Summary: Ms X complained the Council failed to review and amend her son, Mr G’s, Education, Health and Care (EHC) Plan in line with the statutory guidance. Also that it did not arrange a suitable college placement, did not provide funding for free school meals while Mr G did not have a suitable placement and failed to provide appropriate remedies after it upheld some of her complaint. The Council was at fault in failing to review Mr G’s EHC Plan in line with the guidance which resulted in Mr G being without a college placement between September 2023 and February 2024. The Council will make a payment to Mr G to recognise the education he lost and make service improvements.

The complaint

1. Ms X complained the Council failed to review and amend her son, Mr G’s, Education, Health and Care (EHC) Plan in line with the statutory guidance since February 2023, and as a result he did not have a suitable college placement and did not receive the provision in his Plan. Ms X also complained she did not receive the funding for free school meals while Mr G did not have a suitable placement. Ms X said the Council failed to provide appropriate remedies after it upheld some of her complaint.
2. Ms X wanted the Council to provide compensation for the loss of specialist provision for Mr G, and for the impact on her wellbeing and to reimburse her for the free school meals Mr G did not receive.

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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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. We cannot investigate complaints about actions which are not the administrative function of a council. (Local Government Act 1974, section 26(1) as amended).
6. 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)
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 have and have not investigated

8. I cannot investigate Ms X’s complaint about the free school meals. This is because the administration of free meals in further education is not a council function. The guidance “Free Meals in Further Education Funded Institutions”, which was in force at the time of these events, states a bursary is paid directly to the institution (college) by the Government. The college is responsible for providing a free meal for eligible students on the days they attend their study programmes.

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How I considered this complaint

9. I read the documents provided by Ms X, and discussed the complaint with her on the phone.
10. I considered the documents the Council provided in response to my enquiries.
11. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant legislation and guidance

Education, Health and Care Plans

12. 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. 
13. Young people should be prepared effectively for adulthood and young people may need support through an EHC Plan up to the age of 25.
14. 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.
15. 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) 
16. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
17. 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.
18. For young people moving between post-16 institutions, the council should normally complete the review process by 31 March where a young person is expected to transfer to a new institution in the new academic year. Where a young person is planning to transfer between one post-16 institution and another within the following 12 months, the council must review and amend, where necessary, the young person’s EHC Plan. This must be at least five months before the transfer takes place.  

Council complaint policy

19. The Council’s complaint policy states it aims to remedy personal injustice caused by a Council fault. It says when considering remedies for injustice caused by a complaint it upholds it will consider our guidance on remedies. It says all complaints and potential remedies will be considered individually and on the facts of each case. Remedies for personal injustice might include:
• Apology
• Review of policy and procedures
• Other actions to avoid the same fault occurring again and to put the person affected back in the position they should have been in
• Considering whether the person affected has experienced a financial loss.

What happened

20. Mr G lives with his mother Ms X who is his representative. Mr G has additional needs and an EHC Plan which set out the college he should attend. In February 2023 Mr G was 22 years old and was attending college A, which was named in his EHC Plan following a Tribunal consent order in February 2022.
21. College A held an annual review meeting at the end of April 2023. Ms X and Mr G did not attend this meeting and college A decided to hold it without them. The record of the meeting shows it had planned a review meeting in October 2022 and February 2023 but Ms X and Mr G did not attend either meeting. The document recorded Ms X had told College A she was withdrawing Mr G as the transport times could not be changed to support Mr G attending an appointment. It also recorded Mr G’s social worker said Ms X was not going to send Mr G back to college A and adult social care was exploring social activities for Mr G. The review recorded Mr G was on a one-year course, had been on holiday for three weeks in January and February and then stopped attending at the end of February 2023.
22. The Council said it received the annual review paperwork form College A in mid-May 2023. It also received Ms X’s contribution in which she said the last year would have been better if ‘provision was fit for purpose’.
23. In June Mr G’s social worker told the SEN team that Mr G would like to attend College B, an independent college.
24. In July 2023 the Council issued its notice to amend Mr G’s EHC Plan and a draft amended Plan. The content of the Plan remained the same.
25. The Council sent consultations to College B, College C and College D for a placement for Mr G from September 2023. College B responded on the same day and offered a place for Mr G, and told the Council how much it would cost. College C said it could not meet Mr G’s needs and did not offer a place. The Council said that its panel considered Mr G’s placement and agreed in principle for a placement at College B.
26. The Council chased College D for a response to its consultation in August and twice in September.
27. Mr G complained to the Council in November 2023. He said he had been told that his request for a placement at College B was going to be considered at panel in August but it had still not happened. He said he had missed three months at college.
28. The Council responded and apologised for the delay. It said that as College B was independent specialist provision, it also needed to consult local colleges to see if they could provide the support in Mr G’s EHC Plan and there had been delays in the colleges responding. It upheld Mr G’s complaint. It said Mr G had not had access to appropriate education since April 2023. It apologised for the distress and uncertainty caused by the delay in finding a placement for Mr G.
29. Ms X asked the Council to consider Mr G’s complaint at stage two. She said Mr G had not been compensated and that he was entitled to £3.50 a day for college meals he had not received. Ms X said Mr G did not attend College A as it was not fit for purpose.
30. The Council responded and stated it could not consider financial remedies and directed Ms X to us. It said free college meals were provided via a bursary from Government to schools and colleges directly. It said it was not a matter it was involved in. It did not uphold the complaint.
31. In January 2024 the panel agreed Mr G should attend College B until July 2024. Mr G began attending College B in February 2024. At the end of February 2024 the Council issued a final amended EHC Plan naming College B.

My findings

EHC Plan and placement

32. Mr G was coming to the end of his study course in July 2023 and needed to transition to a new provider in September 2023. In line with the guidance the Council should have ensured that Mr G’s EHC Plan had been reviewed, and an amended Plan issued by 31 March 2023. The Council did not complete the review and issue the amended EHC Plan until February 2024, which was a delay of 11 months and was fault.
33. The delay was initially caused by Ms X and Mr G not attending the review meetings meaning they were rescheduled. The Council states the subsequent delay was caused by the colleges not responding to consultations in good time. However, College B and C responded in the same week they were consulted. The Council took insufficient prompt action to gather a response from College D which allowed the case to drift. The annual review was considering Mr G’s placement from September 2023. Had the Council acted without fault it would have named a placement in Mr G’s EHC Plan ready for a transition to College B from September 2023.
34. The Council states Mr G did not have access to a suitable education from April 2023. Mr G had a placement at College A, as a result of a consent order on a course that ran until July 2023. Ms X contributed to the annual review and suggested College A was not fit for purpose. Ms X and G were both invited to the annual review which was the appropriate place to raise concerns about the placement. There was no record in the annual review of the placement no longer being suitable, or of Mr G’s needs having changed. Although Ms X withdrew Mr G from that college course, I have not seen any evidence that suggests the course was no longer suitable for, or available to Mr G. Therefore, on the balance of probabilities Mr G was not caused an injustice between February 2023 and July 2023.
35. From September 2023, due to the Council’s delay in issuing an amended EHC Plan, Y did not have a named placement to attend. As Mr G was clear from June 2023 he wanted to attend College B and the Council named College B on the final amended EHC Plan, on the balance of probabilities had the Council acted without fault Mr G would have been able to attend College B from September 2023, instead of February 2024. Mr G missed out on a term and a half of education, which also caused Ms X avoidable frustration.

Complaint handling

36. The Council told Ms X that it could not consider a financial remedy where it had upheld a complaint and directed it to us for further consideration. That was fault and not the purpose of the Ombudsman. Our Principles of Good Administrative Practice sets out councils should offer an effective complaints procedure, which includes offering a fair and appropriate remedy when a complaint is upheld. Our Guidance on Remedies further sets out where a financial payment may be appropriate. The Council’s policy is also unclear as ‘considering whether the person affected has experienced a financial loss’ in itself is not a remedy to a personal injustice. The Council fettered its discretion to properly consider a financial payment where it upheld the complaint. It caused Ms X frustration.

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Agreed action

37. Within one month of this decision the Council will:
• Write to Ms X and Mr G and apologise for the injustice caused by the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology I have recommended; and
• Pay Mr G £3,600 for the term and a half of education he missed between September 2023 and February 2024; and
• Pay Ms X £300 to recognise the avoidable frustration she experienced.
38. Within three months of this decision the Council will:
• remind relevant Council officers to take positive action to follow up school consultation responses where it is causing drift and delay in finalising new and amended EHC Plans for children and young people; and
• review and update its complaints policy to ensure it is clear about how it approaches financial remedies to upheld complaints, and provide an update to all staff who respond to stage one and stage two complaints about any updates.
39. The Council will provide us with evidence it has complied with the above actions.

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Final decision

40. I have completed my investigation, I found fault causing injustice and the Council agreed to my recommendations to remedy that injustice and avoid the same fault occurring in the future.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman