Summary: Mrs Y complains the Council delayed in issuing its decision to end Mr A’s EHC Plan. The Council has now accepted there was a delay in issuing this decision. The Ombudsman also finds the Council at fault for failing to maintain the Plan while Mrs Y appealed its decision to the SEND Tribunal. This caused Mrs Y and her son significant distress. To remedy this, the Council has agreed to apologise to Mrs Y and her son and make them several payments. The Council has also agreed to make certain service improvements.

The complaint

1. The complainant, who I shall refer to here as Mrs Y complains, on behalf of her son, Mr A, that the Council:
1. failed to issue any updated Education, Health and Care Plans (EHC Plans) for the 2020/21 and 2021/22 academic years while Mr A attended College B;
2. failed to complete the annual review process within the statutory timescales for the 2021/22 academic year following an annual review meeting in December 2020. She complains the Council delayed in issuing its decision to end Mr A’s EHC Plan after the summer term 2021. She says the Council first wrote to Mr A and Mrs Y to tell them its decision in June 2021;
3. failed to fully plan for the ending of Mr A’s EHC Plan after he turned 25 years old and his transition to adult social care services; and,
4. failed to fully respond to her complaints.
2. Mrs Y says Mr A was left suddenly without any education or support in place after his residential placement at College B ended. She says this significantly affected Mr A’s mental health, causing him anxiety. Mrs Y says, due to the Council’s failure to plan for Mr A’s transition from an EHC Plan to other Council services, Mr A had to return home without any independence or say in where he lived.
3. Mrs Y says the delays in the annual review process meant she was denied the opportunity to challenge the decision to end the EHC Plan at the SEND Tribunal before the Plan ended. Mrs Y says the situation has caused her stress and distress, particularly as she is Mr A’s main carer and she was recovering from a serious health condition.

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What I have investigated

4. Matters, which I cannot investigate, are set out in the last paragraph of this statement.

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The Ombudsman’s role and powers

5. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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.
8. If we are satisfied with a council’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

9. I spoke with Mrs Y about her complaint. I considered the information and documents provided by Mrs Y and the Council.
10. Mrs Y and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
11. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I found

Legislation and guidance

Education, Health and Care Plans – Annual Reviews

12. A child with special educational needs may have an Education, Health and Care (EHC) plan. This 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 education, or name a different school. Only the tribunal can do this.
13. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for producing and reviewing EHC Plans. The Code is based on the Children and Families Act 2014 and the SEN Regulations 2014. Councils must meet the following statutory timescales when reviewing EHC plans:

• Councils must review an EHC Plan at least every 12 months.
• Councils must decide within four weeks of a review meeting whether they propose to keep the EHC Plan as it is, amend the Plan or end it. The council must notify the child’s parent and school of its decision.
• If the council decides to amend the Plan, it must send the child’s parent details of the proposed amendments, including copies of any evidence to support the proposed changes. It must allow them 15 days to comment.
• Following comments from the child’s parent, if the council decides to continue to make the amendments, it must issue the amended final EHC Plan as soon as possible, and in any case within eight weeks of issuing the notice to amend.

Ceasing an Education, Health and Care Plan

14. Councils may cease to maintain an EHC plan only if it determines that it is no longer necessary for the plan to be maintained, or if it is no longer responsible for the child or young person.
15. Circumstances where a council may determine that it is no longer necessary to maintain the EHC plan include where the child or young person no longer requires the special educational provision specified in the EHC plan. When deciding whether a young person aged 19 or over no longer needs the special educational provision, a local authority must consider whether the education or training outcomes specified in the EHC plan have been achieved.
16. Councils must not cease to maintain the EHC plan simply because the young person is aged 19 or over.
17. Where a council is considering ceasing to maintain an EHC plan it must:

• tell the child’s parent or the young person that it is considering this
• consult the child’s parent or the young person
• consult the school or other institution that is named in the EHC plan

18. The Code says support should generally cease at the end of the academic year, to allow young people to complete their programme of study. Where a young person reaches their 25th birthday before their course has ended, the EHC plan can be maintained until the end of the academic year in which they turn 25 (or the day the apprenticeship or course ends, or the day before their 26th birthday if later).
19. A child or young person’s exit from an EHC plan should be planned carefully by the council, to support smooth transitions and effective preparation for adulthood.
20. Parents and young people have a right of appeal to the SEND Tribunal if they disagree with the council’s decision to cease their EHC Plan. The Code says councils must continue to maintain the EHC plan until the time has passed for bringing an appeal or, when an appeal has been registered, until it has been concluded. (the Code, paragraph 9.209)

What happened

21. Mrs Y’s son, Mr A, is a young person who has an EHC Plan.
22. In December 2020, College B held a virtual annual review meeting. A Council Social Worker’s record of the meeting shows the Council expected Mr A to leave College B in July 2021 so work, internship and independent living options were discussed.
23. In February 2021, the Social Worker arranged a further meeting with Mr A, Mrs Y and College B. Mr A said he would like to do an internship provided through College B, which would mean he would remain there until January 2022.
24. Mr A’s social worker carried out a Care Act Assessment.
25. In March, Council social workers agreed to look into either arranging an internship at College B for Mr A or a suitable internship in the Council’s area with appropriate supported living for him.
26. At the end of March, Mr A’s social worker held a meeting with Mr A and Mrs Y. Mr A’s course at College B was due to end at the end of June 2021 so the aim of the meeting was to plan what would happen next. The Council agreed to look into two options for Mr A:

• putting in place an internship at College B for Mr A. It was noted this could be considered for Mr A as he did not turn 25 years old until later in the 2021/22 academic year; or
• putting in place a suitable internship in the Council’s area with appropriate supported living for Mr A.

27. At the end of April, the Council officers in its adult social care team met to review Mr A’s accommodation options. It was noted at the meeting that Mr A needed somewhere to live if a further educational placement was not agreed to. The officers agreed to explore supported living options for Mr A.
28. In May, Council social workers discussed Mr A’s possible independent living options again. However, case notes show the social workers were not able to reach a decision on this until the Council completed the annual review process.
29. A social worker emailed Mrs Y to say she understood the Council’s SEN team would soon be writing to her to say it had decided to end Mr A’s Plan. She said that adult social care had been looking into other options because of the Council’s EHC Plan decision.
30. A meeting took place with Mrs Y, Mr A, College B and a Council Social Worker. The record of the meeting shows Mrs Y and Mr A’s family were not happy that the Council had decided to end Mr A’s Plan without telling them. It is recorded that there was no resolution to the meeting as Mrs Y wanted to challenge the Council’s decision to end the Plan.
31. The Council sent Mrs Y a draft amended EHC Plan. Section I was left blank. In the letter to Mrs Y, the Council said Mr A’s placement at College B remained secure and it would name an education setting when issuing the final Plan.
32. A few days later, a Senior SEN Officer emailed Mrs Y to say she would soon receive a letter about the Council’s decision to end Mr A’s Plan.
33. At the end of May, Mrs Y complained to the Council.
34. In June, the Council wrote to Mrs Y to say it was proposing to cease to maintain Mr A’s Plan. It said, if the Council did not hear from Mrs Y within 15 days, it would end Mr A’s Plan.
35. In mid-June, the Council wrote to Mrs Y saying it had decided to cease to maintain Mr A’s EHC Plan. The Council told Mrs Y about her SEND Tribunal appeal rights.
36. In July, the Council sent Mrs Y its stage one complaint response. Its decision to end Mr Y’s Plan remained unchanged and it explained the reasons for this.
37. Mrs Y said she was not happy with the Council’s response. She said the Council had failed to fully respond to her questions.
38. In August, the Council sent Mrs Y its final complaint response.
39. In September, Mrs Y appealed to the SEND Tribunal about the Council’s decision to end Mr A’s Plan.
40. In October, the Council reached an agreement with Mrs Y not to cease to maintain Mr A’s EHC Plan. The SEND Tribunal issued a consent order in December confirming this.

Analysis – was there fault by the Council causing injustice?

Mr A’s 2020/21 Education, Health and Care Plan

41. Mrs Y complains that the Council failed to issue an updated EHC Plan for Mr A for the 2020/21 academic year.
42. The Council told me a draft EHC Plan was issued in March 2020. I have considered this document, which shows various changes to Mr A’s Plan and a statement in Section I, which says: “no school is named in Section I of a draft plan. Please be assured that [Mr A’s] placement at his … current school remains secure and when their final plan is issued a school will be named.”
43. Based on the evidence I have seen, the Council failed to issue a final EHC Plan after the 15 day deadline for comments from Mrs Y and Mr A. This is fault (part a of the complaint). This denied Mr A his appeal rights. It caused Mrs Y uncertainty about the status of Mr A’s Plan.
44. I have addressed Mrs Y’s complaint about Mr A’s 2021/22 annual review in the next section.

The Council’s decision to end Mr A’s Plan

45. Mr A’s 2021/22 annual review was held in December 2020.
46. Following the December 2020 annual review meeting, the Council had a duty to decide clearly whether to maintain, amend or cease Mr A’s EHC Plan. The evidence I have seen shows that, following the annual review meeting, the Council’s position about whether it would amend or cease Mr A’s EHC Plan was unclear and, at times, conflicting. For example, in May 2021, the Council issued a draft amended EHC Plan which suggested Mr A’s placement at College B was secure, but had also told Mrs Y it intended to end Mr A’s Plan. This is fault (part a of the complaint). This caused Mrs Y and Mr A stress and confusion.
47. In response to questions I asked, the Council accepted that it had failed to notify Mrs Y and Mr A of its decision to end Mr A’s EHC Plan within the statutory timescales for doing so. The Council should have sent Mrs Y and Mr A this decision within four weeks of the annual review meeting (by mid-January 2021). However, the Council issued its decision in mid-July 2021. This delay of six months is fault (part b of the complaint). This delayed Mr A’s appeal rights and caused him uncertainty. Mrs Y went to time and trouble having to pursue the Council to issue a cease to maintain notice so they could appeal.
48. Mrs Y appropriately engaged her appeal rights to challenge the Council’s decision. The Council conceded the appeal and agreed to maintain Mr A’s Plan. Mr A returned to College B at the end of October 2021. If Mr A’s right to appeal had not been delayed and Mrs Y could have appealed sooner, it is likely the Council would have agreed to continue to maintain the EHC Plan earlier. I find this means Mr A's placement at College B would have likely been in place for the start of the 2021/22 academic year.
49. As explained above, the Council had a duty to maintain Mr A’s EHC plan until the SEND Tribunal appeal had been concluded. I have seen no evidence the Council fulfilled this duty. This is fault. This meant Mr A missed out on the provision in his Plan at his residential placement, College B, during the months of July, September and October 2021. This likely had an impact on Mr A’s educational progress. This caused Mrs Y and Mr A considerable distress.
50. On balance, I find the fault identified here meant the Council failed to have due regard to its duties under Article 8 of the Human Right Act 1998 to respect Mrs Y and Mr A’s right to respect for their private and family life. I have taken into consideration the following evidence in reaching this decision:

• Mr A’s Care Act Assessment from February 2021 states Mr A did not wish to return to the family home when his placement at College B ended as he wished to become more independent. This also stated Mr A’s family was no longer able to provide the same level of support because of Mrs Y’s significant health condition. The Council was aware of the treatment Mrs Y was receiving. The Council offered Mrs Y a Carer’s Assessment. However, I have seen no evidence this was completed by the end of the 2020/21 academic year. This is fault.
• Later in May, Mrs Y explained to the Council there was a deteriorating situation at home, which could be detrimental to Mr A if he had to return home unexpectedly.

51. The Council’s failure to maintain the Plan meant Mrs Y was expected to provide significant care for Mr A when he was left without any option but to return home. This had a significant disruptive impact on Mrs Y’s and Mr A’s life, including their family life. It is likely this affected Mr A and Mrs Y’s personal relationships with each other.

Complaint handling by the Council

52. Mrs Y complains the Council failed to fully respond to her complaints (part d of the complaint).
53. I have reviewed the Council’s stage one and stage two complaint responses. I find the Council has responded to Mrs Y’s complaint in sufficient detail based on its decision at the time to end Mr A’s Plan. I, therefore, do not find the Council at fault. This does not affect my findings of fault above.

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Agreed action

54. Within four weeks of my final decision, the Council has agreed to take the following action to remedy the injustice Mrs Y and Mr A experienced:
1. apologise in writing to Mr A;
2. apologise in writing to Mrs Y. The Council should offer Mrs Y a Carer’s Assessment and report back to us on the decision made on this;
3. make a payment to Mr A of £500 for the significant distress and disruption caused to him by the delay in issuing the cease to maintain notice and failure to maintain the EHC Plan during the SEND appeal;
4. make a payment to Mrs Y of £750 for the significant distress, time and trouble, and disruption caused to her by the delay in issuing the cease to maintain notice and failure to maintain the Plan during the SEND appeal; and,
5. make a payment to Mr A of £600 per month to recognise Mr A’s loss of provision caused by the failure to maintain the Plan during the SEND appeal. The total delay was around three months. The total to be paid is £1,800.
55. I have considered the Ombudsman’s published guidance on remedies when recommending the above payments.
56. Within two months of my final decision, the Council has also agreed to make the following service improvements:
1. circulate a reminder to relevant staff that, when the Council decides to end an EHC plan, it must continue to maintain the EHC plan until the time has passed for bringing an appeal or, when an appeal has been registered, until it has been concluded;
2. circulate a reminder to relevant staff that any decision to cease to maintain an EHC plan must be made within four weeks of the annual review meeting; and
3. share this decision with relevant staff members.
57. The Ombudsman will need to see evidence that these actions have been completed.

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Final decision

58. I have completed my investigation.
59. I have decided to uphold parts a and b of Mrs Y’s complaint. This is because there is evidence of fault causing injustice. The Council has agreed to the above recommendations, which are suitable ways for the Council to remedy this.
60. I have not upheld part d of Mrs Y’s complaint, because I have seen no evidence of fault causing injustice.

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Parts of the complaint that I did not investigate

61. The courts have said if someone has lodged an appeal to the SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
62. Mrs Y complains the Council failed to fully plan for the ending of Mr A’s EHC Plan after he turned 25 years old and his transition to adult social care services. I consider this matter to be ‘inextricably linked’ to Mrs Y’s appeal about the Council’s decision to the end the Plan. This means I cannot investigate this part of Mrs Y’s complaint (part c of the complaint).

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Investigator's decision on behalf of the Ombudsman