Summary: Ms B complained the Council failed to follow the statutory process for her son’s education, health and care plan, reduced the provision without carrying out a review, wrongly stopped travel training and treated provision she had arranged as part of the Council’s provision. The Council’s communications about the education, health and care plan were not clear and created confusion, and the Council accepts it stopped travel training prematurely, which means Ms B’s son potentially missed out on some provision. An apology, payment to Ms B, agreement to discuss whether further travel training would be useful and the changes the Council has introduced to the annual review process is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Ms B, complained about the way the Council dealt with her son’s education, health and care plan (EHCP). Ms B complained the Council:
• failed to follow the statutory process when trying to end her son’s education, health and care plan;
• reduced the provision without carrying out a review or providing any explanation;
• wrongly stopped travel training in January 2019; and
• treated provision she had arranged at the food bank and autism hub as part of the Council’s provision.

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The Ombudsman’s role and powers

2. 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)
3. 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)

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How I considered this complaint

4. As part of the investigation, I have:
• considered the complaint and Ms B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
5. Ms B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
6. 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.

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What I found

Background

7. Ms B’s son has high functioning autism. He has an EHCP. Part of the Council’s provision to Ms B’s son was travel training. That included travel training for his attendance at the autism hub. However, Ms B’s son stopped attending the autism hub in January 2019, which reduced his provision. Officers met with Ms B and her son to discuss increasing the provision but at that point Ms B’s son did not want to engage with the options offered and Ms B said the provision in place at that point was enough, pending the future increase.
8. There is a dispute about the amount of hours Ms B’s son received between April 2019 and July 2019. The college has provided a timetable showing 12 hours available per week which included some travel training from May 2019. In contrast Ms B says her son only received six hours.
9. Following a review in February 2019 the Council issued a draft EHCP in May 2019. The Council issued a final plan in June 2019. The Council told Ms B provision for her son would pass to adult social care when travel training ended in July 2019. The Council told Ms B that meant it would cease the EHCP at the end of the academic year.
10. Ms B put in a complaint. In response the Council agreed to continue the EHCP until October 2019.
11. The Council carried out a further review of the EHCP in November 2019. The Council decided to continue the plan. The Council issued a final plan in February 2020.
12. The Council accepts its response about the duty to cease the EHCP was wrong and lacked explanation. The Council has apologised. The Council has identified the following changes to the annual review template as part of its learning from this complaint:
• to facilitate an option for ceasing the plan at the end of the academic year;
• amendment of the moving on/transition section to expand the text to include transition to other activities such as employment or social care;
• the Council is to consider incorporating into the moving on section reference to the relevant guidance and legislation. The Council says this needs careful consideration as it wants to keep the person centred approach by not incorporating too much legal reference. The Council accepts it needs addressing in some form though.
13. The Council says Ms B son's education, health and care plan will now continue until at least November 2020. At that point the Council will review the plan and decide whether to cease it. The Council says that will depend on whether the outcomes identified in sections F and H have been achieved and whether Ms B's son wants to continue with education.

The Special Educational Needs and Disability Regulations 2014 (the Regulations)

14. Section 30 of the Regulations say when a young person aged 18 or over ceases to attend the educational institution specified in his or her EHCP, so is no longer receiving education or training, a local authority may not cease to maintain that EHCP, unless it has reviewed it and established the young person does not wish to return to education or training or determined that returning to education or training would not be appropriate for the young person.

Analysis

15. Ms B says the Council failed to follow the statutory process when trying to cease her son’s EHCP. As I set out in paragraph 14, the Regulations 2014 say the Council cannot cease to maintain the plan until it has reviewed it and established the young person does not want to return to education or training or it is inappropriate for him or her to do so. In this case I am satisfied the Council carried out a review in February 2019. However, the Council accepts it did not make clear to Ms B it was the Council’s intent to cease the plan. Having considered the notes from the review I agree with the Council’s conclusion here. Although the notes refer to the support gradually transitioning to adult social care over the next few months it does not make clear this means the Council will cease the education, health and care plan. Nor would Ms B have been aware of that from the summary of the decision given it is recorded the decision was to maintain the plan. Failure to make clear the Council’s intent in relation to the plan is fault.
16. I welcome the Council’s recognition of what failed in this case and its decision to amend the template for EHCP’s to prevent similar problems in the future. In this case though it is now clear the Council’s decision to cease the plan was premature given it has since decided to continue with the plan until at least late 2020. That again is fault. I consider Ms B’s injustice is limited to her frustration and the time and trouble she had to go to seeking clarification about that point though given the Council reversed its decision to cease the plan.
17. Ms B says the Council failed to provide any rationalisation for changing the amount of special educational provision for her son. For the hours of educational provision I consider part of the problem here is the EHCP did not specify the number of hours to be provided. Rather, the EHCP said Ms B’s son would receive a bespoke, person centred package with the support of a dedicated learning coach/mentor. It is clear though there was a fall in hours provided to Ms B’s son in January 2019. The evidence I have seen satisfies me this was due to Ms B’s son stopping attending the autism hub. The documentary evidence though shows the college discussed with Ms B’s son alternative options to make up those hours. That included the potential for him to attend some educational provision or for him to add a further day volunteering at the foodbank. The documentary evidence I have seen satisfies me the Council did not put those options in place because Ms B’s son did not want to pursue them. The documentary evidence also shows Ms B said during a meeting in February 2019 her son had enough hours at that point. As I am satisfied the Council was trying to find alternative ways to make up the time when Ms B son stopped attending the autism hub and Ms B had confirmed her son had enough hours, pending a future increase, I do not criticise the Council for the drop in hours between January and May 2019.
18. Ms B says her son only received four hours per week provision between May and July 2019. However, the evidence I have seen satisfies me the college had timetabled 12 hours as available to Ms B’s son during that period. That is in line with the number of hours Ms B’s son received before January 2019. The Council suggests the difference in provision may have been due to Miss B’s son not attending or not being ready for the various provision arranged. I cannot reach a safe conclusion about that. However, as the timetable shows 12 hours were available to Ms B’s son and other options were discussed with him, which he did not want to pursue, I have no grounds to criticise the Council.
19. Ms B says the Council was wrong to stop travel training for her son in January 2019 when he still needed it. Ms B says it made no sense for the Council to provide her son with IT support to plan journeys if he could not then put that learning into practice by having further travel with travel training. The Council accepts it stopped Ms B’s son’s travel training prematurely and has apologised. That is fault. I am satisfied though there was some travel training and travel planning provision in place from May 2019, although not the 4 hours set out in Ms B’s son’s EHCP. It is clear though Ms B’s son did not receive travel training between January 2019 and May 2019. I recognise part of the reason for travel training being affected was the fact Ms B’s son was no longer attending the autism hub. Nevertheless, failure to put in place the hours set out in Ms B son’s education, health and care plan is fault. That meant Ms B’s son missed out on travel training provision for part of the period. I recommended the Council discuss with Ms B the option of reinstating some travel training to make up for that which her son missed, should she consider he still needs some travel training. The Council has agreed to my recommendation.
20. Ms B says the Council treated provision at the food bank and autism hub as part of the Council’s provision when she arranged that. Having considered the documentary evidence I agree some of the documentation is not clear Ms B arranged those provisions. I am satisfied though the Council included the provision in Ms B’s son’s EHCP provision at her request given the difficulties the Council had getting Ms B’s son to engage. The Council also amended his bespoke programme to provide him with support at those provisions. In those circumstances I consider the Council’s apology for failing to make clear who had arranged the provision satisfactory remedy. I do not consider Ms B’s son missed out on any provision as a result.

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Agreed action

21. Within one month of my decision the Council should:
• apologise to Ms B for the faults identified in this statement;
• meet with Ms B to discuss whether further travel training would be beneficial for her son; and
• pay Ms B £150 to reflect the time and trouble she has had to go to pursuing the complaint.
22. The Council has already changed its annual review template to avoid similar issues occurring in future. Should the Council decide not to include in the template reference to the legal sections of the regulations and guidance about ceasing an EHCP for those who are over 18 the Council should produce some guidance for officers instead.

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Final decision

23. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman