Summary: We are satisfied the Council was not party to a decision to end the complainant’s educational placement at a college. However, there was fault, because the Council drew an incorrect assumption about what she wished to do next. This caused some uncertainty and frustration, for which the Council has agreed to formally apologise. There is no evidence the Council has failed to properly use additional funding it has received to provide more local specialist educational placements.

The complaint

1. I will refer to the complainant as Miss P. Miss P is represented in her complaint by her father, Mr L.
2. Mr L says Miss P’s college terminated her course unexpectedly at the end of the 2022/23 academic year. He complains this decision had been made a year earlier, and that the Council had been party to it, but had failed to inform him or Miss P, or take any steps to arrange a new placement. Mr L also complains there is no local facility which will take students with EHC plans up to the age of 25, despite the Council having received funding from the Government to improve the availability of SEND provision.

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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)

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How I considered this complaint

4. I reviewed Mr L’s correspondence with the Council, Miss P’s education, health and care plan, review paperwork and other associated documents, and a chronology provided by the Council.
5. I also shared a draft copy of this decision with each party for their comments.

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What I found

6. The following chronology will provide a summary of the key events relevant to this complaint. It is not intended to be exhaustive and will not include every detail of what happened.
7. Miss P has physical and learning disabilities. She is subject to an education, health and care (EHC) plan.
8. Miss P was attending a post-16 education course at a local college. In June 2022, following an annual review of her EHC plan, the college offered her a continued placement for the 2022/23 academic year, to enable her to develop her employability skills. The placement was a single year course, to be completed at the end of academic year.
9. In April 2023 there was another review of Miss P’s EHC plan. At this point, the college confirmed it would not offer her a further placement. This was because she had completed her course, and the college did not consider it had any other suitable course to offer Miss P.
10. The Council then proposed to cease Miss P’s EHC plan, on the basis it had served its purpose and could not achieve anything more. Mr L objected to this because he did not consider Miss P was ready for employment yet and needed to remain in education to the age of 25. In May, the Council agreed to maintain Miss P’s plan and began the process of drafting an amended version.
11. In October Mr L submitted a stage 1 complaint to the Council. He said that Miss P had an ongoing EHC plan but currently had no educational placement to attend. He complained Miss P had had to leave her college, where she was settled and happy, for reasons she did not understand. He also complained there was no alternative local educational setting for Miss P and described this as disability discrimination on the Council’s part. He said he was now having to look outside of the Council’s area for a suitable placement for Miss P.
12. Mr L also complained the Council had received ‘safety valve’ funding from the Government to support local SEN provision, and said for this reason the Council should be able to provide a placement for Miss P within its area.
13. The Council responded on 22 November. It explained it had originally proposed to cease Miss P’s EHC plan, because the college had said the outcomes the plan set out would be achieved by the end of the 2022/23 academic year. The Council acknowledged Mr L did not share this view, but noted there was no progression option for Miss P at the college.
14. The Council explained that, while the college was required to make reasonable adjustments for students with disabilities, the law still requires prospective students to meet a college’s entry requirements for any particular course. It therefore had had to accept the college’s decision that Miss P could not continue there.
15. The Council said it had decided to maintain Miss P’s EHC plan in recognition of her desire to remain in education, and also because there was no current transition plan in place for her to move to the next stage of her life. It noted that Mr L had already been researching alternative placements for Miss P. The Council explained it could not always offer suitable placements within its area, and under such circumstances it would work to find an appropriate setting as close as possible. It said it had undertaken timely consultations with other colleges, beginning in June, and it had now decided to name a particular provider.
16. The Council acknowledged Mr L’s frustration that there had been a gap in Miss P’s provision, but said it had followed the statutory process. It said that the requirement to consult with multiple providers, and a delayed consultation response from one provider, had contributed to the delay.
17. In closing, the Council explained that the ‘local provision’ requirement of the safety valve funding agreement did not mean the provision must be in the Council’s area. It also noted the funding was to increase the availability of specialist SEN provision, but said that the provision Mr L had referred to in his complaint was mainstream.
18. Mr L submitted a stage 2 complaint on 6 December. He said the law required the college and Council to offer placements up to the age of 25, where this was necessary for the particular student. Mr L said “new evidence” had come to light which he said showed the college imposes time limits on SEN students’ placements. He complained he could find no copy of any council policy or procedure for transition for students after the age of 18, and asked the Council to provide a copy of these documents.
19. Mr L said Miss P had now been out of education for the whole term, and was facing the possibility of having to attend an unfamiliar establishment alongside strangers. He questioned the Council’s statement about the meaning of ‘local provision’ in the safety valve funding agreement, and asked how it was an efficient use of the Council’s resources for Miss P to attend a college in a different area, with the additional transport and support costs this would entail.
20. The Council responded on 5 February 2024. It noted a new placement had been offered to Miss P on 11 October, and said the Council had been working with all parties to facilitate this. It also said Miss P’s social worker was working with her to identify what she would like to when her course finished in July.
21. Noting Mr L’s comment about the Council’s use of resources, it explained that the Government’s funding agency requires further education institutions to demonstrate progress by students on courses it funds. The Council reiterated the college had shown that Miss P had met the outcomes set out in her EHC plan.
22. The Council said that, where a person over 18 has an EHC plan, any educational course was subject to a one-year limit, with an annual review at the end. The review would then determine whether the plan should continue. As part of this decision, the relevant authority must consider whether the plan’s objectives had been achieved. The Council confirmed that both it and the college provide courses up to the age of 25, where appropriate.
23. The Council acknowledged that Miss P’s case had highlighted a need for it to develop a policy about ceasing EHC plans for people aged 19-25, and to review its procedure for such people to transition between further education providers, where necessary. The Council committed to doing so. However, it reiterated it did not agree there was a gap in local SEN provision, and that the safety valve funding it had received was to generally increase the availability of such provision locally.
24. Mr L replied with a further series of comments reiterating the points he had made previously. He attached to this a copy of an email he had received from his MP’s office in November 2023, which had been in contact with the college on his behalf. The email included this comment:

“[The college principal] tells us that … following [Miss P] undertaking a ‘taster’ session within the College … it was identified that [she] was unable to access the Level 2 provision during these activities. He says that, following a review of [Miss P’s] next steps on 10 June 2022, the local authority confirmed that [she] could continue her studies … for a maximum additional duration of one academic year.”

It is not clear whether the Council responded to Mr L’s further comments, and on 20 February he referred his complaint to the Ombudsman.

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Legislative background

25. 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.
26. 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.
27. 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.

Analysis

28. There are, broadly, three elements to Miss P’s complaint, which I will address in turn.

Was the Council party to the decision to restrict Miss P’s placement at the college to one further year?

29. Mr L is of the view the Council, in June 2022, directed the college to allow Miss P to remain at the college for one further year only. In support of this, he refers to the email he received from his MP’s office. The college principal’s words, as reported by the MP’s office, were that the Council “confirmed that [Miss P] could continue her studies … for a maximum additional duration of one academic year”.
30. I asked the Council for its comments on this. In reply, it said “the course offer [in June 2022] was a 1-year study programme, with [Miss P] completing the course at the end of the academic year 2023. It was not a termination of [her] placement, but the completion of her study programme. The local authority did not instruct [the college] to terminate [Miss P’s] placement and there is no record of this.”
31. I acknowledge the MP’s email can be read to mean it was the Council’s decision that Miss P should only be permitted one year further at the college. However, on balance, I consider it most likely this was a misrepresentation, or a misinterpretation, of the principal’s words. This is because it was not, ultimately, up to the Council whether the college should offer Miss P a further placement – this was a decision for the college to make. The Council’s power was simply to decide whether to maintain or cease her EHC plan. Given the Council’s eventual decision to maintain the plan, there is no logical reason why it would have been opposed to her remaining at the college.
32. Rather, it instead appears simply that neither the Council nor college expected Miss P to remain on roll after the completion of this course; but also that Mr L did not appreciate this. This was unfortunate, but I do not consider I can reasonably suggest the Council was at fault for this. College courses are generally time-limited, and there is nothing to suggest the Council or college had implied Miss P would be offered a further placement when her course ended in July 2023.
33. I find no fault in this element of Miss P’s complaint.

Should the Council have acted more promptly to find a new placement for Miss P?

34. Although, for the reasons set out above, I am satisfied it was not the Council’s decision not to offer Miss P a further placement at the college, it does appear clear the Council was aware this was likely to happen. This raises the question, therefore, whether the Council should have considered sooner what her next steps would be.
35. I am conscious the Council initially proposed to cease Miss P’s EHC plan at the conclusion of the 2022/23 academic year, which indicates it did not expect her to remain in education after this point. This being so, it appears logical that the Council did not consider, at that point, what other providers and courses might be suitable for Miss P once she had completed her current course.
36. However, equally, this decision does not appear to take into account Miss P’s own thoughts on her future after the 2022/23 year. Once the Council understood Miss P wished to remain in education, it reversed its decision to cease the EHC plan, began working on a new draft, and started consulting with other providers.
37. Taking these points together, it seems reasonable to say the Council prematurely drew a conclusion about the end of Miss P’s education, without clarifying what she actually wanted to do. The Council’s own criticism, about its lack of a robust transition policy for people in Miss P’s situation, appears to bear this out. I therefore find fault for this reason.
38. It is more difficult though to define any substantive injustice arising from this fault. It could be said that, had the Council clarified Miss P’s thoughts on the matter sooner, it would have been able to start working on her new plan, and seeking a new placement, earlier. In turn, this might have meant that her new placement was ready for her in September 2023.
39. I am not convinced this is necessarily right though. Even accepting the delay caused by the Council’s misplaced assumption, it began the consultation process for a new placement in June 2023, and had received two positive responses by the end of the academic year, and another during the summer holiday. Unfortunately the consultation process then became somewhat drawn out, with an extended exchange with one provider (the one the Council eventually named as Miss P’s new placement) which lasted until October. This does not mean, however, this provider would necessarily have offered her a placement by the start of the new year, even if the Council had consulted with it sooner.
40. On balance, therefore, I consider I can say only that the Council’s fault caused some uncertainty and frustration to Miss P. I am not persuaded there is enough evidence to say it directly led to any missed educational provision (and I should note that, unlike for a child 16 or under, there is no legal requirement for the Council to arrange alternative provision under these circumstances). I consider an appropriate remedy for this injustice is for the Council to write a formal letter of apology to Miss P, acknowledging its fault. I make a recommendation to this effect.
41. I find fault causing injustice in this element of Miss P’s complaint.

Should the Council be able to offer Miss P a placement in its area, given the safety valve funding it has received?

42. The funding agreement signed by the Council refers to it being provided with the aim of improving ‘local provision’. Mr L and the Council disagree over the definition of ‘local’ in this context, with Mr L taking the view that it means ‘within the Council’s geographical jurisdiction’.
43. I note Mr L has said, in correspondence with the Council, that it is for the Ombudsman to interpret the proper meaning of ‘local’ here, but this is not correct. We have no power to determine the proper meaning of a legal agreement – this would be either for the Government (as the other party to the agreement), or ultimately the courts, to clarify.
44. I can say, however, it is not uncommon for councils to find ‘out of area’ educational placements for children and young people with EHC plans. The fact this has happened in Miss P’s case, therefore, does not mean the Council is at fault.
45. Either way, I do not consider the Council’s receipt of this funding to be a material point here. The purpose of such funding is to increase the availability of provision in the general sense. It is not a grant for individual students, and it does not mean that every single eligible child or young person will be guaranteed to receive a suitable placement in their area of choice.
46. I find no fault in this element of Miss P’s complaint.

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Agreed action

47. Within one month of the date of my final decision, the Council has agreed to write a formal letter of apology to Miss P, acknowledging it made an incorrect assumption about her wishes, and that this caused some uncertainty and frustration to her. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended in my findings.
48. The Council should provide us with evidence it has complied with the above actions.

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Final decision

49. I have completed my investigation with a finding of fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman