Summary: Ms X and Y complained about errors during Y’s Education, Health and Care Plan annual review process and of delay in arranging suitable educational provision. They say Y missed out on education as a result and the errors caused Ms X and Y distress. The Council was at fault. It will pay Ms X £800 to remedy Y’s lost provision and a further £200 in recognition of the distress caused. It will also review its procedures.

The complaint

1. Ms X and Y complained:
• the Council did not ensure Y received provision set out in his Education, Health and Care Plan (EHC Plan) between January 2020 - July 2020.
• about errors during the EHC Plan annual review process in early 2020. Ms X said the Council did not involve Y in the process, she was not sent any paperwork at least 2 weeks before the meeting and was not sent the report within 2 weeks after.
• about errors during the consultation process for Y’s post-16 placement.
• about delay in arranging educational provision for Y between September and 2 November 2020.

2. Ms X said Y had missed out on education and the errors had caused her and Y frustration and distress.

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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. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
5. 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)
6. 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

7. I read Ms X and Y’s complaint and spoke with Ms X about it on the phone.
8. I made enquiries of the Council and considered information it sent me.
9. I considered our Guidance on Remedies.
10. Ms X, Y and the Council had the opportunity to comment on the draft decision. I considered comments received before making a final decision.

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What I found

Background information

Education, Health and Care plans

11. Some children and young people with special educational needs and disabilities will have an Education, Health and Care Plan (EHC Plan). The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs.
12. After an EHC Plan is finalised, councils have a duty to ensure the special educational provision set out in the Plan is delivered. This duty is set out in the Children and Families Act 2014 and is non-delegable.

Annual reviews

13. The SEND code of practice (the Code) provides guidance to councils on how to ensure it fulfils its statutory duties.
14. A council must review a child’s EHC Plan at least every 12 months. The Code says in most cases, reviews are most effective when led by the child’s school. In these cases, the child’s parents or young person, a school representative, a council Special Educational Needs (SEN) officer and other specified people must be invited and given at least two weeks-notice of the date of the meeting. The school must seek advice about the child from all parties invited and send any information gathered to all those invited at least two weeks before the meeting. Children parents and young people should be supported to engage fully in the review meeting.
15. If the council considers it needs amending, it must send the child’s parents a copy of the existing plan and the proposed amendments. It may also decide to either maintain the current plan or cease the plan.
16. The school must send a report of the meeting to everyone invited within two weeks of the meeting. Within four weeks of the meeting, the council must decide whether to maintain, amend or discontinue the plan and notify the child’s parents and other relevant parties of its decision.
17. If a person disagrees with the content of an EHC Plan or an amended EHC Plan, they have a right of appeal to the Special Educational Needs and Disability Tribunal (SEND).
18. When a child does not meet the entry requirements for their chosen course, the Code says the Council should review this as soon as possible to ensure that alternative options are agreed and new arrangements are put in place as quickly as is practicable.

What happened

19. Y is a young person with special educational needs (SEN) and an EHC Plan. In January 2020, Y was in year 11, his GCSE year. Y’s school (school A) held an annual review of Y’s Plan. Ms X says school A did not invite Y to the review and did not send her any reports or information prior to the meeting.
20. After the meeting, school A sent the Council a copy of the meeting report. It did not send a copy of the report to Ms X. The Council considered the report and decided not to amend Y’s plan. It wrote to Ms X to tell her of its decision.
21. In March 2020, the Council arranged for Y to have an assessment with an educational psychologist, but unfortunately Y did not attend due to concerns related to COVID-19.
22. The Council issued the final plan at the end of March but did not name a school in the plan for September 2020. Ms X did not agree with this but has told us she did not appeal as she thought the Council would review it once the educational psychologist had seen Y and would amend it to name a school placement after that. The Plan included provision for the school to arrange an assessment for a specific learning difficulty and to refer Y for support with social communication and sensory difficulties. Ms X says Y did not receive these provisions.
23. In April 2020, Ms X accepted a place for Y starting September 2020 at school B, subject to Y achieving certain GCSE grades.
24. In May 2020, the Council wrote to school B. It acknowledged Ms X had already accepted a school place for Y starting September 2020, but said it still had a duty to ensure the school could meet Y’s needs. It sent school B a copy of Y’s EHC Plan and asked it to confirm whether it could meet Y’s needs.
25. School B agreed it could offer him a place, conditional on GCSE grades.
26. The Council sent Y’s father an amended EHC Plan, naming school B from September 2020. Ms X says Y’s father did not recognise the encryption system used by the Council and so deleted this email.
27. The Council sent school B a copy of a final amended plan in which it was now named. Although Ms X says school B told her it never received this email, I have seen evidence the Council did send it.
28. In July 2020 Ms X contacted the Council to express her concern that school B may not accept Y into the sixth form if he did not obtain the required grades. She asked the Council to consult with another school, school C and later asked it to consult with other schools as well.
29. The Council sent out consultations to other schools in mid-August. It apologised to Ms X for the delay in doing so.
30. Y received his GCSE results. His results did not meet the required grades for school B and school B confirmed it could not admit him because of this.
31. Ms X asked the Council to consult with a local college, which it did.
32. In September 2020, Ms X complained to the Council. She said Y did not have a named educational setting and was in danger of missing out on education. She said the Council had not involved Y in the EHC Plan review process and its communication with her had been poor.
33. In October the Council sent two further consultations. Ms X sent several emails to the Council chasing the consultation results and asking when the Council would make its decision.
34. The Council responded to her complaint. It accepted it should have involved Y in the annual review process and said it had recently provided training to its SEN team around partnership working. It apologised that she did not feel the Council had kept her informed. It said it would discuss this with Y’s SEN officer to ensure communication was consistent and timely. It said three of the settings consulted had offered Y a place and the SEN officer would be in touch to discuss next steps.
35. In November, the Council arranged some interim tutoring provision for Y whilst he was not at school. Ms X remained unhappy and escalated her complaint.
36. The Council confirmed Y’s placement in late November 2020 and issued a final amended EHC Plan naming the placement in December 2020. The setting agreed for him to start in January 2021.
37. The Council sent Ms X its final complaint response in December 2020 which said:
• It accepted it would have been useful to hold an annual review in August 2020, after Y received his GCSE results. It apologised for not doing this and for the delay in sending out consultations to other schools.
• It apologised it sent the amended plan to Y’s father rather than Ms X, in May 2020. It said it had now updated its contact details.
• It apologised Y’s interim educational provision took too long to arrange and only started in November 2020.
• It apologised it had taken longer than expected to secure and name a placement for Y. It said Y now had a placement named in his EHC Plan starting in January 2021.
38. Y started at his new placement in January 2021, as planned. Ms X remained unhappy and brought her complaint to us.
39. In its response to our enquiries the Council told us:
• It only became aware of Ms X’s concerns that Y had not received provision in his Plan when she complained in August 2020. It said she did not express these concerns in the January annual review meeting or between January and August. As it did not know, it could not act.
• It did not know the school had not provided her with reports prior to the January 2020 annual review meeting nor provided her with the report after the meeting. It said in line with the Code, it had asked the school to arrange the annual review and presumed it had done so in line with the requirements. It said she did not tell the Council she had not received the review report when it sent her its decision letter in February 2020 and it only became aware of this when she complained in August 2020.
• School B was parental preference and confirmed it could meet Y’s needs in May 2020. It raised no concerns when the Council named it in Y’s Plan. It said the Code says when a young person does not meet entry requirements, the Council should review the EHC Plan as soon as possible to make alternative arrangements. It accepted it should have held an annual review meeting in August 2020 and had already apologised for not doing so in its complaint response to Ms X.
• It accepted it had taken too long to secure an alternative educational placement. It said it had already apologised to Ms X for this.
• It said to remedy the injustice caused, it would agree to offer Ms X £200 per month for Y’s lost education and a further £200 for the distress caused.
• It said it would also review its policies and procedures related to post-16 annual reviews.

Analysis

Failure to deliver EHC plan provisions between January and July 2020

40. Although the duty to ensure Y received provision in the Plan is the Council’s, it can only do this if it is aware provision is not being delivered. Y’s EHC Plan stated the school would arrange the assessments. Councils use the annual review process to monitor for any concerns, but no concerns related to these assessments are referred to in the record of the January 2020 annual review, or in Ms X’s written comments for this meeting. I have seen no evidence the school or Ms X told the Council the school had not arranged this provision before her complaint in August 2020. I cannot find the Council at fault for the school not arranging them. The Ombudsman has no jurisdiction to investigate the actions of schools.

Errors during the EHC Plan annual review process

41. The Code says the school is best placed to arrange a child or young person’s annual review as they will know the child best. The Council asked Y’s school to arrange the review on its behalf. This in line with the Code and this is not fault.
42. The Code also says the child or young person should be supported to fully engage in the review meeting. The Council accepted in is complaint response to Ms X that the school did not do this and apologised to her. This is fault but the Council has already issued an apology which is an appropriate remedy and said it has provided training for its SEN officers.
43. The Council said it was unaware the school had not provided her with the reports until she complained in August 2020. I have seen no evidence the Council became aware of this before this date, so cannot find the Council at fault for not acting sooner to rectify this. We cannot investigate the actions of schools, but the Council does have a role in ensuring schools complete annual reviews in line with the Code.
44. In its response to us, the Council has accepted there were faults during the annual review process. I agree with this finding. It has already apologised to Ms X and said it will review its policies and procedures for post-16 reviews. This is an appropriate action to help prevent recurrence of the identified errors.

Errors during the consultation process for Y’s post-16 placement

45. Although Ms X says school B did not receive it, I have seen evidence the Council did send school B Y’s final EHC Plan naming school B in May 2020 and school B confirmed it could meet his needs, subject to Y meeting the entry requirements. The Council is not at fault for naming school B in Y’s plan in May 2020.
46. The Code says when a child does not meet the entry requirements, the Council should review the EHC Plan “as soon as possible” to get alternative arrangements in place without delay. In its complaint response to Ms X, the Council accepted it should have held an annual review meeting in August 2020, after Y got his GCSE results, to facilitate this process. It also accepted there was delay in the consultation process and it took longer than expected to secure Y’s placement. It has apologised to Ms X for this and in its response to us proposed a financial remedy for distress caused. These are appropriate actions.

Delay arranging alternative educational provision between September and November 2020

47. In its response to us, the Council has accepted there was delay in putting in alternative educational provision, whilst the Council consulted with other settings. This delay was fault and meant Y missed out on educational provision between September and November 2020. The Council has offered Ms X and Y £200 per month as a remedy for the lost provision. I have considered our guidance on remedies, which recommends between £200 and £600 for lost educational provision, dependent on the circumstances of the case. Y did not receive any education at all during September or October and, because of his SEN, the impact of this is likely to be more significant. I consider £200 per month is insufficient to remedy the injustice caused and have recommended a more appropriate figure below.

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Agreed action

48. Within one month of the final decision, the Council will:
• pay Ms X £800 to be used for Y’s educational benefit, to remedy the lost educational provision between September and November 2020.
• pay Ms X and Y £200 as acknowledgement of the distress caused by the identified faults.
49. Within three months of the final decision, the Council will review its policies and procedures for post-16 annual reviews to ensure they are conducted in line with the SEND Code of Practice.

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Final decision

50. I have completed my investigation. I have found fault and the Council has agreed action to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman