The Ombudsman's final decision
Summary: There was fault as the Council could have done more and could have improved communication to ensure that Mr Y did not miss out on the provision in his Education, Health and Care plan for 2 months. There were also delays in carrying out annual reviews and a social care assessment. The Council’s apology and payment towards the families uncertainty and time and trouble remedies the complaint.
The complaint
Mrs X complains for her adult son, Mr Y. Mrs X complains there have been delays in the Education, Health and Care (EHC) plan review process and that Mr Y has not received the full provision in his EHC plan. Mrs X also complains about the provision named in Mr Y’s EHC plan from October 2021 onwards.
Mrs X also complains there have been delays in carrying out a social care assessment for her son.
What I have investigated I have investigated whether Mr Y has received the provision in his EHC plan, the review process and the social care assessment. The final section of this statement contains my reason for not investigating the rest of the complaint.
The Ombudsman’s role and powers
The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended) We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) 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) 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.
How I considered this complaint
I read the papers put in by Mrs X and discussed the complaint with her.
I considered the Council’s comments about the complaint and any supporting documents it provided.
Mrs X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Education, Health and Care Plans A young person with special educational needs (SEND) may have an Education, Health and Care Plan (EHC plan). This sets out the young person's needs and what arrangements should be made to meet them. The council is responsible for making sure that all the arrangements specified in the EHC plan are put in place. Parents may appeal to the SEND Tribunal about the provision specified in an EHC plan.
EHC plans cover young people up to the age of 25. There is no automatic entitlement to continued educational support at age 19, or an expectation that those with an EHC plan should all remain in education until age 25.
The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.
Ceasing an EHC plan An EHC plan will automatically cease at the end of the academic year in which a young person turns 25. A council may cease a plan for a 19 to 25 year old if it decides that it is no longer necessary for the EHC plan to be maintained, or if it is no longer responsible for the young person. A council is no longer responsible for a young person aged 18 or over if they leave education and no longer wish to engage in further learning.
If the council decides to cease to maintain the EHC plan, it must tell the child's parent, or the young person, and the school. It must also give the child's parent details of their right to appeal to the SEND Tribunal about the decision.
Where it is known that a young person will soon be completing their time in education and training, the council should use the annual review prior to ceasing the EHC plan to agree the support the young person will have once they have left education. During this planning process, the council must continue to maintain the young person’s EHC plan as long as the young person needs it and remains in education or training.
Transition to adulthood The Code says councils must ensure EHC plan reviews from Year 9 onwards include a focus on preparing for adulthood and what the young person wants to be able to do when they leave post-16 education or training. Reviews should include support to prepare for higher education and/or employment. As children approach the transition point, schools and colleges should help children and their families with more detailed planning, for example through taster days and visits.
Adult care and support The Care Act 2014 requires local authorities to carry out an assessment for any adult with an appearance of need for care and support. The assessment determines what the person's needs are and whether the person has any needs which are eligible for support from the council.
Where a council determines that a person has any eligible needs, it must meet those needs. The council must provide a care and support plan which sets out the person’s needs, what they want to achieve, which needs the council will meet and how they will meet them.
The Care Act says that if a child is likely to have care and support needs when they turn 18, the local authority must assess them if it considers there is ‘significant benefit’ to the individual in doing so. This is regardless of whether the child currently receives any services. This is known as an adult care transition assessment.
Where young people aged 18 or over continue to have EHC plans, and are receiving care and support, the care and support plan forms the ‘care’ element of the EHC plan. The care plan will remain in place when the other elements of the EHC plan stop.
Key facts Mr Y is a young adult with a diagnosis of Autism Spectrum Disorder and has an EHC plan. The provision in the EHC plan of 2018 was for four days a week with a named specialist post 16 provision. This provision is available on two sites (site S and site C) and the EHC plan did not say which site the provision should be provided at.
Mr Y was receiving this provision at site S until July 2021.
The Council wrote to Mrs X in August 2021 to say that it would continue Mr Y’s provision at site S (for four days per week) until July 2022 when his EHC plan would cease.
On 5 October 2021 the Council issued a new EHC plan. This named the placement as two days at site S, two days at site C with the same provider. The Council says the provider could not offer four days at site S.
There was an incident in November 2021 at site C. After this incident, Mrs X said that Mr Y did not want to return to this site C, but wanted to do all four days at site S. Mr Y is currently only attending two days a week, rather than the four days named in the EHC plan as he does not want to attend site C.
After an annual review, the Council issued a final EHC plan in March 2022, naming four days at site S. The Council has said that the provider cannot offer Mr Y a fourth day at site S.
Delays in annual reviews Mrs X complains the Council delayed carrying out the annual reviews on Mr Y’s EHC plan. The Council has said the annual reviews are due in March.
The Council has said there was fault. The Council did not action or review the annual review paperwork in 2019. The annual review in 2020 was delayed. The Council did not action or review the annual review paperwork in 2021.
I accept that it was likely the provision for Mr Y would have remained the same if the annual reviews had been carried out on time. So, apart from causing uncertainty to Mrs X I am not convinced there was significant injustice to Mr Y on this point. It is clear, however, the faults in the process meant the Council realised in October 2021 that Mr Y’s EHC plan was not up to date. I have not investigated the March 2022 annual review, as this occurred after Mrs X put in her complaint to the Ombudsman. Mrs X can make a separate complaint if this review was not carried out correctly.
Failure to provide education September 2020 until July 2021 Mrs X complains the provision at site S for 4 days a week was not provided during lockdown.
The Council has said that Mr Y’s attendance at site S from September 2020 to July 2021 was 83.2%. The college closed from 4 January to 1 March 2021 due to Covid 19 lockdown. During this time, Mr Y had access to group meets but this was changed to 1:1 sessions. The Council says that overall, Mr Y’s engagement remained low throughout the time the college was closed despite attempts to make contact and adapt the new way of learning as much as possible. Staff were online with the class from 10am until 4:30pm everyday. The Council says that ‘It should be noted that Mr Y is an adult with mental capacity to make his own decisions. If he did/does not wish to engage with education that is his statutory right to make such a decision’.
The duty to arrange SEN provision which changed during the first COVID lockdown was reinstated on 31 July 2020. So, this complaint about provision from September 2020 should be considered against the normal SEN Code of Practice.
My view is there was no fault by the Council during this period, as Mr Y did have access to the provision in his EHC plan during this time, although two months were via online sessions. When the provider closed, the only other alternative would have been for the Council to source another placement for Mr Y. Given that the period was for two months I cannot see it would have been practical for the Council to find another provider for this time, especially when Mr Y had access to sessions online.
Failure to provide education September 2021 until November 2021 Mr Y did not receive the provision in his EHC plan, which was for four days a week at a specialist provider from the start of September until the start of November.
The Council has said that during this period it offered Mr Y tuition instead while it arranged the specialist placement. There is a file note from October saying Mrs X would like the Council to provide tuition.
The Council replied to say that they would try to arrange a tutor but it would take some time. The Council asked Mrs X what days would suit them for tuition and for her permission to send Mr Y’s details to some tutors. Mrs X did not reply to this email, however there were some phone calls between her and the Council. Mrs X says she did not reply as the Council told her it would take some time so she waited.
My view it that the Council could and should have done more to arrange tuition. However, Mrs X’s failure to give permission for the Council to send Mr Y’s details tutors also clearly contributed to the delay. Given those factors I consider there was fault that caused injustice to Mr Y. There is uncertainty that tuition could have been in place sooner if the Council’s communication had been better. I consider a payment of £200 is a reasonable remedy, this is half the normal remedy of £200 a months we would recommend to reflect that we are remedying uncertainty and that Mrs X’s failure to reply to give permission contributed to the delay.
Failure to provide education November 2021 onwards Mr Y’s EHC plan named four days a week of provision from November 2021. This was provided but Mr Y did not attend two days a week at site C. The Council provided the provision named in the EHC plan, so I do not consider it was fault as Mr Y could attend if he wished.
The Council informed Mrs X of her right to appeal to the SEND tribunal in a letter dated 5 October 2021 if she did not agree with the provision in the EHC plan naming 2 days at site S and 2 days at site C. It was reasonable for Mrs X to use her right of appeal and so I cannot investigate Mrs X’s complaint about the provision in the October 2021 EHC plan. We would not normally investigate a complaint when someone can appeal to a tribunal, unless we consider it would be unreasonable to expect the person to appeal. ( Local Government Act 1974 , section 26(6)(a)).
Social Care Assessment Mrs X complains there were delays in carrying out a social care assessment. I have looked at all the information sent and it is clear there were multiple delays. Not all of these were the fault of the Council, as sometimes Mrs X and Mr Y could not make the suggested dates. The social care assessment is complete, but Mrs X has said the Councils suggestion of a Personal Assistant for care and support is not workable.
The Council has said it is happy to provide an apology to Mrs X and a £100 remedy for any delay attributed to the worker’s absence due to ill health and family bereavement. I consider this is a satisfactory remedy to any delay. I do not consider there is any other injustice caused by the delay to be remedied, as Mrs X has not accepted the suggestions in the care and support plan.
Agreed action
The Council apologises to Mrs X for the delay in the social care assessment and delays in carrying out annual reviews within one month of the date of the decision on this complaint.
The Council pays £300 to Mrs X within one month of the date of the decision on this complaint. This consists of £100 for the delays in the social care assessment and £200 for the uncertainty and the time and trouble caused to the family from September to November 2021.
Final decision
I have completed my investigation of this complaint. This complaint is upheld as there has been delay and fault by the Council. The remedy above is a satisfactory remedy to the injustice caused to Mrs X and Mr Y.
Parts of the complaint that I did not investigate I have not investigated Mrs X’s complaints about the educational provision named in the October 2021 EHC plan. Mrs X was informed of her right of appeal to the SEND tribunal and I consider it reasonable for her to use this alternative remedy to ask for the provision in the EHC plan to be changed to four days at the site her son preferred.
Investigator's decision on behalf of the Ombudsman