Summary: The Council was at fault because it missed the statutory deadline to review a young person’s educational arrangements, and then proposed to cease his education, health and care plan based on a misunderstanding. The Council also did not engage promptly with the complainant to address these matters. It has agreed to offer a financial remedy to reflect the distress and frustration this caused.

The complaint

1. I will refer to the complainant as Ms L. Ms L complains in her own right, and also represents her son, to whom I will refer as Mr C, as a joint complainant.
2. Ms L complains the Council delayed issuing a reviewed education, health and care (EHC) plan for Mr C when he was due to transfer to a new post-16 educational placement; and then informed her that it intended to cease Mr C’s EHC plan, due to a misunderstanding. She says this caused both her and Mr C considerable distress.

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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 SEND Tribunal in this decision statement.

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How I considered this complaint

6. I reviewed Ms L’s correspondence with the Council, and records of a recent annual review of Mr C’s EHC plan.
7. I also shared a draft copy of this decision with each party for their comments.

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What I found

8. The following chronology will set out only the key events relevant to this complaint. It is not intended to include everything which happened.
9. Mr C is 20 years old and has significant learning difficulties. He is subject to an EHC plan, and was due to start at a new post-16 educational placement in September 2023.
10. Mr C’s EHC plan was reviewed in September 2022, and a revised plan issued for him in January 2023. However, the plan did not name a new placement for him to start in September, for which there is a statutory deadline of 31 March.
11. Between January and June the Council unsuccessfully consulted with a potential new placement for Mr C. Then, in June, it wrote to Ms L to say it now intended to cease Mr C’s plan. It said this was because he had expressed a desire not to continue his education. Ms L wrote back to the Council disputing this, and insisting Mr C did wish to continue.
12. In August, Ms L made a formal complaint to the Council on this matter. She said the Council had delayed or failed to respond to her correspondence on important matters, and had not explained the rationale behind its decision to cease Mr C’s EHC plan.
13. Approximately a week later the Council sent Ms L a formal letter explaining its decision to cease Mr C’s EHC plan. However, in early September the Council withdrew this decision. It then made arrangements for Mr C to begin attending an educational provider, which he started a few weeks later.
14. The Council then responded formally to Ms L’s complaint on 26 September. It explained that Mr C’s case officer had gone on leave and there had been a delay in reallocating the case. As a result of this, there had been a delay in making decisions about a new educational placement or whether to cease his EHC plan in September.
15. The Council said a manager from its SEND team had then discussed the case with Mr C’s social worker, who had advised her Mr C did not wish to continue education, and that the Council’s adult social care (ASC) department had agreed a support plan for him to begin in September. It was for this reason the Council had written to Ms L saying it intended the cease Mr C’s EHC plan.
16. The Council said it had then reviewed this decision, and established it had misunderstood Mr C’s comment that he did not wish to attend college to mean he did not wish to continue education at all. It had contacted Ms L to explain this and apologise, and to confirm it would arrange an education provider. The Council noted Mr C was now attending an alternative education provider.
17. The Council apologised again for the delays in arranging Mr C’s education, and for its misunderstanding of his wishes. It acknowledged it had also missed opportunities to discuss this with Ms L and reach an agreement.
18. The Council said it intended to learn lessons as a result of Ms L’s complaint. It explained there were resource issues in its SEND team, but said it had implemented a new process to ensure officers contacted families when complaints were made. It said its management team was now fully staffed, which would allow it to focus on families with urgent needs, and was continuing to recruit officers to carry out assessments and reviews.
19. The Council also apologised for its delay in responding to Ms L’s complaint, and said, to avoid further delay, its response represented both stage 1 and 2 of its processes. This meant Ms L could now approach the Ombudsman, which she did in October.

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Legislative background

20. 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.
21. 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 take place. The process is only complete when the council issues a decision about the review.
22. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
23. 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.
24. 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.

Analysis

25. The SEN Code of Practice says that, for a young person with an EHC plan, who is due to transfer to a new post-16 educational placement at the start of the next academic year, the local authority should normally complete a review of their plan by 31 March of the same year.
26. In this case, the Council issued a reviewed EHC plan for Mr C in January. In this sense, the Council appears to have met the 31 March deadline; and so on the evidence I have available (which does not include the EHC plan) I cannot explain why the Council later agreed it had not met the deadline. Given it only began looking for a new placement for Mr C after it had issued the plan though, I will assume it was because the plan did not name a placement for Mr C to start at in September, as it should have done.
27. Putting this to one side, the main issue here is that, several months after issuing the reviewed plan, the Council told Ms L it intended to cease it. This was because, as it later transpired, it had misunderstood Mr C’s comments about the type of education he wished to pursue. Again, the evidence available to me is somewhat ambiguous on this point, but it appears this error arose because of, or was at least compounded by, the fact Mr C’s case officer went on leave at a critical time, and other officers had to interpret Mr C’s wishes from the case notes.
28. I should note, at this point, that a council decision to cease an EHC plan carries a right of appeal to the SEND Tribunal; and that, for this reason, we would not normally accept a complaint about this, as explained at paragraphs 4 and 5.
29. However, in this instance, the Council did not actually issue its formal decision letter – which triggered the appeal right for Ms L – until the end of August; which was some two months after it originally proposed to cease Mr C’s EHC plan, and only a couple of weeks before it then accepted its mistake and withdrew the proposal.
30. The Council should have sent this letter immediately after proposing to cease the plan, and so this is fault, although in the wider context here I do not consider this to be a point worth pursuing. Either way, I accept it would not be reasonable to expect Ms L to have appealed against the decision, given she did not actually have the appeal right until near the end of the relevant period anyway.
31. Ultimately, the Council has substantively upheld Ms L’s complaint, and for this reason I do not consider I need to explore any further whether the Council was at fault. It has accepted it missed the statutory deadline, made a significant error in understanding Mr C’s wishes, and was generally poor in its level of contact with Ms L at a critical times.
32. I note positively that the Council has implemented some service improvements as a result of Ms L’s complaint. However, I do not consider this, alone, serves to remedy the injustice Mr C and Ms L suffered because of the Council’s faults.
33. I am conscious the Council found Mr C a post-16 placement which started in September (and from what I have read he has settled very well there), and so it cannot be said there was any significant period of missed provision, despite what happened here.
34. But, even accepting this, Ms L has described how the Council’s proposal to cease Mr C’s EHC plan caused both her and him a significant level of distress and frustration, at a time when they should have been preparing for him to continue his education.
35. Our published guidance on remedies says:

“Our recommendation for a remedy [for distress] needs to reflect all the circumstances including:

• the severity of the distress;
• the length of time involved;
• the number of people affected (for example, members of the complainant’s family as well as the complainant);
• whether the complainant or other persons affected are vulnerable and affected by distress more severely than most people; and
• any relevant professional opinion about the effects on any individual.

Where we decide it is appropriate, we will normally recommend a remedy payment for distress of up to £500.”

36. Taking all of the factors together, I consider a remedy of £300 each for Ms L and for Mr C to be appropriate here. I make a recommendation to this effect.
37. Separately, Ms L has also complained that the Council’s faults here amount to discrimination against Mr C, because the Council did not give him reasonable adjustments to establish his preferences for education.
38. We are unable to make a finding that someone has suffered discrimination, because this is a legal matter which can only be decided in court. However, we are able to consider whether a council has properly handled a person’s request and need for reasonable adjustments.
39. In this case though, I am not persuaded this is actually relevant to what happened. I acknowledge there was a misunderstanding about Mr C’s wishes, but it does not appear this came about because the Council had failed to provide a reasonable adjustment for him – rather it was because officers misinterpreted the Council’s own records. While I am critical of this fact, I do not consider it is indicative of any wider failing by the Council.

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Agreed action

40. Within one month of the date of my final decision, the Council has agreed to offer Ms L and Mr C £300 each, to reflect their distress and frustration.
41. The Council should provide us with evidence it has complied with the above actions.

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Final decision

42. I have completed my investigation with a finding of fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman