Summary: Ms D complained the Council mishandled her daughter’s transition to a college placement. She also says its communication with her was poor and it delayed updating her daughter’s Education, Health and Care plan. We find the Council was at fault as it failed to adhere to statutory timescales when handling Ms D’s daughter’s transition to college. It also delayed updating the Education, Health and Care plan and it failed to provide interim educational provision. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Ms D complained the Council mishandled her daughter’s (Miss E) transition to a college placement. She also says its communication with her was poor and it delayed updating Miss E’s Education, Health and Care (EHC) plan. 
2. Ms D says Miss E missed a whole year of education due to the Council’s failures. She also says the matter has caused distress and upset.

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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. We may investigate a complaint on behalf of someone who cannot authorise someone to act for them. The complaint may be made by someone we consider to be suitable. (Local Government Act 1974, section 26A(2), as amended)
5. 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.
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. 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.
8. 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)

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How I considered this complaint

9. I considered information from Ms D. I made written enquiries of the Council and considered information it sent in response.
10. Ms D 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 statutory guidance

11. A child or young person with special educational needs may have an Education, Health and Care (EHC) plan. This sets out their needs and what arrangements should be made to meet them. The EHC plan is set out in sections. Section F sets out the special educational provision needed by the child or young person.
12. Statutory guidance on special educational needs provision (Special educational needs and disability code of practice: 0-25 years) confirms that councils must review an EHC plan at least once every 12 months. The guidance says that within four weeks of the review meeting, the council must decide whether it will keep the EHC plan as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school.
13. Paragraph 9.194 says where the council proposes to amend an EHC plan, it must send a copy of the existing plan, and a notice providing details of the proposed amendments, to the child’s parent or the young person.
14. Paragraph 9.195 confirms the parent or young person must be given 15 days to comment on the proposed changes. The parent or young person can request the council name a school or institution in the EHC plan.
15. Paragraph 9.196 says that after receiving any representations form the child’s parent or the young person, if the council decides to continue to amend the EHC plan, it must issue the amended plan as quickly as possible and within eight weeks of the original amendment notice.
16. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.
17. For young people moving from secondary school to a post-16 institution or apprenticeship, the review and any amendments to the EHC plan – including specifying the post-16 provision and naming the institution – must be completed by the 31 March in the calendar year of the transfer. 

What happened

18. Miss E is a young adult with an EHC plan. She was attending a school for children and young people with special educational needs. The school held an annual review of her EHC plan on 29 January 2021. It noted she would be transitioning to a college setting and a new placement would start in September/October 2021.
19. The Council consulted with several educational settings in June and July.
20. Ms D contacted the Council at the beginning of September and said she was concerned it had not contacted her about Miss E’s new placement. The Council responded and said three colleges said they could not meet Miss E’s needs. It said it would chase the other college (College C) that had not responded.
21. The Council sent two chasers to College C. College C responded and said it could meet Miss E’s needs, but it did not have any space.
22. The Council wrote to Ms D at the end of the month and said it was considering whether it was necessary to continue to maintain Miss E’s EHC plan. It said it thought a social care pathway would be more suitable. It asked for her views.
23. Ms D emailed the Council and said she was unhappy with how it was handling Miss E’s transition to college. She said it was unacceptable it had suggested no longer maintaining Miss E’s EHC plan. She also said it sent Miss E’s old EHC plan when it consulted with the colleges.
24. The Council met with Ms D to discuss the matter. It agreed to continue to maintain Miss E’s EHC plan. It said it would send further consultations to College C and another setting (College D). It also approved a social care package for 10 hours a week until it sourced a college placement.
25. The Council consulted with College C and College D in January 2022. College C responded and confirmed Miss E could attend from September.
26. Ms D contacted the Council and said she had not heard anything from the case officer about College D. She said College D had been in touch with her directly and confirmed it had a place for Miss E.
27. The Council took Miss E’s case to its preparing for adulthood panel. It agreed that College C was most suitable for Miss E’s needs.
28. The Council issued Miss E’s final EHC plan on 4 August and named College C.
29. Ms D complained to the Council on the same day. She said due to its failures, Miss E had missed a year of education. She also said it delayed updating Miss E’s EHC plan, it did not consult with all colleges as requested and it was difficult to get in contact with the case officer.
30. The Council responded to Ms D’s complaint. It apologised for failing to update Miss E's EHC plan in a timely manner. However, it said this did not impact the consultations as it submitted the annual review paperwork with the consultation pack. It said it consulted with some colleges, but she was also responsible for applying to colleges via their websites.
31. Ms D escalated her complaint to stage two of the Council’s complaints procedure. She said the case officer failed to get in contact with her for five months. She said she wanted it to acknowledge its mishandling of Miss E’s case.
32. Miss E started attending College C in September.
33. The Council issued its final response to Ms D’s complaint. It said College C did not have a place for Miss E until September 2022. It said it could not confirm if contact was made between her and the case officer as there were no records to confirm it. It offered her £250 in recognition of her distress and time and trouble.
34. Ms D remained dissatisfied with the Council’s response and referred her complaint to the Ombudsman.

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Analysis

35. The events in Ms D’s complaint start from January 2021. Ms D did not refer her complaint to us until November 2022 and normally historical issues would be caught out by the restriction in paragraph six of this statement. However, as this was an ongoing matter which was affected by continual delays, I have exercised discretion to look at matters from January 2021 onwards.
36. As Miss E was transitioning to the next stage in her educational career, the Council should have been making any decisions in good time because of the importance of the move. It should have specified the educational setting in her EHC plan by 31 March 2021. The Council failed to meet this deadline which is fault.
37. The statutory guidance also states the Council should have decided within four weeks of the annual review whether it was going to keep the EHC plan as it was, amend it or cease to maintain it. The Council failed to meet this deadline, as it did not write to Miss E or Ms D with its decision within four weeks of the annual review meeting. It did not start consulting with colleges until June 2021 which is nearly five months after the annual review. It also did not send Miss E or Ms D a final updated EHC plan until August 2022. This is a significant delay, which is fault.
38. The Council has acknowledged it was at fault for its communication with Ms D. I agree with the Council’s findings on this point as there is little evidence of substantive updates between the case officer and Ms D.
39. The Council’s faults have caused Miss E a significant injustice. College C said it could meet her needs, but it had no places for a September 2021 start. However, the Council did not consult with it until June 2021. If it had acted without fault and consulted much sooner, it is possible Miss E could have started in September 2021. This did not happen, and Miss E was out of education for a full academic year (September 2021 to July 2022).
40. The Council also failed to maintain Miss E’s EHC plan for the academic year. It had a duty to provide the special educational provision in section F of Miss E’s existing EHC plan. Although it arranged a social care package, it failed to provide any interim educational provision during this time which means Miss E was without the provision she was legally entitled to.
41. The Council’s faults have also caused Ms D a significant injustice. She was inconvenienced by chasing matters up, its failure to communicate with her appropriately caused her frustration and she was left with uncertainty over an extended period about Miss E’s education. The Council’s fault in updating and finalising Miss E’s EHC plan also meant her appeal rights to the SEND Tribunal were significantly delayed.

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Agreed action

42. To address the injustice caused by fault, by 5 June 2023 the Council has agreed to:

• Apologise to Ms D and Miss E.
• Pay Ms D £300.
• Pay Ms D £3,600 for the loss of Miss E’s educational provision (calculated at £400 per month) from September 2021 to July 2022. We would suggest Ms D uses this payment for Miss E’s educational benefit.

43. By 3 July 2023 the Council will:

• Issue written reminders to relevant staff to ensure they are aware of the statutory timescales following an annual review and that an EHC plan must be reviewed in sufficient time prior to a child or young person moving between key phases of education.

44. The Council should provide us with evidence it has complied with the above actions.

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Final decision

45. There was fault by the Council, which caused Ms D and Miss E an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman