Summary: Mrs X complained the Council failed to secure provision set out in Mr Y’s Education, Health and Care Plan and failed to ensure the plan was reviewed on time. We find fault with the way the Council secured provision for Mr Y and for delays in reviewing his Education, Health and Care Plan, causing distress and uncertainty. The Council has agreed to apologise to Mrs X and Mr Y, make a payment to recognise the injustice caused and act to prevent recurrence.

The complaint

1. Mrs X complains the Council has failed to ensure Mr Y has received the provision set out in his Education, Health and Care (EHC) Plan. Mrs X says there was a delay in implementing the November 2023 EHC Plan, the Council has not ensured it has been adhered to, and the quality of education has been poor. Mrs X also complains the Council completed an EHC Plan review late.

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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. 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)
4. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 
5. 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)
6. 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

7. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
8. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and policy

9. A child or young person with special educational needs (SEN) may have an 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. 
10. 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 then take place. The process is only complete when the Council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
11. 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)  
12. Where Councils arrange for schools or other bodies to carry out their functions on their behalf, the Council remains responsible. Therefore Councils should retain oversight and control to ensure their duties are properly fulfilled.

What happened

13. I have summarised below some key events leading to Mrs X’s complaint. While I have considered everything submitted, this is not intended to be a detailed account of what took place.
14. Mr Y has SEN and his education is supported by an EHC Plan. At the start point of my investigation, Mrs X was contesting the outcome of an EHC Plan review through the SEND Tribunal. During this process, Mr Y did not receive educational provision. The Council has said this is because School A did not have any available tutors at that time and it could not find any other local schools who offered the course Mr Y attended.
15. Following a SEND Tribunal decision, Mr Y’s EHC Plan, dated 17 November 2023, named School A and provided for:
• 1:1/small group sessions, two to three times per week to provide Mr Y with the opportunity to practice communication styles and interactions;
• Weekly 1:1 formal reviews with a success coach to discuss what is working well and what is not working well, with emails sent to Mrs X to sum these up;
• Weekly 1:1 formal reviews with a skills and employability trainer (SET) to discuss development needs, with emails sent to Mrs X to sum these up;
• 1:1/small group shadowing opportunities two to three times per week to help Mr Y develop understanding of professional etiquette;
• Weekly 1:1 formal reviews with a success coach to discuss workshop interaction, with emails sent to Mrs X to sum these up;
• Daily 1:1 support from key adults to develop independence within tasks and support memory difficulties;
• 1:1/small group college workshop sessions, two days per week;
• 1:1 careers session in the summer term to identify appropriate employment opportunities and support with application;
• Two times per week, 1:1 planned social events with a trusted adult.
16. The Council sent a copy of Mr Y’s EHC Plan to School A and asked it to ensure the provision was in place for Mr Y.
17. In December 2023, Mrs X contacted the Council and told it she did not believe School A had secured all the provision Mr Y was entitled to. The Council said School A had assured it Mr Y’s EHC Plan was being followed and provided the bespoke plan for Mr Y’s education that year.
18. Later that month, Mrs X emailed the Council to explain School A had cancelled workshop sessions without notice. The Council asked School A why it had cancelled Mr Y’s workshop sessions and asked it to provide extra sessions.
19. School A explained it was in the process of recruiting a qualified tutor for the workshops Mr Y required. School A apologised for poor communication up to that point and said this would improve going forward. School A said Mr Y was already attending all the sessions available to him. The Council emailed Mrs X to update her.
20. Mrs X disagreed and explained she was aware workshop sessions were taking place at School A that were not being made available to Mr Y. The Council questioned School A on this and was told the workshops Mrs X referred to were not suitable for Mr Y.
21. In January 2024, Mrs X informed the Council she had not been receiving weekly success coach or SET update emails.
22. The Council asked School A to provide a copy of these. Once it received them, the Council informed School A they were not compliant with the EHC Plan and asked for this to be changed going forward. The Council also asked for an updated timetable for Mr Y and an update on the progress around offering him further hours.
23. In January 2024, School A again cancelled some of the workshops Mr Y was due to attend.
24. The Council emailed School A on 19 January to remind it to arrange an annual EHC Plan review by 21 February 2024. The Council pointed out it appeared there was a lot of provision from the existing EHC Plan that Mr Y had yet to receive.
25. Mrs X complained to the Council in January 2024 as she said School A was not meeting the provision set out in Mr Y’s EHC Plan and was deliberately misinterpreting the wording. Mrs X also questioned the quality of the success coach and SET weekly reports.
26. In February 2024 the Council relayed Mrs X’s concerns to School A. It asked School A to review the weekly reports and asked if there were any further workshop sessions for Mr Y to attend.
27. The Council responded to Mrs X’s complaint in February 2024. It explained it had been working with School A to ensure provision was in place for Mr Y and met the requirements of the EHC Plan. The Council acknowledged the success coach and SET had not provided reports between November 2023 and January 2024, but said these were now being provided.
28. Mrs X asked the Council to reconsider her complaint. Mrs X said School A had been inflexible and Mr Y had not received the level of provision set out in his EHC Plan. Mrs X also pointed out Mr Y’s EHC Plan annual review was not completed by 21 February 2024 as it should have been. Mrs X asked the Council to talk to School A to ensure all provision was delivered for the remainder of the academic year.
29. The Council asked School A to arrange an EHC Plan annual review as a matter of urgency as it was now overdue. School A set a review date of 26 March 2024.
30. In March 2024, School A cancelled some workshop sessions Mr Y was due to attend. The Council contacted School A to reiterate Mr Y’s provision should be delivered in line with his EHC Plan.
31. Mr Y’s annual EHC Plan review took place on 26 March 2024. School A provided a portfolio of work Mr Y had completed to date, and said it believed he would achieve his outcomes by the end of the year. School A also said additional workshop sessions would be offered in the following term to make up for those he had missed.
32. In March 2024, the Council agreed to fund Mr Y’s attendance at an 11-day intensive course during the summer to remedy missed workshop sessions. However, this was fully booked by the time the Council attempted to book it for Mr Y. As a result, this was booked for October 2024 instead.
33. In May 2024, Mrs X explained she was again not receiving the relevant weekly reports.
34. The Council responded to Mrs X’s complaint in May 2024. It said it believed the provision in Mr Y’s EHC Plan was now in place. The Council explained quality of education is subjective, but it had maintained an open dialogue with School A to ensure Mr Y received adequate and appropriate provision. The Council acknowledged it had not always communicated effectively with Mrs X and also that the EHC Plan annual review had been held more than a month late. The Council said School A had ongoing staffing issues for the workshops Mr Y required, but he had been attending all sessions that were available and appropriate for him. In recognition of the reduced timetable of workshops, the Council reiterated that it would fund an 11-day intensive course for Mr Y with accommodation for him and Mrs X as this was outside of the local area.
35. In June 2024, Mrs X informed the Council the SET and success coach had not turned up to planned sessions with Mr Y.
36. On 16 August 2024, the Council provided Mrs X with a copy of Mr Y’s timetable from September 2024.

Analysis

37. While the outcome of an EHC Plan review is being appealed to the SEND Tribunal, the Council must ensure the provision from the young person’s previous EHC Plan remains in place. However, Mr Y did not receive this provision between the start of the academic year in September 2023 and November 2023. This is fault and meant Mr Y missed out on educational provision he was entitled to as well as social opportunities, which is injustice. The Council has said it was unable to secure provision in that time due to staffing issues at School A and a lack of availability elsewhere, however, this has still caused an injustice to Mr Y.
38. Throughout the timeline I have investigated, there are occasions where School A cancelled Mr Y’s workshop sessions, often at late notice. This is fault and meant Mr Y did not receive the provision he was entitled to and was caused significant uncertainty. It also meant Mrs X had to do a significant amount of chasing which is injustice. The information I have seen shows the Council repeatedly reminded School A of its obligation to secure the EHC Plan provision and it arranged and funded a course to account for the missed provision. On balance, I find this is a suitable remedy to account for the provision Mr Y missed out on. However, it does not address the uncertainty and inconvenience caused to him and Mrs X.
39. From November 2023, Mrs X should have received weekly emails from Mr Y’s success coach and SET, but these were not shared with her. This is fault and caused uncertainty for Mrs X, which is injustice. When the reports were received, initially they were from Mr Y’s 1:1 tutor rather than the success coach and SET, as specified in the EHC Plan. This is fault and caused further uncertainty for Mrs X, which is additional injustice. I can see the Council was in touch with School A to remind it of the importance of complying with the EHC Plan and managed to resolve this by the end of the academic year, but that does not change the injustice to Mrs X across the period when the reports were not received in accordance with the EHC Plan provision.
40. Mrs X has concerns about the quality of education Mr Y received and the quality of the weekly reports she was provided. I understand Mrs X’s frustration here, however it is not the Ombudsman’s role to assess the quality of education received, but rather whether provision was secured as set out in the EHC Plan. For this reason, I cannot find the Council at fault here.
41. Mr Y’s annual EHC Plan review fell due on the 21 February 2024, but did not take place until more than a month later. While the Council asked School A to arrange the review before the deadline, failure to ensure this happened is fault and caused uncertainty for Mrs X and Mr Y, which is injustice.

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Action

42. To remedy the injustice identified above, the Council should complete the following actions within one month of the date of this decision:
• Write to Mr Y and Mrs X to apologise for the injustice caused by the identified faults. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay Mrs X £600 to be used towards Mr Y’s education in recognition of the failure to secure EHC Plan provision between September 2023 and November 2023.
• Pay Mrs X £300 in recognition of the uncertainty caused by the delays in securing provision for Mr Y, for the delay in reviewing his EHC Plan and the uncertainty caused as identified above.
• Remind staff within its SEND department that final responsibility for securing EHC Plan provision and ensuring plans are reviewed on time lie with the Council.
43. The Council should provide us with evidence it has complied with the above actions.

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Decision

44. I find the Council at fault for delays in securing the provision set out in Mr Y’s EHC Plan, for failing to secure any provision between September 2023 and November 2023, and for delays in holding the annual EHC Plan review causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman