Summary: The Council was at fault for failing to provide education to Miss Y for eight months, losing the paperwork from an annual review of her Education, Health and Care Plan, and delay issuing an amended Plan. Miss Y did not receive any of the provision in her Plan, causing significant injustice. The Council has agreed to apologise, make payments, and act to improve its service.

The complaint

1. Mr X complained on behalf of his daughter, Miss Y, about the Council’s handling of Miss Y’s EHC Plan review and educational provision. In particular, he says the Council:
1. failed to put the education in Miss Y’s EHC Plan in place;
2. lost all paperwork from the annual review held in February 2024;
3. failed to issue an amended EHC Plan on time; and
4. failed to respond to his request for a personal budget
2. As a result, Mr X says Miss Y missed out on months of education and he experienced avoidable frustration and distress.

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)

Back to top

How I considered this complaint

5. I considered the complaint and the information Mr X provided.
6. I made written enquiries of the Council and considered its response along with relevant law and guidance.
7. I referred to the Ombudsman's Guidance on Remedies, a copy of which can be found on our website.
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
9. Mr X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Education, Health and Care (EHC) Plans

10. 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.
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 a child or young person with an EHC Plan is in hospital under the Mental Health Act, the Council should ensure it continues to provide educational support in line with the Plan. It may need to review and amend the Plan to ensure the provision remains appropriate. (Mental Health Act Code of Practice, 19.118)

Annual reviews

13. 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.
14. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.

Personal budgets

15. 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.
16. A child’s parent or the young person has the right to request a Personal Budget when the council has completed an EHC needs assessment and confirmed it will prepare an EHC Plan. They may also request a Personal Budget during a statutory review of an existing EHC Plan.

What happened

17. Miss Y is a young adult with special education needs (SEN). She has an EHC Plan. Miss Y spent several years as an inpatient receiving treatment for her mental health. Miss Y has an independent advocate to support her in communication with the Council.
18. In October 2023, officers from the Council’s SEN team went to a care planning meeting with other professionals involved in Miss Y’s care. The SEN team felt it needed to meet Miss Y urgently to get her views on her education. The care plan identified that education was an important source of structure and routine for Miss Y.
19. The Council met with Miss Y and her advocate in mid-November. Miss Y said she wanted to go to college. The Council noted her EHC Plan was very outdated and that it would need a new plan before it could consult with any colleges about a place.
20. Mr X wrote to the Council to offer available dates in December for a review. He raised concerns about the plan to consult colleges. He was worried this was setting Miss Y up to fail so soon after leaving hospital. In reply, the Council explained that it would be consulting colleges for Miss Y to start in September 2024 to give her time to settle into the community. In the meantime, the Council would look for alternative provision for her education.
21. The Council made referrals to providers for tutoring for Miss Y. Several responded to say they could support Miss Y and requested more information. There is no evidence the Council pursued any of these referrals.
22. In late November, Mr X told the Council he was disappointed the annual review originally planned for December would not take place. The Council explained that it wanted to make sure all the agencies involved in Miss Y’s care and support could contribute to the review. The Council said this would take time to organise and predicted the review would be in February 2024.
23. The Council held an annual review in early February 2024. Following the review, Mr X asked the Council for a personal budget. He had identified a specific provider he wanted to deliver Miss Y’s education.
24. Mr X chased the outcome of his request three times in March. There is no evidence the Council responded to these emails.
25. In April, the SEN officer wrote to Mr X to explain they were leaving the SEN team and gave details of the new officer allocated to Miss Y’s case. Mr X contacted the new officer but did not get a response.
26. The new officer contacted Miss Y’s advocate to arrange a meeting with Miss Y. The advocate said Miss Y was keen to return to education. The advocate explained the process for getting Miss Y’s permission to share information with Mr X.
27. In mid-April, Mr X complained to the Council. He said it had not responded to his request for a personal budget and it had not issued an amended EHC Plan after the annual review.
28. The records show the SEN officer contacted the advocate and the social worker to ask about getting Miss Y’s permission before discussing the case with Mr X.
29. In May, the SEN officer met with Miss Y and her advocate. Miss Y once again said she wanted to go to college and that she wanted a tutor until then. Miss Y said she was happy for the Council to share information with Mr X.
30. In mid-May, the Council made new referrals to several providers for tutoring for Miss Y. One of the providers (Provider 1) responded to say it could start provision within two weeks. Mr X was concerned that the tutor would not have training or experience in Miss Y’s condition.
31. In mid-June, Provider 1 contacted the Council. It had spoken to Mr X and Miss Y’s care manager and wanted more information about her needs before it could commit to working with her. The Council told Provider 1 it had no evidence tutors needed experience in Miss Y’s condition. It shared a copy of her EHC Plan.
32. The Council met with Mr X to discuss his complaint in June. He said he wanted another provider (Provider 2) to tutor Miss Y. The Council contacted this provider as a result.
33. The Council responded to Mr X’s complaint at stage one of its complaint process. It said:
• It could see an annual review happened in February but it had no evidence of the paperwork resulting from this and the officers were no longer at the Council.
• It apologised and explained this meant it would have to arrange a new annual review meeting to update Miss Y’s EHC Plan. It agreed to set a new date by the end of June.
• The delay responding to his request for a personal budget was because there was no paperwork from the annual review.
• The new officer’s delay contacting him was because they needed Miss Y’s permission first.
• Miss Y’s EHC Plan did not specify that any provider needed experience with her specific condition and so it could not require this.
34. Mr X asked the Council to consider his complaint at stage two. He said the response did not address the impact on Miss Y of the Council’s failures and delays. He pointed out that although Miss Y’s current plan did not say providers needed experience in her condition, this plan was very out of date.
35. In mid-July, the Council arranged an annual review date in August. It asked Miss Y’s social care team to attend and share its risk assessment.
36. In August, the Council asked Provider 2 if it had a tutor available.
37. The Council responded to Mr X’s complaint at stage two in mid-August. Its investigation:
• Upheld his complaint about the February annual review. It said officers leaving should not impact record keeping.
• Upheld his complaint about failing to issue a new EHC Plan. It found it likely the outcome of the review would have been to amend the Plan. It accepted it had a duty to share a draft amended Plan within four weeks and a final Plan within 12 weeks of an annual review.
• Did not uphold his complaint about the SEN team working with the wider Multi-Disciplinary Team (MDT) supporting Miss Y. It found the SEN team attended MDT meetings every two weeks.
38. The Council offered £300 as a remedy for its delay issuing the EHC Plan and £250 as a remedy for the distress caused by losing the annual review paperwork.
39. The Council held the annual review meeting on 20 August.
40. The next day, Provider 2 sent a quote to the Council for tutoring for Miss Y. The Council agreed the cost. The SEN officer asked social care for reports to update Miss Y’s EHC Plan.
41. In early September, the Council chased Provider 2 to ask if it had found a tutor. It also shared a draft EHC Plan with Mr X. Mr X said it was still very out of date.
42. The Council responded to Mr X. It said during the annual review meeting, it noted it needed new reports to update the plan. It had not received these reports from health and social care and so could not update the Plan. It chased the MDT for reports.
43. The MDT provided an updated risk assessment and its care assessment and plan for Miss Y.
44. In early October, the Council asked the NHS for input on the EHC Plan. It also chased Provider 2. Provider 2 said it was still trying to recruit a tutor for Miss Y.
45. The Council issued a final amended EHC Plan on 31 October. Mr X said it was still out of date.
46. The Council asked Mr X if he would consider an alternative provider. He said he would consider Provider 1 if it had a tutor with a good understanding of Miss Y’s condition.

My findings

47. I set out my findings on the complaint in the order they appear in paragraph one.

Providing education for Miss Y

48. Miss Y has an EHC Plan. The Council has a statutory duty to secure the provision in the Plan and review it every 12 months. Not to have kept Miss Y’s Plan under review while she was in hospital was fault.
49. The Council said it would provide tutoring for Miss Y in November 2023. It failed to do so. This was fault. As a result, Miss Y was without the education and provision in her EHC Plan for eight months. This is a significant injustice to Miss Y. The injustice to Miss Y is aggravated because her care plan is clear that accessing education is an important source of structure and routine. This is important for keeping her well and preventing a return to hospital.
50. The Council found a tutoring service in June 2024 that said it could start working with Miss Y in a few weeks. There is no evidence this service was unsuitable. Mr X declined this. From June 2024, therefore, Miss Y’s lack of education was not because of fault by the Council.
51. Mr X says any tutor needs to have experience in Miss Y’s condition. Neither the old EHC Plan nor the new amended Plan specify this. Mr X had a right of appeal about the content of the Plan once issued in October 2024. It was reasonable for him to use this right and so I have not considered this part of the complaint further.

Annual review paperwork

52. The Council has accepted fault for failing to keep records of the annual review in February 2024. This delayed the Council updating Miss Y’s EHC Plan and caused avoidable distress and frustration to Mr X. This is an injustice.
53. It meant Mr X and Miss Y had to go through the annual review process again. This is a further injustice.
54. I consider the £250 offered in the stage two complaint response is a suitable remedy for the injustice caused.
55. In response to the complaint, the Council said it would arrange an annual review by the end of June. It did not do so until July. This delay carrying out actions agreed in response to a complaint was fault. It caused further avoidable distress and frustration, which is an injustice.

Issuing a new EHC Plan

56. The Council held an annual review in February 2024. It should have sent Mr X and Miss Y’s advocate a draft amended Plan by early March. Failure to do so was fault. It should have issued a final Plan by early May. It did not do so until the end of October. This delay of six months was fault.
57. I do not consider the Council’s proposed remedy of £300 is a suitable remedy for the injustice caused.
58. Not having an up-to-date Plan meant the Council could not consult with colleges before the start of the academic year, as Miss X wished. It has, in effect, delayed this by a year. This is a significant injustice to Miss Y.
59. It also delayed Miss Y and Mr X’s right to appeal the content of the new Plan. This is an injustice.

Personal budget

60. Mr X asked the Council about a personal budget in February 2024. There is no evidence the Council dealt with this request at all before April, when the allocated officer changed. Failure to do so was fault.
61. Once it allocated a new officer, the evidence suggests the Council did consider the request but felt it needed a new Plan first. It also needed to get Miss Y’s consent to discuss it with Mr X. However, there is no evidence the Council communicated this to Mr X. Failure to do so was fault.
62. It caused Mr X avoidable distress and frustration and left him feeling ignored. This is an injustice to Mr X.

Back to top

Agreed action

63. To remedy the injustice to Mr X and Miss Y from the faults I have identified, the Council has agreed to:
• Apologise to Mr X in line with our guidance on Making an effective apology.
• Apologise to Miss Y in line with our guidance on Making an effective apology.
• Pay Miss Y £1,800 for each term of missed education from November 2023 until June 2024. This is two terms and a total of £3,600. Miss Y’s parents have deputyship for her financial affairs. The Council should therefore liaise with her parents to agree the best way to make payments to Miss Y, considering her best interests and managing risk.
• If it has not already done so, pay Mr X the £250 already offered for the frustration caused by losing the annual review paperwork.
• Pay Mr X £500 for the avoidable distress and frustration caused by the delay issuing an amended EHC Plan. If it has already paid the £300 offered, pay a further £200.
• Pay Mr X £200 in recognition of the distress caused by the Council’s poor communication about the personal budget.
64. The Council should take this action within four weeks of my final decision.
65. The Council should also take the following action to improve its services:
• Ensure all children and young people with an EHC Plan have an annual review of their Plan, including those currently in hospital or otherwise detained under the Mental Health Act.
• Remind relevant staff that the Council should work with speed to secure alternative provision where this is identified as a need.
• Provide training or guidance to relevant staff on the Council’s processes for keeping and storing records and paperwork associated with EHC Plans and reviews.
66. The Council should tell the Ombudsman about the action it has taken within three months of my final decision.

Back to top

Final decision

67. I have completed my investigation. There was fault by the Council. The action I have recommended is a suitable remedy for the injustice caused.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman