Summary: Mrs X complained the Council did not complete Miss Y’s annual review and the issue a final Education Health and Care (EHC) Plan within the required timeframe. She also complained the Council delayed in securing a place at a college following the Special Educational Needs and Disability (SEND) Tribunal order in November 2024. We found the Council’s failure to complete the EHC Plan annual review in accordance with the statutory timeframes is fault. As is the failure to ensure Miss Y received the provision set out in her EHC Plan between November 2024 and January 2025. This fault has caused distress, uncertainty and frustration and meant Miss Y missed education and SEN provision. The Council will apologise and make payments to Mrs X and Miss Y and review its procedures.

The complaint

1. Mrs X complained the Council did not complete her daughter’s annual review and the issue a final EHC Plan within the required timeframe. She says the delay meant her daughter did not have a college place available for September 2024 and she has had to care for her daughter until a place became available.
2. Mrs X also complained the Council delayed in securing a place at a college following the SEND Tribunal order in November 2024.

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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. 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(1), as amended)
7. 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 have and have not investigated

8. 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)
9. This means that if a young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
10. 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, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
11. In this case the Council issued a final EHC Plan on 1 May 2024 and Mrs X’s appeal to the SEND Tribunal was heard on 13 November 2024. I am unable to consider events during this period.

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How I considered this complaint

12. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
13. 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 (EHC) Plan

14. A young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the young person’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 council can do this.
15. 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 annual review begins with consulting the young person/ their parents 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)
16. Where the council proposes to amend an EHC Plan, the law says it must send 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.
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.. 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 here

18. Miss Y has had an EHC Plan for many years. Miss Y was attending a local school and due to transition to college in September 2024. She lived at home with her family and had a care and support plan with support from a personal assistant of a morning and an evening and at the weekend.
19. The school held an annual review on 13 November 2023. At this meeting Mrs X told the Council they wanted a residential placement for Miss Y at College 1 from September 2024.
20. Mrs X chased the Council for an update in January 2024 and told the Council they had visited several colleges. They were waiting for an assessment date from College 1, but College 2 has already assessed Miss Y and confirmed they could meet her needs. Mrs X did not consider the other two colleges they had visited could meet Miss Y’s needs.
21. The Council consulted College 1 and College 2 in early February 2024. It also confirmed it would consult other educational day placements.
22. A social care officer met with Miss Y in January and February 2024 to carry out a care needs assessment. The social care officer also caried out a mental capacity assessment and determined Miss Y lacked capacity to make decisions relating to her care, support and accommodation needs. They determined it would be in Miss Y’s best interests for her care and support needs to be met in a residential care setting.
23. The Council confirmed in March 2024 that it had received a response from College 2 but was still awaiting a response from College 1. It was also awaiting responses from the day placements. The Council told Mrs X that until it had received the responses it could not take Miss Y’s case to its decision making panel for agreement.
24. Mrs X’s solicitor, Ms Z wrote to the Council on 15 April 2024 noting the statutory timeframe for post-16 transfers had passed and that it could be several more weeks before the Council issued a final EHC Plan. Ms Z was concerned the delay in making a decision on Miss Y’s placement could lead to a delay in her college start date. She asked the Council to finalise Miss Y’s EHC Plan naming type of placement only and provide the right of appeal. The Council could then issue a further final EHC Plan when it had decided on a placement.
25. The Council said it was unable to finalise Miss Y’s Plan as it had not agreed a placement to name and was unable to finalise on a type of placement.
26. In late April 2024 the Council confirmed it had received a response from College 1 which it would put to the panel later that week. It advised that the panel may want to wait for a response from another day placement college before making a decision.
27. Ms Z again asked the Council to finalise Miss Y’s EHC Plan naming a type of placement and to provide the right of appeal.
28. The Council wrote to Mrs X on 1 May 2024 advising the panel wanted responses from all consulted placements before making a decision. The panel had suggested finalising Miss Y’s EHC Plan to name a type of placement so that Mrs X had a right of appeal given they had gone beyond the statutory timeframe. The Council said it was chasing the outstanding college responses.
29. Mrs X’s solicitor asked the Council to finalise the Plan naming the type of setting so they could appeal. The Council issued a Final EHC Plan on 1 May 2024.
30. Mrs X appealed to the SEND Tribunal in June 2024 and a hearing was listed for 13 November 2024.
31. In late August 2024 the Council agreed to name College 1 in Miss Y’s EHC Plan. However, by this stage, the college was full for the 2024/2025 academic year.
32. As Miss Y did not have a college place for September 2024 Mrs X asked for a meeting to discuss the Council’s plan for this academic year. Mrs X told the Council she had had to take unpaid leave from her job from September 2024 to care for Miss Y and intended to reclaim her lost earnings from the Council. She also intended to claim the cost of the care that she was providing.
33. In October 2024 the Council confirmed it had agreed a day placement with College 2 but this placement would not begin until January 2025.
34. Mrs X contacted a number of day care settings to support Miss Y in the interim. She identified a provision, with Company B, that she felt was appropriate and asked the Council to fund this. As Company B’s costs were higher than the Council’s band rate, the Council initially suggested Mrs X would need to pay the difference. The Council subsequently confirmed it would pay the full cost.
35. Miss Y began attending a day care placement with Company B on 11 November 2024 for three and a half days a week. This allowed Miss Y to receive therapeutical interventions at home on the remaining day and a half.
36. The SEND Tribunal issued a consent order on 13 November 2024. This directed the Council to amend Miss Y’s EHC Plan to reflect a placement at College 2 from January 2025, or earlier if a place became available. And then a placement at College 1 from September 2025, or earlier if a place became available.
37. The Council issued the amended final EHC Plan on 20 November 2024.
38. Miss Y began her placement at College 2 on 27 January 2025. She was then able to take up her residential placement at College 1 early, at the end of April 2025.

Complaints

39. On 15 June 2024 Mrs X made a formal complaint about the delays in issuing Miss Y’s EHC Plan following the annual review in November 2023. Mrs X noted the Council had said they needed to wait for a social services assessment as the parental choices were for residential colleges. The Council did not explain why this was necessary and Mrs X did not feel this should impact on the suitability of a placement. She said the Council was obliged to name a college by 31 March 2024 but delayed in doing so.
40. Mrs X was concerned there was still uncertainty about Miss Y’s college placement for September 2024 and said this was causing an enormous amount of stress. She asked the Council to make a decision and issue the EHC Plan naming a college.
41. The Council responded on 9 July 2024. It said it needed advice from social care regarding the care package and support on offers at all residential settings consulted. A mental capacity assessment was also necessary. Once this was completed and shared on 25 Apil 2024 the Council had all the correct information for the consultation process with identified colleges.
42. It partially upheld Mrs X’s complaint that the Council had not named a placement by 31 March 2024. The Council acknowledged it had a duty to secure a placement by 31 March 2024 but noted it did not receive the consultation responses until late April 2024. Miss Y’s case was then presented to the panel on 1 May 2024 who considered more information was needed to make an informed decision. The Council noted Miss Y’s case went back to the panel in early June 2024 and the panel did not at that stage agree to a wraparound care package.
43. The Council apologised for the continued delays in agreeing a placement for Miss Y. It said the delay in securing the parental preference was because it had not made a decision on what social care package would be agreed. The Council confirmed this would be considered again on 10 July 2024.
44. Mrs X was not satisfied by the response to her complaint and asked the Council to review it at stage two of the complaints procedure. Mrs X asked for copies of communications between the SEN caseworker and social services, and confirmation social services were aware of the statutory timeframe.
45. Mrs X asserted that had they not pressed for the Council to name a type of college there would have been further delay and they would still not have been in a position to start the appeal process.
46. The Council responded in early October 2024. It did not provide copy documentation but set out the contact between the services. It also confirmed the mental capacity assessment visit was completed on 21 February 2024 and the assessment document was finalised on 8 March 2024. But it was only shared with the SEND team on 25 April 2024. It apologised for the delay in distributing Miss Y’s mental capacity assessment
47. The Council also provided details of its consultations with colleges and confirmed it did not receive some responses until after the post 16 phase transfer date of 31 March 2024. The Council said that in order to make a decision about an individual’s provision it needed to have response from all provisions it had consulted with. The lack of some responses contributed to the delay. The Council partially upheld Mrs X’s complaint that it had exceeded the statutory timescales in finding Miss Y a college provision and apologised for this.
48. It said it had agreed to finalise the Plan naming a type of college as the Council was acutely aware they were past the statutory timeframe. It disputed this decision was made due to pressure from Mrs X or their solicitor.
49. As Mrs X remains unhappy and in March 2025 asked the Ombudsman to investigate her concerns. Mrs X complains about failings with both the SEN team and also social services which have caused disruption, unnecessary stress and severe financial strain to her family.
50. Mrs X said Miss Y had been left at home floundering without an educational placement and any educational input.
51. In addition, because Miss Y did not have a placement for September 2024 Mrs X says she was unable to work and had to take unpaid leave. This meant that for the period September 2024 to January 2025 she lost earnings totalling £5,054.65. Mrs X would like the Council to pay this and for the cost of care she provided.
52. Mrs X says that but for the Council’s delay Miss Y would have been cared for within residential support. As Mrs X had to provide this support she would like the Council to pay her at the same rate it paid Company B, that is £185.52 per day. Using this rate Mrs X’s calculates the total cost for the care she provided at £11,708.52.

Analysis

53. The Council’s failure to complete the EHC Plan annual review in accordance with the statutory timeframes is fault. The whole process should be completed within 12 weeks of the review meeting. The Council should have issued a final Plan by 5 February 2024 but did not do so until 1 May 2024.
54. There is an additional requirement that the review and any amendments must be completed by 31 March when a young person is moving between post 16 institutions in a new academic year. But the review process should still be completed within 12 weeks. In this instance it took the Council took 24 weeks to complete the process and issue a final Plan.
55. It is also of concern that officers appeared to be unaware they could issue a final EHC Plan naming the type of placement only. The initial insistence that the Plan had to name a college rather than just a placement type contributed to this delay.
56. The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the require timeframes here is fault.
57. The delay in completing the annual review and in issuing an amended final EHC Plan caused Mrs X frustration and uncertainty and put her to unnecessary time and trouble. It also delayed her right of appeal to the SEND tribunal. I consider the Council should make a symbolic payment to recognise the frustration and distress Mrs X has experienced.
58. The Council’s failure to ensure Miss Y received the provision set out in her EHC Plan was also fault. Miss Y did not receive any educational provision until she started at College 2. There was also a delay in providing Miss Y’s therapeutic provisions, which did not begin until November 2024.
59. However, as set out above, we are not able to consider the full period of missed provision. The Council issued a final EHC Plan on 1 May 2024 and Mrs X’s appeal to the SEND Tribunal was heard on 13 November 2024. We are unable to consider any loss of provision during this period.
60. We can consider events from 13 November 2024 until Mrs X’s complaint to us in March 2025. By 13 November 2024 Miss Y was attending a day placement at Company B and her Occupational therapy (OT), Speech and Language Therapy (SALT) and hydrotherapy provision had been arranged. However Miss Y’s placement with Company B was social care provision. It did not include any educational provision. Miss Y did not receive any educational provision until the end of January 2025 when she started at College 2. This is a significant injustice. The Council should make a symbolic payment to recognise the impact of this missed educational provision between November 2024 and January 2025.
61. The Council’s failings have also meant Mrs X has had to step in to provide additional care and support for Miss Y. I do not however consider the Council should reimburse Mrs X for loss of earning since November 2024. Nor would we recommend the Council pay Mrs X the equivalent of Company B’s charges for the additional care she provided between November 2024 and January 2025. It is not our role to assess economic losses or award compensation. The Council should however make a symbolic payment to recognise the distress and difficulties Mrs X has experienced.

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Action

62. The Council has agreed to:
• apologise to Mrs X and Miss Y for the delay in completing the annual review process and in issuing a final EHC Plan, and for not providing the provision in Miss Y’s EHC Plan between November 2024 and January 2025. 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.
• pay Miss Y £600 in recognition of her missed education and SEN provision between November 2024 and January 2025;
• pay Mrs X £500 to recognise the frustration, distress and uncertainty the delays in the annual review process and the need to provide additional care and support have caused her:
• remind relevant staff of the procedures and timescales involved in completing phase transfer reviews.
63. The Council should take this action within one month of the final decision on this complaint and provide us with evidence it has complied with the above actions.

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Decision

64. I find fault causing injustice. The Council agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman