Summary: Mr X complains the Council failed to conduct an annual review or produce an EHC Plan for his grandchild Y for several years. He further complained the Council did not involve Y’s mother Ms S in its decision making or provide her with appeal rights and refused to investigate the complaints he raised about this. There was fault when the Council significantly delayed producing a final EHC Plan for Y, failed to invite Ms S to annual review and did not respond appropriately to complaints Mr X raised about this. The Council has agreed to provide a written apology, a £200 financial award and to remind its staff about the importance of keeping to statutory timescales.

The complaint

1. Mr X complained the Council did not:
1. hold annual reviews for Y’s EHC Plans in 2020 and 2021;
2. invite Y’s mother Ms S to annual reviews;
3. failed to provide Ms S with appeal rights; and
4. did not respond to complaints he made about this.

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What I have investigated

2. I have investigated complaint points a) to d) listed above. I have not investigated events which took place prior to June 2020 for reasons I will explain at paragraph 53.

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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 late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, 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 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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How I considered this complaint

7. I spoke to Mr X and discussed his view of the complaint.
8. I made enquiries of the Council and considered the information it provided. This included Y’s draft and amended EHC Plans, Mr X’s complaint correspondence and internal email correspondence between the Council, Ms S and Mr X.
9. I wrote to Mr X and the Council with the draft decision. I considered Mr X’s comments before I made the final decision.

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What I found

Special educational needs

10. A child with special educational needs (SEN) 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. Only the tribunal can do this.
11. Councils must review EHC Plans at least yearly. They should decide whether to maintain, amend or discontinue the plan within four weeks of an annual review. If the Council decides an amendment is necessary, it must issue a final amended plan within eight weeks of the decision. The Council must enable the full involvement of the child and their carer/parent and must take account of their views, wishes and feelings.
12. The Special Educational Needs and Disability Code (the SEND Code) states if a council decides to amend the Plan, it should start the process of amendment “without delay,” so there are no set timescales here but we would consider whether actions were ‘without delay.’
13. The council must give the parent or young person at least 15 calendar days to comment on the proposed changes.
14. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC Plan as soon as practicable and within eight weeks of the date it sent the EHC Plan and proposed amendments to the parents.
15. If the council decides not to make the amendments, it must notify the child’s parent or the young person, explaining why, within the same time limit. Councils must ensure a child’s parent or the young person is fully included in the assessment from the start and made aware of opportunities to offer views and information.
16. If the Council is ordered by SEND tribunal to re-assess the EHC Plan, it should write to the relevant parties within 2 weeks to confirm it will make the assessment and send the amended plan within 5 weeks of tribunal making the order.
17. This complaint involves events during the COVID-19 pandemic during the first national lockdown. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to Covid-19”.
18. The SEND (Coronavirus) (Amendment) Regulations 2020 were in force from 1 May until 25 September 2020. Councils did not have to comply with time limits in the Code (see paragraph 23) in relation to completing EHC assessments and plans if it was impractical to do so because of a reason relating to coronavirus.
    In relation to cases where the EHC process was partly complete on 1 May, if the 20- week time limit had already passed, we are likely to take our usual approach to assessing the impact of the delay and failure to arrange provision.
19. The Coronavirus Act 2020 temporarily modified the duty in section 42 of the Children and Families Act 2014 to arrange or secure the SEN and health provision in an EHC plan. The change meant the absolute duty to secure or arrange SEN provision was modified to a requirement to use ‘reasonable endeavours’ to do so. This change did not cover any other education areas – for example the duty to arrange alternative education provision (see paragraph 17.) If a council had been arranging alternative provision for a child before 1 May, we would expect the provision to continue as previously arranged. Our view is if the provision was reduced or changed, there would need to be clear and cogent reasons to justify this.
20. Supporting vulnerable children and young people during the coronavirus outbreak – actions for educational providers and other partners (in force between March and August 2020) said education providers and councils should identify vulnerable children and young people, (including those not in education, those with EHC plans and those who are classed as vulnerable at the discretion of the council) and consider how best to support their welfare and education both remotely and on-site. There should be a risk assessment to determine whether attendance is safe or not.

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What happened

Background

21. Y is secondary school aged and has been diagnosed with ADHD. Y’s mother Ms S and her father, Mr X manage Y’s education needs.
22. In 2017 Ms S withdrew Y from school as he was unable to cope in a traditional classroom setting.
23. The Council held an annual review for the Plan on 4 April 2019. The Council noted, “Y’s parent did not attend the meeting or return the parent’s comments form.”
24. The Council did not amend the EHC Plan or make any recommendations for Y’s provision and stated this was because Y was still not attending school.
25. After several months of failing to attend school, the Council placed Y in residential care in January 2020. Y is currently a looked after child. Ms S shares responsibility for him with the Council.
26. Y began receiving daily 1 to 1 tuition in English and Maths in February 2020. Following the COVID-19 lockdown, he accessed his provision online.

Mr X’s complaint

27. On 1 June 2020, the Council held an annual review of Y’s EHC Plan. It was noted that Y was responding well to tuition and making good progress. Y’s 2020 EHC Plan included Ms S’s comments on his development. The Council says it recorded Ms S’s views through her social worker because Y was in residential care at the time.
28. The Council wrote to Ms S on 9 July 2020 and told her it was amending Y’s EHC Plan.
29. Ms S complained to the Council on 15 July 2020. She said she did not agree to the Council making amendments and she was unhappy she was not invited to or informed about the annual review meeting.
30. Mr X also complained, stating the Council failed to:
• issue a draft or final EHC Plan for Y in 2020;
• hold an annual review in 2021;
• issue a final EHC Plan in 2021;
• respond to complaints; and
• provide Ms S with her appeal rights
31. The Council wrote to Ms S on 3 September 2020 and conceded it had failed to invite her to the review. The Council attempted to remedy the situation by inviting her to another annual review meeting.
32. On 7 September 2020 Mr X asked the Council to provide information relating to the June annual review and confirmed Ms S did not wish to attend.
33. The Council replied to Mr X on 17 September 2020 stating it would rely on information provided at the review in absence of Ms S’s comments and it would send all documentation relating to the review meeting to Ms S within 5 working days. The Council has confirmed it applied to the court on 28 October 2020 for a psychological assessment in relation to Y’s EHC Plan and this significantly delayed proceedings.
34. Mr X continued to contact the Council advising that neither he or Ms S had received answers to their requests for information. The Council told Mr X it would respond by 15 January 2021.
35. In December 2020 Ms S told the Council she would no longer communicate with the Council about Y’s education because it had repeatedly failed to provide information she had requested.
36. After receiving psychological and social care advice regarding Y’s development, the Council issued a draft amended EHC Plan on 5 March 2021. The Plan gave Ms S appeal rights. The Council did not name an educational setting as Y was shortly due to return to living with Ms Y. The Council invited Ms S to provide comments on Y’s school preference, but she did not reply. Throughout March the Council continued to check in with Y, who reported that he was engaging well with the tuition provided.
37. Ms S wrote to the Council on 18 March 2021 and said she was happy Y was engaging with his provision, but she did not agree with the Plan and was unhappy the Council did not approach her school of choice, engage with her or invite her to the 2020 annual review.
38. However, in June 2021 plans for Y to return to Ms S’s home were cancelled. The Council says this prevented it from moving forward with Y’s Plan as it needed to focus on arranging another residential Y’s residency. The Council has confirmed that despite this it contacted schools in the area to assess suitability for Y’s placement.
39. In February 2022, Y began a learning qualification in addition to his tuition. At this point the Council were still devising a transition review to aid Y in his post 16 studies.
40. The Council produced a draft EHC Plan on 5 March 2021. The notes recorded for Ms S were replicated from Y’s earlier June 2020 EHC Plan as Ms S had confirmed she did not want to engage with the Council.
41. The Council emailed Ms X and Mr X to advise it would be holding an annual review of Y’s Plan on 15 March 2022 and asked for their views. Mr X was unhappy with this and told the Council it had failed to inform Ms S the meeting was taking place or to share the appropriate information and had not resolved his earlier complaints. Mr X asked the Council to suspend the review indefinitely due to the Council’s management of Y’s Plan.
42. The Council went on to hold the review on 15 March 2022. Neither Mr X or Ms S attended. Mr X complained again to the Council that it had failed to invite Ms S to the review.
43. On 16 March 2022 a SEN caseworker visited Y and told the Council his social skills, reading age and cognitive ability had significantly improved since 2020.
44. In response to the Ombudsman enquiries, the Council said a combination of the impact of the COVID-19 pandemic along with Y’s residential placement and Ms S’s unwillingness to engage with the Council led to the delays in holding a review or producing an EHC Plan for Y.
45. The Council said the delay in producing Y’s EHC Plan was also due to initiating court proceedings to address his absence from school and his move into different residential settings, some which were outside of the Council’s catchment area. The Council said despite this, it continued to engage with Y and put tuition in place with a tutor Y is suited to, which ensured his educational and social needs were met.

Findings

Failure to issue a draft or final EHC Plan in 2020 or hold an annual review in 2021

46. Mr X’s main complaint is the Council’s failure to issue a draft or final EHC Plan for Y in 2020 and its follow-on failure to hold an annual review in 2021. The Council has conceded there was a considerable delay in producing the Plan and holding the review but maintains that Y’s changing residential placements, its application for a psychological assessment and Ms S’s refusal to engage caused these delays. The Council is required to produce a EHC Plan and hold an annual review to set statutory timescales. Whilst there was a temporary change in the law due to the COVID 19 pandemic and the law does allow for delays under exceptional circumstances, I would still consider the Council’s delay excessive. This is fault. However, I cannot see evidence which indicates Y has been disadvantaged by these delays. The evidence indicates Y has thrived whilst receiving 1-1 tuition and this appears to be backed up by the Council’s findings and Ms S. I therefore do not consider this part of the complaint to have caused Y an injustice. However, I can see Ms S and Mr X have been put to significant time and trouble pursuing the Council and this amounts to an injustice on their part.

Failure to provide appeal rights

47. Mr X states the Council’s failure to produce an EHC Plan for so long prevented Ms S exercising her appeal rights. The Council produced an appealable EHC Plan in 2021 however Ms S lost the opportunity to appeal in 2020. The law says Ms S should be given the opportunity to appeal at Tribunal if she is unhappy with the contents of the EHC Plan. The evidence shows Ms S could not take advantage of this right due to the Council’s delay. This is fault. This has likely led to stress and inconvenience for Ms S.

Failure to invite Ms S to annual review

48. The Council has conceded it initially failed to invite Ms S to the June 2020 annual review. The Council has a statutory duty to ensure the parents are included and their views are recorded at annual review. The evidence shows this did not happen. Whilst I can see the relationship between Ms S and the Council has deteriorated, the Council is still expected to provide Ms S with information regarding the review. This is fault. The Council attempted to remedy the injustice caused to Ms S by later inviting her to attend a further annual review in September 2020. This was a reasonable action for the Council to take. Ms S refused the offer. She also went on to inform the Council she would no longer engage with the Council regarding Y’s EHC Plan. I do not criticise Ms S’s decision however I cannot see that the Council could reasonably be expected to do more to remedy this part of the complaint.

Complaint handling

49. Both Ms S and Mr X have complained to the Council about its failure to keep Ms S informed regarding the EHC Plan process. Mr X has also repeatedly chased the Council to provide information relating to the review. I can see the Council acknowledged these complaints but often provided delayed responses or did not respond fully or directly to the requests. We would expect the Council to respond promptly and to provide information requested, especially if it is a reasonable request. The evidence indicates the Council has failed to do that occasionally. This is fault. I consider it likely the Council’s actions have caused Ms S and Mr X frustration.

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Agreed action

50. Within one month of the date of the final decision the Council has agreed to provide a written apology to Mr X and Ms S in recognition of the inconvenience caused by its actions.
51. Within three months of the date of the final decision, the Council has agreed to provide Ms S with a £200 goodwill award to address the injustice she experienced because of its actions.
52. Within three months of the date of the final decision, the Council has agreed to provide evidence it has reminded staff of the importance of keeping to statutory requirements.

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Final decision

53. The Council was at fault when it delayed producing an EHC Plan, failed to invite Ms S to the annual review and delayed responding to the complaints raised about this. There was no injustice caused to Y but Mr X and Ms S were inconvenienced by the Council’s actions. I have made recommendations for how the Council should remedy this and the Council has agreed to carry them out. I have completed the investigation.

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Parts of the complaint that I did not investigate

54. I have not investigated events which took place prior to June 2020 as these matters took place quite some time ago and I can see no good reason these matters were not brought to the Ombudsman sooner.

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Investigator's decision on behalf of the Ombudsman