Summary: Mr Z complains of delay and other fault by the Council in meeting his special educational needs in 2017 and 2018, causing him to lose provision. The Council delayed issuing an EHC Plan in 2017 and failed to deal properly with his mother, Ms X’s complaint. It will apologise to Mr Z and Ms X and pay them £700 for missed SEN provision and their time and trouble in pursuing the matter.

The complaint

1. The complainant, whom I shall call Mr Z, is represented by his mother, whom I shall call Ms X.
2. Ms X complains on Mr Z’s behalf that the Council:
1. Failed to issue an Education Health and Care (EHC) Plan for Mr Z listing provision as directed by a SEND Tribunal on 14 May 2018, and to make provision that should have been in place on 18 June 2018;
2. Failed to direct a college when it refused to accept Mr Z for September 2018, then later failed to challenge it to make the provision after the college accepted him;
3. Delayed for six weeks to agree a personal budget after the placement at the college failed on 5 October 2018;
4. Took from November 2016 to October 2017 to complete the transfer from a Statement of Special Educational Needs (SEN) to an EHC Plan;
5. Failed to make SEN provision for Mr Z since September 2017; and
6. Failed to deal with Ms X’s complaint.
3. She says Mr Z lost provision and she had expense and time and trouble in pursuing the Council.

Back to top

The Ombudsman’s role and powers

4. 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)
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. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
7. 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)
8. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as further education colleges. (Local Government Act 1974, sections 25 and 34A, as amended)
9. 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.

Back to top

How I considered this complaint

10. I read Mr Z’s complaint and spoke to Ms X on the telephone. I considered the Special Educational Needs and Disability Code of Practice 2015 (the Code). I made written enquiries of the Council. I considered the documents the Council sent me in response. I asked Ms X and the Council for further information. I considered the Ombudsman’s Guidance on Remedies.
11. The complaint is late in part. However, I exercised the discretion available to the Ombudsman to consider historic matters from 2016-17. While I would normally expect Ms X to have complained earlier, I take note that she is a single parent without family support in caring for Mr Z. I therefore find she would have found it more difficult than most people to complain in good time.

Back to top

What I found

12. For each point of complaint, I will lay out what should have happened, then what took place and whether there was any fault by the Council.

Complaint a): Issuing an EHC Plan listing provision as directed by a SEND Tribunal and making the provision in June 2018

13. Councils with education responsibilities may a receive a direction from a SEND Tribunal to issue an EHC Plan specifying provision. They have five weeks to issue the EHC Plan and make the provision.
14. In this case the SEND Tribunal sat on 14 May 2018. However, email evidence shows the Council received the order on 22 May 2018. The deadline for issue was therefore 26 June 2018. The EHC Plan the Council issued was dated 25 June 2018. Therefore, I find the Council issued the EHC Plan in time.
15. The EHC Plan named further education provision for September 2018. Therefore, the provision had to be in place for the start of the new college term in September 2018. I do not find the Council should have made the provision in June 2018.

Complaint b): Directing a college when it refused to admit Mr Z for September 2018 and challenging it to make the provision after the college accepted him

16. Where a provider refuses to admit a young person with an EHC Plan naming it, a council must consider whether to direct the provider to admit. But councils cannot force providers to admit. Only the Secretary of State for Education may do that. Where a council becomes aware a provider is not making the provision in an EHC Plan, it must challenge the provider and, if necessary, offer to name another provider able to make the provision.
17. The correspondence between the Council and the college does not show the latter refused to admit Mr Z. So, there was no need for the Council to direct it.
18. The Council met the college that day after it issued the EHC Plan in June 2018. About two weeks later, on 11 July 2018, the correspondence shows the college emailed the Council. The college said the EHC Plan “far exceeds the available provision in a general FE College, with reasonable adjustments made”. Further emails show there was a meeting due at the college on 18 July 2018. They also show Ms X was understandably anxious about Mr Z’s placement, and the Council told her on 17 July 2018 it had asked the college what parts of the provision it could not make. The Council also asked Ms X to confirm if she still wanted the college named. This is what I would have expected it to do.
19. The correspondence shows the college told the Council on 13 August 2018 which parts of the provision it could not make. These involved speech and language therapy (SALT) and social interaction. I note the correspondence shows the Council twice chased the college and was told a college officer was on leave for two weeks. The Council met the college on 29 August 2018. The issue according to the correspondence that followed was whether Mr Z would have to sit examinations in college at the end of his course, which was something he found very stressful. Ultimately, Ms X declined to sign the agreement to study as the college refused to back down about the examinations. She withdrew Mr Z from the college on 9 October 2018.
20. The evidence from the correspondence is that the Council tried to make the placement work and chased the college repeatedly. However, it could not force the college to make the provision specified. It was not the Council’s decision that Mr Z would have to sit examinations and it could not force the college to waive this requirement. I do not find the Council at fault.

Complaint c): The personal budget

21. There is no timescale for setting up a personal budget, but the time taken should be reasonable.
22. After 9 October 2018, the Council had to start from scratch. It was in the same position in practical terms as it would have been after a SEND Tribunal. The Council agreed a personal budget on 12 November 2018, taking effect on 26 November 2018 for an annual sum of about £39,000. 12 November 2018 was just under five weeks after 9 October 2018. I do not find the time taken amounted to delay.

Complaint d): Transferring Mr Z’s Statement of SEN to an EHC Plan

23. After 2014, all children and young people with Statements of SEN had them transferred to EHC Plans. Councils had 18 weeks to complete this process for each young person once they started it. This was not intended to be a rubber-stamping exercise, but to involve possible changes of provision that could be challenged at the SEND Tribunal. The Council wrote to Ms X on 30 November 2016 to say it was starting the transfer process. It should have issued a final EHC Plan for Mr Z by 29 March 2017, which was 18 weeks after 30 November 2016.
24. The Council issued a final EHC Plan against which Ms X could appeal on 13 October 2017. This was six months, or about one and a half school or college terms late. I find the Council at fault.

Complaint e): Making SEN provision for Mr Z since September 2017

25. As previously stated, the Council has a duty to make the provision specified in an EHC Plan.
26. I have already considered the period from 14 May to 26 November 2018 in previous points of complaint and have not found the Council at fault during that time. After 26 November 2018, Ms X was able to make her own arrangements via direct payments. I do not find the Council at fault after that.
27. I have seen no correspondence from Ms X to the Council between 1 September 2017 to 14 May 2018 about missed provision. Without evidence of missing provision, I do not find the Council at fault after 1 November 2017.
28. The Council has confirmed it increased the social care provision in Mr Z’s EHC Plan from six to ten hours per week via a working document from 1 November 2017. So, I do not find it at fault after that.
29. However, because of fault found in Complaint d), I find Mr Z missed four hours of social care per week between 17 April and 1 November 2017. I will explain the reason for this and the timescale in the section below about injustice.

Complaint f): Complaint handling

30. The Council accepts it failed to deal with Ms X’s complaint properly. It has apologised for this. I will deal with the effect this fault had in the section below about injustice.

Injustice

31. The Council taking too long to convert Mr Z’s Statement to an EHC Plan meant Mr Z did not receive all the provision it contained when he should have done.
32. The Council has confirmed it increased his social care provision on 1 November 2017 from six to ten hours per week. This was 19 days after it issued the final EHC Plan on 13 October 2017.
33. If it had issued the final EHC Plan on time on 29 March 2017 and had taken the same time to increase the social care provision, this would have happened on 17 April 2017. I therefore find Mr Z lost out on four hours of social care provision per week between 17 April 2017 and the end of the college term in July 2017, and again between the beginning of the college term in September 2017 and 1 November 2017. This is a period of about one and a half college terms. Although the loss was not Mr Z’s whole provision, it was still significant.
34. I also note Ms X had more than usual time and trouble chasing the Council. I do not include in this the period between June and September 2018 when the Council was chasing the college. While Ms X was still emailing during this time, this was not the result of failure by the Council. However, between March and October 2017, she had to repeatedly chase the Council as it fell further behind the timescale for completing the EHC conversion process. That she asked for changes to the EHC Plan to make it more specific does not mean she contributed in any way to the injustice she suffered. And later, Ms X had to chase the Council to deal with her complaint after it failed to do so properly.
35. I have considered the Ombudsman’s Guidance on remedies. I have borne in mind that Mr Z’s loss of SEN provision was partial considering the amounts we usually recommend. I have also noted the range of payments we recommend where a person has had unnecessary time and trouble because of fault. I note this involved two periods for Ms X.

Agreed action

36. I welcome the Council’s apology for its failure to deal with Ms X’s complaint properly.
37. However, the Council will also take the following additional actions within one month of the date of the final decision:

• Apologise to Ms X and Mr Z for the SEN provision Mr Z lost between April and November 2017 as a result of the Council taking too long to complete the EHC transfer process; and
• Pay Ms X £700 on her behalf and that of Mr Z. This will comprise £250 for her time and trouble in chasing it, and £450 for the missing four hours of social care provision to meet Mr Z’s SEN over one and a half college terms between April and November 2017.

Back to top

Final decision

38. I have upheld complaints d) and f). I have closed the case as the Council has agreed to take the recommended action.

Back to top

Investigator's decision on behalf of the Ombudsman