Summary: Mrs X complained about how the Council handled an annual review of her child’s (Y) Education, Health and Care Plan. Mrs X also complained the Council poorly communicated with her and it failed to provide Y with suitable education when he finished his placement at his previous college. There were faults by the Council which caused injustice to Y and Mrs X. The Council will take action to remedy the injustice caused.

The complaint

1. Mrs X complained about how the Council handled the December 2023 annual review process of her child’s (Y) Education, Health and Care (EHC) Plan. In particular, Mrs X complained about the Council’s:
1. delays with issuing its decision letter and with issuing Y’s final EHC Plan after the annual review meeting held on 15 December 2023
2. failure to provide Y with suitable education since June 2024 when he finished his placement at his previous college
3. poor communication with her.
2. Mrs X said as a result, Y lost out on education because he had been out of school since June 2024 and that the matter affected Y’s personal development. Mrs X said the matter also caused her significant distress, uncertainty and it affected her work which led to financial loss.

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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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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.
5. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
6. 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.
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)
8. 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 a copy of the final report with Ofsted.

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What I have and have not investigated

9. I have investigated matters from December 2023 to December 2024. This covers the 12-month period prior to when Mrs X made a complaint to the Ombudsman in December 2024.
10. I have not considered matters relating to Y’s educational placement (Section I) of his EHC Plan. These are matters for the Tribunal and are out of the Ombudsman’s jurisdiction. Also, Mrs X exercised her right of appeal to the Tribunal after Y’s final EHC Plan was issued in November 2024 about the contents of Y’s Plan, including ‘Section I’.

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How I considered this complaint

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

Education, Health and Care Plans

13. 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.
14. The council has a duty to secure the specified special educational provision (Section F) in an EHC Plan for the child or young person (Section 42 of the Children and Families Act 2014). The Courts have said this duty to arrange provision is owed personally to the child and is non delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the Council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
15. Councils must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The review process includes a review meeting, and the subsequent decision, which have appeal rights.
16. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or cease the EHC Plan. Once the decision letter is issued, the review is complete. (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.
18. Where the decision is to amend the EHC Plan, the council must then issue any final amended Plan within eight weeks of the ‘amendment notice’. Therefore, a final EHC Plan must be issued within 12 weeks of the review meeting.
19. 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.
20. Where a parent or young person disagrees with the contents of the EHC Plan there is a right of appeal to the Special Educational Needs and Disability (SEND) tribunal when the final plan is issued.
21. The courts have established that if someone has appealed to the tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207). The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision and the changes are put in place in line with the timescales allowed, or if the appeal is withdrawn or conceded.
22. Supported Internship is one of the routes to employment for young people with EHC Plans. It is a structured study programme, based primarily at an employer to help young people move into paid employment at the end of the programme by giving them the skills they need for work.

Key events

23. Mrs X’s child, Y, attended a post-16 placement (School 1).
24. Y has some health conditions and special educational needs. Y has an Education, Health and Care (EHC) Plan. Some of the provisions contained in Y’s previous EHC Plan included:
1. 1:1 speech and language therapy.
2. Extra support with literacy and numeracy sessions.
3. Daily opportunities to engage in appropriate social interactions modelled to Y by adults and peers.
4. 1:1 support to implement an individual program including intensive interaction, picture exchange communication system (PECS), a structured workstation and ‘Now and Next’ boards.
25. On 15 December 2023, Y’s EHC Plan annual review was held. At the review, School 1 recommended a specialist life skills college (School 2) for Y to start a supported internship programme. Mrs X also requested School 2 as parental preference for Y.
26. Y applied for the supported internship programme and completed a skills assessment in April 2024. Y did not qualify for the programme.
27. In June, Y finished his placement at School 1.
28. The Council consulted with School 2, and it offered Y a place at its newly founded college to complete a functional life skill programme. School 2 provided the Council with the fees for the placement offer. The Council referred Y’s case to the complex panel to decide whether Y could be placed at School 2’s new college.
29. In August, the panel held its meeting, and it did not agree to Y attending School 2. The panel said the placement fees was expensive for a newly established college with no track record. The panel advised the Council to explore alternative placements for Y. The Council did not send a copy of the panel’s decision to Mrs X.
30. Mrs X said in early September, the Council verbally informed her it rejected School 2’s offer following the panel hearing due to its expensive fees.
31. Mrs X, the Council and School 2 exchanged a couple of correspondence about further consideration to secure a placement for Y at the school. The Council told Mrs X it subsequently found out School 2’s newly founded college was not registered with the Department of Education. It also said Y’s previous college had recommended him to undertake supported internship (an endorsed programme) at School 2. The Council clarified that the recommendation was not for Y to attend School 2’s newly founded college. The Council said it therefore could not offer Y a placement at School 2 but said it would consult with other placements that offered similar courses and progression path for Y.
32. Mrs X made a formal complaint to the Council about its delays with completing Y’s 2023 annual review process and its failure to issue his final EHC Plan. Mrs X also complained about how the Council had dealt with securing a placement for Y at School 2, its failure to issue her with the panel’s refusal decision letter and, its poor communication with her. Mrs X said the matter had caused undue distress to her, Y and her family.
33. In October, the Council consulted with another placement (School 3).
34. School 3 offered to have an interview with Y and Mrs X and on three occasions School 3 attempted to contact Mrs X in October.
35. In its responses to Mrs X’s complaint, the Council:
1. accepted and apologised for its delays with Y’s 2023 annual review process and its inconsistent and delayed communication with Mrs X
2. said its decision letter ‘not to amend’ Y’s EHC Plan would be sent to Mrs X with her appeal rights, and it would issue Y’s final Plan by mid-November 2024
3. reiterated School 2’s newly founded college was not an approved provider, its fees was expensive, and the panel rejected the placement for Y
4. said it had consulted with School 3 which offered employability programmes which the Council believed would meet Y’s needs. The Council said School 3 had offered to have an interview with Y and Mrs X, but it had been unable to successfully contact Mrs X. The Council advised Mrs X of the alternative times School 3 could meet with Y and Mrs X.
36. On 15 October, the Council issued its decision letter to maintain Y’s EHC Plan based on the December 2023 annual review. The letter also confirmed the panel’s August decision which refused School 2 and for other placements to be explored for Y.
37. On 14 November 2024, the Council issued Y’s final EHC Plan. Section I of Y’s final Plan changed from ‘School 1’ to ‘a placement in a specialist post-19 setting’.
38. Mrs X submitted her appeal to the Tribunal against section B (special educational needs), section F (special educational provision) and section I (name/type of educational placement) of Y’s final Plan.
39. Mrs X remained dissatisfied with how the Council handled Y’s case and she made a complaint to the Ombudsman.
40. In response to our enquiries, the Council acknowledged its fault in how it handled Y’s 2023 annual review process, its failure to provide Y with the provisions in his EHC Plan after he finished from School 1 and its poor communication with Mrs X. The Council also confirmed there were 126 children and young people who were waiting for their amended final EHC Plans to be issued after 12 weeks of their respective annual reviews.
41. The Council apologised and made the following offers:

• £450 to Y for missed education from September 2024 to October 2024 when the Council said it secured a placement for him at School 3.
• £690 to Y for missed speech and language therapy as contained in his EHC Plan.
• £150 to Mrs X for any distress and inconvenience caused to her.
• The Council to arrange a meeting with Mrs X and School 3 to discuss a placement offer for Y at the school in the absence of any alternative parental preference.

42. The Council also said it had put in place service improvement for all annual review paperwork to be sent to a generic inbox monitored by dedicated teams to prevent future delays in the EHC Plan review process.

Analysis

43. The Council should have issued its decision letter on 12 January 2024 which was four weeks after Y’s EHC Plan annual review held on 15 December 2023. The Council did not send its decision letter to Mrs X until 15 October 2024. This was a significant delay of approximately 44 weeks. This was fault and it was not in line with statutory guidance.
44. Statutory guidance states a final EHC Plan must be issued within 12 weeks of the review meeting. Therefore, Y’s final EHC Plan should have been issued on 8 March 2024. The Council issued Y’s final EHC Plan on 14 November 2024. Again, the Council failed to adhere to statutory timescales and there was a significant delay of approximately 36 weeks. This was fault.
45. Also, where a young person plans to transfer between one post-16 institution and another within the following 12 months or is expected to transfer to a new institution in a new academic year, 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. This means Y’s final EHC Plan should have been issued at the latest on 31 March 2024 based on the outcome of Y’s 2023 annual review. I find the Council lost sight of this, and it was fault.
46. The Council’s delay in completing Y’s 2023 annual review process caused uncertainty to Y and it meant he was left without an updated EHC Plan for a significant period and in a transfer year. But I find the injustice caused to Y was mitigated. This was because Y continued to attend School 1 and continued to receive the provisions contained in his previous EHC Plan until his placement finished in June 2024.
47. The Council’s failings also caused Mrs X distress, worry, uncertainty and frustration. It also delayed Mrs X’s right of appeal to the Tribunal, and evidence shows when Mrs X’s appeal right was engaged after Y’s final EHC Plan was issued, she submitted an appeal to the Tribunal.
48. Mrs X’s appeal was against the contents of Y’s final Plan which included Section F, in particular that the Council refused to name School 2 (parental preference) in Y’s Plan. As stated above in paragraph 10, I have not investigated matters relating to School 2 / named educational setting. This is because these matters are for the Tribunal, Mrs X already exercised her right of appeal, and the matter is out of the Ombudsman’s jurisdiction.
49. I note the Council said it did not provide Y with the provisions in his Plan from September to October 2024 when it secured a placement for him at School 3. There was no evidence to show School 3 offered Y a placement. School 3 offered to have an interview with Y and Mrs X in October 2024, and on balance, I do not consider this was the same as a placement offer.
50. Councils have a legal duty to secure all the provisions in Section F of an EHC Plan. In this case, the Council failed to discharge its duty under Section 42 of the Children and Families Act 2014 to provide Y with the provisions in his EHC Plan after he finished his placement at School 1. This covers the period from the start of the new 2024/2025 academic year to when Y’s final EHC Plan was issued (September 2024 – November 2024). This was fault and it meant Y lost out on the specialist support and provision to meet his special educational needs. It also caused distress, worry and frustration to Mrs X.
51. The Council already accepted its poor communication with Mrs X and its failings as identified above. I consider these were faults and caused Mrs X distress, uncertainty and frustration.
52. I note the Council proposed some recommendations to acknowledge the injustice caused to Y and Mrs X by its faults. These are welcome but I find they are not proportionate to remedy the injustice caused in this case in line with our guidance on remedies. This will be addressed in the ‘action’ section below.
53. I also note the Council said it had put in place service improvement to prevent future delays in the EHC Plan review process. However, it is concerning that the Council has estimated there are about 126 children and young people who are waiting for their amended final EHC Plans to be issued after the 12-week statutory timescale. The Ombudsman expects councils to follow statutory timescales set out in the law, Regulations and Code. Therefore, I consider this is service failure by the Council.

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Action

54. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following within one month of the final decision:

• apologise in writing to Y and Mrs X to acknowledge the injustice caused to them by the Council’s failings as identified above. The apology should be in accordance with our guidance, Making an effective apology
• make Y a payment of £1,500 to acknowledge the loss of educational provision to him caused by the Council’s failure to discharge its duties under section 42 of the Children and Families Act 2014. This remedy is in line with our guidance on remedies and covers the period from September 2024 to November 2024
• pay Y the additional payment of £690 offered by the Council for loss of speech and language therapy between September and November 2024
• make a symbolic payment of £250 to Mrs X in recognition of the distress, frustration, worry, and uncertainty caused to her and delaying her appeal rights to the SEND Tribunal
• provide guidance and training to relevant staff about the Council’s non-delegable duty under Section 42 of the Children and Families Act 2024. This is to ensure the Council provides the specified special educational provision contained in Section F of an Education, Health and Care Plan for the child or young person.

55. Within two months of the final decision:

• produce an action plan to demonstrate how the council will meet statutory timescales for annual reviews of Education, Health and Care Plans including post-16 annual reviews.

56. The Council should provide us with evidence it has complied with the above actions.

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Decision

57. I find fault by the Council causing injustice to Y and Mrs X. The Council will take action 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