Summary: Ms X complained there were failings in the way the Council dealt with her son Y’s Education, Health and Care Plan and provided him with support. Based on current evidence we found fault by the Council as it failed to carry out annual reviews of Y’s Education Health and Care Plan and responded to Ms X’s complaints about the matter in a timely way causing uncertainty and distress. We have recommended a suitable remedy for the injustice caused so have completed our investigation.

The complaint

1. Ms X complains for her son Y there were failings in the way the Council dealt with his Education Health and Care Plans (EHC Plan) and provided him with support between 2022 and 2024. Ms X says this caused distress and lost educational opportunities with Y leaving education in August 2022.
2. Ms X also complains the Council failed to respond to her complaint made in February 2023 until May 2024. Ms X says the Council’s actions have affected her relationship with Y because of the pressure she had to place on him to complete his exams and look for apprenticeships. Ms X considers Y would have stayed in education, completed his college course providing more opportunities and self-confidence if the Council had provided him with proper guidance and support through his EHC Plan.
3. Ms X wants the Council to help Y find a suitable apprenticeship and support him with the academic work he needs to complete any qualification needed as part of the apprenticeship. Ms X also wants the Council to compensate Y for the two years he has missed education.

Back to top

The Ombudsman’s role and powers

4. 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)
5. While the Local Government act 1974 sets out what we can investigate it also explains what we may not consider.
6. 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)
7. 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)
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 Tribunal in this decision statement.
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)
10. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I have and have not investigated

11. I have investigated Ms X’s complaints from November 2022 when she contacted the Council about Y being out of education. I have not investigated Ms X’s concerns about matters before that date. This is because I consider Ms X’s complaints about these issues are late and more than 12 months since she was first aware of them. I consider it reasonable to expect Ms X to have complained to us before now about those issues.
12. I have included information on events from 2020 in the decision statement to provide background to Ms X’s complaints.

Back to top

How I considered this complaint

13. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
14. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

Back to top

What I found

Legal background and statutory guidance

Education and Health Care Plans

15. 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.

Reviewing EHC Plans

16. 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 then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
17. 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.

Post 16 – review, provision and naming placement deadline

18. 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.

Appeal rights

19. There is a right of appeal to the Tribunal against a council’s:
• decision not to carry out an EHC needs assessment or reassessment;
• decision that it is not necessary to issue an EHC Plan following an assessment;
• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;
• amendment to these elements of an EHC Plan;
• decision not to amend an EHC Plan following a review or reassessment; and
• decision to cease to maintain an EHC Plan.

What happened in this case

20. What follows is a brief chronology of key events. It does not include all the information I have reviewed during my investigation.

Events 2020

21. The Council issued Y with an EHC Plan in April 2020 because he had social and emotional difficulties in attending school. It named the secondary school Y was attending as his placement. The Council carried out an annual review of Y’s EHC Plan in November 2020 as he was due to move to post-16 education in September 2021.

Events 2021

22. The Council carried out consultation with placements and issued a final amended EHC Plan in March 2021. This named Y’s school as his placement until the end of the academic year 2021 and then a move to a college from September 2021 for post-16 education.
23. Ms X raised concerns with the Council in September 2021 as Y was not attending college and wanted to do an online course. The Council said it was due to carry out an annual review of the EHC Plan so could discuss this at the review.
24. Council records show it held an annual review meeting in December 2021.The meeting notes record the Council would maintain the EHC Plan as Y still needed it to secure SEN provision through the plan. It noted there had been no amendments to Y’s diagnosis or changes to the level of provision needed. The review considered Y’s placement remained appropriate and continued to meet and provide for Y’s special educational needs. It noted Y said online college was going well. The notes referred to an onward destination and do a similar course but not sure what, possibly an apprenticeship. The records do not show what action the Council took after the review.
25. Ms X has commented there was no resolution after the annual review and the Council did not issue a renewed EHC Plan after the meeting.

Events 2022

26. In May 2022 Y’s college advised the Council Ms X had put a new address on Y’s course application indicating he had moved out of the Council’s area. In August 2022 Ms X confirmed Y had left education.
27. Ms X contacted the Council in November 2022 about enrolling Y into an apprenticeship but was struggling to speak to any council officer about it. Ms X said Y had been out of education since summer 2022 because he received no support moving to college and no longer wanted to attend. Ms X chased the Council as she had not received a response.
28. There is no record of an annual review being held in November 2022 as required or the Council issuing a cease to maintain notice for the EHC Plan if Y had left education.

Events 2023

29. Ms X contacted the Council in January 2023 for an update as Y was 17 years old and had not been attending training or education that academic year as required due to his age. Ms X emailed the Council in February 2023 as she did not receive a response for three months. Ms X’s concerns were passed to the complaints team to respond to.
30. We issued a report (22 003 403) about the Council’s failure to ensure a child received the provision set out in their EHC Plan. During the investigation we identified the Council had a backlog of responses to stage one and two complaints about SEN matters including EHC Plan annual reviews. While complaints remain unresolved, there is a potential for ongoing significant injustice. We asked the Council to develop an action plan to show how it intended to address ongoing delays and update us on the backlog for stage 1 and 2 responses and timeliness.
31. We also said the Council should write to each of the people waiting for complaint responses to apologise for the delay in responding and explain the steps taken. The Council wrote to Ms X in July 2023 as part of the action it was taking.
32. The Council says it should have held an annual review of Y’s EHC Plan in October 2023. But this did not go ahead. It says the post 16 team have no information on why this did not happen and no knowledge if it was chased.

Events 2024

33. A complaints officer contacted Ms X in April 2024 to advise she would be receiving a formal response to her complaint. The Post-16 team allocated Y’s case to a caseworker who telephoned Ms X. Ms X advised Y had moved to live at his father’s house full time.
34. The case worker contacted Y who said he was employed full-time as a factory worker. Y agreed to take the call as an annual review of the EHC Plan and understood that by being in full time employment the Council would cease to maintain the EHC Plan. The caseworker explained the process of proposing to cease the EHC Plan. The caseworker noted Y was happy with this, but he had concerns Ms X might not be. The caseworker advised that as Y was over 18 it was his decision to make about the EHC Plan which he acknowledged. The Council noted the decision was to cease the EHC Plan as Y was in full time employment.
35. The Council responded to Ms X’s complaint at stage one in May 2024. It apologised for the delay in responding to the complaint due to an increase in EHC Plans in Kent. The Council had reviewed Y’s case. It accepted
• It did not communicate effectively with her and Y.
• It did not act on emails and telephone calls requesting a change of placement and it did not seek details from her of what Y wanted to do next.
• It should have provided her with an alternative point of contact to process a change of placement and discuss next steps such as how to progress to an apprenticeship when she advised she was not getting a response.
36. The Council said the SEND service was experiencing staff shortages then and had capacity issues. It accepted it did not fulfil its duty, apologised and a post-16 caseworker would be in contact with them to discuss Y’s future plans.
37. The Council sent a letter proposing to cease the EHC Plan in June 2024 to Ms X and to Y. Ms X responded that Y was no longer employed and did not want the EHC Plan ceasing. Ms X complained Y had not received any support from SEN or an updated EHC Plan since 2022. Ms X said Y was now struggling to find work due to lack of qualifications and ongoing anxiety. Ms X wanted the Council to support Y finding an apprenticeship.
38. Ms X submitted a complaint to us in June 2024. The Council said it would respond to Ms X with a stage two response by the end of August 2024. We agreed to close the complaint to allow the Council the opportunity to respond to Ms X.
39. The Post-16 caseworker contacted Y in July and August 2024. The Council’s records note Y said he wanted the EHC Plan to be maintained and possibly go back into education. The case worker said the Council would hold an annual review to discuss it. Y signed over permission for Ms X to act on his behalf. The Council arranged the annual review for September 2024. It was noted Y wished to gain an apprenticeship to help move into a career.
40. The Council issued an amendment notice to maintain the EHC Plan and looked at possible placements. The Council did not send a stage two response to Ms X within the agreed timescale, so we reopened Ms X’s complaint and asked the Council to now respond to Ms X.
41. The Council sent Ms X a stage two response on 21 November 2024. It offered a further apology to Ms X for the delayed response and confirmed it was working through the backlog of complaints. It appreciated Ms X’s concerns about the delays experienced and the lack of support Y received. The Council acknowledged there were areas it needed to make improvements in and was developing procedures, information, advice available to parents. The Council hoped to see improvements in the next few months.
42. The Council referred to recent action with Y where it proposed to cease the EHC Plan as Y was in full time employment. But following an annual review it was now proposing to maintain it and consulting with placements.
43. The Council offered Ms X a payment of £150 as a remedy for delay in holding an annual review originally with £100 for the anxiety and delays experienced (a total of £250).
44. The Council issued a final amended EHC Plan for Y on 29 January 2025 naming a college as a placement starting in September 2025. In February 2025 the Council noted the caseworker was to contact Y to check if he was being supported by the college this academic year. If not, then the Council would see if Y required interim tuition until end of the academic year in July 2025.

The Council’s comments on the complaint

45. The Council acknowledges it failed to complete an annual review in 2021 and carry out annual reviews in 2022 and 2023 for Y as it has a duty to do so. But says it was in a difficult situation as there was confusion as to whether Y wanted to engage in education, or he wanted to take up employment. It also says that Y’s attendance at college was low during this time, and the college reported it had been difficult to engage with him.
46. The Council acknowledges it should have offered support to Ms X when she contacted the Council in 2022 as Y was out of school. It accepts it should have answered her queries about his education although Y was living with his father then and expressed a wish to leave education. The communication with her was not dealt with by a caseworker but a complaints officer who accepted it as a complaint and not an enquiry. The Council acknowledges Y was not looking for education but needed transitional support for seeking an apprenticeship.
47. It also acknowledges it did not provide the expected level of service when responding to Ms X’s complaints. The Council accepts this will have been disappointing and distressing for Ms X and has apologised for this. It received the stage one complaint on 20 February 2023, obtained information and responded on 9 May 2024. It says regretfully the complaint was part of the backlog of overdue SEND complaints. But it did contact Ms X during that time to apologise for the delays.
48. The Council received Ms X’s stage two request on 24 June 2024 but did not respond to it until 21 November 2024. The Council acknowledges it sent an email apologising for the delay in July 2024. But did not send any further updates to Ms X for which it has apologised and accepted how unsettling it may have been for Y and his family. The Council says Ms X’s complaint was still part of the backlog of overdue SEND complaints. The Council confirms it is continuing to address the backlog of complaints in line with the actions we recommended.

My assessment

49. The Council has accepted it did not carry out annual reviews for Y from 2021 as required by the regulations. The records show the annual review for 2021 was started but not completed. This was fault by the Council. But as paragraph 11 explains I have decided not to investigate matters dating back to 2021. This is because I consider it was open to Ms X and Y to have complained to us before now about issues in 2021. The Council’s failure to complete the annual review in 2021 is one such matter.
50. The Council acknowledged it did not carry out Y’s annual review in October/November 2022. The evidence shows Ms X contacted the Council in November 2022 about Y being out of education and wanting support for an apprenticeship. Although Ms X did not refer to an annual review this did not alert the Council to carry one out to make sure it was up to date. It did not carry out an annual review in November 2023 either despite being aware of Ms X’s complaints about Y being out of education. The Council’s failure to carry out annual reviews in 2022 and 2023 is fault as it is required to do so by the regulations.
51. Where we find fault, we consider whether this has caused an injustice to the person affected. However, in Y’s case the evidence shows there was a lack of clarity about Y’s engagement in education, whether he was in education as he had left college and was in full time employment in 2024. Y also initially agreed to the Council ceasing to maintain the EHC Plan indicating he did not intend to return to education. So, I consider the injustice caused to Y has been limited to uncertainty. It has also caused delayed appeal rights to the SEND Tribunal. This is because Y and Ms X have been unable to appeal against any decisions the Council may have made about Y’s future options/placements after the annual reviews or ceasing to maintain the EHC Plan during that time.
52. I recommend therefore the Council should apologise to Ms X and Y and make a payment of £400 to Y for each missed annual review in 2022 and 2023 (£800) in recognition of the uncertainty caused and the delayed appeal rights. This is in line with our Guidance on Remedies for a symbolic payment to reflect uncertainty and distress caused.
53. The Council has offered Ms X a payment of £250 after considering her complaints. I consider this is an appropriate payment for the Council to make to Ms X to remedy the delayed response to her complaints and distress caused.
54. To continue to improve services the Council should update us on the backlog in its complaints process for stage one and two responses and its timeliness. And update us on its action plan for dealing with the backlog for stage one and two responses and how it is being managed.

Back to top

Action

55. To remedy the injustice, I have identified in paragraph 52 and 53, the Council should within one month of my final decision:
• Apologise to Ms X and Y for the missed annual reviews in 2022 and 2023. 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 in my findings.
• Pay Y a symbolic payment of £400 for each missed annual review in 2022 and 2023 (total of £800).
• Pay Ms X a symbolic payment of £250 for the distress caused by the delay in responding to her complaints.
• Update us on the backlog in its complaints process for stage one and two responses and its timeliness.
• Update us on its action plan for dealing with the backlog for stage one and two responses and how it is being managed.
56. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

57. I find fault causing injustice to Ms X and Y. The action I recommend is a suitable remedy for the injustice caused in this case.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman