Summary: The Ombudsman upholds Mrs X’s complaint about the way the Council dealt with her son’s Education, Health and Care plan. The Council communicated poorly and caused delay. It focused on the affordability of the placement rather than whether it met Mrs X’s son’s needs. This caused Mrs X frustration, anxiety and time and trouble in pursuing her complaint. The Council has agreed to meet some of Mrs X’s costs. It will also apologise and improve services to address the faults identified.

The complaint

1. Mrs X complaints about how the Council has dealt with her son’s Education, Health and Care (EHC) plan. She says:
1. The Council failed to send a representative to her son’s transition review in December 2016.
2. There has been a lack of communication from the Council and it has not responded to her letters. The Council also failed to respond to her solicitor’s letters.
3. The Council did not clarify if it gave all the information she provided in February 2017 to the panel.
4. The joint panel review recommended in April 2017 further exploration of the education packages in York. However, Mrs X had already looked into this and found the providers in York could not meet her son’s needs.
5. The Council has unlawfully said that funding for each placement year is subject to affordability.
6. The Council did not tell her that a new adviser was dealing with her son’s case.
7. The Council has consistently failed to meet the statutory time frames.

Back to top

The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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)
5. SEND is a tribunal that considers special educational needs. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)

Back to top

How I considered this complaint

6. I have considered the complaint made by Mrs X and the documents she provided.
7. I considered the Council’s comments about the complaint and the documents it provided in response to my enquiries.
8. I took account of the following Ombudsman’s focus reports:
• ‘Education, Health and Care Plans: our first 100 investigations’ published in October 2017.
• ‘Not going to plan? Education, Health and Care Plans two years on’ published in October 2019.
9. I gave Mrs X and the Council an opportunity to comment on my draft decision and I considered their responses.
10. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

Back to top

What I found

Background

11. A young person aged 19 to 25 with special educational needs or disabilities (SEND) may have an Education, Health and Care (EHC) plan. This sets out the young person’s needs and what arrangements should be made to meet them. Councils are responsible for making sure that all the arrangements in the EHC plan are put in place. Parents may appeal to the SEND tribunal about the provision described in an EHC plan.
12. The SEN Code of Practice 2015 (‘the code’) sets out the importance of providing a full package of provision and support across education, health and care for young people with an EHC plan. This may cover five days a week, where this is appropriate to meet the young person’s needs.
13. The code also says post-16 institutions such as colleges have a duty to admit a young person if the institution is named in the EHC plan. Young people have a right to ask that an institution is named in their plan. Councils have a duty to name it unless, following consultation with the institution, it decides that it is unsuitable for the young person’s age, ability, aptitude or SEN, or that to place the young person there would be incompatible with the efficient use of resources or the efficient education of others.
14. The code goes on to say that ‘others’ means the children and young people whom the young person will directly encounter on a regular basis.
15. EHC plans must be reviewed annually and councils must communicate any decision made following the review to the young person or their parents within four weeks of the meeting. If a council decides to amend a plan, it should start this without delay. It a council decides not to amend the plan, or to cease maintaining a plan, it must advise the young person or parent of their right to appeal the decision.
16. Where a young person may be moving between institutions, the EHC plan must be reviewed and amended in good time. For young people moving between post-16 institutions, the review should normally be completed by 31 March when a young person is expected to transfer to the new institution in the new academic year. Where it is proposed that a young person will transfer between institutions in the following 12 months, the council must review and amend the young person’s EHC plan at least five months before the transfer takes place.

What happened

17. Mrs X’s son, B, is 23 and has profound and multiple learning difficulties. He has significant physical and communication impairments and complex medical needs. He needs a high degree of support.
18. When Mrs X complained to the Council, B was resident at an out-of-area independent specialist college during the week, returning home at weekends and for holidays. He has been attending the college since 2015.
19. When the Council agreed to name the college in B’s EHC plan in 2015, it set an end date of 31 July 2017. It said confirmation of the placement was subject to affordability and would be reviewed and agreed annually by the post-maintained education panel. It also proposed that the second year of B’s placement would be split, with time spent between the college and other providers in York. It said the college and a York-based support team would work together to develop a pathway into adult life for B and undertake activity that supported a smooth transition from the college to alternative providers.
20. The college held a transition meeting in December 2016. It invited the Council, but no officers attended. Attendees noted the progress B was making, especially in his interaction with others, his eating and drinking, and using the toilet. His behaviour and mental health had improved. B’s parents said they wanted him to remain at the college for a third year. The Council had not asked them to look at any alternative settings. The college suggested some other settings B’s parents might want to explore, including two settings I will call Provider C and Provider D.
21. Between the transition meeting and B’s annual review, his parents visited both Provider C and Provider D. They did not think either could meet his needs. They set out their views in their written contribution to B’s annual review of his EHC plan.
22. In early February, B’s new work and learning adviser contacted Mr and Mrs X to introduce herself. She wanted to arrange a meeting before B’s annual review but there was no time available to do so.
23. B’s annual review took place the same month. Attendees discussed options for the next academic year. B’s parents shared their views on the Provider C and Provider D and their wishes for B’s future. The Council said it was likely the post-maintained education panel would suggest B receive a mixture of provision delivered by the college and other providers in York, with a view to B moving back to the city. B’s parents did not object to this in principle but said decisions about B’s education would need to centre on where he would live after leaving college. The Council said B was still making progress so it would continue to maintain his EHC plan. The college said it would prepare a study programme and costs for a third year.
24. At the beginning of March, Mr and Mrs X emailed the Council setting out their views on B’s continued placement at the college. They included a discharge summary from B’s consultant psychiatrist. This said any changes in B’s placement would need to be made carefully given the improvements in his well-being at his current placement. They explained again why they felt Provider C and Provider D could not meet B’s needs. They asked the Council to decide as soon as possible to allow them to appeal to the SEND tribunal if it proposed to change B’s placement. Mr and Mrs X also sent an updated parental contribution for B’s EHC plan. They asked that all the information they provided be shared with the post-maintained education panel.
25. The Council discussed B’s case at its EHC panel. There are no minutes available to evidence the discussions which took place.
26. Mrs X wrote to the Council on 23 March saying the Council had not confirmed in writing its decision following B’s annual review. She said the Council was frustrating her appeal rights by not issuing a decision.
27. The Council responded the following day. It said it had agreed to maintain B’s EHC plan at the first panel meeting but was waiting on information from the college to decide about his placement.
28. At the end of March, B’s college contacted Mrs X to say the Council had asked it to arrange visits for B to Provider C and Provider D. Mrs X shared the feedback she had already given to the Council about the suitability of the provision and the views of B’s consultant psychiatrist about his transition. She said there would be no benefit to B of visiting while future arrangements for his placement were still uncertain. A Council officer replied to say it respected her views and it was looking to support B’s longer-term transition planning.
29. The Council discussed B’s case at its post-maintained education panel on 29 March. The Council said the panel was provided with:
• B’s EHC plan and minutes of his annual review.
• The discharge summary from B’s consultant psychiatrist.
• Mr and Mrs X’s contribution to the annual review and Mrs X’s email referred to in paragraph 28.
• A proposed study programme and costs from B’s college.
30. The minutes of the meeting show the panel noted the progress B was making in his current placement. The panel acknowledged the Council’s failure to provide mixed provision to support B’s transition back to the city in the second year of his placement. It said of the two alternative providers suggested, Provider C could not meet B’s needs. It acknowledged that Provider D could only provide a two-day programme. It said it had been two years since Mrs X had visited Provider D. The panel concluded that it could not answer whether there was adequate and sufficient local provision as the local offer had not been explored. It said the family needed to consider the local offer and explore social care and supported living opportunities in the city.
31. At the beginning of April, the post-maintained education panel chairs wrote to Mrs X. They said there needed to be further investigation of the educational packages on offer at Provider D, with the possibility of supported living in York. The letter said the panel would reconsider the request for B to remain at the college for a third year once the investigation work had been completed.
32. Mr and Mrs X replied to say the Council still had a duty to issue a decision following B’s annual review and asked that it did so immediately.
33. In May, Mr and Mrs X engaged a solicitor to write to the Council on their behalf. The solicitor said the Council had not made any progress with transitioning B to mixed provision and had not put in place a well-planned and gradual transition as promised. The solicitor asked the Council to complete the annual review either moving B from his current placement, which Mr and Mrs X would appeal against, or maintaining his current placement for another year. The Council did not respond to the letter.
34. The panel considered B’s case again on 7 June. The minutes say Mr and Mrs X had visited both alternative providers and were not confident they could meet B’s needs. The panel agreed the local offer was not able to meet B’s needs at that time. It wrote to Mr and Mrs X with the outcome, which was to fund B’s college placement for a further year. The letter again said placement confirmation was subject to affordability. In response to my enquires, the Council provided a copy of a further letter, which it says was sent on 21 July. This also confirms the placement for a further year but does not refer to affordability. The letter itself is undated.
35. Mr and Mrs X received B’s amended draft plan in early July. They provided amendments and the Council issued a final plan on 21 July, naming the college.
36. Mr and Mrs X complained to the Council in October 2017. In response, the Council said:
• The date of the transition meeting changed on short notice which prevented an officer attending. An officer told the college about Mr and Mrs X’s request for a third-year placement, and details of some local provision which could be used to support a smooth transition in the future.
• The post-maintained education panel was not aware they had visited the suggested alternative providers already. Once it was aware, it offered B the third year at college the family had asked for.
• It could not finish the EHC plan until the panel had made a decision.
• Its decision to consider the affordability of the placement was based on its interpretation of the extract from the code described in paragraph 13 of this decision.
• The newly appointed learning and work adviser had been absent because of illness and the previously appointed officer had been covering her work.
37. Mrs X replied to the Council in January 2018 setting out her disagreement with its findings. The Council declined to investigate further, and Mrs X complained to the Ombudsman.

Analysis

38. Although the events complained about occurred more than a year ago, I am exercising the Ombudsman’s discretion to investigate them now. Mrs X complained to the Council within 12 months and first approached the Ombudsman in May 2018. She was delayed in pursuing the matter because of personal circumstances outside her control.
39. There was no duty on the Council to attend the college’s transition meeting. While it is unfortunate no officers were there, the Council’s explanation is reasonable.
40. The Council failed to respond to Mrs X’s letter in April 2017 asking it to confirm its decision following B’s annual review. Mrs X then engaged a solicitor and the Council failed to respond to his letter and follow up emails. This was fault and caused frustration to Mrs X.
41. The Council’s response to Mrs X’s complaint suggests the panel did not properly consider the information it was provided with in March 2017. If it had, it would have been aware Mrs X had already visited and discounted the two alternative providers suggested for B. This was fault and caused a delay of 10 weeks in the Council confirming B’s third-year placement at college.
42. Placement choice must be based on need. The cost of a placement should only be a consideration when there is more than one option available which meets the needs and delivers the provision set out in a young person’s EHC plan. That was not the basis of the decision made in this case. The Council’s focus on the affordability of the placement in its decision letters without referring to need was fault. This caused anxiety for Mrs X about the stability of B’s placement.
43. It is not fault for the Council to explore other placement options for B. However, given the extensive provision described in B’s EHC plan and the limited programme available at Provider D, it is unclear how the Council decided this could realistically meet his needs. This was fault and caused Mrs X frustration as she felt the Council was not taking account of B’s needs or her views when asking her to consider alternative providers.
44. The Council appears to have misunderstood Mrs X’s concerns about B’s work and learning adviser when it responded to her complaint. Her concern was that she was not told about a change in adviser at the beginning of 2017. The Council has not provided any evidence of how Mrs X was notified of the change in adviser before her receiving a telephone call two weeks before B’s annual review. This was complicated further when the previous adviser stepped in to provide cover due to absence. These arrangements were poorly communicated to Mrs X and caused confusion about who was supporting B.
45. The Council delayed in telling Mrs X of its decision to maintain B’s EHC plan. It then took five months to issue a revised final plan following the annual review. While the code does not set a timescale for amending a plan following an annual review, it should be done “without delay.” The Council did delay, and this was fault. The delay caused anxiety for Mrs X about whether the Council would name the current provision for another year, or whether she would need to appeal to the tribunal if it failed to do so. As the final plan was not issued until nearly the end of the academic year this also created worry about transition plans for B should the Council not name the college for a third year.

Agreed action

46. In response to my enquiries, the Council suggested it reimburse £600 of Mrs X’s legal fees in recognition of her concerns about the clarity, style and timeliness of its communication. This figure is higher than the financial remedy the Ombudsman would normally recommend for Mrs X’s time and trouble in making the complaint, and anxiety and frustration caused by the Council. It is therefore an acceptable remedy for the injustice cause by the Council’s faults. The Council will make this payment within four weeks of this decision.
47. Within four weeks of this decision, the Council will also:
• Apologise to Mrs X for the injustice caused by the faults identified.
• Remind officers of the importance of responding promptly to communication from parents and their representatives.
• Ensure decision letters following the post-maintained education panel are clear that placements are based on need, not affordability.
• Ensure it has a process for notifying families when officers assigned to their case change.
• Remind officers overseeing annual reviews of the need to issue a decision in writing within four weeks of the review confirming if the Council will maintain, amend or cease to maintain a plan. Officers should also be reminded of the timescales in the code as set out in paragraph 16 of this decision.

Back to top

Final decision

48. I uphold parts b) to g) of Mrs X’s complaint. Mrs X has been caused an injustice by the actions of the Council and it has agreed to take action to remedy that injustice.

Back to top

Investigator's decision on behalf of the Ombudsman