Summary: Mr F complained the Council delayed reviewing his adult son’s education, health and care plan and failed to secure his special educational needs provision. We found delay which caused Mr F’s son uncertainty but on balance of probabilities did not cause loss of special educational needs provision. The Council has agreed to apologise.

The complaint

1. Mr F complained the Council delayed reviewing his adult son’s education, health and care plan and failed to secure his special educational needs provision. He says as a result, his son is out of education and his mental health has been adversely affected.

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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. 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)
4. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6).
5. 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.
6. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), 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)
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 this decision with Ofsted.

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What I have and have not investigated

9. I have investigated the period September 2023 to May 2025. Mr F complained to the Ombudsman in January 2025. As explained in paragraph 3 above, this means complaints about events prior to January 2024 are late. But I have exercised discretion to consider matters from the start of the 2023/24 academic year to enable me to determine if there was fault which caused injustice later.
10. Mr F’s complaint about delay holding the annual review of 2025 has not been through the Council’s complaint procedure. However, I have exercised discretion to investigate it as it is closely related to his complaint about the 2024 annual review.

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How I considered this complaint

11. I considered Mr F’s complaint, the Council’s response to my enquiries and the Special Educational Needs and Disability Code of Practice ("the Code").
12. Mr F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Special educational needs

13. A young person aged 19 to 25 with special educational needs (SEND) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the young person's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
14. Parents have a right of appeal to the SEND Tribunal if they disagree with the SEN provision, the school named in their child's plan, or the fact that no school or other provider is named.
15. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.
16. We accept it is not practical for councils to keep a ‘watching brief’ on whether colleges 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.

Annual reviews

17. The Code says councils must review an EHC plan every 12 months. These annual reviews consider whether the provision remains appropriate and whether progress is being made towards the targets in the EHC plan. The first review must be held within 12 months of the date when the EHC plan was issued. They must then be held within 12 months of any previous review. A council can consider holding an early review if there is a change in the young person’s circumstances.
18. If the young person is not attending a college, it is the Council’s responsibility to arrange the review.
19. Within four weeks of the review, councils must decide whether they propose to amend the plan and notify the young person of this decision. If they are amending, they must do so without delay and issue an amendment notice. Although the Code does not give any deadline for the issuing of an amendment notice, the court has said any draft amended plan must be issued within four weeks of the annual review. The final amended plan must be issued within 12 weeks of the annual review. (L & Ors, R (On the Application Of) v Devon County Council [2022] EWHC 493 (Admin))

Ceasing an EHC plan

20. EHC plans cover young people up to the age of 25. There is no automatic entitlement to continued educational support at age 19, or an expectation that those with an EHC plan should all remain in education until age 25.
21. A council may cease a plan for a 19- to 25-year-old if it decides that it is no longer necessary for the EHC plan to be maintained, or if it is no longer responsible for the young person. A council is no longer responsible for a young person aged 18 or over if they leave education and no longer wish to engage in further learning.
22. Where it is known that a young person will soon be completing their time in education and training, the council should use the annual review prior to ceasing the EHC plan to agree the support the young person will have once they have left education. Any care plan will remain in place when the other elements of the EHC plan cease. During this planning process, the council must continue to maintain the young person’s EHC plan as long as the young person needs it and remains in education or training.
23. If the council decides to cease to maintain the EHC plan, it must notify the child's parent, or the young person, and the school. It must also give the child's parent details of their right to appeal to the SEND Tribunal about the decision.
24. Where a young person aged 18 or over leaves education or training before the end of their course, the local authority must not cease to maintain the EHC plan unless it has reviewed the young person’s EHC plan to determine whether the young person wishes to return to education or training, either at the educational institution specified in the EHC plan or somewhere else. If the young person does wish to return to education or training, and the local authority thinks it is appropriate, then the local authority must amend the EHC plan as necessary and it must maintain the plan. The local authority should seek to re-engage the young person in education or training as soon as possible.

What happened

25. Mr F’s son, Mr J, has an autism spectrum disorder. An EHC plan issued in March 2023 named a mainstream college until July 2023. It said Mr J was due to finish at the College and apply to start at university in September 2023, when he would be 20 years old. The Council would also refer Mr J to a supported internship placement.
26. In September 2023, Mr F told the Council that Mr J had not completed all his courses in the 2022/23 academic year. He therefore could not start at university. Mr J was not enrolled at the College but it had agreed to allow him to complete and resubmit the coursework “via some bespoke learning over the coming weeks.” The supported internship provider had deferred Mr F’s start until the following year. Mr F asked for Mr J’s EHC plan to be updated. The Council replied that the plan was due for review as the previous review was in November 2022.
27. In November, the Council told Mr F that to complete the review it required professional reports but as Mr J was not on roll at college there was no further advice from education professionals and social care’s involvement was limited. It asked Mr F what Mr J’s plans were for education or seeking employment. Mr F said he wanted the review to proceed. The College told the Council that Mr J had re-submitted some work in October which had been marked. Mr J had not achieved the grade needed for university and had not contacted the College since.
28. An annual review was held on 30 January 2024. Following this, a new draft EHC plan was issued on 23 February and a final plan was issued on 28 May 2024. This did not name an educational setting. The SEN provision in section F was around supporting Mr J to access university websites, research courses and apply to university.
29. A university offered Mr J a place on a course from September 2024 but this was dependent on his achieving a particular grade at his college course.
30. Mr F complained to the Council in September 2024 that Mr J had not had any support and the College had been unable to support Mr J in line with his EHC plan. As a result he had not been able to get into university. After leaving the College in June 2023 Mr J had been “refused permission to continue” with the supported internship due to having been arrested and later convicted. Mr F also complained about poor communication and that final EHC plans and annual reviews had been delayed.
31. The Council advised Mr F in November that the university had not had confirmation of Mr J’s qualifications. Its reply to his complaint accepted that EHC plan timescales had not always been adhered to in previous years. The Council would discuss with Mr J his wishes about future education. If he did not wish to continue, it would discuss ceasing the plan.
32. In response to my enquiries, the Council said consideration of ceasing Mr J’s EHC plan would depend on his next annual review. This had not taken place as Mr F wished to await the outcome of the Ombudsman’s investigation.

My findings

33. The Council had a duty to secure the SEND provision set out in Section F of Mr J’s March 2023 EHC plan. It did so until Mr J left the College in July 2023. Mr J’s EHC plan provision was not made in the academic year 2023/24 because he was not in college.
34. Once the Council had become aware by October 2023 that Mr J was not attending college and had not achieved a university course or the supported internship, it should have held an early annual review as Mr J’s circumstances had changed. It may have also considered whether to cease the plan as Mr J was out of education.
35. The annual review was held in January 2024, this was fault as it should have been held in autumn 2023. The delay causes Mr J some uncertainty as he will never know whether an earlier review may have resulted in more provision to support his re-taking of the 2022/23 academic year.
36. But on the balance of probabilities, I do not find that the delayed review caused a loss of SEN provision. This is because when it was held two months later no provision or setting was recommended. Instead the plan was to help Mr J apply for courses to start in 2024/25.
37. Following the 2024 annual review, the final EHC plan was issued on 28 May 2024. This is 17 weeks after the annual review, so a delay of five weeks, as described in paragraph 19. This caused a delay to Mr J’s opportunity to appeal to the SEND Tribunal, although I note that no appeal was later made.
38. The provision in the new plan was to help Mr J apply for courses. A university had offered a place and the Council liaised with the supported internship provider. It was unable to offer Mr J a placement but that was not caused by fault by the Council.
39. A further annual review should have been held in January 2025 (within 12 months of the earlier review). It has not been held, which is fault. I acknowledge that the Council says Mr F did not wish it to be, but the Code is clear that reviews must be held every 12 months. The delay causes further uncertainty to Mr J.

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Action

40. Within a month of my final decision, the Council has agreed to apologise to Mr J for the delay in holding two annual reviews and issuing the 2024 EHC plan, which has caused him uncertainty.
41. The Council should provide us with evidence it has complied with the above actions.

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Decision

42. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman