan issued

5 February 2020 Annual review meeting

18 February 2020 Council received review papers from school

11 March 2020 Draft amended EHC plan issued; school & college consulted

18 March 2020 College sent detailed response to consultation

16 April 2020 Final amended EHC plan issued

September 2020 Miss Y started college course

Lack of support from November 2019

23. Mrs X complained that support from provider A, a specialist autism support organisation, was not delivered in line with the plan issued in November 2019. The plan said provider A would suggest reasonable adjustments within the school environment and, through bi-weekly sessions would:
• discuss Miss Y’s views about her support needs;
• support Miss Y with relaxation techniques;
• provide self esteem work using the “Talkabout” intervention programme;
• share anxiety management strategies;
• work with Miss Y on strategies to manage her sensory needs;
• discuss exam preparation and revision planning; and
• provide advice and guidance to the school around exams and mock exams in year 11, as needed following the bi-weekly sessions.

The plan also said:

• Miss Y should have support (as and when required) “to explore and unpick her anxiety concerns and learn strategies to help her meet her full potential”. This support would be provided by CAMHS, the school nurse and/or provider A; and
• the school and involved professionals would liaise with parents at least half-termly.
8. There were two meetings with the school to discuss the implementation of the support set out in the EHC plan in December 2019 and January 2020. Following the December meeting, Mrs X complained to the Council about support from provider A stopping whilst Miss Y was working with CAMHS. The Council said it would look into it.
9. The minutes for the January meeting show:
• provider A was not aware of the provision in the plan until mid December 2019 because the Council had not shared the plan with them when it issued it;
• provider A understood it was providing work to support Miss Y’s self esteem, and that CAMHS was also providing support for this. The two services had agreed that, to avoid overwhelming Miss Y with interventions, provider A would stop delivering the bi-weekly sessions with Miss Y and would resume them when CAMHS indicated its sessions had ended; and
• provider A had not yet provided any of the other support set out in the plan and all those at the meeting agreed it was important this was in place quickly.

The minutes indicate that OT (occupational therapy) support was also not in place at this point.

26. Records from provider A indicate it met with Miss Y on 6 November 2019 but did not meet with her again until 24 January 2020. The school sent provider A an update in December 2019 and provider A attended the annual review meeting on 5 February 2020. Its records show its actions from that meeting were to give the school advice about social skills interventions and provide the school with resources around anxiety. Provider A provided the Talkabout resource to the school on 26 February and visited Miss Y on 28 February. Miss Y stopped attending school in mid March 2020 as a result of the COVID-19 pandemic.
27. In response to my enquiries, the Council said it had no record of taking action to check the support in the November 2019 EHC plan was in place but had no record to show the school said it could not deliver the support in the plan. It provided a copy of its letter to Mrs X in November 2020, responding to a later complaint about lack of support from November 2019 onwards. In that letter the Council said:
• its view was that provider A was willing to work with other services, such as CAMHS, but in this case it was felt that having two services providing input to Miss Y around self esteem would not be helpful;
• the plan was sent to provider A on 12 December 2019;
• in provider A’s professional view a classroom observation was not needed as Miss Y was open about her experiences in lessons and, in any case, Miss Y was only in school for 10 weeks after the plan was shared; and
• after setting out in detail the input from provider A to Miss Y and the school, it said it did not agree with Mrs X’s view that support from provider A was minimal.
• that, despite schools closing on 17 March, provider A had continued to liaise with the school.

My findings – support from November 2019 to March 2020

28. The Council has a duty to secure the support in an EHC plan. In this case, the plan was issued in late November 2019, and I accept there would not have been sufficient time to get all the support in place by the end of term in December 2019.
29. There is no record the Council took steps to check with the school that the support was in place. The delay in sharing the plan with provider A will have contributed to delays in getting the support in place. Although the Council says the school did not tell it that it could not deliver the support in the plan, Mrs X alerted it to the difficulty with provider A in mid December and I would have expected it to take action to address the matter at that point.
30. In its complaint response, the Council took the view that in the circumstances of the case it was acceptable for provider A not to provide the bi-weekly sessions whilst CAMHS were working with Miss Y, despite the sessions being listed in the plan. It did not explain why the sessions could not be used for the other support the plan said provider A was to provide, including social skills, relaxation work and work around Miss Y’s sensory needs. I have seen no evidence that support was delivered, although provider A did provide the Talkabout resource to the school in late February 2020 and provided guidance on exam arrangements.
31. On balance, the Council did not take sufficient steps to ensure the support in the plan was delivered and at least some of the support provider A was supposed to provide was not delivered. This was fault. This meant Miss Y did not get all the support the Tribunal considered she needed and was listed in her EHC plan.

Annual review

32. Miss Y was due to move from secondary education to post-16 education in September 2020. The school, on behalf of the Council, arranged an annual review meeting, which was held in early February 2020.
33. Mrs X complained that:
• the school did not invite all health professional to the review meeting and some could not attend because insufficient notice was given;
• the school did not obtain and share reports with all those invited two weeks before the meeting. Mrs X says she received a report from the school the day before the review meeting and a report from an Inclusion Facilitator at the meeting. Reports from occupational therapy (OT) and provider A were not available until around two weeks after the meeting;
• no draft amended EHC plan was shared before the meeting;
• no-one from the Council attended the review meeting. Mrs X said it did not tell her who would represent it at the meeting until it was too late to arrange an alternative after she objected;
• the school careers adviser did not attend, despite saying she would do so, and did not send a report for discussion. Mrs X understands the careers adviser had not completed a Moving into Adulthood Plan at the time of the review meeting;
• the meeting did not focus on Miss Y’s needs or properly consider the support in place for her, and there was no discussion about whether the outcomes and support in the plan were suitable or could be adapted for college; and
• the college representative said Miss Y could not have an additional adult in lessons for her chosen course, despite having seen the draft EHC plan in November 2019 and not mentioning this would be a difficulty before.
34. Mrs X told me she had asked for a change of SEND officer in December 2019 and was unhappy to be told the same officer was due to attend the annual review meeting. She asked if an officer with post-16 experience could attend instead.
35. In its stage 1 complaint response the Council said:
• it delegates the management of annual reviews to schools. Schools should invite appropriate professionals, share reports and send a report to the Council after the meeting;
• schools are responsible for transition planning from year 9, including completing a Moving into Adulthood Plan, a process which the Council provides oversight and support for;
• an officer was scheduled to attend the review meeting but Mrs X said she did not want that officer to do so and no-one else was available at short notice; and
• the attendees at the review meeting were appropriate and fully able to contribute to Miss Y’s transition planning, which was recorded in the Moving into Adulthood Plan that was sent to the Council on 18 February with the annual review documents.
36. Mrs X told me that it was particularly important for the school nurse and provider A to attend because those services could not be provided in post-16 settings and they would be able to advise on how to access equivalent support post-16. In the event, provider A did attend the meeting, although they had not been formally invited by the school.
37. In her complaint to us, Mrs X also said the annual review meeting was held too late, which caused a delay in issuing an amended plan.
38. In its response to my enquiries, the Council said:
• it delegated the responsibility for arranging annual reviews to schools in accordance with paragraph 9.173 of the SEND Code of Practice. Therefore, it could not comment on which professionals were invited, when invites were sent or when reports were shared with the family;
• it provides appropriate support for schools to enable them to arrange reviews in line with legal requirements; and
• its usual approach where students are due to transition to post-16 education was to ask the school to arrange an annual review in the autumn term, to allow time to issue an amended plan by 31 March. But in this case there was a Tribunal hearing in November, and an amended plan was issued in late November, which meant there wasn’t sufficient time to arrange a review meeting that term. The school had therefore arranged the meeting in January and held it on 5 February 2020. It would not have been possible to hold it earlier given the circumstances.

My findings – annual review

39. Paragraph 9.173 allows councils to ask schools to carry out reviews on their behalf, and many of them do so. However, the school is carrying out the review on behalf of the Council and the Council remains responsible for any faults in the process.
40. In this case, I acknowledge the Tribunal hearing was in November 2019. This meant the annual review could not be held in the autumn term, as would usually happen where students are in transition to post-16 education. I accept there was no value in arranging a review meeting until after the amended EHC plan was issued in late November 2019. I also accept that it was not possible to hold the annual review earlier than 5 February, given the need to invite professionals and obtain/share their reports.
41. That said, I have not seen evidence that all relevant professionals were invited, nor that they were invited in sufficient time. In addition, the Moving into Adulthood plan had not been completed prior to the meeting. Although these were failings by the school, it was acting on behalf of the Council, and therefore I find fault with the Council. The failings meant that not all relevant information was available for discussion at the meeting. This was significant because this was the last review before Miss Y moved to post-16 education and the information from the review largely determined the content of the amended EHC plan.
42. Mrs X asked for a change of SEND officer in December 2019, which the Council initially refused as this was not its policy, but later agreed to. The allocation of officers is an operational issue for the Council and not one I can comment on. It was unfortunate that Mrs X did not know until shortly before the meeting that the same officer was due to attend, which meant the Council was not able to arrange for an alternative officer to attend. However, I do not consider this warrants a further finding of fault.

Issuing the April 2020 final amended EHC plan

43. The Council was required to issue a final amended EHC plan by 31 March 2020 in advance of Miss Y’s transition to a post-16 college in September 2020.
44. As mentioned, the school held the annual review meeting on 5 February 2020. On 18 February, the school sent the Council the annual review documents, including the Moving to Adulthood plan, and suggested amendments to Miss Y’s EHC plan.
45. The Council wrote to Mrs X on 11 March 2020 with a drafted amended plan. It also sent copies to the school and the proposed post-16 setting (the college).
46. The college sent a detailed response, indicating that although it could meet Miss Y’s needs, it could not do so in the way set out in the draft plan. In particular, it could not offer one to one support in all lessons but could provide support needs outside of formal lessons. It mentioned this had been raised at the annual review, and that Mrs X had not considered this was appropriate. It concluded that it could only offer a place if the family accepted a compromise.
47. The Council issued a final amended plan on 16 April 2020. It sent a copy to Mrs X, the school and the college. The plan named the college from September 2020. However, in other respects the plan was broadly similar to the previous plan dated November 2019. It included:
• one-to-one support in all lessons;
• support from the school nurse; and
• support from provider A.
48. In response to my enquires, the Council said it issued the final plan on the basis the college had provided details of how it would deliver the support needed, which it said it had discussed with Mrs X and her adviser.
49. Mrs X said she attended a virtual meeting with the college on 28 April 2020. She said at that point the college had not seen the final plan and was not aware it had been named as the post-16 setting. Mrs X understood the college had agreed to provide the support set out in the plan. However, in mid July 2020, it became clear the college was still not intending to provide one-to-one support in lessons. The school contacted the college to explain this was a potential barrier to Miss Y attending college in September. At a further meeting in mid August 2020, Mrs X again insisted the college provide the support as set out in the plan. I understand a compromise was reached in late August, shortly before term started.
50. In its response to Mrs X’s complaint about the late issue of a final amended plan, the Council accepted there was a short delay in issuing the final amended EHC plan, for which it apologised but said it could not be done sooner given the Tribunal case was concluded in November 2019.

My findings – issue of the April 2020 final amended plan

51. The Council was required to issue a final amended plan by 31 March 2020. It issued it on 16 April 2020, which was 2 weeks late. However, in all the circumstances, I do not consider that was sufficient to warrant a formal finding of fault.
52. It is not my role to comment on the provision in the plan – that is a matter for the Tribunal. However, the rush to issue the plan in this case meant that some of the support set out could not be provided from September 2020 because the services, including the school nurse service and provider A, were not available for post-16 settings.
53. In addition, the college had clearly stated it could not provide the support, as set out in the plan, and the evidence I have seen shows the family did not agree to the compromise the college proposed. I consider the failure to address the issues the college raised, and to reflect any changes in provision from September 2020 in the amended EHC plan, amounted to fault. The failure to resolve this before issuing the final plan put the family and the college in a difficult position. Mrs X did not want to appeal the plan because she wanted the support as set out in it. The college was required to offer a place to Miss Y because it was named in the plan but could not deliver the support in the way the plan envisaged. As a result, there were protracted negotiations between Mrs X and the college until late August, which meant Miss Y did not know for certain whether she could attend her chosen post-16 setting until shortly before term started. This caused her and her family avoidable anxiety and distress, as well as the time and trouble pursuing the college and the Council.

Lack of support from April to July 2020

54. Mrs X complained the following support, set out in Miss Y’s EHC plans, had not been delivered:
• weekly support from the Inclusion Facilitator from February onwards;
• support from provider A and the school for Miss Y’s transition to college; and
• support from the school nurse on healthy eating, for which the school had an action point at the annual review to re-refer Miss Y.
55. Although the annual review records and Moving into Adulthood plan both indicate Miss Y needed support for her transition to college, the EHC plan dated April 2020 simply said “[Miss Y] will require a plan in place to support a smooth transition to post-16 education”.
56. The plan said Miss Y should receive weekly support from the Inclusion Facilitator to support her social, emotional and mental health. There were no sessions between April and July 2020 but the Council did arrange support from the Inclusion Facilitator to support Miss Y’s transition, between August and November 2020.
57. The plan did not include the healthy eating support discussed at the annual review meeting.

My findings – support from April to July 2020

58. It is important to note that the first national lockdown in response to the COVID-19 pandemic covered the period March to July 2020. During this period schools closed to most pupils and the duty on councils to secure the support in EHC plans changed to a duty to use their “best endeavours” to do so.
59. I am also aware Mrs X pursued a disability discrimination claim against the school, which accepted it had not used its best endeavours to secure the support in the EHC plan, for which it apologised. This case specifically covered the support from the Inclusion Facilitator and support generally for Miss Y’s transition. Since the Tribunal has already considered the question of whether best endeavours were used to deliver the support in the EHC plan in this period, I cannot consider this part of the complaint further. This is because I cannot investigate something that has been the subject of a court or tribunal case.
60. In any case, some of the support complained about was not set out in the EHC plan and therefore the Council was not under a duty to arrange it.

Complaints handling

61. Mrs X made a number of separate complaints to the Council between December 2019 and November 2020. I have reviewed the various Council responses, which indicate it:
• responded in detail to the complaint about a lack of support from November 2019 to July 2020;
• explained why the annual review could not be held earlier; and
• accepted it was slightly late issuing a final amended EHC plan in April 2020, for which it apologised.
62. Mrs X remained unhappy and complained to us. She said the Council failed to carry out a thorough and impartial investigation and failed to respond to all aspects of her complaint. She remained concerned the Council was not aware of its legal obligations around the timeliness of annual reviews and the impact of delays for young people and their families.

My findings

63. Although I acknowledge Mrs X remained unhappy with the Council’s responses to her complaints, I am satisfied it responded appropriately and without undue delay.

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Agreed action

64. The Council will, within one month of the date of the final decision, apologise to Mrs X and Miss Y for:
• failure to take sufficient steps to ensure the support in the EHC plan dated November 2019 was provided;
• the failings identified with the annual review process in February 2020; and
• the failure to address the issues raised by the college about the support in the plan before issuing a plan that named the college
65. The Council will, within one month of the date of the final decision:
• pay Miss Y £500 for the impact of the missed provision and the avoidable anxiety caused by the failure to address the issues around support from September 2020; and
• pay Mrs X £250 for the avoidable distress, and the time and trouble caused pursuing the matter with the college and the Council.
66. The Council will, within three months of the date of the final decision, review its processes with a view to ensuring:
• it checks with the educational setting whether support has been put in place after issuing final EHC plans, including amended plans;
• remind relevant staff that it remains responsible for the actions of educational settings arranging annual reviews on its behalf, and that staff should make appropriate enquiries where it receives complaints about the process to ensure that legal requirements are satisfied;
• ensures that if an educational setting raises concerns about its ability to provide the support set out in a draft plan, it addresses those concerns and amends the support if needed, before issuing the final plan and naming the setting.

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Final decision

67. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy the injustice and prevent recurrence of the fault, which the Council has agreed.
68. 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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Investigator's decision on behalf of the Ombudsman