Summary: Miss X complained about the Council’s failure to arrange an early review and the scheduled annual review of her Education, Health and Care Plan. This led to a failure to provide support for her special educational needs for two and a half terms. We have found the Council to be at fault. We also found fault with the Council’s complaint handling. To remedy the injustice to Miss X, the Council has agreed to apologise, make a payment and take action to improve its service.

The complaint

1. Miss X complains about the Council’s failure to properly support her further education and her special educational needs. In particular, she complains about the following matters.
1. Failure to arrange an early review when her placement at college broke down.
2. Failure to arrange a scheduled annual review.
3. Failure to provide specialist support as specified in her Education, Health and Care Plan.
4. Failure to take action to arrange an alternative placement when she was no longer attending college.
5. Poor complaint handling.
2. Miss X says this has caused significant distress and has affected her well-being. She is now disadvantaged as a result of being denied access to further education for over a year.
3. Miss X is represented by her father and mother, Mr and Mrs D, in making this complaint.

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The Ombudsman’s role and powers

4. 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)
5. 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.
6. 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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What I have and have not investigated

7. I have investigated events up to when the Council held an annual review in August 2023. I understand Miss X remains dissatisfied with her current situation, but this must be the subject of a further complaint to the Council in the first instance before it can be considered by the Ombudsman.

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How I considered this complaint

8. I spoke to Mrs D and considered the information she and Miss X provided.
9. I made enquiries of the Council and considered its response and case records.
10. I reviewed the relevant law and guidance.
11. Miss X and the Council had an opportunity to comment on my draft decision. I considered all comments received before making a final decision.

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What I found

Relevant law and policy

Education, Health and Care Plans

12. A child with special educational needs (SEN) may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them.
13. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.

Annual Reviews

14. The Department for Education publishes statutory guidance, the SEND Code of Practice, which sets out the duties of councils. The guidance says:

• councils should arrange for EHCPs to be reviewed at least every 12 months;
• if a child attends a school, a council can ask the school to carry out the review; and
• if the plan needs to be amended, a council should start the process of amendment without delay.

Early reviews

15. A request can be made for an early review (sometimes referred to as an emergency or interim review) of an EHCP if there is a change of circumstances, such as a change in need or the current EHCP is no longer meeting needs.
16. The council does not have to agree to this request and there is no statutory right of appeal of this decision.

The Council’s complaints procedure

17. At stage one (local resolution) the service will acknowledge the complaint within three working days and provide a full reply within 20 working days.
18. If the complainant remains dissatisfied, they may escalate to stage two and a formal response will be provided within 20 working days but may take up to 65 working days with complex complaints.

What happened

19. The chronology below sets out the relevant key events but is not intended to describe everything that happened.
20. Miss X, is a young adult who has SEN and an EHCP. From 2021 she attended College P. In June 2022, she started a full-time job and advised College P she would not be returning in the autumn term. Unfortunately, the job was unsuitable, and Miss X resigned shortly after starting. Miss X re-enrolled at School P.
21. Miss X found she was unable return to College P in the autumn term because of trauma she experienced arising from previous events associated with both College P and the Council. It is not necessary for me to elaborate further for the purpose of this decision statement.
22. As she was without any form of employment, training or education that she felt able to access, Mrs D asked the Council to convene an early review of Miss X’s EHCP in order to explore other options. Her scheduled annual review was due in February 2023, but Miss X felt her situation had to be resolved before then.
23. There is some dispute between the Council and Mrs D about when it became aware of her change in circumstances. Mrs D says she told the Council on more than one occasion in August and September 2022. I will address this issue later in this decision statement.
24. The case records show the Council discussed this request with College P in October 2022. College P told the Council Miss X had not enrolled as she was in work. Based on this information, the Council decided it would not hold an early review because there was no need for one.
25. In November 2022, Miss X complained to the Council about her lack of education and SEN provision. She reminded the Council she was not attending College P and had not had the requested review. The following month the Council said it would refer the matter to the relevant SEN officer.
26. In February 2023, the Council asked College P to arrange the scheduled annual review because, although Miss X was not attending, she was still enrolled as a student. Mrs D asked the Council to arrange and host the review instead because Miss X did not want to return to College P under any circumstances. The Council agreed and started to arrange this is early March 2023.
27. The annual review did not take place until August 2023.

Miss X’s complaint

28. Miss X first complained about her lack of early review in November 2022.
29. The Council responded in May 2023. It failed to refer to the request for an early review, but instead promised to arrange the scheduled annual review within four weeks.
30. Upon receipt, Mrs D asked for the complaint to be escalated to stage two of the Council’s procedure. By this time, Miss X’s scheduled annual review was also late and she was receiving neither any form of education, nor support for her SEN specified in her EHCP. This was added to the ongoing complaint.
31. The Council replied in August 2023. It acknowledged the annual review that should have taken place in February 2023 was significantly overdue and apologised. Miss X was advised to engage with College P about making adjustments to facilitate her learning requirements.

The Council’s position

32. In response the Ombudsman’s enquiries, the Council has said:

• it first became aware that Miss X was not attending College P in October 2022;
• it discussed Miss X’s request for an early review with College P in October 2022. In response, the Council was told Miss X was not attending as she had found a job;
• because no reason was initially provided as to why an early review was required, it contacted Miss X directly;
• it started the process of arranging the annual review in May 2023, although contact was not made with Miss X about this until six weeks later due to resource issues; and
• it accepts no interim provision was put in place whilst Miss X did not attend College P.

33. The Council has offered Miss X its sincere apologies for the distress and frustration caused by the delay in arranging the annual review. It accepts it should have ensured that alternative SEN support identified in Miss X’s EHCP was arranged once it was notified that Miss X was no longer attending College P.
34. The Council has also accepted there was unacceptable delays in providing Miss X with responses to her complaints.

Analysis

35. I will consider Miss X’s separate areas of complaint below.

Failure to arrange an early review

36. The Council says it was not obliged to arrange an early review when first requested because it had not been given a reason for doing so.
37. The case records confirm Mrs D made the request on behalf of Miss X in August 2022. The Council said she did not provide a reason. This is not entirely correct as evidenced by an email from Mrs D advising the Council Miss X “did not want to attend college” in September. I accept this statement is open to some interpretation and was not a definitive statement that Miss X would not attend under any circumstances.
38. Sensibly, the Council decided to contact Miss X directly to establish why an early review was necessary. I have not been provided with a copy of a reply from Miss X. I have assumed she did not, based on Mrs D providing all relevant documents to the Ombudsman in support of Miss X’s complaint. As Miss X did not reply, I do not criticise the Council for not carrying out a review at this time. It was entitled to ask for more details before arranging an early review and I have not seen any evidence of the Council having been made aware she had not attended College P at the start of term.
39. The request was considered again in October 2022 when the Council asked College P for an update. I am unclear as to what specifically prompted this enquiry. Unfortunately, the Council was given incorrect information about Miss X being in employment and so the Council again decided a review was unnecessary. I cannot hold the Council entirely responsible for its decision at this time because I acted in good faith and had no reason to question what it had been told by College P. However, it was told about a material change in Miss X’s circumstances and this should have prompted the Council to review and potentially cease the EHCP. I say this because, for whatever reason, Miss X was no longer attending College P and no longer received the support set out in her EHCP. At the very least I would expect the Council to have contacted Miss X to ascertain what current situation was. I consider the Council’s failure to act on the information provided by College P to be fault.
40. The earliest recorded response I have seen from Miss X on her case file is a handwritten note from her dated 22 November 2022 saying:

• she was not attending college;
• she had not had a review; and
• she wanted to “go to the Ombudsman”.

41. In my opinion, this information was clear enough to prompt action by the Council to make further enquiries about Miss X’s circumstances. Her request to use our service is a clear indication something was not right. I have seen no evidence of action having been taken by the Council to do so. Instead, Miss X was told “her comments had been passed to the SEN team”. This did not happen. The Council should have made further enquiries this time about Miss X’s circumstances. Once it found out she was not at college or in employment, it is highly likely an early review would have been convened. I find the Council’s failure to make enquiries at this time was also fault.
42. It is also of concern that I have seen no evidence that Miss X was told at any time, either directly, via Mrs D or in a complaint response, why the Council decided an early review was not necessary.
43. I consider this lack of communication on such an important issue to be fault.
44. I am satisfied these faults have caused Miss X distress and frustration. It also prevented the Council from trying to find an alternative placement as it did when the scheduled annual review finally took place in August 2023. This missed opportunity, distress and frustration is injustice that requires a remedy.
45. I have made recommendations below to remedy this loss of provision.

Failure to arrange an annual review

46. An annual review was held in February 2022. This meant the next review should have taken place in February 2023. It did not happen until August 2023, six months later than it should have done.
47. The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s significant failure to meet the required timeframe here amounts to fault and caused a period of avoidable uncertainty and distress for Miss X. This injustice requires remedy.

Failure to provide SEN support as specified in her EHCP

48. Miss X’s EHCP specified the provision required to support while attending College P. This included support with communication and interaction, cognition and learning, as well as support for her physical, social, emotional and mental health. This would be provided by College P staff.
49. In response to my enquiries the Council has accepted it was at fault for its failure to provide SEN support set out in section F from the point it became aware she was no longer attending college. According to the Council this was in mid-October 2022, although at that time it believed she was working instead.
50. Mrs D says the Council was aware of her non-attendance much earlier. I have found no evidence of this. I do not consider Mrs D’s email from August 2023 (stating Miss X did not want to attend college) was enough.
51. From the case records I have seen, I am satisfied the Council was aware of her non-attendance in October 2022 and should have acted promptly to consider her change of circumstances and fulfil the content of her EHCP.

Failure to take action to arrange an alternative placement when she was no longer attending college

52. As soon as the Council was aware that Miss X’s circumstances had changed, this should have triggered a review of her EHCP. This did not take place until August 2023. When it did finally take place, this prompted the Council to consult with alternative colleges. This process should have started in October 2022.
53. This delay in trying to find an alternative placement is fault. The frustration and distress experienced by Miss X requires a remedy.

Poor complaint handling

54. Miss X first complained to the Council in November 2022. She did not receive a final response until August 2023. It is disappointing the Council did not address the subject of her initial complaint, that is, the failure to carry out an early review at all. Under the Council’s complaints procedure, it should have responded within 20 days. This delay of several months, together with the lack of response about the early review is fault.
55. I am satisfied the frustration experienced by Miss X requires an additional remedy to the apology already offered by the Council.

Injustice and remedy

56. I have identified several areas of fault that caused a significant injustice to Miss X. She went without both the educational provision and additional support set out in her in her EHCP for nearly a year. The fact she was denied this support meant an already vulnerable young person was further disadvantaged.
57. The situation was made worse by the Council’s failure to respond to her complaints and carry out a timely review of the change in her circumstances.
58. The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
59. Where fault has resulted in a loss of educational/SEN provision, we normally recommend a remedy payment of between £800 and £2400 per term to acknowledge the impact of that loss. The figure is based on the circumstances of each case, to reflect the particular impact on that young person.
60. Given Miss X’s age, the stage of her education and the support she missed, I consider a payment of £1500 per term would be appropriate for the spring and summer terms of 2023. This should be reduced slightly to £1000 for the autumn term 2022 to reflect the fact the Council was not aware that Miss X was no longer attending College P until mid-October 2022.
61. When we recommend a payment for distress or time and trouble, we only take account of avoidable distress that is the result of fault by the Council. A remedy payment for distress is often a moderate sum of between £100 and £300. In cases where the distress was severe or prolonged, up to £1000 may be justified.
62. I am satisfied the distress and uncertainty caused to Miss X justifies a financial remedy at the top end of our scale after taking into account:

• the failure to ensure that Miss X received the support and listed in section F of her EHCP;
• the poor complaint and case handling, especially in respect of her annual review; and
• the delay in the ECHP process. This delayed the start of the consultation process and denied Miss X her potential right to appeal to the Tribunal by several months.

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Agreed action

63. The Council has agreed to take the following action within four weeks from the date of my final decision.
1. Apologise in writing to Miss X for the faults I have identified in this decision statement.
2. Pay Miss X £1000 to acknowledge her distress and frustration caused by the several areas of fault I have identified.
3. Pay Miss X £4000 to recognise the consequences of not responding to her request for an early review that led to its failure to provide her with support identified in her EHCP between October 2022 and July 2023.
64. Reflect on the issues raised in this decision statement and identify any areas of service improvement, particularly around communications, complaint handling and delay in the EHCP process.
65. The Council should provide us with evidence it has complied with the above actions.

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Final decision

66. I have completed my investigation. I have found the Council to have acted with fault and made recommendations to the remedy the injustice to Miss X. The Council has agreed to my findings and recommendations.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman