Summary: There was delay in completing an annual review for a young person due to move between post-16 placements and fault in the complaint process. This meant a young person could not start their course on time and missed a year of education. The Council will apologise, make a symbolic payment, and carry out service improvements. The complaint is upheld.

The complaint

1. Ms X complains on behalf of her child, Y. Y has an Education, Health and Care (EHC) Plan maintained by the Council. Ms X complains the Council delayed in completing an annual review in 2023 and has failed to secure provision in Y’s EHC Plan since September 2023. Y has missed a year of education.

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The Ombudsman’s role and powers

2. 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)
3.  Before considering a complaint, the Ombudsman should be satisfied the Council has had an opportunity to investigate and respond to a complaint. (Local Government Act 1974, section 26(5))
4. 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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How I considered this complaint

5. I have considered information provided by Ms X and the Council including:
• Complaint documents
• EHC Plan
• Amendment notice.
6. I have spoken to Ms X by telephone.
7. 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’).
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
9. 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 law and guidance

10. 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 the council can do this. 

11. The council has a duty to make sure the young person receives the special educational provision set out in section F of an EHC Plan of (Section 42 Children and Families Act).
12. EHC plans must be reviewed at least every twelve months. The annual review process requires information to be gathered from the family, professionals and the education setting. A meeting must be held, and a report produced for the Council. On receipt of the report the Council must make one of three decisions:
• To amend the plan;
• To keep the plan the same;
• To cease the plan.
13. If the decision is to amend the Plan, then the Council must both notify the parent of a decision to amend, and what the proposed changes are, within four weeks of the annual review meeting. (R(L,M and P) v Devon County Council [2022])
14. The final EHC Plan must be issued as soon as practicable and within a further eight weeks of amendment notice. Councils must send the final EHC Plan within a maximum of twelve weeks of the annual review meeting.
15. 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.
16. Councils must arrange suitable education at school or elsewhere for pupils of compulsory school age who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. (Education Act 1996, section 19) 

What happened

17. Y has chronic fatigue syndrome (CFS). In 2021 the Council issued an EHC Plan naming a further education college, College A.
18. In Summer 2023 Y’s college course ended. College A held an annual review. The Council acknowledges it received the report and paperwork on time. The Council’s decision was to amend the Plan. It took over three months to make this decision. It issued an amendment notice and draft amended Plan in late October, but this was after Y’s proposed next college course was due to start. The course was online because Y’s CFS meant Y could not attend face to face.
19. Ms X says the Council delayed in taking the matter to panel for a decision. This meant it was too late to start the course. Y had missed three months and would have struggled to catch up, even if Y did not have CFS.
20. Ms X says she investigated other options and interim provision. Ms X found an alternative and paid for an assessment. Ms X says again the Council did not progress the matter.
21. The Council admitted fault in its complaint response. It said it would liaise with the family to find interim provision and keep in regular touch with the family. This did not happen.
22. The Council accepted in its stage 2 response in Spring 2024 there had been continued delay and Y would not now be able to start a course until September 2024.
23. The Council had agreed at stage one to reimburse Ms X £225 for assessment fees, but then failed to pay this. The Council accepted fault in failing to do so in its stage 2 response. It then paid £200.
24. Apart from offering apologies the Council offered no remedy to Y for missing a year of education. The Council said it would consult colleges for September 2024, but Y remains without provision.
25. I spoke to Ms X and Y. Ms X said Y had been on a pathway to university and the remote course in September 2023 was all set up and just needed the Council to confirm funding with the college. Ms X said Y is now three years behind peers. Y is now post-19.
26. Ms X said Y needed advice about what options are available and once an appropriate course is found they need the Council to move swiftly to put the provision in place. Ms X says due to CFS, Y may need to complete a course remotely, or over a longer period.
27. Ms X said it had been an ‘emotional rollercoaster’ for Y and they wanted to avoid a repeat of the situation where a course was identified, but then fails to get put in place, because the Council is too slow to action it.

Analysis

What I have investigated

28. I have investigated the academic year 2023-4 only. This is the period covered by the local complaints process. If delay continues into 2024-5, I consider it would be reasonable to allow the Council an opportunity to respond to this before it is considered by the Ombudsman. (Local Government Act 1974, section 26(5))

Fault

29. Y was above compulsory school age in 2023 so the Council did not have a duty to provide alternative education under s.19 Education Act, but did have a duty to ensure Y received the special educational provision in the EHC Plan.
30. The Council should have ensured an annual review was completed five months before the 2023/4 academic year as Y was moving between post-16 placements in Autumn 2023. This did not happen. This was fault.
31. The review was instead held at the end of the Summer 2023 term. The Council should have decided within four weeks of the review meeting whether to keep the plan the same, amend it, or cease it. It decided to amend but took 12 weeks too long to make this decision. This was fault.
32. The Council should have issued an amended final Plan within 12 weeks of the annual review meeting, that is no later than the end of September. It failed to do so; this was fault. As a result, Y could not start the college course as planned. As the Council never finalised the Plan, Y has missed a whole year of education and had no right of appeal.
33. The Council admitted fault in early 2024 and promised to find interim provision, refund expenses of £225 Ms X had incurred sourcing college courses, and to keep in regular contact. It did not complete any of the promised actions. This was further fault. The Council acknowledged this in its stage two response, but the delay and poor communication has continued.
34. Ms X tells me she did source a music course and the Council has provided some funding for this but has not kept its promise to find an alternative college course or tutors.
35. Councils can use panels to ensure consistency of decisions, but this must not add delay and does not alter the statutory timeframes for reviews and transfers between post 16 placements.
36. Dur to poor communication and further delay since the stage two complaint response, Y remained without access to college and to the special educational provision in the EHC Plan.

Injustice

37. Y has missed the whole 2023/4 academic year of college and provision in the EHC Plan.
38. As well as missing working towards additional qualifications, Y has missed out on the special educational provision in the EHC Plan designed to prepare Y for adulthood. Y is very aware that she is falling further and further behind peers.
39. The fault has caused unnecessary distress, uncertainty, frustration, time and trouble.
40. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2400 per term based on the young person’s special educational needs, any provision that was put in place, whether it has affected a young person gaining qualifications and whether additional provision can now remedy some or all of the loss. I have recommended a symbolic payment for the academic year 2023-4 only.
41. If delay continues Ms X can make a new complaint for 2024-5. The Council should consider the Ombudsman’s Guidance on Remedies when considering any future complaint.

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Agreed action

Within four weeks of my final decision:

42. The Council will apologise to Ms X and Y for the continued delay and lack of communication after the stage two complaint response.
43. The Council will pay Y £4500 to acknowledge the loss of provision for the academic year 2023/4. This figure acknowledges Y may have taken longer to complete the course than one year due to CFS and that only one course was expected to be taken.
44. The Council will reimburse Ms X £25 expenses previously agreed in addition to £200 it has already repaid.

Within two months of my final decision:

45. The Council will signpost Y to careers advice and details of short-term and long-term provision that may be suitable given Y is now post-19. The Council will work with Y in a person-centred way and ensure Y has time to reach an informed decision about next steps.
46. Once provision is identified the Council will ensure this is actioned, without delay, together with any amendment of the EHC Plan and confirmation of funding arrangements.
47. The Council will ensure phase transfer reviews are held and processed on time and use of panels to make decisions does not delay provision or lead to statutory timescales being missed.
48. The Council will ensure it follows up complaint actions to completion and has a process to check this happens.
49. The Council will provide us with evidence it has complied with the above actions.

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Final decision

50. I have completed my investigation. There was delay in completing an annual review for a young person due to move between post-16 placements. The delay meant Y could not start the course on time and missed a year of education. There was also delay in completing complaint actions. I am satisfied 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