Summary: Mrs X complained the Council failed to secure some of the provision in her daughter, Miss Y’s, Education, Health and Care plan. She also complained about the wording of the plan and the documents included in its appendix. The Council was at fault for failing to secure the career coaching and mental health interventions in Miss Y’s plan. It was also at fault for failing to respond to Mrs X’s complaint. The Council will apologise to Mrs X and Miss Y and pay Mrs X a total of £2200 in recognition of the impact of the lost provision on Miss Y and the distress she felt. It will also carry out staff training.

The complaint

1. Mrs X complained on behalf of her daughter Miss Y. Mrs X complained the Council:
1. had not secured the special educational provision in Miss Y’s July 2022 Education, Health and Care (EHC) plan since September 2022. Specifically, Mrs X said the Council had not made the exam arrangements Miss Y needed and had not arranged weekly mental health interventions or weekly careers coaching;
2. had not amended Miss Y’s EHC plan in accordance with the SEND Tribunal’s order. She said the EHC plan should say ‘EOTIS/C’ instead of EOTAS; and
3. wrongly removed documents from section K of Miss Y’s EHC plan.
2. Mrs X said this impacted on Miss Y’s ability to work towards employment and caused Miss Y distress and anxiety.

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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)
4. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
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)
6. 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.

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How I considered this complaint

7. I have considered:
• all the information Mrs X provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the relevant law and guidance and the Ombudsman's guidance on remedies.
8. Mrs X 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

Relevant law and guidance

9. 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. Section F is the special educational provision the child or young person will receive. Section K is the appendices. Statutory guidance called the “SEND code of practice: 0-25 years” sets out section K should include the documents relied upon when assessing the child or young person for their first EHC plan.
10. Councils have a duty to secure the specified special educational provision in an EHC plan for a 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. 
11. Some children and young people with special educational needs are not able to attend formal educational settings due to their needs. They may instead receive Education Otherwise Than At/In School (EOTAS or EOTIS). Although the term EOTAS references school, EOTAS can be delivered in post-16 settings as well.

What happened

12. Miss Y is a young person with complex disabilities who receives education at home.
13. In 2021, the Council issued an amended EHC plan, which Mrs X appealed. The SEND Tribunal heard the appeal in June 2022 and partially upheld it. It made changes to Miss Y’s draft EHC plan and directed the Council to finalise them and issue Miss Y’s new amended EHC plan. These changes included the addition of a new paragraph which stated Miss Y “will have a package of educational provision made otherwise than in school or college”. The Tribunal also amended the part of section F which recorded who would provide the provision to say “EOTIS/C (Education Otherwise Than In School or College)” instead of “EOTAS”.
14. The Council issued Y’s amended final EHC plan in late July 2022. Section F included the new paragraph but reverted to EOTAS in the section about who would provide the provision. It included the following special educational provision.
• Weekly mental health intervention for at least 45 minutes per week.
• One hour per week of career coaching with a further 15 minutes per week for the coach to meet with Miss Y’s teaching assistant.
• Exam access arrangements were to be applied for, such as extra time, a scribe and use of a laptop.
15. Section K of the EHC plan listed all the reports and advice the Council had received on her needs. They dated back to 2017, when Miss Y was first assessed for an EHC plan. The plan noted which reports were included in the appendix.
16. Mrs X was unhappy and complained to the Council in late October 2022. She said:
• the Council had not yet secured the weekly mental health intervention, career coaching or exam arrangements in the July 2022 EHC plan;
• she wanted the Council to amend Miss Y’s EHC plan to refer to EOTIS/C instead of EOTAS. Mrs X told me this was because without the explicit reference to college, Miss Y was worried the Council could force her to attend college; and
• the Council should include all the specialist advice it had ever received as part of the EHC plan process in section K, dating back to Miss Y’s first plan in 2017. Mrs X told me that without all of the advice, wording about Miss Y’s diagnoses, needs and provision could be removed from the EHC plan. She also said professionals working with Miss Y would be underinformed.
17. The Council did not respond to Mrs X’s complaint. The Council accepts it failed to record Mrs X’s complaint and this meant it missed an opportunity to respond to it. In November 2022, Mrs X submitted a document required for the first stage of legal action to the Council.
18. The Council replied in mid-December to say:
• it was in the process of arranging the mental health interventions;
• the career coaching had been in place but had stopped because the tutor felt uncomfortable. Sourcing a new tutor had taken time;
• Miss Y needed to choose where she wanted to sit her exams. The Council would then work with Provider B to register her for a place.
• it would not amend Miss Y’s EHC plan to say EOTIS/C because it did not affect how the plan would be delivered. The Council said it could make the change after the next annual review of the plan; and
• it had only included documents in section K which it had referenced in the plan. The Council said if it had referenced a report but not included it in section K, Mrs X should tell it and it would change the plan after the next annual review.
19. Mrs X remained dissatisfied and complained to the Ombudsman.
20. Mrs X had previously complained to the Ombudsman about the information the Council included in section K of an earlier EHC plan. She said it did not include all the specialist advice and that if the Council would not do so, it should compile the advice in a single pdf. We did not investigate that complaint because we found the Council had confirmed it kept advice and reports on a system which is set up so professionals can access it if necessary. We found that while this was not a single pdf as Mrs X wished, there was insufficient evidence any potential fault causing an injustice, because specialists still had a way to access the advice.
21. Mrs X told me the Council issued a new version of Miss Y’s EHC plan in mid-July 2023. It refers to EOTIS/C. Mrs X said she had now asked the Council to remove some out-of-date documents from section K, which would allow it to send the plan with appendices to people working with Miss Y. The Council did so and issued a new plan in August 2023.

Career coaching

22. Starting before the July 2022 EHC plan, Miss Y received career coaching from a provider (Provider A). In September 2022, Provider A told the Council it would stop supporting Miss Y.
23. The Council asked another provider already supporting Miss Y (Provider B) if it could do the career coaching. Provider B confirmed it could and a tutor was due to add the coaching into Miss Y’s existing support from December 2022.
24. However, in late November, the tutor resigned. Provider B said it would source a new tutor.
25. In late January 2023, the Council contacted Provider B who said it was offering some career coaching as part of other lessons.
26. In April 2023, the Council reviewed Miss Y’s EHC plan. It found the coaching offered by Provider B was not the full provision in Miss Y’s EHC plan. The Council decided to commission the career coaching separately and the support from Provider B stopped.
27. The Council contacted Provider A to ask if it would do the coaching but there was some delay outside of the Council’s control until July 2023, when the Council formally commissioned the support. Mrs X says it is due to start at the end of August 2023.

Mental health

28. Between July 2022 and March 2023, Mrs X made several requests for a personal budget which would allow her, in part, to commission the mental health interventions in Miss Y’s EHC plan directly. The Council refused those requests.
29. In March 2023, the Council began commissioning the mental health support, which began in early May 2023.
30. The Council told me it accepts it has not secured the mental health or career coaching provision in Miss Y’s EHC plan and that this caused Miss Y an injustice. It offered to make a suitable remedy.

Exam arrangements

31. In January 2023, Miss Y told the Council which registered exam centre she wanted to take her exams at. The Council explained it would not be able to register her in time for the next exams in June, and suggested she take them in November 2023 instead. Miss Y agreed as it would give her more time to prepare.
32. The Council told me it is currently working with Miss Y and Mrs X to arrange the exams. The deadline is early October.

Findings

Failure to secure career coaching

33. Despite what the Council said in its mid-December letter to Mrs X, there is no evidence Miss Y had career coaching from September 2022 to November 2022. She was also without coaching from May 2023 to August 2023. From December 2022 to April 2023 Miss Y received some limited coaching. I recognise some of the delay was due to time it takes to commission new providers and other matters outside of the Council’s control.
34. However, I note the Council was aware from December 2022 that the tutor had resigned and from late January 2023 that Miss Y was not receiving the full career coaching she was entitled to. The Council made no effort to confirm if Provider B had sourced another tutor to deliver the full career coaching in Miss Y’s EHC plan, or to secure it itself, until April 2023.
35. Regardless of the reason the provision was not in place, the Council has a duty to secure the provision in a child or young person’s EHC plan. That duty is absolute and the Council’s failure to comply with it was fault.

Failure to secure the mental health intervention

36. The Council did not arrange the mental health interventions in Miss Y’s July 2022 EHC plan until May 2023. This was fault; the time spent responding to Mrs X’s requests for a personal budget should not have prevented the Council arranging the mental health interventions in the meantime.

Injustice

37. I welcome the Council’s recognition of the faults set out in paragraphs 35 and 36 and its offer to provide Miss Y a remedy for the injustice she experienced. In line with the Ombudsman’s Guidance on Remedies, I have recommended the Council pay Mrs X £2000 for the benefit of Miss Y’s education, in recognition of the impact of the lost provision. This takes into account the provision Miss Y missed, what other provision she received, where she was in her school career and the severity of her special educational needs. I have also recommended a symbolic payment for Mrs X to remedy the distress she felt due to the fault.

No fault in how the Council applied for Miss Y’s exam access arrangements

38. Miss Y’s July 2022 EHC plan says the Council must apply for exam access arrangements. This can only be done once a student is registered to sit their exams at a registered exam centre.
39. Once Miss Y confirmed which external centre she wanted to attend to take her exams, the Council suggested she take them in November 2023. Miss Y agreed and the Council has confirmed it is working with Miss Y and Mrs X on the exam arrangements. It was not at fault.

No fault in the Council’s use of EOTAS in Miss Y’s EHC plan

40. Mrs X feels the Council should have used the exact phrase “EOTIS/C” in Miss Y’s July 2022 EHC plan, as used by the SEND Tribunal, instead of EOTAS. She said removing the reference to college made Miss Y worry the Council could force her to attend college.
41. The Council’s decision to refer to EOTAS does not amount to fault. EOTAS covers education delivered outside of a formal setting, be it school or college. Miss Y’s EHC plan included the paragraph inserted by the Tribunal which explicitly referred to education otherwise than at school or college. In any event, I note the Council has now issued a new version of Miss Y’s EHC plan which uses Mrs X’s preferred wording.

No fault in the documents the Council included in section K of Miss Y’s EHC plan

42. The statutory guidance only states that councils must include the information relied upon during a child or young persons EHC assessment in section K. For Miss Y, this would be information the Council received in 2017. The guidance does not state what needs to be in section K in the years after the first EHC plan. Given EHC plans should be a functional document designed to clearly set out a young person’s needs and their required special educational provision, it would be logical to assume section K should only include the advice most relevant to the current version of the plan.
43. The Council confirmed the July 2022 ECH plan included the advice referred to in the document and listed the other advice it had received which was not included. The Council also confirmed the advice remains available for people working with Miss Y to see if they need to. This is an approach commonly taken by councils to ensure an EHC plan is usable day to day. The Council was not at fault.
44. Mrs X was concerned that by not including some documents in section K, the Council could remove wording from the main body of the decision. Such changes would be appealable to the SEND Tribunal, as would any decision by the Council to name a college for Miss Y to attend.
45. Since her complaint to the Ombudsman, Mrs X agreed some older documents could be removed from section K to reduce the plan’s overall size. The Council has complied with that request, so the matter is now resolved.

Failure to respond to Mrs X’s complaint

46. The Council accepts it was at fault for failing to respond to Mrs X’s October 2022 complaint. This caused Mrs X avoidable distress.

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Agreed action

47. Within one month of the date of my final decision, the Council will:
1. apologise to Miss Y for the impact the lost provision had on her;
2. apologise to Mrs X for the distress she felt because of the Council’s failure to secure the provision in Miss Y’s July 2022 EHC plan and its failure to respond to her complaint. In making its apologies, the Council may want to refer to the Ombudsman’s guidance on remedies. The guidance sets out what we expect apologies to look like;
3. pay Mrs X £2000 in recognition of the impact of the lost provision on Miss Y. The sum should be used for Miss Y’s educational benefit; and
4. pay Mrs X £200 to recognise the distress she felt due to the faults identified in this decision.
48. Within three months of the date of my final decision, the Council will remind staff:
1. that when they become aware a child or young person is not receiving the full provision in their EHC plan, they must act promptly to secure the missing provision; and
2. that they should not delay securing the provision in a child or young person’s EHC plan while responding to requests for personal budgets.
49. The Council will provide us with evidence it has complied with the above actions.

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Final decision

50. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.

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Investigator's decision on behalf of the Ombudsman