Summary: There was delay in updating an Education, Health and Care Plan in time for a transition from school to college; a failure to specify and quantify provision in the Plan; a failure to check special educational provision was in place; and a failure to complete agreed complaint actions. This caused unnecessary distress and let to a young adult missing out on education support at a crucial stage of their transition to adult life. The Council will apologise, work with the family to resolve the problems with the Plan, make a financial payment and carry out service improvements.

The complaint

1. Mr X complains on behalf of his son, Mr Y. Mr Y is a young adult with an Education, Health and Care (EHC) Plan maintained by the Council.
2. Mr X complains Mr Y has not received all the support in his EHC Plan since transferring from a special school to college, this included support with exam arrangements. Mr X said as a result Mr Y failed his course and an emergency transfer to another college was required. This led Mr Y to feel he had ‘failed’ at college and affected his mental health. Mr X has also been put to considerable time and trouble trying to get the EHC Plan updated.

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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. We cannot investigate complaints about what happens in education settings unless it relates to special educational needs, when the setting is acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
5. 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)
6. 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.
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)

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What I have and have not investigated

8. I have investigated the Council’s handling of Mr Y’s transition from school to college and whether it has followed the law regarding the review and updating of EHC Plans. The Council issued an updated EHC Plan in Summer 2024. I have investigated up to this point as Mr X and Mr Y then obtained a new right of appeal to the SEND Tribunal.
9. If Mr X and Mr Y disagree with the content of the recent final EHC Plan, we would expect them to use their right of appeal to the SEND Tribunal to resolve this.

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How I considered this complaint

10. I have considered information provided by Mr X and the Council including:
• Complaint documents
• Correspondence
• EHC Plans
• Annual review documents.
11. I have considered relevant law and statutory guidance including:

•      The Children and Families Act 2014 (‘The Act’)

•      The Special Education and Disability Regulations 2014 (‘The Regulations’)

•      The Special Educational Needs and disability code of practice: 0 to 25 years (‘The Code’)

12. I have considered the Ombudsman’s Guidance on Remedies.
13. I spoke to Mr and Mrs X by telephone in July 2024.
14. Mr X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
15. 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

Relevant law and statutory guidance

16. A young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the young person’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 council can do this.

17. The EHC Plan is set out in sections which include:  

• Section B: Special educational needs.  
• Section E: Outcomes.
• Section F: The special educational provision needed by the young person. 

18. EHC Plans are required to be quantified and specific. L v Clarke and Somerset and Somerset [1998] ELR 129 says a Plan must be ‘so specific and so clear as to leave no room for doubt as to what has been decided is necessary in the individual case’.

19. 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)  

20. 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 its legal duty. At a minimum we expect it 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. 

21. 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. A review meeting must take place. The process is only complete when the Council issues a decision about the review.
22. 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 final EHC Plan must be issued as soon as practicable and within a further eight weeks of amendment notice. Therefore, councils must send the final EHC Plan within a maximum of twelve weeks of the annual review meeting.

23. 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.  

24. 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. However, transfers between post-16 institutions may take place at different times of the year and the EHC Plan review process should take account of this. In all cases, 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.  

25. The Code says that where young people have EHC Plans councils should consider the need to provide a full package of provision and support across education, health and care that covers five days a week where that is appropriate to meet the young person's needs.

26. There is a right of appeal to the Tribunal against:

• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.

Key events

27. Mr Y was due to transfer from his specialist school to college in Autumn 2022. A 2021 EHC Plan specified special educational provision in Section F that included full-time one-to-one support, and access and exam arrangements. An annual review of this Plan was held in early 2022 to consider next steps. At that stage it was unclear whether Mr Y would progress to higher or further education.
28. I have not seen evidence of when the Council reached a decision after this review meeting, but the Council’s decision must have been to amend the Plan as an amended version was issued in late 2022, ten months after the review meeting. This named College A, which Mr Y had already started at in September 2022.
29. Mr Y’s family told me that College A did not know Mr Y had an EHC Plan or any special educational needs until he arrived there.
30. The Council has accepted in complaint correspondence with Mr X that it did not formally consult College A. The Council also acknowledged delay in updating the EHC Plan after the review meeting in early 2022 and apologised. However, the Council said that various options were being considered for Mr Y’s next placement and this was in part based on how he did in his exams in Summer 2022. Based on Mr Y’s results, it was agreed he needed a placement in further education. As this decision could not be made until after results were available, the transition period was shortened.
31. In the Autumn 2022 EHC Plan sections B, E and F were merged. While the Plan set out a long list of Mr Y’s needs and what support he would benefit from, I have found it difficult to identify what Section F provision was intended to be made by a college placement. Reference to fulltime one to one provision was removed.
32. Mr X complained to the Council in Spring 2023 that provision in Mr Y’s EHC Plan was not in place. Mr X said this was not immediately apparent, because (due to his special educational needs) Mr Y did not communicate the extent of the problems to his parents. Mr X also said there were several concerning incidents, including Mr X being unable to find his way around college (as he had no support), being found in the town centre without supervision (which was required) and on one occasion Mr Y being locked in the college building at the end of the day.
33. Mr X asked for an emergency review of the EHC Plan to be called due to the family becoming aware Mr Y’s needs were not being met at college (he had failed his interim exams) and that Mr Y was ‘suffering greatly, both emotionally and academically’. The Council agreed to do so. At the meeting it was agreed to increase Mr Y’s attendance at college by one day per week so he could receive additional support. Transport to support this was also approved. The intention was for Mr Y to stay on at College A in September 2023. At that stage the feedback was that he was doing well on his course.
34. It was agreed the college would annotate the EHC Plan to suggest amendments required. The Council chased this up when the college failed to provide the paperwork after the review. The college did not complete this action by the end of the summer term. The Council continued to chase the college.
35. In late Summer 2023, Mr Y received his exam results and found out he had not passed. Mr X requested a further urgent review meeting.
36. In September 2023 Mr X escalated his complaint. Mr X complained it had been unexpected that Mr Y had failed the year after College A had given favourable feedback. Mr X said an extra day’s attendance had been provided but no extra support was in place on that day. As Mr Y had not passed the first year of the course, College A would not allow him to proceed to the second year of the same course. Mr X said College A had therefore switched Mr Y to a different course for September 2023.
37. College A told the Council while Mr Y could re-sit the previous year it was not certain this would lead to a different outcome ‘even if [Mr Y] is funded 1:1 support’.
38. Mr X also started to investigate alternative courses and colleges and the family decided to move Mr Y to a different college, College B.
39. The Council responded to Mr X’s further complaint. It said due to delay by College A the EHC Plan had never been updated following the Spring 2023 emergency review, it would now take steps to amend the Plan, and then it would call an annual review to ensure that provision at College B was successful for Mr Y. The Council said it would take time for College B to recruit a one-to-one support worker for Mr Y, but the Council would seek regular progress reports until such time this support was in place. The Council had also issued a tender for an I.T. tutor to help Mr Y catch up on learning missed as he had started the course late.
40. In the complaint response the Council acknowledged:
• It was its duty to ensure Section F provision in an EHC Plan was fully in place. The Council said College A had not followed the EHC Plan and had made its own judgment of Mr X’s needs.
• It must always formally consult settings for pupils with an EHC Plan even when discussions with colleges are led by families and it had failed to do so for College A.
41. While the Council acknowledged fault it did not offer any remedy other than an apology.
42. From the evidence I have seen the EHC Plan was not updated until Summer 2024 after an annual review was held in Spring 2024. Mr X told me this meeting was online and the family could not be heard due to technical issues. Mr and Mrs X said the one-to-one support provided to Mr Y to help him with his college work was never provided so the family had resorted to using Mr Y’s social care direct payments to fund some online study support, however this meant they missed out on support at weekends. Mr and Mrs X also told me that they had expected Mr Y to attend College B three days per week, but the course was squeezed into two days which placed more emphasis on the support outside the two days to assist with independent study and this was causing Mr Y anxiety.
43. Mr and Mrs X are awaiting Mr Y’s exam results from this year but do not consider Mr Y has had the support he needed or what the Council promised in the complaint process.

Analysis

Fault

44. An EHC Plan should be reviewed annually and updated when there is a change of placement. This should be done in time to allow for a planned transition and time for a family to appeal the Plan and have the appeal heard before the new academic year.
45. Mr X was due to leave his school in Summer 2022. This was planned. Mr X’s EHC Plan had been updated in 2021 to allow him to remain an extra year at school as this was deemed necessary to support him through his exams. An annual review was correctly held early in 2022. The Council should have completed this review and issued an amended EHC Plan by 31 March given Mr X was due to transfer to a post-16 placement. The Council failed to meet this timescale or to issue the amended Plan within twelve weeks of the review meeting. It took ten months to issue an amended Plan. This was excessive delay and was fault. While I acknowledge that choice of placement and course may have been affected by exam results in Summer 2022, there should have been an up-to-date Plan in place so colleges could be adequately consulted.
46. The Council has admitted this delay was fault and that it failed to consult College A. This meant College A was not prepared to receive Mr Y and did not have prior notice of the level of support Mr Y would require or funding it would receive. The EHC Plan was not updated until two months after Mr Y had started at College A.
47. When the EHC Plan was updated in late 2022, the format of the Plan was changed. Instead of separate sections clearly setting out needs (B), outcomes (E) and provision (F), these sections were merged. While it was clearly intended by the Council that Mr Y would receive specialist support, because high level needs were described, the Plan failed to quantify and specify what that provision would look like in practice. Reference to one-to-one support was removed. While the family had a right of appeal against the contents of the Plan in Autumn 2022, this was too late as Mr X had already started the course. The family trusted that previous levels of support would be provided. I also note that while Mr Y apparently requires constant supervision for his safety, provision for this support was not clearly set out in the new version of the Plan. The Plan also did not specify how many days of support Mr Y was entitled to.
48. My understanding is that Mr Y attended College A three days, and this was increased in Summer 2023 to four days following Mr X’s complaint that Mr Y was not making appropriate progress and was becoming distressed. Mr and Mrs X also told me they had raised several serious safeguarding concerns about Mr Y being unsupervised and unsupported.
49. I find that not only was the EHC Plan issued late, so Mr Y’s transition to college was adversely affected, but that the Plan issued was deficient. There is effectively nothing in Section F, no provision is specified and quantified. It is not enough to suggest what provision may be desirable, the Plan must be written in a way that it is ‘so specific and so clear as to leave no room for doubt as to what has been decided is necessary in the individual case’. I have been unable to identify what provision College A was expected to put in place, therefore it is not surprising that College A also struggled to know what was required of it.
50. The Council has acknowledged that it failed to ensure the provision in the EHC Plan was in place in breach of s.42 of the Act. I am concerned the Council’s complaint officers have reached this decision without noticing the inadequacies in the Plan which were immediately apparent to me. It appears that the complaint officers have not read the Plan when responding to a complaint about provision not being implemented. This is fault.
51. As Mr Y’s Plan was previously reviewed in early 2022 (although this review was late in being completed), the next review meeting was due within twelve months, by early 2023. This did not happen. This was fault. A review meeting was held only when Mr X complained in Spring 2023 and asked for an emergency review.
52. The Council agreed to amend the Plan following this review, however it appears to have delegated this job to College A. This is fault. While it is the responsibility of the college to submit a report to the Council after a review meeting, the responsibility for reaching a decision, and issuing an amendment notice with proposed changes, rests with the Council. As the Council had attended the review meeting then even though the college delayed returning paperwork this should not have prevented the Council from moving the case forward. I am pleased to note however that an extra day’s provision was agreed without awaiting the updating of the Plan. Unfortunately, this came too late, and Mr Y failed to pass his course.
53. It is impossible to state with any certainty whether Mr Y would have passed if the correct support had been in place, but Mr Y clearly had a significant barrier in access and exam arrangements not being in place. Mrs X told me Mr Y could not find his way to the exam room and was required to complete his exam with pen and paper when his access arrangements required him to use a computer. This is indicative of the breakdown in communication between the Council and the college and the inadequacy of Mr Y’s EHC Plan in setting clear expectations for the college.
54. In Autumn 2023 the Council communicated with College A about Mr Y’s options. College A commented that Mr Y may not pass even if one-to-one support was funded for him to re-sit the year. This indicates one-to-one support was not funded for the 2022/23 year. Mr X raised in his complaints that one-to-one support was not in place, but the Council does not appear to have responded to this, so although an extra day in college was agreed, it remains unclear what support was available to Mr Y on that day. Mr and Mrs X are clear they were promised one-to-one support as a complaint outcome.
55. I acknowledge that as Mr Y failed his exams it was inevitable that there would need to be a change to his provision at short notice in September 2023. The family decided Mr Y should move to a different college and they tell me Mr Y has been happier there, however they remain concerned Mr Y has not received all the provision in his EHC Plan or what was promised by the Council. The Council gave Mr and Mrs X an undertaking it would update the EHC Plan for the new college, hold an early annual review meeting with the new college, and ensure the college recruited a support worker for Mr X. I cannot see that any of these actions were progressed as promised in Autumn 2023. The EHC Plan was only updated at the end of the 2023/4 academic year and the family have had to divert social care funding to educational support. This is fault and has affected Mr Y’s educational experience for a second year. It has also caused the family unnecessary distress, time and trouble.
56. I find the 2024 EHC Plan is also deficient. While one section (communication and interaction) has sections B, E and F separated and provision listed in Section F, for all other areas of need Section F is absent. Again, the Plan refers to what is needed by Mr Y but fails to clearly state what will be provided. This is fault and means that Mr Y will again not have an adequate EHC Plan for Autumn 2024. Any college Mr Y wishes to attend will again not have a clear picture of the level of support Mr Y requires, what the college should be providing or what level of funding the Council will be providing. The Plan also includes no short-term targets. The family now have a right of appeal against the contents of the EHC Plan, but any appeal will now not be able to be heard in time for the start of the next academic year.
57. The Council has advised me in response to my draft decision that it accepts Mr Y’s EHC Plan omits a Section F. It told me this was due to an error in copying across the information from a digital platform and appears to have been human error rather than a systemic issue. The Council has offered to re-write the EHC Plan but Mr X has indicated he would prefer this to happen after a full review, which the Council has agreed will take place early next term. I welcome the steps the Council has already taken to work with the family since I issued my draft decision.

Injustice

58. I have found delay and fault in the Council’s EHC processes, reviews and in its complaint handling.
59. When someone has suffered because of fault, we try to put them back in the position they would have been if that error had not happened. Where that is not possible, we may recommend a financial payment to acknowledge the impact of faults. This is often a modest, symbolic amount. There must be a clear link between any fault we find and the personal injustice to the complainant.
60. Given the EHC Plan of 2023 contains no Section F provision, it is difficult for me to hold the Council accountable under s.42 of the Act as it is uncertain what was intended to be provided. What is clear is that Mr Y had known high level needs, he had previously attended a specialist placement with fulltime one-to-one support, and it was intended Mr Y would continue to receive significant support when he progressed to college (as this is set out as a need). I am therefore satisfied that on the balance of probabilities had the EHC Plan being properly quantified and specified it would have included far more support than Mr Y received. I cannot however say whether it would have included support across more days of the week, although I note Mr Y appears to be a young man who requires a high level of supervision to keep himself safe.
61. I find Mr Y has been denied the relevant support for two academic years at College A and College B. This has also had an adverse impact on Mr Y’s mental health and his own self-esteem as he now views himself as someone who has ‘failed’ at college.
62. I also find the faults I have identified have caused Mr and Mrs X additional time, trouble, distress, and frustration.
63. Mr Y and his family have also lost social care support at weekends as this funding was diverted to provide support that should have been made available via education funding.

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Agreed action

Within four weeks of my final decision

64. The Council will apologise to Mr Y and his family for the further faults I have identified in this decision statement.
65. The Council will make a symbolic financial payment to Mr Y of £6000 (£1000 per term) to reflect that he has not received the special educational provision that was intended, or that was promised as an outcome from Mr X’s complaint, and for the loss of social care provision at weekends.
66. The Council will make a symbolic financial payment of £1000 to Mr and Mrs X to reflect the impact of the fault on them, to include the distress, time and trouble and additional care and support they have had to step in and provide over a two year period.
67. The Council will liaise with the family to ensure Section F is properly quantified and specified so Mr Y has the correct support in place both to support his learning going forward and to ensure his safety. The Plan also needs to be clear about what provision is to be met by college, how many days of provision is to be provided, and what support is to be via social care as some provision (eg sport) appears in both education and social care sections.
68. The Council will offer to provide a key worker / named person to support Mr Y and the family through the receipt of his exam grades and the amendments required to his EHC Plan. It would also be good practice to ensure education and social care work together with the family to ensure a coherent package is in place and a smooth transition into adulthood.

Within two months of my final decision

69. The Council will review its processes to ensure:
• EHC review meetings are held in good time for pupils transitioning between placements with prompt decisions made and Plans reviewed and updated within timescales in the Act, Regulations and Code.
• EHC Plans are properly quantified and specified.
• Complaint outcomes are followed up and the Council has mechanisms to track agreed actions through to completion.
• It has mechanisms in place to ensure Section F provision is secured when a new or amended Plan is issued. Had this happened the deficiencies in Mr Y’s Plan would have been apparent at an early stage.
70. The Council will provide us with evidence it has complied with the above actions.

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Final decision

71. I have completed my investigation. There was delay in updating a Plan in time for a transition from school to college, a failure to specify and quantify provision, a failure to check special educational provision was in place and a failure to complete agreed complaint actions. This caused unnecessary distress and let to Mr Y missing out on education support at a crucial stage. I am satisfied completion of the agreed actions set out above are a satisfactory remedy for the injustice caused. The complaint is upheld.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman