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Suffolk County Council (20 012 908)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 10 Oct 2021

The Ombudsman's final decision:

Summary: The Council was at fault when it failed to issue an updated Education, Health and Care plan for Mr Y after a Tribunal hearing, and when it failed to secure the provision set out in that plan. This led to Mr Y missing the support he needed and caused his mother, Miss X, distress and frustration. The Council also wrongly transferred Mr Y’s Education, Health and Care plan to a neighbouring authority. This meant that Miss X had to pay for legal advice. The Council agreed to take the recommendations set out to remedy the injustice its actions caused to Miss X and Mr Y.

The complaint

  1. Miss X complained the Council failed to properly update Mr Y’s Education, Health and Care Plan (EHC plan) as agreed at the Special Educational Needs and Disability (SEND) Tribunal in November 2020. It then failed to arrange the educational provision set out in Mr Y’s EHC plan and wrongly transferred the responsibility for his EHC plan to a neighbouring local authority after Mr Y moved into an assisted living placement.
  2. Miss X also complained the Council failed to include to include Mr Y’s transition into adulthood plans in his EHC plan and alleged the Council deliberately caused a delay in the SEND Tribunal process.
  3. Miss X says that as a result, Mr Y missed education and therapy provision and Miss X had to pay for legal advice.
  4. Miss X also complained about the Council’s lack of response to her emails and the Council’s failure to keep her updated of progress about securing Mr Y’s provision.
  5. Miss X said the lack of responses and delays meant she has had to chase the Council. This has caused her unnecessary time, trouble, and inconvenience in chasing her complaint.
  6. Miss X would like the Council to comply with the SEND Tribunal’s orders, pay back her legal costs and compensate Mr Y for the education and therapy he lost.

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What I have investigated

  1. I have investigated Miss X’s complaint about how the Council dealt with Mr Y’s EHC plan and secured Special Educational Needs (SEN) provision following the SEND Tribunal hearing in November 2020. There are parts of Miss X’s complaint that I did not investigate, and I explain why at the end of this decision statement.

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The Ombudsman’s role and powers

  1. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
  2. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
  3. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
  4. 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)
  5. 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.
  6. 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

  1. I spoke to Miss X and I reviewed the documents provided by her and the Council.
  2. Miss X and the Council have had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

SEND Tribunal

  1. There are time limits within which the Council must comply with the SEND Tribunal’s orders. These time limits are contained in Regulation 44 of the Special Educational Needs and Disability Regulations 2014.
  2. Where a SEND Tribunal orders the Council to amend the special educational provision set out in the EHC plan, the Council must issue the amended EHC plan within five weeks of the order being made.

Education, Health and Care Plans

  1. A child with special educational needs may have an EHC plan. The plan 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 school. Only the SEND Tribunal can do this.
  2. The Council is responsible for securing the set out special educational provision for the child. This means making sure that arrangements set out 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. These duties are non-delegable, and a council cannot discharge its duty by showing it tried but failed to put the support in place.

What happened

  1. In 2019 Miss X appealed the contents of Mr Y’s final EHC plan, which the Council issued. She said the EHC plan did not consider Mr Y’s mental health needs. At that time, Mr Y was detained in a hospital under the Mental Health Act 1983 and was living in the Council’s area.
  2. In late November 2020 the SEND Tribunal heard Miss X’s case and it issued its final decision. Of relevance to the complaint, under section F of Mr Y’s EHC plan, it said the Council must provide:
    • 570-950 hours of educational provision in a setting other than at school;
    • a minimum of 424 hours of therapy a year, comprised of:
          1. 76 hours per year of Speech and Language Therapy (SaLT);
          2. 310 hours per year of Occupational Therapy (OT);
          3. 38 hours per year of input from an Educational Psychologist (Ed Psych); and
  • a laptop, whether directly or via the educational package provider.
  1. At the end of November 2020, Mr Y moved from the hospital into an assisted living placement in Council B’s area. The Council found this placement for Mr Y who did not have the capacity to make the decision about his move.
  2. The SEND Tribunal order said the Council must issue Mr Y’s updated EHC plan within five weeks from the date of the decision. In December 2020, the Council sent Mr Y’s amended EHC plan to Miss X. Miss X told the Council the amended EHC plan contained errors. For example, the amended EHC plan the Council issued said that Mr Y would get 540 hours of educational provision, which was not in line with the SEND Tribunal’s orders.
  3. Three weeks after receiving the SEND Tribunal’s decision, the Council transferred the responsibility to maintain Mr Y’s EHC plan to Council B.
  4. In early January 2021, Miss X complained to the Council about its failure to properly amend Mr Y’s EHC plan and secure the provision it listed. The Council responded and apologised for the oversight. It said it was no longer responsible for maintaining Mr Y’s EHC plan, as it was now for Council B to amend and secure Mr Y's provision. The Council agreed to correct the errors within the EHC plan and send it to Council B. I have not seen any evidence to suggest this happened. The Council told Miss X that it transferred Mr Y’s Plan to Council B at the end of December 2020 and gave her details of the officer who was Mr Y’s new caseworker.
  5. Miss X was not happy with the Council’s response and asserted it had not followed the timescales or directions set out by the SEND Tribunal. She said Mr Y was without the necessary interventions since November 2020, and she wanted the Council to put them in place as soon as possible. She also said the Council did not address all the points she raised in her stage one complaint.
  6. Around the same time, Council B emailed Miss X and asked her about what provision was in place for Mr Y, as it appeared the Council did not secure any educational provision for him. Council B spoke to Miss X and agreed to amend Mr Y’s EHC plan. It said that it would present Mr Y’s case for a panel decision for funding, because of the level of therapies that he needed.
  7. In early February 2021 the Council confirmed that it received Miss X’s further complaint and it said that it would update her within five days. Four days later it emailed her and said that Council B was now responsible for securing Mr Y’s provision. The Council said that it told Council B which parts of the EHC plan it needed to correct.
  8. The Council said that this was its final position and referred Miss X to the Local Government and Social Care Ombudsman. She came to us in the same month.
  9. Between February 2021 and March 2021 Miss X contacted both the Council and Council B to try and update Mr Y’s EHC plan and secure his SEN provision. The evidence she provided shows that Council B could not get the Council’s written agreement to funding Mr Y’s EHC plan until Miss X chased the Council for the reply in March 2021.
  10. In March Miss X complained to Council B and said that Mr Y had missed 14 weeks of his provision and asked when it would issue his final amended EHC plan.
  11. In the same month Miss X paid £998.40 to a solicitor who sent a Pre-action Protocol to the Council. This refers to a letter that must be served if someone plans on challenging the Council’s actions in the High Court through a process called Judicial Review. This process is used when a person is challenging the lawfulness of the Council’s decision.
  12. Miss X’s solicitor alleged the Council unlawfully transferred responsibility for Mr Y’s EHC plan to Council B. Miss X said this had a harmful impact on her and on Mr Y. She said that after communicating with the Council and Council B she felt she had no other choice but to hire legal help.
  13. The Council replied in April 2021. It accepted that, as Mr Y did not have the capacity to decide about his residence in Council B’s area, the Council should have considered him as ordinarily resident in its own area. Because of this, at the end of March, the Council decided to resume the responsibility for maintaining Mr Y’s EHC plan and for securing his SEN provision.
  14. The Council said it has already started to act and it:
    • told Council B that it was taking back the responsibility for maintaining Mr Y’s EHC plan;
    • sent a new referral to the SEN provider it previously considered for Mr Y; and
    • hoped to issue Mr Y’s amended EHC plan within a week.
  15. Miss X wrote to the Council again and said that she wanted it to secure Mr Y’s provision within seven working days. The following day the Council told Miss X that it could not guarantee the provision would start by the date Miss X suggested. The SEN provider was creating a custom-made educational package for Mr Y, and the Council did not know how long this would take. The Council also said that it was expecting the SEN provider would be able to carry out part of the therapeutic provision from Mr Y’s EHC plan.
  16. In May 2021, and around 16 weeks from the day the SEND Tribunal said Mr Y should get the provision, he got access to a custom-made educational package from the SEN provider the Council consulted. At the time of writing this decision statement, Mr Y was not receiving any of the therapeutic provision listed in his EHC plan.

The Council’s response to my enquiries

  1. The Council said that between December 2020 when it transferred the EHC plan to Council B and April 2021, it was not responsible for securing the provision in Mr Y’s EHC plan.
  2. It also said that before it transferred the EHC plan to Council B, it consulted with one SEN provider to check if they would be able to deliver Mr Y’s SEN educational and therapeutic provision. It accepted that in this consultation the Council used Mr Y’s old EHC plan that did not contain all the SEND Tribunal’s orders.
  3. It also confirmed that it did not have any information that led it to believe the SEN provider it consulted would be also able to deliver Mr Y’s therapeutic provision included in his EHC plan. It said the SEN provider told the Council that it would not be able to provide any therapy before the Council transferred Mr Y’s EHC plan to Council B.
  4. The Council provided evidence showing the assisted living placement was sourcing a laptop for Mr Y. In June 2021, the Council asked the provider to confirm it got the laptop. In August 2021 Miss X confirmed that Mr Y still had no laptop.
  5. The Council’s records show that in July 2021 it consulted a college to see if it would provide Mr Y’s therapy set out in his EHC plan alongside his education.

What I found

Mr Y’s EHC plan after the SEND Tribunal hearing

  1. The legislation says the Council should have issued Mr Y’s amended EHC plan within five weeks of the Tribunal’s decision; this should have been in early January 2021.
  2. The Council should use this time to:
    • prepare for implementation of the provision;
    • make the amendments to sections B and F of the EHC plan; and
    • re-issue the EHC plan.
  3. The courts consider a council would fail to meet its statutory duties if it delayed securing the provision, listed as necessary in section F of a child’s EHC plan, beyond this five-week period.
  4. The Council issued Mr Y’s updated EHC plan in December 2020, but it did not contain all the changes ordered by the SEND Tribunal.
  5. The Council accepted the first version of the final EHC plan it issued was incomplete. It apologised and said that it would correct the EHC plan and sent this on to Council B, but we have not seen any evidence showing this happened. In February 2021 the Council contradicted its earlier statement and told Miss X that Council B would make all the changes to Mr Y’s EHC plan.
  6. The Council did not issue the final version of the corrected EHC plan until April 2021. This is almost four months after the Council should have issued the amended EHC plan. We consider this to be fault.

Securing the provision in Mr Y’s EHC plan

  1. The Council said that, although it remained responsible for funding the SEN provision, it was not responsible for securing it after December 2020, because it transferred this responsibility to Council B.
  2. In its letter dated April 2021 the Council accepted that it should not have transferred Mr Y’s EHC plan to Council B. The Council acted with fault when it transferred Mr Y’s EHC plan to Council B.
  3. The Council is responsible for making sure that arrangements set out in the EHC plan are secured. The duty is absolute.
  4. Mr Y’s EHC plan stated he should receive 76 hours of SaLT a year. His EHC plan also said he should receive 310 hours of OT and 38 hours Ed Psych as part of his yearly therapy. Mr Y’s EHC plan also said that he should get at least 570 hours of educational provision.
  5. Between November 2020 and May 2021 Mr Y did not receive the educational provision listed in his EHC plan. From May 2021 onwards, Mr Y received 1:1 tutoring, although at first this was only 9 hours a week. This equates to 351 hours of tuition in an academic year, as opposed to the minimum of 570 hours the SEND Tribunal ordered. Miss X told me that this changed, and Mr Y now receives the correct amount of tutoring.
  6. Mr Y did not receive any SaLT, OT or Ed Psych since November 2020. This is not in line with his EHC plan and is fault.
  7. Mr Y’s EHC plan also stated the Council should provide a laptop for him. This was to support Mr Y in his education. Since November 2020 the Council has failed to arrange for a laptop and this is fault.

Injustice to Mr Y

  1. Mr Y is a young adult with the Autism Spectrum Disorder (ASD). He struggles to talk about his thoughts and feelings. Mr Y has difficulties with social communication, and he can find interactions with others very challenging. He also struggles with interpreting other people’s emotions, which can sometimes leave him vulnerable. Additionally, Mr Y has dyspraxia, which means that he requires a laptop to be able to write during lessons.
  2. When Mr Y moved into the assisted living placement, he already had an EHC plan that set out what support he needed. The Council failed to put in place the educational provision set out in this EHC plan.
  3. The fact that Mr Y has an EHC plan means that he needs special educational support to be able to interact and achieve education to the best of his abilities. Mr Y has missed direct support from the therapy and educational support he needed.
  4. The SEND Tribunal also decided Mr Y needed a laptop. The Council did not provide him with a laptop, and this affects Mr Y’s ability to access the education that he needs.
  5. The fact that Mr Y missed out on essential support means that an already vulnerable young person has been further disadvantaged.
  6. Therefore, I recommend the Council should pay Miss X a remedy to recognise the education that Mr Y lost between November 2020 and May 2021. This remedy should be used for the benefit of Mr Y’s education.
  7. I also recommend the Council should pay Miss X a remedy to acknowledge the therapies that Mr Y missed since November 2020. The Council should make a payment to recognise this is an ongoing injustice to him. Miss X should use this remedy for Mr Y’s benefit.

Injustice to Miss X

  1. Miss X has also been caused an injustice because she has experienced distress and frustration because of the Council’s failure to support Mr Y properly and to meet his educational needs. She has also been caused unnecessary time and trouble. This has been further compounded by the Council’s continuing failure to secure Mr Y’s EHC plan provision.
  2. We can recommend the Council repays legal costs that are directly caused by the Council’s fault. To find the Council responsible for these legal costs we would have to decide it was a reasonable action for Miss X to take. We are satisfied it was.
  3. From the records we have seen, it is clear to us that, before instructing the solicitor Miss X asked both the Council and Council B to ensure that Mr Y received support he needed. Despite her efforts, Mr Y, an already vulnerable young person, was not getting the education and the therapy that he needed. Miss X said she felt she had no choice but to pay £998.40 for legal help. Miss X waited nearly 17 weeks from the date of the SEND Tribunal before involving a solicitor. Additionally, only after she did, the Council accepted that it should not have transferred Mr Y’s EHC plan to Council B.
  4. We consider the Council’s fault resulted in Miss X’s avoidable legal costs. Therefore, we recommend the Council should pay back Miss X’s legal costs in full. This will have the effect of putting Miss X back in the position she would have been had the fault not occurred.
  5. Additionally, Miss X provided evidence that shows that between January 2021 and March 2021 she exchanged around 30 emails with both the Councils. She also provided emails showing she was chasing Mr Y’s provision with the SEN provider and his assisted living placement.
  6. Miss X said this was time consuming and frustrating as nothing seemed to improve, despite her best efforts to coordinate the support for Mr Y. She also said that because of the lack of therapies, she is unsure if Mr Y will cope with going to college, something that he would like to do. In August 2021 Miss X told us that Mr Y was not accepted into college. We cannot say if things would have been different if the Council acted without fault.
  7. Therefore, I recommended the Council should pay Miss X a remedy in recognition of the avoidable time and trouble the Council put her to in chasing her complaint.
  8. I also recommended the Council should pay Miss X a remedy in recognition of the avoidable distress the Council’s faults have caused her. This also incorporates a remedy for the uncertainty Miss X experienced about Mr Y’s readiness for his next step into adulthood, which is college.
  9. The Council should apologise to Miss X and Mr Y for its failure to provide Mr Y with the support he needed and the distress and frustration this has caused Miss X.

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Agreed action

  1. The Council will take the following action within four weeks from the date of my final decision:
    • apologise to Miss X and Mr Y for the faults I have identified. The Council should ensure that apology to Mr Y is in a format suitable for his needs;
    • secure Mr Y’s therapy provision as listed in his EHC plan;
    • pay Miss X £500 to recognise the distress and uncertainty the Council’s fault has caused her and Mr Y;
    • pay Miss X £300 to recognise the time and trouble she has been put to in chasing her complaint;
    • pay Miss X £4200 in recognition of the education and therapy that Mr Y missed between November 2020 and April 2021. The payment should be used for the benefit of Mr Y’s education;
    • pay Miss X further £1750 in recognition of the therapy Mr Y missed between May 2021 and September 2021. The payment should be used for the benefit of Mr Y’s education; and
    • pay back Miss X £998.40 for her avoidable legal costs.
  2. The Council will also pay Miss X £350 per month until it has secured the therapy provision listed in Mr Y’s EHC plan.
  3. The Council will also, within three months from the date of my final decision, share this decision to the Council officers dealing with cases of this nature and emphasise the Council’s legal position when considering whether a child with no capacity is ordinarily resident in the Council’s area.

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Final decision

  1. There was fault which caused Miss X and Mr Y an injustice. The Council agreed to my recommendations. My investigation is now complete.

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Parts of the complaint that I did not investigate

  1. I have not investigated Miss X’s complaint about the Council’s failure to include Mr Y’s transition into adulthood plans in his EHC plan. The SEND Tribunal considers complaints about the contents of EHC plans. I consider it reasonable to expect her to have complained about this to the SEND Tribunal at the time of making her appeal.
  2. We cannot investigate Miss X’s complaint about the alleged delay the Council caused in the SEND Tribunal process. The Courts have held the Ombudsman cannot investigate the Council’s actions between the date from which Miss X had the right to appeal and the date on which the Tribunal issued its decision. There is no discretion available to us on this point.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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