Summary: Mrs Y complains the Council failed to complete the annual review of her daughter’s Education, Health and Care Plan within the statutory timescales for doing so. She says this meant her daughter, Miss B, missed out on a college placement during 2021/22. We have decided to uphold Mrs Y’s complaint. We have also upheld Mrs Y’s complaint that the Council failed to register her complaints. The fault caused Mrs Y significant distress and she was put to time and trouble. Miss B missed out on educational provisional and a Plan that fully reflected her needs. To remedy this, the Council has agreed to: apologise to Mrs Y and Miss B, make them several payments and carry out a reassessment of Miss B’s needs. The Council has also agreed to make certain service improvements.

The complaint

1. The complainant, who I shall refer to here as Mrs Y, complains on behalf of her daughter, Miss B. Miss B has an Education, Health and Care Plan (EHC Plan) and is a young person. Mrs Y complains the Council:
1. failed to complete the 2021/22 annual review process within the statutory timescales following an annual review meeting in February 2021;
2. failed to issue a final, amended EHC Plan for the 2021/22 academic year;
3. failed to provide funding in time so that Miss B could continue her education at a specialist college from September 2021. Mrs Y says the Council has failed to put in place a suitable alternative placement while funding is secured for the specialist college. Mrs Y says this means Miss B is missing out on an education and the special educational provision in her EHC Plan; and,
4. failed to respond to her complaint.
2. Mrs Y says Miss B now attends a day centre, but this does not provide her with an education (specifically in numeracy, literacy and speech and language support as specified in her daughter’s EHC Plan). Mrs Y says the situation with Miss B’s education has caused her daughter significant distress and impacted her mental health. Mrs Y says it has caused her family significant distress too.
3. Mrs Y says Miss B used to attend college five days per week, but is now mainly cared for by her elderly grandmother and Mrs Y, who is a single parent that works fulltime.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. 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)
7. 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.
8. 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)

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How I considered this complaint

9. I spoke with Mrs Y about her complaint. I considered all the information Mrs Y and the Council sent me.
10. Mrs Y and the Council had an opportunity to comment on my draft decision. I considered all comments before making a final decision.
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

What should have happened

Education, Health and Care Plans

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 SEND Tribunal can do this.
13. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
14. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC Plan.

Annual reviews

15. The SEND Code of Practice: 0 to 25 years (the SEND Code of Practice), published by the Government, sets out what councils must do to support children with special educational needs (SEN). The Code says:

• EHC plans must be reviewed at least every 12 months. However, if a young person is moving from one post-16 institution to another post-16 institution, the EHC plan must be reviewed and amended at least five months before that transfer takes place. (Regulation 18 of the Special Educational Needs and Disability Regulations 2014);
• The purpose of the annual review is to consider whether the special educational provision and educational placement is still appropriate. The annual review is not complete until the council has decided to either: maintain, cease or amend the plan;
• within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or cease the EHC Plan (Special Educational Needs and Disability Regulations 2014, Regulation 20 (10)); and
• when a council decides to amend the EHC Plan, the final Plan should be sent as soon as practicable and within eight weeks of the date when the council sent the parents or young person the EHC plan and proposed amendments (SEND Code of Practice: 0 to 25 year (January 2015, as amended), paragraphs 9.196 and 9.197).

Children and young people: preparing for adulthood reviews

16. The Code says councils must ensure that EHC plan reviews from Year 9 (age 13-14) include a focus on preparing for adulthood, including possible further education. These reviews should result in clear outcomes which are ambitious and prepare young people for adulthood.
17. Planning must be centred around the individual and explore the child or young person’s aspirations and abilities, what they want to be able to do when they leave post-16 education or training and the support they need to achieve their ambition.
18. Local authorities should ensure that children and young people have the support they need (for example, advocates) to participate fully in this planning and make decisions.
19. The Code says the preparing for adulthood planning in the annual reviews should include the following:

• support identified to prepare for higher education and/or employment. This should include: identifying appropriate post-16 pathways that will lead to these outcomes and discussing training options;
• support to prepare for independent living, including exploring what decisions the young person wants to take for themselves and planning their role in decision making as they become older. This should also include discussing where the young person wants to live in the future, who they want to live with and what support they will need. Local housing options, support in finding accommodation, housing benefits and social care support should be explained;
• support in maintaining good health in adult life; and,
• support in participating in society, including understanding mobility and transport support, and how to find out about social and community activities, and opportunities for engagement in local decision-making.

What happened

20. Miss B is a young person. She is autistic and has speech, language and communication difficulties. She has an Education, Health and Care Plan (EHC Plan).
21. Miss B attended a further education college, College A, four days per week until the end of July 2021. She also attended a day centre, Day Centre B, one day per week, which provided care and support to adults with additional needs and disabilities.
22. In February 2021, College A held Miss B’s annual review. The minutes of the meeting show:

• the EHC Plan was last updated in March 2018. This meant Miss B’s Plan and outcomes were not accurate or up to date;
• Miss B’s Speech and Language Therapist did not attend, but sent a report ahead of the meeting;
• Mrs Y, Miss B’s mother, said she would like Miss B to transition to an independent specialist college, Specialist College C, from autumn term 2021. Specialist College C provides post-16 further education to young people with complex autism.

23. In June, Specialist College C wrote to the Council offering Miss B a three-year placement.
24. In early July, Specialist College C emailed Mrs Y to say it no longer had any places available for September and had added Miss B to its waitlist. It is my understanding that this was because the Council had not decided whether it would fund Miss B’s placement at Specialist College C.
25. Mrs Y emailed a Council social worker asking her what provision would be put in place for Miss B. She said her family was struggling to cope.
26. In mid-July, Mrs Y complained to the Council’s Special Educational Needs (SEN) team. She said her SEN caseworker had failed to respond to her emails and clarify the placement Miss B would move onto in the autumn term. She complained the Council had failed to:

• respond to her request for Miss B to attend Specialist College C, and
• complete Miss B’s annual review.

27. In late July, an officer in the Council’s SEN team replied to Mrs Y to say Miss B’s caseworker thought that Miss B would attend a day centre. She said the Council had not told Mrs Y this decision, but should have obtained Miss B’s view before deciding this. She said Miss B’s caseworker would call Mrs Y to discuss.
28. Mrs Y sent further complaints to the Council’s SEN team. Mrs Y said the possibility of Miss B attending a day centre instead of college was not explored during the annual review meeting.
29. Miss B’s SEN caseworker with the Council called Mrs Y. The Council’s record of the call shows the caseworker:

• apologised for the confusion and distress caused;
• agreed to update Miss B’s EHC Plan and issue a draft amended Plan;
• agreed to consult an alternative college placement that Mrs Y had contacted. She said an updated EHC Plan would be provided to the college;
• agreed to request a reassessment of Miss B’s social care needs and to inform Miss B’s social worker that she may be interested in supported living in the future. The caseworker confirmed she would ask the social worker to look into possible art therapy and respite services during weekends and school holidays as Mrs Y said the personal budget in place did not cover these; and
• agreed to consult College A to decide whether Miss B could repeat the final year of her course. This was because Mrs Y said Miss B had not attended the course in full due to lockdowns because of COVID-19.

30. At the end of July, Miss B’s placement at College A ended.
31. In early August, Mrs Y chased the SEN caseworker for an update.
32. The SEN caseworker contacted the alternative college for further information about the placement. The school explained that it was not a college, but a day centre offering social care to Miss B.
33. Mrs Y emailed the SEN caseworker to say she did not wish for Miss B to attend the day centre. Mrs Y said that she would like Miss B to stay on at College A and continue in education. She said that she had been in contact with Day Centre B, which had confirmed it could provide support for Miss B five days a week on a temporary basis.
34. At the end of August, Miss B began attending Day Centre B five days a week. This was funded by the Council.
35. In September, Mrs Y’s Member of Parliament (MP) made representations to the Council on Mrs Y’s behalf. The MP said Miss B had missed out on a place at Specialist College C and was without an educational placement.
36. The next day, Mrs Y complained to the Council.
37. In mid-September, a Council social worker carried out a Care and Support assessment for Miss B. This said, as Miss B did not have a college placement in place from September 2021, the Council’s adult social care team had arranged and funded four additional days per week at Day Centre B.
38. The next day, the SEN caseworker and Mrs Y met. Mrs Y said that she was frustrated the Council had failed to secure a further education placement for Miss B. The SEN caseworker told Mrs Y:

• the Council would not fund a further course that was the same as or very similar to Miss B’s last year of study at College A. It is my understanding this is because College A told the SEN caseworker that it was not in Miss B’s best interests to repeat a year and a transition to adult social care services should be considered; and
• the Council’s adult social care team could provide SALT and art therapy at Mrs Y’s request.

39. At the end of September, the SEN caseworker consulted three different colleges about possible placements for Miss B. One college said it was not suitable for Miss B as it only offered similar, if not identical courses, to the one Miss B had completed at College A. The second college said Miss B’s Plan was out of date so it could not accurately assess whether it could offer a place and a SALT assessment was needed. In any case, due to the time of year, it was at capacity and could not offer a place. The final college, College D, said it had no places available, but could add Miss B to its waitlist and then offer a place if the Council provided funding.
40. In October, the Council replied to Mrs Y’s MP. It said that it would start consulting possible further education placements in November.
41. At the end of October, Mrs Y’s MP contacted the Council again to say that a further educational placement was still not in place.
42. In early November, Miss B’s SEN caseworker told College D that the Council had agreed to fund a place for Miss B. College D said it did not think the College was appropriate for Miss B, but could offer her a place until Miss B transitioned to Specialist College C in September 2022. College D said it also needed to recruit a new member of staff to support Miss B before it could confirm a start date.
43. Mrs Y complained to the Ombudsman.
44. In December, Specialist College C emailed the Council to say that it could offer Miss B a place from September 2022.
45. The Council replied to further representations from Mrs Y’s MP. It apologised for failing to ensure it always replied to Mrs Y in a timely manner. It said Miss B’s start date at College D was not confirmed yet and the College was still trying to recruit a member of staff to support Miss B.
46. The Council’s SEN caseworker chased College D for an update.
47. In January 2022, College D and the SEN caseworker exchanged further emails. College D said it was still trying to recruit a member of staff.
48. In April, the Council sent Mrs Y a draft amended EHC Plan.
49. In May, the Council sent Mrs Y a final amended EHC Plan naming College D as the placement in Section I of the Plan.

Analysis – was there fault by the Council causing injustice?

Annual review

50. In response to questions I asked, the Council told me it accepts that it did not complete Miss B’s 2021/22 annual review within the statutory timescales. This is fault.
51. Miss B was due to transfer from College A to another placement in September 2021. Our expectation is that an educational placement should have been in place by September 2021. The Council did not issue a final Plan naming College D until May 2022. This delay is fault (parts a and b of the complaint).
52. This caused Miss B significant injustice. It caused Miss B and Mrs Y significant distress and uncertainty about what placement the Council would put in place. The Council’s failure to issue a Plan meant Miss B was denied appeal rights to the SEND Tribunal. Mrs Y went to significant time and trouble chasing the Council to complete the annual review and to secure a placement for Miss B.
53. I find that this fault meant Miss B missed out on a college placement, up to date special educational provision and a Plan that fully reflected her needs during the 2021/22 academic year. The annual review meeting was held at the end of February 2021, which did not give the Council enough time to consult placements and complete the review by the end of March.
54. If the annual review process and consultation of colleges had begun much sooner, I find, on balance, it is likely that the Council could have secured a placement for the beginning of the autumn term 2021 (part c of the complaint). However, the Council did not begin fully consulting potential college placements until the end of September 2021. The college responses show, including the response from College D, that it was likely they could have offered a place if they had been consulted before the beginning of the academic year.
55. I find that the delay in the Council consulting placements was in part due to the Council’s failure to decide promptly whether to maintain, amend or cease the Plan.
56. Based on the evidence I have seen, during the summer term 2021, Miss B’s SEN caseworker suggested Miss B was transitioning to adult social care services and this was based on the annual review meeting and College A’s advice that it was not in Miss B’s best interests to repeat a year. In my view, this decision-making suggested the Council was ceasing to maintain the Plan, but without writing to Miss B and Mrs Y with this decision and notifying them of SEND Tribunal appeal rights. This is fault. In the event that a council decides to end a Plan, the Code says it 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 has been concluded. (the Code, paragraph 9.209) I am not persuaded the Council considered the requirements under the statutory process when deciding during this period that Miss B was transitioning to a day centre arranged by adult social care services.
57. In February 2022, the Council’s SEN caseworker emailed Mrs Y to say that she had agreed with her manager to carry out a statutory reassessment of needs.
58. However, based on the evidence I have seen, including the final Plan issued in May 2022, this reassessment of needs has not taken place. It is not clear from the final Plan that the Council has obtained all the necessary professional advice and information, including from an educational psychologist, speech and language therapist and social care. There is no evidence of how it has considered the recommendations made by Miss B’s former speech and language therapist that was provided during the February 2021 review meeting. This is fault. This means Miss B has missed out on a Plan that fully reflects her current needs and is informed by up to date professional advice before she potentially starts her next college placement at College D.
59. In comments on my draft decision, the Council said the failure to carry out the reassessment of needs was not due to fault by the Council. Rather, it said Miss B and Mrs Y had refused to agree to the reassessment being carried out.
60. I asked the Council to send me evidence that supported its comments. I invited Mrs Y to comment on the Council’s position. I have considered both parties’ comments and the additional evidence they both sent me. Based on these I find:

• in early March 2022, the Council contacted Mrs Y to confirm the Council had decided to carry out a reassessment of Miss B’s needs. The letter sent to Mrs Y did not indicate that the Council needed Mrs Y’s consent to the reassessment;
• it is my understanding that the Council’s educational psychologist service would not go ahead with its assessment without Miss B’s consent. Miss B’s SEND Caseworker then decided the Council needed Miss B’s consent to the reassessment. She asked a different Council Officer to get Miss B’s consent. Council records show Miss B’s SEND Caseworker said “if [Miss B] is not able [to consent] then a mental capacity act assessment should have been carried out by the social worker.”
• A Council Officer spoke with Mrs Y to explain why Miss B’s consent was needed. Mrs Y explained that she was Miss B’s appointee and provided a document in support of this. I do not find Mrs Y refused to consent to the reassessment process. Rather, Mrs Y was taking steps to demonstrate why she considered she was in a position to represent Miss B’s views. In mid-April, Mrs Y chased the Council for an update on the reassessment. A few days later, she confirmed that she was happy to give written consent to the Council. This suggests Mrs Y was supportive of the reassessment going ahead. In mid-June, the Council decided to ask Mrs Y again for her written consent to the reassessment, which Mrs Y provided the next day.
• internal emails at the Council show the reassessment could not go ahead until Miss B’s consent had been established. In my view, Miss B did not refuse to consent to the reassessment of need. Rather, the Council’s failure to explore independent advocacy options with Miss B or carry out a mental capacity assessment caused the delays in the Council deciding whether Miss B wished for the reassessment process to go ahead. The Council’s records show Miss B’s case with the Council’s adult social care team was closed in summer 2021 and Miss B’s social worker said Miss B “is not able to make decision[s] for herself”. However, the social worker had failed to carry out a mental capacity assessment. This is fault. In my view, the Council missed a key opportunity here to consider carrying out a mental capacity assessment or to refer Miss B to its advocacy services. These were not considered until the educational psychologist service said it would not go ahead with the assessment without Miss B’s consent. If the Council had explored these options sooner, then, on balance, it is likely the Council would have reached a decision much sooner on whether Miss B wished for the reassessment to go ahead;
• in mid-June 2022, the Council referred Miss B to its independent advocacy services for the first time. The Code says the Council should ensure young people have the support they need to participate fully in planning for adulthood and making decisions, which may include an advocate. It is my view that the Council has failed to consistently consider or record offering this to Miss B, which is fault. The Council says it places great emphasis on being young person centred and is aware that this falls somewhat short in Miss B’s case. In my view, this is an acceptance of fault by the Council. Miss B has missed out on potential advocacy services that could support her in ensuring her views are understood.
• The Council records show that, since sending the referral in mid-June 2022, its independent advocacy service has struggled to set up an appointment with Miss B. This was due to difficulties in contacting Miss B’s day centre. I do not find this supports the Council’s view that Mrs Y or Miss B refused to consent to the reassessment process. The independent advocacy services were due to meet with Miss B on the day the Council responded to my additional questions.

61. In these circumstances, I do not consider it reasonable to expect Miss B and Mrs Y to appeal to the SEND Tribunal. The fundamental issues with Miss B’s Plan are due to maladministration by the Council and a failure to reassess Miss B’s needs. I have, therefore, recommended the Council reports back whether Miss B has now consented to the reassessment. If so, the Council should carry out the reassessment of needs and issue a completed final Plan within two months from my decision.
62. As part of the reassessment of needs, I also recommend the Council carries out the following to inform any decisions made during the process:
• clearly record how preparing for adulthood planning has been included in the reassessment, with clear reference to each of the bullet points in paragraph 19 above; and

• carry out a reassessment of Miss B’s social care needs under the Care Act 2014 as part of obtaining updated social care advice. This should include details of whether a mental capacity assessment has now been carried out. This should include consideration of Mrs Y’s requests for art therapy and respite care during weekends and holidays. Mrs Y has raised these requests on several occasions, but it is not clear what decision, if any, the Council has made. It is not clear whether the Council has carried out a carer’s assessment for Mrs Y, who I understand is Miss B’s main carer. This is fault. Mrs Y has raised on several occasions that she was struggling and respite care could potentially be of assistance. The Council should offer Mrs Y a carer’s assessment now.

Complaints handling

63. Mrs Y complains the Council failed to respond to her formal complaints. I have decided to uphold Mrs Y’s complaint (part d of the complaint).
64. In comments on my draft decision, the Council said it had responded to Mrs Y under its complaints procedure. Its procedure states:

• the Council expects customers to first approach the team or person responsible for delivering the service they are unhappy with so that the matter can be addressed. This falls under the ‘Initial Review’ stage of the Council’s complaints process.
• where attempts for early resolution under the Initial Review stage by the relevant person or team are unsuccessful, or the Council does not consider this to be appropriate, the complaint will be progressed for a formal response under the Council’s ‘Final Review’ stage.
• under the Final Review stage, the complaint is investigated and responded to by a senior manager who has direct responsibility for the staff involved or the issue complained about. In most cases, the senior manager will provide a written response to the complainant. The response will be monitored by the complaints team and clearly state what decision has been reached regarding the complaint. The response will advise the complainant of their right to escalate matters to the Ombudsman, should they remain dissatisfied.

65. The evidence I have seen shows that Mrs Y asked to complain to the Council on several occasions in July, August and September 2021. I have considered the Council’s responses. The Council’s SEN team responded to Mrs Y’s emails in July, which is in line with the Initial Review stage of its complaints procedure. At the end of July, a SEN Casework provided a response to Mrs Y’s complaint, including an apology for the distress and confusion caused as well as several agreed action points.
66. When Mrs Y complained again in August and early September that she did not consider her complaint had been resolved, a senior officer in the Council’s SEN team replied to say that Miss B’s SEN caseworker had responded. However, in my view, the Council failed confirm whether it had considered Mrs Y’s complaint under its Final Review stage or confirm whether her complaint had completed its process.
67. Mrs Y continued raising the matters complained of with the Council after this time, but I find the Council failed to provide Mrs Y with a final complaint response (signposting the Ombudsman at the end of the complaints process). This is fault.
68. The Council’s failure to clarify whether it was putting her complaints through its complaints process or confirm the stage in the process meant Mrs Y was put through a drawn out complaint process. This caused Mrs Y confusion. She went to significant time and trouble complaining. I have factored this into my recommended payment below and the fact Mrs Y had to make representations through her MP on several occasions.

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Agreed action

69. Within four weeks of my final decision, the Council has agreed to:
1. apologise in writing to Miss B;
2. apologise in writing to Mrs Y. The Council should offer Mrs Y a Carer’s Assessment and report back to us on the decision made on this;
3. make Miss B a payment of £500 for the significant uncertainty and distress caused. I have factored in the loss of SEND Tribunal appeal rights when recommending this payment;
4. make Mrs Y a payment of £700 to recognise the significant avoidable distress, uncertainty and time and trouble she was put to;

The Ombudsman’s published guidance on remedies says a payment for distress is often a moderate sum of between £100 and £300. In cases, such as this, where the distress was severe and prolonged (much of the fault occurred over more than a year and is ongoing), a higher payment may be awarded. I consider the higher payments of £500 and £700 to be in line with this.

5. make Miss B a payment of £400 per month for each month to recognise Miss B’s loss of educational provision caused by the failure to issue a final 2021/22 amended Plan within the statutory timescales and arrange an educational placement by September 2021. This covers the period September 2021 to July 2022 (a total of nine school months). The total to be paid is £3,600. This is in line with the Ombudsman’s guidance on remedies, which states: where fault has resulted in a loss of educational provision, we will usually recommend remedy payment of between £200 to £600 per month. I have recommended a payment in the mid-range as the Council put in place some provision through a day centre during this time; and,
6. consider independent advocacy options for Miss B and offer these. The Council should report back on the decision that is made and whether Miss B will have an assigned advocate.
5. Within two months of my final decision, the Council has also agreed to:
1. report back on whether Miss B has now consented to the reassessment; and,
2. if so, the Council should complete the reassessment of Miss B’s needs within the two months and issue a completed final Plan fully detailing Miss B’s special educational provision based on advice from all professionals who, by law, the Council should consult. As part of the reassessment, the Council should consider fully reassessing Miss B’s social care needs and make a decision about any possible respite and art therapy needs. This should include details of whether a mental capacity assessment has now been carried out. The Council should report back on the reassessment and provide evidence of how preparing for adulthood planning has been considered during the reassessment (paragraph 19 above refers).
6. Within two months of my final decision, the Council has agreed to make the following service improvements:
1. establish a mechanism to identify any annual reviews that are outstanding and take prompt action to seek to resolve any such cases. The Council should report back on this, including how it intends to monitor this mechanism;
2. send a reminder to relevant staff on the circumstances where children and young people with EHC Plans should be offered an independent advocate;
3. circulate a reminder to relevant staff that within four weeks of a review meeting, the Council must notify the child’s parent of its decision to maintain, amend or cease the EHC Plan. When the Council decides to end an EHC plan, it 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 has been concluded;
4. circulate a reminder to relevant staff members that complaints received by a Council department should be treated as such and be put through the Council’s complaints process; and,
5. share this decision with relevant staff members.
7. The Ombudsman will need to see evidence that these actions have been completed.

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Final decision

73. I have completed my investigation.
74. I have decided to uphold parts a to d of Mrs Y’s complaint. This is because there is evidence of fault by the Council causing injustice to Miss B and Mrs Y. The above recommendations are suitable ways for the Council to remedy this, which it has agreed to.

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Investigator's decision on behalf of the Ombudsman