Summary: The Council was at fault for causing a delay when finding Mr X a new post-16 educational placement. This meant he was out of education for more than two terms longer than he needed to be. It has agreed to make symbolic payments to recognise the injustice caused to Mr X and his mother, and it will take steps to improve its service.

The complaint

1. The complainant, whom I refer to as Mrs Y, complains on behalf of her young adult son, Mr X.
2. Mr X is blind, epileptic and autistic. Until June 2022 (when he was 20), he attended a weekly residential school.
3. Mrs Y complains that, after Mr X left the school, the Council failed to arrange education for him until September 2023, despite her “chasing, emailing, and calling constantly”.
4. Mrs Y also says the Council then ‘rushed through’ finding a new placement for
   Mr X and put him somewhere unsuitable.
5. Mrs Y says this matter caused Mr X to lose education and caused the whole family distress.

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The Ombudsman’s role and powers

6. 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)
7. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
8. 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.
9. If we are satisfied with a council’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)
10. 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

11. I have investigated Mrs Y’s complaint about the Council’s delay in finding Mr X a new placement.
12. However, I cannot investigate her complaint about the suitability of Mr X’s new placement, or the way in which the Council decided its suitability. This is because she has appealed the placement to the SEND Tribunal. Our role cannot overlap that of the Tribunal.

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How I considered this complaint

13. I considered:
• Information from Mrs Y and the Council.
• The statutory SEND code of practice.
• Our guidance on remedies.
14. Mrs Y 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

The SEND code of practice

15. A child or young person with special educational needs may have an education, health and care (EHC) plan. This document sets out their needs and what arrangements should be made to meet them.
16. The EHC plan is set out in sections which include section I (the name of the educational placement).
17. A ‘young person’ is defined as someone with an EHC plan who is over the compulsory school age and under 25.
18. When a young person is moving between post-16 institutions, the council must review and amend their EHC plan at least five months before the transfer takes place.
19. A young person may not meet the entry requirements for their chosen course or may change their minds about what they want to do after the five-month deadline. If this is the case, the council should review their EHC plan as soon as possible, to ensure alternative options are agreed and new arrangements are in place in advance of the start date.
20. Attendees of review meetings must be given at least two weeks’ notice of the meeting.
21. If a council proposes to amend an EHC plan, it must send the child’s parent an amendment notice. This should happen within four weeks of the date of the review meeting.
22. The council must then issue the amended EHC plan as quickly as possible, and within eight weeks of the original amendment notice.

What happened

23. In mid-2021, Mr X – who was 19 – was meant to be in his final year at school. But the school agreed to keep him on. The school says the Council agreed to this. Mrs Y says this was meant to be until Mr X turned 25.
24. In January 2022, the school held an annual review of Mr X’s EHC plan. There is nothing in the meeting record about plans for a new placement in September (or about Mr X leaving at the end of the academic year).
25. In June, Mrs Y says Mr X’s school ended his placement without warning. She contacted the Council to find out where Mr X’s new placement would be. She did not receive a response.
26. In August, Mr X’s MP contacted the Council about his situation. The Council replied, apologising for the standard of service Mrs Y had received. It said this had been caused by long-term sickness within its SEND team.
27. In September and October, the Council spoke to Mr X and his social worker about their views on his education. It said it was updating his EHC plan.
28. However, nothing further was done until December, when Mr X’s MP contacted the Council again. The Council responded in early January 2023, apologising again for the lack of progress.
29. The Council held an annual review of Mr X’s EHC plan the following week. It agreed to amend the plan, and, after the meeting, wrote to Mrs Y to tell her.
30. In February and March, the Council consulted colleges for Mr X.
31. In July, Mrs Y wrote to the Council, complaining about delays. She did not receive a response.
32. In August, Mrs Y made a formal complaint about Mr X’s lack of education. The following day, her MP also sent the same complaint to the Council at Mrs Y’s request.
33. The Council responded to the MP, rather than dealing with the correspondence as a formal complaint.
34. In September, the Council issued Mr X’s amended EHC plan, naming a local college. Mrs Y appealed to the SEND Tribunal. A hearing date is due later in 2024.
35. In April 2024, after Mrs Y had complained again, the Council sent her its final response. It acknowledged that there was a delay in updating Mr X’s paperwork and completing his review following the end of his previous placement. It apologised again.

My findings

36. Mr X’s placement ended in June 2022 without notice. So the first the Council heard about Mr X needing to move between post-16 institutions was the same month, when Mrs Y let it know.
37. This means it would not be reasonable to expect the Council to have consulted and named a new placement five months before the start of the new term in September 2022.
38. However, once the Council found out Mr X could no longer attend his college and needed a new placement, it should have reviewed his EHC plan as soon as possible to make sure new arrangements were in place.
39. The Council found out that Mr X’s placement had ended in mid-June. Even if it had acted without delay, it would have needed to give attendees of a review meeting a fortnight’s notice, and then it would have had up to 12 weeks to consult new placements and amend his EHC plan.
40. Because of this, I would not expect the Council to have got Mr X into a new placement by the start of the new term. But, if it had reviewed his plan ‘as soon as possible’, as required by the SEND code of practice, this could have been achieved a few weeks later – certainly by October 2022.
41. In fact, the Council did not consult any placements until February 2023, and did not name a new placement in Mr X’s EHC plan until September 2023.
42. This was a significant delay, for which the Council was at fault.
43. The Council has explained the delay to Mrs Y by referring to staff absence. I see no reason to doubt that this was the case; however, the time limits in the SEND code of practice are statutory and non-negotiable.
44. I consider it likely that, had the Council acted in accordance with its statutory responsibilities, Mr X could have started a new placement (whichever placement that might have been) at some point in autumn term 2022. Its failure to do so meant he missed at least two terms of education.
45. It is no longer possible to recover the benefit that Mr X would have received from having education throughout the time he was without it – particularly the social benefits he missed.
46. Consequently, the most suitable remedy available to him is a symbolic payment, in line with our guidance. The Council should now make such a payment.
47. It is also likely that Mrs Y suffered avoidable distress from having to deal with the matter for almost a year when she should not have needed to. Furthermore, it is apparent, from the evidence I have seen, that some of her correspondence went unanswered. The Council should make a further symbolic payment to her for her own injustice.

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Agreed actions

48. Within a month, the Council has agreed to:
• Make a symbolic payment to Mr X of £2,500 to recognise that he missed the benefits of having an education for more than two school terms.
• Make a further payment to Mrs Y of £500 to recognise that she spent time trying to secure education for Mr X during a period of almost a year.
49. Within two months, the Council has agreed to send us an action plan which sets out how, in future, it will avoid similar problems in amending EHC plans in accordance with statutory timescales.
50. The Council will provide us with evidence it has done these things.

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Final decision

51. The Council was at fault, and that this caused injustice to Mr X and Mrs Y.

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Investigator's decision on behalf of the Ombudsman