Summary: Ms X complained the Council failed to complete her sons’ annual reviews so that they were left without college places for 2024/5. We found fault causing injustice, including loss of special educational provision in Education, Health and Care Plans. The Council has agreed to apologise, make symbolic payments, and carry out service improvements.

The complaint

1. Ms X complains on behalf of her two sons, Y and Z. Ms X says the Council failed to process their Education, Health and Care (EHC) Plans on time, so they were both left without suitable education settings. Ms X says Y and Z need full time care and support and have challenging behaviours. They require structure and routine. Ms X says the Council’s failure to source education provision on time has caused distress and inconvenience and meant Y and Z have not received the special educational provision in their EHC Plans.
2. Ms X says she had to reduce her work hours until five days was secured at day centres in late September 2024. Ms X says Y and X lost out on free meals which, due to universal credit eligibility, they would receive if attending college.

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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. 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)
4. 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)
5. 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.
6. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
7. 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

8. I have investigated the complaint issues set out above. While Ms X did gain a right of appeal in Autumn 2024, it was reasonable for her not to use this given the Council had agreed specialist college places should be found, and Ms X agreed with this decision.

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How I considered this complaint

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

Relevant law and guidance

12. 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)  
13. 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) 
14. 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.
15. 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.
16. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.
17. 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.  

What happened

18. Y and Z were attending College A. In Autumn 2023 College A held the annual reviews. Ms X says the outcome was Y and Z would need to move to a new education provider in Autumn 2024.
19. The Council says it received the paperwork in December 2023 and logged it as ‘standard review no move requested’.
20. In Spring 2024, Ms X followed up with the Council about the next placements for Y and Z. The Council spoke to College A and noted both Y and Z had completed their study programmes and achieved their outcomes. The Council noted the likely outcome was to cease the Plans and move to social care provision, but also noted an officer had sent out a proposed amended Plan for both pupils, which would not be consistent with ceasing the plans.
21. Ms X told the Council the Autumn 2023 review had flagged up the placements would end in Summer 2024 so consultations should already have taken place with new settings.
22. Ms X asked the Council to hold an emergency review meeting in June 2024. Ms X says during this meeting College A repeatedly referred to Y and X leaving at the end of the academic year. Ms X says the Council’s special educational needs (SEN) officer did not attend this meeting, so she asked for a second review meeting.
23. Ms X says a SEN officer did attend the second meeting and admitted the paperwork submitted to the Council in the Autumn had not been considered. The Placement team would need to get involved and consults would take at least seven weeks.
24. Ms X says behind the scenes she was searching for alternative education provision but to secure a place up to date EHC Plans were required, which she did not have, and by Summer 2024 all the places for Autumn 2024 had been filled.
25. Ms X complained to the Council in Summer 2024. The Council’s complaint response said the paperwork submitted by College A in Autumn 2024 did not alert the Council to the urgency of the situation and so the ‘reviews were not prioritised’. The Council implied the fault lay with the college.
26. I have read the paperwork from the 2023 review meeting, and it confirms that alternatives to the current college should be sought for 2024/5. The paperwork does state the current college place was suitable, but this referred to the academic year 2023/4.
27. The Council’s complaint response in July 2024 confirmed the Council now agreed Y and Z needed to remain in education (so the Plans would not cease) and it would now consult with specialist placements for the following term.
28. The Council failed to find placements in time for the start of term. The cases went to panel in early September when education funding was approved for Y and Z to attend a social care placement three days per week (an additional two days of provision was already funded by social care). The Council issued amended EHC Plans in September for both Y and Z stating in Section I (Placement) a type of provision: ‘specialist college yet to be identified’.
29. The Council has confirmed in response to my enquiries that while the care providers are working on some educational targets not all the special educational provision in Section F of the EHC Plans is in place. For example, therapies have not been provided.
30. The Council held an annual review meeting in late 2024. Initially the Council again indicated it would be ceasing the EHC Plans and not seeking college places. Having missed the Autumn 2024 term, it was not possible for Y and Z to return to college mid-year. However, the Council has again reversed its decision and is now seeking college placements for Y and Z for September 2025.
31. Ms X says while social care providers are in place, this requires Y and Z to attend three settings across the week, and they struggle with this number of transitions. Ms X says the previous year they attended two settings, but these were all under the same ‘umbrella’ organisation, so they knew the staff and settings well.

Analysis

Fault

32. The Council failed to complete the 2023 annual reviews within statutory time limits. The Council should have decided whether to amend or cease the Plans within four weeks of the meeting. As the eventual decision was to amend the Plans, this process should have been completed within twelve weeks of the review meeting, so by February 2024. There was a six-month delay in amending the Plans, by which time colleges had filled their places and the Plans had to be issued with no college named.
33. The Council’s complaint response failed to take responsibility for the delay, blaming the college for not alerting the Council to the urgency of the situation by ticking a box for a new placement. I am not persuaded the Council was misled by the college paperwork. If the Council had read the paperwork in Autumn 2023, instead of just looking at the tick boxes, it would have known new consultations needed to be sent out for the 2024/5 academic year. It is also concerning that reviews the Council considered non-urgent had still not been processed several months after the review meeting, when the statutory deadline for decisions after a review is four weeks.
34. It is also apparent there has been inconsistency between officers in the information given to the family, leading to two decisions the Plans would be ceased, then being overturned. This will have caused unnecessary uncertainty and distress.
35. The Council missed the five-month deadline for amending EHC Plans when there is a post-16 transfer. This is fault.

Injustice

36. As a result of the fault Y and Z have missed out on going to college in the 2024/5 academic year. While alternative social care provision has been sourced, this caused unnecessary distress and uncertainty, as well as inconvenience to Ms X who had to step in and provide extra care in September 2024 at the last minute.
37. Y and Z have missed out on some of the special educational provision in their EHC Plans. The Council has told me it will seek to provide catch-up therapy, which is positive, but does not alter that staff that have worked with Y and Z since September have not had the benefit of specialist advice in designing their learning programmes and that provision has been missed for six months.
38. 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. (Ombudsman’s Guidance on Remedies) We consider factors including:
• The severity of the special educational needs as set out in their EHC plan.
• Any educational provision – full time or part time that was made during the period.
• Whether additional provision can now remedy some or all of the loss.
• Whether the period concerned was a significant one for the young person’s school career.
39. The Council’s actions have also caused unnecessary worry and uncertainty to the family and placed additional pressure on Ms X.

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Action

Within four weeks of my final decision:

40. The Council has agreed to apologise to the family for the faults identified in this decision statement. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
41. The Council has agreed to make symbolic payments to acknowledge the distress, uncertainty, inconvenience and loss of special educational provision as follows:
• £1500 to Y for missed provision September 2024 to date
• £1500 to Z for missed provision September 2024 to date
• £500 to Ms X for her time and trouble and the impact on her as a parent carer.
42. The Council has agreed to appoint one officer as the key contact to liaise with Ms X and provide updates to her, at least four weekly, until college placements are found.
43. The Council has agreed to ensure EHC Plans are updated as soon as college placements are found to provide Ms X with a right of appeal if she is dissatisfied. One purpose of updating plans five months before a transfer is to ensure that there is an opportunity for any appeal to be heard in time for the new term.

Within two months of my final decision:

44. The Council has agreed to consider if there is a systemic issue with delay in completing annual reviews and advise the Ombudsman if this is the case and if so, what steps the Council intends to take to ensure reviews are completed within statutory timescales.
45. The Council should provide us with evidence it has complied with the above actions.

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Decision

I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman