Summary: the Council delayed issuing a decision that it would not amend Mr F’s Education, Health and Care Plan following an annual review meeting in March 2019. This amounts to fault that caused injustice in the form of frustration and avoidable time and trouble. The Council has already apologised for this but will now make a payment of £100 to further recognise the injustice this caused. There is no fault in regard to provision made under the Plan. The other parts of the complaint are out of jurisdiction as Mr F’s mother appealed to the Special Educational Needs and Disability Tribunal about them on his behalf.

The complaint

1. The complainant, whom I shall refer to as Mr F, complains about the Council’s handling of his special educational needs provision under an Education, Health and Care Plan since March 2019. Specifically he says it failed to:

1. issue a decision that it would not amend his Education, Health and Care Plan following an annual review in March 2019 until October 2019 which resulted in a delay in finding out that an agreement to provide additional travel training would not be made;
2. issue a decision following a further annual review in November 2019 and was therefore denied the opportunity to appeal against what was effectively a refusal to amend the Plan after discussion in November;
3. wrote a letter in March 2020 advising it was the Council’s intention to cease the EHC Plan without having followed the proper process for this. In doing so the Council denied a right of appeal against this;
4. failed to make provision of psychotherapy or psychological support detailed in the Plan from at least March 2019; and
5. repeatedly denied an annual review meeting took place in November 2019 which caused Mr F unnecessary and avoidable distress and legal fees to argue this point in his appeal to the Special Educational Needs and Disability Tribunal in 2020 and left him with no other way to try to require the Council to make the amendments discussed in that review.

2. This complaint was submitted by Mr F’s mother on his behalf and with his written consent to do so. I shall refer to her as Ms G.

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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. 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) We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
5. Certain SEN decisions have a right of appeal to the Special Educational Needs and Disability Tribunal (SEND) also known as the First Tier Tribunal. For the reasons given in paragraph 4 we would not normally investigate a complaint when someone can appeal to a tribunal, unless we consider it would be unreasonable to expect the person to appeal and where the parent or young person has appealed to the Tribunal we have no discretion to investigate.
6. A child with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the SEND tribunal can do this.

7. The Council is 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.

8. 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

9. I considered the information Mr F provided with his complaint and discussed the complaint with Ms G. I made written enquiries of the Council and considered all the information before reaching a draft decision on the complaint.
10. 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.
11. Ms G and the Council had an opportunity to comment on my draft decision. I considered the comments received before making a final decision.

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What I found

What should have happened

12. The annual review of an EHC Plan considers whether the provision remains appropriate and whether progress is being made towards the targets in the Plan. The statutory guidance in the Special Educational Needs Code of Practice (the Code) says the council’s decision following the review meeting must be notified to the child’s parent or the young person within four weeks of the review meeting.
13. In practice the review process includes the annual review meeting and the Council’s decision following the meeting. Parents have a right of appeal to the SEND Tribunal if they disagree with the decision to maintain, cease or amend the Plan at the end of that process.
14. The Code confirms that councils are required to plan a smooth transition into higher education before ceasing to maintain a young person’s EHC Plan. Councils are no longer responsible for maintaining an EHC Plan if the young person has started higher education/university.
15. Where a council decides to amend the Plan following a review it must notify the parent of this decision within four weeks of the review meeting.
16. The Code states that where a Council is maintaining an EHC Plan for a child it must secure the provision that is specified in the Plan.
17. Section B of an EHC Plan details the young person’s special educational needs, Section F details the special educational provision that is required to meet the young person’s special educational need and Section I names the school or other institution the young person will attend.

What happened

Background

18. Mr F is now 21 years old. He began attending university in Autumn 2020. Prior to this he attended a further education college between September 2018 and July 2020 where he had an EHC Plan in place.
19. Mr F’s most recent EHC Plan confirms he had a diagnosis of Autistic Spectrum Disorder, mixed depression and anxiety disorder as well as Attention Deficit Hyperactivity Disorder. It also stated he had special educational needs in relation to cognition and learning, communication and interaction, his social, emotional and mental difficulties and sensory/physical needs.
20. His EHC Plan was ceased in August 2020 when the plan for him to go to university was finalised.
21. His EHC Plan dated June 2018 detailed provision he should receive in relation to psychological support when he began attending college from September 2018 as:
• inclusion in the complex caseload of the college’s independent psychologists and support from the School’s behaviour team;;
• regular psychological/psychotherapeutic input to be available in accordance with a place by the onsite psychologist; and
• support from the college’s Behaviour Team.

It also included:

• access to 1:1 mentoring via a student support officer to support his emotional development and well-being, as is appropriate to his needs and to encourage his specific interests outside the school curriculum; and
• access to 1:1 mobility/travel training appropriate to needs.

Ms G confirms the college agreed it could make this provision.

The annual review in March 2019

22. The Council has provided documents which confirm that an annual review of Mr F’s EHC Plan took place in March 2019. The notes of the discussion at this review confirm that Ms G asked for further train travel training for Mr F and pointed out that Mr F’s EHC plan confirmed that he could be allocated extra hours to develop his mobility skills. In relation to action to be taken following the review meeting this included that more hours for travel would be requested. The report of the meeting states however that there are to be no significant changes to section F of Mr F’s EHC Plan. Ms G argues the travel training was already provided for in the EHC plan by the inclusion of “access to 1:1 mobility/travel training appropriate to needs” in Section F of the existing EHC plan and argues that the additional time required to provide this was also already provided for by the requirement to ensure that an extended school day was available. Ms G says she therefore assumed the travel training would simply commence as it was already provided for.
23. The Council accepts that it did not write to Ms G about the outcome of the March annual review until October 2019 when she complained about this. The Council apologised to Ms G for this in October 2019.
24. With regard to Ms G’s request for train travel training this request was not included in the review report as this stated there were no significant changes to the provision detailed in the EHC plan. This meant that train travel training was not included in any proposed amendments to the EHC plan. When the Council wrote to Ms G with the annual review decision in October it advised her in the letter that she could discuss any concerns she had with the caseworker or appeal to the SEND Tribunal. The letter provided details of the Tribunal. In her response to my draft decision Ms G argues there was no need to do this as the provision was already accounted for in the existing EHC plan. Ms G says she raised this issue directly with the college who agreed to put it in place.
25. Ms G later complained to this office and we asked the Council to provide a further response to issues that Ms G raised. The Council provided this response in early March 2020 stating:
• the reason no amendments were required to the EHC Plan was that Mr F was achieving identified outcomes and making good progress towards achieving the qualifications he needed to progress to a higher education placement. The letter went on to say that if Mr F did complete educational level 3 he would move to Level 4 which constitutes study at higher education level and this would mean the Council would not be able to maintain the EHC plan. It later confirmed it therefore had to consider ceasing the EHC Plan; and
• in relation to the travel training the Council said that generic travel training had been provided by Mr F’s college in his first year in the college. It confirmed it was liaising with the college about whether any further travel training would be available to Mr F as this was included as part of the curriculum it would provide to Mr F. The Council confirmed that in the paperwork the college provided following the annual review in March it did not identify that any changes were needed to the provision so it had not proposed any amendments to the EHC Plan.
26. The Council confirms that at the time of the annual review in March 2019 Mr F hoped to go to university from September 2020. During the autumn term 2019 Mr F was not offered a definite university place from September 2020 but was placed on a reserve list for a place. As a result of this Ms G asked the Council to agree that Mr F could remain at the college for a third year (from September 2020 to summer 2021) while he tried to improve his qualification to help with any subsequent university application. This was eventually agreed in June 2020.

The annual review in November 2019

27. The Council said that it was unaware that a further annual review was arranged by Mr F’s college in November 2019 as a result of Mr F not being offered a definite university place from September 2020. The Council confirms the college did not send the Council any paperwork about this until June 2020. The Council argues there was some professional confusion over the status of the November meeting with one of its social workers describing the meeting as a “professionals meeting” rather than an annual review of the EHC Plan. The college however did appear to consider it was an annual review meeting. Ms G argues that the school was entirely clear that it was an annual review as were other professionals and it was only the Council’s SEN representative (who did not attend the meeting) that was unaware the meeting was the annual review.
28. A further meeting took place in January 2020. This meeting discussed whether Mr F could remain at college for a further year and possible activities that Mr F could undertake during that additional year before hopefully going to university in Autumn 2021. Ms G says this was not an annual review meeting and she was unaware there was any paperwork of this meeting until I issued the draft decision on this complaint. Ms G is very clear that the November 2019 meeting was the annual review.

Ms G’s appeal to the SEND Tribunal

29. Ms G appealed to the SEND tribunal following the Council’s letter to her in March 2020 in which it stated that it would have to cease Mr F’s EHC Plan if he satisfactorily completed his Level 3 qualifications as after this his next step would be study at higher education level which requires the EHC Plan to be ceased. The Order issued by the Tribunal in May 2020 confirms that Ms G submitted the appeal on the grounds of:
• the Council’s intention to cease to maintain the EHC Plan; and
• the Council’s failure to undertake amendments to the Plan following an annual review in November and the failure to tell her of her right of appeal against that decision.
30. Ms G argues that in May 2020 the Tribunal decided that the Tribunal had nothing to decide in May 2020. This is correct: the Tribunal was of the view that the Council’s letter in March did not appear to be a decision to cease to maintain the statement. The Tribunal therefore invited Ms G to withdraw her appeal or explain why she considered there was something else for the Tribunal to decide.
31. The Tribunal’s Order dated May 2020 also confirms that Ms G considered the November meeting to have been an annual review of the EHC Plan but that the Council considered the most recent annual review had been that in March 2019.
32. Ms G employed a solicitor to make her case to the Tribunal as to why the Tribunal process should continue. Her solicitor duly argued in a letter to the Tribunal in June 2020 that:
• the appeal was about the Council’s intention to cease the EHC plan and dissatisfaction with sections B (educational needs) and F (educational provision) of the plan;
• Mr F wanted to add another ground to the appeal which was to challenge the provision named in the plan (Section I);
• the Council had failed to amend the EHC plan following the November 2019 annual review and this included issues of dispute in section B and F of the plan; and
• there were therefore still issues for the Tribunal to address: the failure to make amendments following the November 2019 review; and the need to identify a placement from September 2020.
33. In July 2020, having considered Ms G’s solicitor’s request, the Tribunal agreed the appeal would continue and it was listed for a telephone case management hearing in August.
34. In August Ms G made an application to the Tribunal for costs. At the telephone case management hearing Mr F’s representative told the Tribunal that Mr F had been offered a university place for September 2020. The decision of the Tribunal confirmed that if Mr F took up this place the appeal would end. The listing for a final hearing remained for September with confirmation that the grounds of the appeal related to sections B, F and I of the EHC plan. The Tribunal considered the request for costs but refused it.

Failure to make provision from March 2019

35. There is brief reference to psychological support to Mr F in the annual review notes of March 2019 which state that the psychologist was not directly supporting Mr F but was supporting Mr F's mentor (presumably in her support of Mr F). No concerns were raised in the meeting about this including from Ms G who is noted to be “…happy with the support that Mr F has been receiving and particularly seen a positive impact of Mr F’s personal tutor”.
36. The notes of the November 2019 meeting confirm that Ms G raised issues around Mr F needing more help with independence and organisational skills and this appears to have been raised in connection with issues that his mentor could work on with him. There is reference to positive involvement by the mentor. The notes state that the psychologist was no longer working with Mr F. There was discussion about speech and language therapy provision which was detailed in the EHC Plan but the report notes that Mr F did not want this provision. A men’s group is referred to as being something to which Mr F had been invited to attend and where he could get help developing confidence, social skills, relationship and health issues. Agreement was also made for Mr F to access an independent living skills course. It also appears that the college identified one of its staff who could help Mr F with his train travel skills. There is nothing in the notes to confirm that any concern was noted about the ceasing of Mr F’s psychological support.
37. The Council says psychological provision was in place at his previous school before he transferred to college in September 2018. The Council says Mr F was allocated access to psychological support (as detailed in is EHC Plan and outlined in paragraph 21 above), but says this support was reduced over time as Mr F no longer needed it. The Council also points out that the men’s group was able to provide such support and Mr F was available for his to attend if he wanted to.

Was the Council at fault and did any fault cause injustice?

The appeal to the Tribunal and our jurisdiction

38. As I have outlined above, we cannot consider matters that have been put before the SEND Tribunal. As Ms G appealed to the Tribunal about what she understood to be the Council’s decision to cease to maintain Mr F’s EHC Plan and the failure to make amendments following the March 2019 annual review I cannot therefore consider these matters further.
39. Ms G argues that her appeal did not include the failure to make provision for additional travel training as it did not require an amendment to do so as the matter already formed part of the Plan. Mr F’s solicitor confirmed in June that the appeal included issues about the provision in sections B and F of the Plan but I am unclear whether this included the provision related to travel training. I am also unclear whether, at the time she appealed, Ms G believed she needed to appeal to the Tribunal about the failure to make an amendment to provide further travel training. What does seem clear is that she certainly understood later that changes to the travel training provision were already covered in the EHC Plan and so no amendment was required to put such changes in place. She clearly stated in her response to my draft decision that she discussed the issue of the train travel training with the college who agreed to put it in place and this seems to confirm that it was not a matter for the Tribunal but a matter she resolved directly with the college. Ms G argues that she was unaware whether the increase had been put in place because the Council did not write to her with the outcome of the annual review in March 2019 until Autumn 2019. I do not accept this as she was in a position to discuss the provision of travel training with the college before the Autumn and so was in a position to know whether or not the change had been made regardless of the outcome of the annual review. Whether the matter was put to the Tribunal or resolved directly with the college, we have no jurisdiction to look at this matter further. This is because we cannot look at matters put before a Tribunal and, as schools and colleges are not themselves bodies in our jurisdiction, we cannot investigate whether the college took action on a matter discussed directly between Ms G and the college.
40. The issue of the status of the November 2019 review meeting and whether this was an annual review or not was also a matter that was put before the Tribunal. This is therefore also a matter that I cannot consider further.
41. The Tribunal considered Ms G’s request for costs. As it did this there are no grounds for me to further consider her request and complaint about this issue.
42. I have not therefore considered whether the Council was at fault in relation to complaints b), c) and e).

Complaint a)

43. The Council has already accepted that it delayed issuing the decision following the annual review in March 2019. It has apologised to Ms G for this already. The Council should have issued the decision following the March annual review within four weeks of the meeting. The delay until October therefore means the Council delayed by around six months before it issued the decision and completed the review process. This amounts to fault and I consider this caused Ms G injustice in the form of avoidable frustration and time and trouble as she had to chase this up and it was only when she submitted her complaint that the decision was issued. It also delayed her right of appeal to the Tribunal over the decision to not amend the Plan. Having said that I note that she did not pursue such an appeal until Spring 2020 even though she was advised of her right of appeal in October.

Complaint d)

44. There is no evidence that the Council failed to make provision detailed in the EHC Plan in relation to psychological support. The Plan does not detail what provision should be made but simply states that Mr F was to be included in the complex caseload of the college’s independent psychologists and that regular psychological/psychotherapeutic input was to be available. I accept the Council’s argument that this provision changed when Mr F began attending college. Based on the information provided by the Council, arrangements were in place to enable Mr F to access such support. The issue was not raised as a problem at the March 2019 annual review so it was not a matter that the Council was asked to address then. It was discussed at the November meeting but the Council did not receive details of the meeting until June 2020 so could not have addressed this in any event until then. But, even if it had, the information suggests the provision was meeting the requirements laid out in the Plan and that Mr F’s need for psychological support from a psychologist was reducing at that time. The wording of the Plan allows for the psychologist to make a decision on this need. There are no grounds for me to conclude there was fault by the Council in relation to this provision.

Agreed action

45. In addition to the apology it has already made the Council will make a payment of £100 to recognise the avoidable frustration and time and trouble caused to Ms G on Mr F’s behalf in having to chase up the outcome of the annual review. In recommending this amount I took account of the fact that although Ms G argues that her right of appeal on the failure to amend the EHC Plan was delayed, she did not pursue this in any event until Spring 2020. So, there were no grounds for me to consider she would definitely have appealed sooner had the decision been issued promptly in April so no justification for me to seek a higher remedy to take this into account. The Council will make this payment within a month of the date of this final decision statement.

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Final decision

46. The Council delayed issuing a decision not to amend Mr F's Education, Health and Care Plan following an annual review meeting in March 2019. This amounts to fault that caused injustice in the form of frustration and avoidable time and trouble. The Council will make a payment of £100 to recognise the injustice this caused in addition to the apology it has already made. The psychological support provided to Mr F at the college met the requirements for this that were detailed in the Plan. The other parts of the complaint are out of our jurisdiction.

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Investigator's decision on behalf of the Ombudsman