Summary: Mr B complains on behalf of his disabled son about how the Council delayed in finalising and issuing an amended Education, Health and Care Plan. The Ombudsman finds there was fault by the Council in this matter, causing injustice to Mr B and his son for which a remedy has been agreed.

The complaint

1. The complainant, whom I shall call Mr B, complains on behalf of his adult disabled son C that the Council delayed in finalising and issuing an Education, Health and Care (EHC) Plan, and failed to provide appropriate support for him.

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The Ombudsman’s role and powers

2. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with a council’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)
5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
6. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
7. 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). I have exercised discretion to investigate key relevant matters dating back more than 12 months in this case, because the evidence I have seen suggests that Mr B was pursuing his concerns about his son’s EHC Plan with the Council throughout the period, and he did not receive the Council’s final response to his formal complaint until October 2019.

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How I considered this complaint

8. I considered all the information provided by Mr B about this complaint. I made written enquiries of the Council and took account of all the information and evidence it provided in response.
9. I considered the Ombudsman’s guidance on remedies.
10. Mr B and the Council had an opportunity to comment on a draft of this decision. I considered all comments received in response.
11. 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 found

Legal and administrative information

12. Some children and young people with special educational needs and disabilities will have an Education, Health and Care Plan (EHC Plan). The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs. Councils are the lead agency for carrying out assessments for EHC plans and have the statutory duty to ensure special educational provision in an EHC plan is made available.
13. Legislation and the Special Educational Needs and Disability Code of Practice (the Code) set out the EHC needs assessment and plan development process. The Code includes statutory timescales which councils must meet.
14. A council must review a child’s EHC Plan at least every 12 months. If the council considers it needs amending, it must send the child’s parents a copy of the existing plan and the proposed amendments. The parent must be given at least 15 days to comment on the proposed amendments. If the council decides to continue making the amendments, it must issue the amended EHC Plan as quickly as possible, and within 8 weeks of the original amendment notice.
15. In practice the review covers not just the annual review meeting, but the Council’s decision (to maintain, cease or amend the plan) following the meeting. Each of these three decisions carries a right of appeal to the SEND Tribunal.
16. Where a council decides to amend the plan, it must notify the parent of this decision within four weeks of the review meeting. There is no statutory timeframe for how long the Council can take to do the amendments, but the Code says this should happen ‘without delay’. Once the amended plan is ready it must be sent to the parent with an amendment notice. The Council must issue the final plan within eight weeks of the amendment notice.
17. A council may continue to maintain an EHC Plan for a young person until the end of the academic year during which the young person turns 25. An academic year is the period of twelve months which ends on the day that the young person’s course is scheduled to end, or on the day before the young person turns the age of 26, if earlier.
18. A council may cease to maintain an EHC Plan where it determines it is no longer necessary for the plan to be maintained because the person no longer needs the provision in the EHC Plan, or it is no longer responsible for the young person. For a person aged 19 or over, the Council must take account of whether the education or training outcomes specified in the plan have been achieved.

What happened in this case

19. Mr B’s son, C, now aged 24 years, has autistic spectrum disorder and a learning disability. In 2016 he had an EHC Plan in place and was attending College X. The plan set out C’s educational needs as follows, to be provided by the tutors and resources available at College X:

• In-class support, as required, to help him to break down information and to keep him focussed on work during lessons;
• a pastoral mentor helpful as someone to go to for emotional and practical support;
• careers support and guidance with transition post college;
• 25% extra time in exams and a separate room; and
• the normal way of working in class to be considered, to identify whether he should have further exam access arrangements on a subject by subject basis.

20. In June 2017, the annual review of C’s EHC Plan took place, and the Council’s view was that he had ‘reached his ceiling’ in maths and English and that his current placement at College X was no longer appropriate. The Council therefore decided to amend his EHC Plan.
21. The amended draft plan was prepared in February 2018, but was not sent out to Mr B until November 2018, almost 17 months after the review meeting had taken place. No final plan was issued and there were no further annual reviews. There was some engagement with Mr B and his son in the interim about appropriate provision, for example there was a meeting at College X in February 2018 at which the Council noted that Mr B set out his view that his son needed one to one support at the college; the college set out its view that the support being provided met C’s needs; and C expressed his own view that he did not require one to one support. Mr B says that it is not the case that his son expressed this view: he maintains his son would not have the understanding to do so. Another meeting with the college took place in September 2018, at which it was noted C had completed the same course three times without achieving a pass. Shortly after this C began attending a different placement, at an adult education centre.
22. After the amended draft had been issued in November 2018 there were further communications between Mr B and the Council about the amendments the Council proposed, which Mr B was dissatisfied with. In April 2019, after Mr B had chased the Council about the matter to try to establish what was happening, it sent an email to him about changes he had indicated he wished to have made to the draft amended plan. This email noted that while he had not set out why he had highlighted parts of the draft, it was in any case being further revised to reflect update information and he could amend and provide comments on this update version once it was sent. The Council sent the updated draft by encrypted email to Mr B on 25 July 2019. Mr B was unable to access this. The Council says a further copy was emailed to him on 1 August, although the copy of the email provided to me shows no attachment. Copies were issued by post on 5 and 20 August 2019.
23. Having received the revised draft amended plan in August 2019, Mr B asked why this was not a final plan. The Council responded saying that it had not been finalised because Mr B had not been happy with the content, and that the Council was now minded to issue a letter setting out its intention to cease to maintain C’s EHC Plan. It had reached this view taking account of a number of factors including the outcomes in C’s EHC Plan had been met; he did not need an EHC Plan to access further education; and Mr B had not provided reasons why he wanted the EHC Plan to continue. It noted information given in the Code about the focus for those in C’s age group including consolidating or finishing learning; taking part in adult education /community learning; knowing how to access support from a Jobcentre post-education; or undertaking some voluntary work, paid work or higher education.
24. There was a further exchange of correspondence with Mr B, and a second letter proposing cessation of the EHC Plan was issued on 7 November. However, the Council did not issue a final letter to confirm a final decision to cease maintaining the plan.

Analysis

25. The evidence shows that the Council failed to progress the necessary actions in the appropriate timescale following the proposal to amend the plan as a result of the annual review in 2017. It also failed to issue a final decision to cease the plan. While it was appropriate for the Council to liaise with Mr B about its proposed amendments to the plan, including the final proposal to cease the plan, the Council allowed matters to drift unacceptably and there were long periods of inactivity. Those failings were fault.
26. If the Council had acted in a timely manner, it would have issued an amended plan and later a decision to cease the plan. The right of appeal to SEND would have applied to those decisions, and so the Council’s failings denied C the right of appeal he should have had. That was an injustice. Mr B and his son are left with a sense of uncertainty about what the outcome of any such appeal may have been.
27. In addition, Mr B has been put to considerable time and trouble seeking to progress this matter on behalf of his son, and in pursuing his complaints about it. He has a justifiable sense of frustration that despite his correspondence and complaints over a long period the Council still failed to complete relevant actions in respect of C’s EHC Plan.
    
    Agreed action
28. In recognition of the injustice identified above, I recommended that within four weeks of the date of the decision on this complaint the Council:

• Issues Mr B and his son with a formal written apology; and
• Pays Mr B £250 in recognition of his time and trouble, and a further £250 to be used for C’s benefit, in recognition of the uncertainty arising from not having had his rights of appeal.

29. The Council has confirmed that if C wants to return to an education provision for this academic year (2020/2021) it would consider overturning its decision to cease to maintain his plan and would ask for an assessment of his levels, to enable it to be able to consult with appropriate educational settings. I welcome the Council’s willingness to do this, and if it is what C wants to do the Council should take steps to progress this without delays. And, since C may not be able to start immediately if a suitable course is agreed, I recommended that the Council undertakes to support him in that placement until it is completed.
30. The Council has said that it has now put in place robust mechanisms to ensure statutory timescales associated with EHC Plans are now met. I further recommended that the Council provides the Ombudsman with evidence of the service improvements made to address the failings in process highlighted by this complaint. It should do this within three months of the date of the decision on the complaint.
31. The Council has agreed to my recommendations.

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Final decision

32. I have completed my investigation on the basis set out above.

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Investigator's decision on behalf of the Ombudsman