Summary: Mrs X complained the Council named a school her son, Mr Y, could not attend on his Education, Health and Care plan and did not recognise the error until two weeks before the end of the term. We found the Council failed to amend Mr Y’s plan in line with the guidance, named a school he could not attend and failed to communicate with Mr Y or Mrs X properly. The Council’s faults caused Mr Y and Mrs X avoidable frustration, uncertainty and distress. The Council will apologise and pay a symbolic amount of £600 to Mr Y and £350 to Mrs X to recognise the injustice caused to them.

The complaint

1. Mrs X complained the Council named a school her son, Mr Y, could not attend on his Education, Health and Care plan and did not recognise the error until two weeks before the end of the term. Mrs X said this caused her and Mr Y distress in trying to organise a new placement at very short notice. Mrs X wanted the director of children’s services to apologise and a financial payment to recognise the distress caused to her and Mr Y.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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)
5. 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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What I have and have not investigated

6. Mrs X’s complaint to us was about matters that occurred in 2022. During my investigation I found that Mrs X’s complaint stemmed from the Council’s actions in 2021. It was not reasonable to expect Mrs X to complain to us earlier as she was unaware of the injustice this would cause until June 2022. As there was continuing injustice stemming from earlier events, I have investigated matters from the end of 2021.

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How I considered this complaint

7. I considered Mrs X complaint and discussed it with her on the phone.
8. I considered the documents the Council sent in response to my enquiries.
9. Mrs X 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

Legislation and Statutory Guidance

10. 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.
11. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance. Within four weeks of an annual review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
12. Where a council proposes to amend an EHC plan, the law says it must send the child’s parent or the young person 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 within four weeks of the annual review meeting. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
13. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
14. 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.
15. Councils should ensure young people aged 19 to 25 are given clear information about what support they can receive, including information about continuing to study in adult or higher education. (SEN Code paragraph 9.154)

What happened

16. Mr Y is an autistic young man. He lives at home with his sibling and parents. Mr Y’s mother, Mrs X, supports Mr Y in his communication with schools, colleges and the Council. Mr Y has an Education, Health and Care (EHC) plan which sets out the provision he needs to meet his special educational needs (SEN). The EHC plan in force for Mr Y in 2021 set out that he “experience[d] significant anxiety in relation to school and other environments and social situations outside the home, resulting in his non-attendance at school”.
17. In 2021 Mr Y was 18 years of age and due to transition from post-16 education to post-19 education. He would turn 19 years old in the first term of the 2022/2023 school year. He was educated by school A which is a special school for students up to the age of 19.
18. School A held a transition meeting in November 2021 and an annual review meeting in December 2021 which the Council and college B attended. College B was a potential placement for Mr Y for the following academic year. School A verbally offered Mr Y a place for the following academic year (2022/2023) as one of the options available to him. Mrs X says both she and Mr Y were very pleased, as he had made excellent progress with school A.
19. Mrs X contacted the Council in May 2022 as she had not heard anything since December. She asked if Mr Y’s place at school A was confirmed. The Council responded and said it was.
20. The Council issued a final amended EHC plan in May 2022 which named school A. The Council sent the plan to school A, Mrs X and Mr Y. The plan said Mr Y found it difficult to cope with change and isolated himself when he was anxious. It said due to Mr Y’s anxiety and related withdrawal he had not attended school full time since July 2016. It stated he needed a very structured timetable with minimal changes and transitions and predictability in the support given to him.
21. School A withdrew the offer of education in the middle of June 2022. It said it had offered in error and Mr Y would exceed the legally registered age for the school and could not stay on roll. It said it had spoken to Mrs X and would support Mr Y with a clear and lengthy transition to college B, which was their next choice.
22. Mrs X said she immediately began trying to find another suitable placement for Mr Y to ensure that he had a lengthy transition period in line with his SEN.
23. Three days later the Council consulted College B. College B offered Mr Y a place the following day.
24. The Council contacted Mrs X three weeks later and told her the placement at school A could not go ahead and College B had offered Mr Y a place.
25. The Council agreed to name college B at the beginning of August 2022 at a panel meeting and told Mrs X of its decision. It issued the final amended EHC plan for Mr Y on 23 August 2022. It told him and Mrs X of their appeal rights if they disagreed with the content of the plan. Mr Y began attending college B at the start of the next academic year.
26. Mr Y complained to the Council. He said it had told him he could continue at school A for another year in November 2021. He said he did not hear anything until Mrs X emailed the Council and it confirmed he could stay with school A and then told him two weeks later that school A had withdrawn its offer. Mr Y asked why this had not been identified earlier which would have given him more time to appeal or look for an alternative placement without rushing.
27. The Council wrote to Mrs X and responded to Mr Y’s complaint in January 2023. It said school A offered Mr Y a placement in error. It said the Council should have checked Mr Y could continue at school A earlier and apologised for any distress it had caused to Mr Y. It said Mr Y and Mrs X had an appeal right against the August 2022 plan if they were dissatisfied with the content of the plan.
28. Mrs X escalated the complaint. She said the Council:
• had not properly considered the placement school A offered or communicated with her about it;
• delayed in taking any action following the annual review which meant that she was unable to appeal the EHC plan; and
• had not considered the impact of the uncertainty on Mr Y.
29. The Council responded to Mrs X in January 2023 and stated there had been gaps in communication and case management which caused a delay in issuing the amended final plan for Mr Y. It acknowledged the stress and anxiety caused to Mr Y and apologised.
30. Dissatisfied with the Council’s response, Mrs X complained to us.

My findings

Reviewing the EHC plan

31. The Council attended an annual review meeting for Y’s EHC plan in December 2021 where school A offered Mr Y an ongoing placement. The Council should have told Mrs X and Mr Y whether it decided to maintain, amend or discontinue Mr Y’s EHC plan within four weeks of that meeting. If the Council intended to amend the plan it should have provided its draft amendments within four weeks of the meeting and issued a final amended plan within a further eight weeks (beginning of March 2022). The Council did not complete any of those actions until the beginning of May 2022 which was a delay of eight weeks and was fault. It leaves uncertainty about whether the error in naming school A (as set out below) would have been identified earlier had the Council acted without fault.

Naming a placement

32. When the Council did issue the final amended plan in May 2022 it named school A which could not provide Mr Y a place. It is the Council’s responsibility to ensure the placement named in a person’s EHC plan is appropriate to their individual needs, and to ensure young people aged 19 and over are given clear information about continuing in education. The Council did take immediate action to identify a new placement for Mr Y, however its failure to check the suitability of the original placement was fault.

Communication

33. The Council did not make any contact with Mr Y or Mrs X between December 2021 and May 2022, when it responded to Mrs X chasing it. When school A withdrew the offer of a place for Mr Y, and told the Council it had informed Mrs X, the Council did not contact Mr Y or Mrs X for three weeks. The poor communication was fault and caused them frustration.

Injustice caused by the faults identified

34. Mr Y is autistic and his EHC plan sets out that he struggles to cope with change. This causes him anxiety, so he needs predictability. Mr Y had made good progress with school A and was pleased to be continuing with that school. Mr Y had prepared himself for the coming academic year. The sudden change in plans caused Mr Y uncertainty until the Council named college B in his August 2022 EHC plan. Mr Y was caused avoidable anxiety and distress for two and a half months, which also caused Mrs X distress. This was compounded by the Council’s poor communication with them both. The Council has already apologised for the poor communication and I have made a further recommendation below.

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Agreed action

35. Within one month of the final decision the Council will:
• ensure a senior member of children’s services writes to Mrs X and Mr Y separately and apologises for the frustration, uncertainty and distress caused to them by the faults identified; and
• pay Mr Y a symbolic amount of £600 and Mrs X a symbolic amount of £350 to recognise the same.
36. Within three months of the final decision the Council will remind relevant staff to:
• finalise Education, Health and Care plans within the statutory timescales;
• check the school or college named in section I is appropriate for the persons age and stage of education, especially where it is a continuation of a placement for post 19 education; and
• ensure young people and their parents are kept regularly informed during the EHC plan review process, especially where this continues outside of the statutory timescales.
37. The Council will provide us with evidence it has complied with the above actions.

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Final decision

38. I have completed my investigation. I found fault causing injustice and the Council has agreed to my recommendations to remedy that injustice and prevent similar fault in the future.

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Investigator's decision on behalf of the Ombudsman