Summary: Mrs X complains the Council failed to ensure her daughter, B, received certain special educational provision set out in her Education, Health and Care Plan. She complains the Council failed to complete the annual review of the Plan within the statutory timescales. The Ombudsman has decided to uphold Mrs X’s complaint. Because of this fault, Mrs X was caused distress and uncertainty, and B missed out on certain provision. To remedy the injustice, the Council has agreed to apologise, make Mrs X and B a payment, and take action to prevent similar failings in the future.

The complaint

1. The complainant, who I shall refer to here as Mrs X, complains on behalf of her daughter, B, that the Council:
1. failed to invite Mrs X to an annual review meeting in April 2020;
2. failed to provide certain special educational provision detailed in Section F of B’s Education, Health and Care (EHC) Plan from March 2020 following COVID-19 restrictions. She complains B should receive support by a specialist college for one day per week, but the Council has failed to provide this. She says this means B has missed out on the following special educational provision: 1:1 weekly hour-long Speech and Language Therapy (SALT) sessions; termly SALT reviews; access to counselling support sessions; and, support with independent life skills;
3. Mrs X says even when COVID-19 restrictions were lifted in September 2020 and B returned to school, this special educational provision was not met; and,
4. failed to complete B’s 2020/21 annual review and issue a final EHC Plan on time.
2. Mrs X says her daughter has missed out on certain special educational provision from her EHC Plan causing her to miss out on learning key skills. She says B missed out on having her EHC Plan reviewed and amended within the statutory timescales. Mrs X says the situation has caused B distress.
3. Mrs X says she has gone to time and trouble corresponding with the Council on B’s behalf. Mrs X says she is frustrated the Council continues to not meet their statutory duties and that complaining has not changed this. Mrs X says this causes her distress, as she feels unable to help her daughter.

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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.
6. 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)
7. 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.
8. 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

9. I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint.
10. Mrs X and the Council had an opportunity to comment on my draft decision. I considered all their comments before making a final decision.
11. 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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What I found

What should have happened

Children with special educational needs

12. 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.
13. Councils are responsible for making sure that arrangements specified in the EHC Plan are put in place. (Children and Families Act 2014, section 42) 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.
14. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC Plan.
15. The Coronavirus Act 2020 temporarily amended the absolute duty to make the special educational provision in an EHC Plan, to a duty to use ‘reasonable endeavours’. This change was applicable from 1 May to 31 July 2020.

Annual reviews

16. Councils should ensure an annual review of the child’s EHC Plan is carried out within 12 months of the issue of the original plan or the completion of the last annual review. The purpose of the annual review is to consider whether the special educational provision and educational placement is still appropriate.
17. The annual review is not complete until the council has decided to either: maintain the plan; cease the plan; or amend the plan.
18. Within four weeks of a review meeting, a council must notify the child’s parents of its decision to maintain, amend or discontinue the EHC Plan. (Special Educational Needs and Disability Regulations 2014, Section 20 (10))
19. When a council decides to amend the EHC Plan, the final Plan should be sent as soon as practicable and within eight weeks of the date when the council sent the parents the EHC plan and proposed amendments. (Statutory guidance: Special educational needs and disability code of practice: 0 to 25 year (January 2015, as amended), paragraphs 9.196 and 9.197) (the SEND Code of Practice)
20. The specific timescales set out in the SEND Code of Practice for completing annual reviews were temporarily removed during COVID-19. They were replaced with the requirement for councils to complete such reviews ‘as soon as reasonably practicable’. This was applicable from 1 May to 25 September 2020.

What happened

21. Mrs X’s daughter, B, is autistic and has Tourette’s syndrome and attention deficit hyperactivity disorder (ADHD). B has an Education, Health and Care (EHC) Plan.
22. Under B’s 2019/20 EHC Plan, B had two placements named in Section I. Her primary placement was at College P, a mainstream further education college. Specialist College T, an independent specialist college, was also named and B attended there one day per week.

March to September 2020

23. B’s college, College P, scheduled the annual review meeting of B’s EHC Plan for March 2020. Due to COVID-19 restrictions, this was cancelled.
24. On 24 April, B’s annual review meeting was held virtually.
25. In July, Mrs X chased the Council for an update on B’s annual review.
26. At the beginning of August, the Council sent Mrs X a copy of its proposed amended EHC Plan.
27. On 18 August, Mrs X sent the Council her statement on the proposed amendments.
28. Two days later, a Council officer spoke with Mrs X and noted the following:

• B understood her time at Specialist College T had come to an end as it had been in place for two years. Mrs X had concerns about transport arrangements to Specialist College T and a lack of representation from Specialist College T during the annual review. Mrs X, therefore, said B would not be returning to Specialist College T from the autumn term 2020; and
• B had asked Mrs X if future counselling and SALT could take place at College P instead. She wished for the counselling to be more structured than the six-week programme offered to other pupils.

29. A week later, the Council wrote to Specialist College T to end B’s placement.

October to December 2020

30. In October, Mrs X chased the Council for an update on B’s EHC Plan.
31. The next day, the Council replied to apologise for the delay. It said it was looking into commissioning arrangements for B’s SALT provision.
32. Mrs X complained to the Council. She said:

• since March 2020, the Council had failed in its legal duty to secure certain special educational provision for B that was specified in her EHC Plan; and
• the Council had failed to meet the statutory timescales for completing B’s annual review. She said this had delayed her SEND Tribunal appeal rights.

33. On 2 November, the Council issued B’s final amended EHC Plan.
34. The next day, Mrs X chased the Council for a response to her complaint and sent her comments on the final EHC Plan.
35. The Council replied to Mrs X saying, under its complaints process, it had until 23 November to respond. Regarding B’s EHC Plan, the Council said:

• a second final EHC Plan would be issued as certain changes by the Council were not present in the version shared with Mrs X. It apologised for this;
• the Council was working on commissioning the therapies in B’s EHC Plan; and,
• it asked to discuss specialist college placement options with Mrs X and B.

36. Mrs X replied to say she thought there had been a miscommunication about B deciding to leave Specialist College T. In any case, she said that she thought the Council would instead arrange the relevant provision locally.
37. On 20 November, the Council told Mrs X that it was looking into commissioning a SALT assessment and support for B. It said College P was looking into possibly arranging counselling and a programme of independent life skills. However, it said it was unlikely College P could provide the independent life skills programme while current COVID-19 restrictions were in place.
38. A few days later, Mrs X chased the Council for a copy of the correct version of the amended final EHC Plan and an update on B’s provision she was missing out on.
39. In December, Mrs X chased the Council for a response to her complaint.
40. The next day, the Council’s SEND complaints manager apologised to Mrs X for the delay. She said the delays were due to a relevant staff member’s absence.
41. Later in December, the Council wrote to Mrs X to say:

• it could commission NHS SALT services, including an associated assessment for B. It said this would be part of an interim review of B’s Plan in the new year;
• College P was able to offer independent life skills sessions once COVID-19-related restrictions had been lifted;
• it was consulting on a possible independent specialist college; and,
• it would follow up on her request for a copy of the correct final EHC Plan.

42. The next day, the Council sent Mrs X its stage one complaint response.
43. On 15 December, Mrs X chased the Council for confirmation on whether SALT would be provided when B returned to College P in January.
44. Three days later, the Council replied to say it had asked its commissioning team to identify SALT providers from the spring term, if its NHS provider were unable to make the provision.
45. Mrs X asked for her complaint to be escalated.

January to March 2021

46. At the end of January 2021, the Council sent Mrs X its second amended final EHC Plan and its final complaint response.
47. In March, Mrs X complained to the Ombudsman.

Analysis – was there fault by the Council causing injustice?

Mrs X’s involvement in the Annual Review meeting (April 2020)

48. Mrs X complains the Council failed to invite her to an annual review meeting in April 2020 (part a of her complaint).
49. B’s face-to-face annual review meeting had been scheduled for the end of March 2020. Due to COVID-19, this meeting was cancelled by College P. The school said it would rearrange the meeting once requirements around such meetings during COVID-19 restrictions were clearer.
50. College P held B’s virtual annual review meeting on 24 April 2020.
51. The SEN Code of Practice states: “The child’s parents or young person … must be invited and given at least two weeks’ notice of the date of the meeting” (emphasis in the original). I have considered the Department for Education’s non-statutory guidance alongside this: Education, health and care needs assessments and plans: guidance on temporary legislative changes relating to coronavirus (COVID-19). This states: “Annual reviews may … need to take a different form. However, it is important that they continue to ensure that the child or young person is at the centre of the process and can engage with the process in a meaningful way.”
52. In its stage two complaint response, the Council said Mrs X emailed College P both her and B’s views in a document prior to the meeting. It said, due to COVID-19, this was how Mrs X and B had virtually participated in the review meeting.
53. Having considered the document providing Mrs X and B’s views, I find both were able to meaningfully contribute their views by this alternative means put in place due to COVID-19. I do not find the Council at fault here as it is in line with the expectations of the non-statutory guidance detailed above. I accept that it could have been made clearer to Mrs X that the document she provided was how she would be contributing her views for the annual review meeting. But I do not find this amounts to fault as her and B’s views were taken into consideration.

B’s special educational provision

54. Mrs X complains the Council failed to provide certain special educational provision detailed in Section F of B’s Education, Health and Care (EHC) Plan from March 2020 following COVID-19 restrictions. She complains B should have received support by a specialist college for one day per week, but the Council has failed to provide this (part b of the complaint).
55. It is my understanding that, under B’s 2019/20 EHC Plan, she attended the independent specialist college, Specialist College T, one day per week. During her time there, she received: SALT sessions; termly SALT reviews; access to counselling support sessions; and support with independent life skills.
56. As explained above, the Coronavirus Act 2020 temporarily removed the councils’ absolute duty to make the special educational provision in an EHC Plan where the school or year group concerned was given a directive to close. The Ombudsman considers 23 March 2020 as the relevant date this measure applied from. From 31 July 2020, the Council’s absolute duty to arrange special educational provision was reinstated. Based on the evidence I have seen, it is my understanding both of B’s colleges were temporarily closed during this period.
57. I, therefore, do not find the Council at fault for not providing a full package of provision, as specified in B’s 2019/20 EHC Plan, during this period.
58. The Council said, however, it had sent out a template document to all schools and colleges requesting they complete this document with details of any changes in provision specified in a child’s EHC plan.
59. However, based on the Council’s response to our questions, it is not clear whether the Council received a completed template document for B and what decisions were made. For example, it is not clear how it assessed the extent to which it could reasonably secure B’s above special educational provision. I would have expected to see clear records of decisions it made about the provision it could or could not secure. This is fault. This caused B uncertainty about whether she would receive any of the above provision, however limited.
60. The Council told us B had access to additional wellbeing support during this time. I have factored in this support when recommending the remedy below.
61. Mrs X says even when COVID-19 restrictions were lifted in September 2020 and B returned to school, this special educational provision was not provided (part c of the complaint)
62. During the 2020/21 academic year, the Council issued two final EHC Plans for B (one issued in November 2020 and a second in January 2021). In both plans, SALT sessions, termly SALT reviews, access to counselling support, and support with independent life skills are specified as special educational provision B should receive.
63. In the Council’s stage one complaint response from December 2020, it accepted that B was missing out on SALT and independent life skills provision. This is fault. From 31 July 2020, the Council’s absolute duty to arrange special educational provision was reinstated. The Council apologised for failing to fulfil this duty. However, I do not find this sufficiently remedies the injustice caused to B given the provision she missed out on for the autumn term 2020. This is based on the following:

• it is my understanding the Council took until February 2021 to commission SALT provision. I have recommended a suitable remedy for this delay below. I have factored in the fact B missed out on SALT provision during autumn term 2020 and January 2021 due to commissioning delays. From February, I do not find the Council failed to secure this special educational provision;
• in both of B’s 2020/21 Plans, it states B should “be supported in developing independent life skills”. In its stage one complaint response from December 2020, the Council said College P was “looking into the possibility of a programme of independence skills” for B, but it was unlikely this programme would be put in place while COVID-19 restrictions applied and “bubbles” of pupils were not able to mix. The Council put in place an additional learning mentor for B from this point. I do not find the Council made sufficient efforts to secure B’s access to her independent life skills here or consider commissioning the service itself. The duty is on the Council to secure this provision, not College P (see paragraph 13 above). It is not clear how and whether the Council satisfied itself the learning mentor sufficiently met this special educational provision. I, therefore, find B missed out on adequate access to independent life skills support during the 2020/21 academic year; and,
• both of B’s 2020/21 EHC Plans state she would have “further support” from a specialist ASD (autism spectrum disorder) college one-day per week. Based on the evidence I have seen, the Council did not secure this provision during the 2020/21 academic year meaning B missed out on this support.

64. Regarding B’s counselling sessions, the Council confirmed in its stage one response that during autumn term 2020, B received six-sessions of counselling. It confirmed that B could self-refer herself to the counsellor for further support. It is my understanding this was in line with both of her 2020/21 EHC Plans. I do not find the Council failed to secure B’s counselling provision.
65. Concerns about the frequency of such provision relate to the content of the Plan and its specificity. Such issues may be raised with the SEND Tribunal as it has the power to reach decisions and make recommendations on the content of EHC Plans. When Mrs X received the final plans in November 2020 and January 2021, this triggered her appeal rights to the SEND Tribunal. I consider Mrs X could have reasonably been expected to make use of her appeal rights to the SEND Tribunal if she was unhappy with the specificity of Section F (special educational provision) of B’s 2020/21 Plans. I, therefore, cannot comment on the frequency of B’s counselling and whether this meets her needs.

Delays in the annual review process

66. Mrs X complains the Council failed to complete B’s 2020/21 annual review and issue a final EHC Plan on time (part d of the complaint)
67. B’s virtual annual review meeting took place in April 2020.
68. At the beginning of August, the Council sent Mrs X a copy of its proposed amended EHC Plan.
69. On 18 August, Mrs X sent the Council her statement on the proposed amendments. She asked the Council whether it had obtained any information from the independent specialist college, Specialist College T. This college was named - along with College P - as a placement in B’s 2019/20 EHC Plan. She asked to speak with the Council about this. It is my understanding that, following this call, the Council accepted B would no longer attend Specialist College T. Mrs X agreed to the Council having extra time to obtain relevant information about this. However, the Council did not specify a deadline by which it would achieve this. This is fault. This caused Mrs X uncertainty.
70. Mrs X had to chase the Council in October for an update and complain about the delays. By this point, the statutory timescales contained in the SEND Code of Practice for completing annual reviews, such as B’s, had been reinstated since 25 September.
71. On 2 November, the Council issued a final EHC Plan.
72. In the Council’s stage one complaint response from December 2020, it accepted the Council had failed to follow the statutory processes and meet the statutory timescales for completing B’s annual review. This is fault. It apologised to Mrs X for this and for the extensive delays she had experienced.
73. The Council said, in its stage one complaint response, that it would send Mrs X an amended version of B’s 2020/21 EHC Plan by 18 December.
74. However, the Council sent the second final Plan at the end of January 2021 instead. The Council has accepted this further delay was fault and it failed to communicate clearly with Mrs X about B’s Plan. This caused Mrs X further uncertainty and distress.
75. Based on the evidence I have seen, much of the delay occurred because, as explained above, there were delays in the Council securing SALT provision for B and the matter of the Council securing independent life skills provision drifted during the 2020/21 academic year. This caused B and Mrs X uncertainty.

The Council’s complaint handling

76. Mrs X complains the Council failed to fully respond to her complaint about B’s lack of SALT provision.
77. In the Council’s stage one complaint response, it accepted B was missing out on SALT. At the time of its final complaint response, the Council recommended no further action on this point because B’s final EHC Plan from January 2021 would address this.
78. However, the Council did not explain how it had assessed any injustice caused to B because of the provision she had missed out on until SALT provision was secured from February 2021. This is fault, which caused Mrs X uncertainty about whether the Council could take action to remedy the provision B had missed out on. I, therefore, uphold this part of Mrs X’s complaint.

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Agreed action

79. The Council has offered £300 to Mrs X and B for the stress and anxiety caused by the delay in issuing the final amended EHC Plan. I consider this a suitable financial remedy for the injustice caused by this.
80. However, I do not find this fully remedies the injustice Mrs X and B have experienced because of the fault identified above. Within four weeks of my decision, the Council has, therefore, agreed to:
1. apologise in writing to Mrs X and B for the fault causing injustice;
2. make a payment to Mrs X, on behalf of B, of £150 for the uncertainty caused between 23 March to 31 July 2020 (see paragraph 59 above). This payment is in line with the Ombudsman’s published guidance on remedies; and,
3. make a payment to Mrs Y, on behalf of B, of £2,050 for the loss of SALT, independent life skills provision and support from a specialist ASD college one-day per week (made up of £800 for autumn term 2020, £650 for spring term 2021 given SALT provision began in February 2021, and £600 for summer term 2021). This is in line with the Ombudsman’s guidance on remedies, which states: where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £600 to £1,800 per term to acknowledge the impact of that loss.
81. The Council has confirmed that it has already made the following service improvements because of Mrs X’s complaint: reminded relevant staff about adhering to statutory guidance on the EHC Plan process, and shared learning about the case with relevant staff members involved in the complaint and at managers meetings.
82. However, within three months of my decision, the Council has also agreed to make the following service improvements:
1. remind relevant staff members about the specific statutory timeframes for completing the annual review process. This should include information on the timeframes for completing the process when the Council intends to amend an EHC Plan (see paragraphs 16 to 19 above);
2. develop a procedure to ensure that, where it appears a child or young person is not receiving the provision set out in their EHC Plan, robust action is taken without delay;
3. review its complaints handling process to ensure clear information is given to staff on assessing injustice when fault is found and awarding appropriate remedies for this. The Council should consider including a reference to the Ombudsman’s published guidance on remedies in the guidance; and,
4. share this decision with relevant staff.
83. The Ombudsman will need to see evidence that these actions have been completed.

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Final decision

84. I have completed my investigation.
85. I have not upheld part a of Mrs X’s complaint because there was not fault by the Council causing injustice.
86. I have decided to uphold parts b to d of Mrs X’s complaint. This is because there was fault by the Council causing Mrs X and her daughter, B, injustice. The Council has agreed to the above recommendations, which are suitable ways to remedy this.

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Investigator's decision on behalf of the Ombudsman