Summary: Mrs Z complained the Council delayed in providing face to face tuition for her son, Mr X, after agreeing to include it as part of his Education Health and Care Plan. She also complained the Council provided inaccurate information in response to her complaint about this causing frustration. The Council acknowledges fault in both respects and a suitable remedy for the injustice caused is agreed.

The complaint

1. Mrs Z, on behalf of her son Mr X, complains the Council delayed in providing face to face tutoring after agreeing to include it as part of his Education, Health and Care Plan (EHC Plan) and provided inaccurate information in response to a complaint about this.
2. Mrs Z says this has resulted in a loss of education provision for her vulnerable son and caused distress and frustration to herself.

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. 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).

Back to top

How I considered this complaint

6. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

Back to top

What I found

Maintaining the EHC Plan

7. 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)  

8. 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. 

Reviewing EHC Plans

9. 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.

10. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 

Key facts

11. Mr X is 23 years of age and lives in a residential setting which meets both his care and social needs. Mr X has an EHC Plan which continued after the age of 18. Mrs Z says that he presents as having learning difficulties but actually has communication difficulties. She says his social impairments make it difficult for him to access learning that is appropriate for his ability.
12. The annual review of Mr X’s EHC Plan was carried out in February 2023. All affected parties were invited to attend the review meeting on 21 February. Mrs Z attended but Mr X chose not to. At the review meeting a discussion took place about Mr X needing face to face tuition as he was unable to access the online provision previously included in his EHC Plan.
13. The Council issued the draft EHC Plan on 28 February and gave Mrs Z and Mr X 15 days to provide any comments. Neither made any comments on the draft EHC Plan. On 31 March, Mr X’s views about his provision were sought by staff from the residential setting. However, these views were not included in the EHC Plan before the final version was issued on 3 May 2023.
14. After receiving the final plan, Mrs Z contacted the Council querying why the face to face tutor was not included in the EHC Plan. Mrs Z did not appeal. However, she did then submit a formal complaint about a number of issues which she was not happy with.
15. The Council provided a stage one response on 9 August. It upheld the complaint that the EHC Plan had been issued without including Mr X’s views. It said that although the EHC Plan did not include face to face tutoring, there were ongoing attempts to identify a suitable tutor but this had not yet been successful. The Council also upheld the fact that in previous correspondence it had not signposted what Mrs Z could do if she was unhappy.
16. Mrs Z escalated the complaint to stage two. She was concerned the Council had misunderstood some of the issues raised and that the stage one response included factual inaccuracies. The Council provided the stage two response on 11 September. It apologised for any confusion in the previous response and acknowledged that Mrs Z had attended the annual review meeting in February and that face to face tutoring was discussed. It said it would re-issue the EHC Plan, which it did on 20 September 2023. An appropriate tutor was identified and weekly sessions began in October 2023.

Analysis

17. Mr X’s EHC Plan issued in May 2022 included in Section F, provision of individual and specific 1:1 support to access online learning opportunities of interest to him. Mrs Z says this was not provided. In response to my enquiries the Council accepts that this specific online learning had not been made available to Mr X and that this was explicitly discussed at the review meeting in February 2023.
18. Council’s have a statutory duty to provide all provision set out in Section F of an EHC Plan. Therefore, it was fault not to provide this online learning. However, it is my understanding that online learning is not suitable for Mr X and so it is unlikely to have been successful even if provision had been identified. I am therefore not persuaded Mr X suffered a significant enough injustice to warrant any remedy for the failure to provide the online tuition.
19. However, after raising this issue at the annual review meeting, the Council accepts that face to face tutoring should have been included at Section F from May 2023 onwards but this did not happen. It says this was due to the case officer waiting for feedback from Mr X about what his aspirations are for the sessions and looking to identify a suitable tutor. It says that there was a lack of understanding about the process for securing additional provision and has provided training for case officers to ensure such an error does not occur again.
20. Once the final EHC Plan was issued the right of appeal engage in respect of the provision included in Section F. I note that no appeal was made in this case. However, I take the view that while appeal rights were engaged, it was reasonable for Mrs Z not to appeal. Mrs Z had been present at the annual review meeting and so was aware of the intention to provide a face to face tutor. The Council accepts it was fault not to include this provision in Section F saying it was due, in part, to the lack of experience of its case officer. Therefore, I am proposing a remedy for the loss of education provision from May to October 2023.
21. I also note the stage one complaint response included inaccurate information. This was frustrating for Mrs Z as she felt powerless and that she was not being listened to. She made the complaint because she wanted to ensure her son received the correct provision and not providing an accurate stage one complaint meant she had to continue to complain and meant further delay in her son getting the correct provision.
22. The mistakes in the stage one complaint response amount to fault and resulted in Mrs Z being put to avoidable time and trouble in having to pursue the matter further. When Mrs Z initially contacted the Ombudsman, the face to face tuition was still not in place but I am pleased to note this is now resolved.

Back to top

Agreed action

23. To remedy the injustice caused as a result of the fault identified in this case the Council should, within one month of my final decision, take the following action;
• Apologise to Mr X and Mrs Z;
• Make a symbolic payment of £250 to Mr X to recognise the loss of face to face tuition from May to October 2023; and
• Make a symbolic payment of £250 to Mrs Z to recognise her frustration and avoidable time and trouble in pursuing this matter.
24. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

25. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman