Summary: Ms A complained about the way the Council has dealt with her daughter’s Education, Health and Care plan review as she came to the end of her college education. We found the Council is at fault and has caused an injustice to Ms A and to her daughter. The Council has agreed to carry out service improvements and make a payment to Ms A and her daughter in recognition of the impact on them.

The complaint

1. Ms A complains the Council unreasonably delayed the Education, Health and Care (EHC) plan annual review process for her daughter and failed to ensure any provision was delivered.
2. Ms A says the Council’s delay meant she was left without her right to appeal to the Special Educational Needs and Disability Tribunal.
3. Ms A says the delay in reviewing and finalising the EHC plan meant her daughter was without a placement for 10 months.

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The Ombudsman’s role and powers

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. 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.
8. 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)
9. 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

10. Ms A contacted this office in April 2024. We can investigate complaints about issues within the 12 months up to this date. I do not think there is a justifiable reason to go further back than this. I have not therefore considered any issues prior to April 2023.

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How I considered this complaint

11. I have considered information provided by the Council and Ms A, alongside the relevant law and guidance.
12. Ms A and the Council have had the opportunity to comment on this draft decision, and all information received has been considered before this final decision was made.
13. 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

Law and Guidance

14. 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. 
15. 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 annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
16. For young people moving between post-16 institutions, the council should normally complete the review process by 31 March where a young person is expected to transfer to a new institution in the new academic year. However, transfers between post-16 institutions may take place at different times of the year and the EHC Plan review process should take account of this. In all cases, where a young person is planning to transfer between one post-16 institution and another within the following 12 months, the council must review and amend, where necessary, the young person’s EHC Plan. This must be at least five months before the transfer takes place.  
17. 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)

What happened

18. X is a young person who had an EHC Plan in place when she came to the end of her college education, in July 2023.
19. Ms A complained to the Council that it had not reviewed the plan in time to allow X to plan what she would do from September.
20. The Council apologised for the delay and carried out its review in September 2023. It issued a final EHC plan in January 2024.
21. The January 2024 plan confirmed the Council will fund 15 hours a week in direct payments and named a placement for a supported internship.
22. Ms A has appealed the EHC plan issued in January 2024, as she says the placement named in this plan is unsuitable for X’s needs. Ms A says X requires a residential placement.
23. X has not attended the supported apprenticeship while awaiting the appeal hearing. This is an ongoing situation as the hearing has not yet taken place.

Analysis and Findings

24. 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.
25. 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.
26. On this basis, I have not considered the education missed from January 2024 as that can be considered by the Tribunal.
27. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal, including delays in the process before an appeal right started.
28. The Council had a duty to review X’s plan by 31 March 2023, or at least five months before the transfer from college. It failed to do so, which is fault.
29. The Council should have issued an EHC plan following a review in March 2023, in June 2023. Its failure to do so is fault.
30. X missed education from September 2023 to January 2024 as a result of the Council’s delay. During this period, she did not have a named placement due to the Council’s delay. This is injustice caused by the Council’s fault.
31. As the Council had not issued a plan to cover X’s transfer from College, it remained responsible for ensuring the provision in the existing plan was still available to X. I have not been provided with any evidence the Council arranged any provision between September 2023 and January 2024.
32. Given that X did not attend the named placement once the Council issued its January 2024 plan, we cannot say X has missed out on attending that placement for the Autumn 2023 term. It is more likely than not that Ms A would have appealed the plan even if it had been issued in June 2023.
33. However, we can see that Ms A has been caused avoidable distress and worry because the Council did not review X’s plan in time to plan for X’s transfer on completing the college placement.
34. Ms A is still impacted by concerns for X, as she considers the placement unsuitable. However, she has had to suffer a significant period of uncertainty between March 2023 and January 2024. This period of distress was avoidable.
35. This delay has also delayed her right to appeal as she could not do this until the EHC plan was issued. Had the EHC plan been issued in June 2023, it is more likely than not that Ms A would have appealed it then, which would have meant a resolution could have been reached seven months sooner.
36. The Council’s delays have also caused a significant impact on X, which are further exacerbated by medical issues the Council was aware of.
37. The Council has previously apologised for its delays. I do not consider this to be a sufficient remedy for the injustice caused here. I therefore recommended the Council make payments to Ms A and to X in acknowledgement of the significant impact on each of them from March 2023 until January 2024. I also recommended the Council review its transfer review process to try to avoid a repeat of this instance in future.

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Agreed action

38. Within one month of the decision, the Council will make a payment of £1,000 to Ms A and a payment of £1,000 to X.
39. The total payment to be made is £2,000.
40. Within three months of the decision, the Council will review its process of reviewing EHC plans in accordance with its duties. It will refresh the knowledge of all relevant staff to ensure they are aware of the Council’s duties regarding EHC plan reviews generally, and specifically where the child or young person is transferring from their placement.
41. The Council will provide us with evidence it has complied with the above actions.

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Final decision

42. We found the Council is at fault and has caused an injustice to Ms A and to her daughter.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman