• The complaint
• The Ombudsman’s role and powers
• What I have and have not investigated
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: We have found fault with the Council for failing to deliver the social care provision in Mr X’s son’s (Y’s) Education Health and Care Plan. This caused Y and his family an avoidance injustice. The Council has agreed to remedy this injustice.

The complaint

1. Mr X complained the Council did not provide all of his son’s special educational provision as outlined in his final Education Health and Care (EHC) Plan.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. 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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What I have and have not investigated

4. I have investigated Mr X’s complaint about the missed provision. I have not investigated matters dealt with by the Tribunal although I have referred to these for context.

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How I considered this complaint

5. I have considered Mr X’s complaint and have spoken to him about it.
6. I have also considered the Council’s response to Mr X and to my enquiries.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
8. 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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What I found

Law and guidance

EHC Plan

9. 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.

Maintaining the EHC Plan

10. 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)
11. 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.

What happened

12. Mr X’s son, Y has special educational needs and disabilities (SEND). From the age of 5, he attended a specialist school until summer 2022 as he had turned 18.
13. Y’s Final EHC Plan named a specialist college from September 2022 for 4 days a week and stated in addition the Council would provide social care for Mondays.
14. Before September 2022, Y visited a day care placement. Mr X said Y did not cope well, and the placement said it could not take him. The Council said it had another potential day care placement and would put in a referral.
15. By December 2022, Y was still not attending a day care placement. Mr X chased the Council about the referral. In January 2023, the placement said it could not take Y due to his behaviour.
16. Mr X appealed the EHC Plan on several grounds. This included the Council’s failure to deliver social care one day a week.
17. In January 2023, the Tribunal decided that Y should attend a specialist college 15.5 hours a week including 2 hours a week of direct OT and 1 hour a week direct SALT. He should also access one day a week from a day care provider (Monday 9-3).
18. By March 2023, the Council was still not delivering a social care day placement for Y. Mr X complained to the Council.
19. Y’s college placement ended in summer 2023. Mr X said this was because Y was unable to fully access the opportunities and was unable to achieve expected targets. Mr X said this was due to Y not accessing the social care one day a week which meant he was unable to cope with college.
20. In August 2023, the Council identified an out of county placement that Y now attends 5 days a week. This includes opportunities for him to access the community and develop his social skills. Mr X said Y is very happy here.
21. In September 2023, the Council issued a Stage 1 response to Mr X’s complaint. Mr X requested that the Council escalate his complaint to Stage 2. The Council responded in January 2024 with the decision that it would not take Mr X’s complaint any further as the outcome would not change.
22. Mr X brought his complaint to the Ombudsman in January 2024.

My findings

Failure to deliver EHC Plan provision

23. The Council agreed that Y should access a social care day placement one day a week from September 2022. This was included in his Final EHC Plan issued in February 2022.
24. Although the EHC Plan was considered at Tribunal, this provision was not changed in Y’s Final Amended EHC Plan.
25. The Council did not deliver the one day social care provision between September 2022 and August 2023. This was fault.
26. This missed provision severely impacted on Y’s social skills and behaviour. This caused problems at home and ultimately resulted in Y’s college placement ending.
27. Given Y’s age and the fact that he is settled in a new placement, I did not consider that a remedy of retrospective provision would be suitable. Instead, the Council has agreed to apologise and make a payment to Mr X to go some way in remedying the impact the lost provision has had on Y and his family.
28. Y and his family have suffered nearly a year of uncertainty, stress, inconvenience and frustration caused by the Council’s failure to deliver Y’s provision. This amounts to avoidable distress. The Council has agreed to make a symbolic payment of £500.

Complaint handling

29. Mr X complained to the Council in March 2023. According to the Council’s complaint policy, the Council should have responded to Stage 1 within 20 working days (plus 10 days for complex cases). Then a further 20 working days (plus 10 for complex cases) to respond to Stage 2.
30. It took the Council 7 months to respond to Mr X’s Stage 1 complaint and a further 4 months to respond to Stage 2. Nearly a year in total. This was fault.
31. This delay caused Mr X and his family additional frustration and delayed his opportunity to bring his complaint to the Ombudsman.
32. The Council has agreed to apologise and pay Mr X £500 in recognition of the time and trouble he experienced during the delayed complaints process.

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Agreed action

33. Within 6 weeks of my decision, the Council has agreed to:
    • 1. Apologise to Mr X for its failure to secure a social care day placement for Y and for its delayed response to Mr X’s complaint.
      2. Pay Mr X £500 in recognition of the distress that the missed provision had on Y and his family.
      3. Pay Mr X £500 in recognition of the time and trouble it took for him to access the complaints process.
34. The Council should provide us with evidence it has complied with the above actions.

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Final decision

35. I have completed my investigation. I have found fault with the Council for failing to deliver the provision set out in Y’s EHC Plan and for the delays Mr X encountered during the complaints process.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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