Summary: Ms X complained the Council delayed reviewing and amending her daughter, F’s Education, Health and Care (EHC) Plan in preparation for her transition to post-16 education. The Council was at fault. It failed to review and issue an amended EHC Plan in line with the law and guidance for transition to post-16 education. It meant F was without an educational placement and an up to date EHC Plan for the start of the academic year. The Council agreed to pay Ms X £300 for F’s benefit to recognise the distress and uncertainty caused to her. It also agreed to pay Ms X £100 to remedy the distress and time and trouble caused to her. The Council will also review its transition to post-16 education procedures.

The complaint

1. Ms X complained on behalf of her daughter, F. Ms X complained the Council delayed reviewing and amending F’s Education, Health and Care (EHC) Plan in preparation for her transition to post-16 education. Ms X said the delay meant F was without a named education provision at the start of the academic year in September 2019 which caused her distress, uncertainty and a loss of educational opportunity.
2. Ms X also complained the Council failed to ensure provision, namely specialised computer software was in place in line with F’s EHC Plan during an exam she sat in June 2019. Ms X said this put F at a disadvantage and subsequently meant she did not attain the expected grade.

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What I have investigated

3. I have investigated element 1 of Ms X’s complaint. I have not investigated element 2 for the reasons explained in paragraph 44.

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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. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
6. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
7. 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)
8. 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

9. I spoke to Ms X about her complaint.
10. I considered the Council’s response to my enquiry letter.
11. Ms X and the Council had an opportunity to comment on my draft decision. I considered comments before I made a final decision.

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What I found

Education, Health and Care Plan (EHC Plan)

12. Children with complex needs may require an Education, Health and Care Plan EHC Plan), which details the support they must receive in school.
13. An EHC Plan is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care.
14. Councils are responsible for making sure all the arrangements named in the EHC Plan are put in place.
15. Councils have a legal duty to ensure the special educational provision in section F of an EHC Plan is delivered from the date they issue a final EHC Plan. This duty is non-delegable.
16. Once the Council completes the EHC Plan it has a legal duty to deliver the educational and social care provision set out in the EHC Plan. The local health care provider will have the duty to deliver the health care provision.
17. The Ombudsman cannot investigate the Council’s decision whether to conduct an assessment, and the content of the EHC Plan. These are appealable to the Special Educational Needs and Disability Tribunal (SEND). SEND is a tribunal that considers special educational needs.
18. 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.

Annual Reviews

19. Councils must review EHC Plans at least every 12 months.
20. Councils must decide whether to maintain the EHC Plan in its current form, amend it, or cease to maintain it within four weeks of the review meeting. The Council should issue the final EHC Plan or decide not to amend the EHC Plan at all as soon as practicable and within eight weeks of the date it sent the plan to the parents/young person with the proposed amendments.
21. Decisions to amend or cease a plan can be appealed to the Tribunal.

Post 16 Transition

22. If the young person is moving from secondary school to a post-16 institution, the Council must review and amend the young person’s EHC Plan before 31 March in the same year that the young person plans to move.
23. The SEND code of practice says EHC Plans ‘must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education, to allow for planning and, where necessary, commissioning support and provision at the new institution’.

What happened

24. F has a disability and learning difficulties and lives with her mother, Ms X. F has an EHC Plan and attended a mainstream secondary school. F was due to transition to post-16 education in September 2019.
25. In April 2019, Ms X contacted the Council about the arrangements for F’s transition to post-16 education. Ms X expressed frustration at the lack of contact and support from the Council regarding F’s post-16 placement. Ms X said the Council had still not amended F’s EHC Plan following the annual review in September 2018 which included details of F’s preferred post-16 placement choices. She said she was unclear what the Council was doing regarding post-16 placement consultation. Ms X told the Council a review of F’s EHC Plan was due to take place at the School in May 2019 and invited it to attend.
26. In April and May 2019 the Council began consulting with prospective placements for F at colleges and sixth forms. F’s first choice of placement said it could not meet her needs. Ms X told the Council she did not want F to go to two of the colleges it had consulted with. The Council said it provided Ms X with a list of further education colleges for her to identify a placement based on F’s interests.
27. Records show that due to communication issues the Council was not aware of the date and time of the May review meeting and therefore did not attend. A transition review meeting was held in June 2019 where the Council met with Ms X. At this meeting the Council told Ms X that the School’s sixth form where she already attended had made F an offer. This offer was provisional and based on the outcome of F’s exams.
28. In June 2019 Ms X complained to the Council. Ms X complained the Council had failed to review and amend F’s EHC Plan in preparation for her transition to post-16 education. Ms X said if the Council continued to delay amending the EHC Plan she would regard it as frustrating her right of appeal to the SEND tribunal.
29. The Council responded to Ms X in June 2019. The Council said a new EHCP coordinator was allocated to F in February 2019 and they had realised F’s annual review was outstanding. The Council said when it had documents from the meeting in June 2019 it would amend F’s EHC Plan without delay. The Council said the reason why Ms X did not receive an initial consultation letter for post-16 was because F was placed in the school year below her chronological age. The Council said F’s first and only choice of placement could not meet her needs and it had not received a list of other preferences. It said as the school had offered a place at its sixth form the placement name in F’s EHC Plan did not need amending.
30. In August 2019 F received her exam results which were below the requirements for a place at the school’s sixth form. Therefore, the school withdrew its provisional offer of a place at its sixth form. Ms X contacted the Council about the issue around the specialised computer software which she said contributed to F’s grades. The Council told Ms X to raise the issue with the school. Records show the school told Ms X it would apply for a marking review of two of F’s exams.
31. The Council wrote to Ms X in August 2019 and said based on F’s annual review in May 2019 it intended to amend her EHC Plan. The Council said it would send Ms X a copy of the amended plan within the next 6 weeks. The Council sent Ms X a copy of the amended EHC Plan
32. At the start of September 2019 Ms X asked the Council to escalate her complaint to stage 2. She said the Council’s failure to review F’s EHC Plan as required meant she was without an educational placement for the start of the academic year. Ms X said she had found it difficult to identify a placement for F as the review was late and establishments were closed during the summer holidays.
33. F started at college A in mid-September. The college sent the Council a notification to inform it F was now on roll with it. Ms X was unhappy with the college as it was too far away from home and asked the Council to assist consulting with a further two sixth form colleges she had identified. Following notification of F’s place at college A, the Council sent Ms X a copy of the amended EHC Plan, naming college A in it.
34. The Council wrote to Ms X in October 2019 and said the two sixth form colleges were unable to meet F’s needs. It offered to assist with transport for F to travel to college A.
35. The Council responded to Ms X at stage 2 in October 2019. It said it did not amend F’s EHC Plan as it should have done following the annual review in September 2018. The Council said this caused delays in preparing F’s transition to post-16 education. The Council said it could not establish a reason why this happened. The Council said it took steps to rectify the matter once it became aware in February when the new EHCP coordinator took on F’s case.
36. Records show Ms X indicated she was unhappy with the amended EHC Plan however I have seen no evidence she provided the Council with specific reasons why. The Council issued F’s final amended EHC Plan in December 2019. Records show F remains on roll at college A and the next review of her EHC Plan is due in May 2020.
37. Ms X remained unhappy and complained to the Ombudsman.

My findings

38. Records show the Council carried out an annual review of F’s EHC Plan in September 2018. Although it agreed to issue an amended plan following this review, it failed to do so. That was fault and caused a delay in preparing F’s transition to post 16 education. The Council has already accepted and apologised for this.
39. The law says the Council must review and amend a young person’s EHC Plan by the end of March in the year of transfer. F was due to transfer to post 16 education in September 2019 so the Council should have reviewed and amended her EHC Plan by 31 March 2019. It did not do so, and this was fault. This fault caused delay and difficulties in consulting with post-16 placements for F which caused her distress and uncertainty.
40. The law and guidance state the Council should decide whether to amend an EHC Plan within four weeks of the annual review. It should then issue a final plan within eight weeks of issuing the draft amended plan. The annual review of F’s EHC Plan took place in May 2019 however the Council did not issue an amended plan until September 2019 and then did not issue a final plan until December 2019. This was fault. This caused difficulties in consulting with placements, however I have not seen any evidence the lack of an up to date plan itself caused F any injustice once she started at college A.
41. The identified faults caused F distress and uncertainty in her preparation for post-16 education. It also caused Ms X time and trouble in pursuing the matter with the Council. The delays meant F did not have an up to date EHC Plan for the start of the academic year and contributed to difficulties in finding her an educational placement. This would not have been the case had the Council issued an amended EHC Plan and planned for F’s post-16 transition in line with the law and guidance.

Agreed action

42. The Council agreed within one month of the final decision to:
• pay Ms X £300 to recognise the distress and uncertainty caused to F by the Council’s failure properly prepare for their transition to post-16 education. This payment should be used for F’s benefit.
• pay Ms X £100 to recognise the uncertainty caused to her by the identified faults, and for the time and trouble in pursing the matter.
• review its procedures in how it identifies and deals with preparing young people with EHC Plans for transition to post-16 education to ensure they are dealt with in line with the relevant law and statutory guidance.

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Final decision

43. I have completed my investigation. I have found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

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Parts of the complaint that I did not investigate

44. I have not investigated element 2 of Ms X’s complaint. This is because the school have accepted responsibility for a technical error which prevented F from using the specialised computer software during the exam in June 2019. The Ombudsman cannot investigate matters which occur in the school. Ms X should complain to the school about this matter.

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Investigator's decision on behalf of the Ombudsman