Summary: The Council failed to arrange key special educational needs provision for Ms X’s relative, Ms G for more than two terms. This included language tuition and speech and language therapy. The Council also failed to communicate with Ms X properly, failed to review Ms G’s EHC Plan and significantly delayed responding to Ms X’s complaint. In recognition of the missed provision, frustration and uncertainty caused by these faults, the Council has agreed to apologise, pay Ms X and Ms G £1,450 and carry out service improvements.

The complaint

1. Ms X complained that following the issuing of her relative, Ms G’s, Education, Health and Care (EHC) Plan on 31 October 2023, the Council has:
1. Failed to provide Ms G with weekly language tuition in the format required by her Plan;
2. Failed to provide Ms G with speech and language therapy (SALT) from a therapist that communicates in the language format specified in the Plan;
3. Failed to provide the family with language training at an appropriate level for them;
4. Failed to ensure Ms G’s language tutor was a woman;
5. Failed to communicate with Ms X properly;
6. Failed to make reasonable adjustments for Ms X’s disability with regards to how the Council communicated with her;
7. Wrongly decided to cease Ms G’s EHC Plan when she turns 25; and
8. Failed to secure provision for Ms G dating back to 2022.
2. Ms X says due to the above faults, her relative has missed out on important education provision and Ms X has been caused 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
6. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
7. If we are satisfied with a council’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).

Back to top

What I have and have not investigated

9. My investigation covers the period from the Tribunal’s order dated 31 October 2023 up until the date of the Council’s final complaint response dated 25 September 2024.
10. I have investigated complaints 1a to 1f. I have not investigated complaints 1g and 1h and set out my reasons below.

Complaint 1g) Wrongly decided to cease Ms G’s EHC Plan when they turn 25

11. During the period I have investigated the Council had not yet made a formal decision about what date it would cease Ms G’s EHC Plan. If the Council has now made this decision, or when it makes its decision in future, if she disagrees, Ms X can complain to the Council and then to us.

Complaint 1h) Failed to secure provision for Ms G dating back to 2022

12. Ms X complained of several issues dating back to 2022, which we already considered as part of a previous Ombudsman investigation. I have not reconsidered these matters here.

Back to top

How I considered this complaint

13. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
14. Ms X and the Council are given the opportunity to comment on a draft decision and all comments are considered before making a final decision.

Back to top

What I found

Law and guidance

Education, Health and Care Plans

15. A young person with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out their needs and what arrangements should be made to meet them.
16. The EHC Plan is set out in sections which include:
• Section B: The child or young person’s special educational needs. 
• Section F: The special educational provision needed by the child or the young person.  
• Section I: The name and/or type of school.
17. 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). We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.

Reviewing EHC Plans

18. The Statutory Guidance: Special Educational needs and disability code of practice: 0-25 years (“the Code”) says EHC Plans must be reviewed as a minimum every 12 months (para 9.166).

SEND Tribunal appeals

19. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan.
20. The Ombudsman cannot direct changes to the sections of the EHC Plan which relate to education or name a different educational setting. Only the SEND Tribunal can do that.
21. If someone appeals to the Tribunal and it orders changes to be made to the EHC Plan, the council must carry out the order within five weeks of the Tribunal’s decision.

Education otherwise than in a college

22. Section 61 of the Children and Families Act allows councils to arrange for special educational provision to be made otherwise than in a school or college.
23. This is referred to as Education otherwise than at a school (EOTAS) when it is for children of school age and Education otherwise than in a college (EOTIC) when the young person is in post-16 education.
24. This education may be delivered at home, or at another external setting. EOTIC and EOTAS is different to elective home education as the Council maintains responsibility for arranging and funding the provision.

Reasonable adjustments for people with disabilities

25. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
26. Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.

What happened

27. Ms G is an adult with disabilities and she has an EHC Plan which sets out the provision she needs to meet her needs. Ms X is Ms G’s relative and acted as her representative in this complaint.
28. The Council issued a final EHC Plan for Ms G on 31 October 2023 after it was ordered to make changes to her previous Plan by the SEND Tribunal. The Council issued this Plan within the legal timescales.
29. The Plan said in Section F, that Ms G would receive an EOTIC package which included but was not limited to the following provision:
• Five hours per week of one-to-one language tutoring, from a tutor qualified to a specific level;
• Weekly updates from the language tutor to Ms G’s family informing them of the language Ms G had learned that week;
• One-to-one support for 35 hours per week from a Communication Support Worker qualified to a specific level;
• One hour per week of SALT on a one-to-one basis at Ms G’s home; and
• It also said in Section F that all staff working with Ms G needed to communicate in a specific language format, including the SALT.
30. The EHC Plan did not specify the gender the language tutor must be and the SEND Tribunal did not consider this issue.
31. In October 2023 Ms X asked the Council for a face-to-face meeting to discuss the EOTIC package, as due to her disability she could not communicate through phone calls. The Council said it could not arrange a face-to-face meeting at that time but offered her a video call meeting instead. Ms X said this was not suitable as she required face to face meetings as a reasonable adjustment under the Equality Act. Ms X did not say in these email exchanges for what reason a video call was unsuitable.
32. I asked the Council to demonstrate how it considered Ms X’s requests for reasonable adjustments and for details of any adjustments the Council decided to make. The Council responded to say that between June 2023 and February 2024, it held three face-to-face meetings with Ms X. It did not show how it recorded the request for reasonable adjustments, how it considered whether they were reasonable or any evidence of its decision making about what communication methods were suitable for Ms X.
33. Following the Tribunal’s order, Ms G received the 35 hours per week provision from a Communication Support Worker, as set out in the EHC Plan. However Ms G did not receive the five hours per week of language tuition, or the one hour per week of SALT provision.
34. The Council contracted a language tutor to start from 6 November 2023. The tutor was qualified to the level required and the contract stated that they would provide tuition in the language format required by the EHC Plan. However the tutor was not communicating in this format and Ms X and the Council became aware of this in a meeting in February 2024.
35. To bring the provision in line with the requirements of the Plan, the Council offered to put an interpreter in place in Ms G’s tutoring sessions. Ms X disagreed and declined to try this approach.
36. The Council had a SALT available to Ms G from October 2023 but this SALT did not communicate in the specified language format. Ms X declined this SALT provision as it was not in line with the requirements of the Plan. The Council began looking for a SALT that communicated in the required language format in July 2024, eight months after the SEND Tribunal ordered for it to be added to Ms G’s EHC Plan.
37. Ms X complained to the Council in April 2024. She said:
• The Council failed to put in place the key provision from Ms G’s EHC Plan;
• The Council wasn’t returning her communications;
• The family required language training themselves and they had only been offered a Level one course, when they were already working at Level two in the language Ms G was being taught;
• she had asked for reasonable adjustments to be made under the Equality Act 2010, regarding how the Council communicated with her, which it had failed to comply with.
38. It took the Council four months to respond at stage one of its complaints procedure. It upheld that it had not arranged the SALT in the EHC Plan and that its communication had been poor. It did not uphold Ms X’s other complaints and said providing an interpreter would have brought the language tuition in line with the requirements of the Plan. Regarding the language training requested by the family, it said it offered the family a course at Level one, because they did not yet hold a Level one qualification.
39. Ms X complained to the Council again at stage two of the complaints procedure but the Council declined to investigate at a second stage. It said its stage one complaint response was sufficiently detailed and signposted Ms X to the Ombudsman if she was unhappy.
40. The Council did not carry out an annual review within twelve months of Ms G’s October 2023 Plan being issued.

My findings

Missed provision (complaints 1a-1d)

41. The Council had a duty to arrange Ms G’s language tuition, provided by a tutor that communicated in the format set out in the Plan. The Council arranged the language tuition but it was not in the required format. This was fault.
42. The Council did not arrange SALT provision for Ms G that was in the format she needed either. Following the Tribunal ordering this provision to be made, the Council only started looking for a SALT that communicated in that language format eight months later. The Council did not make sufficient efforts to arrange the type of SALT Ms G needed and this was fault.
43. The Council had five weeks after the Tribunal order to put the provision in place and my investigation ends on 25 September 2024. During this period, due to the Council’s fault, Ms G missed language tuition and SALT provision for two terms and twenty days.
44. Ms X complained that the language tutor the Council commissioned needed to be a woman and it failed to agree this as a criteria. It was not a requirement of Ms G’s EHC Plan that her language tutor was a woman and Ms X could have raised this issue during her Tribunal appeal but did not. The Council was not at fault.
45. Ms X also complained that the Council arranged a language course for family members but the course offered was at too low a level. The Council offered Ms X a course which would qualify her to Level one as Ms X did not hold a higher qualification than this. Ms X declined this course. The EHC Plan did not specify that the family should receive any specific training course or state what level of support the family required. It was reasonable for the Council to offer Ms X a course at this level, as it considered what was set out in Ms G’s Plan and what qualifications the family had. The Council was not at fault.

Poor communication (Complaint 1e) and complaint handling

46. The Council’s communication with Ms X was poor and included periods where she received no responses to her communications at all. The Council’s poor communication was fault and caused Ms X avoidable frustration and uncertainty.
47. The Council also took four months to respond to Ms X’s stage one complaint. This significant delay was fault and added to Ms X’s frustration about the Council’s lack of communication.

Reasonable adjustments (Complaint 1f)

48. There is no record of how the Council considered what reasonable adjustments it needed to make for Ms X. It said it provided some face-to-face meetings but the records also show at times it declined to provide these meetings face to face and offered virtual video calls instead. There is no record showing how it decided what forms of communication would be suitable for Ms X.
49. Because of the Council’s lack of contemporaneous records about this, I cannot say how it considered Ms X’s request for reasonable adjustments when deciding that video calls would be accessible to Ms X. This lack of record keeping is fault and has caused Ms X frustration and uncertainty.

Failure to review EHC Plan

50. The Council also failed to carry out an annual review within twelve months of Ms G’s EHC Plan being issued, which was fault. This fault has caused Ms X additional frustration and uncertainty. This was also a missed opportunity for Ms X and the Council to communicate regarding the issues she had raised about Ms G’s provision. This is an injustice to Ms X and Ms G.

Back to top

Action

51. Within one month of the date of the final decision, the Council has agreed to:
1. Apologise to Ms X and Ms G for the injustice caused by the faults in this case;
2. Pay Ms G £1,150 to reflect the two terms and twenty days she did not receive language tutoring and SALT when she should have; and
3. Pay Ms X £300 for the frustration and uncertainty she has been caused by the Council’s faults in this case.
52. Within six weeks of the date of the final decision, the Council has agreed to:
1. Carry out an annual review of Ms G’s October 2023 EHC Plan.
53. Within three months of the date of the final decision, the Council has agreed to:
1. Consider what led to the delays in complaint handling and lack of communication in this case and demonstrate steps it has taken to improve its service in these areas.
54. We publish Guidance on Remedies which sets out, in section 3.2, our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended.
55. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

56. I find fault causing injustice. The Council should take actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman