Summary: Miss X complained that the Council had delayed a review of her son’s (Y) Education Health and Care Plan in the year when Y was moving to his post-16 education. We found fault with the Council which caused injustice to Y and Miss X. The Council has agreed to apologise and make symbolic payments to Y and Miss X to recognise their distress.

The complaint

1. Miss X complains about the Council’s failure to comply with the statutory timescales for a review of her son’s (Y) Education Health and Care (EHC) Plan before he moved to the post-16 education. As a result Y was left without education which also affected his mental health. The Council’s failings caused Miss X distress, impacted her work and had a negative effect on the whole family.

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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. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
4. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
5. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. 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)
7. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

8. I have not investigated anything that happened after August 2024. Miss X complained to the Council about its failure to comply with the statutory timescales for Y’s EHC Plan review in a year when he was transferring to post-16 education and this is what I have investigated. Any other issues would need to be raised with the Council first. As explained in paragraph four we would normally not investigate anything before the Council knew about it and had an opportunity to respond.
9. I have not investigated any actions of Y’s school during the review of his EHC Plan. The law does not allow us to investigate such matters.

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How I considered this complaint

10. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
11. Miss 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

Legal and administrative framework

12. 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.
13. 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) 
14. 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.  

What happened

Background

15. Following an emergency review of Y’s EHC Plan carried out in June 2022 at Y’s school’s (the School) request, the Council issued Y’s final amended EHC Plan in December 2022.
16. In February 2024 we issued a final decision finding fault with the Council for its delay in finalising Y’s EHC Plan after the review of Y’s EHC Plan in June 2022 and its failure to act properly to ensure Y was receiving education when he was out of school between October 2022 and July 2023.
17. After the Council’s Learning Support team had assessed Y at the beginning of October 2023, the School arranged for him to attend its alternative provision. This continued until July 2024.
18. In 2023/2024 Y was in Year 11.

EHC Plan review

19. During a telephone conversation in mid-April 2024 Miss X told the Council’s officer (the Case Officer) that Y’s EHC Plan review had taken place in February or March 2024. She wanted Y to continue attending the alternative provision arranged by the School for two days a week.
20. The case notes suggest a review of Y’s EHC Plan took place at the end of February 2024.
21. The Case Officer asked the School to send her the Annual Review documents. She said the Council could only decide about Y’s post-16 placement after finding out his views and wishes obtained during the review of his EHC Plan.
22. The School told the Case Officer Y could not continue his education at the School’s sixth form college because he did not meet its minimum entry requirements. He had been successfully educated at the alternative provision arranged by the School but it said he could not access this provision in the following school year if he were not on the School’s roll.
23. The Case Officer contacted Miss X and discussed with her the option of Y repeating a year at the School and continuing attending the alternative provision. The Case Officer said she would send Miss X the Annual Review paperwork once she received it from the School.
24. In mid-May 2024 the School sent the Case Officer an Annual Review report. This report suggested a review meeting took place in mid-May rather than in February. The School recorded Y’s wish to attend a specific course at the local campus of a further education college (the College).
25. At the end of May 2024 Miss X complained about the Council’s failure to secure suitable education for Y and to complete his Year 11 review.
26. At the beginning of June 2024 the Case Officer sent Miss X an amendment notice. As Miss X found it difficult to access this document in the Council’s Portal, the Case Officer sent it also by post. The Case Officer sent consultation letters for a post-16 placement for Y to the School and the College.
27. In mid-June 2024 the Case Officer told Miss X the College agreed to be named in Y’s EHC Plan, but Y would need to apply for a place on a specific programme.
28. At the end of June 2024 the Council issued Y’s final EHC Plan with the College named as Y’s post-16 placement in Section I.
29. At the end of August 2024 Y received a letter from the College inviting him for an interview six days later. After the interview the College queried it could meet Y’s needs but eventually confirmed the place for Y on a different campus to the one Y wanted. Y did not start attending due to his anxiety.
30. In November 2024 Miss X told us the College would send her an application form for a place at the campus nearest to her home address with a view to Y starting in September 2025. The Council said it would arrange specialist provision for Y until then.

Analysis

31. Councils can require maintained schools and academies to arrange and hold Annual Review meetings on their behalf. Councils remain responsible, however, for ensuring EHC Plans are reviewed within the statutory timescales.
32. In 2023/2024 Y was in Year 11. Because in 2024 Y was moving to post-16 education, the Council should have completed a review of his EHC Plan before 31 March 2024. As explained in paragraph 14 of this decision an EHC Plan transfer review is completed when the Council issues young person’s final EHC Plan.
33. The Council seemed to have relied on the School to arrange reviews of Y’s EHC Plan. The Council only started asking the School for the review paperwork in mid-April 2024, so two weeks after the date when Y’s EHC Plan review should have been completed. Y’s final EHC Plan following the review in 2024 was issued at the end of June 2024. The delay of three months in completing the review is fault.
34. This fault caused injustice to Y and Miss X:
• for Y the delay in deciding where he would receive his education from September 2024 meant he had less time to complete an application process, prepare for a new placement and arrange transition. Because of Y’s needs and his history of difficulties with school attendance, preparing him for a change of placement was particularly important. The Council’s delay in the review process caused Y anxiety and distress. We cannot say, even on the balance of probabilities, if Y would have engaged with the College if not for the Council’s fault;
• for Miss X the delay in reviewing Y’s EHC Plan and deciding on his next educational placement caused significant distress. She had been trying to support Y’s education despite all his difficulties and was getting increasingly frustrated about the lack of detail about what was going to happen from September 2024.
35. We are aware of the Council’s efforts to improve its services as outlined in the recent SEND Action plan. The Council correctly identified the need to improve its process for reviewing children’s and young people’s EHC Plans. Enhanced digitalisation should help in complying with the statutory timescales for the reviews. Through our casework we will monitor the effectiveness of this plan.

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Action

36. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
• apologise to Y and Miss X for the injustice caused to them by the faults identified. 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;
• pay Y and Miss X £300 each to recognise their distress caused by the Council’s delay in reviewing Y’s EHC Plan in the year of his transfer to post-16 education.

The Council will provide the evidence that this has happened.

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Decision

37. I find fault causing injustice. The Council has accepted my recommendations, so this investigation is at an end.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman