Summary: Miss F complained on behalf of her adult daughter that the Council had failed to make special educational needs provision for her. We found fault which caused distress and lack of provision. The Council has agreed to apologise and make payments to remedy that injustice.

The complaint

1. Miss F complained on behalf of her adult daughter, Miss J, that the Council had failed to make special educational needs provision for her since September 2022.
2. Miss F says this has caused significant distress to her and her daughter and caused Miss J’s mental health to deteriorate so that she now requires medication.

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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. 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)
5. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
6. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
7. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
8. 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)
9. 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 have and have not investigated

10. I have investigated the period from March 2023 to May 2024.
11. Miss F complained to us in May 2024, on behalf of her daughter, about events from September 2022. The law says 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 or care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended) This means I can investigate matters from May 2023.
12. I have seen no good reason why Miss F could not have complained about lack of provision in Autumn 2022 or early 2023, so I consider that that period is late and out of our jurisdiction. I have exercised discretion to investigate from when the new EHC plan was issued in March 2023.
13. The law says we cannot normally investigate a complaint when someone has a right of appeal to the SEND Tribunal. Councils have a duty to secure the provision in the EHC plan whilst any appeal is pending. However, we may be prevented from investigating where the failure to secure the EHC plan provision is a consequence of a decision that can be appealed.
14. I consider that the lack of SEN provision from September 2022 to March 2023 related to Miss J and Miss F’s disagreement with the setting named in Section I of the June 2022 EHC plan. Miss F could have appealed against the plan once she knew that Miss J did not want to attend the setting named in it. We have some discretion if we consider the complainant was waiting for the Council to take steps to resolve the disagreement, but I have seen no evidence of this. My view therefore is that it would have been reasonable for Miss F to appeal to the SEND Tribunal in 2022.
15. I therefore consider that the period June 2022 to March 2023 is out of our jurisdiction as it is late and could have been considered by the Tribunal.
16. Miss F and Miss J were happy with the EHC plan issued in March 2023; it therefore would not have been reasonable for them to have appealed against it. So I have exercised my discretion to investigate provision from March 2023 until when Miss F brought her complaint to the Ombudsman.

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How I considered this complaint

17. I spoke to Miss F about the complaint and considered the Council’s response to my enquiries and the SEND Code of Practice.
18. Miss F 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

Special educational needs

19. A young person up to the age of 25 with special educational needs (SEND) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the young person's educational needs and what arrangements should be made to meet them. The Council has a duty under section 42(2) of the Children and Families Act 2014 to make sure that arrangements specified in the EHC plan are put in place and reviewed each year.
20. EHC plans must be reviewed every twelve months to consider whether the provision remains appropriate and whether progress is being made towards the targets in the EHC plan. A council can consider holding an early review if there is a change in the young person’s circumstances. 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.
21. Parents or young people have a right of appeal to the SEND Tribunal if they disagree with the SEN provision, the educational setting named in the plan, or the fact that no setting or other provider is named. They may also appeal a decision not to amend an EHC plan following a review.
22. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.

What happened

23. Miss J has special education needs and anxiety. She had been attending the sixth form of an independent special school. She was due to leave in July 2022.
24. The Council issued a final EHC plan in June 2022 which named the sixth form until July 2022 and College 1 from September 2022. Miss J visited College 1 but had a negative experience there and decided she did not wish to attend and did not enrol. At this point, Miss F could have appealed to the SEND Tribunal about the setting named in the EHC plan.
25. There was an early annual review in December 2022 and Miss J and Miss F asked for a different placement to be named in the EHC plan.
26. On 13 February 2023, the Council referred Miss J to its interim teaching service (IPS) which is tuition provided to young people who hold an EHC plan, are not currently on the roll of a school or college and are awaiting placement in their next educational setting.
27. The Council consulted with other settings and in March College 2 said it would be able to meet Miss J’s needs. The Council issued a new final EHC plan on 24 March naming College 2 from September 2023. Miss J and Miss F were happy with the plan.
28. The IPS service met with Miss F and Miss J in April to discuss what education could be provided to reintegrate Miss J back to college. Miss F says she heard nothing further.
29. Miss F complained to the Council on 30 August that she had had no response from IPS, that Miss J was receiving no education and had been “lost in the system”. She said Miss J’s mental health had deteriorated, she had had suicidal thoughts and was on anti-depressants.
30. Miss J was due to start at College 2 in September but I have seen no evidence she did so.
31. The Council responded to Miss F’s complaint on 16 October. It said it would hold an annual review of the EHC plan. It apologised for the delay in starting IPS tuition and for the lack of communication.
32. There was a meeting on 22 November to review Miss J’s education. In response to my enquiries, the Council said this should have been a formal annual review but that during the meeting it was agreed an annual review would be held later in the school year, however this was not done.
33. At the meeting it was arranged for Miss J to visit the IPS centre and the tuition started on 6 December.
34. Miss J attended a few sessions over the next few weeks but in January 2024, Miss F told the Council that her mental health had deteriorated and she was not able to attend. Miss F told me that the tuition was not suitable as it was isolating for Miss F. In March, Miss F told the Council that Miss J had required mental health intervention. I have seen no evidence that Miss J could have engaged in tuition after this. There was an annual review on 30 October to consider what education could be provided to Miss J.

My findings

35. There was a delay in starting the IPS tuition. Although there was an EHC plan naming College 2, that was from September 2023 only. As the Council had already accepted the IPS referral and met with Miss J in April 2023, my view is that it considered the tuition and reintegration should be in place from April to July 2023. It was not for reasons which are unclear. This is fault.
36. Miss J was due to start at College 2 but was unable to as she had had no education or reintegration. Although the Council has no duty to provide alternative provision as Miss J is over the school leaving age, I consider the IPS tuition should have continued to be in place from September but it did not start until December 2023. This is fault.
37. This fault caused Miss J and Miss F distress and for Miss J to miss out on the EHC plan provision which the Council had a duty to secure for two terms (April to December 2023). This is an injustice.
38. My view is that Miss J’s inability to engage with education from January to July 2024 was caused by the deterioration in her mental health, not by fault by the Council which had by now put the tuition in place.
39. 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.
40. Our guidance says a moderate, symbolic payment may be suitable to remedy distress caused by fault.
41. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of at least £900 per term to acknowledge the impact of that loss. In deciding on a figure, we consider factors such as:
• The severity of the person’s SEN as set out in their EHC plan.
• Any educational provision – full time or part time, without some or all of the specified support – that was made during the period.
• Whether additional provision can now remedy some or all of the loss.
42. I have taken account of these factors and consider a payment of £1,000 per term would be appropriate.

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Agreed action

43. Within a month of my final decision, the Council has agreed to apologise to Miss J and Miss F and:
• Pay Miss J £2,000 to acknowledge the loss of educational provision for two terms and £250 to remedy the distress caused.
• Pay Miss F £250 to remedy the distress caused.
44. The Council should provide us with evidence it has complied with the above actions.

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Final decision

45. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman