Summary: Mrs X complained the Council failed to deliver provisions set out in her son, Y’s, Education, Health and Care plan and failed to react or respond when elements of the provision failed. She also complained there was a delay of one year receiving the final Education, Health and Care plan after a decision by the Special Educational Needs and Disability Tribunal, and a further delay arranging an annual review in 2022. The Council was at fault for failing to maintain proper oversight of Y’s Education, Health and Care plan. The Council was responsible for delays and missed provision.

The complaint

1. Mrs X complained the Council failed to deliver provisions set out in her son, Y’s, Education, Health and Care (EHC) plan and failed to react or respond when elements of the provision failed. She also complained there was a delay of one year receiving the final EHC plan after a decision by the Special Educational Needs and Disability Tribunal (The Tribunal), and a further delay arranging an annual review in 2022.
2. Specifically, Mrs X said Y did not receive the support set out in section F of Y’s ECH plan: He did not receive the social and emotional support stipulated and did not receive the stipulated communication and interaction, and social and emotional counselling between April 2020 and April 2023.
3. As a result, Mrs X said Y struggled and disengaged, and she had to find online schooling providers and a specialist teacher herself to ensure he did not miss out on education.
4. Mrs X wants the Council to deliver all provision in Y’s EHC plan, and confirmation of who will deliver it. She also wants the Council’s help administering the support rather than being left to do it herself.

Back to top

The Ombudsman’s role and powers

5. 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)
6. 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)
7. 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.

Back to top

How I considered this complaint

8. As part of the investigation, I considered the complaint and the information Mrs X provided.
9. I made written enquiries of the Council and considered its response along with relevant law and guidance.
10. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Legislation and guidance

11. A child with special educational needs may have an 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 school. Only the Tribunal can do this.
12. 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.
13. 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. 
14. If school or college is not appropriate for the child or young person with an EHC plan (for either all or part of their education), the Council can arrange for any special educational provision which the child or young person requires to be delivered somewhere other than in a school, college or early years setting. This is often known as ‘education otherwise than at school’. The Council is responsible for securing and funding this provision. Education otherwise will be named in the EHC plan in Part F (s.61 Children & Families Act) not section I.
15. 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)
16. Parents have a right of appeal to the Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued. There is also a right of appeal about any decision to name (or not name) Education Otherwise in the EHC plan.
17. Where the Tribunal orders a council to amend an EHC plan, the council shall amend the EHC plan within five weeks of the order being made. (Special Educational Needs and Disability Regulations 2014) 

Service failure

18. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)

What happened

19. I have summarised below some key events leading to Mrs X’s complaint. This is not intended to be a detailed account of what took place.
20. Y has autism spectrum disorder with pathological demand avoidance (PDA) and extreme anxiety. He also has depression and selective mutism. Mrs X asked the Council to assess Y for an EHC plan. After a successful appeal to the Tribunal, the Council produced an EHC plan for Y. However, Y later withdrew from school and was no longer able to attend. Mrs X therefore asked the Council to provide Education Otherwise Than at School (EOTAS). The Council initially refused, but Mrs X successfully appealed to the Tribunal in December 2020.
21. The Council said, following the Tribunal hearing, it issued Y’s final EHC plan on 16 February 2021.
22. Mrs X said she did not receive the final EHC plan until March 2021, and it contained mistakes and did not include all provision agreed by the Tribunal.
23. The Council held a review in June 2021. It agreed amendments to Y’s EHC plan. However, Mrs X said the Council failed to provide her with a copy of the amended plan until December 2021.
24. The Council’s review assessment document record the Tribunal ordered it to provide a package of support, which it should review termly, around social communication and interaction. The Council agreed to provide a teacher with PDA specialism.
25. The Council recorded Y’s package of support is for 2.5 hours per week delivered around social communication and interaction, working on Y’s anxieties to engage him in his wider community. The Council noted there had been a struggle to identify someone with the right skills. The Council recorded Mrs X gave details of a specialist tutor, offering online sessions. The Council anticipated it may take time to build to the full 2.5 hours and may start at 1.5 hours. It said it would review this termly.
26. Mrs X contacted the Council in August 2021. She wanted to change Y’s current provider to an online academy. She said the academy offered live lessons with interaction which would benefit Y. The current provider did not offer this. Mrs X wanted to start the academy’s assessment process and asked if the Council would agree to fund the placement for September.
27. Mrs X chased the Council again in August when it did not reply.
28. On 3 September 2021, the Council agreed a budget for Y to enrol with the online academy. However, on 5 October the academy told the Council its staff did not feel confident enough or trained enough to teach Y. It said Y did not maintain satisfactory standards of work and it was ending his placement.
29. The Council produced Y’s final amended EHC plan on 3 December 2021. Y’s provision listed in Section F of the plan includes:
• Access to staff with enhanced understanding of Y’s social, emotional and mental health needs.
• Online learning, including at least English language, Maths, Chemistry and Computer Science.
• A specialist teacher with PDA training to support social communication and interaction development. Once per week for 45 minutes to 90 minutes, to be reviewed termly.
• Weekly sessions of counselling from Y’s specialist teacher for 30 to 60 minutes to work on his anxiety and focus on future transition after Y completes his GCSE’s.
30. In May 2022, Mrs X told the Council she was trying to get more support from Y’s current provider. She said he struggled to watch Information, Communication and Technology lessons and was behind. He also struggled with English assignments.
31. Mrs X complained to the Council on 20 July 2022. She said:
• She hoped Y would get the support he needed after the Tribunal decision, but she had to source providers herself with little help from the Council. She said this placed strain on her career and wellbeing.
• The time taken for the Council to issue Y’s final EHC plan after the Tribunal decision was unacceptably long. She received the final plan in March 2021, three months after the Tribunal decision, but had to alert the Council to amendments needed and some provision agreed by the Tribunal was missing.
• At the same time, she was chasing the Council to provide a specialist teacher with PDA training, as specified by the Tribunal. She chased again in May and June before deciding to find a tutor herself. She gave the details to the Council.
• The Council held Y’s review in June 2021, where it agreed amendments to Y’s EHC plan. The Council also said it had contacted the tutor Mrs X sourced, though Mrs X had to chase the Council about this in July because the tutor could not get a response from the Council.
• The Council left Mrs X to research Y’s provision herself as he needs a new provider for his A level curriculum. Mrs X said the Council did not check any of the providers she found to make sure they could meet Y’s needs. The Council also did not make contact to check Y’s progress.
• She contacted the Council in August 2021 about a new online provider she found for September 2021.
• The service from the new provider broke down quickly as they had little understanding of SEN, and the Council did not send a copy of Y’s EHC plan. She said this left Y with just an hour from the PDA specialist tutor each week. He had no education. Again, Mrs X said the Council left her to source a new provider. She found a new provider, and sent proposals about support for emotional wellbeing in early October 2021. She received a reply at the end of November stating the matter was with the review team. Mrs X chased the Council in December asking if the new placement could start in January using funding from Y’s last placement. She said Y was out of education for two months and the Council left her to source an alternative.
• She finally received the amended EHC plan on 20 December 2021. Because she did not receive confirmation from the Council, she had to use money refunded from Y’s previous placements to start with the new provider. She did not want to risk Y missing more education and becoming disengaged. The Council finally replied, agreeing to the placement, on 18 March 2022.
• Y recently had some issues with the new provider. She tried to contact the Council about this but without reply. Y has still not had his annual review. Mrs X said Y has been without input from the PDA specialist tutor since 22 February 2022, as he has withdrawn.
• At no point has Y received the whole provision from section F of his EHC plan and he has not made progress towards his social and emotional outcomes. Mrs X found communication, support, and guidance from the Council to be lacking.
• It was now more than 12 months on from the review and the Council has not arranged another review. The Council also failed to send Mrs X the amended plan discussed at the review.
32. The Council responded to Mrs X’s complaint on 28 July 2022. It apologised its communication was inadequate and fell short. It said it addressed the issue across the team to ensure communication improved. The Council recognised it had not held an annual review in line with the Special Educational Needs and Disability (SEND) code of practice. It said Y’s allocated caseworker would contact Mrs X by 29 July to arrange this. The Council also said the caseworker would work to source a new PDA specialist tutor and would tell Mrs X of progress by 9 August.
33. Mrs X was not satisfied with the Council’s response and asked for a stage two consideration.
34. In September 2022, the Council asked Mrs X to look at a tutoring website it found. Mrs X said the provider had no PDA specialists.
35. The Council reviewed Y’s EHC plan on 22 September 2022. It noted Y had been going out of the house once or twice a week, which was an improvement. It noted Y seemed happy in himself, enjoyed quizzes, went to the gym once, and swimming. He had also been for a family meal, which was positive progress. The Council recorded Y was attending English lessons and watching ICT lesson recordings. He was doing well in the course work. However, Y still struggled with communication. It was felt his provision, which was online, did not support this. He struggled to interact in lessons or communicate with teachers. The Council recorded Y was ‘working towards’ the outcomes in his EHC plan.
36. The Council sent its stage two complaint response on 24 November 2022. It said it held an annual review in September 2022, but it had not yet issued the paperwork and or updated Y’s plan. The Council apologised for this and said it would direct the caseworker to issue the paperwork by 25 November. It also said it had discussed compliance with timeframes for reviews set out in the SEND code of practice with the wider team.
37. The Council said the caseworker made several attempts to secure a PDA specialist tutor, but this specialism had been difficult to secure. It said the caseworker contacted the new provider Mrs X gave details for on 18 November. The caseworker also contacted the current provider to discuss support with them to ensure the provision in Y’s EHC plan was in place by 30 November.

My investigation

38. The Council told me it struggled to source a specialist teacher with knowledge and experience of PDA. It also said there were issues with specialist teaching agencies’ capacity to enrol new students.
39. The Council said it approached providers in June and July 2021 and in November 2022. It said if Mrs X made suggestions, it always discussed them.
40. Following Mrs X’s complaint, the Council said it held discussions with officers about improved communication during supervision and at team meetings.
41. However, Mrs X told me the Council’s communication did not improve and has been worse. She said she had to chase the Council for five months to pay an invoice for an education provider. She worried the delay could risk Y’s placement.
42. Since April 2020, Mrs X told me Y received only 32 hours of the support set out in section F of his EHC plan. She said he missed 202 hours of support.

Analysis

43. On the evidence seen, I uphold Mrs X’s complaints the Council, at times, failed to deliver the provision in Y’s plan. It also, at times, failed to react when provision failed or was not working. I consider this was caused by a lack of proper oversight and failure to review the provision.
44. I did not find there was a delay of a year issuing the final EHC plan after the Tribunal decision. The Council issued the plan by March 2021. It should have issued the plan within five weeks, but instead it took about three months. That was fault.
45. Unfortunately, the plan the Council issued in March 2021 needed amendments. I found it took the Council until December 2021 to finalise those amendments. That was a significant delay. Alongside the annual review, there should have been termly reviews to see how the provision was working for Y. I have not seen evidence this took place. Again, these delays are fault by the Council.
46. Statutory guidance says councils should ensure education provision for children who cannot attend school is equivalent to the education they receive in school. At times, that has not been the case for Y. Councils should also review the provision regularly to ensure it continues to be appropriate. Again, this did not happen in Y’s case.
47. I can appreciate why Mrs X felt left to arrange provision herself. I found the Council was often reactive rather than proactive. As a result, there were times when Y was not receiving the provision set out in his EHC plan.
48. After Mrs X complained, the evidence does suggest the Council tried to look for another tutor. Unfortunately, there was a shortage of tutors with the relevant PDA qualifications or experience. Where the Council made efforts to secure the provision, but could not do so, this amounts to service failure. However, in this case I have only seen evidence the Council took sufficient steps after Mrs X complained. There were also times I found the Council was too slow to respond, and was not carrying out the relevant reviews to keep on top of matters. The Council is therefore at fault for failing to source provision sooner.
49. The Council told me it addressed poor communication and deadlines with the department. However, I found the pattern of events between the stage one and stage two response (four months), and the problems Mrs X continues to experience, do not suggest this had the desired effect. I consider the Council needs to do more to ensure its communication is of an acceptable standard, and to ensure it meets deadlines in terms of carrying out reviews and completing reports and paperwork. The Council also needs to ensure it has a generally better oversight of Y’s provision.

Injustice

50. Mrs X accepts Y was not completely without support. He missed aspects of his support at different times.
51. I found there was a period of half a school term where Y was without an education provider and so missed the main bulk of his education provision. There were also periods where Y missed some provision from his EHC plan, amounting to three and a half school terms in total.
52. On the evidence seen, Y missed a significant amount of specialist support around his anxiety, social interaction, and communication. As a result, Y has not made progress in this area and his attendance at live lessons often suffered. Unfortunately, Mrs X told me Y has now disengaged with online learning again.
53. This is Y’s injustice.
54. However, I have also considered the positive progress Y initially made in terms of his coursework.
55. I also found Mrs X suffered injustice. The Council’s delays issuing Y’s amended plan and arranging a review caused avoidable frustration. Mrs X was often left with the burden of finding provision for Y, which caused further frustration. She also suffered avoidable frustration and distress chasing the Council and asking for help. She often waited too long for a response or for support.

Back to top

Agreed action

56. Within four weeks of my final decision, the Council will:
• Apologise to Mrs X and Y for its failure to maintain proper oversight of Y’s EHC plan. In particular, apologise for the delays issuing Y’s amended EHC plan and arranging a review, and for the educational provision Y missed.
• Pay Mrs X £300 to recognise the frustration and distress its faults caused.
• Pay £2,250 for the provision Y missed. This money should be used for Y’s benefit.
57. To improve services, the Council will within three months of this decision:
• Carry out a review of Y’s case and provide us with evidence of the action it is taking to meet the provision in his plan.
• Review its EHC plan annual review procedure to ensure it follows statutory timescales set out in the SEND regulations.
• Review how it ensures children/young adults with EOTAS receive their provision.
• Provide staff training to ensure they understand the legal framework and obligations in relation to the faults found.
58. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

59. I have completed my investigation. The Council was at fault for failing to maintain proper oversight of Y’s EHC plan. The Council was responsible for delays and missed provision.

Back to top

Investigator's decision on behalf of the Ombudsman