The Ombudsman's final decision
Summary: Mr Y’s family complained the Council failed to provide much of Mr Y’s Education Health and Care Plan since April 2022. We found fault with the Council failing to provide Speech and Language Therapy to Mr Y across two different periods totalling 18 hours of missed provision. We also found fault with the Council failing to provide tuition for Mr Y from February 2023 to September 2023 and for delays in confirming its decision to cease Mr Y’s Education Health and Care Plan. The Council agreed to provide a rebate equivalent to the cost of the missed Speech and Language Therapy input. The Council also agreed to provide a rebate for the privately sourced tuition Mr Y received from February 2023 to September 2023. And, the Council agreed to provide an apology to Mr Y and pay him £100 for the avoidable distress and uncertainty caused by its delays in confirming its decision to cease his Education and Health Care Plan.
The complaint
Mr Y’s family says the Council promised Mr Y one to two days each week work experience.
Mr Y’s family says the Council did not provide the work experience promised.
Mr Y’s family says the Council promised Mr Y one day each week of a bespoke educational package.
Mr Y’s family says the college did not train staff in Mr Y’s diabetic needs and did not provide him with 1:1 medical support as detailed in his Education Health and Care Plan. Mr Y’s family also says the college did not give Mr Y the 1:2 educational support detailed in his Education Health and Care Plan.
Mr Y’s family said following the Council’s decision to end Mr Y’s educational package in February 2023 it stopped providing this educational package immediately.
Mr Y’s family also complained the Council failed to provide the SALT provision detailed in Mr Y’s Education Health and Care Plan.
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 complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended) 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 law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6) 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.
What I have and have not investigated I have investigated Mr Y’s family’s complaints about the Council’s failure to provide the full provision detailed in Mr Y’s Education Health and Care Plan from April 2022 until 3 September 2023. This includes complaints about Mr Y’s educational package, the SALT provision and work placements.
I have not investigated Mr Y’s family’s complaints about the amount of educational provision detailed in the April 2022 Education Health and Care Plan. This is because the content of an Education Health and Care Plan is appealable to the SEND Tribunal. If Mr Y’s family was dissatisfied with the wording of the provision detailed in Mr Y’s Education Health and Care Plan she could have appealed this to the SEND Tribunal.
The Ombudsman can only enforce provision based on an the ordinary interpretation of how it is worded in an Education Health and Care Plan. Where wording is vague it is not for us to speculate about what may have been intended. The remedy for this is to appeal to the Tribunal to re-write the Plan and properly specify and quantify provision.
I have also not investigated the Council’s decision to cease the Education Health and Care Plan on 3 July 2022. This is because the decision to cease an Education Health and Care Plan is also appealable to the SEND Tribunal. We cannot displace the role of the tribunal.
How I considered this complaint
I have considered all the information Mr Y’s family provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
Both Mr Y’s family and the Council had opportunity to comment on my draft decision before I made my final decision.
What I found
EHC Plans 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.
Once the Council completes the EHC Plan it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.
The Ombudsman can look at any delay in the assessment and creation of an EHC Plan as well as any failure by the Council to deliver the provision within an EHC Plan.
Reviewing EHC Plans 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.
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) 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.
Where the 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). Case law sets out this should happen within four weeks of the date of the review meeting.
If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council 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 is concluded.
A council should generally provide any provision detailed in a child’s EHC Plan up until the end of the academic year following its decision to cease an EHC Plan. This is to enable a young person to complete their programme of study. (Section 9.207) Special Educational Needs and Disability code of practice.
A council must also keep all provision detailed in a child’s EHC Plan in place up until a person’s appeal right expires, or until the tribunal decision if a person appeals (Section 9.209) Special Educational Needs and Disability code of practice.
What happened On 3 March 2022, the Council completed an annual review of Mr Y’s EHC Plan. The Council issued a notification to amend letter on 11 April 2022 before issuing the Final EHC Plan on 22 April 2022. This Final EHC Plan confirmed Y had a private tutor who provided education for Y alongside attendance at a college.
The Final EHC Plan issued on 22 April 2022 set out a transition plan for Mr Y from his current college to a different college for September 2022. The EHC Plan also included many provisions to be provided by Mr Y’s college summarised below: Classroom teachers to embed English, Maths and ICT into Mr Y’s teaching programme.
Classroom teachers to tailor communication for Mr Y’s needs including breaking down questions and providing a visual timetable.
Access to shared 1:2 support throughout the college day.
Weekly opportunities to meet with a named person within the college.
Work related learning to be embedded in education programme.
The college to explore opportunities of a work experience placement within the college or outside the college.
College to provide 1:1 support for Mr Y’s medical needs.
A social skills programme to be embedded within Mr Y’s study programme following advice from a Speech and Language Therapist.
3 x 20 minute sessions of functional communication needs.
College staff to receive training about how to best work with people with Mr Y’s disability and needs.
Mr Y’s EHC Plan also included provisions within Section F of his EHC Plan which were not specified to be provided by his college: 1 hour of English and 1 hour of Maths dedicated teaching, without specification about who would provide this.
18 hours of Speech and Language Therapy input across the academic year by a Speech and Language Therapist.
An annual Speech and Language Therapist review.
On 4 August 2022, the Council amended Mr Y’s EHC Plan to change the name of the college in Section I. The provisions in Section F remained overall consistent with that of the April 2022 EHC Plan.
On 6 February 2023, Mr Y’s school held an annual review for his Education and Health Care Plan because of Mr Y’s decision to leave his course at the college. At this meeting, the school recorded Mr Y as saying he “does not want to attend education anymore”.
Mr Y stopped attending the college on 7 February 2023 but continued to receive tutoring from his private tutor.
On 3 May 2023, Mr Y’s family complained to the Council about its decision to cease Mr Y’s EHC Plan.
On 3 July 2023, the Council sent letters to Mr Y’s family and Mr Y confirming it had decided to cease Mr Y’s EHC Plan. Both letters contained details about the SEND Tribunal. The Council also sent these letters in an email to Miss X.
The Council issued its Stage 1 complaint response on 3 August 2023. The Council said it decided to cease to maintain Mr Y’s EHC Plan following his decision to leave his course at the college. The Council said the provisions detailed in Mr Y’s EHC Plan were designed to be delivered in college. The Council said since Mr Y was no longer attending college, it was not required to provide any of the provision detailed in the EHC Plan when Mr Y decided to leave.
On 7 August 2023, Mr Y’s family sought escalation of her complaint to Stage 2 of the Council’s complaints process. Mr Y’s family said Mr Y decided to leave the college as he was not receiving suitable support but continued to receive tutoring which continued his education.
The Council issued its Stage 2 complaint response on 4 September 2023. The Council upheld its decision from the Stage 1 complaint response. The Council said it had delayed issuing the cease letter for the EHC Plan so it could make a robust decision about ending the plan.
Analysis EHC Plan reviews The Council decided to maintain Mr Y’s EHC Plan on 11 April 2022. This prompted the Council issuing the amended Final EHC Plan on 22 April 2022.
The Council had 12 months from its last decision to amend, cease or maintain an EHC Plan to complete the next annual review and issue its decision. This meant the Council had until 11 April 2023 to complete Mr Y’s EHC Plan annual review meeting and tell Mr Y’s family and Mr Y about the outcome of this annual review meeting.
The Council held Mr Y’s annual review meeting in good time, on 6 February 2023, to decide how to proceed with Mr Y’s EHC Plan. However, the Council did not tell Mr Y’s family or Mr Y about its decision to cease Mr Y’s EHC Plan until 3 July 2023. The Council communicated its decision to cease Mr Y’s EHC Plan 3 months outside the statutory timescales. This was fault.
This fault would have caused Mr Y uncertainty about the outcome of the annual review and what, if any, provision he would be entitled to. The Council should apologise to Mr X and make a symbolic payment of £100 for the avoidable distress and uncertainty caused.
EHC Plan provision – April 2022 to February 2023 The Council had a duty to ensure Mr Y received all provisions detailed in Section F of his EHC Plan from the date it produced the Final EHC Plan. This means the Council was responsible from 22 April 2022 for Mr Y receiving the provisions detailed in paragraphs 30 and 31 until it ceased the EHC Plan.
The Council has provided evidence it put in place suitable Section F provision for Mr Y at both colleges for his educational support needs and medical support needs detailed in Mr Y’s EHC Plans. This includes all provision other than Y’s SALT provision and work experience.
Since the Council has evidenced this provision was put in place by Mr Y’s college, I do not find fault with the Council for this.
The Council has confirmed it failed to provide Mr Y with any SALT provision from April 2022 until October 2022. This meant Mr Y went six months without this provision. This was fault.
From October 2022 to 30 January 2023 Mr Y received intervention from a Speech and Language Therapist. Since this provision was put in place for this time period I do not find fault.
Mr Y’s EHC Plan said the college should “explore opportunities” of work experienced for Mr Y. There is no duty to provide work experience but, simply, explore these opportunities. Mr Y’s college explored the opportunity of Mr Y starting a supported internship but found that Mr Y did not meet the criteria. The college also considered a different funded programme for work experience and suggested this for discussion at the 2023 annual review.
The college explored opportunities for Mr Y but could not secure any work experienced for Mr Y. This was not fault as the provision was provided as worded in the EHC Plan.
EHC Plan Cessation As explained in paragraph 16, I have not investigated the Council’s decision to cease Mr Y’s EHC Plan. The Council was entitled to make a decision to cease Mr Y’s EHC Plan and this decision was appealable to the SEND Tribunal.
However, the timing of ceasing an EHC Plan is important to determine the time period the Council should provide the provision detailed within the EHC Plan. As explained in paragraphs 27 and 28, a council should continue to provide the provision detailed in a young person’s EHC Plan after the decision to cease the EHC Plan.
The Council did not decide to cease Mr Y’s EHC Plan until 3 July 2023. This meant the Council needed to continue to provide Mr Y’s provision detailed in his EHC Plan until either the end of the academic year or two months after the decision to cease, whichever is later. In this instance, the end of the appeal rights, 3 September 2023, is the later date. This is the date the Council should have continued to provide the provision detailed in Mr Y’s EHC Plan until.
EHC Plan provision – February 2023 to September 2023 The Council has advised once Mr Y stopped attending college it was no longer responsible for providing the provision in Mr Y’s EHC Plan. The Council is correct to a certain extent. A council should make sure it puts in place any provisions in an EHC Plan but should not force this on a person if they decide they do not wish to receive it. Mr Y decided to stop attending college on 7 February 2023. As such, the Council could not provide Mr Y with any Section F provision which was specifically in place through the college or classroom staff. I do not find fault with the Council stopping this provision from 7 February 2023.
It is of note the Council started to explore work experience opportunities for Mr Y from March 2023. The Council did not have a duty to provide this provision as it worded that the college should explore this and, therefore, this provision could also have stopped from 7 February 2023. But, the Council has acted in good faith of the EHC Plan to pursue this.
Not all Mr Y’s educational provision was specifically worded to be provided by the college or classroom staff. In paragraph 31 I have highlighted three key provisions that were not specific to the college or classroom setting which should have continued after 7 February 2023. This was provision of dedicated teaching of 1 hour of English and 1 hour of Maths, input from a Speech and Language Therapist and the annual Speech and Language Therapist review. The Council failed to ensure the dedicated teaching provision and ongoing Speech and Language Therapy stayed in place despite it not making a formal decision to cease Mr Y’s EHC Plan until 3 July 2023. This was fault.
The Council had already arranged for an annual review of Mr Y’s Speech and Language therapy completed on 30 January 2023 for the annual review. The Council fulfilled this provision.
Mr Y’s family has advised a private tutor was privately funded for Mr Y for him to continue to receive tutoring after 7 February 2023. This loss is quantifiable, and the Council should cover this cost from 7 February 2023 to 3 September 2023.
The Council should also provide Mr Y with a payment equivalent to his lost provision for the Speech and Language Therapy. Mr Y decided to leave the college halfway through the academic year meaning he would only have received 9 hours of his total 18 hours input across the academic year. The Council should pay Mr Y the equivalent cost of 9 hours of Speech and Language Therapy input to cover the cost of the lost provision from 7 February 2023 to 3 September 2023.
As detailed in paragraph 47, Mr Y also missed Speech and Language Therapy input for six months from April 2022 to October 2022. This is an extra 9 hours of Speech and Language Therapy input that Mr Y missed because of the fault of the Council. The Council also pay Mr Y for this lost provision.
Agreed action
Within one month of the Ombudsman’s Final Decision the Council should: Write to Mr Y’s family to confirm it will pay the cost of Mr Y’s private tutor from 7 February 2023 until 3 September 2023, up to a total of 2 hours provision per week, on receipt of evidence of these costs.
Pay Mr Y the cost of his lost Speech and Language Therapy input totalling 18 hours.
Provide Mr Y with an apology and a payment of £100 for avoidable distress and uncertainty caused by the Council’s three months delay outside the statutory timescales in confirming its decision to cease Mr Y’s Education Health and Care Plan.
The Council should provide us with evidence it has complied with the above actions.
Final decision
There was fault by the Council as the Council has agreed to my recommendations, I have completed my investigation.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman