• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Ms X complained the Council failed to provide an education for her child since leaving school and the apprenticeship broke down. We found fault with the Council for delaying reviewing Ms X’s child’s Education Health and Care Plan for nearly two years outside the timescales. We also found fault with the Council failing to provide both provision in the Education Health and Care Plan and suitable education or training to a child aged between 16 and 18 years old for fifteen months. We also found fault with the Council for poor handling of Ms X’s contacts and complaints. The Council agreed to complete an annual review for Ms X’s child’s Education Health and Care Plan and produce a final amended Education Health and Care Plan. The Council also agreed to confirm the education provision it is putting in place for Ms X’s child. The Council agreed to provide training and guidance to staff about adhering to the review timescales and its responsibility to provide education and training to 16 to 18 year olds. The Council also agreed to Council apologise to Ms X and Y, pay Ms X £400 for the distress and inconvenience it caused and £1,000 for the uncertainty and lost opportunity it caused to Ms X’s child.

The complaint

1. Ms X complained the Council failed to provide an education for her child since leaving school and the apprenticeship broke down in November 2022.

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The Ombudsman’s role and powers

2. We investigate complaints about adult social care providers and decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. I have used the term fault to describe such actions. If they have caused a significant injustice or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 34B, 34C and 34H(3 and 4) as amended)
3. 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)
4. 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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How I considered this complaint

5. I have considered all the information Ms X provided and discussed this complaint with her. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
6. Ms X and the Council had opportunity to comment on my draft decision before I made my final decision.

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What I found

EHC Plans

Rules and regulations

7. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them.
8. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
9. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
10. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.
11. In 2022, the case of R (L, M and P) v Devon County Council said when a local authority proposes to amend an EHC Plan the regulation which requires the Council to notify a parent of its decision within four weeks and the regulation which set outs the process for amending the EHC Plan must be read together. This means the maximum time from the annual review meeting to final plan should be 12 weeks.
12. Once the Council completes the EHC Plan it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.
13. The Ombudsman can look at any delay in the assessment and creation of an EHC Plan as well as any failure by the Council to deliver the provision within an EHC Plan.
14. The Education Act 1996 (Section 19) and associated guidance states that education authorities must make suitable educational provision for children of compulsory school age who are absent from school because of illness, permanent exclusion, or who are ‘otherwise’ unable to attend school. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special needs.
15. Despite the raising of the participation age for education to 18, there is no post-16 duty for Section 19. This means alternative provision is not required after the final Friday in the June of the academic year in which the child turns 16.

What happened

16. In October 2021, Ms X’s child, who I shall refer to as Y, started education through a Council education provider, Provider 1.
17. The Council updated Y’s EHC Plan on 15 October 2021 to reflect Provider 1 in Section I of the EHC Plan. The Council designed the Section F provision detailed in Y’s EHC Plan for staff at Provider 1 or a tutor to provide to Y.
18. On 10 February 2022, Provider 1 held an annual review meeting for Y’s EHC Plan. The annual review noted the following:
    • Y’s tutor said that Y was making progress on his education and despite some engagement issues had reached a new agreement with Y for this education moving forwards.
    • Provider 1 noted that it has a full-time provision offer for Y which includes 1:1 support and tutoring but Y does not wish to engage with full-time education.
    • Y wants to enter the working world and is disenfranchised with education.
    • Provider 1 will start to look for post-16 provision for Y through an apprenticeship.
19. Provider 1 sent the outcome of the annual review meeting to the Council by the end of February 2022.
20. A Connexions Advisor for the Council’s SEN Team, Ms A, contacted Ms X in June 2022. Provider 1 and Ms A discussed Y’s situation and agreed on some potential apprenticeship options for Y as post-16 provision and began arranging interviews for Y.
21. In July 2022, Y left Provider 1 as Y had turned 16 in the last academic year.
22. In September 2022, Y attended an apprenticeship interview arranged by Ms A and got this apprenticeship to start in October 2022.
23. On 4 October 2022, the Council issued a draft EHC Plan following the annual review meeting in February 2022.
24. Y’s apprenticeship broke down on 4 November 2022. Ms X told the Council about this the same date. Ms A contacted Ms X on 15 November 2022 to arrange a meeting to discuss the next steps for Y. Ms X said she would discuss this with Y and contact the Council if she needed any further help.
25. Ms X contacted the Council on 18 February 2023 and 27 February 2023 to seek input for Y. The Council failed to respond to either of these contacts.
26. At the start of March 2023, Ms X asked the Council for Y to return to Provider 1 and for tutoring in English and Maths for Y on two occasions. The Council said it would look into this for Ms X. Ms X chased the Council on 5 April 2023, 27 April 2023 and 22 May 2023 for a response to the actions it intended to take.
27. Ms X made a formal complaint to the Council on 9 June 2023. Ms X said she has been trying to secure tutoring for Y through Provider 1 but has been unsuccessful. Ms X said she had contacted the Council many times about this without success.
28. On 19 June 2023, Provider 1 told the Council it is not registered to provide post-16 tuition. The Council did not provide this feedback to Ms X.
29. Ms X complained to the Council again on 29 July 2023. Ms X reiterated her concerns about the lack of education or support for Y since the apprenticeship broke down in November 2022. Ms X also complained the Council had failed to review Y’s EHC Plan.
30. On 30 August 2023, the Council issued its Stage 1 complaint response. The Council said:
    • Provider 1 did not provide education or tuition for children aged over 16.
    • It has tried to find a tutor for Y but had been unsuccessful.
    • It would be happy to arrange a review of Y’s EHC Plan and discuss support for Y moving forwards if Ms X contacted it to arrange this review meeting.
31. Ms X sought escalation of her complaint to Stage 2 on 10 September 2023. Ms X said she was told during the annual review meeting in 2022 that Y would receive education at Provider 1 if Y did not secure an apprenticeship. Ms X said the lack of communication from the Council has left Y without support or an education.
32. Ms X chased the Council for a response to her complaint on 26 October 2023, 21 November 2023 and 6 December 2023.
33. The Council responded on 14 December 2023 asking Ms X to contact it to arrange a review meeting of Y’s EHC Plan.
34. On 25 January 2024, the Council issued a formal Stage 2 complaint response. The Council said:
    • Provider 1 said it would explore the possibility of an educational programme for Y but did not commit to provide post-16 provision. The Council said this was from the provider itself and not the Council.
    • Provider 1 is not a registered post-16 provider so it cannot commission a package for Y through this provider.
    • It apologised for the delay in finding an alternative tutor for Y.
35. Following the Stage 2 complaint response, the Council arranged a home face to face tuition package for Y totalling 10 hours per week for Maths and English to start in the 2024 Summer term. Ms X asked the Council to instead provide online learning starting in September 2024. The Council has arranged this with the view to it continuing until June 2025.

Analysis – EHC Plan Reviews

36. A council must arrange to review an EHC Plan every 12 months. A council will complete a review of an EHC Plan once it has decided whether to amend, maintain or cease an EHC Plan.
37. The Council produced Y’s EHC Plan on 16 September 2020 and issued an amended EHC Plan on 15 October 2021. The Council completed the full annual review process of this EHC Plan naming the correct new educational setting within a year of the last EHC Plan. I do not find fault with the Council’s actions up to this point.
38. The Council did not issue a notification letter before issuing the Final EHC Plan on 15 October 2021. Issuing of the Final EHC Plan forms the start date for the next annual review process to be completed within 12 months.
39. Provider 1 held an annual review meeting on 10 February 2022 for Y’s EHC Plan. Provider 1 held this within a suitable timescale to allow enough time for review of Y’s EHC Plan to plan for Y’s post-16 provision. I do not find fault with when this annual review meeting was held.
40. The Council had four weeks from the annual review meeting to tell Ms X or Y about its decision to amend, maintain or cease Y’s EHC Plan. The Council only issued its decision to amend Y’s EHC Plan on 4 October 2022 when it sent the draft EHC Plan to Ms X. The Council took nearly 34 weeks to issue its decision to amend Y’s EHC Plan. This was fault.
41. Up to 15 April 2024, the Council has failed to issue a final EHC Plan for Y following the February 2022 annual review meeting. The Council had 12 weeks to issue a final amended EHC Plan following the annual review meeting on 10 February 2022. The Council has failed to meet this timescale by just short of two years. This delay of nearly two years is fault.
42. The Council needs to a issue a final amended EHC Plan for Y. However, any EHC Plan issued now will undoubtedly be out-of-date because the annual review meeting was held over two years ago. The Council should arrange an annual review meeting with Ms X and produce a final EHC Plan for Y. If the Council cannot arrange an annual review meeting with Ms X it should issue an amended EHC Plan to fulfil its statutory duty.
43. The Council should also review its processes for completing EHC Plan reviews and provide guidance and training to staff about the importance of adhering to the review timescales.
44. This delay of two years will have caused Ms X uncertainty and distress about the provision and support available to Y. This has also resulted in Ms X needing to go to avoidable time and trouble to chase this matter up with the Council. I have addressed the injustice to Ms X further in paragraphs 60 to 65.
45. I have addressed the direct injustice caused to Y through this fault in paragraphs 56 to 59.

Analysis – Provision

46. The Council produced an amended EHC Plan for Y on 15 October 2021. From this date, the Council had a duty to provide all provision detailed in Y’s EHC Plan to Y.
47. From October 2021 to July 2022, Y accessed education through Provider 1 and a tutor. Provider 1 and Y’s tutor put in place the educational provision detailed in the October 2021 EHC Plan.
48. The annual review meeting notes from February 2022 show that Y was engaging with this provision, although with some difficulties. These notes also show that Provider 1 had on offer suitable educational provision for Y should Y choose to engage with it.
49. While the Council had little input over Y’s provision from October 2021 to July 2022, Provider 1 was making suitable provision available to Y in line with the October 2021 EHC Plan. Since Y was accessing education at a level agreeable to Y and in line with Y’s needs identified in the EHC Plan, I do not find fault with the provision up to July 2022.
50. From June 2022 to September 2022, Ms A and Provider 1 worked with Ms X to find a suitable apprenticeship for Y resulting in Y starting an apprenticeship in October 2022. Ms A did this despite the Council failing to update Y’s EHC Plan to include reference to an apprenticeship. Ms A, on behalf of the Council, took suitable steps to secure training for a 16 to 18 year old for Y. I do not find fault with the Council until October 2022.
51. However, from October 2022, the Council’s fault identified in paragraphs 38 to 41 of failing to update Y’s EHC Plan started to present an injustice to Y. Since the Council failed to update Y’s EHC Plan, the provision within this EHC Plan was outdated and held no relevance to supporting Y in their apprenticeship. The failure to provide any support for Y in their apprenticeship will likely have contributed to the breakdown in this apprenticeship.
52. Following Y’s apprenticeship breaking down in November 2022, Ms X told the Council about this. Despite Ms X’s repeated contacts since November 2022, the Council failed to take suitable action to ensure Y was accessing suitable education or training.
53. The Council has a duty to ensure children aged 16 to 18 years old have access to either education or training. The Council also has a duty to provide any provision detailed in a child’s EHC Plan until a child reaches the age of 25 or the Council ceases the EHC Plan. Since Y could no longer attend the Section I educational placement in the EHC Plan, because Provider 1 did not provide post-16 provision, the Council should have secured Y’s provision in an alternative way.
54. The Council has failed to make any provision available to Y since his apprenticeship broke down in November 2022. The Council has not provided any education or found an alternative apprenticeship and failed to make available any provision Y was entitled to under his EHC Plan. This was fault.
55. The Council should provide guidance and training to staff about its responsibility to provide education or training to 16 to 18 year olds.
56. The Council’s fault has resulted in Y missing any educational provision or apprenticeship from November 2022 until January 2024. This was contributed to by the Council’s delays in updating Y’s EHC Plan. Since the Council failed to update Y’s EHC Plan, meaning the provision in this plan was no longer relevant for Y, we cannot be certain what provision Y would have been entitled to. We also cannot decide how well Y would have engaged with this provision. However, the Council’s fault has caused uncertainty and a lack of opportunity at accessing any provision for 15 months.
57. When we identify there is a significant injustice arising from the fault of a council, we can ask the council to make a payment to symbolise and acknowledge the distress or difficulties the person has been put through.
58. The Ombudsman’s guidance on remedies for uncertainty and lost opportunity recommends payments normally up to £500. However, where the Council’s fault has caused severe or prolonged injustice to a person we can recommend higher payments. In this circumstance, the Council’s fault has caused a severe lost opportunity to Y through missed education or support in an apprenticeship over a prolonged period of time of 15 months. I consider a payment of £1,000 is more reflective of the individual injustice caused to Y by the Council’s fault.
59. The Council has now put in place a suitable plan to provide education for Y to get his Maths and English GCSEs. However, given the history of non-communication surrounding Ms X’s complaint impacting Y’s access to education and support, the Council should confirm the details of this educational package to Ms X.

Complaint handling

60. Since November 2022, Ms X has made regular contact with the Council to either seek education and provision for Y or to follow up complaint contacts. In all, the Council has failed to respond to seven different contacts from Ms X since November 2022.
61. The Council provided a couple of responses which told Ms X it would look into Ms X concerns without responding further to provide any updates.
62. The Council’s complaint responses on 30 August 2023 and 14 December 2023 also put the onus back on Ms X to contact the Council again to arrange an annual review of Y’s EHC Plan. This was poor handling from the Council as it was ultimately the Council’s responsibility to arrange the annual reviews of Y’s EHC Plans.
63. Overall, the Council’s handling of Ms X’s contacts since November 2022 has been impacted by fault.
64. The combination of the impact of the delays in reviewing Y’s EHC Plan, as detailed in paragraph 44, and the Council’s poor handling of Ms X’s contacts has caused an injustice to Ms X.
65. As explained in paragraph 58, the Ombudsman usually looks to provide awards of up to £500 for matters relating to uncertainty and lost opportunity. We also apply the same to fault causing distress and inconvenience. The Council’s faults highlighted in paragraphs 44 and 59 to 63 have caused Ms X distress and uncertainty. The impact on Ms X has not been as severe as the impact on Y and, therefore, I cannot justify an award to the same level. I would recommend an award of £400 for the impact of the Council’s fault on Ms X.

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Agreed action

66. Within one month of the Ombudsman’s final decision the Council should:
    • Contact Ms X to arrange an annual review meeting for Y’s EHC Plan. The Council should suggest potential dates to Ms X within one month of the Ombudsman’s final decision to hold this meeting and allow Ms X to choose from these dates.
    • Confirm in writing the details of the package of education it has made available to Y starting in September 2024. This should include information about the date when Y can access this provision, when this provision will run until, how Y can access this provision and how Y can arrange to sit English and Maths GCSEs in line with this provision.
    • Provide an apology to Y and make a payment of £1,000 to Ms X for Y’s benefit for the uncertainty and lost opportunity the Council’s fault caused. This fault consisted of delays in reviewing Y’s EHC Plan for nearly two years and failing to provide the provision detailed in Y’s EHC Plan and failing to provide suitable education or training to Y for 15 months.
    • Provide an apology to Ms X and make payment to her of £400 for the distress and inconvenience its delays in reviewing Y’s EHC Plan and handling her contacts have caused her.
67. Within two months of the Ombudsman’s final decision the Council should:
    • Produce an amended final EHC Plan for Y and send a copy to Ms X along with a suitable covering letter detailing her rights in response to this EHC Plan.
68. Within three months of the Ombudsman’s final decision the Council should:
    • Review its processes for completing EHC Plan reviews and provide guidance and training to staff about the importance of adhering to the review timescales.
    • Provide guidance and training to staff about its responsibility to provide education or training to 16 to 18 year olds.
69. The Council should provide us with evidence it has complied with the above actions.

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Final decision

70. There was fault by the Council as the Council has agreed to my recommendations, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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