Summary: Mrs X complained about the Council’s handling of her child’s Education Health and Care Plan. She says this caused her child to miss out on education and impacted their emotional wellbeing. The Ombudsman finds the Council at fault which caused injustice. The Council will apologise and make a payment to Miss X.

The complaint

1. Mrs X complains about the Council’s handling of B’s Education Health and Care (EHC) Plan. Specifically, she complains the Council:

1. Did not meet its statutory duty to review the Plan by 31 March 2024;
2. Delayed issuing the Plan which did not meet statutory time frames; and
3. Did not provide suitable education from September 2024; and
4. Communicated with her poorly.

2. Mrs X says this caused B to miss out on education provision. This also impacted his emotional wellbeing. Mrs X says the Council’s actions have caused her and her wider family unnecessary and avoidable stress.

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The Ombudsman’s role and powers

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)
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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

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What I have and have not investigated

6. Mrs X complained to the Ombudsman in January 2025. As I have said above, we cannot investigate late complaints unless there are good reasons. I consider Mrs X could have complained sooner, and there is no good reason to exercise discretion. I will therefore consider all matters from January 2024.

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How I considered this complaint

7. I considered the information and documents provided by Mrs X and the Council. Mrs X and the Council had an opportunity to comment on a draft of this decision. I considered all comments received before making this final decision.
8. I also considered the relevant statutory guidance, and Council’s policy, as set out below.
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 found

What should have happened

Transition to Post 16 (part a of the complaint)

10. 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. 
11. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.
12. The Code states 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.  

EHC Plan timescales (part b of the complaint)

13. The Code states councils 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.

Education provision (part c of the complaint)

15. The special educational needs and disability code of practice says that all students aged 16 to 19 should follow a coherent study programme which provides stretch and progression and enables them to achieve the best possible outcomes in adult life. It says schools and colleges are expected to design study programmes which enable students to progress to a higher level of study than their prior attainment, take rigorous, substantial qualifications, study English and maths, participate in meaningful work experience and non-qualification activity.
16. 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)  

What happened

17. B had an EHC Plan. The Plan set out how teachers should work with B in a group setting. It also set out B should receive one to one or small group coaching by a key worker to develop life and workplace skills at least once a week for half an hour.
18. Prior to January 2024, the Council completed an annual review meeting.
19. In May, the Council issued B’s draft EHC Plan. It did not issue a final EHC Plan.
20. In July, the Council completed another annual review meeting.
21. In September, B should have moved to a Post-16 Institution.
22. In early September, the Council decided to arrange a bespoke package for B. It recorded it B’s views were that they preferred not working in groups and they wanted to explore a career in music. It recorded Mrs X’s preference was for B to go to college. It recorded it had explained B did not meet the criteria for a college placement at that time, and it would work to support B to attend college in the future. It decided it would fund a bespoke package including one English lesson, one maths lesson, and some mentoring per week and music provision once every fortnight. It decided not to fund transport to the music provision. It planned for B’s mentor to support B with travel training in their role to support them prepare for adulthood.
23. In mid-September, Mrs X contacted the Council for an update. The Council told Mrs X the caseworker was on leave. It told Mrs X it was arranging a bespoke year long package to support B to re-engage with formal education. It said it would arrange for B to start an official study programme in September 2025. Mrs X asked for the Council to arrange a taxi to transport B to and from the provision. The Council told Mrs X that B’s mentor would support B on public transport.
24. One to one mentoring and maths and English tuition became available to B.
25. In October, Mrs X contacted the Council. She complained the tuition was all on one day at her home whilst she was present. She told the Council this was hard for B to manage and B was not engaging. She said she wanted B to attend her preferred college. The Council told Mrs X it consulted with a post-16 institution which did not have an available place for B. It told her it was exploring other education options for B.
26. Mrs X made a formal complaint to the Council about its delay in reviewing B’s EHC Plan and its poor communication.
27. In November, the Council sent Mrs X a letter informing her of its decision not to amend B’s EHC Plan. It told her about her right to appeal its decision to Tribunal.
28. In mid-November, Mrs X told the Council that B was not accessing the music provision because it had not organised transport. She also told the Council she thought the offered provision did not equate to a full-time education for B. The Council told Mrs X it would now arrange transport to B’s music provision.
29. In December, Mrs X made a second formal complaint to the Council about the unsuitable education it had provided B during this term.
30. In January 2025, the Council issued B’s finalised EHC Plan. It provided a timetable with 15 hours per week of provision for B including maths and English lessons.

Analysis

Transition to Post 16 (part a of the complaint)

31. We expect councils to follow the statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. The Code says the council must review and amend the EHC Plan of children due to move to a post-16 institution by 31 March in the calendar year of the transfer. Therefore, the Council should have reviewed and amended B’s EHC Plan by 31 March 2024. It did not do so. This is fault.
32. This fault caused unnecessary and avoidable uncertainty to B and Mrs X, as they knew B was finishing school with no named placement to attend in September.
33. Furthermore, the Council decided B’s bespoke package in early September, once term had started. I have addressed this in the education provision section below.

EHC Plan timescales (part b of the complaint)

34. The Code says councils must complete an EHC Plan review within 12 months of the first EHC Plan and within 12 months of any later reviews. The Council should have completed the annual review by April 2024. As detailed above, it did not do so. The Council issued its decision not to amend B’s EHC Plan in November. This delay was seven months longer than the timescale allows. This is fault which caused Mrs X and B avoidable and unnecessary uncertainty.
35. The Code says councils should issue its decision whether to amend an EHC Plan within four weeks of the review meeting. In this case, the review meeting happened in July so the Council should have issued its decision in August. It issued its decision in November. This delay of three months is fault. I consider the level injustice of uncertainty to Mrs X and B remains the same.

Education provision from September 2024 (part c of the complaint)

36. I am satisfied the Council considered B’s bespoke package of 6.5 hours provision per week to be a temporary measure with the view of re-engaging B with formal education and working towards attending college in the future. It considered B’s age, ability and aptitude, and B’s own voiced needs and interests when tailoring the package, which is good practice. I am satisfied it meets the requirements set out in the Code, and the provision in B’s EHC Plan.
37. It took approximately one month for the Council to make its bespoke package available to B once it had been agreed. During this time B did not have access to education. However, once the provision was made available to B, B’s engagement was limited. For this reason, I consider the injustice caused by the delay to also be limited.
38. I consider it was reasonable for the Council to arrange for travel training to support B to travel to the music provision using public transport. I consider the music provision was accessible to B during this time. To the Council’s credit, once Mrs X said it had not been successful, it organised private transport for B to attend the next session and sessions thereafter.
39. I consider it was reasonable for the Council to arrange B’s tuition to take place on the same day at their home. I consider this tuition was accessible to B.

Communication (part d of the complaint)

40. Mrs X contacted the Council for an update in mid-September. At the time, the Council apologised to Mrs X for the oversight and explained the case worker was on leave. After this, Mrs X emailed the Council often for updates. In its complaint response, the Council apologised to Mrs X and explained its staffing changes had impacted their communication. It said it had taken action to improve its communication by employing more caseworkers and streamlining its processes. In any case, the documents show the Council sent Mrs X regular updates and responded to her queries about expenses and transport to the music provision in a timely manner. I do not consider this to be significant enough to make a finding of fault.
41. Mrs X says she also made multiple phone calls which the Council did not respond to. I do not have sight of phone records so cannot make a finding on this. But I do not consider it would be proportionate to pursue this point further given the other updates the Council provided.

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Action

42. Within four weeks of this final decision, the Council has agreed to:
1. provide a written apology to Mrs X and B for not having the bespoke package available at the beginning of September 2024, and for the unnecessary and avoidable uncertainty caused to them by its eight-month delay in issuing its decision not to amend B’s EHC Plan.
2. make a payment of £150 to Miss X to reflect the uncertainty caused by its delay issuing its decision not to amend B’s Education Health and Care Plan.
3. make a payment of £200 to B to reflect the loss of provision caused by its delay putting the provision in place. In arriving at this figure, I considered our published guidance on remedies and B’s individual circumstances. I considered the length of delay, and B’s engagement once the provision was available. I consider this amount is appropriate and proportionate to the level of injustice caused.
43. 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.
44. The Council should provide us with evidence it has complied with the above actions.

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Decision

45. I find fault causing injustice. The Council has agreed to apologise and make a payment to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman