Summary: Mrs U complains on behalf of her daughter (Miss X). They complain about the Council’s decision, at short notice, to change the further education college named on Miss X’s Education, Health and Care Plan without involving her. They also complain the new college was not delivering parts of Miss X’s Education, Health and Care Plan. The Council delayed reviewing the Plan and carrying out a social care assessment. We uphold the complaint. The Council has agreed to our recommendations.

The complaint

1. The complainant (Mrs U) complains:
• the Council, at short notice, decided to change, without involving her or Miss X, the further education college Miss X attended. That came as a surprise, as Miss X’s old college had already agreed a timetable for the following year;
• it was unclear how the Council decided the new placement could meet Miss X’s special educational needs (SEN);
• when Miss X started at the new placement, the Council did not ensure that it was providing her with the special educational provision listed under section F of her Education, Health and Care (EHC) Plan. The placement did not provide any speech and language therapy (SALT), mentoring, graded exposure, travel training, independence and functional skills or communication skills;
• the Council carried out an emergency review of Miss X’s EHC Plan, but delayed issuing a decision;
• the Council delayed carrying out a social services assessment.
2. Mrs U says Miss X feels like she has been forgotten and nobody would take responsibility. All the issues affected the emotional and mental health of the whole family, especially Miss X.

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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. 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 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)
6. 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.
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. 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

9. We cannot normally look at a complaint about the contents of an EHC Plan, due to the alternative remedy to the SEND Tribunal. But in this complaint, my decision is I can look at the events around the September 2023 decision about Miss X’s placement. This is because:
• the June 2023 EHC Plan left the decision about the September placement open. So it is understandable why Mrs U and Miss X did not appeal that Plan; and
• the EHC review process started after September 2023 was not completed at the time of Mrs U’s complaint to the Ombudsman. This meant she and Miss X did not have an opportunity to appeal the decision.
10. Some parts of the complaint concern issues that happened over 12 months before Miss X’s February 2024 complaint to the Ombudsman. My decision is I should investigate an EHC Plan review from mid-November 2022. That is because the Council did not decide whether to amend until mid-December 2022 and did not issue the final amended plan until mid-February 2023. Mrs U was chasing a response around that time. She understandably allowed further time after this because of the updates received. As the Council’s response to Mrs U’s complaints were delayed, I am persuaded there were reasonable grounds why she did not complain to us earlier about these matters.
11. I have not investigated the complaint about a delay in a social care assessment back to March 2022, when it was first requested. This is because there were opportunities during transition points in the process where Mrs U could have complained, which would have brought this date into time. Instead, I have taken July 2022 as the starting point for my investigation. This is because the Council has accepted fault from that date. This is when the responsibility for the referral changed teams.
12. My investigation ends in February 2024, when Mrs U and Miss X complained to the Ombudsman.

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How I considered this complaint

13. As part of the investigation, I have:
• considered the complaint and the documents provided by Mrs U;
• made enquiries of the Council and considered its response;
• spoken to Mrs U;
• sent my draft decision to Mrs U, Miss X and the Council and considered their responses.

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What I found

Legal and administrative background

EHC Plan 

14. A child or young person with special educational needs may have an 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. 

Content of an EHC Plan

15. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs;
• Section C: Health needs related to the child or young person’s SEN;
• Section D: Social care needs related to the child or young person’s SEN;
• Section F: The special educational provision needed by the child or the young person;
• Section H2: Any other social care provision; and
• Section I: The name and/or type of educational placement.

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. 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)
17. 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. 

Reviewing EHC Plans

18. 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 annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place.
19. 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. If the Council decides to amend a Plan, it must issue the final plan within eight weeks of the amendments notice (so within 12 weeks of the review meeting). Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and The Special Educational Needs and Disability Code of Practice: 0 to 25 years (The Code) paragraph 9.176) 

The Code and moves between post-16 institutions

20. The Code has guidance regarding young people moving between further education placements. It says:
• young people should be involved in decisions about their own futures, including the right to request that a specific institution is named in their EHC Plan;
• for young people moving between post-16 institutions, the review process should normally be completed by 31 March and must be amended at least five months before the transfer takes place;
• there might be reasons for changes to placements after the 31 March or five-month deadline. The Code gives an example of young people changing their minds about what they want. In these circumstances, the Code instructs councils to “…review the EHC Plan with the young person as soon as possible, to ensure that alternative options are agreed and new arrangements are in place as far in advance of the start date as practicable”. (The Code paragraph 9.180-9.182)

What happened

Background

21. Miss X is a young adult with SEN. She had an EHC Plan in the time before this complaint considers. The previous review of her EHC Plan was in October 2021. By then Miss X had stopped attending her mainstream school.
22. In June 2022, the Council’s decision making Panel agreed for Miss X to attend an independent specialist college (College 1) for one academic year. The placement was part of a re-engagement programme to allow Miss X to restart mainstream education. In August the Council amended Miss X’s EHC Plan.

The change of placement

23. On 17 November 2022 the College held an annual review meeting of Miss X’s EHC Plan. Minutes of the meeting note the placement had been agreed for a year. But Mrs U advised the meeting Miss X would like to remain at the College for a further year.
24. In January 2023 Miss X’s SEN caseworker responded to an email from Mrs U to advise the Council had not made any changes to the SEN parts of Miss X’s EHC Plan but had asked for an update from health services. And the Council had not made a decision about Miss X remaining at College 1.
25. Towards the end of March, Miss X’s caseworker suggested looking at placement options for the following academic year.
26. In mid-April the Council’s caseworker telephoned Mrs U. During the call Mrs U raised some concerns about the provision at College 1. The caseworker suggested Miss X look at the options at a different further education college (College 2).
27. In May Miss X visited College 2. Miss X agreed for the Council’s caseworker to send her a plan about the available options. Mrs U says, later that week, she had a conversation with College 2’s SEN co-ordinator. Her understanding following the call was that the placement was put on hold, due to College 2 not providing what Miss X needed.
28. In early June, the Council sent Miss X a copy of a draft EHC Plan.
29. On 12 June Mrs U emailed Miss X’s caseworker at the Council about continuing concerns they had about several matters with College 1’s provision.
30. The Council issued a final EHC Plan on 16 June. At Section I this stated that Miss X would continue to attend College 1 until the end of the academic year and a “College of Further Education” from September.
31. Around the same time, the Council’s decision making Panel deferred a decision on Miss X’s placement for the following September, as it needed further information why a further year at College 1 might be suitable.
32. Mrs U says they did not appeal that EHC Plan as Section I for the following term was blank, so they did not have a decision on a placement to appeal.
33. At the end of June, the Council wrote to College 1. It noted its decision on a placement for Miss X the following year was deferred; due to concerns about Miss X’s lack of progression while there. The College responded to advise of some issues with Miss X’s time at the College.
34. In July Mrs U says College 1 gave Miss X a timetable and work placement. arrangements for the following term. She says by then her and Miss X’s concerns about College 1 had been resolved. And Miss X was happy she had a new timetable for the following year.
35. Meanwhile, in mid-July the Council was in contact with College 2. The College advised it had spoken to Mrs U and it was having difficulties in meeting her requests about the sort of internship Miss X wanted. The Council chased College 2 for an update at the end of July. The caseworker also tried to speak to Mrs U.
36. At the beginning of August, College 2 confirmed to a Council manager it could offer Miss X a place on its supported internship placement. And it would be looking for a placement for Miss X in the industry she had expressed an interest in.
37. The Council’s decision making Panel met on 11 August. At the meeting, Miss X’s caseworker noted College 2 had not got back to her and she had concerns College 2 did not offer a placement Miss X was interested in. But the Council’s manager decided that, as College 2 had agreed to take Miss X, and had given an indication it could meet Miss X’s needs, that was the placement the Council would name.
38. Mrs U says the decision was a shock to Miss X as they were not aware the Council had been considering a placement at College 2, as there had been no communications with it or the College since June (see paragraph 27). She asked the Panel to look again at its decision. The Panel’s view was unchanged; its view was College 2 was the most suitable placement to aid Miss X’s progress.
39. After its Panel’s decision, the Council’s caseworker recorded the reasons for the decision was Miss X had “expressed” she did not want to attend College 1 and “her voice is centre of the decision”.
40. The Council contacted College 2 at the beginning of the last week in August. It contacted Mrs U two days later.
41. Mrs U complained about the decision to move Miss X’s placement. The Council’s responses advised it made the decision to find an alternative college for Miss X, as she had said she did not wish to stay at College 1.

The provision of the contents of Miss X’s EHC Plan

42. Around two weeks after Miss X started at College 2, Mrs U contacted the Council advising of concerns:
• the College had not set anything up for Miss X;
• the College had not had funding from the Council; and
• Miss X had not received any 1:1 sessions.
43. The Council received a funding application from College 2 around 10 days later. It agreed the application outside its normal Panel process. It asked the College to immediately confirm Miss X’s timetable. In its complaint responses to Mrs U, the Council has accepted a delay in dealing with this funding application.
44. In the early part of October, the Council’s caseworker left messages with College 2 and later spoke to a member of its staff. The caseworker’s record of that call note the College had advised:
• of a possible placement around work Miss X was interested in;
• it would provide Miss X with support from SEN staff;
• Miss X had had a SALT assessment and she had worked well with the therapist;
• it would provide Miss X with monthly SALT support;
• a graded exposure plan would be conducted with a 1-1, during Miss X’s days at college.
45. Later College 2 advised of problems with hiring a job coach to work with Miss X, so she had not started her placement. Miss X started at a work placement at the beginning of December 2023. Mrs U says this was a trial. A job coach started working with Miss X in January 2024.
46. Towards the end of January 2024 Mrs U contacted the Council’s caseworker to advise Miss X was not happy with the placement College 2 had arranged. She also noted College 2 had still not produced a timetable for Miss X to attend the College. A few days later Miss X stopped attending that placement. The Council’s records say College 2 advised Miss X was seeking a different sort of placement.
47. The Council’s officer, social worker and College 2’s staff had a meeting, followed by a meeting that Mrs U and Miss X also attended. The outcome of this meeting noted a range of actions for College 2. One of those actions was to provide Miss X with a structured timetable for attending College 2. The College produced a timetable towards the end of February.

The EHC Plan review

48. The Council had sent Miss X an EHC Plan in June 2023. The Council accepted in its response to Mrs U’s complaint it should have updated the Plan after it had decided Miss X should attend College 2. It apologised.
49. In mid-October Mrs U requested an annual review of Miss X’s EHC Plan. An annual review meeting was held on 31 October 2023.
50. In mid-February 2024 the Council wrote to Miss X enclosing a draft EHC Plan. It named College 2 at Section I and had other changes, including to Section D, following Miss X’s social care assessment (see paragraph 54).
51. I can see from the Council’s files it issued further drafts of Miss X’s EHC Plan. Mrs U informed me the Council did not finalise Miss X’s EHC Plan until October 2024.

Care needs assessment and support

52. At a meeting on 17 March 2022, Mrs U requested that Miss X’s SEN Caseworker refer Miss X for an assessment by its Children’s Social Care team.
53. During the time Miss X was waiting for an assessment, she had her 18th birthday. This meant social care responsibility passed to the Council’s Adult Social Care team (ASC). It received a referral in July. It advised Miss X she was on a wating list for a social worker to carry out an assessment.
54. The Council’s SEN caseworker chased the referral in December 2022 and February 2023. In April ASC completed a Care Act assessment of Miss X’s needs. The social worker found Miss X had assessed needs around community support.
55. At the beginning of June the Council first made a referral to its brokerage team to find a provider to meet Miss X’s assessed needs. Its October update says it did make a search but received no offers of support.
56. In mid-October the Council began to search again for providers. This led to brokerage finalising a plan less than two weeks later. ASC support began in the first week of November 2023.
57. In response to Mrs U’s complaint the Council advised the delay was “…due to unprecedented pressures elsewhere in the department and inability to source a care provider”.

The Ombudsman’s enquiries

58. Mrs U first complained to the Council at the beginning of October 2022. She received a response at stage one of the Council’s procedure in mid-November 2023 and a second response at the end of February 2024.
59. Soon after completing the Council’s complaints procedure, Mrs U complained to the Ombudsman. In response to my enquiries, the Council advised:
• it should have updated Miss X’s EHC Plan after it decided on College 2 as a placement. It sincerely apologised;
• it offered £200 for the delay in responding to Mrs U’s complaints;
• it noted it should have completed a social care referral within eight weeks. It acknowledged in Miss X’s referral it delayed by nine months. It had offered a symbolic payment of £675 (nine months x £75);
• it noted it had already offered a payment of £250 (five months x £50) in recognition of the delay in arranging the ASC support after the assessment;
• it recognised a delay in allocating social workers was an area for the Council to improve. Its ASC team had an action plan in place to address this.

Was there fault by the Council?

The EHC Plan review after Miss X moved to College 1

60. The Code sets out mandatory time limits for review of EHC Plans. With reference to those requirements, there was delay by the Council in reviewing Miss X’s EHC Plan after she moved to College 1. The Council started an annual review in November 2022. At the latest this should have been finalised by 9 February 2023 (12 weeks after the review meeting). The Council did not send a final plan until 16 June, a delay of over four months. My decision is that was fault.

The decision on the move to College 2

61. As the proposed move was to a post-16 institution, the Council should usually have finalised the placement by no later than five months before the proposed move. There is provision in the Code for scenarios where it is unclear what placement a young person would attend the following year. That was applicable in Miss X’s case. At the EHC Plan review meeting in February, Mrs U had noted Miss X’s wish to remain at College 1 for a second year. But by June 2023 Mrs U and Miss X were expressing concerns about College 1’s provision.
62. This uncertainty provides reasons why, in the June 2023 EHC Plan, the Council left the decision open about the placement. It also explains why its Panel deferred making a decision then.
63. The minutes of the Council Panel’s August 2023 meeting say the decision to name College 2 on Miss X’s EHC Plan was because it could meet Miss X’s needs. At its Panel meeting, Miss X’s caseworker noted some reservations about whether College 2 could meet Miss X’s needs, but its decision was the College could meet Miss X’s needs.
64. After the meeting the Council’s caseworker recorded the reason was because of Miss X’s wishes and her voice was at the “centre of the decision”. But I cannot find any note in the Council Panel’s decision of this being a factor. There is no contemporaneous reference to Miss X’s wishes. I note that, earlier in the year, Miss X had been dissatisfied with College 1’s provision. But Mrs U says the issues were resolved to Miss X’s satisfaction by the end of the term and Miss X was happy to have a new timetable for the new term (this changed at some point between mid-June and the end of term).
65. Between June and the Council’s August decision, the Council had not updated Miss X or sought her view about the possible placement at College 2. So I find fault that the Council’s decision did not sufficiently check or take account of Miss X's then wishes.

College 2 providing the contents of Miss X’s EHC Plan

66. After Miss X started at College 2, Mrs U reported to the Council delays by the College in setting up a timetable and internship for Miss X. The Council has accepted a delay in setting up the funding for Miss X’s placement at College 2. College 2 also advised of a delay in recruiting a job coach, which in turn meant that Miss X’s placement could not start. The evidence suggests Miss X started at a placement at the beginning of December 2023, although by January 2024 this had ended. College 2 did not provide a timetable for attending the College until the end of February 2024.
67. So, on the balance of probabilities, Miss X did likely miss out on some of the provision set out in her EHC Plan, from the start of term in September. This continued until towards the end of February – so around a term and a half. Mrs U advises me of ongoing issues after that with College 2, but those matters are outside the scope of this investigation.

The EHC Plan review

68. The Council has accepted it should have reviewed Miss X’s EHC Plan when she started at College 2. Instead Mrs U had to request a review, which was held at the end of October. The Council issued a draft plan in mid-February 2024.
69. The Council should have issued a final Plan within 12 weeks of the review meeting, so by 23 January 2024. Mrs U advised me the Council did not finalise the plan until October. That delay was fault.

The social care assessment

70. The Council has provided its view on a suitable remedy for this part of the complaint. It finds a delay of nine months in carrying out a social care assessment and five months after the assessment in finding a provider. It has given its assessment of a suitable payment based on those figures.
71. The Council has dated the start of the delay in carrying out an assessment from when its ASC team received the referral (July 2022). I have used that date as the start date of my consideration of the issue. The Council says it should have completed its assessment within eight weeks. Giving the caseworker a week to make the referral, this means it should have been completed no later than September 2022. It did not complete the assessment until June and did not find a provider until November 2023. That delay was fault.

Did the faults cause an injustice?

72. Below I recap the faults I have identified, with an assessment of my analysis of the injustice to Mrs U and Miss X

Delay in the first EHC Plan review and not seeking Miss X’s views

73. The injustice is the uncertainty about whether, but for the delay or considering Miss X’s views, the Council might have reached a different decision about Miss X’s placement.

Not providing some of the contents of Miss X’s EHC Plan

74. This injustice is that for the first term at College 2, Miss X missed some provision of the contents of her EHC Plan. The Council remained responsible for this and was aware of the issues at an early stage.

Delay in finalising a review of Miss X’s EHC Plan at College 2

75. The injustice in finalising the EHC Plan is the uncertainty this caused and the delay in providing Miss X with a right of appeal against the contents of the Plan.

Delay in the social care assessment.

76. The Council’s contractor started providing services in the first week of November 2023. The Council has offered a remedy for this for around 14 months of delay.

Delayed complaint response

77. The Council has offered what I consider to be a suitable remedy for this part of the complaint.

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Agreed action

78. Within a month of my final decision, the Council has agreed to take the following action.

1. Provide Miss X with a letter of apology. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
2. Offer Miss X a face-to-face meeting with an officer to go through the faults this statement identifies, so she can better understand the reasons for these faults.
3. Make Miss X a symbolic payment of:
1. £400 for the distress caused by the uncertainty whether things might have been different but for the faults identified in the decision making around naming College 2 as Miss X’s placement from September 2023;
2. £2225 for the loss of provision of some of the contents of Miss X’s EHC Plan for her first term and a half at College 2;
3. £500 for the significant distress caused by the delay, and subsequent delayed right of appeal to the SEND Tribunal, following the Council’s October 2023 EHC Plan annual review;
4. The Council has already offered:
• £925 for the distress to Miss X due to the provision she missed because of the Council’s delay in arranging social care provision;
• £200 for the delayed complaint response.

I am unsure if Miss X has accepted this offer, but my view is it is suitable so if the Council has not already, it should now make the payment.

79. These payments are intended for Miss X to use for her educational benefit as she sees fit.
80. The Council should provide us with evidence it has complied with the above actions.
81. The Council has provided me with copy of the action plan it has put in place regarding the allocation of a social worker (see paragraph 59).

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Final decision

82. I uphold the complaint. The Council has agreed to my recommendations, so 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