• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• Relevant legislation, guidance and policy
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Mrs Y complains on behalf of her daughter, Miss X, that the Council did not fully secure the provision detailed in Section F of Miss X’s Education, Health and Care Plan. We have found the Council at fault for not securing the provision specified in Section F of the plan. The faults identified in this statement have caused Miss X an injustice. We have made recommendations to remedy this injustice.

The complaint

1. The complainant, whom I refer to in this statement as Miss X, is represented by her mother, Mrs Y.
2. Miss X complains about how the Council has secured the provision outlined in her Education, Health and Care (EHC) Plan. Specifically, Miss X complains that:
   • 1. the Council has failed to secure the provision detailed in Section F of her EHC Plan, since August 2020.
     2. despite upholding complaints about this failure, the Council has not provided a satisfactory remedy, or set out a timescale for a remedy; and
     3. the failure to secure this provision has caused Miss X and her family significant distress and frustration. It has also had a harmful impact on her educational opportunities.

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The Ombudsman’s role and powers

3. 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)

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How I considered this complaint

4. I considered information provided by Mrs Y and discussed the complaint with her.
5. I considered information provided by the Council in response to my enquiries.
6. Miss X, Mrs Y and the Council were able to comment on a draft version of this decision. I considered any comments received before making a final decision.

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Relevant legislation, guidance and policy

Education, Health and Care (EHC) Plan

7. A child 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 which include:
   • Section B: The child or young person’s special educational needs.
   • Section F: The special educational provision needed by the child or the young person.
   • Section I: The name and/or type of school.
8. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
9. The Council is responsible for making sure that arrangements specified 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.
10. The council has a duty to secure the specified special educational provision in an EHC Plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
11. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC Plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:

• check the special educational provision is in place when a new or substantially different EHC Plan is issued or there is a change in placement;
• check the provision at least annually via the review process; and
  • investigate complaints or concerns that provision is not in place at any time.

12. The SEN Statutory Guidance says that health or social care provision which educates or trains a young person must be treated as special education provision and included in Section F of the EHC Plan.
13. It says that decisions on whether health care provision or social care provision should be treated as special education provision must be made on an individual basis. It says that some therapy provision could be considered either educational provision, health care provision, or both.
14. It says in cases where health care provision or social care provision is treated as special educational provision, responsibility for ensuring the provision made rests with the local authority.

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What I found

Background

15. What follows is a summary of the key events in this case. It is not an exhaustive chronology of every event that happened.

Miss X’s EHC Plan

16. Miss X is 21 years old. She has several medical diagnoses and has long-standing, complex medical needs. Miss X lives at home with her parents. Her mother, Mrs Y, has principally acted as carer to Miss X to ensure her needs are met.
17. Miss X’s EHC Plan was issued in September 2020, following a hearing by the SEND Tribunal in August 2020. Section F of the plan details the provision the Council will put in place to help support Miss X meet her educational needs and personal outcomes.
18. Summarised, the provision detailed in Section F says:
    • 1. Miss X would receive a full time 1:1 Learning Support Worker (LSW), trained to be able to meet all of Miss X’s educational needs while in college, including lunch breaks and work experience. This would cover 16 hours of college attendance and up to 10 hours of independent study, supported over five days a week during the academic term.
      2. Miss X’s health needs while at college would be met by a Personal Assistant (PA). Miss X would receive support from either a LSW or PA, or both, for work experience, depending on the activity.
      3. Miss X’s PA would need training by the continence and stoma community nursing teams, in line with NICE guidelines. This would be prior to, or within 6 weeks of, appointment.
      4. All college teaching and support staff working with Miss X would need to undergo a 2-hour training session on her needs and their impact on Miss X. This training would need to be repeated annually at the start of term. All staff working with Miss X would be made aware of Miss X’s Health and Care Plan, detailed in Sections G and H of the EHC Plan. This training would take place annually, prior to the beginning of the school term.
      5. A Continence Nursing lead would support Miss X’s medical needs through an updated Intimate Care Plan, which would be reviewed at least annually or if Miss X’s needs changed. All PAs involved with Miss X would contribute to the plan and be signed off as being competent to action the plan by nursing teams.
      6. Staff would be trained at the beginning of the Autumn term on use of the hoist, with reviews taking place in the Spring and Summer terms.
      7. The LSW would support Miss X by taking notes during lessons. If Miss X was absent from college or undergoing “brain fog”, they would ensure the full lesson content was available to Miss X via email or video, to minimise interruptions to learning.
      8. Specific teaching delivery methods were planned to help ensure Miss X remained engaged with lessons and learning. These included:
         1. reducing the quantity of work assigned, in favour of quality;
         2. allowing Miss X additional time to respond to questions, make decisions, or complete assignments;
         3. allowing Miss X to use her mobile phone to help retain information, and allowing screen shots of lesson plans/materials; and
         4. providing Miss X with an individualized timetable, specifying the education she would be getting at school and that she would be undertaking at home.
      9. It was essential that Miss X received a detailed ICT assessment, which would include her own laptop, speech dictation software and any other support needed to help her access the academic environment.
      10. Miss X would inevitably be absent from class on occasion. The college would need to maintain a medical absence plan so Miss X would be proactively supported to engage in as much education as possible by staff supporting her. This would include providing lesson notes, reading materials and email work. Miss X’s LSW would be in the classroom when Miss X was absent.
      11. Communication protocols would be in place to support Miss X and to allow Miss X to express any specific worries or concerns she might have.
      12. There would be an extensive physiotherapy and occupational therapy programme in place. This included:
          1. mobility training from a Council mobility officer, to ensure Miss X could use her wheelchair in a range of settings. The plan says “Initial block of xxxxx sessions subject to review.”
          2. all staff working with Miss X receiving training from the Physiotherapist, to ensure Miss X could access the curriculum irrespective of staff availability on any given day.
          3. ensuring Miss X had access to a range of specialist equipment within the college, so that staff could facilitate her participation in all areas of learning. Examples included specialist seating and orthotics.
          4. an integrated therapeutic package, involving close coordination between college tutors, teaching assistants, Occupational Therapist (OT) and Physiotherapist.
          5. different forms of regular, structured physiotherapy sessions, delivered at scheduled intervals.
          6. the college being suitably adapted, including level flooring access, hoists, and space for Miss X’s wheelchair.
          7. manual handling plans and detailed risk assessments, to be reviewed annually.
19. Miss X enrolled in the college named in the EHC Plan, College A, in September 2020. The course was a two-year course, but at the end of the first year, it was agreed Ms X could complete the course over three years.

Miss X’s complaint and the Council’s responses

20. In November 2021, Mrs Y wrote to the Council on Miss X’s behalf. Mrs Y said the Council was in breach of its duty to secure the provision detailed in Section F and had been since 2020. Mrs Y listed several points where she said the Council had failed to secure the provision, in part or in full. She also described problems with the Council’s communication and confusion about responsibilities for delivering certain aspects of the provision.
21. The Council responded to Mrs Y’s complaint in December 2021. It upheld or partially upheld each part of Mrs Y’s complaint. It acknowledged that not all the provision detailed in Miss X’s EHC Plan had been put in place. It said this was in part due to pressures brought by COVID-19, but recognised its duty to secure the provision. The Council set out what it had already done and what it intended to do.
22. The Council also said it had reviewed the most recent Annual Review paperwork, from May 2021, which did not document any concerns about the available provision. The Council said it had concluded that issues around the delivery of certain provision had become clearer since the beginning of the new academic year.
23. Mrs Y was unhappy with the Council’s response, as she felt it did not fully address the issues raised. She said parts of the Council’s response were inaccurate and it did not provide a solution to many of the problems Miss X still experienced. Mrs Y escalated her complaint to the next stage of the Council’s complaints procedure in January 2022. The Council responded to Mrs Y’s escalated complaint over two further responses, issued in March and April 2022.
24. Unhappy with the Council’s responses and actions, Mrs Y referred her complaint to the Ombudsman in March 2022.

Analysis

Lack of provision – technology support

25. Mrs Y said the Council had not provided the technology support detailed in Section F.
26. The Council said it recognised the importance of an ICT assessment and accepted it had not completed one. It said it would make a referral to a company that would complete the assessment. It said it would consider any additional areas of need identified by the assessment, once it was complete. In its final stage response, in March 2022, it fully upheld this part of Mrs Y’s complaint. It said it was still investigating the best way to provide a laptop with speech-to-text software, as soon as possible.
27. The Council provided a laptop to Miss X in mid-April 2022. This laptop was faulty and an ICT assessment could not be completed. The Council ordered a second laptop and delivered it in June 2022. An ICT assessment was completed at the end of June, identifying further needs for Miss X.
28. The Council told Miss X and Mrs Y the impact of COVID-19 had produced challenging circumstances in providing education. At the same time, it accepted its duty to secure the specified provision throughout the period in question.
29. In response to my enquiries, the Council told me:
    • the circumstances in this case had produced exceptional challenges. College A had been closed for much of Miss X’s first academic year and Miss X had been shielding.
    • the alternative measures of online learning and support had worked as an acceptable substitute for college attendance during this exceptional period.
    • Miss X had access to a PC computer at home and had sought an ICT assessment for a laptop as part of the complaints process. It said it had ordered a laptop in 2022.
30. I have found the Council’s response to me on this point unrepresentative of its previous responses to Miss X and Mrs Y. Whether Miss X had access to a standalone PC is immaterial to the provision specified in Section F. The Council’s response does not account for the lack of assessment and provision of specialist software. Further, I have not seen the Council advance this position before now in correspondence exchanged directly with Mrs Y and Miss X.
31. The Council makes a broad point about the challenging circumstances at the time. The Council says Miss X and Mrs Y generally raised few concerns about a lack of provision in the Annual Review conducted in May 2021. It says issues with provision only became clear when the 2021/22 academic year began.
32. I have reviewed the paperwork for the Annual Review carried out in May 2021. The notes say:

“(Miss X) feels there is nothing to change on her current EHCP as it has not had a chance to be fully implemented due to COVID-19. Therefore, we simply want to say we are very happy with the way online learning has been provided this last year and the quality of support.”

33. Mrs Y told me these comments referred to the general efforts made by College A to provide engagement and support to Miss X. They were not to be construed as suggesting there were no issues with the Council’s efforts to secure the provision specified in the EHC Plan, including the laptop and ICT assessment. Mrs Y says College A was not responsible for this.
34. I have seen no evidence the Council tried to secure this provision throughout the 2020/21 academic year. Further, the Council does not seem to have acted to make sure the provision was in place ahead of the 2021/22 academic year. This would have ensured Miss X could fully engage with the course when physical distancing restrictions changed. The Council seems only to have tried to secure this provision after Mrs Y made a complaint in November 2021.
35. In the annual review conducted in May 2022, Miss X and Mrs Y outlined the difficulties this had caused. Miss X said she would have been unable to complete the course using just her mobile phone. Mrs Y said Miss X had struggled to touch type with only one hand and there were bigger assignments to complete, which were not feasible without a laptop.
36. The EHC Plan specifically calls for a detailed ICT assessment, to include a laptop, speech dictation software, and any other support to enable Miss X to access her academic environment. It took until June 2022, almost two years after the EHC Plan was issued, for the Council to secure this provision. Miss X had left College A by this time, with Mrs Y telling me Miss X had fallen too far behind in her studies to complete the course.
37. The Council accepted it had a duty to secure the provision outlined in Section F of Miss X’s EHC Plan. That it did not do this is fault.

Lack of provision – mobility training

38. Mrs Y says the Council had not delivered the mobility training specified in Miss X’s EHC Plan.
39. In its response to Mrs Y’s complaint, the Council acknowledged Miss X had not received formal wheelchair training and it had offered none. It said it was exploring ways it could deliver this, but said it did not have a dedicated “Mobility Officer”, as specified in the EHC Plan.
40. Mrs Y escalated this aspect of her complaint. In its final response, the Council agreed it had an absolute duty to secure the provision and said the key need was the mobility training, rather than who provided it. It said there was no “Mobility Officer”, so it was seeking an alternative provider.
41. The EHC Plan said Miss X needed to receive mobility training to ensure she could use her wheelchair in a range of settings. Again, I have seen no evidence the Council took steps to secure this provision until Mrs Y made a complaint about it. As recently as July 2022, the Council had not delivered this training. The Council has told Mrs Y it had identified a provider and was seeking a suitable venue for the training to take place. As far as I have been able to ascertain, the Council has not provided a timescale for this.
42. I note the Council’s position is it does not have a dedicated “Mobility Officer”. The Council could have contested the wording of the EHC Plan earlier if it believed there would be an issue in securing this provision, rather than highlighting concerns after the fact.
43. The Council has acknowledged it has a duty to secure this provision. That it has not done so is fault.

Lack of provision – Occupational Therapy (OT)

44. Mrs Y said the Council had not secured the OT provision outlined in Miss X’s EHC Plan. Specifically, Mrs Y said the EHC Plan confirmed an integrated therapeutic package was vital for Miss X to progress, and Section F contained provisions for:
    • 1. an OT to provide a block of sessions to identify adaptive equipment suitable for Miss X.
      2. an OT to provide College A with a plan Miss X could follow.
      3. an OT to advise College A, once a term with Miss X’s involvement, on how to manage hemiplegia and increase function. The OT would also discuss ways to improve Miss C’s functional independence in daily activities.
      4. an OT to demonstrate hoisting in the Autumn term, with reviews in the Spring and Summer terms.
45. The Council said initial progress had been affected by a range of factors, including identifying professionals to carry out certain actions in the provision. It also said it was ““reasonable to determine that COVID has played a role”. It said:
    • 1. “several actions” had taken place, including the private physiotherapist delivering training to college staff. It said the service level agreement put in place with the physiotherapist included regular meetings with the NHS OT.
      2. it believed it had secured the provision requiring an OT to identify adaptive equipment suitable for Miss X up until the 29 October 2020. Miss X was under the children’s OT services up until this point. The Council acknowledged Miss X had faced difficulties beyond this, when accessing adult OT services. The Council said this had now been resolved and the NHS Trust would respond separately to concerns about the criteria for support.
      3. there had been a gap in the provision to deliver training sessions to college staff of the use of the hoist. Mrs Y had sought the service of a private OT to bridge this gap in provision, due to the Council not responding to her enquiries. The Council accepted it had not replied in a timely way, but said this did not provide implied authorisation to use public funds to pay for independent services. The Council said it recognised its legal duty to secure the provision specified in the EHC Plan and it would, on this occasion, fund the private OT’s time for this purpose.
      4. there had been delays in securing the provision outlined in 44(c). The Council apologised for this and said it had now put in place a solution with the private Physiotherapist and NHS OT. It said it would follow up with the NHS OT to identify any gaps in provision, which could be met through the use of a private OT if required.
46. Mrs Y told me there were difficulties with this provision from the outset. Correspondence and records I have viewed show Miss X faced difficulties transferring from Children’s OT services to Adult OT services. Miss X’s Children’s OT continued to provide a light-touch service into late 2020, beyond Miss X turning 19 years old, to try and secure some of the provision requirements. This appears to have been an ad-hoc arrangement. There were periods where it was unclear whether assessments completed with college staff remained valid, or where training was delivered remotely and without a clear schedule. There were also periods where Miss X had no clear OT provision in place.
47. In May 2021, Miss X asked the Children’s OT if they could provide her new carers with training on the use of the hoist. Miss X was told she would have to contact Adult OT services directly at this point.
48. Mrs Y told me that an NHS OT was assigned to Miss X by September 2021, but there were still gaps in the OT provision outlined in Section F. Mrs Y says she and Miss X had been told that matters involving training for carers and education site issues were beyond the NHS OT’s remit to address. This included manual handling training.
49. Mrs Y wrote to the Council in September 2021 to highlight these gaps in provision. She said she had found a private OT service that could meet with Miss X and her Physiotherapist to conduct a review and sign off her carers. Mrs Y proposed using Miss X’s direct payments for this and asked the Council to let her know if this was not acceptable, otherwise she would go ahead. The Council did not respond to this email and Mrs Y arranged a private OT to conduct the review.
50. Mrs Y says this resulted in a report being issued, but the private OT did not provide training or sign off on carers. Mrs Y told me this would have incurred added costs and the private OT could not provide manual handling training. Mrs Y therefore later applied for funding through the Skills For Care agency to appoint a manual handling trainer and create a manual handling plan.
51. In October 2021, the local Clinical Commissioning Group (CCG) wrote to the Council about the costs of training and assessing personal assistants for use of NHS OT equipment and manual handling. It proposed to divide the costs between the education and health bodies involved, as use of the equipment was relevant to all parties. It asked the Council to confirm agreement with this and suggested much closer communication, so gaps in provision could be picked up quicker. Mrs Y says the Council did not respond to this email and so no agreement for funding was ever made. Mrs Y says she paid for a private manual handling trainer using Miss X’s care account to expedite matters, with no additional funding being made available.
52. In October 2021, the Council set up a service level agreement with the private Physiotherapist Mrs Y had arranged for Miss X. This agreement included liaising with the OT services about Miss X’s provision. In its response to Mrs Y’s complaint, the Council said it would follow up with the NHS OT to see if there were any gaps in provision. It said it would consider using a private OT to bridge these gaps. I have seen no clear evidence the Council proactively took this follow-up action, despite being made aware of the gaps in provision.
53. The detail of the provision set out in the EHC Plan is complex, requiring professionals from different disciplines to work together collaboratively to ensure successful delivery. The plan itself states:

“It is essential that the physiotherapist and occupational therapist worked collaboratively to ensure that (Miss X’s) programme has minimal interruption to her education and is wherever possible conducted at college to reduce disruption to her education.”

54. Correspondence I have seen suggests issues with OT provision have persisted into 2022. This has affected Miss X achieving the outcomes listed for her in the EHC Plan and carers being signed off for use on certain equipment. In its response to my enquiries, the Council cited delays by the NHS occasionally being a reason for the OT not being swiftly or consistently provided.
55. The SEN Statutory Guidance makes clear, however, that local authorities are responsible for health or social care provision, when it is listed in Section F of an EHC Plan as special educational provision. The evidence suggests the Council was absent from this role of responsibility at key points throughout this period, worsening issues with provision. I have found the Council at fault for not fully securing the OT provision detailed in Section F of Miss X’s EHC Plan.
56. Mrs Y has told me of the difficulties she and Miss X have experienced in the home setting, due to a lack of adaptive equipment. Mrs Y says Miss X has been isolated within her home and unable to access certain rooms depending on the severity of her condition, causing significant distress for Miss X and her family. Mrs Y says she suffered an injury trying to move Miss X without the correct adaptive equipment being put in place.
57. Mrs Y has said that when Miss X had to learn remotely at home, due to worsening health and COVID-19, the OT provision specified for College A should have applied to the home. She said Miss X was not being educated remotely by choice.
58. The Council has said that these concerns are about Miss X being supported in the family home, which is part of the provision detailed in Section G of Miss X’s EHC Plan. It said the local CCG or commissioning health body is responsible for provision in this section of the EHC Plan, and Mrs Y would need to complain to them separately about this.
59. Section G of the EHC Plan says Miss X will be provided with equipment to promote her independence and support her needs at home. Some of the equipment specified includes a profiling bed, slings, and ceiling track hoists in the bedroom and bathroom. It says Miss X’s GP has overall clinical responsibility for coordinating her care in the community.
60. It is the case that any health care provision specified in Section G of the EHC Plan is the legal duty of the responsible commissioning health body to provide. As the Council is not responsible for securing this provision, I have not found fault.
61. However, the EHC Plan states the health and social care provision specified is jointly funded by the Council and the NHS. I believe it would not therefore be correct to say the matter was entirely outside of the Council’s control to address, given its responsibilities to arrange social care provision.
62. Given the circumstances in this case, I would expect a more joined-up approach to be taken to address these matters. I have found the Council at fault for not taking action to ensure Mrs Y received a response to these concerns as part of its complaints process.

Physiotherapy provision

63. Mrs Y complained Miss X could have lost essential physiotherapy provision, as the Council had not paid the invoices filed by the Physiotherapist since June 2021. Mrs Y also complained it had taken until November 2021 to put in place a service level agreement with the Physiotherapist, when this provision had been specified in August 2020. Mrs Y said she had to pay the costs using Miss X’s direct payment account to keep the service, despite funding not being made available. The Direct Payment agreement between Miss X and the Council stipulates the direct payments were for 26 hours of support per week from personal assistants during the 36 weeks of term time. It also included four weeks of funding for contingency planning.
64. The Council upheld this part of the complaint. It said there had been no actual loss of provision because of the late payments, but accepted the anxiety caused by the potential impact of not paying the invoices promptly. It offered an apology for this and said the service level agreement put in place should address any future concerns. In a later response, the Council said Mrs Y had decided to pay the Physiotherapist directly. It said it had made any payments outstanding and so Mrs Y would need to discuss any duplicate payments with the Physiotherapist directly.
65. I note the Council’s apology for the anxiety caused by late payments, which is appropriate. The Council did not, however, address Mrs Y’s point about the provision being inconsistent more than one year after being included in the EHC Plan. Further, I have seen correspondence showing there continued to be issues around payment into 2022, leading the Physiotherapist to express concerns about continuing to provide their service. While the Council recognised the fault in this case, I am of the view it has not addressed the injustice caused.

Communication

66. Mrs Y says the Council failed to effectively communicate with her, Miss X, and their advocates, at key points throughout this period. Mrs Y says these communication issues continue at the time of writing.
67. At stage one of its complaints process, the Council upheld this aspect of Mrs Y’s complaint. It said its SEN Casework team had faced a period of exceptional demand, affecting its ability to respond to situations quickly. It said those involved in Miss X’s case had continued to support it, but agreed there had been no response to emails, phone calls and voicemails left since September 2021. The Council said maintaining effective communication was crucial in ensuring the best possible outcomes and apologised for the anxiety this had caused.
68. I agree with the Council’s finding of fault and its assessment of the importance of communication. I have seen evidence to suggest communication has since been more consistent, with a designated point of contact being put in place. Mrs Y has though provided me with recent examples where requests for clear or timely resolutions have gone without a substantive reply. Given the Council’s acknowledgement of these issues already, my view is the injustice caused to Mrs Y and Miss X because of these faults has not been addressed.

Further events during this investigation

69. At the time of writing, much of the provision discussed above has not been secured on the terms stated in Miss X’s EHC Plan.
70. Miss X left her college course in April 2022. Mrs Y says this was because Miss X had fallen so far behind in her assignments the course could not be completed, as well as a personal issue with a tutor at College A and changing health needs. By the time Miss X left her college course, the Council had not provided a working laptop and ICT assessment.
71. At this time, Mrs Y told me that much of the costs for OT assessments for the college site, physiotherapy sessions, and manual handling training had been paid for using Miss X’s direct payments. Mrs Y said this was necessary to retain these services and there was no specific funding for this in the direct payments. She said the Council had not resolved this matter.
72. Between April and August 2022, Miss X and Mrs Y were seeking new education arrangements with the Council, to include a package of Education Otherwise Than At School (EOTAS). The notes recorded in the Annual Review 2022 show Miss X sought to complete a short, remote-learning course in the interim and asked the Council to explore this possibility, while also considering longer-term education alternatives. The EHC Plan would be amended. Mrs Y and Miss X stressed that Miss X would like to return to education in the half-term before the next full academic year.
73. Following further exchanges of correspondence between parties, the Council issued a final amended EHC Plan for Miss X in August 2022. A new education setting was not identified in the plan. No changes had been made to the substance of the social care and health provision. Miss X did not receive education in the interim.
74. Mrs Y told me the document did not deliver anything for Miss X. The Council said it was aware it would need to amend the plan further, once certain aspects were resolved. However, it felt it was important to issue the final EHC Plan within the legal timescales, with as many of the proposed changes as it was possible to incorporate.

Injustice

75. The faults identified above have caused significant injustice to Miss X and Mrs Y. I have noted the Council has accepted these faults and has acted to improve communication in general. Despite this, many of the issues identified continue. My view is the Council has not adequately addressed the resultant injustice.
76. Mrs Y told me if one aspect of the provision was not in place, it affected delivery of the rest. On the basis of the evidence available, the Council has been absent from its responsibilities at key moments. This resulted in Miss X and Mrs Y seeking ad-hoc arrangements to bridge the gaps in provision, when such efforts should not have been necessary. Mrs Y says she has had to pay for some services directly, with no additional funding, when it was the Council’s responsibility to secure them. This caused significant uncertainty, distress and frustration for Miss X and Mrs Y.
77. Miss X was able to access some education during the 2020/21 academic year, while working remotely. The Council does not appear to have tried to secure the provision discussed above at this time, being content with Miss X working remotely in the manner adopted up to that point. The Council also did not seem to anticipate how critical this would become in the following academic year, when physical distancing restrictions changed and Miss X’s health conditions evolved. This resulted in significant disruption to Miss X’s education between September 2021 and April 2022, when Miss X left the course.
78. Mrs Y told me Miss X had fallen too far behind in her assignments to complete the course, chiefly because the Section F provision had not been put in place. This was in addition to an issue with a specific member of College A’s staff. In its response to my enquiries, the Council told me Miss X left her course because her health conditions were such that she could not complete it, citing comments recorded in the 2022 Annual Review. It said Miss X was given the option to continue the course online, or attend other courses at College A, both of which she felt were not feasible.
79. Miss X’s health conditions may have always been a factor in whether she would be able to complete the course. My view, however, is Miss X never benefitted from the full provision outlined in Section F and was therefore denied the opportunity to fully access her chosen education from the outset. The lack of provision early on compounded the difficulties experienced later.
80. On balance of probabilities, I think it likely Miss X would have attained a greater level of education, had she been able to engage fully over the preceding two academic years. Miss X may have even felt able to continue further on the course, had the Council fully secured the provision. With the relevant provision secured, any adjustments needed to account for Miss X’s changing health could have been put in place quicker.
81. The EHC Plan makes clear the need for close professional coordination and flexibility when delivering the provision. As the provision was never fully secured, it is difficult to see what prospect Miss X had of successfully completing her course.
82. For these reasons, I believe the Council’s failure to secure the provision in Section F significantly contributed to Miss X’s disrupted and lost education.
83. The Council has now issued an amended final plan. Miss X and Mrs Y are unhappy with the content of this plan, telling me it does not help resolve the difficulties Miss X is currently facing. The Ombudsman cannot direct changes to the sections about education, or compel the Council to name a specific school or education provider. Only the SEND Tribunal can do this. The Council issuing the amended final plan provides Miss X with the right of appeal to the SEND Tribunal, should she remain dissatisfied with the content of her EHC Plan.

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Agreed action

84. The Ombudsman’s Guidance on Remedies recommends payments of between £200 and £600 for each month that provision in the EHC Plan is not secured, resulting in a loss of educational provision. The Guidance on Remedies also recommends a figure of up to £500 for distress caused, rising to £1000 in exceptional circumstances and where others have been affected. I have considered the Ombudsman’s Guidance on Remedies when making the following recommendations.
85. Within four weeks of the final decision being issued, the Council has agreed to:
    • 1. provide a written apology to Miss X, fully acknowledging the faults identified in this statement.
      2. pay Miss X £5970. The recommended amount is broken down as follows:
         1. £1920 for the failure to secure the provision in Section F of the EHC Plan for the 20/21 academic year, while Miss X was shielding, but could obtain some education. This is a figure of £300 per month for just over six months, which is the academic year excluding school holidays;
         2. £3150 for the failure to secure the provision in Section F of the EHC Plan for the 21/22 academic year, where the lack of provision had a significant impact. This is a figure of £500 per month for just over six months, which is the academic year excluding school holidays; and
         3. £900 in recognition of the distress, frustration and uncertainty Miss X and Mrs Y experienced.
86. The Council has agreed to review any payments Mrs Y has made for services or therapies the Council is responsible for securing and confirm in writing whether it will reimburse these costs. To ensure this is completed, I would propose Mrs Y provide the Council with evidence of the additional costs incurred within six weeks of the final decision being issued. Within four weeks of receiving this information, the Council will review this evidence and confirm the outcome.
87. The Council has agreed to make any of the above payments using a method agreed with Miss X and Mrs Y, taking account of Mrs Y’s concerns about Miss X’s benefit entitlements.
88. Within six weeks of the final decision being issued, the Council has agreed to:
    • 1. review Miss X’s case at senior officer level, to consider the faults identified and provide an action plan to Miss X detailing the steps it will take to promptly secure any outstanding provision. This should include clear timescales for any outstanding provision to be put in place.
      2. work with the responsible health body to ensure Mrs Y receives a response addressing concerns about any outstanding jointly-funded provision.
89. Within sixteen weeks of the final decision being issued, the Council has agreed to:
    • 1. review, at senior officer level, how it liaises with its commissioned services to promptly secure the provision specified in EHC Plans, producing an action plan to ensure faults identified in this investigation do not occur for others. This review should also consider how to take on board learning from complaints involving other bodies, where the issues raised might impact on delivering the overall EHC Plan.
90. The Ombudsman will require evidence the Council has carried out these recommendations.

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Final decision

91. I have completed my investigation with a finding of fault causing injustice. I have made recommendations to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman

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