Summary: The complainant, Mrs X, complains the Council has failed to amend her daughter’s Education, Health and Care plan, failed to secure an educational placement for her daughter and failed to respond to her emails and phone calls. We find fault by the Council. We make several recommendations to address the injustice caused by these faults.

The complaint

1. The complainant, Mrs X, complains that the Council has:
• Failed to amend her daughter’s Education, Health and Care (EHC) plan from June 2022.
• Failed to secure an educational placement for her daughter since September 2022
• Failed to respond to her emails or phone calls and continues to do so.
2. Mrs X said this has had a significant impact on her daughter and has caused her ongoing stress as she said the Council continue to delay matters.

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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. 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.
5. 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

6. I spoke with Mrs X about her complaint. I considered all of the information provided by Mrs X and the Council.
7. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Education, Health and Care plans

8. 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 tribunal can do this.
9. The Special Educational Needs and Disability (SEND) Code of Practice is the statutory guidance which states:
• councils must review EHC Plans at least every year. The review considers if the current EHC Plan is appropriate and whether any changes are needed, including any changes to the education placement.
• within four weeks of the review meeting, a council must decide whether to keep, cease or amend the EHC Plan and must notify the parent. If amendments are needed, the council must start the amendment process without delay.
• the council must send the current EHC Plan and a notice setting out proposed amendments and give the parent at least 15 calendar days to comment. It must issue an amended plan as quickly as possible and within eight weeks of the original amendment notice.
10. 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.
11. Councils are responsible for arranging full-time education for permanently excluded pupils, and for other pupils who because of illness or other reasons would not receive suitable education without such provision. This applies to all children of compulsory school age.
12. A person ceases to be of compulsory school age at the end of the day which is the school leaving date for any calendar year:

• If he attains the age of 16 after that date but before the beginning of the following school year.

Participation of Young People in Education, Employment or Training statutory guidance for council’s

13. Councils have broad duties to encourage, enable and assist young people to participate in education or training, specifically these are:

• To secure sufficient suitable education and training provision for all young people in their area who are over compulsory school age but under 19 or aged 19 to 25 and for whom an Education, Health and Care plan is maintained. This is a duty under the Education Act 1996. To fulfil this, councils need to have a strategic overview of the provision available in their area and to identify and resolve gaps in provision.
• To make available to all young people aged 13-19 and to those between 20 and 25 with special educational needs and disabilities, support that will encourage, enable or assist them to participate in education or training under section 68 of the Education and Skills Act 2008.
• Tracking young people’s participation is a key element of these duties. Councils are required to collect information about young people so that those who are not participating or are not in education, employment, or training (NEET), can be identified and given support to re-engage. Robust tracking also provides the Council with information that will help to ensure that suitable education and training provision is available and that resources can be targeted effectively.
• Council’s must make arrangements- i.e., maintain a tracking system- to identify 16 and 17 year olds who are not participating in education or training. Putting in place robust arrangements to identify young people who are not engaged in education or training or who have left provision enables councils to offer support as soon as possible.

What did happen?

14. This section sets out the key events in this case and is not intended to be a detailed chronology.
15. Mrs X’s daughter, Ms Z, has an EHC plan. An annual review was held in June 2022. It stated the plan required amendments as Ms Z had been offered a place at college A, starting in September 2022. Mrs X advised the Council of this and asked when the amendments would be made.
16. The Council sent Mrs X a letter in September 2022 confirming its decision to amend the EHC plan.
17. Mrs X contacted the Council in October 2022. She said it had refused Ms Z’s transport to college and stated Ms Z was not in education, employment or training (NEET) and had not been for three weeks.
18. Mrs X told the Council in the same month that college A had been trying to contact it to arrange an urgent review of Ms Z’s EHC plan.
19. A review was held in November 2022. The Council agreed to send out consultations to further settings.
20. Mrs X told the Council she had found a suitable college, college C, for Ms Z and asked when it could contact it. This college choice was also supported by an occupational therapist who stated Ms Z needed a smaller, more focused nurturing environment.
21. In December 2022, Mrs X asked the Council to contact her. She said Ms Z had been out of education for three months and her wellbeing was suffering. She said she had made numerous calls to the Council but said she had no responses.
22. The Council consulted with college C in the same month.
23. The case was taken to the Council’s panel in January 2023 and it was recommended the Council discuss independent packages of support and other providers that might be able to support onward education.
24. The Council sent Mrs X the proposed amended EHC plan in the same month. It said Ms Z required 1:1 or small group-based teaching.
25. Mrs X told the Council she was waiting for a decision from its panel. But the Council said it was waiting for information back from colleges it had consulted to ensure it had explored and scrutinised all options.
26. The Council contacted college C. It asked it for a detailed description of its offer and for the full breakdown fees. The Council also consulted with another college.
27. The case was taken to the Council’s panel in March 2023. It said college B could offer Ms Z a place from September 2023. It was agreed that up until then, Ms Z would attend college C, and this was included in the finalised EHC plan.
28. In the same month, due to concerns for Ms Z, the Council’s panel decided she would attend college C up until July 2024. It agreed to amend the EHC plan to reflect this.

Analysis

29. An annual review was held in June 2022 which stated Ms Z’s EHC plan required amendments. Mrs X made the Council aware of this on the same day. But the Council did not decide to amend the EHC plan letter until September and issued the proposed amended EHC plan in January 2023. This is fault. The guidance states within four weeks of the review meeting, a council must decide whether to keep, cease or amend the plan and must notify the parents. If amendments are needed, the guidance states councils must start the amendment process without delay. This fault caused uncertainty to Ms Z, and she went without an up to date EHC plan.
30. Mrs X told the Council in October 2022 that Ms Z was NEET and had been for three weeks. The Participation of Young People guidance states the Council has a duty to identify and resolve gaps in provision for young people who are over compulsory school age. From the evidence seen, Mrs X told the Council in October 2022 that the college had been trying to contact it to arrange an urgent review. The Council contacted Mrs X in the same month to arrange the review and it was held in November 2022. It was agreed that the Council would consult with further settings, and this began in December 2022. A placement was secured in March 2023. The Council followed the correct process, and I therefore do not find fault with its actions.
31. The guidance also states councils are required to collect information about young people so that those who are NEET can be identified and given support to re-engage. Whilst the Council did consult with colleges, I have seen no evidence to suggest the Council did provide support to Ms Z during this time. This is fault. This caused her significant stress.
32. Mrs X said the Council failed to respond to her calls and emails. From the evidence seen, the Council’s response times, and communication fell below our expected standards of service. This is fault. This caused Mrs X unnecessary stress, time and trouble.

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Agreed action

33. To remedy the injustice caused by fault, within one month of my final decision the Council has agreed to:
• Apologise to Mrs X and Ms Z for the faults identified in this statement.
• Pay Mrs X £200 for her time and trouble in pursuing this complaint.
• Pay Ms Z £400 to acknowledge the distress caused to her by the faults identified in this statement.
34. Within two months of my final decision the Council should evidence how it collects information about young people so that those who are not participating or are NEET, can be identified and given support to re-engage.
35. The Council should also issue written reminders to relevant staff to ensure they are aware of:
• The Council’s duty to decide on whether to keep, cease or amend the EHC plan within four weeks of the review meeting, and notify parents in writing.
• The Council’s duty to start the amendment process without delay.
36. The Council should provide us with evidence it has complied with the above actions.

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Final decision

37. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The above agreed actions provide a suitable remedy for the injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman