Summary: Mr X complains about the Council’s EHC planning and the decision made not to send him to his preferred college. He says the Council did not involve him in the decision, did not give him a clear explanation as to how it made the decision, or how to appeal the decision. We find some fault and have made recommendations.

The complaint

1. Mr X complains about the Council’s EHC planning and the decision made not to send him to his preferred college. He says the Council did not involve him in the decision, did not give him a clear explanation as to how it made the decision, or how to appeal the decision. Mr X says the Council’s decision has prevented him from having the same opportunities to go away to college as a person without disabilities. He also says the decision meant he does not have suitable accommodation.
2. Mr X is represented by his advocate, Ms Y.

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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 question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), 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)

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How I considered this complaint

6. I spoke with Ms Y and considered the information she provided.
7. I made enquiries with the Council and considered the information it provided.
8. I sent a draft decision to Ms Y and the Council and considered their comments.

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What I found

Legislation and guidance

9. A child or young person has Special Educational Needs (SEN) if they have a learning difficulty or disability which calls for special educational provision to be made for them. Some children or young people have an Education, Health and Care (EHC) plan to meet their SEN.
10. The Special Educational Needs Code of Practice 2015 provides detailed guidance to councils about how they should manage the process of:
• the content of the plan, and
• how to implement, monitor or cease a plan.
11. The code notes that within four weeks of a review meeting, the council must decide whether it proposes to keep the EHC plan as it is, amend the plan, or cease to maintain the plan. The Council must tell the child’s parents or the young person of its decision. (paragraph 9.176)
12. If the plan needs to be amended, the Council should start the process of amendment without delay. Councils must issue the amended EHC plan as quickly as possible, and within 8 weeks of the original amendment notice (paragraph 9.196)
13. If parents or a young person disagrees with the content of an EHC plan, they can appeal the First Tier Tribunal Special Educational Needs and Disabilities (SEND) Tribunal.

What happened

14. Mr X attends School A and has an Education, Health and Care (EHC) plan. School A also offers post 16 education.
15. In August 2020, the school held an annual review meeting to discuss Mr X’s EHC plan. Mr X’s mother, Ms P, told the Council she hoped Mr X could go to a specialist college (College B), which was outside the Council’s area. Mr X did not attend the meeting but expressed a wish to go to college.
16. The following day, the Council held a meeting between the professionals involved with Mr X. Neither Ms P or Mr X’s advocate, Ms Y, was present at this meeting. In the meeting, the professionals discussed the option of placing Mr X at College B. The professionals decided Mr X did not present the need for an out of area residential provision. The professionals also noted they wanted to explore the option of independent supported living and college within the area.
17. In December 2020, the Council sent Ms P a proposed amended EHC plan, which named School A as Mr X’s placement. The Council advised Ms P of her right to appeal if she disagreed with the school named within the proposed amended plan.
18. In January 2021, the Council sent Ms P the final amended EHC plan. The Council again provided Ms P with information about how to appeal if she was unhappy with the EHC plan. There is no evidence Ms P appealed.
19. The Council’s records showed between January and August 2021, the Council was continuing to work with Ms P and Ms Y to secure independent supported living for Mr X.

Analysis

20. The evidence available suggests there were discussions about placing Mr X at College B during the annual review meeting in August 2020. The records noted Mr X’s expressed wish to attend college and Ms P’s view that College B was her preferred choice for Mr X. There is no evidence the Council told Ms P it would name College B as Mr X’s placement.
21. The Council decided in a meeting between professionals that it was not necessary to place Mr X in College B because he did not present the need for an out of area residential provision. The Council noted it wanted to explore the option of placing Mr X in support living accommodation and at a college in the area. The Council later named School A within Mr X’s amended EHC plan in December 2020.
22. While it is clear Mr X and his representatives were not involved in the meeting where the Council decided not to pursue a placement at College B, I do not consider this amounts to fault. This is because the Council appropriately sought the views of Mr X and Ms P during the review meeting in August 2020.
23. Further, the Council was entitled to reach a view of what it considered to be the most suitable educational placement for Mr X. If Ms P disagreed with the Council’s decision, she could have appealed to the SEND tribunal. As the Council provided Ms P with information on how to appeal, I consider it reasonable to have expected her to appeal if she disagreed with the Council’s decision to name School A, and not College B.
24. There does appear to be some delay in the Council issuing the draft amended EHC plan. The annual review meeting was held in August 2020, but the Council did not send an amended plan until December 2020.
25. The SEN code of practice notes the Council should have decided whether it was keeping the plan as it was, amending the plan, or ending the plan within four weeks of the review meeting. The Council must also tell the child’s parents or young person of its decision.
26. There is no evidence the Council told Ms P of its decision to amend the plan within four weeks of the review meeting. This is fault.
27. Further, the code notes that if the plan needs to be amended, the Council should start amendment process without delay, and issue the EHC plan within 8 weeks of the original amendment notice.
28. The Council did not issue the amended EHC plan until December 2020, around four months after the review meeting. Therefore, I am not satisfied the Council started the amendment process without delay. This is fault.
29. I consider the faults identified caused some injustice to Mr X and Ms P. This is because they did not receive the timely service they should have.
30. Finally, it is clear from the evidence available the issue of Mr X’s accommodation is still ongoing as the Council is still working with Mr X to place him in supported living accommodation.
31. Therefore, it is not appropriate for me to comment at this stage on the Council’s actions. Once the matter is resolve, it is open to Mr X to make a new complaint. If Mr X is unhappy with the Council’s response, he can bring the complaint to the Ombudsman for us to assess and consider.

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Agreed action

32. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following:
• Apologise to Ms P for failing to tell her within four weeks of the review meeting of its decision to amend the EHC plan, and for the delay in issuing the amended EHC plan.
33. The Council should complete the above within two weeks of the final decision.

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Final decision

34. I find fault with the Council for failing to tell Ms P of its decision to amend the EHC plan within four weeks of the review meeting. I also find there was delay in the Council issuing the final amended EHC plan. The fault has caused some injustice. The Council has accepted my recommendations. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman