Summary: Ms X complained the Council failed to provide her daughter, Ms Y, with the provision set out in her Education, Health and Care Plan. We found fault because the Council failed to deliver some of Ms Y’s provision, for a lack of timely and effective communication with Ms X and a delay in completing a statutory review. Ms X and Ms Y suffered avoidable distress and frustration in getting the issues resolved and Ms Y missed out on education she should have received. To remedy the injustice caused, the Council has agreed to apologise, make a payment to Ms X and share guidance with relevant officers.

The complaint

1. Ms X complains her daughter, Ms Y, has not received any education since August 2021 and that provision outlined in Section F of her Education, Health and Care Plan (EHC Plan) has therefore not been delivered. She also complains of significant delays in reviewing and issuing subsequent EHC Plans, in addition to poor communication from the Council.
2. Ms X says this has affected the family as a whole, her own physical and mental health and that of Ms Y too. She says this has caused distress and frustration and that Ms Y has missed out on provision she was due.

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The Ombudsman’s role and powers

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. 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)
5. The First-tier Tribunal (Special Educational Needs and Disability (SEND)) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
6. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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)
8. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

10. Paragraph four (above) applies to this complaint. Ms X approached the Ombudsman more than 12 months after she became aware of the issues relating to Ms Y’s EHC Plan and delivery of its content. However, I have exercised discretion to investigate Ms X’s complaint back to August 2021 as there was a delay in issuing Ms Y’s next EHC Plan and the issues Ms X complains of linked to the EHC Plan began in August 2021. I am satisfied it is reasonable to include this period in my investigation.
11. My investigation ends in April 2023 which is when Ms X brought her complaint to us.

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How I considered this complaint

12. I have considered all the information Ms X provided and discussed this complaint with her. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
13. Ms X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

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What I found

Special educational needs

14. A child with special educational needs may have an EHC Plan. This sets out the child’s needs and what arrangements should be made to meet them.
15. The EHC Plan is set out in sections. Section F of the plan is about the special educational provision needed by the child or the young person. Section I is about the name and/or type of educational placement set out in the plan.

Maintaining the EHC Plan

16. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. 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.

Reviewing EHC Plans

17. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The process is only complete when the council issues a decision about the review.
18. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs (SEN) and Disability Regulations 2014 and SEN Code paragraph 9.176) 
19. Where the 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) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.

Early reviews

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

Appeal rights

22. There is a right of appeal to the SEND Tribunal about the special educational provision specified (Section F), or the school or placement or that no school or other placement is specified (Section I) in the EHC Plan.

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What happened

23. I have set out below a summary of the key events. This is not meant to show everything that happened.

Background

24. Ms X has an adult daughter, Ms Y. Ms Y has had an EHC Plan which outlines her SEN, for some time.
25. In a previous version of Ms Y’s EHC Plan, a local specialist secondary school (School A) had been named in Section I. Ms Y’s placement there was due to end in the summer of 2021. She had not attended School A for most of the academic year 2020 - 2021 due to an incident which took place there in September 2020.
26. In mid-May 2021, Ms X, Ms Y and staff from School A held a meeting to discuss the next academic year and what would happen for Ms Y. She was by now 18 years old and would soon have been due to finish at School A had she still been attending.
27. A few days later, Ms X emailed the Council to chase a response to an email she had sent in March 2021, asking whether the Council was planning to cease or maintain Ms Y’s EHC Plan.
28. In July 2021, the Council sent consultation letters to three colleges in the local area to see if they could meet Ms Y’s needs.

EHC Plan August 2021

29. In August 2021, the Council issued an updated EHC Plan for Ms Y. Section I described Ms Y's placement as a "General Further Education College" without naming a specific further education provider or location. The Council advised Ms X of her appeal rights.
30. Section F of the EHC Plan included support with communication and interaction, cognition and learning, as well as support for her physical, social, emotional and mental health, and sensory and physical needs. This would be provided by adult support and specific members of education staff.
31. By the end of August 2021, one college had said it could not meet Ms Y’s needs and one said it could offer a place. The third and final college said that although it could meet some of Ms Y’s needs there were various elements of her EHC Plan it would not be able to meet. It suggested Ms Y might be better to access one of its SEND transition-style courses where more of her needs could be met. The Council suggested Ms X contact the college to discuss.
32. At the beginning of September 2021, with no college course confirmed, the Council held a meeting with Ms X to discuss possible next steps for where Ms Y might access education for the coming academic year. Ms X confirmed that Ms Y was considering applying for courses at a local education provider (Provider A). Provider A delivers services to young adults who have an EHC Plan. It is a company separate to the Council but is wholly owned by it.
33. Towards the end of September and following a meeting with Provider A, Ms X confirmed that Ms Y would like to access some support up to the end of 2021. She asked for the option of accessing full provision on offer from January 2022, if Ms Y felt she was ready to do so. Ms X also confirmed her understanding that if Ms Y was not ready to begin accessing full provision from January 2022, then she may be able to continue with some support after January 2022 and begin properly in September 2022.
34. In mid-October 2021, the Council agreed to fund course costs to Provider A so it could deliver support to Ms Y. The Council’s officer, Officer J, confirmed Ms Y would now have a new case officer who worked for Provider A (Officer K) and a handover of Ms Y’s case would be completed.
35. At the beginning of November 2021, Ms X emailed the Council to say Ms Y had been unwell for a few weeks and support from Provider A would be on hold until she was better.
36. In mid-December 2021, the Council replied to Ms X’s November email. Officer J explained she had been absent from work and that she hoped the new caseworker, Officer K, from Provider A had by now been in contact. Officer J also confirmed she had forwarded Ms X's email to Officer K.
37. At the end of December 2021, Provider A took Ms Y off roll as she had been unable to engage or attend.

2022

38. At the beginning of March 2022, Ms X emailed Officer K, copying in Officer J and the Council’s SEN email address. She complained that Officer K had not been in contact at all, as had happened when Officer K was Ms Y’s case worker early in 2021. She was unhappy that nobody had contacted her about her daughter’s provision. She also said that Ms Y had been unable to access support from Provider A as she felt she was unable to engage and was no longer actively working with it. Ms X requested an interim review of Ms Y’s EHC Plan and a personal budget for Ms Y so she could be taken out for activities.
39. At the end of April 2022, Ms X again emailed the Council to chase a response to her last email. She complained she had sent numerous emails to Officer K, none of which had been responded to. Ms X again asked for a budget to organise activities for Ms Y.
40. At the end of September 2022, Ms X again complained to the Council as Ms Y’s annual review (AR) of her August 2021 EHC Plan was overdue. She complained caseworkers were constantly changing so she did not know who she should be contacting. She said her emails often went unanswered and complained Ms Y still had no provision in place.
41. The Council sent its stage one complaint response to Ms X towards the end of October 2022. This was sent seven working days later than its published timescales. In this letter, it:
• apologised for its lack of oversight regarding the EHC Plan AR process and said it could not investigate the issues further as Officer K no longer worked for Provider A;
• advised a new temporary case officer (Officer L) would be allocated to address any errors and arrange an AR as soon as possible; and
• confirmed Officer L would respond to the previous request for provision to be delivered via Education Other than at School (EOTAS) so this could be presented to the Council’s post-16 education panel.
42. The response apologised for the poor communication Ms X had experienced and set out improvements the SEN service intended to make to improve communication, and adherence to AR processes and timescales.
43. In late October and early November 2022, an AR was carried out.
44. At the beginning of November 2022, Ms X asked the Council to escalate her complaint to stage two of its process.
45. After a chase email from Ms X in early December 2022, the Council responded after 29 working days (its published policy is 20 working days to respond). It apologised for the delay due to sickness and asked for more time.

2023

46. At the beginning of January 2023, the Council decided to refer the complaint back to the SEN service for a more detailed response as the stage one response lacked detail. The interim response issued by the Council at this time also recommended:
• £300 as a symbolic payment to recognise delays and anxiety caused by them;
• a timescale as to when the latest EHC Plan would be issued;
• the Council should ensure appropriate AP was available until a solution was found; and
• the Council review its procedures to ensure that children unable to attend their primary setting for education could continue to access appropriate education.
47. Ms X emailed to advise she did not feel the £300 offer reflected the difficulties and lost provision she and Ms Y had experienced.
48. At the end of January 2023, the Council apologised and advised Ms X it needed longer to respond than its published timescales. The Council sent Ms X its updated final EHC Plan at the very end of the month.
49. At the beginning of February 2023, the Council issued its further and more detailed response at stage two of its complaints process. It confirmed that:
• the EHC Plan had now been issued;
• it believed Ms X had been asked for her preferred options for EOTAS but that she had not given these;
• that as Ms Y was over statutory school age she was classed as an adult and if she chose not to engage in the process or whatever was put in place, this was her choice to make;
• that education had been available to Ms Y at Provider A but as Ms Y did not engage despite repeated contacts with her, then Provider A closed her file at the end of 2021; and
• it was confident there was education on offer to Ms Y and reasonable attempts had been made to engage her.
50. The Council ended its response by again apologising for the family’s experience. It reassured Ms X it would continue to work with her and Ms Y to ensure she had a more positive experience going forward. The Council signposted Ms X to the Ombudsman.
51. In the middle of April 2023, Ms X emailed the Council to say that she still felt it had not resolved her complaint about communication and then brought her complaint to us.

Analysis

Failure to deliver provision outlined in Section F of Ms Y’s EHC Plan

52. Section F of Ms Y’s EHC Plan lists various aspects of provision (see paragraph 30). The Council had a duty (see paragraph 16) to ensure Y’s section F provision was delivered as far as it was possible to do so.
53. It is apparent that Ms Y’s health did not permit her to access the provision made available to her. This is discussed further below.

September to December 2021

54. The EHC Plan issued in August 2021 stated that Ms Y should be educated at a “General Further Education College”. The Council’s consultations to three local providers did not lead to a placement which could cater for Ms Y’s SEN. This meant that until Ms X suggested and then met with Provider A, no other options had been discussed for Ms Y. It also meant that until Provider A had been confirmed in mid-October 2021, Ms Y had no access to any education and no delivery of any Section F provision from her EHC Plan. This lack of access to Section F provision is fault as the Council had a duty to secure it. I have made a recommendation below to remedy the injustice caused.
55. Moving onto Provider A, evidence shows that a package of support for Ms Y was instead put in place there in October 2021. It was initially to run until the end of December 2021. It was aimed at reintegrating and helping Ms Y to transition back into an educational setting.
56. Evidence, however, also shows Ms Y was not able to consistently engage with Provider A until it took her off roll.
57. This was due to a combination of being ill during October and November when Ms X said Ms Y’s involvement with the provider was on hold until she was better and her feeling like she was unable to engage. I am satisfied that until Provider A took her off roll at the end of December 2021, there was a suitable education in place, that could have delivered Section F provision to Ms Y had she been able to attend. I do not find any fault with the Council’s actions during this time.

January 2022 to April 2023

58. As the Council is sole owner of Provider A and with a lack of evidence to the contrary, I am satisfied that on the balance of probabilities, it is more likely than not that the Council would or should have known that Ms Y was no longer on roll around the time she was removed.
59. The Council should have taken decisive action and considered the possibility of carrying out an emergency review of Ms Y’s EHC Plan as there was a clear issue with her accessing education. She did not have a college place as indicated in Section I of the EHC Plan, nor had she been able to engage with Provider A. Not considering a review was fault. However, I consider there was no injustice to Ms Y as it was unlikely she would have been able to access any education on offer, as explained in paragraph 62. I am also satisfied, when comparing the 2021 plan to the 2023 plan, on the balance of probabilities, it is unlikely the Council would have made significant amendments to the EHC Plan even if it had carried out an early review, so there is no injustice to Ms Y.
60. At the beginning of March 2022, when Ms X emailed Officers J and K and the Council’s general SEN email inbox, she made it clear she was unhappy with the situation. She also requested an interim review of Ms Y’s EHC Plan. The Council again took no action, despite acknowledging a further chase email sent in April 2022. Whilst there would have been no right of appeal had the Council refused this request, it was instead given no consideration and ignored.
61. This lack of action on the Council’s part is fault. It would have led to avoidable distress and frustration for Ms X and Ms Y. It also meant there was the uncertainty of whether an interim review of Ms Y’s EHC Plan would have led to amendments in Section F or I of the plan and whether or not Ms X would have wished to appeal any amended plan as a result of the review. I have made a recommendation below to remedy the injustice caused.
62. In terms of delivering Section F provision to Ms Y during this period, I find no fault in the Council’s actions. I am satisfied that on the balance of probabilities it is more likely than not, that even if an early review had taken place, given Ms Y’s health difficulties and issues around being able to attend or engage meant that she would not have been able to access any provision on offer.
63. Later evidence from September 2023, after the period of investigation ended, shows that Ms Y was now struggling to attend her new college due to her health needs.

EHC Plan annual review delays 2022

64. Regardless of Ms X’s earlier requests for an interim EHC Plan review, the Council had a duty to complete an AR 12 months after the plan had been issued. This did not happen.
65. Matters with the EHC Plan only progressed when Ms X again initiated contact with the Council in September 2022 to complain the AR was overdue. By the time the Council had issued its stage one response confirming it would complete the AR as soon as possible, it was already two months overdue. The Council agreed in its complaint responses to Ms X that it had not had sufficient oversight regarding the process. I agree. This lack of oversight meant the review only took place as Ms X had chased the Council on it and between two and three months later than it should. This is fault. It would have caused Ms X frustration and confusion. The effect of this was that Ms Y’s AR was delayed, leading to linked delays issuing the next EHC Plan and any rights of appeal to the SEND tribunal. I have made a recommendation below to remedy the injustice caused.
66. It is unclear when the AR meeting itself took place, however, after the Council sent the letter to advise it intended to amend Ms Y’s EHC Plan, the Council carried out steps within the timescales it should have done. I therefore find no further fault in relation to the AR process.
67. Ms Y’s new EHC plan was issued at the beginning of January 2023. Ms X was advised of her appeal rights but chose not to exercise them, which was her choice.
68. In response to my enquiries, the Council advised it had issued additional reminders and training to SEN caseworkers about the AR process and timeliness of it. With this in mind, I do not intend to recommend any service improvement remedy related to this aspect.

Education other than at school (EOTAS)

69. Ms X complains that her requests for EOTAS to deliver Ms Y’s Section F provision and discussions with the Council never came to any specific conclusion. She says EOTAS was therefore not organised for Ms Y.
70. In response to my enquiries, the Council confirmed that the only proposal forwarded by Ms X for EOTAS would, in its opinion, have caused a conflict of interest. I am satisfied the Council considered the request but declined it on an appropriate basis. I find no fault in the Council’s actions in not taking the proposal further.
71. If Ms X was unhappy that EOTAS had not been included in Section F of Ms Y’s updated EHC Plan in January 2023, she had the right to appeal this to the SEND Tribunal. Ms X did not exercise her right to do so, which was her choice. I find no fault in the actions of the Council.

Council’s complaint responses to Ms X

72. The Council’s complaint responses routinely took longer than its published timescales. Ms X had to chase a response to her stage two complaint as she had not heard from the Council nine days after it should have responded to her, at which time it then advised it needed more time. This was after it had also issued her stage one response later than it should. This lack of adequate and timely communication is fault. Given the nature of Ms X’s complaints about the lack of communication from the Council, this would have added to the distress and frustration she was experiencing. I have made a recommendation below to remedy this injustice.
73. When considering the different stances offered by the Council in its January and February 2023 responses to Ms X, there are very clear differences. In one response it says it should ensure appropriate alternative provision (AP) is available and review its procedures. In the next, it says that as Ms Y chose not to engage then it must respect her choices.
74. The Council’s enquiry responses to me confirmed that its offer of AP was considered to be at Provider A and that this remained available to Ms Y. I am satisfied the Council’s complaint responses to Ms X would have led to confusion as to what its stance was. The Council could and should have advised Ms X much earlier that it viewed Provider A as an appropriate offer of an educational establishment and that it was unable to deliver Section F provision if Ms Y was unable to, for whatever reason, attend the setting. This lack of communication is fault. It would have led to further distress and frustration for Ms X. I have made a recommendation below to remedy this injustice.

General communication

75. Having reviewed the evidence sent by both Ms X and the Council, I am satisfied the Council’s communication was not as good as it could or should have been. There is a lack of evidence of much communication throughout 2022 and into the early part of 2023. There were multiple occasions when Ms X made contact with the Council only for it to be ignored or overlooked. Even after she chased the Council for responses with emails sent to multiple inboxes, this did not necessarily prompt any form of useful response from it. This lack of timely and effective communication is fault. It would have caused avoidable distress and frustration to Ms X and Ms Y. It also meant that the Council often left things to drift. I have made a recommendation below to remedy the injustice caused.

The Council’s remedy offer

76. The Council offered Ms X a £300 payment in its complaint responses. I do not consider that this remedy is sufficient for the injustice experienced. I have made a recommendation below.

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Agreed action

77. To remedy the injustice caused by the faults I have identified, the Council has agreed to take the following action within four weeks of the date of my final decision:
• apologise to Ms X and Ms Y for its failure to deliver Section F provision in September and October 2021, its lack of response to Ms X’s request for an interim review, its lack of a timely AR and the linked delays, the timeliness and communication around its complaint responses, its lack of effective communication around delivery of Section F provision at Provider A, and for its lack of timely and effective general communication overall;
• pay Ms X £400 to recognise the distress caused by the issues highlighted above;
• pay Ms X for the benefit of Ms Y, £1000 to reflect the lack of available education and delivery of Section F provision from September into October 2021; and
• share the Ombudsman’s guidance on the principles of good administrative practice and also the guidance on effective complaint handling with relevant officers and managers.
78. The recommended remedy payments are in line with the Ombudsman’s guidance on remedies.
79. The Council should provide us with evidence it has complied with the above actions.

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Final decision

80. I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman