Summary: We have found fault with the Council for how it handled Mrs X’s son (Y) post-16 education transfer. The Council delayed the Education Health Care Plan review, did not consider its Section 19 duty, and did not deliver alternative education provision while Y was waiting for a suitable post-16 placement. This fault caused Y to miss out on education and special educational need provision. It also delayed Mrs X’s appeal rights and caused the whole family avoidable distress.

The complaint

1. Mrs X complained the Council did not ensure her son; Y received a full-time education since April 2023. She said the Council did not make alternative provision and delayed finalising his EHC Plan and finding a new school/college for his post-16 education.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. 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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How I considered this complaint

4. I considered Mrs X’s complaint and spoke to her about it.
5. I also considered the Councils’ response to Mrs X and to my enquiries.
6. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
7. 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

EHC Plan

8. 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

9. 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.
10. 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)
11. 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.
12. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.

Transition planning

13. 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.

Post-16 – review, provision and naming placement deadline

14. 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.

Alternative provision - General section 19 duty

15. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
16. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)

What happened

17. Mrs X’s son, Y has special educational needs and disabilities (SEND). He has an Education Health Care (EHC) Plan.

EHC Plan post-16 transfer review

18. In November 2022, the Council held a review meeting with Mrs X. Mrs X said that post-16 placements were not discussed even though the review fell within the Year 11 phase transfer.
19. In December, the Council contacted Mrs X. She said it said it would use the November review to inform and amend Y’s EHC Plan. It asked Mrs X to state a post-16 provision to name in Section I.
20. The Council should have issued Y’s final amended EHC Plan by 31 March 2023 to meet the statutory post-16 transfer deadline. The Council issued Y’s Plan in August 2023.

Alternative provision

21. In April 2023, the Council held an Annual Review (AR) of Y’s EHC Plan. The meeting was primarily to discuss Y’s post-16 options. Y’s current school at the time said it could not support Y’s post-16 education.
22. Following the meeting, Y’s current school said it could no longer meet Y’s needs and Y stopped attending school. When Mrs X requested the alternative provision, the Council said because Y was still on roll at the school, it was its responsibility to provide education.
23. In its response to Mrs X’s complaint, the Council said that the school had confirmed that it provided AP to Y when he stopped attending. It said he completed the school year on an individual programme, attending with support for exams.

Appropriate post-16 provision

24. Following the review meeting, the Council explored and consulted potential post-16 education providers for Y.
25. Mrs X and Y visited several potential post-16 providers but for various reasons, did not consider them suitable.
26. The Council said that many of the post-16 providers do not have staff with an understanding of Y’s needs. It suggested that a more specialised provider with vocational courses might be more suitable. They explained that the vocational courses could be used as a stepping-stone for Y to access more academic courses.
27. In October 2023, the Council approached a college that offered bespoke programmes in a range of settings. The Council said it did not consider this college previously due to its OFSTED rating (which has since improved). In response to the Council’s consultation, the college confirmed that it was at capacity but could add Y to the waiting list for September 2024.
28. Mrs X argued that the college had received a ‘Good’ OFSTEAD rating in April 2022. She said if the Council had considered it sooner in the process, there would have been a good chance that a place would have been available to Y.
29. In November, the Council agreed to provide Y with 10 hours of tuition a week, plus 6 hours at an outdoor sports centre with support from a personal assistant. At the time of Mrs X’s complaint to the Ombudsman (January 2024), this provision was not in place.

General communication

30. Mrs X said that the Council were poor at communicating with her and failed to keep her updated on Y’s case. The Council apologised for this and said methods were in place to remind offers to update parents on a weekly basis in addition to responding calls/emails within 5 working days.
31. When Mrs X complained, the Council sent a response without using the standard template, therefore omitting the details on how Mrs X could escalate the complaint. The Council apologised for this and has reminded staff of the process in place for issuing responses.

My findings

Delayed post-16 transfer review

32. The Council missed the deadline for Y’s EHC Plan post-16 transfer review. This was fault.
33. This delayed Mrs X’s right of appeal and caused her avoidable frustration and distress. The Council has agreed to remedy this injustice.
34. I cannot say with any certainty whether the delay impacted on Y’s post-16 options. I have seen no evidence that Y missed out on any placements due to the delay. The Council could have considered the college that is currently at capacity sooner as the OFSTED rating was ‘Good’ from April 2022. The Council started consulting post-16 placements in April 2023. However, there is no evidence to say that the college had places available then.

Alternative provision April-July 2023

35. When Y stopped attending school in April 2023, the Council should have made a Section 19 decision. This would determine whether it should deliver alternative provision to Y or whether it was satisfied that he was receiving a suitable education. Instead, the Council said because Y was on roll at a school until the end of the academic year, it was the school’s responsibility. This was fault.
36. The Council said Y’s school delivered AP between April and July 2023 and supported Y to attend his exams. Therefore, I have not identified any tangible injustice caused by the Council’s misinterpretation that it was not its responsibility to provide AP.

Alternative provision September 2023-April 2024

37. The Council did not identify a post-16 placement for Y by the start of autumn term 2023. At the time of Mrs X’s complaint to us, Y did still not have a placement. This was 4 months of missed education.
38. During my investigation, Mrs X said that the agreed AP did not start until April 2024.
39. Although I cannot investigate beyond the date that Mrs X brought the complaint to us, it is logical for the Council to remedy the full period of time that Y was out of education. From September 2023-April 2024 is 8 months or two school terms.
40. The Council has agreed to a remedy in line with our Guidance on Remedies in recognition of the missed education (£900-£2400 per term). Given that Y missed education and SEN provision and that the period fell during a key education transfer, it has agreed to make a payment towards the higher end of the scale; £2000 per term. This equates to £4000.
41. The Council already paid Mrs X £2400 for some of the missed provision. I have therefore deducted this from the overall total. The Council has agreed to pay a further £1600.

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Agreed action

42. Within 4 weeks of my decision, the Council has agreed to:
1. Apologise to Mrs X for the delayed EHC Plan review and for failing to deliver alternative education provision to her son, Y.
2. Pay Mrs X £500 in recognition of the avoidable distress caused by the delayed EHC Plan review.
3. Pay Mrs X an additional £1600 in recognition of the missed education provision.
43. The Council should provide us with evidence it has complied with the above actions.

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Final decision

44. I have completed my investigation. I have found fault with the Council for delaying Y’s EHC Plan post-16 review, failing to make a Section 19 decision, and failing to deliver alternative provision.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman