Summary: Mr X complains about the Council sending his child’s education, health and care plan to the wrong person at his college. As a result, the college used an incorrect plan that was not reflective of his needs for one whole academic year. The Council is at fault and this caused an injustice to Mr X and his child. The Council has agreed to remedy the injustice caused by the fault.

The complaint

1. The complainant, Mr X, complains the Council sent an education, health and care (EHC) Plan for his child, Y, to the college he was attending, without the relevant reports that should have accompanied the Plan and it sent it to a person at the college who was leaving their post. Mr X says this impacted upon the education Y received for one year because the College was not using the most up to date EHC Plan reflecting his needs and it did not have the relevant reports that should have accompanied the Plan.

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The Ombudsman’s role and powers

2. 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)
3. 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.
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 Mr X’s complaint and the information he provided.
7. I considered the information I received from the Council in response to my enquiries.
8. Mr X and the Council had the opportunity to comment on a draft of this decision. I considered their comments before making this final decision.

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What I found

Relevant law and guidance

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 SEND Tribunal or the council can do this. 

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What happened

10. Mr X has a son, Y, who has significant special educational needs that impact on his daily life. Y has an education, health and care (EHC) Plan maintained by the Council.
11. Mr X was unhappy with the contents of Y’s EHC Plan and used his right to appeal to the SEND Tribunal. Following a Tribunal order on 20 July 2022, an amended EHC Plan was issued. The contents of this Plan were agreed at Tribunal. The EHC Plan had three reports attached to it from a Speech and Language Therapist, Occupational Therapist and an Educational Psychologist.
12. In August 2022, the Council sent the EHC Plan to a staff member at the college who had left his post. The Council had been notified the staff member was leaving his post prior to sending the Plan.
13. The Council has acknowledged and upheld Mr X’s complaint that it sent the EHC Plan to the incorrect person and that it failed to attach the three reports. As a result, the college used an out-of-date EHC Plan for Y.
14. The Council became aware the college was using the incorrect EHC Plan for Y at an annual review meeting that was held in May 2023. The Council says it became aware of the issue when it received the annual review paperwork from the college in July 2023.
15. The Council sent the correct EHC Plan to the college in October 2023.

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Analysis

16. The Council acknowledges it is at fault for sending the EHC Plan to a staff member at Y’s college when it was aware this person was leaving his post but it maintains that Y did not miss out on any provision.
17. I have reviewed the EHC Plan the College was using and the EHC Plan that they should have been using. I have compared the two Plans and it is evident that Y’s social care needs had increased and this included accessing and engaging in work, training, education or volunteering. I have also found within the education provision section that Y had five outcomes whereas the Plan the College were using only contained three outcomes. Therefore, I consider Y did miss out on some provision as a result of the fault because the college was not aware of the outcomes and the provision Y needed because it was using a Plan that did not accurately reflect his needs. The EHC Plan also should have had three reports attached to it.
18. I acknowledge the College have said it does not have concerns about the education Y received and the Council maintains Y did not miss any provision and the reports had been sent separately on an earlier date. But the evidence shows there were differences between the EHC Plan used by the College in delivering the provision and the EHC Plan that it should have been using. The EHC Plan the College should have been using was a reflection of Y’s needs at that time whereas the College was using a document that reflected his needs in November 2021.
19. I have found further fault with the Council for the delay in rectifying matters when it became aware of the issue. This is because it was made aware in July 2023 but it did not send the EHC Plan that reflected Y’s needs to the college until October 2023.
20. As a result of the fault, Y’s education has been impacted upon for at least one academic year. Although the Council still maintains Y has not lost out on any provision, it has funded an additional year for Y at the college instead of ceasing Y’s EHC Plan. This remedies the loss of provision so I am unable to recommend an additional remedy. However, the impact of the fault does warrant a remedy as I consider it is significant due to the length of time of the injustice (one whole academic year) and the impact on Y due to the severity of his special educational needs.
21. The Council has offered Mr X £500 for the inconvenience and distress the fault caused. This does not adequately remedy the injustice to Y.

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Agreed action

22. To remedy the injustice caused by the faults identified above, the Council has agreed that within four weeks of this final decision it will:
• Make a written apology to Mr X for the faults identified within this decision statement;
• Pay Mr X £250 for the avoidable distress, frustration and uncertainty caused by the delay in rectifying the matter;
• Pay Mr X £1100 for the avoidable distress and impact on Y from September 2022 to October 2023. This payment should be used for Y’s benefit.
23. The Council will provide us with evidence it has complied with the above actions.

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Final decision

24. The Council is at fault and it has agreed to remedy the injustice caused to Mr X and to Y. Therefore, I have completed my investigation and closed this complaint.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman