Summary: Mrs X complained the Council failed to secure the special education provision set out in Y’s Education, Health and Care (EHC) Plan. She also complained the Council failed to address concerns about Y’s access to education, or communicate effectively. We have found the Council at fault for failing to conduct an annual review of Y’s EHC Plan, resulting in Y being unable to attend college or receive the provision in the EHC Plan for two academic terms. We have made recommendations to remedy this injustice. There are parts of Mrs X’s complaint we cannot consider. We explain why in the decision statement.

The complaint

1. On behalf of Y, Mrs X complained the Council failed to secure the provision in Y’s Education, Health and Care (EHC) Plan or effectively address concerns about his access to education in a timely way. Mrs X also said the Council failed to communicate effectively with her about her concerns.
2. Mrs X said this negatively affected Y’s wellbeing, causing avoidable frustration, distress and uncertainty, as well as affecting his educational attainment. She also said she experienced avoidable distress, frustration and uncertainty as a result of the Council’s actions.

Back to top

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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council provider has done. (Local Government Act 1974, sections 26B and 34D, 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)

Back to top

What I have and have not investigated

7. Mrs X’s complaint to the Ombudsman alleged fault by the Council going back over many years. The restriction in paragraph 5 applies. I have not identified a good reason Mrs X could not have complained sooner about more historical matters. I have considered the events that formed the basis of Mrs X’s complaint to the Council only, which concerned Y’s education provision for the 2022/23 academic year.
8. Mrs X also raised concerns about more recent matters. I have not considered these matters, as the Council has not yet considered them as a complaint. It is open to Mrs X to make a new complaint and approach the Ombudsman if she remains dissatisfied with the outcome, once the Council’s complaints procedure is complete.

Back to top

How I considered this complaint

9. I discussed the complaint with Mrs X and considered information she provided.
10. I considered information the Council provided about the complaint.
11. Both Mrs X and the Council were able to comment on a draft version of this decision. I considered any comments received before making a final decision.
12. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

Relevant legislation, guidance and policy

Education, Health and Care (EHC) Plans

13. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document 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 their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.
14. The EHC Plan is set out in sections which include:
• Section B: Special educational needs.
• Section C: Health needs related to the child or young person’s SEN.
• Section D: Social care needs related to the child or young person’s SEN
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and/or type of educational placement
15. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
16. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)
17. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to:
• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement;
• check the provision at least annually during the EHC review process; and
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.

Back to top

What I found

18. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “analysis” section of this decision statement.
19. In July 2020, the Council issued Y’s amended final EHC Plan.
20. In September 2021, Y began studying at College F. In March 2022, the Council held an annual review of Y’s EHC Plan. The Council issued a decision to maintain the EHC Plan without any changes.
21. In October 2022, Mrs X said professionals involved in Y’s education held a meeting at College F. This meeting was held ahead of Y taking a leave of absence for a medical procedure. Mrs X said as a result of this meeting, College F removed Y from his course, despite Mrs X believing Y had been coping well. Mrs X said College F directed Y to join an employment course and be prepared to take extended time away from studies. Mrs X understood there was a plan to reintegrate Y to education in the longer term.
22. In November 2022, after Y returned from his absence, Mrs X said College F asked Y to stop attending the setting, before any of the plans agreed in October had been put in place. College F later told the Council this was because it had concerns about a deterioration in Y’s behaviour and mental health, and felt it could not keep Y safe.
23. In December 2022, Mrs X contacted the Council to raise concerns. Contact continued over the course of December 2022 and into early 2023. The Council’s record of these contacts shows phone call and email exchanges. Summarised:
1. Mrs X told the Council Y had not attended College F for three weeks when she first made contact. Mrs X said College F had not been doing what it should have. She said it regularly sent Y home and frequently did not have available staff. Mrs X said she did not understand why College F had stopped Y attending.
2. Mrs X told the Council she wanted a personal budget for Y. She said she could not afford to keep Y engaged at home, or arrange social events for him, while he was not attending College F. The Council told Mrs X the first step would be to hold an annual review meeting. The Council’s records show Mrs X was reluctant to engage with any type of meeting. She did not believe anything was wrong with the provision in Y’s EHC Plan and believed previous meetings had been negative. The Council frequently emphasised this was the correct next step.
3. The Council said it would speak with College F and update Mrs X once it had. It sought to arrange a time where all professionals involved in Y’s education and support could attend a review meeting at College F. It told Mrs X it would prefer if Mrs X and Y would attend this meeting, though it could hold a meeting without them present. The Council also asked if Y would like a specific advocate for the meeting.
24. In January 2023, the Council wrote to Mrs X. It addressed comments Mrs X had made about a specific officer, informing Mrs X such comments were not acceptable. It continued to try and arrange a date for a review. On 23 January 2023, Mrs X told the Council she did not wish to engage with the annual review procedure, as she felt it would be too much of a negative experience for Y. In other correspondence, Mrs X also said:
1. College F had not followed Y’s EHC Plan for a long time, which Mrs X believed contributed to the deterioration in his behaviour and mental health, leading to his being unable to attend the setting.
2. She said the Council had not secured the provision in Y’s plan and had offered no support during the period Y could not attend College F. She said this had affected Y’s health and wellbeing, as well as causing the family avoidable distress and uncertainty.
3. Mrs X sought an apology and reinstatement of provision, as well as a remedy to address Y’s lost provision.
25. In February 2023, the Council responded to Mrs X:
1. It said it had contacted College F to understand what had happened. It said due to Y’s upcoming medical procedure, College F gave him a trial on an employment course before taking medical leave. The Council said this was felt to be the most appropriate course to offer Y at the time.
2. The Council said when Y returned, College F had placed him on a specific course to help him settle back in. However, Y’s behaviour and mental health had deteriorated. College F felt it could not keep Y safe and asked that he remain at home until its pastoral team could meet to review the matter.
3. The Council said Y was still on the roll at College F, but there needed to be a review meeting to discuss next steps. The Council said it understood Mrs X had declined an invitation to the annual review, which had been brought forward. The Council said it had asked Y’s social worker to attend, so a coordinated plan could be put in place. It said the professionals could consider and address Mrs X’s questions and concerns at the meeting. The Council encouraged Mrs X and Y to attend, but said the meeting could go ahead without them.
4. The Council maintained its officers had acted professionally and courteously throughout, working with Y’s best interests in mind.
26. In February 2023, Mrs X responded to the Council. Mrs X reiterated her previous concerns. She said a failure to secure provision had affected Y’s overall wellbeing.
27. In June 2023, Mrs X wrote to the Council. She said it had been five months since she had complained to the Council, but she had received no update. She also said Y still had no provision in place.
28. The Council responded to Mrs X, asking if she had attended an annual review meeting. Mrs X said she understood the review meeting could go ahead without their attendance. She said she had not received any outcome from the proposed meeting.
29. In September 2023, the Council said it tried to contact Mrs X to discuss the situation. It then wrote to Mrs X:
1. The Council said Mrs X had complained in December 2022 about Y’s educational placement. This had been addressed by a senior officer at the time, who had agreed a way forward with Mrs X. The Council said the educational course Y was on at the time was not suitable for his needs.
2. The Council said it had been able to source an internship in Y’s preferred working environment. Mrs X had since completed the course application. The Council said the setting that facilitated the course would contact Mrs X directly soon to support Y’s application.
3. The Council said it would contact Mrs X again to ensure things moved forward. The Council apologised Y had not accessed a suitable education course sooner.
30. In October 2023, Mrs X responded to the Council:
1. Mrs X reiterated concerns about what had happened whenever Y started a new placement. Mrs X said she found review meetings unnecessary and believed they put pressure on Y.
2. Mrs X said she reported her concerns about College F, but College F provided no explanation, other than directing her to contact the Council. Mrs X said this resulted in unnecessary reviews, affecting Y’s wellbeing and health.
3. Mrs X maintained College F and the Council had not secured the provision in Y’s EHC Plan, leading to a deterioration in Y’s behaviour and engagement. Mrs X said she and Y were concerned this could happen again. This fear caused distress and upset.
4. Mrs X said she was happy with what was now in place and the proposed plans to move forward. However, Mrs X said this would not address the impact of past failings.
31. Y started his placement in October 2023.

Analysis

32. Paragraphs 16-17 set out the Council’s duty to secure the special educational provision specified in an EHC Plan. The Council owes this duty personally to the child or young person and the duty is non-delegable. While College F delivered the provision, the Council remained responsible. Paragraph 17 sets out the Ombudsman’s expectations for councils when meeting this duty.
33. I understand the Council first became aware of concerns about Y’s provision in December 2022, following contact from Mrs X. By this point, Y was not attending College F, following a period of medical leave and then decline in his health following his return in November 2022. Mrs X said he had not attended in three weeks.
34. On being notified of such circumstances, the Ombudsman would expect the Council to act to establish what was happening and to decide whether it needed to intervene to secure or review the provision in place. This is what the Council did. Records show it contacted College F to understand what was happening and sought to arrange a review of Y’s EHC Plan.
35. The Council’s response was appropriate. I recognise Mrs X’s reluctance to engage with annual review meetings and her view such a meeting was unnecessary, given she believed the EHC Plan met Y’s needs. However, the annual review is the mechanism through which the Council can review the provision in place and formally decide whether it needs to make changes. With College F saying it could no longer support Y or keep him safe, the Council was correct that a review would be the next step. This would allow the Council to identify Y’s current level of need and support, as well as identifying what setting would be able to meet these needs. In proposing a review, the Council sought to follow the procedure set out in statutory guidance.
36. Mrs X’s reluctance to engage with the review procedure, and the Council’s efforts to secure dates for all professionals to attend a meeting, led to multiple exchanges of correspondence. In January 2023, Mrs X wrote to the Council, stating she and Y did not wish to participate in an annual review meeting. In February 2023, the Council told Mrs X that while it would prefer she participated, it could arrange a meeting without her attendance. It is clear Mrs X was under the impression this is what would happen. I have also seen internal Council correspondence from February 2023, where the Council confirms this course of action.
37. However, the proposed annual review meeting did not take place. The Council told me this was because Mrs X declined to engage with College F’s pastoral intervention, or attend an annual review meeting. However, the Council had told Mrs X a meeting would take place without her and Y’s attendance. In June 2023, Mrs X contacted the Council to ask what was happening. In response, the Council asked Mrs X whether she had attended an annual review meeting. Mrs X confirmed she had not attended any meeting, nor had the Council updated her.
38. The Council has confirmed the proposed annual review meeting did not take place. I have found the Council at fault for not arranging this annual review meeting, as it said it would.
39. This fault caused Mrs X and Y an injustice. The Council had notice from December 2022 that Y was not attending College F, and that College F believed it could not meet Y’s needs or keep him safe. The Council therefore knew Y could not attend the setting or receive the special education provision detailed in his EHC Plan. Had the Council completed a review, it could have amended the provision or setting named in the EHC Plan to better meet Y’s needs. Had it done so, and Mrs X disagreed, she could have exercised her right of appeal to the SEND Tribunal. By failing to conduct the annual review, the Council allowed the circumstances to drift. This resulted in Y not attending College F, or receiving the special educational provision to which he was entitled. Mrs X also had no mechanism through which to challenge decisions about Y’s provision or setting.
40. In correspondence sent to Mrs X in September 2023, the Council conceded Y’s course was not suitable for his needs. I consider the Council should have acted to address this concern from the beginning of the Spring term of the 2022/23 academic year, but failed to complete the correct procedures to do so. Because of this, Y did not receive the special educational provision set out in his EHC Plan for two full academic terms, the Spring and Summer terms of the 2022/23 academic year.
41. Mrs X said the Council also failed to secure provision in the Autumn term of the 2022/23 academic year. I have not found the Council at fault for this. The Council had reviewed the provision in place in March 2022 and found it met Y’s needs. This understanding continued through to the beginning of the new academic year in September 2022, and the Council had no reason to suspect provision was not being secured. The Council only became aware of concerns in December 2022, following contact from Mrs X.

Back to top

Agreed action

42. Within four weeks of the final decision being issued, the Council has agreed to:
1. Provide a written apology to Mrs X for the faults and injustice identified in this statement. The Council should have regard to the Ombudsman’s guidance on “Making an effective apology", set out in our Guidance on Remedies document.
2. Pay £2400 in recognition of Y’s lost education provision. This is a figure of £1200 for two academic terms, the Spring and Summer terms of the 2022/23 academic year. I have considered the Ombudsman’s Guidance on Remedies when making this recommendation. I have considered:
1. Y is a vulnerable young person with an EHC Plan, who has special educational needs. However, Y is not in compulsory education or a key transition year.
3. Pay Mrs X £250 in recognition of the avoidable frustration and uncertainty she experienced due to the faults identified in this statement.
43. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

44. I have completed my investigation with a finding of fault causing injustice. I have made recommendations to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman