Summary: Mrs Y complains about failures in the annual review process and delays in arranging social care provision for her son, D. We find there was fault in the review process and a service failure arising from the Council’s inability to source an appropriate provider to meet D’s need for independent life skills. The Council has agreed to apologise and make a symbolic payment.

The complaint

1. Mrs Y complains the Council acted unlawfully when transferring the statutory responsibility for her son’s annual review to his post-16 provider. When the annual reviews have not complied with the statutory requirements of the SEND Code of Practice, the Council has not taken responsibility.
2. Mrs Y also complains the Council has failed to make provision available for one of the outcomes in her son’s EHC plan. Consequently, he did not receive the support he needed which has impacted on the development of his independent living skills.

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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. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
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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What I have and have not investigated

6. I have investigated matters relating to the annual review process in 2023 as this happened within 12 months of Mrs Y’s complaint to the Ombudsman. I have also investigated the complaint about D’s provision as this matter is ongoing. I have not investigated any concerns Mrs Y has about the annual reviews which took place before 2023 because it is my view that she could and should have complained to the Ombudsman about those reviews sooner.

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How I considered this complaint

7. During my investigation I discussed the complaint with Mrs Y by telephone and considered any information she provided.
8. I made enquiries of the Council and considered its response along with the relevant regulations and statutory guidance.
9. Mrs Y and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
10. 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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What I found

What should happen

11. Councils must arrange for EHC plans to be reviewed at least once a year to make sure they are 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. Councils can delegate the holding of the review meeting to a school or college. However, councils remain responsible for the overall review process. The review meeting is just one part. We would expect councils to ensure reviews are held on time and chase up schools that failed to provide documentation before or after a review meeting to enable it to complete the review on time.
13. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or cease 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).
14. If the Council decides not to amend a plan or to cease it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.

What happened

Annual review

15. D has an EHC plan and attends the post-16 education provider named in the plan. The provider held an annual review meeting on 1 February 2023. When Mrs Y did not receive a response within four weeks of that meeting, she contacted the Council. The Council contacted the provider on 2 March to query the whereabouts of the review paperwork.
16. The education provider submitted the paperwork on 7 March and the Council wrote to Mrs Y the following day to confirm its decision to maintain D’s EHC plan.
17. Dissatisfied with the review process, Mrs Y complained to the Council.
18. The Council responded at stage one of the complaints process. In summary, it said:
• The SEN Code of Practice allows councils to request that further education colleges or other post-16 institutions convene and hold an annual review on the council’s behalf.
• The Council retains responsibility to ensure that annual reviews take place.
• Mrs Y did not receive notification of the outcome of the annual review within four weeks of the meeting.
• The Council could not comment on how the review was facilitated but confirmed that Mrs Y should have received reports two weeks before the meeting took place. Officers from social care and SEN should have also been invited to attend.
• Mrs Y received an apology from D’s education setting on 10 March.
19. Dissatisfied with the response, Mrs Y approached the Ombudsman.

Independent living skills

20. As part of her complaint, Mrs Y also raised concerns that D was not receiving provision relating to independent living skills. Section E of the April 2022 EHC plan says, “In order to support [D’s] goal of furthering his academic progression, and therefore his employability, by attending a higher educational provision, he will need to be able to access a suitable provision to develop his independent living skills, which would need to be in place by December 2022”. Further into that section, the plan also says, “To explore independent living provision with East Riding via social care assessment".
21. Section H of D’s EHC plan also says, “A request to be made to Adults Social Care for a social care assessment to identify and offer any appropriate support around independent living skills with a view to securing independent living accommodation”.
22. The Council contacted potential providers in April 2022, but it was not successful in finding a provider to deliver independent living skills around D's existing college timetable. Following this, the SEN caseworker made a referral in May 2022 to a specialist social work team at the Council who help young people gain skills in preparation for adulthood. The referral was allocated to a worker in October 2022.
23. In response to Mrs Y’s complaint, the Council said D’s allocated social worker started D’s social care assessment on 13 December 2022. The assessment was recently completed, and D’s support plan is being developed. The social worker confirmed that D’s support plan will include support for identified life and functional skills to help prepare D for adulthood.
24. As an alternative option, the Council offered a personal budget in September 2023 which Mrs Y chose not to accept because of concerns about the responsibilities associated with finding appropriate providers.
25. In September 2023 the Council contacted another social care provider to help D with tasks such as home and money management, recipes and shopping lists and accessing community services. The Council shared a brochure of the services with Mrs Y and provided the contact telephone number for the relevant person to arrange a visit with.
26. In response to the Ombudsman’s enquiries, the Council said: “As [D] is attending an appropriate further education provision, he should have been able to access suitable provision to develop his independent living skills through the course he is following and the pastoral support in place… however the independent living course at the college clashes with [D’s] Level 3 course”.
27. I understand Mrs Y and D have recently met with the provider identified in September 2023.

Was there fault in the Council’s actions causing injustice to Mrs Y and D?

28. In relation to the first part of Mrs Y’s complaint, the Council has already acknowledged that Mrs Y should have received paperwork two weeks before the annual review meeting. There was a further failure when Mrs Y did not receive the written outcome within four weeks of the meeting. While the meeting itself was arranged and held by the education provider, the Council retains responsibility for the overall review process, and we therefore find fault.
29. We consider the fault caused injustice to Mrs Y in the form of frustration, time and trouble which the Council will provide a symbolic remedy for.
30. In relation to the second part of Mrs Y’s complaint, the Council has acknowledged that it did not meet its commitment to ensure delivery of D’s provision for independent living skills by December 2022. The available records show the Council made attempts in April 2022 to source provision, but those attempts were not successful partly due to a shortage of local providers and clashes with D’s full-time timetable. We therefore make a finding of service failure.
31. We consider the service failure caused injustice to D because he has waited longer to receive the social care provision he requires. Matters have progressed in a positive direction recently and we understand D has visited a potential provider. The Council has agreed, however, to provide a symbolic payment in recognition of the distress caused to D.

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Agreed action

32. Within four weeks of our final decision, the Council has agreed to:
• Apologise to Mrs Y for the avoidable frustration, time and trouble caused by the fault in the annual review process. The Council will also pay £250 in recognition of the injustice caused by fault.
• Apologise to D for the distress caused by the failure to arrange the social care provision by December 2022. The Council will also make a symbolic of £750 in recognition of the impact of the service failure.
33. Within six weeks of our final decision, the Council has agreed to:
• Provide the Ombudsman with an update on the independent life skills provision for D. If the recent visit at the provider was not successful, the Council should outline the steps it has taken to find an alternative provider and the actions it will take to keep this under review.
34. The Council will provide us with evidence it has complied with the above actions.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman