The Ombudsman's final decision
Summary: Mrs X complained the Council delayed carrying out an annual review of her son Mr Y’s Education, Health and Care Plan (EHC plan) and then delayed issuing a final amended plan. The Council was at fault for the delay and for not securing all the provision in Mr Y’s plan. The Council has agreed to make a payment to Mr Y to acknowledge the loss of provision and a payment to Mrs X to acknowledge the frustration caused by the delays.
The complaint
Mrs X complained the Council delayed carrying out an annual review of her son Mr Y’s Education, Health and Care Plan (EHC plan) and then delayed issuing a final amended plan. This has delayed the opportunity to appeal and caused frustration and uncertainty. She says the Council has also failed to ensure Mr Y received all the provision in the EHC plan in the meantime which has impacted on his education and mental health.
The Ombudsman’s role and powers
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) 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). Mrs X has raised issues going back to 2019. It was open to Mrs X to come to us at that time. I have considered what happened since October 2020 when Mr Y stopped attending college, up until Miss X complained to us in May 2022.
We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (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.
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 the final decision with Ofsted.
How I considered this complaint
I have considered information provided by Mrs X and discussed the complaint with her on the telephone. I have considered the Council’s response to our enquiries and the relevant law and guidance.
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.
What I found
The relevant law and guidance 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.
The EHC plan is set out in sections which include: Section B: The child or young person’s special educational needs.
Section F: The special educational provision needed by the child or the young person.
Section I: The name and/or type of school.
A young person can have an EHC plan up until the age of 25, if they remain in education and the plan remains necessary.
The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135) The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to: check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement; check the provision at least annually via the review process; and investigate complaints or concerns that provision is not in place at any time.
Councils can agree to a personal budget instead of arranging specific provision itself. This means funds are made available to the parent or carer to arrange the provision or purchase the specified equipment.
Reviewing an EHC Plan The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) Where a 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) The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176) Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196) Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.
What happened Mr Y is a young person with an EHC plan. He is above compulsory school age. In 2019 Mr Y undertook a level 2 course at college 1 (A further education college). Mr Y had an annual review of his plan in June 2019. Mr X’s plan was for an appropriate further education study programme at college 1 alongside a bespoke provision of English, Maths, occupational therapy (OT) and speech and language therapy (SALT). It included: One hour per week over 32 weeks plus eight monthly sessions of 3.5 hours community based sessions with a Speech and Language Therapist over one academic year.
Paired and group work to develop a range of skills including speaking and listening skills, social skills, cooperation Use of a social skills programme that would teach a range of skills for a variety of settings 2.5 hours weekly of 1:1 for 32 weeks bespoke programme in English and Maths for one academic year 1:1 support during the course from a learning support assistant A programme of therapy delivered and directed by an Occupational Therapist for one hour a week for one academic year.
Mrs X received a personal budget to fund the OT and SALT support.
During April 2020 Mrs X spoke to a Council officer and advised Mr Y had been offered a level 3 course at college 1 from September 2020.
The Council says the officer and Mrs X agreed an annual review with the college would be beneficial after Mr Y went back in September 2020. Mrs X says she did not agree to delay the annual review. The officer did not arrange the review.
After five weeks the course tutor met with Mr Y and Mrs X. The college considered Mr Y was not working at the appropriate level and so Mr Y left the course. Mrs X says the college agreed to process his discontinuation. Neither the college nor Mrs X or Mr Y advised the Council Mr Y had left the course.
In April 2021 Mrs X contacted the Council and told it Mr Y had left the course in October 2020. Mr Y’s annual review took place on 21 July 2021. At the review Mrs X requested a placement for Mr Y at a residential college, college 2, starting in September 2021.
The Council wrote to Mrs X on 24 August 2021 and said it had decided to amend Mr Y’s plan. Mrs X say she contacted the Council in September and October 2021 to chase up progress but did not receive a response.
In early December 2021 the Council issued a draft amended EHC plan. Mrs X responded with proposed amendments two weeks later and requested a placement at college 2. Mrs X complained to the Council about the delay in amending the EHC plan and that Mr Y was not receiving any provision at that time. In January 2022 Mr Y started receiving 1.5 hours of online tuition from company A (a company which provides individual specialised education programmes of support) per week.
The Council responded to Mrs X’s complaint in late December 2021. It said: The letter agreeing to amend the EHC plan was sent out late due to staff absence.
The officer had searched and found Mrs X’s email of October 2021 chasing a response in their email junk folder and apologised for not having responded to it.
It advised it was not aware Mr Y was out of college from October 2020 until Mrs X notified it in April 2021.
It upheld her complaint about the lack of provision at the current time. It noted Mrs X requested a placement at college 2 which it said would be considered by the Council’s operational panel. It said it had made a referral to company A but not until the end of the autumn term. It said Mr Y would also be referred to the Educational Psychology Service for an assessment to provide an up to date picture of Mr Y’s needs and suitable provision and strategies. It said the operational panel had agreed to continue Mr Y’s personal budget for SALT and OT support.
It accepted there was a delay in sending out the first draft of Mr Y’s amended EHC plan, which is said was due to severe staffing absences.
The Council advised it had introduced a generic email inbox so that other administrative officers in the area could deal with queries and provide updates and it had recruited some additional supply cover. It said it would update Mrs X in mid-January as to the outcome of the operational panel.
The operational panel refused the request to name college 2 in Mr Y’s EHC plan. Mrs X says she received no specific reasons for the refusal.
In late January 2022 Mrs X remained dissatisfied with the Council’s complaint response and asked that it be escalated to the next stage of the Council’s complaints process.
In early May 2022 the Council provided a stage 2 response to Mrs X’s complaint. It said: It acknowledged a council officer had, in April 2020, agreed it would be beneficial to hold an annual review meeting in September 2020, but this did not happen. The officer had checked in September 2020 that Mr Y was attending college 1. The college did not then advise the Council Mr Y was no longer attending. It said the college should have held an early annual review to discuss matters. However, had Mrs X contacted the Council at that point it would have been happy to support them at a review meeting. It accepted it missed the opportunity to have an annual review in September 2020.
Company A was working with Mr Y to identify what Mr Y needed/could accept in terms of education provision.
The Council had agreed to provide funding via a personal budget to continue with SALT and OT provision.
It had referred Mr Y to an Educational Psychologist in January 2022 although this involvement had yet to take place. It would look to prioritise this but needed Mr Y’s consent to go ahead. It said it would endeavour for this to take place as soon as possible to find ways to enable Mr Y to regain his confidence and move forward to an independent adulthood. The letter did not ask Mrs X to get Mr Y’s consent.
It apologised that Mrs X had not yet received the final amended EHC plan. It said it would issue it by 9 May 2022.
It said Company A would work with Mr Y to consider how it could support him with his learning, possibly transitioning that support to a level 3 placement then moving to work experience/employment opportunities.
The Council issued a final EHC plan on 6 May 2022. Under ‘placement’ the EHC plan did not name a college but stated ‘an individualised package of provision delivered by providers, to transition [Mr Y] to an appropriate further education study programme delivered by a local state-funded FE provider, or adult education programme and/or work/training placement in discussion with [Mr Y].
Mrs X has appealed to the Tribunal regarding the placement and the provision set out in section F to meet Mr Y’s needs.
In her complaint to us, Mrs X said Mr Y had not had a personal budget for SALT and OT provision in 2021 and had not been seen by the Education Psychologist. In response to my enquiries the Council accepted it had not set up a personal budget for Mr Y’s SALT and OT provision from September 2021. It said previously Mr Y had a personal budget which was spent by the end of August 2021.
It said it had referred Mr Y to the educational psychology service which allocated a psychologist in February 2022. It apologised this had not progressed. It said the educational psychologist had agreed to assess Mr Y but required his consent to do so. It said it would inform the education psychologist to ask for Mr Y’s consent.
Mr Y has received some provision through company A. However, Mrs X says this amounted to 1.5 hours per week and did not meet the provision set out in his EHC plan. In particular Mr Y is not undertaking any group work and has no contact with peers. Mrs X says they have received no contact about transitioning to college, work experience or volunteering.
Mr X has yet to have an annual review in 2022.
Findings
I have considered what has happened from September 2020 up until Mrs X complained to us in May 2022. At that time the Council issued the final EHC plan which triggered Mrs X’s right of appeal to Tribunal and Mrs X has exercised that right.
College 1 decided in October 2020 that Mr Y was not meeting the expected standard and he left the course. I cannot investigate the actions of the college. However, the Council’s failure to carry out a review in September 2020 was fault. I cannot say, even on the balance of probabilities, what would have happened if a review had happened at that time and whether any action taken would have addressed the college’s concerns and enabled Mr Y to continue his studies.
The Council was not aware Mr Y had left college 1 before April 2021, so I cannot say it is fault for not acting between October 2020 and April 2021. However, after the Council became aware Mr Y was not attending college, it delayed reviewing Mr Y’s EHC plan and did not comply with the statutory timescales. This was fault. Specifically: It took three months to arrange the review meeting having been notified Mr Y was no longer at college 1.
It took nearly a week longer than it should have to write to Mrs X to advise it intended amending the EHC plan.
It did not send an amended plan to Mrs X until early December 2021, over three months after advising her the plan was to be amended. The Council accepted this was delay in its complaint response to Mrs X.
It then did not issue the final amended plan until 6 May 2022, three months later than it should have.
The delays in issuing the final plan have delayed Mrs X’s ability to appeal to Tribunal regarding Mr Y’s provision which caused her significant frustration. This also caused uncertainty about the provision Mr Y was to receive as, on balance, it is likely Mrs X would have appealed earlier had the timescales been met.
The Council has already employed additional supply staff and is looking to employ additional staff to resolve the workload pressure in its SEND department. It has also introduced a generic email address to ensure requests for an update are responded to more promptly. This was appropriate to prevent recurrence of the faults.
The Council failed to progress the educational psychologist assessment. In particular, it failed to seek Mr Y’s consent to enable this to move forward. This was fault. It has now agreed to seek consent from Mr Y to enable this to progress. However, because this has not happened the Council has produced the final amended plan without receiving this input, which it originally requested to better inform its decision as to what provision would best meet Mr Y’s needs.
The Council has already accepted it failed to set up a personal budget for Mr Y to receive SALT and OT provision. In the complaint response in January 2022 it confirmed the personal budget would continue but took no action to progress this. This was fault. The Council has offered to liaise with Mrs X to ask about the expenditure undertaken between the last annual review and now, including costs for OT and SALT provision. It should then refund this.
Mr Y is an adult so there is no mandatory requirement for him to receive a full-time education. However, whilst Mr Y has an EHC plan, the Council must ensure he receives the provision it contains. Mr Y received no educational provision for around two terms, between April 2021 and December 2021. Since December 2021 Mr Y has since received some provision from company A but I am not satisfied the Council took sufficient steps to arrange all of Mr Y’s special educational provision, as detailed in his Plan. This is fault. Mr Y has not received paired or group work, there was no social interaction with peers and no social skills programme as required under the EHC plan in place at the time. This is fault and means Mr Y has missed out on provision he should have received. Mrs X says the lack of provision has impacted on Mr Y’s mental health and stalled his progress towards independence.
Agreed action
Within one month of the final decision on this complaint the Council has agreed to: Apologise to Mrs X and Mr Y for the faults identified Pay Mr Y £1800 to acknowledge his loss of education provision between April 2021 and December 2021 (£300 a month for six months excluding school holidays) and a further £700 for the failure to provide all the provision set out in his plan for three and a half months between January 2022 and May 2022 (£200 a month excluding school holidays) when it issued the final amended plan.
Pay Mrs X £200 to acknowledge the frustration caused to her by the Council’s delays.
Provided Mrs X provides evidence, to refund her any expenditure she has made for SALT, OT or tuition provision since August 2021 up until when it agrees a personal budget.
Carry out the annual review of Mr Y’s EHC Plan if it has not done so already. The review should address the personal budget for SALT and OT going forward and how company A intends to meet the provision set out in Mr Y’s EHC Plan going forward.
The Council should provide us with evidence it has complied with the above actions.
Final decision
I have completed my investigation. The Council was at fault and has agreed to a remedy for the injustice this caused.
Investigator's decision on behalf of the Ombudsman