Summary: There was fault by the Council in failing to review and amend an Education, Health and Care (EHC) Plan in time for a transition between post-16 placements, so Mr Y had no setting to attend for the 2023/24 academic year. As a result, Mr Y missed out on education in his EHC Plan, and the family was caused unnecessary distress. The Council will apologise, reimburse the family, make a symbolic payment and service improvements. The complaint is upheld.

The complaint

1. Ms X complains on behalf of her son, Mr Y. Mr Y is a young adult and has an Education, Health and Care (EHC) Plan maintained by the Council.
2. Ms X complains about the way the Council managed Mr Y’s annual reviews in 2015, 2016 and 2023. Ms X says delay has left Mr Y without a placement to attend in 2023/24 academic year and she has been funding tuition herself.

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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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)
6. 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)
7. 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.
8. We cannot investigate most complaints about what happens in schools or colleges. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
9. 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

10. I have not investigated the annual reviews in 2015 and 2016. I have seen no reason why Ms X could not have raised these complaints at the time. (Local Government Act 1974, sections 26B and 34D, as amended)
11. I have investigated the 2023 review and subsequent events.

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How I considered this complaint

12. I have considered information provided by Ms X, her Representative and the Council including the complaint documents and EHC Plan.
13. 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’)
14. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
15. Ms X and the organisation 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 law and guidance

16. 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. 

17. 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 of (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)  

18. The Code (9.132-3) says the council is only relieved of its duty to secure the special educational provision in the EHC Plan, including securing a place at a school or college named in the plan, if the parents or young person has made their own arrangements for example in an independent college or at home and the Council has satisfied itself these arrangements are suitable. A council is therefore under an obligation to secure provision at a type of school or college if a type is named.

19. 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.

20. 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) 

21. 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. A final amended plan should be issued no later than twelve weeks after the review meeting. R(L,M and P) v Devon County Council [2022]

22. 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. If the child’s parents or the young person disagree with a 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.

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. Where the transfer is between post-16 placements it must be completed five months before the transfer.

Key events

24. Ms X says the Council conducted annual reviews in 2015, 2016 and 2023 and failed to issue decision letters.
25. The 2023 review was held in Spring 2023. If the Council wished to amend the Plan, it needed to issue an amended final plan by late June. The Council did decide to amend the Plan but was seven months late in doing so. This left Mr Y without a placement for 2023/24. The Council says the review was partly delayed due to a discipline issue, and the need for further assessments, and it would otherwise have been completed on time.
26. Ms X complained in Autumn 2023 the EHC Plan was out of date and that Mr Y was out of education or training. Ms X says the family tried to find a supported internship and tried to get college offers, but this was difficult as the EHC Plan was out of date.
27. Ms X says she paid for functional English and maths tuition and workbooks.
28. Ms X says the seven-month delay meant they had no right of appeal against the failure to name provision for 2023/24.
29. Ms X said while the Council’s complaint responses accepted some fault no suitable remedy was offered. The stage one response upheld the EHC Plan had not been correctly reviewed or regularly updated. The Council partially upheld the complaint Mr Y had no placement. It said the college Mr Y attended had arranged the annual review in Spring 2023 but had not submitted the paperwork to the Council until Autumn 2023. The Council said it had chased the college on several occasions, but accepted it was the Council’s duty to ensure the annual review was completed. The Council said the college would not let Mr Y continue onto level 3 courses in 2023/24 because he had not achieved the grades recommended for English and Maths to do so. The Council said Ms X wanted Mr Y to continue at another college and obtain Level 2 Maths and English, but the Council said Mr Y had already completed a level 2 qualification and it considered him ready for employment and would be ceasing the Plan.
30. Ms X disagreed and said Mr Y needed to continue with English and Maths studies.
31. At stage two the Council agreed to amend the EHC Plan instead of ceasing it. It acknowledged Ms X and Mr Y had been denied a right of appeal and time to consider future options.
32. The final EHC Plan was issued two months later in early 2024 and named a type of placement (mainstream post-16) but not a specific setting.
33. In Spring 2024, Ms X’s Representative complained to the Ombudsman that the Council had not issued timely decisions for annual reviews on several occasions. While the Council had admitted delay in the Spring 2023 review, it had offered no remedy and not acknowledged that as a post-16 placement the Plan should have been updated five months before the transfer in Autumn 2023. Mr Y was still being educated at home with no placement assigned. The requirements to cease a Plan had not been met; the decision was made late and was not made after a review or consultation with the family so did not follow a lawful procedure. Although this was later overturned, no apology was given for the distress caused. Ms X’s Representative said the Council has not secured the special educational provision in Section F of the Plan since Autumn 2023 and not sought updated evidence to inform the amended Plan.
34. The Council told me Ms X has not appealed the 2024 final Plan. It accepts it was not possible for Mr Y to start a new course mid-year, and it did not make special education provision available to him in the 2023/4 academic year.
35. The Council said there was disagreement about Mr Y’s ability to progress to higher level courses. Mr Y had taken several level one and two courses, including English, but had not passed any maths qualifications. The Council acknowledged Mr Y needs life and employability skills.

Analysis

36. There was delay in failing to complete the Spring 2023 review in a timely way. Where a transfer is proposed the Plan should be amended five months in advance, however, when a pupil fails to meet the grades to progress then this timescale may not be met as new options may need to be considered. Sometimes it is inevitable that changes do have to be considered over the Summer. The Council has accepted that while the college delayed returning the documentation, the overall duty lay with the Council to ensure the legal timescales were met.
37. I note the Council has now told me the delay was due to a disciplinary issue concerning Mr Y and new assessments being completed. I have not seen evidence of new assessments and note that this is a different reason than was given in the complaint process. I have acknowledged above that changes to the Plan may not have been finalised until the Summer, but I do not find any justification for the review not being completed in time for the start of the Autumn term. It was at this point that the delay began to cause significant injustice.
38. The Council’s attempt to cease the Plan by letter, without considering if the legal test was met, and without consulting, was fault. However, this decision was withdrawn.
39. I find the Council failed to plan Mr X’s transition post Summer 2023, leaving Mr X and his family suddenly without any provision. This was fault and has caused unnecessary distress, expense, and injustice.
40. Mr Y has missed a year of education. His EHC Plan remained in force and the Council, under s.42 of The Act, was responsible for ensuring he received all the provision in it that he remained legally entitled to, including a place at the type of college named. Failure to do so was fault.
41. The missed provision included integrated therapies, life skills and sport. While I acknowledge once the above faults had been made, it would have been too late for Mr Y to join a college course mid-year, this did not absolve the Council of its responsibility to provide the special educational provision in the Plan. The Council could have investigated alternative education, as Ms X was able to secure.
42. That Mr Y had no placement to attend has placed extra responsibility on the family to provide care and pay for education to keep Y engaged in learning when they would have expected him to be in college or training and to be funded.
43. The right of appeal was delayed by seven months, but it does not appear Ms X has used it. Given it was too late to start a new course this is understandable.
44. Ms X’s Representative informs me the Council has very recently identified a college and Y has now started to attend. The Council now needs to amend the Plan and ensure Ms X and Mr Y have a right of appeal. The Ombudsman would expect a family to appeal a final Plan if they disagreed with its content.
45. Our Guidance on Remedies sets out our approach to quantifiable and non-quantifiable loss when a young person has missed out on education. When assessing the relevant figure, we will take into account any provision that has been made, including that funded by families.

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Agreed action

Within four weeks of my final decision:

46. The Council will update the final EHC Plan to allow Ms X and Mr Y a fresh right of appeal should they remain dissatisfied with the placement, or if they consider the description of Mr Y’s needs and supporting evidence is out of date. The Tribunal has case management powers which can include requesting evidence to enable it to remake an EHC Plan.
47. The Council will apologise to Ms X and Mr Y for the faults identified in this decision statement.
48. The Council will reimburse Ms X £6888.19 for expenses incurred:
• £6300 tuition
• £20.90 textbooks
• £528.29 and £39 exam fees.
49. The Council will pay Ms X on behalf of Mr Y £4500, being £1500 per term to recognise the other education including therapies and support with developing life skills which he missed out on last academic year.
50. The Council will provide us with evidence it has complied with the above actions.

Within eight weeks of my final decision:

51. The Council will review its practices to ensure that:
• EHC Plans for young people coming up to transition, or who will need to change post-16 placements, are identified in good time and their reviews completed in line with statutory timescales.
• EHC Plans are not ceased inappropriately, and this only happens after the Council has followed the statutory procedure in the Act, Regulations and Code.
• Officers are alert to where Plans have not been updated over many years and consider obtaining updated evidence where this will be needed to decide, for example, whether therapies need to continue post-16.
• Where a child or young person has an EHC Plan but no setting has been named in time for the new academic year, the Council puts in place appropriate alternative provision and keeps these pupils under regular review until they return to formal education. This should include commissioning therapies where these are listed a special educational provision in their Plan.
• When upholding complaints at local level, complaint officers should consider whether a remedy, including a symbolic financial payment, is merited. This would prevent cases unnecessarily being brought to the Ombudsman that could have been resolved upstream.

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Final decision

52. I have completed my investigation. There was fault by the Council in failing to review and amend an EHC Plan in time for a transition between post-16 placements, so Mr Y had no setting to attend for the 2023/24 academic year. As a result, Mr Y missed out on education in his EHC Plan and the family was caused unnecessary distress. I am satisfied the agreed actions set out above are a suitable 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