Summary: The Council has accepted it failed to complete Mr Y’s annual review for the 2021/22 academic year within the statutory timescales. We find the fault caused Mr Y and Mrs X, who is Mr Y’s parent, distress and uncertainty about Mr Y’s college placement. Mr Y was denied appeal rights to the SEND Tribunal. To remedy this, the Council has agreed to apologise to Mr Y and Mrs X and make them each a payment as well as several service improvements. But, we do not find the Council failed to invite Mrs X to a meeting with Mr Y’s College to discuss his placement during the summer 2021. We also do not find the Council at fault regarding Mrs X’s complaint it failed to tell her that it was consulting other placements and planned on naming a new placement during the annual review meeting. This is because we have not seen evidence of fault causing significant injustice.

The complaint

1. The complainant, who I shall refer to here as Mrs X, complains on behalf of her son, Mr Y, that the Council:
1. failed to issue an amendment notice and final Education, Health and Care Plan (EHC Plan) within the statutory timescales for doing so. This was following an annual review meeting in December 2020. Mrs X says the Council did not issue: an amendment notice until April 2021 and a final plan in July 2021;
2. failed to tell Mrs X during an annual review meeting in December 2020 that the Council planned on amending Section I of Mr Y’s EHC Plan and naming a new placement;
3. failed to tell Mrs X during the annual review process that it was consulting other placements and failed to consult these in a timely manner; and,
4. failed to hold a meeting with Mrs X and College One in June 2021 to discuss Mr Y’s placement.
2. Mrs X says the situation caused Mr Y a great deal of emotional distress and uncertainty. She says this affected his anxiety over the summer 2021 as it was not clear whether he could continue at College One from Sept 2021.
3. Mrs X says she has gone to time and trouble following up with the Council on the matters raised in her complaint.

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What I have and have not investigated

4. I cannot investigate the following matters raised in Mrs X’s complaint:

• Mrs X complained to the Council that it failed to confirm a suitable placement for Mr Y after February 2022 when it issued the EHC Plan in July 2021. This is because I consider this to be inextricably linked to the SEND Tribunal appeal, which concerned the placement named in Section I of Mr Y’s EHC Plan from February 2022. The law says that we cannot investigate a complaint if someone has appealed to a tribunal about the matter. (Local Government Act 1974, section 26(6), as amended)
• we cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended) This includes decisions around curriculum and similar matters. This means I cannot investigate the part of Mrs X complaint that concerns any decisions by College One and the Council about the courses Mr Y would access from September 2021 that have not been specified in his EHC Plan. This applies to Mrs X’s complaint about the provision of a Personal and Social Development course and photography tuition by College One. I have explained to Mrs X that it is open to her to complain to the College through its complaints process if she wishes to do so.

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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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
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 X about her and Mr Y’s complaint. I considered all the information and documents that Mrs X and the Council sent to me.
10. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their 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

Education, Health and Care Plan – legal and administrative background

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.
13. The EHC plan is set out in sections which include:

• Section B: The child or young person’s special educational needs. 
• Section F: The special educational provision needed by the child or the young person.  
• Section I: The name and/or type of school. 

14. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
15. We can consider the other sections of an EHC plan. We do this by checking the Council followed the correct process, and took account of all relevant information, in deciding what to include. If we find fault affected the outcome, we may ask the Council to reconsider. We will not usually substitute our judgement for the judgement of professionals.

Responsibility for making arrangements

16. 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.

Arrangements for reviewing an EHC Plan

17. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
18. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 (the SEND Regulations) and SEN Code paragraph 9.176)
19. Where a council proposes to amend an EHC plan, the law says it must send the child’s parent or 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) SEND Regulations and SEN Code paragraph 9.194)
20. The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
21. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
22. 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. The right of appeal is only engaged when the final amended plan is issued.

Appeal rights

23. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.

What happened

24. Mr Y is a young person above compulsory school age. He has special educational needs (SEN). Mr Y has an EHC Plan.
25. In early December 2020, College One, an independent specialist further education college, that Mr Y was attending, held an annual review meeting of Mr Y’s Plan.
26. In mid-April 2021, the Council sent Mrs X a letter notifying her it intended to amend Mr Y’s Plan. As an amendment notice, it attached a draft Plan with amendments highlighted in bold and the parts the Council intended remove from the Plan had a line through the text. The Council left Section I of the Plan blank.
27. In early May, the Council asked College One for the breakdown of costs for Mr Y to attend the College for the 2021/22 academic year. The Council said Mr Y would like to attend the College for a further year.
28. Later in May, the Council chased College One for the information on costs. It separately sent out a consultation letter to College One asking it to confirm whether the College could meet Mr Y’s educational needs and offer a placement. The Council asked College One to respond within 15 days.
29. The Council sent consultation letters to several other colleges, including College Two, a general further education college, where Mr Y had asked to undertake a certain course offsite from College One.
30. College One responded to say it was unable to continue with Mr Y’s placement beyond February 2022. The Council told Mrs X about the College’s response.
31. In June, the Council consulted a different further education college.
32. The Council’s funding panel considered the costs College One had provided. Mr Y’s SEN Caseworker at the Council told Mrs X that these had increased significantly because of the provision of a photography A-Level tutor for Mr Y. The Caseworker said the Council was looking into other arrangements to support Mr Y in accessing this, including Mr Y possibly accessing photography classes at a different school, and she would discuss the costs further at a meeting with College One.
33. On 23 June, the Council held a virtual meeting with College One and various professionals involved in Mr Y’s education.
34. In late June 2021, Mrs X complained to the Council. She said the Council had failed to issue Mr Y’s Plan on time. She said Mr Y had been caused significant uncertainty about what placement he would attend from February 2022. Mrs X said this had negatively impacted Mr Y’s wellbeing, anxiety and autistic traits. She asked the Council to clarify its position before the end of term.
35. In early July, the Council emailed Mrs X with the outcome of the meeting on 23 June. It said:

• College One was unable to offer suitable full-time provision and meet Mr Y’s needs after February 2022 when Mr Y’s 17-week course was due to end;
• the Council had agreed to name College One in Section I of Mr Y’s Plan from September 2021 until February 2022. The Council said it would hold an early annual review in October 2021 to discuss support for Mr Y from February 2022 onwards.

36. In mid-July, the Council sent Mrs X and Mr Y a copy of Mr Y’s final amended EHC Plan. This named College One in Section I for September 2021 until end of January 2022. But, the Council left the name and type of placement from February 2022 onwards blank.
37. In early August, the Council apologised to Mrs X as it had missed the deadline of 26 July to send its stage one complaint response. It said the delay was due to capacity issues within its SEN service.
38. Mrs X appealed to the SEND Tribunal. In her application for appeal, Mrs X said:

• she disagreed with what Section B said about Mr Y’s SEN;
• she disagreed with what Section F of the Plan said about Mr Y’s SEP; and,
• the Council had failed to name College One as Mr Y’s placement in Section I after February 2022. She said College One had said it could not meet Mr Y’s needs after this date. But, Mr Y wished to continue his education there and the Council had failed to put in place a suitable educational programme for Mr Y from February 2022.

39. A week later, the Council sent Mrs X its stage one complaint response. It upheld Mrs X’s complaint.
40. Mrs X asked the Council to escalate her complaint.
41. In late August, Mrs X asked the Council to carry out an early annual review of Mr Y’s Plan. This was so his placement and provision from February 2022 onwards could be agreed ahead of any potential transition to another placement.
42. In September, Mrs X chased the Council for its stage two complaint response. The Council’s complaints team replied to say it would respond by 23 September.
43. In late September, Mrs X chased the Council and asked it to hold an urgent annual review meeting. She said Mr Y struggled with change and transitions because he was autistic.
44. On 29 September, the Council sent Mrs X its stage two complaint response. It did not uphold Mrs X’s complaint. It said:

• after receiving the December 2020 annual review papers from College One, the Council consulted other post-16 institutions. It said this was a normal part of the process.
• the Council had named College One in Section I until February 2022.
• it did not uphold Mrs X’s complaint that the Council failed to consult colleges about Mr Y’s educational provision from February 2022 in the months following his annual review meeting in December 2020. The Council said a further annual review would be held in October 2021 to deal with this matter and make sure appropriate support was in place from February.

45. In early October, Mrs X chased the Council again.
46. About a week later, the Council replied to Mrs X. It said a Senior Officer had contacted College One to arrange an early annual review meeting. It said the Senior Officer had explained this to College One in its decision letter from mid-July and chased College One for a suitable date in early September. But, College One told the Council it would hold the meeting on 30 November. The Council said it would ask College One if this could be held earlier.
47. On 22 November, College One held the annual review meeting, which Mrs X and Mr Y were able to attend.
48. In late January 2022, the SEND Tribunal issued a consent order. This stated Mrs X and the Council had reached an agreement on the wording of Mr Y’s EHC Plan. The SEND Tribunal ordered the Council to issue the amended EHC Plan in accordance with the relevant working document, which said College One would be named in Section I from February 2022.
49. In mid-February, the Council issued Mr Y’s final amended EHC Plan. This named College One until the end the summer term 2022.

Analysis – was there fault by the Council causing injustice?

Failure to complete the annual review within the statutory timescales

50. In the Council’s stage one complaint response, it accepted it failed to issue a final EHC Plan within the statutory timescales following an annual review meeting in December 2020. This is fault (part a of the complaint).
51. As explained above, the Council should have notified Mrs X and Mr Y of its decision to either maintain, amend or cease to amend the EHC plan within four weeks of the review meeting in early December. (SEND Regulations 20(10) and 21(9)) But, the Council accepted it failed to issue this until over four and a half months. The Council also accepted it delayed in issuing the final amended Plan until mid-July 2021.
52. The Council told me that the delay in completing the annual review was linked to College One only sending the review paperwork on 31 March 2021.
53. Based on the annual review paperwork, Mr Y’s SEN Caseworker and a Senior Assessment and Review Officer were invited to the annual review meeting, but were unable to attend. In my view, this meant the Council was aware of when the meeting was due to take place and should have considered the timescales for completing the annual review. But, I have seen no evidence the Council chased College One for the paperwork after the annual review meeting. Rather, it seems College One were prompted by Mrs X in March 2021 to send the paperwork after she told College One the Council had not received it. This is fault. We would expect the Council to have a system in place to follow up on outstanding annual review paperwork to ensure it meets the statutory timescales for completing annual reviews.
54. This delay caused Mr Y and Mrs X distress and uncertainty about where Mr Y would attend from September 2021. I find the distress and uncertainty caused to Mr Y was especially significant because, as Mrs X explained to the Council, Mr Y struggled with change and transitions because he was autistic. Mr Y was denied appeal rights to the SEND Tribunal during the period of delay.
55. The delays in issuing Mr Y’s final amended EHC Plan also had knock-on effect on timely decision-making by the Council as follows:
• if the Council had reached a decision to amend four weeks from the annual review meeting, then, on balance, it is likely the Council would have received College One’s response much sooner than late May 2021 about whether it could provide suitable educational provision for Mr Y from February 2022. The Council, therefore, missed an early opportunity to consult College One and confirm whether it could meet Mr Y’s needs.
• the Council’s contact with Mrs X following College One’s response suggested the Council intended to name a different college placement from February 2022. In its stage two complaint response, the Council said, after February 2022, the Council would provide a “bespoke package focused on supporting [Mr Y’s] transition to college. The [Council would] commission continued support from [Mr Y’s] Photography tutor after February 2022, so he may continue his Photography A-Level studies as planned with a familiar adult. This provision will be discussed further at [Mr Y’s] next annual review.” On several occasions during the summer 2021, Mrs X requested that the Council hold the phase transfer review meeting. When a young person is expected to transfer from one post-16 institution to another post-16 institution partway through the school year in this way, the Council must review and amend the EHC Plan at least five months before that transfer takes place. Regulation 18, SEND Regulations This meant the Council should have completed and issued a final amended EHC Plan for Mr Y by the beginning of September 2021 to make sure his placement from February 2022 was clear. I find the Council lost sight of this requirement when it said that it would hold the annual review meeting in October 2021 (with this eventually taking place in November 2021). This is fault. The Council missed several earlier opportunities when it should have reviewed Mr Y’s Plan ahead of February 2022. This caused Mr Y further distress and uncertainty. Mrs X was caused distress and put to time and trouble chasing the Council.

Information shared with Mrs X about Mr Y’s placement

56. Mrs X complains the Council failed to tell her during an annual review meeting in December 2020 that the Council planned on amending Section I of Mr Y’s EHC Plan and naming a new placement (part b of the complaint).
57. College One held the December 2020 annual review meeting. I have considered the review paperwork from the December 2020 meeting. This does not suggest that a change of placement was discussed. Based on the draft amended Plan sent to Mrs X in April 2021, it also did not seem to be the case that the Council was proposing a change of placement. This was not highlighted in the amendment notice cover letter or draft changes in the attached Plan. The Council left Section I blank, but this is in line with what was expected of it at this stage of the process. Based on the evidence I have seen, the Council was not aware that College One had any concerns about meeting Mr Y’s needs from February 2022 when it was processing the annual review paperwork.
58. Rather, I find, on balance, the Council first became aware that College One was unable to provide appropriate educational provision that was suitable to Mr Y’s needs after it consulted the College in May 2021. For this reason, I do not find the Council at fault (part b of the complaint).
59. When the Council sent Mrs X a letter notifying her it intended to amend Mr Y’s Plan, the Council left Section I of the draft Plan blank. I do not find the Council at fault here. Rather, the Council gave Mrs X and Mr Y the opportunity to make representations and request a particular school. This is in line with what was expected of the Council.
60. Based on the evidence I have seen, I find, on balance, the Council consulted College One in May 2021 as this was Mr Y and Mrs X’s preferred school. The Council consulted it so the Council could consider whether College One remained a suitable setting based on Mr Y’s age, ability, aptitude or SEN (as required by section 39(4), Children and Family Act 2014).
61. The Council originally decided, based on College One’s response, that the College was not suitable for Mr Y after February 2022. It explained to Mrs X this was because the Council was not satisfied it could provide appropriate educational provision that was suitable to Mr Y’s needs after this. This was a decision the Council was entitled to make. I do not find the Council at fault.
62. The Council consulted several other colleges between May and June 2021. This included College Two, a college Mr Y requested he study a particular course. I do not find the Council at fault for consulting a second college preference of Mr Y and Mrs X.
63. The Council told me it consulted other colleges when College One said it was unable to meet Mr Y’s needs from February 2022. I do not find the Council at fault. It acted quickly in consulting other colleges. While it would have been good practice for the Council to have explained to Mrs X and Mr Y the reasons it was consulting other colleges, I do not find this amounted to fault causing significant injustice (part c of the complaint). The Council explained to Mrs X that College One had said it was unable to meet Mr Y’s needs from February 2022 meaning it was likely the Council would consult other colleges.
64. In the end, Mrs X appealed to the SEND Tribunal about the lack of placement named in Section I from February 2022, which led to Mrs X and the Council reaching an agreement about this. This was the appropriate route to take. As explained above, the Ombudsman cannot direct changes to the sections about education, or name a different school in a Plan. Only the SEND Tribunal can do this.

Failure to arrange a meeting with Mrs X and College One in June 2021

65. Mrs X complains the Council failed to hold a meeting with Mrs X and College One in June 2021 to discuss Mr Y’s placement.
66. The Council told me it was unable to find a copy of the meeting notes. But, it said Mrs X was updated on what transpired at the meeting. We expect the Council to maintain robust records of important meetings like this so there is a clear record of what was discussed, who attended and any actions agreed. I have recommended a service improvement around this.
67. Based on the evidence provided prior to issuing my draft decision, it was not clear from the Council’s emails with Mrs X whether or not the Council had invited Mrs X to the June 2021 meeting. Some of the contact ahead of the meeting suggested Mrs X would take part.
68. But, in comments on the draft decision, the Council provided additional evidence that showed it explained to Mrs X that the meeting was being arranged with a Senior Assessment and Review Officer at the Council and College One only to discuss the costings put forward, because they had increased significantly, and that the Council would contact Mrs X following the meeting. The Council explained this in an email to Mrs X on 9 June 2021. Mrs X was able to communicate her and Mr Y’s views ahead of the meeting and she requested certain professionals attend the meeting who would support Mr Y’s views. I do not find the Council at fault. I find the Council suitably explained to Mrs X who would attend the meeting and followed up with Mrs X after the meeting to confirm what had been decided.

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Agreed action

69. Within four weeks of my final decision, the Council has agreed to:
1. apologise in writing to Mr Y for the fault causing injustice, including the particular impact the uncertainty and distress caused to Mr Y because he is autistic;
2. apologise in writing to Mrs X for the fault causing injustice;
3. make Mr Y a payment of £250 for the avoidable distress and uncertainty caused and the period during which he was denied SEND Tribunal appeal rights; and,
4. make Mrs X a payment of £150 for the avoidable distress and uncertainty caused.
70. I have considered the Ombudsman’s published guidance on remedies when recommending the above payments.
71. Within three months of my final decision, the Council has also agreed to make the following service improvements:

• establish a mechanism for logging when a school/college has arranged an annual review meeting and promptly following up with the school/college for the review paperwork. This is to make sure the Council meets the statutory timescale that, within four weeks of a review meeting, the Council must notify the young person or child’s parent of its decision to maintain, amend or discontinue the EHC plan;
• circulate a reminder to relevant staff that when a young person is expected to transfer from one post-16 institution to another post-16 institution partway through the school year, the Council must review and amend the EHC Plan at least five months before that transfer takes place. Regulation 18, SEND Regulations; and,
• circulate a reminder to staff of the need to maintain robust records of important meetings with schools/colleges so there is a clear record of what was discussed, who was invited/attended and any actions agreed.

72. The Council should provide us with evidence it has complied with the above actions.

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Final decision

73. I have completed my investigation.
74. I have decided not to uphold part a of the complaint. This is because the Council has accepted it was at fault. The above recommendations are suitable ways for the Council to remedy the injustice caused to Mr Y and Mrs X, which the Council has agreed to.
75. I have decided not to uphold parts b to d of the complaint. This is because I have not seen evidence of fault by the Council causing significant injustice.

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Investigator's decision on behalf of the Ombudsman