Summary: Mr X complained that the Council delayed in completing his son’s Education, Health and Care Plan after an annual review and failed to carry out a reassessment or communicate with him. As a result, his son did not receive the required assistance to make a successful transition from education to a work-based placement or apprenticeship. We find fault causing a lost opportunity to ensure a better transition for Y and avoidable distress. The Council has agreed to make a payment for this and to remind staff of the importance of completing annual reviews on time and how to deal with requests for reassessments.

The complaint

1. Mr X complained that the Council:
1. delayed in issuing an amended Education, Health and Care (EHC) Plan for his son, Y, after the annual review of March 2023;
2. failed to deal properly with Mr X’s request for a reassessment;
3. failed to ensure Y was receiving the special educational provision as set out in his EHC Plan; and
4. there was a lack of communication from the Council to Mr X between March and November 2023.
2. Mr X says that, as a result, Y had no support when he started an apprenticeship placement, and this placement failed. It is also the case that a recent Educational Psychologist’s (EP’s) report had identified Y has dyslexia. Had the Council issued the amended EHC Plan on time, the complainant would have had the right of appeal to the SEND Tribunal sooner, and the EP report therefore would have been commissioned sooner.

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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.
4. 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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended).
5. The First-tier Tribunal (Special Educational Needs and Disability-SEND) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND tribunal in this decision statement.
6. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended).
7. We cannot investigate a complaint if it is about certain contractual or other commercial transactions. (Local Government Act 1974, Schedule 5/5a, paragraph 3, as amended)
8. 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).
9. 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

10. I have investigated matters since March 2023 to May 2024 when Mr X had a right of appeal to the SEND Tribunal which he has pursued.
11. The Council investigated the complaint and has accepted that there was a delay in issuing an amended EHC Plan after the March 2023 annual review, and that its communication with Mr X was poor. Because the Council has upheld the main complaints, this statement only refers to the main key events.
12. I am not investigating Mr X’s complaint about the Council wrongly paying the college (College B) which Y attended. This complaint has not been upheld by the Council and the contractual arrangements, which the Council had with College B, are not matters which we can investigate.
13. I issued a draft decision statement to the Council and to Mr X. I have taken into account their further comments when reaching my final decision.

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How I considered this complaint

14. I considered evidence provided by Mr X and by the Council, as well as relevant law, policy and guidance.

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What I found

Reviewing an EHC Plan

15. 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.
16. 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.
17. 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.
18. 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 (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.

Reassessments

19. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary. If the decision is not to reassess, the council must also provide information about the right to appeal that decision to the tribunal.

Transitions

20. 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.  

The Council’s post-19 provision

21. The Council says that there are a range of options for post-19 young people with an EHC Plan: further education; supported internships; training; apprenticeships. If a young person has not obtained a Certificate of Secondary Education (GCSE) in English and Mathematics, providers must provide tuition. There is additional funding available for this.
22. There are nine providers across the Council that can provide support into employment for young people, and in some cases a first step into an employment placement that can lead to an apprenticeship. If there is considered to be a need for individual tutoring / mentoring the special educational needs (SEN) team would explore whether this can be offered as additional support within the colleges. If this is not possible, tuition through an alternative education providers can be explored.

Key facts

23. Y was adopted by Mr X and his partner in 2014, having been placed in care due to neglect by his birth parents. As a result of his traumatic early years, Y has social, emotional and mental health difficulties which have adversely affected his learning abilities. Y has had an EHC Plan since 2016. He attended an independent secondary school before moving to a post-16 college (College B).
24. In March 2023, there was an early annual review of Y’s EHC Plan, held and chaired by College B. A Council officer attended and made notes of the meeting. Mr X’s partner also attended. It was noted that College B would be giving notice to end Y’s placement.
25. It was noted that Y had had a recent diagnosis of autistic spectrum condition (ASC) and Attention Deficient Hyperactivity Disorder (ADHD).
26. At this stage, College B had organised a works placement for Y at a nursery for young children (Provider D) and College B was supporting Y to attend this, initially for half a day and then one day per week. It was noted that Provider D might be able to provide a level one apprenticeship and help Y obtain his English and Mathematics General Certificate of Secondary Examinations (GCSEs). It was noted that Y wanted to continue in a work-based placement and that he did need help with obtaining his GCSEs. The parents asked for the Council to provide a tutor to help Y obtain these GCSEs.
27. College B did not consider Y’s needs had changed significantly requiring a reassessment. There is no record of Mr X’s partner specifically asking for a reassessment in the notes of the annual review. But it was agreed at the meeting that Y’s EHC Plan required amending.
28. After this, Mr X says that he tried to communicate with the Council to prepare a plan for Y’s transition. Mr X says that he either did not receive a reply or received an email intermating that the Council was not required to provide support. The Council also failed to chase up the situation with College B regarding the future placement at Provider D.
29. Mr X says that Y stopped attending College B in March 2023. In June 2023, College B told the Council that Y’s placement would end in mid-July 2023 because he was not fully engaging in education.
30. In September 2023, Y started a volunteer placement at Provider D, leading to an apprenticeship. But there was no support from the Council. Mr X says that Y required this, in particular a mentor to help him to understand the requirements of the job. The placement broke down in October 2023 because, Mr X says, Y did not have the level of support required. Mr X says he tried to support Y, taking him and collecting him (a round trip of eighty miles per day).
31. In November 2023, the Council suggested having a further annual review and suggested this again in December and in January 2024.
32. Mr X submitted a formal complaint in January 2024. The Council again suggested holding an annual review. Mr X told the Council that he wanted it to complete the annual review of March 2023 rather than start again with a fresh annual review, and deal with his complaints.
33. The Council says that the unwillingness by the parents to attend another review meant that the Council was unable to assess Y’s special educational provision, in particular the request for tuition, to ensure provision was effective.
34. In March 2024, the Council contacted Provider D to gather information about Y’s apprenticeship and his progress and the support he required. The Council received no response from Provider D and chased this up. Provider D told the Council that Y was still at the application stage for an apprenticeship.
35. At the end of March 2024, the Council issued an amended draft EHC Plan. Mr X asked for an extension to respond because they had been away. The Council contacted Provider D asking for information about Y’s progress.
36. The Council says that the parents did not respond to the draft EHC Plan. At the end of May 2024, the Council issued a final amended EHC Plan. Mr X is now appealing to the SEND tribunal.
37. It was subsequently agreed that there should be an updated Educational Psychologist’s (EP’s) report, and the Council provided fifteen hours tuition from September 2024.

The Council’s investigation of Mr X’s complaint

38. In February 2024, the Council responded at stage one of its complaints’ procedure. The Council accepted that there had been unreasonable delay in amending Y’s EHC Plan after March 2023 and communication had been poor. The Council apologised. The Council agreed to issue an amendment notice by the end of March 2024.
39. The Council did not uphold the complaint that the Council had not carried out a reassessment of Y’s needs because this was not recommended at the annual review of March 2023.
40. Mr X was dissatisfied with the stage one response because he considered the Council had not fully appreciated the adverse impact on Y and on the family by the Council’s failures.
41. The stage two investigation concluded that there had been a thirty-eight week delay in issuing an amended final EHC Plan after March 2023 and that between March to November 2023 there was minimal evidence of communication with Mr X from the Council. But, after November 2023, the Council had made many attempts to communicate with Mr X and had prioritised amending Y’s EHC Plan.
42. Mr X says that they were on holiday then, and that the Council consistently failed to respond to their calls and emails.
43. The Council explained that there was no fault in respect of the request for a reassessment because College B had not recommended this.
44. The Council offered £300 to recognise the injustice caused.

Findings on fault and injustice

45. It is to the Council’s credit that it has accepted fault on the substantive complaints. I endorse the Council’s findings on complaints (a): delay after the annual review of March 2023, and complaint (d): poor communication. I consider that the delay denied Mr X the opportunity to appeal to the SEND tribunal sooner and that it is likely there would have been an EP assessment sooner.
46. In respect of complaint (b): failure to carry out a reassessment, I consider that there is no evidence that the parents made a specific request for this at the March 2023 annual review, and, on the standard annual review form, College B stated it was not necessary.
47. In February 2024, as part of the Council’s complaint response, it explained to Mr X why this request had been refused. I consider that the Council should have told Mr X at this point that he had a right of appeal to the SEND tribunal. However, given the Council issued a final amended EHC Plan in mid-May 2024, which provided a right of appeal, I do not consider there has been a significant injustice from the above fault.
48. On complaint (b), failure to provide the special educational provision, Y had an educational placement up to mid July 2023. I recognise that Y was not attending College B. But I am satisfied the Council had made available appropriate provision for Y. The main fault lies with the transition planning.
49. In September 2023, Y started a volunteer placement with Provider D without support from the Council. That subsequently failed as a result. However, had the Council issued a final amended EHC Plan by the end of May 2023, as it should have, this might have made a significant difference at this point. This is because the Council would have had to try to find Y a new placement for the September 2023 academic year (post-19 education) and provide the necessary support in accordance with his needs.
50. It is speculative to say that, but for the faults, Y would have had suitable provision by September 2023. But there is a lost opportunity here for Y to make a successful transfer from College B to a work-based placement/apprenticeship, as he wanted.
51. In addition, as stated, the delay in issuing an amended final EHC Plan on time denied Mr X the right of appeal.
52. After November 2023, I accept that there was still no suitable provision or support for Y. But there is evidence the Council tried to engage Mr X in discussions about Y’s situation although I understand that the family was on holiday during this period. I can understand why Mr X wanted the Council to complete the March 2023 annual review. But equally the Council was trying to prioritise Y’s case and wanted recent, up to date information about his situation to decide on next steps for Y.
53. I consider that Mr X could have provided up to date information while at the same time asking the Council to complete the earlier review. Had he done so, this might have enabled the Council to progress Y’s situation sooner.
54. I have taken this into account when recommending a remedy for the lack of post-19 provision during the above period.

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Action

55. Our primary aim is to put people back in the position they would have been in if the fault by the council had not occurred.
56. When this is not possible, we may recommend the council makes a symbolic payment. Where that takes the form of a payment, it is often a modest amount whose value is intended to be largely symbolic rather than purely financial. We also support organisational learning and improvements to help others.
57. We expect senior officers from councils to make effective, timely and specific apologies for the faults we have identified.
58. Our guidance on remedies also says that “where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss”. What is proportionate in an individual case will take account of factors such as:

• the severity of the child’s special educational needs;
• any educational provision the child received that fell short of full-time education;
• whether additional provision can now remedy some or all of the loss;
• whether the period concerned was a significant one for the child or young person’s school career.

59. The Council has apologised to Mr X for its faults and has offered a symbolic payment of £300 for the avoidable distress and lack of opportunity to appeal earlier. My view is that this is in line with our guidance on remedies.
60. To remedy the lack of support to Y between September and October 2023, and for the subsequent lack of special educational needs provision between November 2023 and May 2024 (approximately six school months), the Council has agreed to:
1. apologise in writing to Y;
2. make a symbolic payment to Mr X of £300 for the lack of support in September and October 2023;
3. make a symbolic payment to Mr X of £1,500 for the six months of no EHC Plan provision (November 2023 to May 2024) to be used for Y’s benefit;
4. remind staff that, where there is a formal request for a statutory reassessment, and this is refused, parents/carers should be told of the right of appeal to the SEND tribunal; and
5. remind staff of the importance of issuing an amended EHC plan within twelve weeks after an annual review.
61. The Council should provide us with evidence it has complied with the above actions.

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Decision

62. I find fault causing injustice. The Council has agreed the recommended way to remedy the injustice. Therefore, I have completed my investigation and am closing the complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman