Summary: Mrs X complained the Council failed to provide her child Y who is a young adult, with the special education provision set out in their EHC Plan. The Council was at fault as it failed to provide the provision set out in Y’s Plan and failed to review the Plan before deciding to cease it. The Council has agreed to apologise and make a payment to Mrs X to acknowledge the impact on Y and the distress, uncertainty and frustration caused to her. It has also agreed to issue reminders to officers to prevent a recurrence of the fault and review its procedures to ensure reviews are held in a timely manner when a placement has ended.

The complaint

1. Mrs X complained the Council failed to provide her child Y with the special education provision set out in Y’s EHC Plan since Y left their special residential school in October 2022. This left Y without education and impacted Y’s preparation for adulthood. This has also caused Mrs X significant distress and frustration

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The Ombudsman’s role and powers

2. 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)
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. 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.
5. 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)
6. 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 not investigated

7. Mrs X complained about what happened since October 2022. As set out at paragraph 3 above, complainants are expected to come to us within 12 months of knowing they have cause for complaint. It was open to Mrs X to come to us sooner about events from late 2022/early 2023. I have therefore considered what has happened from September 2023 until August 2024 when Mrs X complained to us.

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How I considered this complaint

8. I have considered the information provided by Mrs X and information provided by the Council in response to our initial enquiries and the relevant law and guidance.
9. I gave Mrs X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.

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What I found

Relevant law and guidance

EHC 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)  

The annual review

12. 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.
13. 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 and Disability Regulations 2014 and SEN Code paragraph 9.176) 
14. Parents, the school and the council can all ask for an early annual review in certain circumstances. This is sometimes referred to as an interim or emergency annual review and is specifically carried out by the council. An early review might be because:
• The child or young persons education, health or social care needs have changed and are no longer accurately described in the EHC Plan.
• The education, health or social care provision or the named placement in the EHC Plan is no longer meeting the child or young person’s needs.
• The child has been excluded from school or is considered to be at risk of exclusion.

Ceasing a plan for a 19 to 25 year old

15. 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.
16. A council must not cease an EHC Plan simply because a young person is aged 19 or over. It may cease a plan for a 19 to 25 year old if it decides it is no longer necessary for the EHC Plan to be maintained. Such circumstances include where the young person no longer requires the special educational provision specified in their EHC plan. In deciding that the special educational provision is no longer required the council must have regard to whether the educational or training outcome specified in the plan have been achieved.
17. S29 of the Act and section 9 of the Code of Guidance sets out that where a young person aged 18 or over leaves education or training before the end of their course, the council must not cease to maintain the EHC Plan unless it has reviewed the young person’s EHC Plan to determine whether the young person wishes to return to education or training, either at the educational institution specified in the EHC Plan or somewhere else. If the young person does wish to return to education or training and the council thinks it is appropriate, then the council must amend the EHC Plan as necessary and it must maintain the plan.
18. Where the child’s parent or the young person disagrees with the council’s decision to cease their EHC Plan, they may appeal to the tribunal. Councils must continue to maintain the EHC Plan until the time has passed for bringing an appeal or, when it has been registered, until it has been concluded.

Background

19. Y is a young adult with a diagnosis of autism. They attended a specialist residential school. Y’s EHC Plan included:
• Individual and small group teaching
• Weekly individual sessions with an assistant psychologist focusing on identity and behaviour
• a weekly group speech and language therapy (SALT) session
• a weekly group OT session and for the OT to continue working with the teams around Y to include strategies to support Y’s arousal levels and sensory strategies to help Y self regulate.
• 14-21 physiotherapy sessions per school year.
20. Their last annual review was held in May 2022.
21. In October 2022 there were incidents of challenging behaviour involving Y. The school could no longer meet Y’s needs and so Y returned home. The Council arranged an emergency meeting in November 2022. It consulted seven settings with a view to a September 2023 start in January 2023 but none could offer Y a place or were suitable to meet Y’s needs. It consulted four more between February and July 2023.
22. The Council contacted a specialist tutoring service but it could not identify a suitable face to face tutor and could only offer online tuition which Mrs X said was not suitable.
23. The Council agreed to fund 21 hours of social care support per week.

What happened

24. The following is a summary of the key events relevant to this complaint.
25. In December 2023 a residential college offered Y a place at the cost of around £8000 a week. Mrs X asked the Council to consider this placement. The Council’s SEN panel refused the request. It wrote to Mrs X to consult on its proposal to cease Y’s EHC plan. It considered Y’s needs could be met through the community and adult learning rather than through formal education.
26. Mrs X asked the Council how it considered Y’s needs could be met without holding an annual review. She said they would appeal the Council’s decision.
27. The Council agreed to hold an annual review but then proposed postponing this while it assessed Y’s academic ability. Mrs X says it has not done this assessment. In late February 2024 it wrote to Mrs X to confirm it was ceasing Y’s Plan and setting out the right of review. Mrs X appealed this decision.
28. In March 2024 the Council discussed home to school tutoring with Mrs X but she considered it was not a suitable option as the tutoring company said it could not provide specialist tutors to meet Y’s needs.
29. In April 2024 the Council held an annual review. The notes record Y had an EHC Plan but the Council had not delivered the provision within the Plan. It had explored a number of placements but only one had offered Y a place. Mrs X was happy to explore what interim provision could be provided to Y whilst the appeal was ongoing and to engage with an assessment by another provider the Council had identified.
30. In April 2024 Mrs X complained to the Council about the failure to provide any education and specialist provision since Y had left school in October 2022. In the complaint response the Council said there was no evidence Mrs X had raised with it that Y had missed SALT, physiotherapy and OT provision but it accepted it should have been more proactive in looking to source provision linked to Y’s education. It said it would make enquiries with other tutoring companies. It said it had submitted the college’s offer to its panel but the panel felt the placement was not an efficient use of resources and that Y’s lifelong learning needs would be best met through adult social care. It accepted it should have liaised with Mrs X about interim education measures and the next steps around continuation of therapies. It offered to pay Mrs X £3600, which equates to £900 a term to acknowledge the impact of the missed provision.
31. Mrs X remained unhappy as Y was still without educational provision. She had received no update regarding tutoring. She had believed the Council was continuing to look for alternative placements, but it now appeared it had stopped doing so in April 2023. She said she was not made aware the Council intended to cease the Plan until January 2024.
32. The Council wrote to Mrs X in May 2024 with a final amended EHC Plan. The Plan contained the same provision as the one in place in 2022. In section I it did not name a placement or type of placement.
33. The Council wrote to Mrs X at stage 2 of its complaints’ procedure in June 2024. It acknowledged that during the tribunal process it was required to provide education input for Y and said it was exploring the options available. It said its offer of £3600 was reasonable and that going forward Y did not need an EHC Plan to achieve the outcomes in the Plan. It said Y could be supported in adulthood through ongoing social care input.
34. Mrs X remained unhappy and complained to us.

Findings

35. Y had an EHC Plan in place but was no longer attending the provision named in the Plan. The Plan from 2022 was still in place as the Council failed to review or amend it during 2023. The Council therefore still had a duty to ensure Y received the provision set out in the 2022 Plan. The Council failed to secure any educational provision for Y. This was fault. As I have explained above, I have considered what happened between September 2023 and August 2024. The Council’s fault meant Y missed out on three school terms of education.
36. Y’s plan also contained provision for OT, Physiotherapy and SALT support. When Y stopped attending the residential school which included this provision, the Council failed to refer Y for alternative provision through the NHS or privately. This meant Y has also missed out on three terms of specialist provision.
37. When it became clear the Council was having difficulty finding an alternative provision it should have arranged an emergency annual review without delay. It’s failure to do so was fault. Its failure to review Y’s EHC Plan delayed Mrs X’s right of appeal to tribunal and caused her additional frustration as she believed the Council was still looking to identify an alternative placement for Y when it appears it had already decided to cease the Plan. It has also caused her uncertainty over what provision Y might have received had she had the opportunity to appeal sooner.
38. The Council provided Y with 21 hours of adult social care support but this is not a replacement for Y’s education or specialist provision, and this was not arranged to help secure any of the outcomes set out in Y’s EHC Plan.
39. In January 2024 the Council proposed ceasing Y’s EHC Plan and decided to do so in February 2024. Mrs X has appealed this decision. The Council failed to review Y’s EHC Plan and the outcomes contained within it before reaching the decision to cease the Plan. This was fault and not in line with the law and guidance.
40. The Council offered Mrs X a remedy of £3600 which would equate to £900 a term for two terms in the 2022/23 academic year and two terms in the 2023/24 academic year. Although the Council has remedied the impact of fault in the 2023/23 academic year I have only considered what happened since September 2023 and I am not satisfied the amount offered is sufficient.
41. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. In deciding on a figure, we consider factors such as:
• The severity of the child’s SEN as set out in their EHC Plan.
• Any educational provision – full time or part time, without some or all of the specified support – that was made during the period.
• Whether additional provision can now remedy some or all of the loss.
• Lost or delayed right of appeal to tribunal
42. Given the circumstances of this case, Y’s age and that Y did receive some ASC support, I consider a payment of £1500 a term to be appropriate.

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Agreed action

43. Within one month of the final decision, the Council has agreed to apologise to Mrs X and pay her:
1. £1200 (the difference between the £900 already provided and £1500) for the benefit of Y to acknowledge the impact of Y’s loss of provision in the first two terms of 2023/24; and
2. £1500 to acknowledge the impact of the loss of provision in the summer term of 2023/24.
3. £300 to acknowledge the distress, uncertainty and frustration caused by the delays to Mrs X’s right of appeal.
44. 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.
45. Within two months of the final decision the Council has also agreed to:
1. remind relevant staff of the statutory requirement to review the EHC Plan of those aged 19 or over who stop attending their provision before ceasing their EHC Plan.
2. remind relevant staff of the requirement to continue to secure the provision in an EHC Plan when a young person stops attending the school or college named in the Plan.
3. review its procedures to ensure interim/emergency reviews are arranged in a timely manner when a placement has ended and a new placement is yet to be identified.

The Council should provide us with evidence it has complied with the above actions.

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Final decision

46. I have completed my investigation. The Council was at fault causing an injustice which it has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman