Summary: The Council failed to provide the provision set out in Miss K’s Education Health and Care plan, or take sufficient steps when this meant she could not go to school. The Council also failed to notify her parents that it intended to maintain the plan without amendment, and it took too long to respond to their complaints. The Council’s failings meant that Miss K did not have any education for two years and her parents lost the right to appeal the decision not to amend the plan. This caused the family distress and frustration. The Council has agreed my recommendations to remedy the complaint.

The complaint

1. Mr and Mrs B complain that the Council failed to provide a personal assistant for their daughter from Summer 2021 to September 2023, in accordance with her Education Health and Care (EHC) plan. It also took too long to deal with their complaint about this.
2. Mr and Mrs B say that this meant that their daughter was not able to fully attend school, and that the Council’s shortcomings caused their daughter, and the rest of the family distress and frustration.

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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 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. 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)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

6. I considered the information provided by Mr and Mrs B and discussed the issues with them. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have considered the comments received before issuing this final decision statement.

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What I found

The law and guidance

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. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
8. 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.
9. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC plan or about the content of the final EHC plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC plan has been issued.
10. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
11. For young people with an EHC plan, preparation for transition to adulthood must begin from year 9 (age 13 to 14). Transition planning must consider the young person’s needs as they move towards adulthood. It should plan to support their choices for further education, employment, career planning, financial support, accommodation, and personal budgets where appropriate. 
12. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This includes the right to education. The Act requires all local authorities - and other bodies carrying out public functions - to respect and protect individuals’ rights.
13. We cannot decide if an organisation has breached the Human Rights Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.

What happened

14. Mr and Mrs B’s daughter, Miss K, has special educational needs. During the scope of this investigation Miss K was 16 to 18 years old, and in year 12 and 13 of a special school. Miss K’s EHC plan says she will have a personal assistant to provide one hour each week-day morning of education and training in learning independent living skills. This will include how to get up on time, get dressed, attend to her personal hygiene, prepare for the day ahead and leave the house on time. This provision was agreed at a tribunal in July 2021.
15. Mr and Mrs B chased both the Council and the school for this provision but the Council failed to provide the personal assistant. Mr and Mrs B complained to the Council on 22 June 2022. They said that the lack of a personal assistant meant that Miss K was unable to go to school.
16. The Council responded on 12 August. It apologised for not providing the personal assistant, due to an oversight on its part. It said the personal assistant was mentioned in the EHC plan but the Council failed to progress this. It said it would arrange the personal assistant as a priority. The Council also said it would discuss other parts of the EHC plan with Mr and Mrs B.
17. By November, the Council still had not provided the personal assistant or contacted Mr and Mrs B about this. Mr and Mrs B asked the Council to consider the complaint at stage two of its process. They said the provision was still not in place, it was not clear how this would be funded, and they also asked about an Education Other Than at School (EOTAS) package that might be an alternative to Miss K’s current school-based education.
18. The Council reviewed K’s EHC plan in November 2022. The review concluded that it could not judge whether Miss K had met the intended outcomes of the current plan because she had not been able to attend school. The school had suggested that Miss K attend for only short sessions but she had not been able to come to many of these. The school’s family support worker was regularly visiting the family to maintain contact but this had distressed Miss K.
19. At this review, Miss K was in Year 13, her final year of school. The review would usually look at Miss K’s preparation for adulthood. Miss K’s review says that as she is not in school, it cannot form a view as to how she is progressing to independence, nor her readiness for the next stage. Mr and Mrs B said they did not believe the school was the right place for Miss K. The parents and the school asked the Council to consider an EOTAS package.
20. The Council says its records show that it decided not to amend the plan. The law says that the Council should have notified Mr and Mrs B of this decision. The parents would then have the right to appeal to the tribunal against this decision. This is particularly relevant as Mr and Mrs B had expressed concerns about whether the school was the right place for Miss K, and she was not receiving any education.
21. The Council met with Mr and Mrs B later in November 2022 to discuss their complaint, but it did not respond until 16 February 2023. The Council apologised that it had taken so long to respond to their complaint. It said it was working hard to improve the timescales.
22. The Council again said that it would provide the personal assistant and it had referred the matter to senior managers to decide how to fund this. It apologised that the matter had been outstanding for over a year and that it would let Mr and Mrs B know as soon as it had made a decision.
23. In response to my investigation, the Council has explained that it was not clear whether the personal assistant would be providing educational or social care provision. This meant that the Council was not clear which department should arrange it. The Council did not begin to seek a personal assistant until May 2023. It approached professionals close to Miss K to see if they could take on this role. This was not successful and in June 2023, the Council made a referral via its social care system to recruit a personal assistant. The assistant met with Miss K in mid-July 2023, just before the end of term. The assistant started work with Miss K at the beginning of September 2023.
24. The Council sent a further response to Mr and Mrs B’s complaint on 1 August 2023. It again apologised for the significant delays in providing the personal assistant. It said it could not put Miss K back in the position she would have been had the provision been made, but it would backdate payments to July 2021. It said Mr and Mrs B may be able to use this money to find alternative support for Miss K alongside the personal assistant.
25. The Council offered to pay Mr and Mrs B £7,995 in respect of the missed provision (of 78 academic weeks). It offered to pay Mr and Mrs B £500 in recognition of the time and trouble it had put them to, and £1000 in recognition of the distress it had caused them. The Council also offered to write to Miss K directly to apologise.
26. The Council reviewed its service as a result of Mr and Mrs B’s complaint. The delay was partly caused by confusion about whether the personal assistant would be funded by its social care or education team. The Council said that it had reorganised its EHC team so that specific areas of the service have a clear team leader with identified roles and responsibilities for the child and young people it supports. The aim is to prevent children and young people being passed between different areas of the service, and so it will be able to put provision into place more effectively.
27. The Council told me it was committed to completing this year’s review of the EHC plan due by 21 November 2023 (a year since the last review). But as of today’s date the Council has not completed the review.
28. The Council has assessed Miss K’s adult care needs. It says she needs social care support for two days per week. It is intended that this provision will start as soon as possible.

Analysis

29. There was clear fault by the Council. It has acknowledged that it failed to provide the personal assistant in accordance with Miss K’s EHC plan for nearly two years. This meant that Miss K did not receive the support she needed to attend school. Mr and Mrs B have told me that this jeopardised her education entirely, and the 2022 review is clear that Miss K was not receiving any education. The Council has reviewed its practices to prevent this fault from recurring.
30. The Council failed to notify Mr and Mrs B that it did not intend to amend the EHC plan following the review of the plan in November 2022. Mr and Mrs B had already expressed concerns about whether the school was the right place for Miss K and whether she should have an EOTAS package instead. The Council also knew that Miss K was not receiving any education or any provision from her EHC plan. The Council’s failure to notify Mr and Mrs B of the outcome of the review denied them the right to appeal this decision at tribunal, which ultimately may have led to recommendations to change the plan.
31. It was clear that Miss K was not receiving any education. The Council did not fully consider whether it was illness or lack of provision that was causing Miss K’s absence, and what this meant for the Council’s duty to make sure the provision in the EHC plan was available. The Council did not arrange an emergency review in light of her inability to attend school, nor did it take steps to make sure Miss K was receiving the education provision set out in her EHC plan. In addition, given the length of time that Miss K could not attend school, the Council failed to have due regard to Miss K’s right to an education (Article 2, the First Protocol, Human Rights Act 1998).
32. The Council did not properly engage with its legal duty to support the planning for Miss K’s transition to adulthood. The review simply says that it is uncertain because Miss K had not attended school.
33. The Council took too long to respond to Mr and Mrs B’s complaint. This had a significant impact on them, particularly as the impact of the Council’s shortcomings, the reason for the complaint, was ongoing. The Council’s failure to respond in good time caused Mr and Mrs B distress and put them to additional time and trouble.
34. The Council has failed to review Miss K’s current EHC plan in time. This is further fault and means that Miss K continues to miss out on post-18 education.
35. Overall, the Council’s failures meant that Miss K did not receive an education for two school years, nor proper planning and support towards adulthood. This also caused all members of the family distress and frustration. The lack of an appeal right when the Council decided to maintain the EHC plan without amendment, left Mr and Mrs B uncertain as to whether an appeal would have led to a more appropriate provision for their daughter.
36. The Council offered to pay Mr and Mrs B an amount equivalent to that it would have paid for the personal assistant had this been in place from the start, as well as additional payments in recognition of the distress and frustration it caused them. This is not in line with the Ombudsman’s guidance on remedies.
37. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on.
38. I have recommended a way to remedy the injustice caused to Miss K, and her family.

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Agreed action

39. Within one month of the date of this decision, the Council will:
• Ensure that it has completed the review of Miss K’s EHC plan and communicated the outcome to the parents within the legal time frame.
• Apologise to Mr and Mrs B and if her parents deem it appropriate, separately to Miss K. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay to Mr and Mrs B £2,200 per term for the six terms of missed provision. This reflects that Miss K was not receiving educational provision.
• Pay to Mr and Mrs B £1000 for the distress it caused them, and for the uncertainty that the right to appeal may have resolved the problems sooner.
• Pay to Mr and Mrs B £500 in recognition of the time and trouble they were put to when the Council failed to respond to their complaints in good time.
40. The Council should provide us with evidence it has complied with the above actions.

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Final decision

41. I have completed my investigation. There was fault by the Council causing injustice to Mr and Mrs B and their family.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman