Summary: Mrs X complained the Council failed to progress her son, C’s, Education, Health and Care plan review and ensure it issued a final plan before 31 March 2023. The Council is at fault as it has delayed issuing a final Education, Health and Care plan for C. The Council will apologise and pay for the loss of educational provision.

The complaint

1. Mrs X complained the Council failed to progress her son, C’s, Education, Health and Care (EHC) plan review and ensure it issued a final plan before 31 March 2023.
2. She says this left C without the transition support he needed, and she had to arrange a college placement for him.

Back to top

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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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 our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I have and have not investigated

6. I have investigated Mrs X’s complaint about the Council’s delay in issuing a final EHC plan up to October 2023. I have not investigated any delay after this point as Mrs X has raised this issue with the tribunal.

Back to top

How I considered this complaint

7. I have considered:
• The information provided by Mrs X and discussed the complaint with her;
• The Council’s comments on the complaint and the supporting information it provided; and
• Relevant law and guidance.
8. Mrs X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Law and guidance

9. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document 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 their needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 
10. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
11. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
12. Where the 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. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.
13. For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer.  
14. At the annual review in year 11 the Council should be providing support to finalise plans for post-16 options and help the child and their family familiarise themselves with the expected new setting. The Council should include a contingency plan and let the family know what to do if plans change for any reason.

Key events

15. C has learning difficulties and had an EHC plan to help him in school. C’s EHC plan was amended in February 2018 when he began secondary school.
16. The Council carried out an annual review in January 2022 when C was in year 10. It carried out a further review in October 2022 when C was in year 11. At this review the Council discussed C’s preparation for adulthood. It was informed that C wanted to follow a career pathway into Music and therefore he wanted to study music. He also named the college he wanted to attend (college A). Following the meeting the Council stated it would be amending C’s EHC plan.
17. In December 2022 the Council sent out a consultation to college A. It also chose to consult with another group of colleges in the area including one which is closest to C’s home (college B). The closest college in the group does not offer any music courses.
18. College B contacted Mrs X in early February 2023. She asked the Council about this explaining she was not aware it would send any consultations to other colleges. The Council apologised it had not told her and explained college B was its preferred college for C.
19. In early April Mrs X contacted college A to ask if it had received correspondence from the Council about C attending. College A responded explaining that it had replied in early March and would be able to support C. It copied the Council into this email.
20. The Council agreed to name college A in an internal email in early April noting it had no record of the response in early March. Following this the Council did not issue a final EHC plan for C.
21. Mrs X made her own arrangements for C to attend college A. His application was considered a late application. He began attending in September 2023.
22. In October 2023 Mrs X made an application to the tribunal due to the lack of final plan. The tribunal accepted her application and a hearing has been listed for July 2024.

Findings

23. The Council has accepted there was a delay in issuing a final EHC plan for C and that it did not issue this before 31 March 2023. The Council began its annual review in October 2022. It should have been able to issue a final plan by the beginning of 2023. Despite this deadline passing and the deadline of 31 March 2023 it took no action to progress the matter or chase any outstanding issues and the final plan is still outstanding. The fact the Council had not issued a final plan by October 2023, when Mrs X issued a tribunal appeal, represents a substantial delay and this is fault.
24. As a result of the Council’s delay C has been without an updated plan. The Council should take steps to recognise the impact this delay has had on C.
25. In a recent previous complaint raising similar fault, we recommended the Council create a plan demonstrating how it will meet the statutory timescales for annual reviews of EHC plans. The Council are in the process of providing evidence of this, but this covers events since Mrs X's complaint to us. Therefore, I have not considered it necessary to repeat the same service improvements in this case.
26. Mrs X also raised concerns the Council contacted college B without telling her. The Council should be involving the child and their parents in the decision about which colleges are suitable for them. This should be based on their intended plan for post-16 education and progression to adulthood. I have seen no evidence the Council discussed the choice of attending college B with C or Mrs X, either as a contingency or somewhere he could study the course he wanted to. The Council’s actions are not in line with the guidance on preparing for adulthood and this is fault.
27. I appreciate Mrs X was surprised that another college had been contacted and worried that personal information was unnecessarily disclosed. Had the Council had the relevant discussions with her this surprise could have been avoided.

Back to top

Agreed action

28. Within one month of the final decision the Council will:
• Apologise to Mrs X for the injustice caused by the delay in issuing a final EHC plan and failing to discuss its plan to communicate with other colleges.
• Pay Mrs X, for the benefit of C, £1,000 for the delay in issuing his new EHC plan.
29. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

30. I have completed my investigation. I have found fault leading to injustice. The Council will apologise and make a payment to recognise the personal injustice caused.

Back to top

Investigator's decision on behalf of the Ombudsman