Summary: On behalf of her daughter, K, Mrs B complained the Council failed to complete an annual review and provide the provision detailed in her daughters Education, Health and Care Plan. We have found the Council at fault for a delay in issuing the final Education, Health and Care Plan and a delay in transferring the Education, Health and Care Plan to a new Council. This caused distress, frustration and uncertainty for K and Mrs B. The Council has agreed to apologise and make a symbolic payment to K and Mrs B to remedy the injustice caused.

The complaint

1. On behalf of her daughter, K, Mrs B complained the Council failed to complete the March 2023 annual review and has not provided the special educational provision detailed in Section F of K’s Education, Health and Care Plan (EHCP). Miss B also complained the Council failed to complete a transition to adulthood annual review by the end of March 2024. Mrs B says K has missed education and financial support. K has also missed speech and language therapy and has been paying for her own therapies. K missed the opportunity to appeal decisions, and her plan has now been ceased. Mrs B would like the Council to honour the Plan and provide the special educational provision for which they are legally responsible.

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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. 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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What I have and have not investigated

4. I have investigated the delay in issuing K’s EHCP following the March 2023 annual review and the delay in transferring K’s EHC Plan to her new local authority.
5. I have not investigated events which took place after 16 April 2024 as K’s Plan was transferred to a different Council from this date. This includes the assessment for transfer to adult services, the decision to cease K’s EHCP and whether K had an opportunity to appeal this decision.

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How I considered this complaint

6. I considered evidence provided by Mrs B and the Council as well as relevant law, policy and guidance.
7. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Legal and administrative background

EHC Plans

8. 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.
9. 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. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
10. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

11. 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) 
12. 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. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.

Transfer of EHC Plan between councils

13. Where a child or young person moves to another council, the ‘old’ council must transfer the EHC Plan to the ‘new’ council. The new council must make sure the provision in the EHC Plan begins on the day of the move or within 15 working days of becoming aware of the move if this is later.

What happened

EHC Plan

14. An annual review of K’s EHC Plan took place in March 2023. The Council should have issued its decision to amend K’s Plan by the end of April. The Council should have issued the final amended Plan in June 2023.
15. The Council has told us it was unable to update K’s EHC Plan on time as it required further information from Mrs B. The Council did not take any steps to obtain this information until December 2023.
16. The Council did not issue its decision to amend the Plan until the beginning of January 2024 and it did not issue the final amended Plan until March 2024. This is a delay of approximately nine months.
17. During the period of delay, K attended a college course and did not receive the special educational provision detailed in her Plan. This included speech and language therapy, occupational therapy, access to additional formal courses and classroom support.
18. The Council told us that although it accepts there were delays, these delays could have been lessened if Mrs B had updated the Council with key information, including K’s change of permanent residence and change in education provider.

Transfer of EHC Plan

19. K became a permanent resident in another area in November 2022. The Council were not made aware of this until December 2023.
20. The Council should have transferred K’s EHC Plan to the new Council within 15 working days.
21. The Council did not transfer K’s EHC Plan to the new Council until April 2024. This is a delay of approximately 3 months.

Adult social care

22. K’s EHC Plans show provision was put in place to support her transition to adult social care.
23. Evidence shows K was supported by the Council’s adult social care team as early as September 2022.

My findings

24. There was a 9 month delay in the Council issuing the final amended EHC Plan following the March 2023 annual review. This is fault which caused distress, uncertainty and frustration for K and Mrs B. It also meant K missed out on the special educational provision detailed in her EHC Plan.
25. In response to the delay, the Council provided funding for 12 speech and language therapy sessions. This is a suitable remedy for this missed provision but does not remedy the remaining injustice caused by the delay.
26. There was a delay of approximately three months in the Council transferring K’s EHC Plan to the new Council. This is fault which caused distress, uncertainty and frustration for K and Mrs B.
27. There is no evidence of fault in the Council’s handling of K’s access to adult social care.

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Action

28. Within one month of the final decision the Council will:
• Apologise to K and Mrs B for 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.
• Make a symbolic payment of £1800 to K in recognition of the distress, uncertainty, frustration and loss of provision caused by the 9 month delay in issuing the final amended Plan.
• Make a further symbolic payment of £250 to K in recognition of the distress, frustration and uncertainty caused by the delay in transferring her EHC Plan to the new Council.
29. The Council should provide us with evidence it has complied with the above actions.

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Decision

I find fault causing injustice. The Council has agreed to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman