Summary: Ms J complained about the Council’s handling of the Education, Health, and Care Plan process for her daughter (X) and its delays in arranging provision she could access when she could not attend school. We found the Council communicated poorly with Ms J and caused delays in arranging provision X could access in Autumn 2023. We could not consider Ms J’s disagreement about the school placement as this matter carried appeal rights. The Council will apologise and make payment to Ms J to acknowledge the injustice its faults caused her and X.

The complaint

1. The complainant, whom I shall refer to as Ms J, complained about the Council’s handling of the Education, Health, and Care (EHC) Plan process and college placement for her daughter (X) in 2023. She said it:
• wrongly listed an unsuitable college in X’s EHC Plan without properly considering her and X’s views;
• agreed to remove the college from X’s EHC Plan, but failed to do so and insisted in inappropriate provision without considering her views;
• failed to provide X with the educational provision, or alternative provision, which met the needs set out in her EHC Plan; and
• failed or caused delay in responding to her communication and requests.
2. Ms J said, as a result, she and X experienced distress and uncertainty. She said X had a loss of education and her mental health was impacted.

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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 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)
4. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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.
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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How I considered this complaint

7. As part of my investigation, I have:
• considered Ms J’s complaint and the Council’s responses;
• discussed the complaint with Ms J and considered the information she provided;
• considered the information the Council provided in response to my enquiries; and
• had regard to the relevant law, guidance, and policy to the complaint.
8. Ms J and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
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 found

Relevant law, guidance and Policy

Education, Health, and Care Plans

10. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document 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 their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.
11. 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. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)
12. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to:
• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement;
• check the provision at least annually during the EHC review process; and
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.

Transition planning and reviews

13. For young people with an EHC Plan, preparation for transition to adulthood must begin from year nine (age 13 to 14). Transition planning must consider the young person’s needs as they move towards adulthood. It should plan to support their choices for further education, employment, career planning, financial support, accommodation, and personal budgets where appropriate.
14. For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer.

Appeal rights

15. There is a right of appeal to the Tribunal against:
• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;

• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.

16. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
17. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
18. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.

Complaints Policy

19. The Council’s Policy says it will acknowledge complaints within three working days. It will then:
• respond to stage one complaints within 10 working days;
• respond to stage two complaints within 20 working days; and
• if it cannot respond within these timescales, it will inform the complainant and explain why and when it will provide its response.

What happened

20. Ms J’s daughter (X) has health conditions which impacts how she can attend and engage with education.
21. In early 2022 X had an EHC Plan which listed the secondary school she should attend to receive her education.
22. In October 2022 the school held X’s annual review of her EHC Plan and the Council attended. This was part of her phase transfer to post-16 education. X attendance at the secondary school had been limited, but Ms J felt this was improving as X was settling into the school. She wanted X to continue at the secondary school for a further academic year as she would not be confident enough to take her GCSEs in the 2022-2023 academic year.
23. In February 2023 the Council considered where X should receive her education from September 2023. It sent consultations to the secondary school which was Ms J’s preference, which objected to the placement. It also consulted with a college, which raised no objections.
24. In March 2023 Ms J contacted the Council several times but did not receive a response. No caseworker was allocated to X’s case at the time.
25. In the end of March 2023, the Council issued X’s final amended EHC Plan which says she should continue at her current secondary school until the end of the academic year. However, from September 2023 she should attend the college. It also set out the special educational needs provision she should receive at the college.
26. Ms J disagreed with the Council’s listing of the college. The Council allocated a caseworker who spoke with Ms J.
27. In Summer 2023, Ms J attended a meeting with the Council and its Special Educational needs and disability information advice and support service (SENDIASS). This was as the college believed X was not ready to attend the education for the start of September 2023 due to her needs and abilities at the time. The Council’s view was X should work with its service that supports young people not in education, employment, or training (NEET service) to enable her to access the college. It also suggested other options to develop a personalised educational programme for X for the 2023-2024 academic year with a view of transitioning into the college.
28. Ms J says she felt her views had been ignored. She complained to the Council in Summer 2023. She said:
• the secondary school had told her X could continue her education for a further year at the school, but it had since backtracked and said there was no placement for her. Ms J’s view was X should continue at the school;
• the Council had handled the post-16 transfer planning for X poorly as initially no caseworker was allocated and when a case worker was allocated, she did not communicate with her as agreed. She said as a result the Council had not considered her and X’s views properly before issuing its final amended EHC Plan for X;
• after X’s EHC Plan was issued, the Council allocated a caseworker and a meeting was arranged with Ms J and the secondary school, but the meeting was cancelled the same day without any reasons given and the poor communication continued;
• In Summer 2023 the Council had agreed the college was unsuitable and should be removed from X’s EHC Plan, and it agreed to consult with another education provider. However, the Council subsequently told her the college would remain in the Plan and only suggested alternative programmes. She felt it was forcing her to agree for X to work with its NEET service, but she wanted it to consult with other education providers; and
• she had shared the view of one of X’s teachers who explained the challenges of supporting X including her difficulties with online provision, and believed she needed to be educated in a setting with other young people. Ms J said she did not believe X’s EHC Plan accurately reflected her needs.
29. In Autumn Ms J continued to seek a response to her concerns, which led to some discussions. However, on most occasions the Council did not return her calls.
30. In response to Ms J’s complaint, the Council agreed its SEND Service’s communication with her had been poor and apologised. It explained it had named the college in X’s EHC Plan and its NEET service would work with X during the academic year to support her transition into the college. It understood following recent calls that X was happy to work with its service and would like the opportunity to be around peers for some parts of the week. It said it would contact her to arrange a meeting with the services involved to find a way forward.
31. Ms J was not satisfied with its response and asked for her complaint to be escalated. She also questioned whether other colleges could be considered, as she had visited some which she believed were more suitable for X.
32. Five weeks later the Council provided its final complaint response. It again accepted it had communicated poorly and it had caused delays in its complaints handling which meant Ms J and X had received a poor standard of care from the Council. It also said:
• its proposed meeting with X and the services involved had not happened yet, but it was arranging this. It would also arrange an annual review of her EHC Plan;
• it was aware of Ms J’s views. It believes X should attend college for half of the week and support from its NEET services for the other half. However, provision and other colleges would be considered as part of the Annual review;
• the college had found a transition year would be needed. It acknowledged Ms J did not feel its NEET Service had been agreed. It explained she had the right to appeal to the SEND Tribunal if she disagrees with X’s EHC Plan or its content; and
• Its SEND Service were reviewing their processes to ensure lessons were learnt and taken to improve service delivery, including communication with parents.
33. Ms J says she was aware of her appeal rights to the SEND Tribunal. However, she could not appeal as the Council had agreed in Summer 2023 the college would be removed from the EHC Plan, but it subsequently said it would not remove the college from her Plan. She continues to dispute the college is suitable and says the Council has failed to consult with colleges she has since requested. She also says counselling and tutoring provision in X’s EHC Plan was not provided when she was at home.
34. In November 2023 the Council held the Annual review of X’s EHC Plan. Ms J says following the review the Council has agreed X’s needs has changed and she is working with the Council regarding identifying provision and a placement for X.

Analysis and findings

X’s March 2023 EHC Plan

35. Ms J says the Council failed to properly consider her and X’s views and follow due process before listing the college in X’s March 2023 EHC Plan.
36. The evidence shows the Council consulted with Ms J’s preferred secondary school and colleges at the time. Ms J disagrees with the Council’s decision to list the college in the EHC Plan and the contents of the Plan. Such disagreements are appealable to the SEND Tribunal. I cannot therefore consider this.
37. However, Ms J said she tried to discuss her disagreement with the Council, and in Summer 2023 it agreed the college should be removed from X’s EHC Plan. There is some evidence to suggest the Council may have considered and intended to remove the college from X’s EHC Plan.
38. I have considered whether this meant it was reasonable for Ms J not to appeal to the SEND Tribunal. I found she should have registered her appeal. This is because:
• the Council shared X’s final EHC Plan with Ms J in late March 2023, she therefore had over two months from when her appeal right started until the Council suggested it may remove the college from X’s EHC Plan. Normally she would be expected to appeal within the two months from the receipt of the final EHC Plan;
• Ms J’s concerns relate directly to the educational placement and the contents of X’s EHC Plan which only the Tribunal can consider. Even if we were to consider this, we cannot reach a finding of what placement or provision would have been appropriate for X; and
• Ms J had confirmed she was aware of her appeal rights and have previously exercised such rights.

Communication and provision in X’s EHC Plan

39. The Council has agreed it communicated poorly with Ms J since it issued X’s final EHC Plan in March 2023. This has meant there has been delays and lack of clarity over what support X would receive. This was fault which caused Ms J and X distress and uncertainty.
40. X has been without an education from September 2023 as her placement with the secondary school ended in Summer 2023. The Council agreed X could not start at the college in her EHC Plan from September 2023. Instead, she should work with its NEET provider to explore a personalised programme of learning until she is able to transition into the college. It also offered X some online tutoring.
41. I acknowledge Ms J disagrees with the Council’s way forward, and she told the Council the online tutoring would not work for X as she would not be able to engage with this. In response the Council said it would arrange a meeting with the professionals involved and an annual review of X’s EHC Plan.
42. I have considered how the Council handled X’s educational arrangements to support her transition into the college since Summer 2023. I found the Council’s poor communication with Ms J and its delays in arranging meetings with relevant professionals involved was fault which caused X a loss of some educational provision, and distress and uncertainty to both X and Ms J.
43. In reaching my view, I am conscious:
• X may not have received a full-time education in an education setting as she was not able to engage or participate in this at the time. Also, some of the special educational needs provision in her EHC Plan relates to support and provision she would only receive while in the college, which she was not able to attend at the time.
• The Council’s NEET service did work with X to arrange a personalised programme which she could engage with, but this did not lead to actual provision she could access by November 2023.
• X was entitled to receive an education as set out in her EHC Plan even though she was unable to access the college at the time. However, the Council’s poor communication and delays in responding to Ms J and involving professionals meant little or no support was available from September 2023 until the Annual Review in November 2023.
• The Council should have put in place other provision without delay which met her special educational needs as set out in her EHC Plan. This should have included therapeutic support, mentoring sessions, outdoor learning, 1:1 learning provision, and support engaging with a peer group.
44. The Council also agreed it had caused delays in its complaints handling and apologised to Ms J. This was fault, as it caused an 11-week delay in its stage one response and a short delay in its stage two response. I found this caused Ms J some additional distress due to the uncertainty this caused, and it was a missed opportunity to resolve the concerns without further delay.
45. We have recently issued other decisions where we found fault in the Council’s delay in putting provision in place for children, or young people, who are not receiving their education as set out in their EHC Plans and delayed complaints handling. The Council has not had the opportunity to implement its intended changes. I have therefore not made further service improvement on these matters.

Issues following the November 2023 annual review

46. I understand Ms J may still be dissatisfied with the Council’s actions or decisions following the annual review of X’s EHC Plan in November 2023. However, I have not considered these as this was not part of her original complaint and she will normally get new appeal rights to the SEND Tribunal if the review leads to an amended final EHC Plan for X.

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Agreed action

47. To remedy the injustice the Council caused to Ms J and X, the Council should, within one month of the final decision:
1. apologise in writing to Ms J and X to acknowledge the impact its poor communications, delays, and complaints handling had on putting in place a learning package X could access until she was able to transition into college, which met her identified special educational needs as set out in her March 2023 EHC Plan;
2. pay Ms J £400 to acknowledge the distress and uncertainty the Council’s faults caused her and X, including the unnecessary time and trouble she had as a result of its delayed complaints handling;
3. pay Ms J £900, to use as she sees fit for X’s benefit, to acknowledge the loss of education and some special educational needs provision X did not receive as set out in her EHC plan from September 2023 to 23 November 2023.

In total the Council should pay Ms J £1,300.

48. Within three months of the final decision the Council should also:
1.  
2.  
3.  
4. provide an update of the lessons learnt and changes made following the Council’s review of its Education, Health, and Care Plan process. This was to ensure concerns about provision and placements from parents, or young people, are responded to and any agreed steps are actioned without delay.
49. The Council should provide us with evidence it has complied with the above actions.

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Final decision

50. There was fault which caused Ms J and X an injustice, the Council has agreed with my recommendations, it is on this basis I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman