Summary: Ms X complains about the way the Council managed her son’s Education Health and Care (EHC) Plan and transition to adulthood. The Council made decisions too late, outside the EHC process, and without involving the family or other services. This was fault and caused significant distress and inconvenience to the whole family. Recommendations for an apology, financial payment and service improvements are made. The complaint is upheld.

The complaint

1. The complainant, whom I shall refer to as Ms X, complains on behalf of her son, Mr Y. Ms X says that after a review was carried out of Mr Y’s Education and Health Care (EHC) Plan, the Council cut his provision by half and its financial support for his education expenses was withdrawn. The Council then delayed issuing a final EHC Plan delaying Mr Y’s appeal rights. Ms X says this has negatively impacted Mr Y’s education and has caused distress to the family.

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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. We cannot investigate complaints about what happens in education settings. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
4. A young person 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 setting. Only the tribunal can do this.

5. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended) Where there is a right of appeal to the Tribunal about a decision, the Court has decided the decision, and the consequences of it, are matters which are ‘inextricably linked’. (R (on the application of ER) v the Commissioner for Local Administration, 2014) The lack of an available financial remedy from the Tribunal does not mean the Ombudsman is empowered to investigate. The Court has noted that while this creates a situation where loss has been suffered and no remedy for the loss will be provided, Parliament must have contemplated that such situations would arise when it set out the Ombudsman’s powers. (R v the Commissioner for Local Administration ex parte PH, 1999)
6. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
7. 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

8. I considered:
• Ms X’s complaint and the information she provided.
• documents supplied by the Council including from the special educational needs and social care departments.
9. I have considered relevant law and guidance including:
• The Children and Families Act 2014 and associated Regulations and Code of Practice.
• The Care Act 2014 and statutory guidance.
• NICE Guidance transition from children’s to adult services.
• The Ombudsman Guidance on Remedies.
10. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
11. 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

Relevant law and guidance

12. The Special Educational Needs and Disability Code of Practice (‘The Code’) sets out how local authorities and health services should work with young people and their families to prepare for adulthood. The Code says Councils must place the young person and their family at the centre of their planning and anticipate the needs of young people. The Code says Councils must:
• Support and involve the young person and their parent in decisions and have regard to their views, wishes and feelings including their aspirations for adult life.
• Make joint commissioning arrangements with other services about the education, health and care provision of young people to secure positive outcomes for young people with special educational needs.
• Review Education, Health and Care (EHC) plans, embed transition planning in the plans and have regard to whether the outcomes in them have been achieved.
• Ensure that for young people moving between post 16 institutions that the review process is completed by 31 March where the young person is expected to transfer to a new institution in the new academic year. Where transfers are made at other times the Council must review and amend the EHC plan at least five months before the transfer takes place.
• Ensure the transition to adult care and support is well planned and integrated with the annual review of the EHC plan.
• Put in place effective exit planning when an EHC plan is due to come to an end.
13. The Code says that students with an EHC plan up to age 25 should follow a coherent study programme and Councils should consider the need to provide a full package of provision and support across education, health and care that covers five days a week, where that is appropriate to meet the young person’s needs.
14. The Code says ‘under no circumstances should young people find themselves suddenly without support and care as they make the transition to adult services’.
15. NICE guidance on transition says young people and their carers must be involved in planning the transition from children’s to adult services. It says an annual meeting should be held to review transition planning, or more frequently if needed and that a named worker should be identified to co-ordinate transition.

Chronology - education

16. Mr Y is a young adult, who has profound learning difficulties. The Council maintains an EHC Plan for Mr Y.
17. In the education year 2018 to 2019 Mr Y received a bespoke package of:
• education for three days per week
• two days per week support funded 50:50 by social care and health.
18. On 3 June 2019, an annual review of Mr Y’s EHC Plan took place at the college which was organising the bespoke education package for him, although the actual provision was from an external provider. The recommendation from the review was that Mr Y would ‘complete another bespoke programme with…College via [External Provider] in September 2019’.
19. On 27 August 2019, the College submit a high needs funding request to the Council for a package of education across two days per week.
20. The Council then decided in early September 2019 to reduce Mr Y’s education package:
• from three to two days,
• from six to five hours per day
• from 36 to 30 weeks per year.
21. Ms X was also told financial support for Mr Y’s education expenses would be withdrawn.
22. The College told the Council it was looking to deliver the programme for one more year only.
23. Ms X immediately complained to the Council about the changes to the financial package of support, and that it had not finalised the EHC plan. Until it did so Ms X had no right of appeal against the changes. The Council told Ms X that it had not received a copy of the paperwork from the June 2019 review meeting, but that it would be contacting Mr Y’s college so a final plan could be completed.
24. Ms X complained to stage two of the Council’s complaint procedure. In December 2019, the Council responded apologising that a final EHC Plan had still not been issued and accepting there had been a failure in its processes. The Council offered payments totalling £400 to remedy the delay to the EHC Plan and the time and trouble Ms X had been put to pursuing the complaint. The Council also agreed to reinstate financial support for education expenses. Ms X subsequently complained to the Ombudsman.
25. In February 2020, the Council issued Mr Y’s final EHC Plan and Ms X appealed the contents of the Plan to the SEND Tribunal. The Ombudsman closed the complaint pending the outcome of the appeal.
26. Mr Y’s next annual review meeting was held in March 2020 and the Council’s education panel considered in July whether to continue to fund education from September 2020.
27. Mr Y’s tribunal was due to be heard in October 2020, but it was adjourned as the college indicated it no longer wanted to be involved in co-ordinating the education package with the external provider.
28. In February 2021, the SEND Tribunal ordered the Council fund 18 hours per week education for Mr Y across three days for 36 weeks per year. Mr X was also to receive social care support to make the provision up to five days per week.

Key facts – social care

29. Social care reassessed Mr Y in November / December 2019. The assessment refers to Mr Y’s education package having been abruptly reduced in September 2019 which meant that social care did not have time to reassess his needs before the change came into effect. The outcome of the reassessment was to increase social care support from two to three days per week to make up the shortfall in education provision. Care provision was funded jointly with health. As I understand it Ms X used social care direct payments to allow Mr Y to continue to attend the provider which was delivering education support for an additional day.
30. The social care assessment indicates additional direct payments were backdated to early October 2019, meaning that there was a one month gap when Mr Y was only funded (between social care and education) for four days per week.

Analysis

Fault

31. In June 2019 Mr Y’s college held his annual review meeting. It was intended that Mr Y’s education package would continue with the same college and external provider involved. In August the college requested funding for a two not three day package.
32. It is clear Ms X and Mr Y knew about an intention to reduce the education package from three to two days only a few days before the new term was due to begin.
33. The Ombudsman cannot:
• Investigate the actions of the education setting (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
• Comment on how much education Mr Y should have received from September 2019 as this is a matter which Ms X appealed to the SEND Tribunal. (Local Government Act 1974, section 26(6)(a), as amended)

Both these matters are outside the jurisdiction of the Ombudsman.

34. While Mr Y was not due to transfer to a new setting, the guidance is clear that any changes to EHC plans which result in education support being removed and a young person needing to access adult social care should be carefully planned in advance. The Council should have involved Ms X and Mr Y and taken into account their views, wishes and feelings. Ms X and Mr Y should never have found themselves in the situation where support was abruptly removed. This was fault.
35. It is also clear from the social care assessment that if the education decision had been made earlier, social care would have carried out a reassessment and ensured that replacement care provision was in place before the change to education support came into effect. This would have avoided the period when Mr Y had only a four day package in place.
36. It is unclear why the Council did not receive the June 2019 paperwork from the annual review meeting, but this does not alter that the Council was responsible for ensuring the EHC plan was reviewed annually and that any amendments were made in good time for the new academic year.
37. The Council made the decision to change the level of support before it had received the June 2019 review paperwork and without formally amending the EHC plan. This was fault. While I note the EHC plan was vaguely worded and did not specify that Mr Y should receive a set number of hours of education, the EHC review process is the legal route through which amendments to plans should be made. The Government’s intention in the Children and Families Act was that families would have the opportunity, at least annually, to challenge the contents of the EHC plan via an appeal if they disagreed with it.
38. The Council changed the provision in September 2019 but did not give Ms X and Mr Y a right of appeal against this decision until February 2020. This is fault. The Council should have made any decision to reduce provision in time that Ms X could appeal to the Tribunal if she disagreed. The Code indicates a minimum period of five months should be allowed to challenge changes to post-16 provision. This means the Council should have completed the review process by March 2019. Completing the review process includes the issue of any amended plan. If the Council intends to change provision for the next academic year it should ensure review meetings are brought forward to allow time to amend the Plan and for families to exercise appeal rights before the new term starts.
39. In 2020 the Council repeated the same fault. While the review meeting was held in March, the decision about how much education provision to fund from September 2020 was not made until July 2020. This however did not cause injustice as the previous appeal had not yet been heard.

Injustice

40. When someone has suffered because of fault, we try to put them back in the position they would have been if that error had not happened. When we recommend a payment, it is often a modest, symbolic amount.
41. The Ombudsman cannot comment on the Council’s decision to reduce education support, this was a matter for the SEND Tribunal to decide. The consequence of this decision was that Mr Y missed out on education funding from September 2019 until Easter 2021 when the Tribunal reinstated three days of education support. Mr Y also received fewer hours of support per day and fewer weeks of support per year, but this was again a matter which the Tribunal has considered.
42. My understanding is that Ms X privately funded for Mr Y to continue to attend the provider on a third day and from October 2019 this cost was covered by increased social care funding.
43. If the fault had not happened, then Ms X and Mr Y would have known about the reduction in education well in advance. They would have been able to submit an appeal before the reduction came into effect, but it is speculative (given the time taken to resolve the recent appeal) whether this would have happened in time for September 2019. I can say that without the fault social care would, on the balance of probabilities, have reassessed and provided an additional day of support in a planned way.
44. The main injustice is therefore the distress and disruption that arose from the abrupt change in provision and the uncertainty and loss of support until social care provision was in place in November / December 2019. Ms X says this placed immediate additional demands on parents not only to provide additional care but also unnecessary time and trouble trying to resolve matters with the Council on an emergency basis and the need to pursue a complaint. It also caused distress and uncertainty to Mr Y.
45. The failure to involve the family in decisions about Mr Y is in itself an injustice and will have made the family feel that they had no say or control.
46. Further, the Ombudsman considers that denial of an appeal right or access to a legal process is an injustice.
47. I have considered our remedies guidance but am not persuaded that the payment of £200 offered by the Council for the delay in completing the 2019 annual review and £200 time and trouble payment for the need to bring a complaint is sufficient for the level of distress and disruption caused.

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Agreed action

48. Within four weeks of my final decision the Council will:
• Apologise to Ms X and Mr Y for the faults I have identified.
• Pay Mr Y £1000 for the distress and inconvenience caused by its actions.
• Pay Ms X £500 for the distress and inconvenience caused by its actions.
• Pay Ms X £200 for the time and trouble involved in pursuing the complaint.
• Pay Ms X £250 for the additional care and support she provided until additional social care provision was in place.
• Ensure there is one named professional who will co-ordinate Mr Y’s transition to adulthood going forward.
49. Within eight weeks of my final decision the Council will review its EHC processes to ensure:
• Decisions to amend special educational provision are only made through the amendment of EHC plans and not outside of the legal process.
• Decisions are made in a person-centred way and in accordance with guidance on preparing for adulthood.
• Decisions to change provision for a forthcoming academic year are made early enough that families can exercise their legal right to challenge the decision at the SEND Tribunal before the new academic year begins.
• All young people have transition planning in place from Year 9 onwards and where appropriate a named person will co-ordinate the transition with the family in accordance with NICE guidance.

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Final decision

50. I have completed my investigation. There was fault by the Council in the way it reduced Mr Y’s education provision without warning and without regard to the legal processes and guidance. This was fault and caused unnecessary distress, disruption and time and trouble to the whole family. I am satisfied the recommended actions set out above are a satisfactory resolution to the complaint. The complaint is upheld.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman