Summary: Mrs X complained the Council failed to maintain her daughter, Y’s, Education Health and Care plan. We found evidence of fault by the Council because it failed to provide Y with the provision in her Education Health and Care plan, failed to review the plan in accordance with statutory timescales or in response to a change in Y’s circumstances and did not communicate with Mrs X. The Council agreed to apologise and make payments in recognition of the injustice caused to Mrs X and Y.

The complaint

1. Mrs X complained the Council has not maintained her daughter, Y’s, Education Health and Care (EHC) plan. She states this resulted in Y being unable to access education since September 2022. She also says the Council did not reply to her communications or tell her that Y’s SEND caseworker had left.
2. Mrs X states the Council’s actions have affected Y’s education and her mental health. It has also impacted the wider family.

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The Ombudsman’s role and powers

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. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), 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 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)
7. 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)
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

9. As part of my investigation I have:
• Considered Mrs X’s complaint and information she provided. I also discussed her complaint with her.
• Made enquiries of the Council and considered its response.
• Considered the relevant legislation and guidance;
• Considered our guidance on remedies; and
• Set out my initial thoughts on the complaint in a draft decision statement and invited Mrs X and the Council to comment.

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What I found

10. 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.

Reviewing EHC Plans

11. 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.

12. 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) 

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.  

Reassessment of EHC Plans

14. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.

15. The council can refuse a request for a reassessment if less than six months have passed since a previous EHC needs assessment. It can also refuse a request if it does not think it is necessary, for example because it does not feel a child or young person’s needs have changed significantly.

16. The council must tell the child’s parent or the young person whether it will complete an EHC needs reassessment within 15 calendar days of receiving the request. If the decision is not to reassess, the council must also provide information about the right to appeal that decision to the tribunal.

Maintaining EHC Plans

17. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
18. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

What happened

19. Y has a diagnosis of Autism Spectrum Disorder and severe anxiety.
20. In August 2021 the Council agreed to carry out a EHC needs assessment for Y.
21. In September Y stopped going to school as she found it too difficult to do so. This was Y’s final year in secondary school.
22. In November the Children Adolescent Mental Health Service (CAHMS) assessed Y. Following the assessment, it provided a report which said that Y had cognitive difficulties. Mrs X provided the report to the Council.
23. In December the Council sent Mrs X a draft EHC plan for Y. The Council did not meet the statutory timeframes for providing the draft EHC Plan.
24. In January 2022 the Council issued Y’s final EHC Plan. The plan detailed the provision that Y needed to meet her needs. This included the following provision to meet Y’s Social Emotional and Mental Health (SMEH) needs:
• A supported transition for a post-16 setting involving frequent visits and extensive handover information to staff.
• For Y to be exposed to a variety of post-16 options in manner that reduces her anxiety, including virtual tours, exploring various activities and job roles within in her specific interests.
• An emotional literacy programme delivered weekly for one hour by staff specially trained to do so.
• Activities focusing on developing Y’s social and emotional literacy skills, independence skills and preparation for adulthood.

The plan said Y would have 20 hours of Teaching Assistant support in a mainstream school based on full time attendance. However, until June 2022 Y would receive 10 hours of weekly tuition at home.

25. Also, in January Y’s SEND Caseworker told her school that Y remained on its role and asked them to arrange careers guidance, regular sessions to identify post-16 options and to meet her SMEH needs.
26. In February Y found a post-16 placement. The Council consulted the placement and in March it responded, and Y’s place was confirmed.
27. In March Mrs X told the Council that Y’s post-16 placement said she could start attending now while continuing her home tuition. Mrs X said this would help provide Y with the SMEH needs in her plan, which were otherwise not being met.
28. The Council did not agree to Y stating her post-16 placement early. It said doing so was not beneficial and Y should focus on her exams.
29. In April Mrs X asked if Y’s tutor could accompany her to taster sessions at her post-16 placement. She explained that Y was comfortable with her tutor and so this would help Y when attending. The Council refused. It said Y’s school had agreed to fund one taster session with Y’s tutor, but future sessions could be conducted with the school’s Learning Mentor.
30. In May Mrs X raised concerns about Y’s EHC plan not containing details of the CAMHS assessment and that it did not name her post-16 placement.
31. The Council said it did not receive the CAMHS report and so, Mrs X sent it to the Council again.
32. The report was considered by the Council’s panel but it concluded the report did not indicate that Y had significant cognition needs. It said it would only amend an EHC plan when there is significant change in the person’s needs.
33. Y’s EHC plan was amended to include Y’s post-16 placement. It said she would receive 10 hours of support per week based on full time attendance.
34. In September Y started at her post-16 placement but this was not successful, and she left that month.
35. Mrs X contacted Y’s caseworker for help securing an alternative placement at another provider. She received no response. Y’s alternative placement was not successful. Mrs X asked for an urgent review of Y’s EHC Plan because of the change in her circumstances.
36. In November Mrs X complained to the Council. She said that she had received no communication from the Council regarding her request. She also complained that she had been told by Y’s post-16 placement the Council had not consulted with it.
37. The Council’s response, which was three days late, acknowledged there were delays in responding to Mrs X. It apologised. It said that Y’s Post-16 placement was consulted.
38. In January 2023 the Council began its Annual Review of Y’s EHC plan. As part of this process Mrs X asked for a Personal Budget to provide the provision in Y’s plan.
39. In February Y’s new caseworker contacted Mrs X. She said she was looking at courses for Y. She suggested Mrs Y contact a provider about a computing course and investigate support internships.
40. Mrs X said the failure to provide Y’s SMEH needs was acting as a barrier to her education. She also asked about the outcome of her request for a Personal Budget. Y’s caseworker replied saying the panel did not agree it would be beneficial to agree short term provision and the focus should be on what courses Y may like to do.
41. Unhappy Mrs X complained. She complained that:
• Y’s EHC plan had not been implemented in full since January 2022 and she has received none of the SEMH provision.
• Y received only one hour of careers advice and had no transition to post-16 education as per her EHC plan.
• She had been trying to secure an urgent EHC Plan review since September 2022 when Y’s post-16 placement failed.
• Y had received no education since September 2022 and none of the provision in her EHC Plan.
42. The Council replied outside of its published timescale. It said:
• Mrs X was told that transition arrangements and SMEH needs would be provided by Y’s school.
• Careers advice for Y was the responsibility of her school.
• It was for Y’s Post-16 placement to have commenced a review of Y’s EHC plan.
• It was sorry for the poor communication received by Mrs X following the breakdown of Y’s post -16 placement. It said this was due to Y’s SEND caseworker leaving. It said it was changing it procedures so that changes of caseworkers were better communicated.
43. In April 2023 Y’s final EHC Plan was issued.
44. In July Mrs X told the Council Y had received a new diagnosis and she asked for this to be included in her EHC Plan. The Council said it could not do this until her next annual review.
45. Unhappy Mrs X complained to the Ombudsman.
46. In response to our enquires the Council said:
• Y’s school had agreed to provide careers advice and guidance sessions to Y. It also provided one remote session with a careers advisor.
• Its responses to her complaints were late because of staffing issues. It has implemented new measures to track complaint responses to prevent a recurrence.
• Y’s EHC plan review commenced in February 2024 and was ongoing.

Finding

Failure to secure provision

47. Y’s EHC plan dated January 2022 included provision for her to receive support to help her transfer to a post-16 placement. This included frequent visits. Y only had one visit. The plan also provided for Y to receive careers advice. Again, she received only one hour of careers guidance. Therefore, Y did not receive the provision in her EHC Plan.
48. I note that Y was still on roll at her school and the Council arranged for it provide the provision set out above. However, the Council was aware from reports made by Mrs X that this was not happening. The Council has a duty to secure the provision specified in Y’s EHC plan and it did not do so. This is fault which caused Y injustice.
49. Y’s EHC plan dated January 2022 also included provision to meet her SEMH needs. Y did not receive this provision. Consequently, Y did not have opportunity to develop skills to aid her transition to her post-16 placement. This is fault which caused Y injustice.
50. Furthermore, Y continued not to receive the provision to meet her SEMH needs following the breakdown of her post-16 placement in September 2022. Again, Mrs X raised this matter with the Council, but it did not respond to her concerns. This is fault causing Y injustice.

Y’s EHC plan reviews

51. Y’s EHC plan dated January 2022 required review and amendment by 31 March 2022 because Y was moving from secondary school to a post-16 placement. The Council did not amend Y’s plan until May 2022. This is fault as it did not meet the statutory deadlines. This caused Mrs X and Y uncertainty, and this is an injustice.
52. Mrs X asked the Council to include the outcome of the CAHMS assessment into Y's EHC plan. The Council said that the conclusions of the report did not warrant amending Y’s plan. This is a decision the Council is entitled to make.
53. Mrs X sought an emergency review of Y’s EHC Plan following the breakdown of her post-16 placement. The Council did not respond to Mrs Y’s request and consequently Y’s EHC Plan remained unchanged despite the change in her circumstances. This resulted in Y not receiving education from September 2022 until September 2023. This is fault causing Y injustice.

Mrs X’s complaints and the Council’s communications with her

54. The Council accepts that its communication with Mrs X was not acceptable. It did not reply to her communications, and this contributed to the failure to provide Y with the provision in her EHC plan.
55. The Council’s communication with Mrs X was particularly poor following the departure of Y’s SEND caseworker in summer 2022. Y was not allocated a new caseworker until January 2023. The absence of a caseworker for Y contributed to the previously identified fault.
56. The Council’s poor communication also caused Mrs X frustration and put her to the avoidable time and trouble of pursuing matters. This is injustice.
57. The Council responded to both of Mrs X’s complaints outside of its published timescales. This caused Mrs X further frustration and put her to the avoidable time and trouble of chasing a response. This is fault causing injustice.

Other issues

58. Mrs X has raised concerns that Y’s post-16 placement were not consulted with prior to the placement commencing. I have seen evidence which demonstrates the Council did consult the placement in February 2022.

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Agreed action

59. To remedy the injustice identified above the Council will:
60. Within one month:
• Provide Mrs X with a written apology.
• Pay Mrs X £4500 for the benefit of Y’s education (this has been worked out at £900 per term from January 2022 to July 2023).
• Pay Mrs X £200 in recognition of the frustration, uncertainty and avoidable time and trouble caused to her by the Council’s poor communication with her and late replies to her complaints.
61. Within three months the Council will carry out a review of Y’s case to identify:
• the reasons for failing to provide Y with the provision in her EHC Plan and explain how the Council will prevent a recurrence; and
• the reasons for the delay in providing Y with a new SEND caseworker and in responding to Mrs X’s communications and explain how the council will prevent a recurrence.
62. The Council should provide us with evidence it has complied with the above actions.

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Final decision

63. There was fault by the Council, which caused Mrs X and Y 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