Summary: Mrs Y complains that the Council failed to ensure her daughter, X, received the education she was entitled to as per the provision named in her Education Health and Care Plan. In our view, X has received up to nine hours per week as specified in the amended draft plan. However, the Council has not issued a final plan, and this has frustrated Mrs Y’s right of appeal to challenge this. The Council has agreed to apologise, pay £300 and undertake the service improvements listed at the end of this statement.

The complaint

1. Mrs Y complains that her daughter, X, did not receive the educational provision she was entitled to for a period in 2021 and 2022. Mrs Y has experienced financial loss as a result because she had a reduction in benefits and had to pay for privately funded tuition.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, we 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. We 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. 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. 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 report.
5. If we are satisfied with an organisation’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

6. During my investigation I considered the information provided by Mrs Y’s advocate, which included proof of expenditure for X's tuition.
7. I made enquiries of the Council and considered its response.
8. I consulted the relevant law and guidance as referenced in this statement.
9. Mrs Y and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should happen

10. A child or young person up to the age of 25 with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the person’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections A to K. We cannot direct changes to Sections B and F about education, or name a different provider in Section I. Only the tribunal can do this.
11. 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.
12. The Children and Families Act 2014 includes legal requirements in relation to children and young people with special educational needs and disabilities. The SEN and Disability Regulations 2014 (the Regulations) provide more detail on what councils are required to do when assessing and planning the education, health and care needs of children with special educational needs under the Act.
13. The SEN Code of Practice 2014 (the Code) is statutory guidance that provides councils with further guidance on how to implement the legal requirements. Councils are required to regularly review a young person’s EHC Plan with the first review being held within 12 months of the Plan being issued and thereafter within 12 months of the previous review. This is called an annual review.
14. Delay after an annual review can cause injustice because it frustrates the right of appeal. Where a council decides to amend the EHCP, it must notify the parent of this decision within four weeks of the review meeting. There is no timeframe in the Act for how long the Council can take to do the amendments, the Code simply says this should happen ‘without delay’. Once the amended plan is ready it must be sent to the parent with an amendment notice. The Council has to issue the final plan within eight weeks of the amendment notice. A recent court case said when the Council notifies the parent of the decision it must also issue the amendment notice, so the maximum time from the annual review meeting to final plan should be 12 weeks.

What happened

15. Mrs Y’s daughter, X, has Global Developmental Delay and several other diagnoses such as obsessive-compulsive disorder (OCD) and anxiety Consequently, X’s educational provision is set out in an EHCP. At the time of the matters complained about, X's EHCP named a local college offering a bespoke package of education. I will refer to this as provider one.
16. As a result of X’s needs, Mrs Y says she is unable to access learning in a group environment and due to her anxiety X finds it difficult to leave the house. X receives support from provider one on a 2:1 basis.
17. In July 2021 the Council issued a draft EHCP for X naming the college. The plan said, “[X] has three sessions (up to 9hrs) a week with [provider one] and has been able to engage successfully with the addition of some new tutors”. The Council confirms it did not finalise this plan. Therefore, Mrs Y did not have the opportunity to challenge this at appeal.
18. On 11 November 2021 the Council attended X’s annual review meeting. At this point, the EHCP from July was still in draft form. The primary focus of the meeting was to discuss a reduction in X’s sessions at provider one. X was 19 years old at the time.
19. Provider one gave their view that X was ready to transition over to Adult Services and, as part of that transition process, X’s weekly 2:1 sessions for English and Maths should reduce from nine hours a week to six in readiness for a move to provider two. Provider one instead allocated time to support X in the community to build her independence ready for adulthood. The annual review report noted:

“X is definitely progressing to Adult Social Care and a full care assessment is being carried out and completed by the social worker” and, “[X] is currently transitioning to [provider two] and [officer] has sorted provision for [provider two] through ASC. [X] is showing great progress at [provider two]…”

“we [the Council] agree to cover two days per week of [provider two] until [X’s] 20th birthday”

20. On 20 April 2022, and 23 weeks after the November annual review, the Council issued an amended draft EHCP for X. This confirmed that X’s sessions at provider one would be maintained at ‘up to’ nine hours per week. Provider one responded to the draft EHCP by email and told the Council, “it says [we] are delivering 3 sessions, 9 hours, we are delivering 2 x 2:1 sessions (up to 6 hours)”
21. The Council attended an annual review meeting on 21 June 2022. The report outlined how X thrived at provider two, with provider one ‘stepping back’ to allow X to fully transition to two new providers for the 2022/23 academic year.
22. Despite the annual review having taken place almost six months ago, the Council confirms it has still not finalised X’s EHCP and that it is currently trying to arrange a personal budget to meet X’s needs.

Was there fault causing injustice to Mrs Y and X?

23. The LGSCO is not the correct body to adjudicate on the type and quantity of provision to be allocated to a child or young person with special educational needs. The Council is responsible for assessing and arranging the provision and the SEND tribunal hears appeals from parents or care givers who disagree with the content of the EHCP. However, the LGSCO can consider whether the Council has provided the type and quantity of provision named in an EHCP.
24. The records show the Council was aware from at least November 2021 that provider one was allocating six hours of support to X despite her draft EHCP specifying ‘up to’ nine hours. Provider one gave a reasoned explanation for the reduction; to allow X to gradually transition to a new provider in the following academic year and to spend more time helping X to access the community and develop her independence.
25. We propose to find fault with the Council because it should have set out the proposed changes to X’s provision in a finalised EHCP within 12 weeks of the November 2021 review. The Council had a further opportunity to amend X’s plan again following the June 2022 review. As a result, X does not have a final EHCP which formally sets out her provision and Mrs Y has not been given an opportunity to challenge the type or quantity of provision at appeal.
26. Mrs Y approached the LGSCO with the support of an advocate because she wants the Council to reimburse tuition which she privately funded in 2021. Mrs Y says she also incurred further losses due to a reduction in welfare benefits arising from X’s departure from full-time equivalent education. I have seen email exchanges between Mrs Y’s advocate and the Council in March 2022. The Council considered the proof of expenditure put forward by Mrs Y but decided there was not enough evidence to show the type of tuition being provided and whether this was meeting X’s assessed needs as per her EHCP.
27. The LGSCO may recommend a remedy if we find the Council has failed to ensure the contents of an EHCP has been delivered. In such cases we may decide the Council should make a payment in acknowledgment of the impact caused by missed educational provision. We may also decide the Council should reimburse any actual losses incurred by the parent when securing provision privately.
28. I have considered carefully whether this case merits a financial payment for Mrs Y’s claimed losses. In my view, the LGSCO cannot say the Council has failed to ensure the delivery of X’s EHCP. This is because, during the period complained about, the quantity of provision at provider one was for ‘up to nine hours’ each week. This could be anything between one and nine hours.
29. Although the Council is required to ensure provision is detailed, quantified and specific, any disagreement about this is not for the LGSCO to determine; it is a matter for the SEND tribunal to decide. As it stands, the six weekly hours provided to X falls within the scope of her plan. Furthermore, there is also evidence to show the Council funded some provision at provider two which X was able to access at two sessions per week throughout most of 2021/22. This helped to make up for the claimed shortfall at provider one.
30. However, the Council has failed to finalise X’s plan which has created injustice for Mrs Y because it has frustrated her appeal rights since November 2021. As a result, Mrs Y was not able to seek an independent review of the quantity and type of X’s provision and whether six hours at provider one was sufficient. The Council will undertake the actions listed at the end of this statement to remedy the injustice caused by fault.

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Agreed action

31. Within four weeks of my final decision, the Council will provide evidence of the following:
• apologise to Mrs Y for the failure to issue a final EHCP and pay £300 in recognition of the time, trouble and frustrated SEND tribunal appeal rights.
32. Within eight weeks of my final decision, the Council will provide evidence to show it has:
• issued an amended final EHC plan for X, in line with any agreed amendments in the latest version of the working document, and advise Mrs Y of her right of appeal to the SEND tribunal;
• made arrangements to secure the provision in the final EHC plan and explain to Mrs Y in writing how the provision will be delivered as part of, or alongside, X’s transition to adult services;
• formally responded to Mrs Y’s request for a personal budget; and
• taken action to ensure, as far as possible, that staff adhere to statutory timescales regarding the issuing of amended and final EHC Plans after an annual review.

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Final decision

33. I have completed my investigation with a finding of fault causing injustice. The actions listed above provide a suitable remedy for the injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman