Summary: Miss Y complains on behalf of Miss W that the Council failed in its duty to ensure the delivery of the provision set out in her Education Health and Care Plan and did not review the provision when Miss W stopped attending college. We find fault because the Council did not take prompt action to review Miss W’s plan once it became clear the provision was possibly not meeting her needs. The fault caused Miss W injustice because she missed a significant amount of post-16 provision. The Council has agreed to complete the remedial action listed at the end of this statement.

The complaint

1. Miss Y complains on behalf of Miss W that the Council has failed to ensure the provision outlined in Section F of her Education Health and Care (EHC) plan has been delivered and that the plan has been reviewed in line with the statutory Code of Practice.
2. Miss Y complains that Miss W has missed post-16 provision because of the Council’s failures and that no provision was put in place for Miss W when she stopped attending college.

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The Ombudsman’s role and powers

3. 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)
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. 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) 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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What I have and have not investigated

7. I have exercised discretion to investigate matters from November 2021 when the Council became aware of breakdown of Miss W’s college placement. I have exercised discretion due to the age and vulnerability of Miss W at the time of the matters complained about.
8. I have not investigated any complaints about missed provision from March 2023 because the Council issued a final EHC plan which carried a right of appeal. I consider it would have been reasonable for Miss W’s parent or representative to use that right of appeal if they disagreed with the contents of Section F and I of her EHC plan.

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How I considered this complaint

9. I discussed the complaint with Miss Y who is representing the complaint on Miss W’s behalf. I also considered their complaint correspondence.
10. I made enquiries of the Council and considered its response alongside the relevant law and guidance which is referred to in this statement.
11. Miss W and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
12. 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

What should happen

13. Councils must arrange for EHC plans to be reviewed at least once a year to make sure they are up to date. Councils 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.
14. Paragraph 9.167 of the SEN Code of Practice says that reviews should also include a “review the health and social care provision made for the child or young person and its effectiveness in ensuring good progress towards outcomes”.
15. Within four weeks of a review meeting, the council must notify the young person or their parent of its decision either to maintain, amend or cease the plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014)
16. If the council decides not to amend an EHC plan, or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
17. 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.
18. The Council’s online ‘local offer’ contains the following information about early annual reviews:

“Interim reviews are only held in special circumstances. Interim reviews were sometimes previously known as 'early' or 'emergency' annual reviews. An interim review may be requested because:

• the child or young person's education, health or social care needs have changed and are no longer accurately described in the EHC plan, or
• the education, health or social care provision in the EHC plan is no longer meeting the child or young person's needs”

What happened

19. Miss W has an EHC plan outlining her special educational needs (SEN) and the provision in place to meet those needs. At the time of the matters complained about, Miss W was also considered to be a ‘Child in Need’ (CIN). From September 2016 Miss W attended a specialist secondary school for young people with communication needs.
20. On 30 March 2021 the Council issued an amended final EHC plan naming a mainstream Further Education (FE) college for Miss W to attend from September 2021. This decision carried a right of appeal.
21. Miss W left the specialist school in June 2021 at the end of Year 11.
22. From September Miss W attended the FE college for just three days. She did not return because she felt unable to cope with the large mainstream environment.
23. On 3 November 2021 Miss W’s mother contacted the Council to say Miss W did not want to attend the FE college. She expressed concerns about Miss W’s home life and education.
24. Throughout this time Miss W maintained contact with staff at her previous school. School staff met with Miss W in March 2022 to draw together suggested amendments for her EHC plan.
25. Following discussions with Miss W, the school emailed the Council to seek clarification on Miss W’s provision and whether the Council had agreed for Miss W to repeat Year 12. The school also asked whether the Council had considered a residential placement for Miss W.
26. The Council responded the following day to confirm it explored the possibility of a residential placement but decided this was not necessary because Miss W’s educational needs could be met in a FE setting. However, the Council did say it would consider jointly funding a residential placement between SEN and social care.
27. The Council acknowledged it needed to arrange an urgent review of Miss W’s EHC plan.
28. In May 2022 the Council held a CIN meeting during which the following points were discussed:
• Miss W feels unable to attend the college named in her EHC plan, but the place remains open for her to attend, should she wish to.
• The EHC plan is to be reviewed urgently to consider alternative post-16 provision.
• Miss W’s father, Mr X, will submit proposed amendments for the EHC plan for the Council to consider.
29. The Council issued an amended draft EHC plan on 11 July 2022 with a blank Section I and invited comments by 26 July 2022.
30. Mr X submitted comments to the Council on 26 July 2022 with two proposed placements for Miss W. He also asked to see any comments submitted by social care before sign off on the amended plan.
31. When he received no response, Mr X sent several chaser emails to the Council throughout the summer of 2022. On 13 September he attached a GP letter with the opinion that Miss W needed a residential placement.
32. On 14 September 2022 the Council emailed Mr X to confirm that it was awaiting management sign off on the final EHC plan.
33. A case note dated 29 September 2022 shows the Council’s decision to maintain the EHC plan without amendments. There is no evidence to show the Council issued the final EHC plan or a decision letter in 2022.
34. On 17 March 2023 the Council issued a final EHC plan with a blank Section I.
35. In October 2024 the Council contacted Miss Y to confirm its decision to cease Miss W’s EHC plan.

Was there fault in the Council’s actions causing injustice to Miss W?

36. There is fault in the Council’s handling of Miss W’s EHC plan because:
• According to the Council’s own guidance, it should have arranged an interim review once it became aware in November 2021 that Miss W had stopped attending college. This was to ensure that the EHC plan continued to meet Miss W’s needs. In its response to our enquiries, the Council refers to an April 2022 Annual Review. However, I have not seen any evidence of this review; including the minutes of the review meeting and the subsequent decision letter. In any event, the date asserted by the Council was five months after the Council received confirmation that Miss W had stopped attending college.
• If an Annual Review meeting took place in April as suggested, the statutory timescales specify that the final amended EHC plan would be issued no more than 12 weeks after the date of the meeting. In Miss W’s case, that date would be July 2022. Records show a final EHC plan did not follow until March 2023.
• Although the Council has said that delays occurred due to Mr X requesting postponements, this is not supported by the records. Email exchanges show that Mr X requested to see copies of any comments made by social care during the review process. This is because Miss W was a CIN and the Council was expected to consult colleagues in social care when reviewing her plan. I do not consider that Mr X’s request was the reason for the significant deviation from the statutory timescales. Furthermore, email exchanges show the Council apologised to Mr X at the time for delays caused by significant staff shortages. Throughout this time Miss W had several different caseworkers.
• The Council agreed to consider a joint funding agreement between SEND and social care for the provision of a residential placement. The records do not show evidence of any such considerations. Nor is there any evidence to show the Council considered the request for Miss W to repeat Year 12.
37. The records show that Miss W received final EHC plans in March 2021 and March 2023. This means that she did not have a right of appeal between these dates and therefore had no means to formally challenge the suitability of the FE college once the placement broke down in September 2021. As the Council’s delays frustrated Miss W’s appeal rights, the Ombudsman can make a balance of probabilities decision about any additional provision which may have been in place sooner if there had been no delay in the annual review process being concluded.
38. If the Council had arranged a review around the time it became aware that Miss W’s placement had broken down, I consider on balance that an amended final EHC plan would have been issued by early February 2022. This is because the Council’s records show that professionals and Mr X were discussing the possibility of other college placements. There was no discussion at the time to maintain the placement at the FE college previously attended by Miss W. The plan eventually issued in March 2023 included provision to be delivered in a mainstream college placement. However, as time progressed, and Miss W entered adulthood, it became less feasible for her to begin a FE course, and the delays caused her significant injustice because she lost the opportunity to complete her post-16 studies.

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Agreed action

39. Within four weeks of our final decision the Council has agreed to:
• For the period within our jurisdiction (February 2022 to March 2023) on balance we find the Council’s fault caused a significant loss of provision for Miss W. As a result of this, the Council should make a symbolic payment of £5,000. This is for the two and a half school terms during which Miss W received no provision due to Council fault.
• Apologise to Miss W for the faults identified in this statement. We publish Guidance on Remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended.
40. I have not recommended any service improvements in this case because our records show we have already recommended several relevant service improvements since the matters complained about.
• The Council has agreed to develop and implement a process to ensure EHC lan reviews continue to progress and meet statutory deadlines even when faced with staff absence.
• The Council has created a handover template to use where a new case worker is assigned to a child with an EHC plan. The template will capture a summary of the case including relevant dates, decision and agreed next actions. The template will ensure a clear and comprehensive handover to avoid drift and delay. The completed handover template will be discussed during the Council’s handover meeting with a senior case manager and documented on the running case record for each handover.
• The Council has issued written reminders to relevant staff to ensure they are aware of the Councils duty to decide whether to keep, cease or amend the EHC plan within four weeks of the review meeting, and to notify the young person and/or parents in writing.
41. The Council will provide us with evidence it has complied with the above actions.

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Final decision

42. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The remedial action listed in the section above will provide an appropriate remedy for the injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman