The Ombudsman's final decision
Summary: Miss X complained the Council has failed to carry out all the actions agreed to remedy her earlier complaints to the Ombudsman. The Council’s continued failure to make the provision in Miss Y’s EHC plan or make the agreed payments while the provision was not in place is fault. As is the delay in issuing a final amended EHC plan and the lack of clarity about whether it would be possible to provide a nail technology tutor on a one to one basis. These faults have caused Miss X and Miss Y an injustice.
The complaint
The complainant, whom I shall refer to as Miss X complains the Council has failed to carry out all the actions agreed to remedy her earlier complaints to the Ombudsman. The Council agreed to pay £100 for each month while GCSE ICT tuition remained on her daughter’s Education Health and Care (EHC) Plan if the Council had not found an alternative tutor.
Miss X complains her daughter is still not receiving the GCSE ICT tuition provision set out in her EHC Plan as the Council has not yet advertised for a tutor. Miss X also complains the Council made the agreed payments up to December 2021 but has not made any further payments
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) 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)
How I considered this complaint
As part of the investigation, I have: considered the complaint and the documents provided by Miss X; made enquiries of the Council and considered the comments and documents the Council provided; Miss X and the Council 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 (EHC) plan A young person with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the young person’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. Only the tribunal can do this.
The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
Annual reviews The annual review of an EHC plan considers whether the provision is still appropriate and whether the child/ young person is making progress towards the targets in the EHC plan.
Within four weeks of the review, the council must decide whether it proposes to keep the EHC plan as it is; amend the plan; or cease to maintain the plan. It must then tell the young person/ their parent its decision.
If the plan needs to be amended, the council should start the process without delay. It must send the young person/ their parent a copy of the existing (non-amended) plan and an accompanying notice with details of the proposed amendments. This should include copies of any evidence to support the proposed changes. The young person/parent must be given at least 15 calendar days to comment on the proposed changes.
If the council decides to continue to make amendments, it must issue the amended EHC plan as quickly as possible and within eight weeks of the amendment notice.
What happened here This is the third complaint Miss X has made to the Ombudsman regarding the Council’s failure to provide the provision specified in her daughter, Miss Y’s EHC plan. Miss Y’s EHC plan specified three hours of GCSE ICT tuition per week. This provision broke down in 2017 when the tutor declined to continue working with Miss Y.
Our investigation of Miss X’s initial complaint found the Council was at fault in not making this provision or amending Miss Y’s EHC Plan to remove it. The Council agreed to make this provision or pay Miss Y £100 for each month from January 2019 where this tuition remained on her EHC Plan, and the Council had not found a tutor.
As the Council neither made regular monthly payments nor found Miss Y a tutor, despite this remaining on her EHC plan, Miss X made a further complaint. We again found fault in the Council’s failure to provide the specified provision or pay the agreed sum while this provision was not in place. To remedy the injustice the Council made backdated payments and once again agreed to pay Miss Y £100 for each month where this tuition remained on her EHC Plan, and the Council had not found a tutor.
The Council made the backdated payment and paid £100 each month to the end of 2021. Miss X’s current complaint is that the Council is still not providing the ICT provision and has not made any payments in 2022. Miss X asserts the Council has not advertised for an ICT tutor despite confirming it would.
The Council’s records show it held an annual review of Miss X’s EHC plan in August 2021. This noted Miss Y required a face to face ICT tutor who has Qualified Teacher Status, but this had been difficult to source. The records also note Miss Y’s plan was quite out of date and would be amended. The Council sent Miss X a draft amended EHC plan in September 2021.
Miss X contacted the Council in early November 2021 asking for an update on the advertisement for ICT tutor. Miss X also informed the Council Miss Y was interested in pursuing a nail technician course and asked for this to be included in her amended EHC plan. She also asked for a number of amendments to the draft EHC plan. The Council sent Miss X a draft amended plan in December 2021.
The amended EHC plan no longer expressly refers to three hours of GCSE ICT tuition per week. It states Miss Y will be provided with nurturing and flexible tuition that is personalised to meet her medical needs. But does not specify the amount of tuition or the subject matter of this tuition.
In March 2022 the Council contacted Miss X with details of a nail technology course due to start in September 2022. An officer offered to contact the course provider to find out if there was capacity for one to one tuition. The officer then contacted Miss Y again in June 2022 with a summary of the course and advised her that that applications were now open.
The officer did not comment on whether one to one tuition was available and there is no record of Miss X or Miss Y contacting the Council at this stage to follow up on this.
In response to my enquiries the Council acknowledges there was a delay in making payments in 2022. It has now made a payment of £900 in respect of the entire educational period between January 2022 and December 2022. It notes that Miss Y will be 25 years old in January 2023, so there will be no further payments from January 2023. It is arranging an annual review to commence the process of ceasing the EHC plan as it is not responsible for providing special educational needs provision for people aged 25 and over.
The Council states it made all reasonable efforts to find a tutor that could fulfil all of Miss X’s requirements. It states that post COVID-19 all ICT tutors would only agree to online tuition, not face to face. In addition, local tutoring agencies were inundated with requests and were not able or willing to take on this provision. The Council also states that the only tuition agency in Torbay had previously worked with Miss Y and felt the relationship had broken down. The agency did not feel they could offer Miss Y anything further.
The Council states it contacted tutor agencies but did not put out a separate advertisement. And that Miss X’s restrictions on when tuition could occur also restricted the likelihood of finding a suitable tutor.
In relation to Miss X’s request for one to one tuition for a nail technician course, the Council states students are expected to enrol on the course they choose and follow the usual admission process. It states it provided Miss X with course details. The Council has checked with the college and confirmed Miss Y has not applied for the course.
In addition, the Council states that in responding to my enquiries it identified that although it had issued a draft plan in December 2021, it had not issued Miss Y’s final EHC plan. The Council issued Miss Y’s final plan on 1 September 2022.
Analysis The Council’s continued failure to make the provision in Miss X’s EHC plan or make the agreed payments while the provision is not in place is fault. I recognise the Council has now made a payment in respect of all missed ICT provision in 2022 but consider it should have done so sooner. Miss X should not have had to chase the Council or make a further complaint to ensure Miss Y received this agreed payment.
I also consider there were failings in the way the Council responded to Miss X’s request for a nail technology course tutor. The Council’s response to my enquiries suggests it expected Miss X and/ or Miss Y to apply for a place on the course at the local college. However, the Council was aware Miss Y would not be able to attend college and wanted one to one tuition. An officer agreed to look into to one to one tuition for Miss Y, but there is no evidence they contacted the course provider or anyone else regarding Miss Y’s needs and requirements. If the Council had made these enquiries I would have expected it to notify Miss X and Miss Y of the outcome.
The Council has now issued an amended EHC plan and removed the ICT provision. While I cannot consider the content of Miss Y’s EHC plan, I am concerned about the length of time taken to complete the annual review and issue the final plan. The failure to complete the review process and issue an amended final plan within the statutory timeframe is fault.
Having identified fault I must consider whether this has caused Miss X and Miss Y an injustice. Although the Council has now paid the agreed sum for missed ICT provision, Miss X has been put to unnecessary time and trouble in pursuing this. Miss X and Miss Y have also experience uncertainty regarding the amendments to the final EHC plan and the possible provision of a nail technology tutor on a one to one basis.
Agreed action
The Council has agreed to: apologise to Miss Y for once again failing to make the provision in her EHC Plan and the delay in paying her the agreed £100 each month while this provision was not in place. The Council should also apologise for the delay in issuing a final amended EHC plan and lack of clarity about whether it would be possible to provide a nail technology tutor on a one to one basis.
pay Miss Y £100 to recognise the further distress and uncertainty caused by the failings identified.
apologise to Miss X and pay her £100 to recognise the unnecessary time and trouble she has been put to in pursuing this matter and in having to again return to us for further assistance The Council should take this action within one month of the final decision on this complaint.
Final decision
The Council’s continued failure to make the provision in Miss X’s EHC plan or make the agreed payments while the provision is not in place is fault. As is the delay in issuing a final amended EHC plan and the lack of clarity about whether it would be possible to provide a nail technology tutor on a one to one basis. These faults have caused Miss X and Miss Y an injustice.
Investigator's decision on behalf of the Ombudsman