Summary: Mrs D complained the Council delayed informing her of its decision to cease to maintain her daughter’s Education, Health and Care plan. The Ombudsman finds there were delays in the Council’s decision-making. The Council has agreed to our recommendations to address the injustice caused to Mrs D.

The complaint

1. Mrs D complained the Council delayed informing her of its decision to cease to maintain her daughter’s (Miss E) Education, Health and Care (EHC) plan. She says the Council’s delay meant she did not have enough time to appeal before Miss E was due to start college in September. As a result, Mrs D says she had to give up her job to support Miss E full time.
2. Mrs D also complained about the Council’s decision to cease to maintain her daughter’s EHC plan and the lack of provision that flowed from the Council’s decision.

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What I have investigated

3. I have investigated whether the Council delayed informing Mrs D of its decision to cease to maintain Miss E’s EHC plan.
4. I have not investigated the Council’s decision to cease to maintain Miss E’s EHC plan and the lack of provision that flowed from its decision. I will explain why at the end of this statement.

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The Ombudsman’s role and powers

5. 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)
6. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
7. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
8. 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)
9. 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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How I considered this complaint

10. I considered information Mrs D submitted with her complaint. I made written enquiries of the Council and considered the information it provided in response.
11. I shared my draft decision with Mrs D and the Council and I invited them to comment on it.

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What I found

Relevant law and statutory guidance

12. A child with special educational needs may have an Education, Health and Care (EHC) plan. This 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 education or name a different school. Only the Tribunal can do this.
13. Statutory guidance on special educational needs provision (Special educational needs and disability code of practice: 0-25 years) confirms that councils must review an EHC plan at least once every 12 months. The guidance says that within four weeks of the review meeting, the council must decide whether it will keep the EHC plan as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school.
14. Paragraph 9.194 says where the council proposes to amend an EHC plan, it must send a copy of the existing plan, and a notice providing details of the proposed amendments, to the child’s parent or the young person.
15. Paragraph 9.195 confirms the parent or young person must be given 15 days to comment on the proposed changes. The parent or young person can request the council name a school or institution in the EHC plan.
16. Paragraph 9.196 says that after receiving any representations form the child’s parent or the young person, if the council decides to continue to amend the EHC plan, it must issue the amended plan as quickly as possible and within eight weeks of the original amendment notice.
17. A council may cease to maintain an EHC plan only if it determines it is no longer necessary for the plan to be maintained, or it is no longer responsible for the young person. Ceasing to maintain an EHC plan has a right of appeal to the Tribunal.

What happened

18. Mrs D’s daughter, Miss E, has complex needs and she cannot read or write. She is now an adult. On 10 October 2018, the school held an annual review of Miss E’s EHC plan. The Council did not attend this meeting but received a copy of the annual review on the same day.
19. On 8 November 2018, the Council wrote to Mrs D. It said a response to Miss E’s annual review was on hold as it was unclear of her post 18 plans after leaving school the next summer.
20. The Council also wrote to Miss E directly and asked her what she was hoping to do in September 2019. It asked her if the college mentioned in her annual review was something she was wanted to pursue.
21. Mrs D contacted the Council. She said she was unhappy with the decision it had made. The Council responded to Mrs D and assured her it had not made a decision for Miss E and it would send a formal response to the annual review as soon as possible. It did not ask for any more information from Mrs D.
22. The Council emailed the school on 26 November 2018 and asked for missing information on Miss E’s progression. This school provided this on 6 December 2018.
23. On 28 January 2019, the Council wrote to Miss E and said it proposed amending her EHC plan following the annual review. It asked her to respond to its suggested changes. It also asked her to tell it which educational setting she wished to be named in the plan.
24. On 30 January 2019 Mrs D emailed the Council and amended Miss E’s EHC plan. The Council made agreed to some of the amendments Mrs D suggested. The Council also spoke to Mrs D on the phone on 31 January 2019. Mrs D expressed her concerns that Miss E would be left without an EHC plan. She also confirmed her choice of educational setting for Miss E.
25. On 5 March 2019, the Council emailed Mrs D and confirmed it had amended Miss E’s EHC plan. It said it would not issue a further amended plan but asked for Miss E’s preference of educational setting. Mrs D responded with her choice. The Council then invited Mrs D for a meeting to discuss provision for Miss E from September 2019.
26. The meeting took place on 21 March 2019. Mrs D re-iterated her choice of educational setting for Miss E. The Council officer said it would discuss the matter with senior members of staff and return to Mrs D with a decision the following week.
27. The Council sent Miss E a letter on 18 April 2019 with a proposal to cease to maintain her EHC plan. It explained she had not shown enough progress in the last two annual reviews and therefore believed she did not require any further time in educational provision. It asked her for a response within 15 days.
28. Mrs D responded to the Council’s letter on 29 April 2019. She explained she could not see anywhere in the statutory guidance where lack of progression was a reason to cease an EHC plan. She asked for Miss E’s EHC plan to remain in place.
29. Mrs D chased the Council for a response on 9 May 2019 and 15 May 2019. The Council emailed Mrs D on 16 May 2019 and explained it was its view Miss E would not make further progression and she would benefit from moving to adult social care services. However, it agreed to contact Miss E’s physiotherapist and Speech and Language Therapist to seek their views on her needs and how much improvement she could achieve.
30. Mrs D emailed the Council on 23 May 2019. She explained Miss E’s last day at school was on 28 June 2019 and she had no place in care for after then. She asked the Council to provide her with its decision.
31. The Council sent a letter to Miss E on 29 May 2019 and confirmed that it would cease to maintain her EHC plan from the end of the academic year. The Council told Miss E she had the right to appeal to the Tribunal from two months from the date of the letter.
32. Mrs D appealed to the Tribunal on 27 July 2019.
33. The Council decided on 11 October it would no longer oppose Mrs D’s appeal and it agreed to maintain Miss E’s EHC plan. The Council wrote to Miss E on 23 October 2019 with an amended EHC plan naming her choice of educational setting.
34. Miss E started her new college in December 2019.

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Analysis

35. The law and statutory guidance states that within four weeks of the annual review meeting, the Council should decide whether it will keep the EHC plan as it is, amend, or cease to maintain the plan. The annual review of Miss E’s EHC plan took place on 10 October 2018. The Council wrote to Mrs D and Miss E on 8 November 2018 and said it had not decided as it wanted more information on Miss E’s post-18 plans. The Council wrote to Miss E on the 28 January 2019 with an amended EHC plan. Therefore, there was a delay of nearly three months. This is fault.
36. The Council knew Miss E was approaching the end of her education at the school and would be moving on to a post-18 education setting. Therefore, it should have been making any decision in good time because of the importance of the move. This did not happen. In its response to my enquiries, the Council says the delays happened because it needed to clarify Miss E’s preference of educational setting and clarify advice following the annual review. There is no evidence to suggest what advice it needed to clarify. The Council asked the school for an update on Miss E’s progression on 26 November 2018 and it responded on 6 December 2018. There is no reason why the Council could not have asked for this information from the school when it received the annual review on 10 October 2018.
37. Mrs D had already confirmed her choice of education setting for Miss E in a phone call at the end of January 2019. There is no evidence to suggest the Council chased this until over a month later on 5 March 2019. When the Council met with Mrs D on 21 March 2019, it said it would return to her with a decision the following week. This did not happen. The next correspondence was the Council’s letter to Miss E on 18 April 2019 to cease to maintain her EHC plan. This is around six months after the annual review. The Council issued its final decision on 29 May 2019. I accept some of this delay was because Mrs D agreed for Council to consult with Miss E’s physiotherapist and Speech and Language Therapist before making its final decision.
38. I am satisfied the faults identified at paragraphs 35 to 37 have caused an injustice to Mrs D. If there had been no delays in the process, Mrs D would have the opportunity to appeal to the Tribunal sooner. As the Council made its final decision just over a month before school ended, it left Mrs D with the additional distress and uncertainty of not knowing if she would be able to find suitable educational provision for Miss E before the start of the next academic year.

Agreed action

39. To address the injustice caused by fault, by 2 December 2020 the Council has agreed to:

• Apologise to Mrs D for the uncertainty and distress caused by its delay.
• Pay Mrs D £300.
• Issue written reminders to its staff to adhere to the timescales set out in legislation after the annual review of an EHC plan.

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Final decision

40. I have found fault by the Council, causing an injustice to Mrs D. The Council has agreed to my recommendations and so I have completed my investigation.

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Parts of the complaint that I did not investigate

41. Mrs D appealed to the SEND Tribunal about the Council’s decision to cease to maintain Miss E’s EHC plan. The courts have said where the period out of education coincides with an appeal about an EHC plan and there is a link between them, the period from the date on which the appeal right arises until the appeal is heard is outside the Ombudsman’s jurisdiction. So, I cannot investigate the Council’s decision to cease to maintain Miss E’s EHC plan. I am also unable to investigate the lack of provision for Miss E that flowed from the Council’s decision.

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Investigator's decision on behalf of the Ombudsman