Summary: Miss F complains about the way the Council dealt with her son’s special educational and social care needs. There was some fault which caused uncertainty to her son. The Council has agreed to apologise and pay him £300 to acknowledge this.

The complaint

1. Miss F complains the Council failed to:
• ensure that annual reviews of her son's EHC plan were carried out on time.
• ensure the delivery of special educational needs provision and social care provision for him.
• carry out a social care assessment.
• commission an educational psychology assessment.
2. As a result, her son has missed out on provision to which he was entitled, and she has been put to considerable time, trouble and expense.

Back to top

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. 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.
6. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)
7. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407)
8. If we are satisfied with an organisation’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)
9. 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.

Back to top

How I considered this complaint

10. I spoke to Miss F about her complaint and considered the information she sent, the Council’s response to my enquiries and:
• The Children and Family Act 2014
• The SEND Regulations 2014
• The Special Educational Needs and Disability Code of Practice 2015 ("the Code").
• Working together to safeguard children 2018
11. Miss F complained to the Council in October 2019 about social care provision and could have come to the Ombudsman in late 2019, so this complaint is late. However, I have exercised discretion to investigate as Miss F raised the matter again in her April 2021 complaint.
12. I considered Miss F’s comments on my first draft decision statement. As a result, I made some changes to my provisional findings and issued a second draft statement. Miss F and the Council had an opportunity to comment on my second draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Special educational needs

13. A child with special educational needs (SEN) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
14. The Code says if a parent or young person request a particular post-16 institution (including independent colleges that have been approved by the Secretary of State), the council must name that institution in the EHC plan unless it would be unsuitable for the young person, or their attendance would be incompatible with the efficient education of others.
15. Parents have a right of appeal to the SEND Tribunal if they disagree with the SEN provision, the school named in their child's plan, or the fact that no school or other provider is named. From April 2018 to 31 August 2021 there was a pilot scheme to allow SEND Tribunals to also make recommendations about the health and social care aspects of EHC plans.
16. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.

EHC assessments

17. Children and young people may require an EHC needs assessment for the council to decide whether an EHC plan is necessary. If the council agrees to assess, it must seek information and advice from the child's parents, the school, an identified health care professional, an educational psychologist (EP), social care, anyone else the Council considers appropriate and from any person the child's parent reasonably requests.
18. The Code says councils must not seek further advice if such advice has already been provided (for any purpose) and the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process. In making this decision, the local authority and the person providing the advice should ensure the advice remains current.
19. The Courts have found that, whilst children in need (which includes disabled children) are entitled to some form of assessment, there are no statutory duties as to the form of the assessment under section 17 of the Children Act 1989. Councils are therefore permitted to decide that some disabled children with lesser needs do not require a full assessment by a social worker. Those with lower-level needs may be assessed via Early Help. (R (L and P) v Warwickshire CC, 2015)
20. The Sheffield Children Safeguarding Partnership has issued “threshold of needs” guidance which sets out the criteria and level of need for when a case should be referred to social care for an assessment. This says social worker assessments will be carried out for those with the highest needs (level 5), such as those requiring acute/specialist services.
21. Where a council decides it is necessary to provide support under section 2 of the Chronically Sick and Disabled Persons Act 1970 it must include this in Section H1 of the EHC plan. Support provided by Early Help or under section 17 of the Children Act 1989 should be included in Section H2 of the EHC plan.

Annual reviews

22. The Code says councils must review a child's EHC plan every 12 months. These annual reviews consider whether the provision remains appropriate and whether progress is being made towards the targets in the EHC plan. The first review must be held within 12 months of the date when the EHC plan was issued. They must then be held within 12 months of any previous review.
23. Councils are responsible for ensuring annual reviews take place, but the Code says they can ask colleges to convene them on their behalf. Colleges must invite a local authority SEN officer and a local authority social care representative, and circulate any information, at least two weeks before the meeting. Council officers do not have to attend the review unless they are “requested to do so”.
24. Within four weeks of the review, councils must decide whether they propose to amend the plan and notify the young person of this decision. If they are amending, they must do so without delay and issue an amendment notice. Although the Code does not give any deadline for the issuing of an amendment notice, a recent high court decision says any draft amended plan must be issued within four weeks of the annual review. The final amended plan must be issued within 12 weeks of the annual review. (L & Ors, R (On the Application Of) v Devon County Council [2022] EWHC 493 (Admin))

Transition to college

25. For young people moving from secondary school to a post-16 institution, the review and any amendments to the EHC plan – including specifying the post-16 provision and naming the institution – must be completed by 31 March in the calendar year of the transfer.
26. For young people moving between post-16 institutions the Code says:

“the review process should normally be completed by 31 March where a young person is expected to transfer to a new institution in the new academic year. However, transfers between post-16 institutions may take place at different times of the year and the review process should take account of this. In all cases, where it is proposed that a young person is to transfer between one post-16 institution and another within the following 12 months, the local authority must review and amend, where necessary, the young person’s EHC plan at least five months before the transfer takes place.” (SEND Code of Practice, para 9.181)

27. Under the Care Act 2014 councils must carry out a social care needs transition assessment for the young person where there is likely to be a need for care and support after they turn 18. There is no set age when these should take place.

Impact of the COVID-19 pandemic

28. On 23 March 2020, all schools and colleges were ordered to close, retaining some staff to provide education for the children of key workers and some 'vulnerable' children and young people, including those with an EHC plan. The Government advised councils on 27 March to carry out risk assessments to decide whether a child with an EHC plan would be safer in a school setting.
29. The Secretary of State issued a notice under the Coronavirus Act 2020 to give councils more flexibility in dealing with EHC plans and provision. It temporarily changed councils’ absolute duty to ‘secure’ the education provision in an EHC plan to one of using ‘reasonable endeavours’ to do so. This change applied from 1 May to 31 July 2020.
30. The Government also introduced temporary regulations, in force up to 25 September 2020, which allowed for the deadlines for completing EHC needs assessments, carrying out reviews and issuing EHC plans to be relaxed. This applied where it was ‘not reasonably practicable’ or it was impractical to complete the actions within the usual timescale required, for a reason relating to COVID-19. The council had to complete the action ‘as soon as reasonably practicable’.

What happened

31. Miss F’s son, J, has a diagnosis of Autism and ADHD. He has an EHC plan and attended a specialist secondary school until July 2020. He had been attending a holiday club for disabled young people two days a week, which had been arranged by the Council’s play service. The club ended in 2017 so J was unable to attend in summer 2018. Following an annual review in January 2019 a final EHC plan was issued on 21 June 2019. This did not refer to the holiday club or any other social care provision.
32. In October 2019 Miss F complained to the Council that there had been no social care provision for J since 2018. She asked the Council to assess J’s social care needs under section 17 of the Children Act 1989 (a “child and family assessment”) to consider the provision of a five-day social care package when he started college in September 2020. She also complained the Council had not commissioned an EP assessment since 2009, had not carried out preparing for adulthood reviews, and that no professionals had ever attended J’s annual reviews.
33. The Council offered an Early Help assessment to consider a direct payment for short breaks. It then responded to Miss F’s complaint in November 2019. It noted that she did not agree with its decision to not carry out a child and family assessment. It met with her to discuss the social care provision and it was agreed J should try a new football camp. Miss F says as the Council’s complaint response indicated the Council would act, she did not consider it necessary to escalate her complaint.
34. There was an annual review meeting on 12 November 2019 when J was in Year 11; a SEND inclusion officer and Early Help officer attended. I have seen no evidence the Council sent a decision as to whether it would amend the EHC plan by 10 December 2019.
35. J attended a taster session at the new football camp in January 2020, but the camp did not arrange for him to attend during February half-term.
36. The Council issued a final EHC plan on 23 March 2020 naming a post-16 mainstream college. The EHC plan said J required small group teaching, autism-trained staff, a named tutor, various strategies and a structured approach. Section H1 said J would access an activity-based provision for two days during each school holiday through the Council’s play service.
37. The COVID-19 lockdown meant J then had to learn remotely at home and the football camp did not go ahead. Miss F says he received no education during this time.
38. J started at college in September 2020, aged 16, to do a one-year course. In November Miss F asked the Council when the annual review would be. The Council replied it was due in March 2021.
39. Miss F complained to the Council in April 2021 as the annual review had not been held. The Council said it was for the college to arrange and it was then arranged for 30 April.
40. Miss F made a further complaint on 19 April that the annual review process should have been completed by 31 March 2021. She said she had not received papers two weeks in advance and asked for social care and post-16 officers to attend the review due to her concerns about J’s current college placement. Miss F also asked for her 2019 complaint to be considered again as there had been no social care provision since 2018.
41. The annual review meeting was held on 30 April 2021; SEND inclusion officers attended. A social worker tried to attend but was unable to due to an IT problem.
42. The review found J had not made progress against most of his targets, partly due to remote learning caused by COVID-19. Miss F said the college:
• Had not provided J with sufficient support with remote learning.
• Had not provided any opportunity to access a work experience placement.
• Had delivered small group learning but not in terms of learning with peers of a similar learning need.
• Had not provided clear routines, boundaries and structures in online learning nor broken down the learning into chunks.
• Had provided an opportunity for a weekly 1:1 catch-up with one tutor but not all.
• Had provided a learning support assistant but this support had been hit and miss.
43. The review agreed that the EHC plan should be amended. Miss F and J would look at a new placement from September 2021. I have seen no evidence the Council sent a decision as to whether it would amend the EHC plan by 28 May 2021.
44. The social worker called Miss F on 28 May. She agreed to discuss the social care provision with the play service and feed into the new EHC plan.
45. The Council replied to Miss F’s complaint on 7 June, three weeks later than its target response date. It said it had expected the annual review to have been held by 31 March and had been awaiting the report from the college. It noted council officers had attended the review and asked which parts of her 2019 complaint she wanted to the Council to look at.
46. A draft EHC plan was sent on 30 June. In response J and Miss F requested a preferred provider (College 2) for the next academic year. College 2 had already assessed J and offered a place, but I have seen no evidence the Council consulted with College 2 before issuing the final EHC plan on 23 July. As no education setting had yet been identified, the EHC plan specified “maintained mainstream post-16” provision in section I. Miss F says the covering letter did not set out her appeal rights.
47. Miss F told the Council she would appeal to the Tribunal as it had ignored J’s request for College 2. She also asked for an EP assessment. The Council said it had not heard from College 2 and it would contact the EP.
48. The Council consulted a different training provider on 30 July, which offered provision for three days a week and would look for enrichment days to extend the offer to five days a week. The Council met with the EP on 12 August.
49. Miss F appealed to the Tribunal about all the sections of the EHC plan, including the health and social care provision.
50. The Council sent its final complaint response on 23 August. It said it had asked an EP to complete an up-to-date report. Miss F disputes this as the EP told her in October that he had not discussed a re-assessment of J with the Council.
51. In September 2021 the Council carried out a child and family assessment. This found J was not currently in education as Miss F was appealing to the Tribunal. The assessment said J needed to be in education or training, to be supported to identify suitable work experience, and should be referred to the Council’s play service find suitable short break provision.
52. Before the SEND Tribunal hearing, the Council agreed J could attend College 2. He started there in January 2022.

My findings

Annual reviews

53. Miss F complains the annual reviews were late. J was due to start post-16 education in September 2020. This meant he had to have had an annual review and final EHC plan naming a placement by 31 March 2020. The annual review was held on 12 November 2019. It considered J’s post-16 options. I have not seen any evidence the Council issued a decision by 10 December 2019, which is fault.
54. I have not seen when the amendment notice was issued, but the final EHC plan was issued on 23 March 2020, 19 weeks after the 2019 annual review. This is not in line with the recent high court decision. Whilst the review considered J’s post-16 options and named a post-16 institution in line with the Code, I find the final EHC plan was issued late.
55. However, I do not consider these faults cause significant injustice to J, as he was nonetheless able to start with his preferred college in September 2020.
56. The Code says: “where it is proposed that a young person is to transfer between one post-16 institution and another within the following 12 months, the local authority must review and amend, where necessary, the young person’s EHC plan at least five months before the transfer takes place.”
57. In response to my first draft decision, Miss F said the course J started in September 2020 was a one-year course, so the Council was aware that J was due to move to a new placement in September 2021. This means the EHC plan should have been reviewed and amended by 31 March 2021.
58. In addition, although the EHC plan had been issued in March 2020, the next annual review was due within 12 months of the previous review, so by 11 November 2020. It was not held until 30 April 2021. The college was undergoing a re-organisation, which Miss F says affected the arrangements. I also accept that COVID-19 lockdowns caused delays in holding annual reviews, but the temporary COVID-19 flexibilities ended in September 2020. At this point the Council should have ensured annual reviews were being carried out “as soon as reasonably practicable”. I therefore find the annual review was late, which is fault.
59. Having held the annual review, the final EHC plan was issued within eight weeks of the draft plan (amendment notification) in line with the Code, and within 12 weeks of the annual review. I therefore do not find any fault here.
60. After receiving the draft EHC plan, on 8 July 2022 Miss F sent J’s request for College 2. I have seen no evidence the Council consulted with College 2. It had assessed J but the Council said it had not received any information prior to issuing the final EHC plan. The Code says councils must name a requested institution in the EHC plan unless it would be unsuitable for the young person or their attendance would be incompatible with the efficient education of others. To determine this, councils would need to consult the college. I therefore find it was fault not to consult College 2. However, I cannot say that if the consultation had happened College 2 would have been named in the EHC plan.
61. Miss F also complained that she had not received papers two weeks in advance of the April 2021 review meeting and that social care and post-16 officers did not attend. Although the college arranges the annual review, it does so on behalf of the Council. It was therefore fault not to issue the papers two weeks in advance, but I cannot see that this caused a significant injustice to Miss F. There is no fault in the officers not attending the review as they are not required to attend.
62. I have considered the impact on J of the late annual review. If it had been held by mid November 2020, a final EHC plan naming a new placement should have been issued by mid-February 2021. It is likely it would have named the training provider that was not J’s preference. If so, Miss F would then have had two months to register an appeal. Tribunals usually take 16 weeks from when the person appeals to issuing their decision. So, agreement could have been reached about J’s provision by mid-August 2021. As the Council eventually agreed for J to attend his preferred placement, it is likely that, if there had been no fault, he could have started there in September 2021.
63. However, J had a place available with another provider from September and that he did not attend was not an injustice caused by fault by the Council.
64. In addition, we cannot investigate a complaint if someone has appealed to a tribunal. This means that if a person disagrees with the placement named in an EHC plan we cannot seek a remedy for lack of education after the date the appeal was engaged (i.e. in this case July 2021) if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407)
65. This means that although there was fault as the annual review was delayed, I do not find this caused J to lose out on education and I cannot seek a remedy for any injustice this delay may have caused.

SEN provision

66. Miss F says J was not receiving the support he needed at college from September 2020 to July 2021. It is not the Ombudsman's role to determine the suitability of the education provision, either quality or amount, that J should receive. Nor can I investigate what happened in the college. My role is to consider whether the Council ensured the support set out in J’s EHC plan was provided.
67. I note the concerns Miss F had about the provision in college, but I find there was no fault by the Council. The March 2020 EHC plan said J required small group teaching, autism-trained staff, a named tutor, various strategies and a structured approach. This provision was made. That Miss F found it to be insufficient and that J did not achieve his targets is not evidence of fault by the Council.
68. In response to my first draft decision, Miss F said J had received no education from March to July 2020. For most children there was remote learning in this period as schools were closed due to the COVID-19 lockdown. Children with EHC plans were able to attend school. Councils were advised on 27 March 2020 to carry out risk assessments to decide whether a child with an EHC plan would be safer in a school setting. I have not seen that a risk assessment was done. This was fault, which has caused uncertainty as J cannot know if he might have been able to attend school.

Social care provision and assessment

69. There is no dispute that the social care provision that had been arranged by the Council’s play service was not delivered from 2018 onwards. This had consisted of two days a week at a holiday club during school holidays.
70. When Miss F complained about this in 2019, the Council offered an Early Help assessment. Miss F wanted a child and family assessment, but the Council was not required to conduct this. Under its “thresholds of need” guidance, it was entitled to offer an Early Help assessment and I do not find fault.
71. In the November 2019 annual review it was agreed that J should attend a disability club. He attended a taster session in January 2020, but it was not arranged for the February half term, but this was not caused by fault by the Council.
72. The social care provision set out in the March 2020 EHC plan was not delivered. It is likely that no holiday club would have been provided in Easter or Summer 2020 due to COVID-19 restrictions. In these circumstances, the Council should have considered what other options may have been available to support J and not to do so was fault, causing J to lose a possible opportunity to have support.
73. Miss F says the Council left her to arrange holiday club provision by herself. This is not fault. The Council’s play service is not a provider, it matches disabled children with possible short breaks or clubs and families are expected to help find these and to contact them. However, I have said above that Council should have considered what other services could support J, given that holiday clubs were not operating fully after March 2020.
74. In preparing the March 2020 and July 2021 EHC plans, the Council was required to seek information and advice from social care. It did so. It then started a child and family assessment in September 2021 after Miss F had appealed to the Tribunal and had also made a referral to children’s safeguarding. I do not find fault.

Educational psychology assessment

75. Miss F says the Council ignored her request in 2016 for an EP re-assessment. That is too long ago for me to investigate as Miss F could have complained about this at the time.
76. Miss F raised the issue again when she complained in October 2019, but an EP assessment was not requested following the November 2019 annual review. I therefore have seen no evidence that the Council refused a request then.
77. The Council made contact with an EP in August 2021 after Miss F had complained and asked again in July 2021. It then referred to another EP after she appealed to the Tribunal. I do not find fault.

Remedying the injustice caused by fault

78. There was fault when the Council did not ensure there was a COVID-19 risk assessment in April 2020, and when it did not consider alternative social care provision in 2020, once it was clear the holiday club was not operating. This has caused uncertainty as to whether J could have attended school or had other support.
79. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on. For uncertainty caused by fault, our guidance recommends a moderate sum of up to £300. I have taken into account that in 2020 J was in a significant educational year before he moved to post-16.

Back to top

Agreed actions

80. Within a month of my final decision, the Council has agreed to apologise to J and pay him £300 to acknowledge the uncertainty he was caused.

Back to top

Final decision

81. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman