Summary: Mr B complains on behalf of his adult son, Mr F, about the Council’s handling of his Education Health and Care Plan. We have found fault which has caused injustice. The Council has agreed to apologise and make a payment to acknowledge the distress caused.

The complaint

1. Mr B complains on behalf of his adult son, Mr F, about the Council’s handling of his Education Health and Care Plan (EHC plan). In particular he complains the Council failed to:
1. Issue an amended EHC plan after the February 2020 annual review.
2. Provide a children’s social worker when Mr F was under 18.
3. Plan the transition to adult services.
4. Consult with Mr F or his parents when it approached an adult social care provider in October 2020, which amounted to disability discrimination.
5. Consult with them about its decision to cease the EHC plan in July 2021 and wrote saying Mr F had requested his EHC plan to finish when he is non-verbal, which amounted to disability discrimination.
6. Confirm if it was maintaining the EHC plan in 2021/22.
7. Hold an annual review within 12 months of the February 2020 review.
8. Gather information before the July 2021 annual review or issue papers two weeks in advance.
9. Carry out a mental capacity assessment of Mr F prior to the review.
10. Ensure the parents and young person were consulted as part of the July 2021 annual review and did not take Mr F’s wishes and feelings into account.
11. Issue a final EHC plan within eight weeks of the draft in 2021.
2. Mr B says this has caused a loss of provision, uncertainty and distress for the whole family.

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What I have investigated

3. In this decision statement I have considered all of Mr B’s complaint apart from parts b) and c). I explain why at the end of the statement.

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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 may investigate matters coming to our attention during an investigation if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
7. 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)
8. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
9. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
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.

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How I considered this complaint

11. I spoke to Mr B about his complaint and considered the information he sent, the Council’s response to my enquiries and:
• The Children and Families Act 2014
• The Special Educational Needs and Disabilities Regulations 2014
• The Special Educational Needs and Disability Code of Practice, January 2015 ("the Code")
12. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Special educational needs

13. A child with special educational needs (SEN) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
14. Parents have a right of appeal to the SEND Tribunal if they disagree with the SEN provision, the school named in their child's plan, or the fact that no school or other provider is named.
15. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.

Annual reviews

16. The Code says councils must review a child’s EHC plan every 12 months. The first review must be held within 12 months of the date when the EHC plan was issued. They must then be held within 12 months of any previous review.
17. These annual reviews consider whether the provision remains appropriate and whether progress is being made towards the targets in the EHC plan. Reviews must be undertaken in partnership with the child and their parent and must take account of their views wishes and feelings.
18. Councils are responsible for ensuring annual reviews take place, but they ask schools to convene them. Schools must invite a local authority SEN officer and a local authority social care representative, and circulate any information, at least two weeks before the meeting. Following the review, the school must send a report of the meeting to everyone invited within two weeks. The report must set out recommendations on any amendments required to the EHC plan. (SEND Code of Practice 2015, paragraph 9.176)
19. The Code says that within four weeks of the review, the council must decide whether it proposes to keep the EHC plan as it is, amend it, or cease to maintain the plan. It must then tell the child's parent and the school its decision.
20. If the plan needs to be amended, the council should start the process without delay. It must send the child's parent a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. The parent must be given at least 15 calendar days to comment on the proposed changes. The final plan must be issued within eight weeks of the amendment notice.
21. Although the Code does not give any deadline for the issuing of an amendment notice, a recent high court decision says any draft amended plan must be issued within four weeks of the annual review. The final amended plan must be issued within 12 weeks of the annual review. (L & Ors, R (On the Application Of) v Devon County Council [2022] EWHC 493 (Admin))

Ceasing an EHC plan

22. A council may cease to maintain an EHC plan only if it is no longer responsible for the child or young person or if it determines that it is no longer necessary for the plan to be maintained. It must have considered (usually at an annual review) whether the educational outcomes in an EHC plan have been met before deciding to cease to maintain.
23. Where a council is considering ceasing to maintain an EHC plan the Code says it must inform the child’s parent and consult with them and the school. (SEND Code of Practice 9.205).
24. Following consultation, if the council decides to cease to maintain the EHC plan, it must notify the child's parent, or the young person, and the school. It must also give the child's parent details of their right to appeal this decision to the SEND Tribunal.

Changes to regulations due to the COVID-19 pandemic

25. The Secretary of State issued a notice under the Coronavirus Act 2020 to give councils more flexibility in dealing with EHC plans and provision. It temporarily changed councils’ absolute duty to secure the education provision in an EHC plan to one of using ‘reasonable endeavours’ to do so. This change applied from 1 May to 31 July 2020.
26. The Government also introduced temporary regulations, in force up to 25 September 2020, which allowed for the deadlines for completing EHC needs assessments, carrying out reviews and issuing EHC plans to be relaxed. This applied where it was ‘not reasonably practicable’ or it was impractical to complete the actions within the usual timescale required, for a reason relating to COVID-19. The council had to complete the action ‘as soon as reasonably practicable’.

Complaints procedures

27. The Council has a three stage corporate complaints procedure. At each stage it aims to respond in 10 working days.

Disability Discrimination

28. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions. The Act prohibits direct and indirect discrimination, victimisation and discrimination arising from disability (where a disabled person is treated unfairly because of something connected with their disability and the unfavourable treatment cannot be justified).
29. The Ombudsman cannot decide if an organisation has breached the Equality Act or whether there has been discrimination, as this can only be done by the courts. But we can make decisions about whether an organisation has properly taken account of its duties under the Act.

Mental capacity

30. In cases where a young person over 16 lacks mental capacity to make a particular decision, the Code says that in in most cases, decisions will be taken on their behalf by their parent.
31. If there is doubt about a person’s mental capacity, consideration needs to be given as to whether the person lacks capacity. The Code says this does not necessarily mean that a person’s mental capacity has to be reassessed each time a decision needs to be taken. If there is a reasonable belief that the person lacks the capacity to make a decision, the decision can be made by a parent.

What happened

32. Mr F is a young adult with severe autism and learning disabilities. He is non-verbal and can have challenging behaviour. He lives with his mother, Ms Y, who is his main carer. His father, Mr B, lives separately but is also involved in Mr F’s care. Mr F was attending a special school (“the School”) and had an EHC plan.
33. There was an annual review of Mr F’s EHC plan on 11 February 2020, when Mr F was 16, which Ms Y attended but Mr B did not. At this review it was agreed that Mr F’s EHC plan should be maintained until July 2021 and that Mr F should remain at the School, where he was settled. The note of the review says Mr F did not cope with transition, would be unable to undertake a job and was not currently receiving respite.
34. The Council did not issue a decision letter four weeks later to say whether it intended to amend the EHC plan. On 14 April the Council asked the School for its report of the review. The School sent the report in reply explaining it had not been sent earlier due to an IT problem.
35. The Council did not issue a decision letter or a draft EHC plan, but I note that at this point there was a national COVID-19 lockdown and the Government introduced flexibilities in relation to SEN on 1 May.
36. The Council considered Mr F’s educational provision at its resourcing panel on 30 June. The papers for this say that Ms Y and Mr B wanted Mr F to remain at the School “where there will also be a fully planned transition for Mr F to move to Provider X in July 2021.” At Provider X, Mr F “would be able to access a jointly funded programme with both Education and Social Care when he turns 18; … it is felt by all parties that … a normal college environment would not work for Mr F.” Provider X provides education and social care day opportunities for adults with disabilities including autism.
37. The panel agreed to consult a local college although the reason for this is not set out in the papers. It considered Mr F’s case again on 26 August. It noted that the college had said it could not meet Mr F’s needs. The panel agreed to Mr F continuing at the School “in principle only” and asked officers to ensure all other options had been considered. This was because it considered Mr F’s educational outcomes had been achieved and his needs were for social care support, although this is not what had been agreed at the annual review.
38. An internal email from October 2020 shows that the young adults team intended to start looking for adult care and support which would be in place for Mr F after July 2021. Mr B has made a separate complaint about the transition to adult social care services.
39. The panel agreed to fund the School for one term (i.e. until December 2020) on 6 October. It is unclear why it did not agree to fund the whole academic year, given that Mr F had an EHC plan naming the School. The panel asked officers to consult other colleges and noted that Mr F’s support would be funded by adult social care after July 2021, when Mr F would be 18. The Council consulted with Provider X which said it could provide support to Mr F for three days a week.
40. On 9 December the panel approved funding for Mr F to remain at the School until July 2021. I have seen no evidence of any communication with Mr B or Ms Y about the panel’s decision or consultation with them about whether to cease to maintain the EHC plan when Mr F turned 18.
41. In January 2021 Ms Y contacted the Council’s adult social care services concerned about what was to happen after Mr F left the School in July 2021.
42. Mr F’s annual review was due by 11 February 2021 but it was not held, nor had any amended draft or final EHC plan been issued since his 2020 review.
43. Ms Y contacted the Council again in April 2021. She asked for there to be a review of Mr F’s EHC plan to determine if he would be remaining at school for the academic year 2021/22.
44. There was an adult care and support assessment in May 2021 which said Mr F would be moving to social care in July 2021, although no support package was yet in place.
45. Following this the Council sent Ms Y and Mr B a “cease to maintain” an EHC plan notice on 2 June 2021. The letter said: “I understand Mr F is intending to leave education or intends to take up employment”. Ms Y or Mr B had the right to appeal to the Tribunal about this decision. They did not do so but Mr B told the Council he disagreed with it, though received no response.

2021 annual review

46. The Council contacted the School on 16 June asking about Mr F’s annual review, which should have been held in February 2021. The School replied that it would hold it on 25 June to enable two weeks’ notice to be given.
47. Mr B emailed the Council. He said they would not attend the review as no updated EHC plan had been issued since the February 2020 review, nor had they been consulted on the cease to maintain notice. They had received a letter saying Mr F was intending to leave education but this was incorrect. Mr B said that, as the Council had not followed the statutory process, Mr F could not “be removed from education as named in part I of his EHCP plan for school year 2021/2022.” Mr B said the situation was causing distress for the whole family and asked the Council to clarify its intentions for Mr F’s education.
48. The review was re-arranged for 6 July 2021. The Council advised the School it should go ahead even if Mr B or Ms Y did not attend. The Council told Mr B he could feed in his views after the meeting. An amended draft EHC plan was provided for discussion at the meeting.
49. Mr B and Ms Y attended the start of the review but they left the meeting as the Council had not followed the statutory process, no final EHC plan had been issued following the February 2020 review and they refused to discuss the amended draft. They wanted the review to be postponed until after a final EHC plan had been issued and they also requested updated educational psychology and social care assessments. Mr B had told the Council the EHC plan should not be finalised until after the care and support package had been agreed.
50. Following the review, the Council decided to withdraw the cease to maintain notice but it has accepted that it failed to inform Ms Y or Mr B of this. The Council did not issue a decision letter four weeks later or a draft EHC plan.

Education provision 2021/22

51. The Council asked the School to provide details of how much Mr F’s education would cost in 2021/22. It also consulted with a college and Provider X which replied that it could not determine whether it could meet Mr F’s needs without him visiting and being assessed, but that Mr B had not considered the environment to be suitable. The college again said it could not meet Mr F’s needs. No social care package was in place.
52. The Council’s panel then agreed to fund another term for Mr F at the School (until December 2021). The panel’s papers say the School had not convened the 2021 annual review in time and the EHC plan had not been updated since February 2020 as “no logged decision had been generated by our system for action.” The panel asked for an early annual review to be held during the autumn term.
53. The School sent the Council an updated EHC plan on 16 August. The Council issued the draft EHC plan on 19 August. Mr B and Ms Y responded they did not agree to it as all educational outcomes had been removed. They wanted Mr F to remain in education until July 2022.
54. The Council emailed Mr B on 6 October confirming that Mr F could remain at the School until July 2022. In response to my enquiries the Council confirmed the 2021/22 academic year was funded from its education high needs budget.
55. The Council tried to arrange another annual review in November but Mr B said this should not happen until the final EHC plan had been issued. The Council issued the final EHC plan on 4 November naming the School. Mr B and Ms Y appealed to the Tribunal.

Mr B’s complaint

56. Mr B complained to the Council on 6 October and 19 October 2021 about the EHC plan process. He said the Council had:
• failed to issue a final EHC plan after the February 2020 annual review.
• discriminated against Mr F by issuing a letter wrongly saying he intended to leave education.
• consulted with Provider X without consent from Mr B or Ms Y which was discriminatory against Mr F as his views were not considered.
• failed to hold a new annual review in February 2021.
• held a review even though there was no finalised EHC plan to discuss, papers had not been circulated two weeks in advance and Mr F’s parents were not present so it did not take Mr F’s views into account.
• failed to assess Mr F’s capacity prior to the annual review.
57. The Council responded on 4 November, it:
• Apologised Mr B’s views were not sought before it consulted with Provider X in October 2020 but parental consent was not required to carry out its statutory duty.
• Did not consider its cease to maintain letter discriminated against Mr F.
• Apologised it had not issued a response after it had received the February 2020 annual review paperwork from the School or issued an official proposed amended EHC plan prior to the July 2021 annual review.
• Had a duty to hold the annual review in 2021 even though Mr B did not want it to go ahead.
58. Mr B remained dissatisfied and there was further correspondence and a meeting with him about the complaint on 3 December 2021. There was then further correspondence.
59. The Council issued a stage two investigation report on 10 March 2022. This upheld Mr B’s complaint in relation to not issuing an EHC plan in 2020 and issuing a cease to maintain letter. The Council offered to pay Mr B £300 to acknowledge the distress that had been caused. The report said Mr B should complain to the School about its failure to circulate papers two weeks before the July 2021 review. It also noted that Mr B had said he would not engage further with officers until the complaints had been resolved.
60. The Council’s final complaint response of 4 April agreed with the findings of the stage two investigation. It had not found evidence of discrimination by the Council.

My findings

Handling of the EHC plan

61. There was fault by the Council in its handling of Mr F’s EHC plan after the February 2020 annual review.
62. The Council did not issue a decision letter within four weeks of the review or send Mr B and Ms Y an amendment notice. This was because it had not received the papers from the School and because of workload pressures caused by COVID-19. However, it is not in line with the Code so is fault.
63. Once the Council received the annual review report on 14 April 2020 it should have issued a decision letter and (if necessary) an amended EHC plan as soon as possible, given the final EHC plan was due by 5 May. It did not formally issue the draft plan until 19 August 2021 and the final in November 2021. Whilst there was some flexibility in the timescales for issuing plans until September 2020 due to COVID-19, I consider this is too long a delay and find fault.
64. The next annual review was due by 11 February 2021 but did not take place. This is fault. It is the Council’s, not the School’s, responsibility to ensure annual reviews are carried out.

Cease to maintain EHC plan process

65. The Council failed to consult Mr B and Ms Y on its plan to cease to maintain Mr F’s EHC plan. This is fault.
66. The Council says it reviewed the annual review paperwork and concluded that Mr F’s outcomes no longer required education or training, his needs and outcomes could be achieved through a package of support from adult social care, and planning was underway to provide this. But that review was in February 2020 and it did not conclude that Mr F had met his educational outcomes but that he should remain in education for another year. There was no review in 2021 prior to the Council issuing the cease to maintain notice, so the Council had no formal decision that Mr F’s educational outcomes had been met when it issued the cease to maintain notice.
67. Even if this was not required, the Code requires consultation on a plan to cease to maintain prior to issuing the notice and this was not done.
68. I cannot decide if the Council breached the Equality Act 2010 or was discriminatory as only a court can determine this. Whilst I have found the Council failed to consult, I have seen no evidence this failure was caused by Mr F’s disability. The Council used it standard working in the cease to maintain letter of 2 June 2021, which is not fault, though the letter could have been more carefully worded.
69. The Council has already apologised to Mr B and Ms Y for not advising them that it had withdrawn the notice in July 2021.

July 2021 annual review

70. When the review was held in July 2021 there had been no formal draft or final EHC plan issued since the previous review in February 2020. I appreciate Mr B’s and Ms Y’s frustration here and that they felt there was no EHC plan to review so they left the meeting. I have carefully considered whether it was fault to hold the review meeting without Mr B and Ms Y. The Code says reviews must be in partnership with parents, but my view is it is possible for meetings to go ahead without parents as long as their input is sought. On balance therefore, I find no fault in holding the meeting without them.
71. However, the papers were not circulated two weeks before the meeting, which is fault. As I have said in paragraph 18, Councils are responsible for annual reviews, even though they ask schools to convene them on their behalf. So whilst it was the School’s role to issue papers it is the Council’s responsibility.
72. In addition, in the absence of a new EHC plan, the review should have considered progress made against the existing final EHC plan (i.e. the one issued prior to February 2020) rather than an informal amended draft. So, I find fault in the July 2021 annual review.
73. The Council should then have issued a decision about maintaining or amending Mr F’s plan four weeks later, allowing Mr B and Ms Y a right of appeal. It did not do so, which is fault.
74. Mr B did not want the final EHC plan to be issued until after the adult care package had been agreed, but this is not a requirement of the Code. I consider the Council would have done better to issue a draft and final EHC plan and delay the review meeting until after that, given that the annual review was already delayed.

Mr F’s capacity to make decisions

75. The Council did not assess Mr F’s mental capacity before it held the annual review in 2021 when he was 18. I do not find fault. The Code says a person’s mental capacity does not have to be reassessed each time a decision needs to be taken. If there is a reasonable belief that the person lacks the capacity to make a decision then the decision can be made by a parent.

Consultation with Provider X

76. Mr B complains about the way the Council consulted with Provider X in October 2020. Councils have a duty to consult with educational providers about draft EHC plans and do not require consent from parents to do so.
77. However, in October 2020 there was no draft EHC plan to consult on. Mr F’s EHC plan named the School. The Council appears to have consulted the college and Provider X to determine whether they would be able to provide education to Mr F instead of the School. It should not have done so until after it had issued a draft EHC plan to Ms Y and Mr B. I therefore find it was fault to consult Provider X.

Complaint handling

78. The Council’s complaint procedure says it aims to respond at each stage within 10 working days. This means its stage one response of 4 November was two weeks late.
79. Mr B requested escalation to stage two on 16 November 2021. Whilst the Council met with him to discuss his complaint on 3 December, it did not issue its stage two investigation report until 10 March 2022, after he had approached the Ombudsman. However, I have seen that there continued to be correspondence with Mr B during this period so I do not find there was drift or delay by the Council.

Did the fault cause injustice?

80. The lack of a decision letter or draft amended EHC plan after the February 2020 annual review meant Ms Y and Mr B missed an opportunity to appeal to the SEND Tribunal. Although the February 2020 annual review agreed Mr F should remain at school for another year, I note that they were unhappy with the amended EHC plan that was eventually issued in 2021 and appealed it. So, I cannot be certain they would not have wished to appeal one issued earlier. The lack of a final EHC plan also caused problems later when trying to hold the delayed 2021 annual review.
81. The lack of consultation on whether to cease to maintain the EHC plan and the hasty consultation with Provider X in October 2020 contributed to confusion about what the plans were for Mr F’s education. I consider it also left Ms Y and Mr B feeling excluded and mistrustful of the Council.
82. The delay to the annual review in 2021 meant it was unclear whether Mr F’s educational outcomes had been achieved and contributed to the uncertainty about what the plans were for him.
83. Going ahead with the July 2021 review exacerbated the mistrust Mr B and Ms Y felt for the Council. There was a further missed opportunity to appeal in August 2021 as the decision letter was not issued.
84. The faults caused significant distress to Ms Y and Mr B during spring and summer 2021 as they did not know what provision was being put in place for Mr F from July or September 2021. This situation was exacerbated by a delay in the adult care and support assessment and lack of respite, which I have considered under a separate complaint. Mr F has complex needs and requires two to one support all day. I therefore consider that any uncertainty about what support he would be receiving would cause more distress than if he had lesser needs.
85. I do not consider that injustice was caused to Mr F as he continued to attend the School after September 2021 and did not miss out on education.
86. When we have evidence of fault causing injustice, we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on.
87. The Ombudsman’s guidance on remedies says that a remedy payment for distress is often a moderate sum of between £100 and £300. In cases where the distress was severe or prolonged, up to £1,000 may be justified.

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Agreed action

88. Within a month of my final decision, the Council has agreed to apologise to Mr B and Ms Y for the distress caused by fault and pay them £500 each to acknowledge this.

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Final decision

89. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Parts of the complaint that I did not investigate

90. I have not considered parts b) and c) of the complaint in this decision. This is because I have also investigated a related complaint by Mr B about the adult care and support assessment and transition to adult care services. I have considered those issues in that investigation.

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Investigator's decision on behalf of the Ombudsman