Summary: Ms X complained that the Council failed to provide the special educational provision set out in her brother’s Education, Health and Care Plan, causing a loss of education and avoidable distress to the family. We find fault and injustice. The Council has agreed to make symbolic payments to the complainant and implement service improvements.

The complaint

1. Ms X complained, on behalf of her disabled sibling (Y), that the Council delayed in making appropriate provision in accordance with Y’s Education, Health and Care (EHC) Plan since it was issued in September 2023. This has meant that Y has missed nearly three terms of special educational provision. This has caused avoidable distress to the complainant and his family and a loss of education to Y.
2. The Council has investigated the complaint under its two stage corporate complaints procedure.

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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.
4. 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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. The First-tier Tribunal (Special Educational Needs and Disability-SEND) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
6. We also will not normally investigate a complaint whereby the complainant had an alternative remedy by means of appeal to the SEND Tribunal unless we consider that there are reasons why the complainant could not resort to this remedy.
7. 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)
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 have and have not investigated

9. Ms X had a right of appeal to the SEND Tribunal in September 2023 when the Council issued Y’s EHC Plan. However, we have exercised discretion to investigate the complaint because it was reasonable for Ms X to expect the Council to provide the required special educational provision.
10. Initially, I investigated matters from September 2023 to September 2024 which is when we formally accepted Ms X’s complaint for investigation. However, in view of further comments from Ms X, I decided, with the Council’s agreement, to extend the period of investigation to December 2024 because it is an ongoing matter. This will also save Ms X and the Council a need to consider a fresh complaint about this later period.

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How I considered this complaint

11. I made enquiries of the Council and have sent its response to Ms X. I have spoken to her on the telephone.
12. I issued a draft decision statement to the Council and to Ms X. I considered the information provided about the September to December 2024 period.
13. I have taken into account the Council and the complainant’s further comments before reaching a final decision.

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What I found

Education, Health and Care Plans

14. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the young person’s needs and what arrangements should be made to meet them.
15. The EHC Plan is set out in sections which include: 

• Section F: The special educational provision needed by the child or the young person:
• Section I: The named placement: and
• Section J: Details of any personal budget made. 

16. 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).

Annual reviews

17. Councils oversee delivery of EHC Plans through annual reviews, whether by attending meetings themselves, or by reviewing the school’s records of meetings. The Code says reviews must be undertaken in partnership with the child and their parent.
18. EHC Plans must be reviewed, as a minimum, every 12 months. The review must consider whether the stated outcomes and supporting targets remain appropriate. Earlier reviews can take place where it is considered a child’s needs may have changed or the stated outcomes are not being achieved.
19. After the review, the council has four weeks to send the child’s parents its decision about whether the EHC Plan is to continue; whether it needs changing or if it is to end. If the council decides to amend the EHC Plan, it must do that “without delay”. A recent court case stated it should take 12 weeks from the annual review to complete an amended final EHC Plan.

Personal budget

20. A personal budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a personal budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.
21. The final allocation of a personal budget must be sufficient to secure the agreed provision specified in the EHC Plan and must be set out as part of that provision.
22. Details of the personal budget should be contained in section J of an EHC Plan.

If a council refuses a direct payment, it must explain its reasons in writing to the parents/carers and inform them of their right to ask for a review of the decision.

Adult Services

23. The Care Act 2014 states that, where it appears that an adult may have needs for care and support, the council should assess whether the adult has such needs and, if he/she does, what those needs are. A council should appoint an advocate if the adult would have substantial difficulty being involved. Parents/carers can also request an assessment.

Key facts

24. This is a brief account of events.
25. Y is a young adult with severe learning difficulties. He does not speak or understand English. Y lives with his parents (for whom English is also not their first language). Y requires a considerable amount of care and supervision with most daily and personal tasks and activities.
26. The Council issued an EHC Plan in September 2023, after Ms X had appealed against the Council’s initial refusal.
27. Y’s EHC Plan stated, among other things, that he required support learning English and being trained to do small daily job or activities. The EHC Plan stated that Y required a slow, well-planned transition into an educational setting with a high level of adult support throughout the day. It was envisaged that Y’s special educational needs would be met by staff within an educational setting.
28. Y’s EHC Plan stated that, following discussions with the family, it was decided that Y had no exceptional care needs which required intervention from Adult Services. However, the Council allocated a social worker from the Adult Learning Disability Team, who was involved in supporting any referrals.
29. At section I of Y’s September 2023 EHC Plan, it stated the named placement ‘was to be agreed’.
30. The Council started to look for a tutor for Y but there were difficulties in finding a tutor who could speak his first language.
31. In January 2024, Ms X made a complaint to the Council that no provision had been made in accordance with Y’s EHC Plan. In March 2024, the Council sent its stage one response, accepting that there had been a delay in seeking an appropriate educational placement for Y. The Council apologised sincerely for this delay.
32. The Council stated it continued to look for a suitable placement. It then appointed a provider to work with Y who had experience of working with young people with language barriers. However, the provider was then unable to find a tutor to work with Y because of the language difficulties.
33. In March 2024, the Council consulted five possible educational establishments, but none were able to meet Y’s needs.
34. In April 2024, the Council sent its stage two complaint response. It explained that it had approached several educational establishments, but none could meet Y’s needs, partly because of the language barrier. The Council said that it was still working with a provider who was seeking a suitable tutor.
35. In June 2024, Y was placed on the Council’s waiting list for the Preparing for Adulthood Team.
36. In September 2024, the Council should have arranged an annual review of Y’s EHC Plan. This was delayed to November 2024.
37. The Council says that the Preparing for Adulthood Team concluded that Y is well supported by his parents. But he does receive help with medication and help from Occupational Therapy.
38. Between September and December 2024, the Council was unable to find a suitable placement/tutor for Y and he remained without the necessary educational provision.
39. However, Y is currently being assessed by a specialist college.

Ms X’s views

40. Ms X told me that the Council provided nothing of substance for Y between September 2023 to December 2024. Y badly needs tuition in English. Ms X says that she has suggested to the Council that it uses an interpreter with a tutor, and she has provided names of interpreters. But the Council has said that they are not on its approved list of providers so the Council cannot employ them.
41. Ms X says that the Council has not offered a personal budget, but she says that, if the Council cannot make the required provision, she would be willing to manage such a budget so that, in the first place, she can arrange for English tuition for her brother.

Findings

42. I recognise the difficulties for the Council in finding appropriate provision for Y in accordance with his EHC Plan. The Council did try to find a suitable tutor between September 2023 to March 2024. But it seems the language barriers made this difficult.
43. In March 2024, the Council started to consult possible educational establishments, after Ms X had made a formal complaint. But it should not have been necessary for Ms X to complain when the Council had a statutory duty to ensure Y’s needs were met. However, the fact English is not Y’s first language meant that it has been difficult for the Council to find an appropriate education placement which would accept him.
44. But there were other options for the Council and my view is that the Council should have called an emergency review of Y’s EHC Plan, say by June 2024, when it was clear it was proving so hard to find suitable provision. The stated outcomes of Y’s EHC Plan were not being achieved. And not achieving outcomes is one of the grounds for calling an emergency review. At this review, the possibility of a personal budget could also have been discussed.
45. The fact the Council did not consider or arrange an emergency review is fault by the Council.
46. The Council should also have held an annual review in September 2024. The fact it did not is also fault.

Injustice

47. Y’s educational needs have not been met between September 2023 to December 2024. For the first six months, the Council looked unsuccessfully for a tutor. From March 2024, the Council looked unsuccessfully for placements and/or tutors. This has meant Y has been without the required educational provision for an extended period.
48. Ms X has also been caused avoidable distress and time and trouble in pursuing her complaints.

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Agreed action

49. We have a wide statutory discretion in determining the nature and level of any remedy (ss. 30(1A) and 31(2B)-(2BA) of the Local Government Act 1974). In exercising that discretion, we apply our guidance on remedies most recently updated in July 2024.
50. Our primary aim is to put people back in the position they would have been in if the fault by the council had not occurred.
51. When this is not possible, we may recommend the council makes a symbolic payment. Where that takes the form of a payment, it is often a modest amount (between £300 to £500) whose value is intended to be largely symbolic rather than purely financial. We also support organisational learning and improvements to help others.
52. We expect senior officers from councils to make effective, timely and specific apologies for the faults we have identified.
53. Our guidance on remedies also says that “where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss”. What is proportionate in an individual case will take account of factors such as:

• the severity of the child’s special educational needs;
• any educational provision the child received that fell short of full-time education;
• whether additional provision can now remedy some or all of the loss;
• whether the period concerned was a significant one for the child or young person’s school career.

54. The Council should have been considering how to meet Y’s special educational needs from September 2023 to December 2024. But, when recommending a remedy, I took into account the particular difficulties for the Council in finding suitable provision and considered that half our termly rate for the lost education was appropriate.
55. Within one month of the final statement, the Council will
1. pay Ms X £2,400 for the loss of education for Y during September 2023 to March 2024 which she should use to his benefit;
2. pay Ms X £1,200 for the loss of education for the summer term of 2024, again to be used for Y’s benefit;
3. pay Ms X £1,200 for the loss of education between September to December 2024 to be used for the benefit of Y;
4. pay Ms X £500 for her avoidable distress and frustration;
5. Ms X has expressed an interest in having a personal budget. The Council will explore this with her if the current assessment of a possible college placement proves negative;
6. I recognize the Council says that the family is providing sufficient support and care to Y. But the Council will carry out a further adult care assessment of Y and a carers’ assessment if Y’s parents agree to this; and
7. the Council will tell us how it will ensure in the future that those with an EHC plan, but where there is no provision made in accordance with the plan, are picked up promptly and action taken, like holding an emergency review.
56. The Council should provide us with evidence it has complied with the above actions.

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Final decision

57. I have found fault causing injustice. The Council has agreed the actions to remedy the injustice. Therefore, I have completed my investigation and am closing the complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman