Summary: Mrs X complained the Council failed to take effective action when her son, Mr Y, was unable to access the placement named in his Education, Health and Care (EHC) Plan. The Council is at fault for failing to take effective action in response to concerns about Mr Y’s placement because it should have done more to ensure the provision specified in his EHC Plan was secured. The lack of effective action caused uncertainty. The Council has agreed to make a payment to remedy the injustice caused and it has agreed to make service improvements.

The complaint

1. Mrs X complains that the Council failed to carry out its statutory duties after her son, Mr Y’s, placement at college broke down. Mr Y had an education, health and care (EHC) plan maintained by the Council.
2. Mrs X complains the lack of action by the Council has resulted in a loss of education and avoidable distress.

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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. 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 injustice 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)
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 have considered information provided by Mrs X and the Council. Comments received from Mrs X and the Council were considered before I made my final decision.

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What I found

Relevant law and guidance

7. 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 Tribunal or the council can do this. 
8. 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)  
9. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

What happened

10. Mrs X’s son, Mr Y, is a young adult. He had an education, health and care (EHC) plan maintained by the Council.
11. In 2023, Mr Y decided he wanted to obtain GCSEs in maths and English so he could go to university where he planned to study computing.
12. He identified adult education classes at a local college and secured places on the courses to start in September 2023. The Council amended his EHC Plan.
13. Arrangements for the start of the courses did not go as anticipated. This caused Mr Y considerable anxiety. Mrs X told the Council about the challenges Mr Y was facing with accessing his placement.
14. The college also changed the venue for the courses, and the timing and duration of the classes. This caused significant problems for Mr Y because of his disability and health condition.
15. Mr Y decided not to take the English class because it was not accessible and asked to transfer to an evening class for maths which took place at a venue he deemed accessible. Unfortunately, the timings of the evening class did not work for Mr Y, and in any event, the class was full. As a result, Mr Y did not take either of the classes because they were not accessible.
16. Nevertheless, the college held an annual review meeting for Mr Y’s EHC Plan in January 2024. Following the meeting Mrs X made a complaint to the college on behalf of Mr Y. Mrs X tells me the college accepted it had made mistakes and apologised. Mrs X is satisfied with the college’s response to her complaint.
17. In May 2024, the Council decided it would cease to maintain Mr Y’s EHC Plan.
18. Mrs X complained to the Council. She complained the Council had not attended Mr Y’s annual review meeting, and despite being copied into her emails with the College, the Council had not done anything to help when Mr Y was unable to attend his chosen classes. She complained about Mr Y’s EHC Plan and the Council’s decision to end the Plan.
19. The Council explained why an officer had been unable to attend Mr Y’s annual review meeting. The Council said it had not been aware of the problems which prevented Mr Y from attending his chosen course. The Council responded to Mrs X’s criticisms of Mr Y’s EHC plan and explained Mr Y’s right of appeal against the Council’s decision to end the plan.
20. Unhappy with the Council’s response, Mrs X complained to us.
21. Mrs X explained that Mr Y no longer has any faith in the Council or the college and does not wish to pursue the course or reinstate his EHC plan. She said he feels his academic and employment ambitions have come to an end and suggested the Council pay compensation.

Consideration

22. I have carefully considered everything Mrs X has said, although I have not recorded every detail here.
23. It is evident that Mr Y was unable to access his placement at the college due to the actions, or inactions, of the college. I understand Mrs X has complained to the college and it has acknowledged its responsibility for the things that went wrong and apologised.
24. I have considered the Council’s actions with regards to Mr Y’s placement at the college breaking down. The Council was made aware in September 2023 that Y was struggling to access his placement. Mrs X is of the view the Council should have arranged alternative provision but there is no post-16 duty under Section 19. However, Councils have separate duties where a young person has an EHC Plan. Under Section 42, we expect Councils to try to secure as much Section F provision as is possible.
25. The Council did take some action in response to Mrs X’s concerns about the placement because it contacted the college to ascertain what the barriers were. However, the Council could have done more. The Council had named the college in Section I of Mr Y’s EHC Plan as the placement to meet his needs. When it became aware the placement was at risk of breaking down, it should have actively worked with the college to break down the barriers and make the placement accessible for Mr Y. It could have arranged an emergency annual review meeting. The Council acknowledges it did not pursue the suggestion of tutoring. The Council’s lack of effective action in ensuring Y’s provision was in place is fault. The Council has acknowledged in its Stage 2 complaint response that it would have been helpful if it had worked more proactively with the college or arranged an emergency review. The Council has apologised for this.
26. I cannot say for certain that had the Council arranged an emergency review or actively worked with the college that the placement would not have broken down. I also do not know that if the tutoring had materialised, it would have been sufficient in meeting Mr Y’s needs and it would have been enough to deliver the provision outlined in the Plan. However, there is uncertainty caused by the Council’s lack of effective action. This uncertainty is an injustice and it warrants a remedy. The Council also needs to make some service improvements.
27. The Council’s Stage 1 response to Mrs X’s complaint says the Council did not work with the college to overcome the concerns because it was not aware of them. This response is likely to have caused Mrs X frustration because she had made the Council aware of the concerns on several occasions. The Council apologised for this in the second complaint response and said it had used incorrect wording. I consider the Council’s apology is an appropriate remedy for the frustration the Stage 1 complaint response caused.

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Agreed actions

28. To remedy the injustice caused by the faults identified above, the Council has agreed that within four weeks of this final decision, it will pay Mr Y £250 for the avoidable distress caused.
29. The Council has also agreed that within three months of this final decision, it will issue a reminder to staff about:
• its duty under Section 42 to secure the provision outlined in a child or young person’s EHC Plan;
• the importance of checking the special educational provision is in place when a new or amended EHC plan is issued or there is a change in placement; and
• effectively investigating complaints or concerns that provision is not in place at any time.
30. The Council will provide the Ombudsman with evidence it has completed the above action.

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Final decision

31. There is fault by the Council, and it caused an injustice to Mr Y. The Council has agreed to remedy the injustice caused by the faults. This complaint is now closed.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman