Summary: Mrs B complains about how the Council dealt with her son’s Education Health and Care (EHC) Plan. There was fault by the Council. It failed to issue a final EHC Plan or plan his transition post-16 placement for Z in 2022. The Council then failed to make a decision following an Annual Review in 2023 and again failed to issue a final Plan. The Council did not deal with Mrs B’s complaints to it properly. Its shortcomings caused significant distress and uncertainty to Mrs B and her son and deprived Mrs B of her right to appeal to a Tribunal. The Council has agreed to my recommendations to remedy this.

The complaint

1. Mrs B complains about how the Council has dealt with her son’s special educational needs. In particular she says the Council failed to:
• issue a final Education Health and Care (EHC) Plan following reviews in January 2022, despite promising to in response to her complaint about this;
• issue a final EHC Plan following a review in January 2023.
• respond to her complaint of July 2023.
2. Mrs B says the Council’s failings meant that her son was left uncertain that he could continue in the sixth form of his special school and delayed his start there; and caused him anxiety, uncertainty, and a deterioration in mental health. It has also caused Mrs B frustration and distress.

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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 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).

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What I have and have not investigated

6. 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)
7. Mrs B complains about matters from March 2022 which is more than 12 months before she complained to the Ombudsman. However, Mrs B had complained to the Council and it had agreed to resolve her complaint. It did not do this and so Mrs B complained again. The Council then failed to deal with her complaint and so she complained to the Ombudsman. Although this meant that Mrs B is complaining to us about matters from more than 12 months ago, I have exercised discretion to investigate her complaint. This is because Mrs B had a reasonable expectation that the Council would resolve matters, and her complaint to us was further delayed while she waited for the Council to respond.
8. I am investigating Mrs B’s complaints from January 2022 to date.

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How I considered this complaint

9. I considered the information provided by Mrs B and discussed the issues with her. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have considered all comments received before issuing this final decision.

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What I found

The law and guidance

Reviews of the EHC Plan

10. A child or young person with special educational needs may have an 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. 
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. 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. The Council has a further eight weeks to issue the final amended EHC Plan.

Transition from secondary school to post-16 education and planning for adulthood

14. For young people with an EHC Plan, preparation for transition to adulthood must begin from year nine (age 13 to 14). Transition planning must consider the young person’s needs as they move towards adulthood. It should plan to support their choices for further education, employment, career planning, financial support, accommodation, and personal budgets where appropriate.  
15. 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.  

The Council’s duty to makes sure the EHC Plan provision is made

16. 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)  
17. 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

18. Mrs B’s son, Z has special education needs. He has an EHC Plan to meet these and he goes to a special school. My understanding is that the Plan is dated 2018, and has been reviewed regularly since then. In 2021, following an annual review, the Council decided to amend the Plan. It issued a draft Plan but did not issue a final EHC Plan.
19. The Council reviewed Z’s EHC Plan in January 2022. Ordinarily, the Council would have four weeks to notify Mrs B of any proposed changes, and 12 weeks in total to issue the final plan. However as Z was due to start his post-16 school place in September 2022, the law says that the Council should have issued the new final EHC Plan by 31 March 2022.
20. The Council did not do this. It notified Mrs B that it intended to amend the Plan in January, and issued a draft Plan in March 2022. Mrs B told the Council it had failed to include her son’s previous assessments and further assessments were needed, but had not been completed.
21. As of August 2022, the Council had not progressed the Plan and told the parents that Z’s post-16 place had not been agreed. Z had attended this special school for the last five years and he had completed the post-16 induction and chosen his study options. The Council telephoned Mrs B at the end of August. It told her that her son’s place to continue at his special school had not been agreed and she should consider alternative mainstream schools. This caused Z and his parents deep distress.
22. On 9 September, the Council confirmed that Z could attend the special school sixth form. However, the Council still had not issued the final EHC Plan. Mrs B complained to the Council. It apologised to Mrs B. It said that it would amend the Plan in discussion with her and issue the final EHC Plan. It also said that the Council was reviewing its processes to ensure that it meets its legal duties. However by mid-December, the Council still had not issued the final Plan. Mrs B again contacted the Council asking to urgently issue the Plan. Z was due an annual review in January 2023, and the Council said it would wait until after the review to issue the new Plan.
23. In January 2023, the school reviewed the old EHC Plan on the Council’s behalf. Mrs B requested that the Council attend the review meeting held in December 2023, but it did not. The Council should have notified Mrs B of its decision to cease, maintain or amend the Plan within four weeks of the review. The Council did not do this and did not seek Mr and Mrs B’s views as to whether the professional advice in the EHC plan was relevant and appropriate to the review, or whether it would need updated assessments.
24. Mr and Mrs B complained to the Council in July 2023 that it still had not issued a Plan following the January 2022 or January 2023 reviews. By this time, Z had attended a whole year of post-16 school with an EHC Plan that was many years out of date and did not reflect the demands of sixth form. The January 2023 review shows that by this stage, Z was struggling with independent study, organising himself, and relating to his peers. He had to drop an A-Level in one subject, and change to an AS-Level in another. Mrs B says that her son has been deeply distressed by the chaotic transition to sixth form; he has become suicidal; he started to go missing from home and they had to involve the Police. Mrs B says she does not know what provision is being made, and that in any case her son’s EHC Plan is significantly out of date.
25. The Council acknowledged Mrs B’s complaint but did not respond. It has not progressed the EHC Plan, nor taken any action to consider whether Z’s special educational provision meets his needs. The school reviewed the Plan in January 2024. It held the review meeting in December 2023. Mrs B asked the Council to attend but it did not.

Analysis

26. The Council has accepted that it failed to issue a final EHC Plan following the annual review in January 2022. This is despite that the Council told Mrs B that it would amend the Plan and it had issued a draft. This caused significant distress and uncertainty for Z and Mrs B. The fault here is particularly serious and had significant consequences because Z was moving to sixth form, and the law places additional duties on councils to make sure that this is well planned and that a final EHC Plan that reflects post-16 education is in place by the end of March before the child finishes secondary school.
27. There was further fault by the Council when it left it until August to consider Z’s place in sixth form and telephoned Mrs B to say this had not been agreed just a week before he was due back. Z’s EHC Plan, and the subsequent annual reviews, make clear that he needs a stable educational environment. The lack of planning caused Z and Mrs B deep distress as they had to then consider a new school and in mainstream education, when he had been at the special school for many years.
28. The Council also failed to issue its decision to cease, amend or maintain the Plan, following the annual review in January 2023. It has not issued a draft or final Plan. The Council’s failure to issue a Plan far exceeds the statutory timeframes, being two years overdue. Z’s special educational provision set out in his Plan is several years out of date, and the Council cannot say that this meets his current needs. We know the Council has intended for some time to amend Z’s EHC Plan and so it is likely that his current provision is not meeting his needs. The Council’s shortcomings have caused Z and Mrs B significant uncertainty, distress, and frustration. Also, as the Council has not issued a final Plan, Mrs B has not been able to appeal to a Tribunal to get the Plan updated. We cannot say that any lack of provision is directly responsible for Z reducing his exam courses. However, again, the Council’s failings have meant that Mrs B is uncertain as to whether had the support been in place, her son would have been able to stay on the A-level courses he had chosen.
29. The Council says it did not have the staff to complete all the reviews necessary. It has told me that the officer responsible for Z’s case no longer works for the Council. However, the severe delays show the Council did not have adequate monitoring to make sure it met its legal duties, and delays worsened.
30. The Council failed to deal with Mrs B’s complaints about the delays adequately. When she complained in September 2022, the Council said it would amend the Plan in discussion with her and issue the final Plan as soon as possible. The Council’s file shows that it took no action.
31. The Council failed to respond at all when Mrs B complained in July 2023. These failures in the complaint handling compounded the significant uncertainty and distress to Mrs B and Z, and increased their frustration with the Council.
32. The Council can ask a school or college to review the EHC Plan on its behalf and this is what happened in this case. However, given the long delays, I would expect the Council to have considered attending the annual review meeting in December 2023.
33. In August 2023, as a result of a separate investigation, the Council agreed with the Ombudsman that it would improve its review procedure so that it met the statutory timescales. In October 2023, it adopted a recovery plan and has started to implement this. It has invested significantly to increase its resources in this area, and plans to restructure the service. As an interim measure it has recruited temporary staff to work through the backlog alongside the team. A Director for the service area holds weekly meetings to track the actions of the recovery plan. The Council tells me that as of March 2024 there are over 7,100 overdue EHC Plans. It cannot ascertain the longest overdue review.
34. I asked the Council about delays in responding to complaints about EHC Plan reviews. It acknowledges that it is taking too long to respond to these complaints and it currently has 160 overdue complaints relating to its Inclusion and Special Educational Needs and Disability Service (not all of these will be complaints about delays in the EHC Plan process). The Council reports monthly to its Chief Executive on overdue complaints, and this is shared with the Council’s Lead Member for Education and Skills. The relevant Director within the Council is overseeing a working group to improve the collection, monitoring, and reporting of data about complaints. The Council has recruited a permanent officer for SEND communication, and temporary staff are supporting the officer to reduce the backlog. The Council is improving its communication with parents and carers with a dedicated helpline and is reviewing this to improve the helpline’s effectiveness.

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Agreed action

35. The Council will issue the new draft and final EHC Plan as soon as possible.
36. The Council will within one month of the date of this decision:
• Apologise to Mrs B and if appropriate, to Z, for the faults identified and the impact on them both;
• Pay Mrs B £2,000. This is a symbolic payment to recognise the impact on Mrs B and her son of the Council’s faults, and in particular the uncertainty it has created. This is a payment of £1,000 per annum from when the EHC Plan reflecting post-16 education was due (ie 31 March 2022);
• Pay to Mrs B £750 in recognition of the time and trouble it put her to when she had to complain more than once and the Council failed to deal properly with those complaints;
• ensure a copy of our final decision is considered by the relevant scrutiny committee and cabinet member; and
• share a copy of our final decision with all staff dealing with complaints about special educational need and disability service, to discuss and identify learning.
37. The Council should provide us with evidence it has complied with the above actions.

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Final decision

38. I have completed my investigation. There was fault by the Council causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman