Summary: Mr X complains that the Council has delayed in issuing his daughter B’s Education, Health and Care Plan (EHCP) and failed to arrange provision. He also says the Council’s communications are poor. Based on the evidence seen to date, the Council is at fault and has caused injustice. It has agreed a financial remedy and to hold an annual review.

The complaint

1. The complainant, who I refer to here as Mr X, says the Council:
1. Delayed in issuing his daughter B’s final amended EHCP following her annual review in June 2020;
2. Failed to arrange:

1. Maths and English support in college as specified in the previous EHCP;
2. A promised traineeship
3. Has repeatedly failed to respond to enquiries and has failed to act on a promise of an urgent meeting to discuss B’s options for the future.

2. Mr X says B’s under-occupation and lack of direction, which stems from the Council’s faults, has badly affected her mental and physical health. He says he has also suffered stress and anxiety. He is concerned that B’s current annual review will not be carried out on time and that she will lose her travel pass as she is not in education. He seeks compensation, finalisation of B’s EHCP and a clear plan of action for B.

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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 spoke to Mr X and considered information provided by Mr X and the Council. I considered the relevant guidance and legislation. I shared my draft decision with Mr X and the Council and considered their comments before I finalised my decision.
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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What I found

Education Health and Care Plans (EHCPs)

7. The EHCP is a document which sets out the education, healthcare and social care needs of a child or young person for whom extra support is needed in school or college, beyond that which the school or college can provide. It also sets out the provision the Council will make to meet these needs. Children and young people with an EHCP may be entitled to extra teaching support in school or college. Outside agencies may also provide support.

Annual Reviews

8. Reviews of EHCPs are governed by a Government guidance known as the Special Educational Needs (SEN) Code of Practice. This states that councils must review EHCPs a minimum of every 12 months (from the date of when the first EHCP was issued or from the date of the last annual review).
9. Within four weeks of the annual review meeting the council must send the young person, parents or carers a letter notifying them of the outcome of the review. If the decision is to amend the EHCP, a final amended plan must be issued within eight weeks of the notice of change.
10. The Council’s decisions on an EHCP may be appealed to the SEN and Disability Tribunal.

What happened

11. Mr X has a teenage daughter, B, who has special educational needs and an EHCP. B’s annual review took place in June 2020, but a draft amended EHCP was not issued until December 2020. Since then, the EHCP has not been finalised, meaning Mr X and B are unable to appeal it.
12. The draft EHCP was silent on provision detailed in the previous plan for maths and English support from a college. Mr X’s view is that these should be specified in the new EHCP. He states that since the start of the Covid-19 outbreak, B has not received this provision.
13. B previously volunteered at a dog day care centre. B’s college, which is specified in the draft EHCP, suggested B complete a traineeship at the centre, while gaining qualifications in animal welfare. The new draft EHCP refers to this traineeship and proposed qualifications. The traineeship was stopped due to the Covid-19 pandemic. Mr X says he has received no support in establishing the alternative options available for B.
14. Mr X complained to the Council initially. In February 2021 the Council acknowledged it had failed to meet its statutory duties and apologised that B's EHCP was still not finalised. It also apologised for its poor communication and stated that it would arrange an urgent meeting to discuss B’s options. It said in future it would work closely with Mr X and B in a “timely and responsive manner”.
15. Mr X approached us in late March to complain that he had received no response to his emails to the Council asking for an update since then.
16. He said: “My daughter has no focus or target and has been left to her own devices for twelve months without any local authority support.” He told me B had gained considerable weight and her mental health had deteriorated as a result.
17. He was concerned that B’s annual review, which was due to take place in June 2021, would be delayed and that she would lose her travel pass, which was dependent on her being in education or training.
18. In its response to me the Council said it was experiencing difficulties due to the Covid-19 pandemic. It undertook to issue the final amended EHCP and an apology within a week of its response. It has since told me this has now been provided to Mr X.
19. It said it would also support B to identify and apply for an apprenticeship or traineeship starting in September 2021 and having secured a place would fund provision detailed in B’s EHCP. This would include numeracy and literacy support.
20. The Council also said it had become aware in September 2020 that B’s traineeship was not available due to pandemic restrictions. The Council explained B had an option of enrolling on a course with her original college but chose not do so, preferring to wait for her preferred traineeship at the dog day centre to become available. It offered other options to Mr X and B. These included a 34-week study programme at a training centre which included maths, English and employability and a one-year course at a military college. B did not take up these options either. Mr X has explained this was because she was looking for hands-on working with animals.
21. The Council provided evidence that B had taken part in and completed a course at an enterprise centre between November 2020 and January 2021, and that it put forward other options in February 2021 when this course ended. If also provided evidence that the urgent meeting referred to in its February response letter had taken place, by telephone, that same month with Mr X and B.
22. The Council advised me it had no scheduled date for the 2021 annual review, and that this would be held in the autumn term with any provider that B chose.
23. On the question of the travel pass, it provided a copy of its SEND Travel Assistance Policy. The policy shows the Council assists students with SEN with travel between home and school or college. The Council said that in line with its policy, it would not provide assistance if B was not in education. Once B had identified a provider for her continuing education, she could apply for travel assistance again and a travel pass would be issued.

Analysis

24. The Council has accepted it failed to meet the statutory deadlines for a final amended EHCP, meaning Mr X and B were not able to appeal its contents. They were also denied certainty about the Council’s proposals for B. The Council has also acknowledged its communication has been poor. The Council has agreed to pay Mr X £200 to compensate for any distress caused and avoidable time and trouble.
25. The Council was not responsible for B’s preferred traineeship being unavailable in September 2020, as her previous educational provider was unable to arrange this due to Covid. The situation with Covid-19 was evolving over late 2020 and early 2021 and the Council was not in a position to offer clarity about when the preferred traineeship might be available to B again.
26. The Council has shared its correspondence with Mr X and B, in which it put forward alternative suggestions for B’s continuing education from September onwards. The Council is not at fault for failing to arrange a traineeship.
27. B did not receive maths and English support from the college detailed in the EHCP in the 2020-21 academic year as she did not enrol on a course with it, preferring to await for the traineeship at the canine centre to commence. B did access a 10-week enterprise skills programme from November to January but chose not to take up any of the other options the Council put forward prior to and after that date. Based on the evidence seen so far, the Council is not at fault for failing to arrange maths and English provision.
28. The Council has told me it has not scheduled a date for the 2021 annual review. Under the SEN Code of Practice, each review must be scheduled within twelve months of the last. It is not open to the Council to vary this unilaterally. This is fault by the Council. A review may identify changes to B’s needs that have taken place over the course of the past year, which any provider for September 2021 may need to consider. I recommended an annual review be scheduled as soon as possible and at the latest within a month of my final decision. The Council has agreed to this.
29. In response to my draft decision Mr X said he felt the Council should have done more to arrange a traineeship with animals and maths and English provision for B at her preferred college. However, given the timing during the pandemic and as the Council put forward a range of options for B – although they were not ultimately what she wanted – I have not changed my view that there is no fault by the Council in this regard.

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Agreed action

30. The Council has agreed that within one month of my final decision it will:
1. Pay Mr X £200 to compensate for his avoidable distress and time and trouble; and
2. Schedule an annual review for B.

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Final decision

31. I have completed my investigation with a finding of fault by the Council which has caused injustice. It has agreed a financial remedy and to carry out B’s annual review.

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Investigator's decision on behalf of the Ombudsman