Summary: Mrs X complained the Council failed to provide appropriate support to her daughter, Miss Y, who has an Education, Health and Care plan, during her first year in college. The Council was at fault for not ensuring all the support in the plan was delivered and not properly considering whether an urgent annual review was needed. It should apologise and make a payment to Miss Y for the missed support. It should also reimburse Mrs X for the cost of a private report she had to obtain as a result of the failings.

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 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)
6. 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.
7. We cannot investigate complaints about what happens in schools or other educational establishment. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
8. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
9. 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

10. I considered:
• the information provided by Mrs X and the Council;
• relevant law and guidance, as set out below; and
• our guidance on remedies, available on our website.
11. Mrs X and the Council had an opportunity to comment on my draft decision and I considered their comments before making a final decision.

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What I found

Relevant law and guidance

12. A young person with special educational needs may have an Education, Health and Care (EHC) plan. This sets out their needs and what arrangements should be made to meet them.
13. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different educational setting. Only the SEND Tribunal can do that.
14. Councils are responsible for making sure that arrangements specified in the EHC plan are put in place. 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.
15. The Statutory Guidance: Special Educational needs and disability code of practice: 0-25 years (“the Code”) says:
• EHC plans must be reviewed as a minimum every 12 months (para 9.166);
• reviews should include reviewing the special educational provision made for the young person to ensure it is being effective in ensuring access to teaching and learning, and good progress (para 9.167);
• relevant professionals must be invited to the annual review meeting and must be given at least two weeks’ notice of the date of the meeting (para 9.176);
• advice must be sought from all parties invited, and shared with all parties invited at least two weeks before the review meeting (para 9.176);
• the school or council must prepare and send a report of the review meeting to all invitees setting out the recommendations on any amendments to the EHC plan, and referring to any difference of views between the educational setting and other attendees, within two weeks of the review meeting (para 9.176);
• within four weeks of the review meeting the council must decide whether it proposed to keep the EHC plan as it is, amend the plan or cease to maintain it, and notify the child’s parent or young person and the educational setting (para 9.176);
• if the plan needs amending, councils should start the process of amendment without delay (para 9.176);
• if amending the plan, councils must send the child’s parent or the young person a copy of the existing plan and a notice providing details of the proposed amendments, and they must be given at least 15 calendar days to comment on the proposed changes (paras 9.194 & 9.195);
• councils must issue the amended EHC plan as quickly as possible after receiving comments and within 8 weeks of the original amendment notice (para 9.196);
• the child’s parent or the young person has the right to request a particular college or other institution to be named in their EHC plan, and where it is one of the types of setting listed in the Code, the council must name it unless it would be unsuitable for the age, ability, aptitude or SEN of the young person, or their attendance there would be incompatible with the efficient education of others, or the efficient use of resources (para 9.79);
• councils must consult the educational setting concerned and consider their comments carefully before deciding to name it in the young person’s EHC plan (para 9.80);
• the child’s parents or the young person may also request a post-16 provider not on the list in the Code. Councils are not under the same conditional duty to name that provider but must have regard to the general principle in section 9 of the Education Act 1996 that children should be educated in accordance with their parents’ wishes, so long as this is compatible with the provision of efficient instruction and training and does not mean unreasonable public expenditure. Councils must be satisfied the provider would admit the young person before naming it in the EHC plan since they are not otherwise under a duty to do so even if named in the EHC plan (para 9.84).

Alternative education

16. Section 19 of the Education Act 1996 says councils must make suitable educational provision for children of school age who are absent from school because of illness, exclusion or otherwise.
17. Councils are not under a duty to provide alternative education for students who are not of compulsory school age.

Impact of COVID-19

18. The Department for Education issued guidance for further education in January 2021. This said that during the national lockdown to prevent the spread of COVID-19 infections, colleges should remain open to vulnerable students and the children of critical workers. Colleges should provide remote education for all other students from 5 January 2021 to February half term. Vulnerable students included young people with an EHC plan.
19. The guidance said colleges were expected to:
• have systems in place to check for non attendance and lack of engagement, and quickly agree ways these could be improved, if needed;
• ensure staff and students were trained and confident in the use of digital platforms;
• give particular consideration on how best to support vulnerable students who may not be able to access remote education without support; and
• work with councils to encourage vulnerable students to attend educational provision.
20. The guidance recognised special post-16 settings would encounter circumstances in which they could not provide their usual interventions and provision at adequate staffing ratios or with staff with vital specialist training.
21. A council’s absolute duty to secure the provision in an EHC plan under section 42 of the Children and Families Act 2014 was not amended during this third national lockdown. However, the High court accepted in R (Shaw) v Secretary of State for Education [2020] EWHC 2216 (Admin) that during the pandemic there were circumstances in which the law was impossible to obey.

Background

22. The Council issued an amended EHC plan for Miss Y in April 2020. This named a secondary school until July 2020 and a college from September 2020. As part of a separate investigation, we found fault with the Council for naming the college, despite the fact:
• the college had said it could not provide all the support set out in the EHC plan; and
• some of the support could not be provided in a post-16 setting.
23. We have already remedied the uncertainty about whether the college could meet Miss Y’s needs and therefore whether she could take up a place there, as well as the time and trouble Mrs X was put to pursuing the college and the Council to resolve the matter.
24. This investigation covers the period from September 2020, when Miss Y started attending the college, to July 2021. Miss Y stopped attending the college in February 2021, was removed from its roll in June 2021, and started a new course with an alternative provider in September 2021.
25. This decision statement covers key facts and events. It is not intended to be a comprehensive account.

The complaints

Complaint a) The failure by the college to deliver the support set out in Miss Y’s Education, Health and Care (EHC) plan

26. Mrs X complained the Council failed to ensure the college provided the support set out in Miss Y’s EHC plan dated April 2020. She said the college did not provide any of the support in that plan, including:
• 1:1 support in lessons, and to facilitate breaks and provide teaching away from the group where required;
• support for Miss Y’s self esteem and mental health;
• specialist autism support, including support in relation to social skills and emotional literacy;
• regular breaks and regular periods of sensory activity during the day, including access to suitable equipment and sensory strategies; and
• weekly support from the Council’s Inclusion Facilitator (which stopped in late November 2020).
27. The college removed the 1:1 support in lessons on 9 September 2020, only a few days into the course, although it said the support was available at other times and could be provided in class whenever required. In October 2020, a SaLT review report said Miss Y agreed the 1:1 support in lessons was not needed but noted a concern Miss Y may be ʺmaskingʺ things that were challenging for her to fit in. For example, Miss Y did not want her peers to know that she was being supported in lessons. The SaLT report did not identify any ʺglaringly obvious areas where more targeted support is requiredʺ but noted this may change over time. At that stage the Inclusion Facilitator was working with Miss Y, although that ended in late November 2020.
28. The annual review in January 2021 noted Miss Y’s short term objectives were mostly achieved, although Mrs X considers this was misleading because some information was repeated in more than one section. The review record noted, amongst other things, that Miss Y had not accessed emotional literacy interventions outside of the class.
29. In response to our enquiries, the Council said it was satisfied Miss Y was receiving the “core support” in her plan between September and December 2020, based on the annual review records and the fact she passed the course. Mrs X said that Miss Y had been on track for a distinction but only achieved a pass.
30. In January and February 2021 Miss Y received education remotely due to the COVID-19 pandemic. Mrs X said Miss Y was not able to fully engage with online learning as she kept her microphone and video switched off. Mrs X said the college did not provide any of the support in Miss Y’s EHC plan during the lockdown, except for making some phone calls to check on Miss Y’s wellbeing. Mrs X says Miss Y could have received some support remotely, including support from the Inclusion Facilitator and the Council could have arranged for assessments.
31. In response to my enquiries, the Council confirmed it had asked the college to follow Government guidance in early 2021, including providing it with a risk assessment. The risk assessment stated Miss Y was attending college, which was not correct.
32. In late February, Mrs X reported a decline in Miss Y’s mental health and her reluctance to return to college. Mrs X said Miss Y did not attend college or receive any of the support in her EHC plan from February 2021 onwards.
33. In mid-March 2021 Mrs X asked for a SaLT review to determine whether Miss Y’s emotional literacy and social communication programme was in line with her EHC plan. She noted the plan stated that SaLT should visit three times per term to provide specialist input into those interventions and also that Miss Y had not received either programme since she started attending college.
34. The Council decided not to refer to SaLT because it said that was not the appropriate professional to support Miss Y’s mental health. Mrs X challenged this on the basis the EHC plan stated there should be input from SaLT or a specialist autism teacher. The Council accepted the college position that there was an overlap of provision and that further SaLT input was not needed.
35. Mrs X commissioned the SaLT review privately at a cost of £140 in April 2021.
36. On 1 April 2021, the Council issued an amended EHC plan for Miss Y, following the annual review in January 2021 (see further, complaint b, below). This named the college. A right of appeal to the SEND Tribunal arose at this point and Mrs X lodged an appeal, on behalf of Miss Y, on 11 April 2021.

My findings – support not provided

37. Miss Y’s EHC plan dated April 2020 provided for 1:1 support in all lessons. This was withdrawn within days of her starting college. The annual review in January 2021 records the emotional literacy and social communication support had not been provided.
38. Although there is a lack of evidence to show what other support was delivered, I find on balance the following support was not provided between September and December 2020:
• specialist autism support, including input from SaLT;
• the listening ear support from the college nurse; and
• weekly support from the Council’s Inclusion Facilitator (which stopped in late November 2020).
39. The Council had an absolute duty to ensure the support was arranged. I have not seen any evidence the Council checked with the college after Miss Y started her course to ensure the support was in place, which I would have expected it to do given the concerns raised about whether the support could be delivered both by Mrs X and the college when the plan was being developed. Although it responded to emails from Mrs X about a lack of support, not all the support was arranged in the Autumn term. This was fault.
40. On balance, I find that none of the support in the plan was provided between January and late March 2021, which was fault. I note that in January and February 2021 Miss Y was accessing online education. There is some uncertainty about what support could be provided at home, which the Council did not consider because the college wrongly told it Miss Y was attending. However, it could have provided the Inclusion Facilitator sessions, which had previously been delivered online.
41. An amended EHC plan was issued on 1 April, at which point a right of appeal arose, which was exercised. The appeal related to the support set out in the plan and the placement named. Since the complaint about missed support in the period from April onwards is closely related to the appeal, I cannot investigate this, nor can I provide a remedy for the support Miss Y may have missed in the period 1 April 2021 to the end of the academic year in July 2021.

Complaint b) Failings in relation to the annual review in January 2021

42. The SEND Code sets out the arrangements for annual reviews, including inviting professionals and sharing reports.
43. Mrs X complained the college failed to:
• invite all relevant professionals to attend and contribute to the annual review in a timely way, in line with the Code. Specifically she said she asked the college to invite the speech and language therapist (SaLT) but it did not do so until a few days before the meeting;
• failed to share reports with all invitees at least two weeks before the review; and
• failed to ensure the review paperwork was shared with all invitees after the review in line with the Code to ensure professionals identified Miss Y’s difficulties as early as possible, which may have prevented the placement breaking down.
44. The Council, in its stage 2 complaint response, accepted the college was late sending the paperwork to Mrs X before the review meeting and apologised for the shortcomings it identified in the process. It said the SaLT and OT were invited on 4 January 2021. Mrs X disputed this, but I have seen records to show they were invited on that date. Both were invited to provide reports but said they had nothing new to add to previous reports. I have not been able to confirm whether paperwork was sent to professionals after the review meeting.

My findings - annual review (January 2021)

45. The college, on behalf of the Council, was late sending the reports to Mrs X. These should have been sent to her two weeks before the review meeting. However, I do not consider this is sufficient to amount to fault and am not persuaded it caused Mrs X a significant injustice.
46. I am satisfied the college invited all relevant professionals to attend the meeting. The Council apologised for any shortcomings in the annual review process and, as part of another investigation, agreed to review its process. There is nothing more I could achieve by pursuing this further.

Complaint c) Failure to issue an amendment notice within statutory timescales following the annual review

47. The Council accepted the amendment notice was not sent until 26 March 2021, which was outside the 4 week period specified in the Code and accepted this led to a delay in issuing an amended EHC plan for which it apologised.

My findings – delay in issuing amendment notice

48. The Council accepted it delayed in issuing the amendment notice, which was fault. However, it issued the final amended EHC plan was issued on 1 April 2021, which was not an undue delay. The Council apologised for the delay in issuing an amendment notice, which is an appropriate remedy.

Complaint d) The failure to carry out an emergency annual review in March 2021

49. On 2 March 2021 Mrs X asked for an emergency annual review because she felt Miss Y’s needs had changed and she needed a change of placement. She asked the Council to consult an alternative provider, provider A.
50. In response to this request, the college arranged a meeting to review Miss Y’s individual education plan (IEP), a document that sets out a child or young person’s goals for the year and what support they need to achieve them. It said this meeting could consider Miss Y’s needs and that, if needed, a change of placement could be added as an amendment to the latest review paperwork.
51. Mrs X met with the college on 9 March 2021, at which stage Miss Y said she did not want to attend college any longer. In early June 2021 Mrs X asked the Council to name provider A in Miss Y’s EHC plan and in mid-June the college removed her from its roll.
52. In its complaint response, the Council said it had put the request to the college in March 2021. The college told it that as an annual review had been held in January 2021, and as it had tried to support Miss Y’s attendance without success, a progress meeting rather than an annual review was preferable. The Council said it considered this was reasonable.
53. Mrs X said it was obvious in March 2021 that a change of placement was needed, and an urgent review meeting should have been arranged to consider that. Instead, the Council issued an amended EHC plan on 1 April 2021, naming the college, thereby forcing the family to appeal to the SEND tribunal, which should not have been necessary and was traumatic for Miss Y, who had to be involved in the appeal process.

Findings – failure to arrange urgent annual review

54. The Council appears to have accepted the view of the college without questioning it. It has not explained why it did not think an urgent review was needed, despite the fact Miss Y was not attending college, had said she did not wish to return, and the family had asked the Council to consider an alternative educational setting. Its failure to consider whether a review was needed to explore the possibility of a change of placement was fault.
55. That said, it may have considered this but still concluded the college could meet Miss Y’s needs. I cannot say that arranging an annual review at that point would have led to a different outcome and avoided an appeal. However, Miss Y and the family are left with uncertainty about whether the situation could have been resolved sooner but for this fault.

Complaint e) Failure to consult the family’s preferred provider in March 2021

56. Mrs X said the Council should have consulted provider A when she requested this in March 2021 and should not have named the college in Miss Y’s amended EHC plan in April 2021. It is not my role to say whether the college was an appropriate placement for Miss Y. It was for the Council to decide the appropriate placement and Mrs X had a right of appeal to the SEND tribunal if she disagreed, which she exercised. Therefore, I cannot pursue this matter further.

Complaint f) Failure to identify a suitable alternative provision when Miss Y stopped attending college in February 2021, a failure to act when the college removed Miss Y from its Roll, and delays in arranging an alternative to the college provision.

57. The Council was not under a duty to provide alternative education for Miss Y when she withdrew from her college course in late February 2021 because she was over the statutory school age. The Council did consult with the college with a view to ensuring Miss Y did not become NEET (not in education, employment or training). The college said it could meet Miss Y’s needs and was initially willing to keep the place open for her.
58. In June 2021, the college removed Miss Y from its roll after it became clear she would not return. Mrs X said this was not Miss Y’s choice but was a result of the lack of support by the college from September 2020 onwards. The Council said it had no legal duty to intervene.
59. Mrs X sought advice from the Education and Skills Funding Agency (ESFA), part of the Department for Education, which said:
• the Council was responsible for ensuring the support set out in an EHC plan was arranged, and for ensuring the college named in the EHC plan admitted the student;
• if the college was no longer suitable, it should review the EHC plan and name an alternative setting but until an amended EHC plan was issued, the college should admit the student;
• if the Council had difficulty in getting the college to admit Miss Y, and the matter could not be resolved locally, it could refer the matter to the ESFA.
60. I understand the ESFA is investigating the removal of Miss Y’s name from the college Roll whilst it was named in her EHC plan.
61. Mrs X also complained the Council delayed in arranging alternative provision, which did not start until September 2021. She said the Council should:
• have consulted with provider A sooner;
• have provided provider A with all relevant reports about Miss Y at the outset so provider A could provide a specific proposal of education;
• have arranged for provider A to meet with Miss Y at an early stage;
• not have referred the case to its Specialist Education Panel (SEP), which caused delays of several weeks. It took three weeks from the meeting on 16 April for the panel to consider the case and a further two weeks after that for the Council to confirm its decision; and
• have an education other than in school or college (EOTISC) policy and make this available to families.
62. Mrs X said provider A had places available to start after the Easter holidays and Miss Y could have started then if the Council had consulted provider A sooner. As a result of the delay, Miss Y did not start studying with provider A until September 2021.
63. The Council, in its complaint response, said that whether the case needed to be considered by its SEP depended on where the provider was funded from. Where the provider was funded by the Education and Skills Funding Agency (ESFA) and received High Needs Funding (HNF), it did not need to be considered by its SEP. Where, as in this case, place funding and HNF was required, applications needed to be considered by the SEP.
64. It also said, the SEP agreed that education other than in school or college (EOTISC) was appropriate when the case was first considered in May 2021. However, because provider A’s proposals were generic and it had not met Miss Y, it asked provider A to meet her in order to provide a more detailed and person centred proposal. Provider A did this and its proposal was agreed in July 2021.

My findings – delay in arranging alternative provision

65. Mrs X asked the Council to consider provider A in March 2021. At that stage, the Council considered the college could meet Miss Y’s needs. It issued an amended EHC plan on 1 April 2021, which named the college, and Miss Y had a right of appeal against that decision, which was exercised. Although the Council had a duty to deliver the provision in the EHC plan, which it could not do, particularly after the college removed Miss Y’s name from its Roll, I cannot consider this further because it is too closely connected to the appeal.
66. Despite the ongoing appeal, the Council did agree to consult provider A in May 2021. At that stage, it did not have comprehensive information about the proposed educational package so it could not decide whether this would meet Miss Y’s needs. It would need to be satisfied about this before naming provider A in Miss Y’s EHC plan and therefore, regardless of any dispute about referring to the SEP, it was entitled to seek further information from provider A. There was no undue delay in obtaining that information and agreeing the proposal in July 2021.

Complaint g) The Council issued an amended EHC plan for Miss Y during the appeal process without proper consultation.

67. The Council said it issued an amended EHC plan in order to name provider A as the educational setting. The placement and the support set out in the plan were subject to appeal to the SEND tribunal. Therefore, this complaint is too closely linked to the appeal for me to investigate.

Complaint h) Poor communication with the family and a general lack of support for Miss Y

68. Mrs X complained about:
• a general failure to respond to her emails;
• a lack of advice on support and educational settings;
• insufficient support, specifically from the Inclusion Facilitator, in relation to whether Miss Y should study with provider A; and
• a general failure to place Miss Y at the heart of its decision-making.
69. In its complaint response, the Council accepted some shortcomings in the level of contact in addressing Mrs X’s enquiries, for which it apologised. However, it said it was supportive of Miss Y, including meeting with the college after Miss Y stopped attending and, later, arranging alternative provision with provider A.

My findings – poor communication and general lack of support

70. The Council accepted some fault in its responses to contacts from Mrs X for which it has apologised. It offered to pay Mrs X £400 for the injustice caused by the faults it accepted, including the failings in the annual review process, not ensuring all the support in Miss Y’s EHC plan were delivered and for a failure to respond to all her enquiries. However, this is not sufficient to remedy the injustice caused to Mrs X and Miss Y by the faults I have identified.

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Agreed actions

71. The Council will, within one month of the date of the final decision:
• apologise to Miss Y and to Mrs X for not providing all the support set out in Miss Y’s EHC plan between September 2020 and March 2021, and for not properly considering whether an urgent annual review was needed in March 2021 to discuss a change of placement.
• pay Mrs X £140 to reimburse her for the private SaLT report she had to obtain due to the specialist input into Miss Y’s support not being arranged, and a further £150 for the uncertainty caused by the other faults identified, and the time and trouble pursuing the Council. This makes £290 in total.
• pay Miss Y £800 for the missed SEN support. I have calculated this on the basis of £200 per month in the Autumn term, taking into account that not all provision was missed but also that this was the first term at college. I have added £100 each for January and February where Inclusion Facilitator support could have been provided but there is uncertainty about what other support could have been delivered remotely. I have not included a payment for March 2021 as it is unclear what support could have been provided then as Miss Y was no longer studying. I am not able to remedy the period between April and July 2021 as the appeal was ongoing at that time.
72. I have considered whether to recommend further action by the Council to prevent recurrence of the faults identified but am satisfied that the actions agreed as part of other investigations are sufficient and no further recommendations are needed.

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Final decision

73. I have completed my investigation. I have found leading to personal injustice and recommended action to remedy that injustice.

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Parts of the complaint that I did not investigate

74. I did not investigate complaints about the provision of SEN support in Miss Y’s EHCP dated 1 April 2021 for the period April to July 2021 because an appeal to the SEND tribunal was ongoing at that time.

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Investigator's decision on behalf of the Ombudsman