Summary: Ms P complains on behalf of her son (Young Person Z) who has special educational needs. The Council maintains an Education and Health Care Plan for Young Person Z. Ms P alleges the Council has failed to provide a suitable education placement for Young Person Z and has offered him inadequate education in the meantime. She also says the Council has not maintained good contact with her and that an officer of the Council caused Young Person Z distress by telling him he may be breaking the law for not engaging in home tuition. Ms P is also dissatisfied with the way the Council has managed the review process relating to Young Person Z’s needs. We have not identified any fault by the Council with respect to alternative provision arrangements, the review process or how it communicated with Ms P over the various issues.

The complaint

1. The complainant, who I refer to as Ms P, is complaining on behalf of her son (Young Person Z) who has special educational needs (SEN). Bromley London Borough Council (the Council) maintains an Education and Health Care Plan (EHCP) for Young Person Z which sets out what specialist support and other provision he is entitled to receive. In summary, Ms P alleges the following:
1. The Council failed to provide provision as set out in Young Person Z’s EHCP.
2. The Council failed to support both her and Young Person Z in finding a suitable educational placement to continue his education. It is further alleged the Council failed to provide suitable education to Young Person Z pending it identifying a suitable alternative education placement for him to attend.
3. The Council failed to carry out an annual review of Young Person Z’s EHCP.
4. The Council’s EHCP Coordinator has failed to maintain good contact with her about securing alternative provision for Young Person Z.
5. The Council’s EHCP Coordinator threatened Young Person Z for not engaging with home tuition, despite this being unsuitable for his needs.
2. In summary, Ms P says Young Person Z has been out of education since October 2021, without any alternative provision being made available for him. She adds the Council’s failings have meant a loss of education for Young Person Z, as well as adversely impacting his personal development, self-esteem and confidence. Moreover, Ms P says she has had to personally try to meet her son’s needs at home which has been a source of stress and anxiety. As a desired outcome, Ms P wants the Council to assign her a new EHCP coordinator in order to ensure better progress over Young Person Z’s EHCP outcomes.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 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. 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).

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How I considered this complaint

6. I have read Ms P’s complaint to the Council and Ombudsman. I have also had regard to the responses of the Council, supporting documents and applicable legislation and statutory guidance. I invited Ms P, Young Person Z and the Council to comment on my preliminary view of the complaint. All comments and evidence received were fully considered before was final decision was made.

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My findings

Background and legislative framework

Council’s duty to provide alternative education

7. The Council has a legal duty to make arrangements and to provide full-time and suitable education at school or otherwise than at school, as specified by Section 19 of the Education Act 1996. This states:

“Each local authority shall make arrangements for the provision of suitable education at school or otherwise than at school. This applies to children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.”

8. The provision should generally be full time unless it is not in the child’s best interests because of their physical or mental health.

Education and Health Care Plan

9. An EHCP is for children and young people aged up to 25 who need more support than is available through special educational needs support. An EHCP identifies educational and health needs and sets out the support to meet those needs (including, but not limited to, providing a specialist educational setting).
10. Councils are not required to provide exactly what parents request, but they should be able to explain clearly why they consider a suggested provision meets the assessed needs of a child. They must also take steps to ensure the view of the child is properly recorded and considered when planning provision for them. In cases where a council has been unable to find a suitable school placement within the time frame, they have a duty to provide appropriate alternative education. We can look at delay in issuing an EHCP, including whether the Council has failed to make purposeful efforts to identify a school place.
11. When an EHCP is maintained for a child or young person, the local authority has a legal duty to secure the specified special educational provision in an EHCP for them (Section 42 of the Children and Families Act 2014). The Courts have said this duty to arrange provision is owed personally to the child or young person and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135).
12. Local authorities must ensure that children, young people and parents are provided with the information, advice and support necessary to enable them to participate in discussions and decisions about their support.
13. The First-tier Tribunal (Special Educational Needs and Disability) (the SEND Tribunal) is responsible for handling appeals against local authority decisions about special educational needs. This includes decisions about the named educational placement, or the provision the child or young person should receive.

EHCP annual review

14. The Annual Review of an EHCP considers whether the provision remains appropriate and whether progress is being made towards identified targets.
15. The ‘Special Educational Needs and Disability Code of Practice: 0 to 25 years’ (the Code) is statutory guidance. This means local authorities must follow the Code when making decisions about children with EHCPs. The Code says: “9.169 The first review must be held within 12 months of the date when the EHC plan was issued, and then within 12 months of any previous review, and the local authority’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 (and within 12 months of the date of issue of the EHC plan or previous review”.
16. In practice the review covers not just the annual review meeting, but the council’s decision (to maintain, cease or amend the Plan) following the meeting. Each of these three decisions carries a right of appeal to the SEND Tribunal.
17. In accordance with the Code, the following requirements apply to review meetings where a child or young person does not attend a school or other institution:
1. The child’s parent or the young person, a local authority SEN officer, a health service representative and a local authority social care representative must be invited and given at least two weeks’ notice of the date of the meeting. Other individuals relevant to the review should also be invited, including youth offending teams and job coaches where relevant, and any other person whose attendance the local authority considers appropriate.
2. The local authority must seek advice and information about the child or young person prior to the meeting from all parties invited and send any advice and information gathered to all those invited at least two weeks before the meeting.

Education other than at school (EOTAS)

18. EOTAS is educational provision (commonly used in EHCPs) that meets the needs of children and young people who, for whatever reason, are unable to attend a mainstream or special school. This is usually relevant to children with SEN.

Chronology of events

19. In April 2021, the Council issued a final EHCP (version one) for Young Person Z. This identified that Young Person Z should receive ‘education other than at school’ (EOTAS) and an alternative education placement was secured for him. In this statement, I refer to the placement as ‘Alternative Placement A’.
20. In September 2021, Young Person Z started to attend his educational placement at Alternative Placement A.
21. In October 2021, Ms P wrote to the Council to outline a number of concerns relating to Young Person Z’s attendance at Alternative Placement A. The concerns primarily related to Young Person Z’s engagement with other students and how incidents had been handled by staff working at the education setting. Ms P therefore requested an emergency placement review as she did not consider Alternative Placement A was suitable for meeting Young Person Z’s needs. In the meantime, Ms P said Young Person Z would no longer attend.
22. Moreover, Ms P said that she would like Young Person Z to return to his previous school (which I refer to in this statement as ‘School G’) and enrol in sixth form.
23. Days later, the Council commenced a consultation process with School G to understand whether it could meet Young Person Z’s needs. The Council also consulted with a number of other alternative education providers.
24. In early November 2021, School G responded to the Council that it did not feel it would be able to meet Young Person Z’s needs. It said that its sixth form is a full-time setting with a strong academic focus. School G felt this would be unsuitable for Young Person Z and that he would unlikely be able to cope with the demands.
25. The Council notified Ms P about the consultation outcome. In response, Ms P advised that Young Person Z had expressed an interest in attending another placement (which I will refer to as ‘College H’). The Council immediately emailed College H to identify whether it would be able to meet Young Person Z’s needs.
26. The Council subsequently received consultation responses from the other education placements (referred to a Paragraph 18). The responses outlined that neither placement consulted felt able to meet Young Person Z’s needs.
27. In mid-November 2021, the Council consulted another education placement. It also contacted private tuition service to make arrangements for Young Person Z to receive some home tuition while he was out of education. Following a response from the tuition service, the Council agreed to engage its services.
28. In early December 2021, the tutor visited Ms P and Young Person Z at the family home. It was reported that Young Person Z became hostile and refused the notion of home tuition. The tutor left Young Person Z some work to complete, however this was reported as not being completed. Further, it is reported by the tutor that Young Person Z explained he is incredibly busy in the run up to Christmas and far too busy to complete assignments. The case notes show the tutor was unsure why Young Person Z was busy during school term time.
29. Days later, the Council’s EHCP Coordinator received a telephone call and Young Person Z requested to speak to her. The notes of the conversation records that Young Person Z expressed concern about the length of time taken to secure him a placement. He also said that home tuition was not suitable for him and given how busy he is, he queried why this could not be postponed until January 2022. The Council’s records note that the EHCP Coordinator explained that legally, Young Person Z should be in education. Moreover, it was explained that it was worthwhile trying to establish a good relationship with the tutor. The EHCP Coordinator reports that Young Person Z terminated the telephone call. Ms P has her own perception of the telephone call and I will explore this in further detail later in this statement.
30. In mid-December 2021, the Council received a response from the education placement consulted (see Paragraph 22). It explained it would not be able to meet Young Person Z’s needs. The Council promptly notified Ms P and agreed to make arrangements for home tuition in January 2022, as requested by Young Person Z.
31. In January 2022, the tutor visited Young Person Z at home. It was reported that there had been issues with work being completed and Young Person Z being uncooperative. The tutor also suggested meeting Young Person Z at a local library for tuition. However, the tutor said this would need to happen on a gradual basis and once she was satisfied Young Person Z would cooperate with the work.
32. The same month, the Council agreed to consult with another alternative education placement (which I refer to as ‘Alternative Placement B’).
33. In late January 2022, the tutor emailed the Council reporting that Young Person Z had declined to join a virtual meeting her the week before which was planned to support his learning. The tutor reported that she contacted Ms P to discuss the issue, though Young Person Z was heard on the telephone call making his reluctance clear that he did not wish to engage. The tutor told the Council that it seemed unlikely to be able to meet with Young Person Z in a local library due to his rude and uncooperative behaviour.
34. Further, the Council received a response from Alternative Placement B advising that it would be willing to offer Young Person Z a place. It therefore agreed to be named on Young Person Z’s EHCP as the identified placement for a start date in September 2022.
35. In early February 2022, the Council notified Ms P that Alternative Placement B had agreed to offer Young Person Z a place. The EHCP Coordinator explained that she would confirm the start date in due course, though hoped this could be arranged for after the half term break (week commencing 20 February 2022).
36. The Council subsequently issued an amended EHCP (version 2) which named Alternative Placement B as Young Person Z’s school setting. The amended plan was sent to Ms P by email.
37. In late February 2022, the Council received an email from the Head of College at Alternative Placement B. It was reported to the Council that Ms P had become increasingly rude and abusive to staff at the educational setting. It did not consider that Young Person Z would benefit from a place as a result. For these reasons, Alternative Placement B gave notice to the Council that it was withdrawing its offer for Young Person Z to attend.
38. Later, Ms P emailed the Council that Alternative Placement B was unsuitable for Young Person Z’s needs. She explained that Young Person Z was unable to cope with the long distance from home to the school and that this caused him extreme anxiety. Further, Ms P said she had an alternative placement in mind which was closer and more manageable. The same day, the Council requested details of the alternative provider which Ms P had referenced so it could make enquiries.
39. The Council subsequently consulted with the alternative provider (which I refer to as ‘College B’). Ms P advised that she would like to arrange a visit before agreeing to them provide Young Person Z provision. Moreover, Ms P requested a review of Young Person Z’s EHCP to ensure it reflects his current needs and remains up to date.
40. The Council’s EHCP Coordinator promptly began a review consultation process with parties who had been involved with Young Person Z to better understand his needs. This included medical professionals, his previous education placements and the tutor who worked with Young Person Z for a short period of time.
41. In March 2022, the Council wrote to Ms P to invite her to attend an EHCP annual review meeting. Ms P responded and accepted the invitation. The review meeting was scheduled for late April 2022. At the same time, Ms P reported that she and Young Person Z had visited College B. She reported that Young Person Z had said College B was not right for him. Ms P therefore requested other places of education be explored by the Council.
42. Importantly, at this point Young Person Z turned 18 years old. The law says that people are adults when they get to 18 years of age. Moreover, Young Person Z has mental capacity to make his own choices and for his information to be kept confidential absent informed consent.
43. In April 2022, Ms P emailed the Council with regard to the adequacy of those consulted for the purposes of carrying out the annual review. She said a number of medical professionals had not been consulted which were needed to better understand Young Person Z’s educational and health needs. Moreover, Ms P was dissatisfied that the Council had issued an amended plan (version 2) which named Alternative Placement B because Young Person Z did not formally attend. Ms P said she had not been updated as to the amended plan and that this constituted a breach of the Code. For these reasons, Ms P requested a postponement of the annual review meeting, pending resolution of these issues.
44. The Council’s EHCP Coordinator requested the recent medical information referenced by Ms P once she returned from annual leave.
45. Days later, Ms P telephoned the Council’s EHCP Coordinator. Ms P wanted to know why her earlier email (see Paragraph 43) which had been sent five days earlier had not been responded to. In summary, Ms P repeated that she was dissatisfied that the Council had not consulted with professionals most recently involved with Young Person Z. She also expressed dissatisfaction that the Council had “falsified information” on Young Person Z’s amended EHCP (version two) that his named placement was Alternative Placement B. Ms P explained the Council’s actions were having an adverse impact on Young Person Z.
46. The Council then emailed Ms P. It said that the EHCP Coordinator had requested updated professional advice in good time and for this to be shared ahead of the meeting. However, it acknowledged that medical advice was received later than anticipated. The Council agreed to send Ms P all advice received with a view of holding an annual review of the EHCP in May 2022. Separately, the Council informed Ms P that because Young Person Z was now 18 years old, his attendance at the meeting was required. The Council also requested Young Person Z’s contact details because absent informed consent from him, it should not be sharing personal information with others, including Ms P.
47. In addition, the Council shared the updated medical information with Ms P for the purposes of providing advance copy ahead of the EHCP annual review meeting.
48. In June 2020, Ms P arranged a visit to an educational placement which had previously advised the Council it would be unable to meet Young Person Z’s needs. Following further discussion, the placement agreed to offer Young Person Z a place to commence in September 2022. However, Ms P wanted the Council to consult with the placement and seek further professional input before holding the annual review meeting. The Council agreed to seek the input requested by Ms P and therefore postponed the review meeting until late June 2022.

My assessment

Failure to provide education provision

49. The Council has a legal duty meet identified EHCP provision. The Council issued an EHCP (version one) for Young Person Z in April 2021 which made provision for him to attend Alternative Placement A from September 2021. Young Person Z attended the provision, but the placement quickly broke down and neither Ms P nor Young Person Z considered it was suitable for his needs. Therefore, Ms P withdrew Young Person Z from Alternative Placement A in October 2021 which meant the Council needed to identify an alternative placement.
50. In addition, the Council has a legal duty to provide alternative education provision under s19 of the Education Act 1996 when a child is out of school. Therefore, my role is to assess two primary issues, these being:
1. Whether the Council has used best endeavors to secure an alternative placement for Young Person Z following his withdrawal from Alternative Placement A for lack of suitability.
2. Whether, in the interim, the Council has sought to provide Young Person Z with a suitable education through alternative means.

a) Best endeavours

51. On the first point, I am unlikely to find fault where the Council has done all it reasonably could to find a school place for Young Person Z, but has been unsuccessful. I have reviewed extensive evidence in this case. Following Young Person Z’s withdrawal from Alternative Placement A, the Council immediately undertook a consultation process with education providers to inform whether these could meet Young Person Z’s needs. The evidence shows the Council consulted with eight different providers over time. Further, the Council acted in accordance with Ms P’s wishes to consult with her preferred providers.
52. In most cases, those consulted did not feel able to meet Young Person Z’s needs. In response, the Council consulted further prospective placements. Eventually, Alternative Placement B did feel it could meet Young Person Z’s needs and therefore made an offer for him to attend and to be named in his EHCP. However, following dialogue with Ms P and Alternative Placement B’s perception that Ms P was aggressive and hostile, it later withdrew its offer.
53. Importantly, the Council issued an amended final EHCP (version two) in February 2022 which named Alternative Placement B as Young Person Z’s education setting. This decision carries a right of appeal to the SEND Tribunal and therefore raises questions as to our jurisdiction to investigate any loss of education since the date the amended EHCP was issued. This is because Ms P’s complaint concerns matters which could be challenged through the appeals process. In particular, the naming of a suitable placement is central to the issue of Young Person Z being out of education. The law says we cannot investigate a loss of education, or the suitability of a placement, in circumstances where the complainant could reasonably appeal the placement.
54. However, I do not consider it reasonable for Ms P to have appealed because the offer was promptly withdrawn by Alterative Placement B and efforts were subsequently made by the Council to identify another educational setting for Young Person Z to attend. Further, the Council is currently undertaking an annual review of Young Person Z’s EHCP, the conclusion of which will carry a further right of appeal to the SEND Tribunal. I believe it is reasonable for Ms P to wait until this process concludes and until Young Person Z’s needs have been fully considered by the Council. I am therefore exercising my discretion to investigate Ms P’s complaint even though she had a right of appeal in February 2022. The restriction I describe at Paragraph 5 does not apply in this case.
55. The Council later consulted College B in accordance with Ms P’s wishes. A date was arranged for Ms P and Young Person Z to attend the school. However, Young Person Z said he did not feel the school was suitable for him. Ms P subsequently requested an EHCP review to better inform Young Person Z’s needs and a suitable education placement. The Council agreed to the request and began consulting professionals in order to hold an EHCP annual review.
56. I have reviewed a number of records held by the education placements which have worked with Young Person Z. On a number of occasions, Young Person Z has made comments that he does not see the point in education and that he has no intention of gaining qualifications, working and living independently in the future. It must be noted that Young Person Z has a number of complex SEN and it may be the case that his experience of education has undermined his confidence. However, Young Person Z’s views and reluctance to engage with education represents a significant challenge for those working with him and the Council meeting its legal duty to ensure he receives a suitable education.
57. I am satisfied the Council has done all it reasonably could to identify a suitable educational placement for Young Person Z. In my view, the EHCP Coordinator has promptly consulted with a wide range of placements and has demonstrated good administrative practice in working to ensure Young Person Z receives an education. It should also be noted the Council is not obliged to provide exactly what parents request. While the views of parents and the child or young person are relevant, if the Council believes any offered provision meets the assessed needs of a child, it is entitled to name the placement in the EHCP. Any disagreement can then be appealed to the SEND Tribunal for further review.
58. In the case of Alternative Placement B, the offer was withdrawn due to the Head of College’s perception of abuse and hostility by Ms P which she considered would undermine Young Person Z’s engagement with the school. In the case of College B, Young Person Z said he did not feel it was right for him. Importantly, this is not the appropriate test to apply with respect to securing an EHCP placement. If the placement considers it could meet Young Person Z’s needs identified in his EHCP, this would have allowed the Council to have secured the provision. To an extent, the Council’s duty to secure provision at College B and the opportunity for further assessment was overridden by Young Person Z rejecting the placement without professional input. To be clear, it is the role of the Council to determine a suitable placement which gives effect to its legal duties, though in consultation with the child or young person and their parents.
59. I do not propose to uphold Ms P’s complaint the Council failed to meet Young Person Z’s EHCP provision. Ms P withdrew Young Person Z from his identified EHCP placement and the Council has used reasonable endeavours to secure an alternative placement for him. There have been opportunities for Young Person Z to attend alternative educational placements, but these have collapsed for reasons outside the Council’s control. I have not identified evidence of fault.

b) Duty to provide alternative education

60. As to the second issue of suitable interim education, the Council promptly organised home tuition for Young Person Z pending it securing an EHCP placement. I have spoken to Ms P about this subject and taken the views of the home tutor into consideration. My understanding is there a mutual acceptance Young Person Z would not engage in home tuition. I do take Ms P’s point that Young Person Z viewed home tuition at his home as interference with a place he associates with safety. However, adjustments to the process were offered, such as holding tuition in a local library and by virtual means. I must also take into account that Young Person Z has rejected proposals of education because he does not intend to work or live independently. The work set for him has not been completed and the evidence I have reviewed suggests he has become abusive to those working with him. In these circumstances, the Council’s scope for working with Young Person Z is extremely limited.
61. In my view, the Council has sought to make prompt arrangements for Young Person Z to receive a suitable education in accordance with its statutory duty. The evidence demonstrates this was ineffective due to a lack of cooperation by Young Person Z. I therefore cannot find fault by the Council in these circumstances.

Conduct of EHCP Coordinator

62. During the time Young Person Z was receiving support from a tutor, there was an occasion where both he and the EHCP Coordinator held a telephone conversation. Ms P alleges that the EHCP Coordinator told Young Person Z that he would be “breaking the law” if he did not engage in tuition. I therefore requested a written statement from the EHCP Coordinator to appropriately take account of her views. The EHCP Coordinator said that she explained the procedure for securing an alternative placement, with specific reference to the legal process of consulting with other providers. She said that Child B repeated the request previously made for tuition to be put on hold and for it to start in January 2022 due to the Christmas break. The EHCP Coordinator said that she explained that legally Young Person Z is entitled to an education and should be receiving this. Following this, it was reported that Young Person Z terminated the telephone call. The EHCP Coordinator refutes the allegation made that she told Young Person Z he would be breaking the law.
63. Firstly, I am not sure why Young Person Z was too busy to receive tuition. At the time, he was of compulsory school age and should have been receiving a suitable education. With respect to Ms P’s specific allegation, there is a clear conflict of accounts concerning what was said. I was not present for the discussion and there are limitations on what I can realistically investigate. To make a judgement on this issue would be take Young Person Z’s word over the ECHP Coordinator’s word, or vice versa and absent supporting evidence. It would not be appropriate for me to do so in both circumstances. That said, I have not identified any fault by the Council with respect to the conduct of the EHCP Coordinator.
64. Separately, Ms P alleges the EHCP Coordinator has failed to maintain good contact with her and has not been active in securing Young Person Z an alternative EHCP placement. I have reviewed the correspondence between the EHCP Coordinator, Ms P and other internal and external colleagues. I appreciate that Ms P does not have oversight over the EHCP Coordinator’s daily responsibilities and correspondence. However, the evidence does not support Ms P. The EHCP Coordinator has consulted in a timely manner, chased needed information and adapted her approach following proposals made by Ms P. I recognise that Ms P refers to the EHCP Coordinator not responding to her email on return from annual leave and being unable to answer questions during a telephone call. I found Ms P’s emails, on occasions, to be litigious and hostile which has meant the EHCP Coordinator has needed to take advice before responding. I believe this approach was appropriate in the circumstances.
65. In my view, the EHCP Coordinator has been prompt, responsive and collaborative in addressing Ms P’s concerns and requests. I consider the EHCP Coordinator has demonstrated good administrative practice in her attempts to provide Young Person Z a suitable education. I have not identified any evidence of fault.

Amended EHCP and review

66. The Council issued an EHCP (version one) in April 2021. The Code says that for children and young people over 5 years old, a review of the EHCP must be completed within 12 months of the date of the first issue of the EHCP and thereafter 12 months from the last review. Therefore, Young Person Z’s EHCP should have been reviewed by April 2022 at the latest.
67. In February 2022, the Council issued an amended EHCP (version two) for Young Person Z. Importantly, this amended version was not the product of an annual review. The exclusive purpose of the EHCP was to amend the identified placement from Alternative Placement A to Alternative Placement B following the latter agreeing to be named in Young Person Z’s EHCP. The amended EHCP (version two) was shared with Ms P. This would also have allowed Ms P to exercise her right of appeal to the SEND Tribunal if she was dissatisfied the identified placement.
68. Before the Council shared the amended EHCP (version two) however, the Council emailed Ms P to inform her that Alternative Placement B had agreed for Young Person Z to attend. The Council also said it would change the named placement on Young Person Z’s EHCP and send this to Ms P in due course. Ms P responded as follows:

“Thank you for the news regarding Alternative Placement B. Child B will be visiting Alternative Placement B this Friday morning so is a great opportunity for him to meet everyone. I will chat with staff then regarding a possible start date.”

69. In her complaint, Ms P has advised the Council has falsified information by naming Alternative Placement B in Young Person Z’s EHCP (version two). However, Ms P was fully aware of the Council’s proposed course of action and appeared committed that Young Person Z would attend. Ms P’s response to the Council appears to fundamentally undermine her allegation. In my view, the Council’s actions were well intentioned and only meant to benefit Young Person Z with the support of Ms P. In any event, the offer for Young Person Z to attend Alternative Placement B was withdrawn and the Council agreed to review the EHCP to inform Young Person Z’s needs and a suitable placement going forward. I have not identified fault by the Council and in any event, any alleged fault cannot be said to have caused Young Person Z an injustice.
70. In accordance with Ms P’s request, the Council sought to hold an annual review of Young Person Z’s EHCP (version 2) in April 2022. This would have conformed to the requirements of the Code. However, professional input arrived later than expected and the Council was only able to share professional advice with Ms P one week before the scheduled EHCP review meeting. The Code says this information should be provided to all parties at least two weeks before the review meeting. Further, Ms P raised a number of concerns relating to the professionals consulted by the Council and requested the review meeting be postponed.
71. I appreciate the role Ms P has undertaken in supporting Young Person Z with his educational needs. However, this raises serious questions relating to data protection and patient confidentiality. Young Person Z was, at the time, 18 years old and had (and continues to have) mental capacity. Absent the informed consent of Young Person Z, he needed to be involved in the decision-making process relating to the review of his EHCP. This is because Ms P was requesting Young Person Z’s medical information and he, like other adults with capacity, has the right to patient confidentiality. The Council therefore requested contact details for Young Person Z to discuss the review.
72. Following Ms P’s request for further consultation and professional input, the Council later provided her copies of Young Person Z’s medical information. As I understand from Ms P, she had full authority from Young Person Z to receive this information from the Council. I note from Ms P that Young Person Z has since written to the Council in May 2022 authorising Ms P to act as his representative.
73. The Council rescheduled the annual review meeting for May 2022. However, Ms P subsequently consulted another educational placement (Alternative Placement C) which had previously informed the Council it would not be able to meet his needs. Following a visit by Ms P and Young Person Z in early June 2022, Alternative Placement C has confirmed it would like to offer Young Person Z a place to commence in September 2022. As a result, Ms P has requested the Council conduct further consultations relating to the anticipated placement, along with other professional input. As a result, the Council has agreed to postpone the EHCP annual review until late June 2022.
74. Ultimately, the annual review of Young Person Z’s EHCP (version two) was meant to be reviewed by no later than April 2022. On the face of therefore, there has been a delay of two months. However, there are extenuating circumstances which justify the Council taking a pragmatic approach and agreeing to postpone the review at Ms P’s request. Ms P has requested additional professional input and it is right the Council contact these professionals and give them notice to attend the annual review meeting. The Code states that reviews must be undertaken in partnership with the child and their parent or the young person, and must take account of their views, wishes and feelings. I consider the delay has been to give effect to the wishes of both Young Person Z and Ms P and so I do not find fault by the Council.

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Final decision

75. The complaint is not upheld. My overall impression from my dealings with Ms P is that she cares deeply for her son and has taken any and all action to promote his well-being and best interests. However, I am satisfied the Council has done all it reasonably could to identify a suitable alternative placement for Young Person Z and to offer him the opportunity to engage in temporary provision pending a placement being identified. The Council’s EHCP Coordinator has demonstrated good administrative practice in attempting to secure a suitable placement for Young Person Z and I have seen no evidence of fault on her part.

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Investigator's decision on behalf of the Ombudsman