Summary: There was fault by the Council. The Council did not put in place the Occupational Therapy provision required by an Education, Health and Care plan. Ensuring the provision is now made, along with an apology and payment remedies the injustice. There was also delay in arranging an annual review of the Education, Health and Care plan in 2022, but this did not cause added injustice as the plan was amended at the Special Educational Needs and Disability tribunal. There is no fault by the Council in not providing vouchers towards the cost of free school meals or in providing the other provision in the Education, Health and Care plan.

The complaint

1. The complainant, who I shall call Miss M, complains for her grandchild, G.
2. Miss M complains the Council failed to put in place the provisions in G’s Education, Health and Care (EHC) plan from January 2021 onwards and has failed to reassess when G’s needs changed. Miss M said the Council did not review the EOTAS (Education Other Than At School) programme and failed to conduct an annual review that was due.
3. Miss M also said the Council has not given G free school meal vouchers. Miss M says the Council’s failures have meant that G’s anxiety and mood has worsened.

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What I have and have not investigated

4. I have investigated Miss M’s complaint that the Council has not arranged the provisions set out in an EHC plan (other than Occupational Therapy) from April 2021 until January 2023 and that the Council has not provided free school meals vouchers.
5. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
6. I have not investigated Miss M’s complaints about the Council’s failure to provide weekly social skills sessions and a Personal, Social, Health and Economic (PSHE) curriculum. This is because in the EHC plan, these provisions were included if G was in educational provision i.e. in college. Miss M appealed to the SEND tribunal about the contents of the EHC plan and so I do believe that the failure to provide these sessions was inextricably linked to the changes Miss M wanted made to the EHC plan.
7. I have also investigated Miss M’s complaint that the Council has not arranged the Occupational Therapy (OT) set out in an EHC plan from January 2022 to January 2023. I cannot investigate the complaint about the lack of provision of Occupational Therapy before January 2022. This is the date of the last evidence considered in her previous complaint to the Ombudsman was closed (21 013 046).
8. I have not considered events after the Council issued the new EHC plan in January 2023. Miss M complained to the Ombudsman in November 2022 and so events after this date will not have been considered by the Council through its complaints procedure.

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The Ombudsman’s role and powers

9. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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)
10. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
11. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
12. We cannot investigate complaints about what happens in schools or colleges. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
13. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

14. I read the papers put in by Miss M and discussed the complaint with her.
15. I considered the Council’s comments about the complaint and any supporting documents it provided.
16. Miss M and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

17. A child with special educational needs may have an EHC plan. This 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 education, or name a different school. Only the tribunal can do this.
18. The Council is responsible for making sure that arrangements specified in the EHC plan are in place. 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.
19. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith by the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)

Background information

20. Miss M is a Special Guardian for her granddaughter, G. G has complex needs and an EHC plan from the Council since 2016.
21. In April 2019, the Council amended G’s EHC plan and named College 1 for her post-16 education. Miss M did not agree with plans for G’s post-16 education and appealed to the SEND Tribunal.
22. The SEND Tribunal heard Miss M’s appeal on 3 August 2020 and issued a decision on 23 September 2020. G transferred to College 2 in September 2020. Miss M’s previous complaint to the Ombudsman about her EHC plan (19 019 598) was closed on 20 April 2021.
23. Where a parent has appealed to the Tribunal, the Ombudsman cannot consider the complaint from the date the appeal right arises (that is, the date the Plan was issued) until the appeal is completed. The previous complaint decided that it could not consider her complaint about the provisions in the EHC plan up till September 2020 as Miss M had appealed to the tribunal. The complaint that the Council did not provide alternative provision when G could not attend the college due to anxiety was not upheld. This was because councils do not have a duty to arrange alternative education for young people in post-16 education who cannot attend college.
24. Miss M made another complaint to the Ombudsman (21 013 046), which was decided in October 2022. This mainly concerned her social care needs, but did find failure to secure the OT provision in her EHC plan and proposed a remedy for this and the other faults that were found.

EHC provisions from January 2021 onwards

Key facts

25. Miss X complains the Council failed to carry out the provisions in the EHC plan from January 2021 onwards.
26. G’s placement at college 2 broke down in January 2021. The Council arranged an emergency review in March 2021. As G is in post-16 education there is no duty for the Council to provide alternative education during the period when she could not attend college, from January 2021 onwards.
27. However, the Council arranged for 5 hours per week support with social skills and up to 10 hours of tuition for core tuition from March to July 2021.
28. A new EHC plan was in place in July 2021 with an EOTAS package. Miss M appealed to the SEND tribunal in October 2021.
29. The Council put in place an EOTAS package, detailed in the EHC plan of July 2021. This included:
• 1 to 1 literacy and numeracy tuition of 10 hours, increasing to 15 hours per week.
• Most of the EHC plan still referred to the provision that would be put in place in an educational setting. In an education setting G would receive a 1:1 learning support assistant full time.
• OT provision would be incorporated in G’s daily routine as part of the learning day by a trusted individual at college. The OT should attend the educational setting termly for a total of 1.5 hours per visit. The EHC plan did not name an educational setting.
30. The SEND tribunal issued a decision on November 2022 and the Council issued the amended EHC plan in January 2023. This included the following EOTAS package:
• 6 hours literacy and maths per week.
• Dog training for one hour per week.
• 6 hours per week sewing tuition.
• 7 hours household, self care and novel experiences tuition.
• 4 hours business and crafts tuition, along with 30 minutes music tuition.
• Daily occupational therapy programme developed by a suitable qualified and trained occupational therapist to deliver OT input.
• The programme should be monitored by a professional by termly visits. All staff should meet 3 times a year, to include the annual review.
• The EHC plan noted the plan was for G to move to supported accommodation.

My analysis

31. From January to July 2021 the EHC plan named a college setting. This placement was provided by the Council. When the placement broke down, the Council offered home tuition whilst the EHC plan was reviewed. The Council did not have to provide this alternative provision. I can find no evidence of delay in reviewing or re-issuing the EHC plan, or fault in the educational provision during this time.
32. From July 2021 the EOTAS package specified 10-15 hours of literacy provision per week. From the information I have, it does appear that this provision was available to G. However, she has not been able to access the full amount of hours in the provision.
33. Miss M appealed to the SEND tribunal in October 2021. Miss M disputed the EHC plan contents, but, the Council should still have been making the 10-15 hours of literacy provision available to her during this period. From the limited information I have, this does appear to have been the case. The Council has sent evidence in the form of an invoice for 20 sessions of music therapy and weekly literacy tuition. So, I can find no fault on this point. I can see there have been periods where G has not been able to take up the full provision, but this is not a service failure by the Council. I do appreciate Miss M’s argument, though, that without the therapeutic provisions, G, has struggled to engage with the tuition.
34. Miss M says the Council should have been able to provide the weekly social skills group and PSHE curriculum to G. I I have looked at the EHCP from July 2021 and this relates to if G was in an Education Provision, i.e. in college. As I have explained, this is inextricably linked to the matters Miss M appealed about to the SEND tribunal so I cannot investigate this. The Council did not have to provide alternative provision, as G was over 16. The Council said in its response to Miss M’s complaint that it offered 5 hours a week mentoring which would have built up to a social skills group but the REP declined the mentor in April 2023 as she felt the mentor was not a good match. The Council also provided some other sessions with a careers curriculum. So, there is no fault on matters that I can investigate.
35. Miss M says the Council should have reviewed the EOTAS programme regularly. There is nothing the July 2021 EHC plan to give a formal process for this, so there is no fault. But, I do understand that Miss M had to put a lot of time and effort into ensuring the provisions of the EHC plan were available to G. Miss M also complains about a failure to conduct an annual review in March 2021. I note her concerns, but as an emergency review happened in March 2021 I am not convinced it was necessary to hold a separate annual review meeting also.
36. Miss M complains the Council did not carry out an annual review of the EHC plan in March 2022. This was fault, as the Council did not write to Miss M until September to arrange the annual review. From this point onwards, there was no fault as Miss M asked for the review to be postponed and the SEND tribunal then considered the amendments Miss M wanted. I consider the injustice from the delay in the annual review cannot be separated from the complaints about lack of provision, so I will consider a remedy for both later in this statement. The Council apologised for failing to carry out the 2022 review in its response to Miss M’s stage 1 complaint.
37. From November 2022 a new EHC plan was in place. I consider that complaints about the provision for this EHC plan should be considered separately as a new and separate complaint.

Occupational Therapy provision

Key facts

38. Miss M complains the Council has not supplied the OT provision in the EHC plan from January 2022 to January 2023. Miss M has had no OT provision in this time period, but there has been one assessment by an OT.
39. The EHC plan says that ‘occupational therapy provision would be incorporated in G’s daily routine as part of the learning day by a trusted individual at college. The OT should attend the educational setting termly for a total of 1.5 hours per visit.
40. The EHC plan did not name an educational college, so clearly this provision in the EHC plan was not possible. The Council did not name an educational college, as G was in receipt of an EOTAS package.
41. In response to my enquiries, the Council argues that it could not provide the OT therapy as G was not in college. But, the Council was also responsible for the wording of the EHC plan provision which did not name a college, so it was aware of this when writing the plan. The Council did tell Miss M that it would fund independent OT provision in June 2021 and it did arrange one appointment with an OT.
42. The chronology sent to me by the Council shows the OT arranged appointments in November, (cancelled by Miss M) and December (cancelled by the OT). The OT assessment happened in January 2022.
43. The assessment recommended half termly reviews by an OT now that G was no longer accessing an educational setting, so that G could try out the activities in her own time and know that advice would be available to her in a timely manner.

My analysis

44. G’s EHC plan requires termly visits by an OT to devise a programme for her, which should be carried out daily by her and a trusted individual.
45. We have previously found service failure by the Council, as G had not received the OT visits. There was one visit in January 2022 but I cannot see there was a programme devised for G to carry out with Miss M or another adult. So, again there has been service failure, in that the OT termly visits to devise an OT programme specified in the July 2021 EHC plan have not been carried out. This has meant there was no programme available to G to be carried out daily.
46. G is now in supported accommodation and the Council has said that ‘any decision to provide OT would be subject to advice from an OT and deemed clinically appropriate. On the proviso that a named OT is commissioned to deliver the OT, this will be reviewed at the next annual review meeting and appropriate provision would be recommended then. The Council would update the EHC plan following the advice.’
47. There is a continued failure by the Council to provide the termly OT visits to provide a programme for G. The Council’s suggestion of reviewing it at the next annual review meeting for the EHC plan will not remedy the injustice from the loss of provision and introduces a further delay until a programme is devised. The termly visits are to devise a daily programme for G. While the EHC plan mentions it should be carried out by a trusted individual at college, there is no reason it could not have been carried out by G and Miss M at home.
48. To remedy the injustice I consider the Council should pay for two extra visits from an independent OT, to devise a daily OT programme which can be carried out by G, until the EHC plan is revised following the annual review. I also consider the Council should pay G of £300 for the lack of a programme for her to follow from the OT. The Council should also pay Miss M £300 to recognise her distress at having to chase the Council for provision in the EHC plan and the delay in carrying out the annual review in 2022.

Free School Meals

49. Miss M complains the Council has not provided G with free school meals vouchers after April 2021.
50. The legislation for free school meals refers to registered pupils at a maintained school or pupil referral unit. G is above compulsory school age. I can see no legislation which required the Council to provide free school meals vouchers to G.
51. There is government guidance, dated 30 March 2022, that refers to free meals in further education funded institutions. This says that ‘students aged over 19 who are continuing on the same study programme they started before they turned 19 or who have an Education Health and Care Plan (EHCP) are eligible for a free meal where they meet the criteria. The guidance says that students must be enrolled in further education provision funded by the Education and Skills Funding Agency to be eligible for a free meal. Eligible institutions are:

• general further education colleges, including specialist colleges
• sixth-form colleges
• independent learning providers
• higher education institutions (HEIs) with ESFA 16 to 19 funding
• specialist post-16 institutions (SPIs)
• local authorities (LAs) and FE institutions directly funded for 16 to 19
• 16 to 18 traineeship providers
• European Social Fund (ESF) only institutions
• 16 to 19 only academies and free schools
• 16 to 19 only maintained schools
1. I can see that G would have been eligible for FSM while she was at the further education college. She stopped attending college in January 2021 and she was paid FSM vouchers until April 2021.
2. In its letter to Miss M of December 2021, the Council informed Miss M that when G was on an EOTAS package, there was no legislation or case law that required it to provide FSM.
3. Miss M argues that the ‘institution’ is the Council now G has an EOTAS package and so she should receive vouchers equivalent to the cost of the FSM. The guidance details the eligible institutions, which Miss M says includes ‘local authorities (LAs) and FE institutions directly funded for 16 to 19’.
4. The Council has explained that the guidance for FSM Miss M refers to says that students must be enrolled in further education provision funded by the Education and Skills Funding Agency. G has an EOTAS package that is not funded by the Education and Skills Funding Agency so she is not eligible for FSM. There is no fault by the Council on this point, it has considered Miss M’s view but has reached a decision she is not eligible for FSM after considering all the facts.
5. Miss M also complains that she has not got vouchers for FSM during half term holidays. The Council has explained, in response to her complaint, that the Council used its discretion to provide vouchers during holidays when schools were shut due to COVID-19. The Council offered Miss M a one off payment of £130 vouchers in December 2021 but said this was a gesture of goodwill and there would be no further vouchers after this point. There is no fault on this point, the Council has clearly explained why Miss M will not be getting any future vouchers for the school holidays and there is no legal duty for it to continue to provide these.

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Agreed action

57. The Council should, within one month of the date of the decision on this complaint:
• Apologise to Miss M and G, and confirm in writing that it will arrange for two independent OT sessions to devise a programme.
• Pay £300 to Miss M.
• Pay £300 to G.
58. The Council should provide us with evidence it has complied with the above actions.

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Final decision

59. I have completed my investigation of this complaint. This complaint is upheld, as there has been service failure which has caused injustice. An apology, payment and ensuring the missed OT visits occur remedies the injustice.

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Investigator's decision on behalf of the Ombudsman