Summary: Miss X complained the Council had not ensured her son, Y, could attend college. She said the medical training required to support Y to attend college had not been completed. Miss X also complained the Council did not ensure the provision set out in Y’s Education, Health and Care Plan (EHCP) was provided. Miss X said Y had not been able to attend college, which has impacted his mental health. The Council was at fault. The Council has not ensured Y received appropriate college education or received the provision set out in his plan. Y missed college education and provisions set out in his EHCP and Miss X suffered distress dealing with this matter. The Council should apologise, pay a financial remedy and remind its staff of the importance of ensuring education and provision.

The complaint

1. Miss X complained the Council had not ensured her son, Y, could attend college. She said the medical training required to support Y to attend college had not been completed. Miss X also complained the Council did not ensure the provision set out in Y’s Education, Health and Care Plan (EHCP) was provided. Miss X said Y had not been able to attend college, which has impacted his mental health.

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What I have and have not investigated

2. I have investigated Miss X’s complaint from March 2022 until she complained to the Ombudsman in March 2023. I reference events prior to this for context in this matter.
3. I have not investigated any part of the complaint from before March 2022 as this was covered in a different Ombudsman investigation.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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

7. I read Miss X’s complaint and spoke to her about it on the phone.
8. I considered information provided by Miss X and the Council.
9. Miss X and the Council 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

Background information

10. A child with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal or a council can do this.
11. We can consider the other sections of an EHCP. We do this by checking the Council followed the correct process, and took account of all relevant information, in deciding what to include. If we find fault affected the outcome, we may ask the Council to reconsider. We will not usually substitute our judgement for the judgement of professionals.
12. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
13. The Council has a duty to secure the specified special educational provision in an EHCP for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a Council asks another organisation to make the provision and that organisation fails to do so, the Council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
14. For young people with an EHCP, preparation for transition to adulthood must begin from year 9 (age 13 to 14). Transition planning must consider the young person’s needs as they move towards adulthood. It should plan to support their choices for further education, employment, career planning, financial support, accommodation, and personal budgets where appropriate. 
15. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
16. Where a 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 within four weeks of the annual review meeting. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
17. Following comments from the child’s parent or the young person, if the Council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
18. The Ombudsman has issued a public interest report on young people missing education. Out of school, out of sight?

What happened

19. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
20. Y has complex health needs and requires two-to-one support from specially trained professionals.
21. Y’s EHCP was issued in August 2021. The plan clearly sets out Y’s need for support to enable him to access education. The plan confirms support needed to be provided by a teacher or teaching assistant, both individually and in groups. The plan also sets out speech and language therapy (SALT) and occupational therapy (OT) support.
22. Y’s school completed his annual review in January 2022. The preparing for adulthood section in the review document was left blank despite Y transitioning from school to college at the end of the academic year. The outcome of this review was the plan should be amended to reflect Y’s needs.
23. Y’s chosen college, college B, assessed his needs in March 2022. College B had all the information about Y’s needs and the support he required and included this in an initial assessment. College B agreed it could meet Y’s needs and offered him a place.
24. Y was not able to access education at school due to his health needs and was supported by staff at his home. The education support ended at the end of May 2022, after Y would have finished his GCSE’s if he had been attending school.
25. Miss X contacted the Council in August 2022 to ensure the college had the appropriately trained staff and the transport had been arranged. All staff working with Y needed to have the training to keep Y safe and well. The Council completed the transport forms for Y on the same day.
26. Y was due to start at college B in September 2022. I have seen no evidence of any transition work with Y. Miss X complained to the Council the day Y was due to start as it had not put in place any education or the provision set out in section F of Y’s plan.
27. College B arranged home tuition to commence one week after Y was due to start.
28. The Council responded to Miss X’s complaint at the end of September 2022. The Council partially upheld the complaint and accepted communication had not been clear and the necessary training for staff had not been completed.
29. Miss X was not happy with the Council’s complaint response and requested the Council escalate her complaint to stage two. She said college B knew what training the staff needed but had not provided it. Miss X also said college B was not providing sufficient education and was not providing the provision set out in the EHCP.
30. The Council continued communication with college B throughout October 2022 and November 2022. The Council was concerned Y was not in college and chased the college about training its staff.
31. The Council provided its final complaint response at the end of November 2022. The Council upheld the complaint. It apologised for not arranging the training for staff and said it was imperative college B complete the training. The Council offered Miss X £300 for her distress and £300 per month for missed education.
32. The Council issued Y’s final EHCP at the start of December 2022. The plan is more specific adding more detail to the provision. The support is delivered by a teacher and teaching assistants. It also details two-to-one support, group work, support from SALT and significant OT provision.
33. The Council has evidenced it continued to liaise with college B about staff training and getting Y into college from January 2023 until Miss X complained to the Ombudsman in March 2023. The Council requested information from college B about the medical training and when Y could start attending.
34. At the end of March 2023, the Council provided several emails which evidence it was communicating with college B, the health service and transport to try and get Y into college. Y was still not in college and was provided with some education at home.
35. Miss X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Miss X would like the Council to apologise, compensate her and Y and to get Y into college with the trained staff he needs. Miss X raised the education Y received at home was provided by support workers and not teachers or teaching assistants.
36. In response to my enquiries the Council stated it had regularly chased college B for updates. It continued college B had arranged home tuition for Y. It acknowledged Y had not received the appropriate education and repeated its financial offer set out in its final complaint response, adding an additional month. It stated the education offer increased in January 2023 so it was satisfied Y was provided with the education he needed. The Council advised it had contacted health colleagues about the SALT and OT provision and the Council would fund a trained nurse so Y could attend college and then receive the OT and SALT set out in his plan.

My findings

Transition

37. The Council has not provided evidence of any transition to college. The only documentation it has sent was college B’s assessment form. This does not evidence any transition, it only evidenced college B was aware of Y’s needs when it accepted his placement.
38. Y is a young person who needed support in preparing for his move to college and in helping him to engage when there. He did not receive that support. This left him unprepared for a significant change in his circumstances. The Council did not ensure Y had any transition to college. This is fault and Y was not supported to transition, adding to his distress and him missing out on college.

Education

39. The Council accepted it did not ensure Y was provided with sufficient education from September 2022 until December 2022. In its response to my enquiries the Council said the tuition increased in January 2023 and again in March 2023. I have not seen evidence of any increase in January 2023.
40. Miss X provided me with a breakdown of the education hours Y received. The hours increased at the start of November 2022 from two hours to three and a half hours per day, three days per week. She also confirmed she was providing staff with training on Y’s medical needs at home. The next increase was to three- and three-quarter hours at the start of March 2023. I have not seen any evidence the tuition increased in January 2023. As the Council has accepted it did not provide enough education from September 2022 until December 2022, and nothing then changed, it is reasonable to say the Council did not provide sufficient education from September 2022 until March 2023. This is fault and Y missed out on education.

EHCP provision

41. The Council can delegate its responsibilities to ensure the provision in the EHCP is delivered. However, the Council remains responsible for delivery.
42. Y’s EHCP clearly sets out his needs and the support Y requires to access education. He always required two-to-one support. The plan included the provision needed to be delivered by teachers or teaching assistants. Miss X complained the tutors were support workers, so all the provision was not completed. The Council has evidenced the tutors who work with Y have teaching qualifications and the learning support assistants either have or are working towards teaching assistant qualifications. I am satisfied the staff were appropriately trained to satisfy this provision set out in the EHCP.
43. The EHCP also sets out SALT and OT provision. Y was due to receive support from educational staff in consultation with SALT and OT. The OT was also due to provide direct support to Y, totalling 46 and a half hours per year. The Council has evidenced it provided emails to say it had completed the referrals. This does not evidence it secured this provision. This is fault and Y has not had the support he needed to access college.
44. Y needed two medically trained individuals to meet his needs in college and in the transport to and from college. I have seen no evidence the Council acted to ensure the appropriately trained staff were available to meet Y’s medical needs until August 2022. He was due to start in September 2022.
45. Y still did not have the appropriately trained staff to support him when Miss X complained to the Ombudsman in March 2023, and she is having to provide the medical support, as well as training to professionals. The Council has failed to ensure the appropriate support was available and Y has not been able to access college due to this. This is fault and Y was still not in college over seven months later.
46. I have seen as part of my investigation there was a significant delay issuing an updated EHCP after the January 2022 annual review. The amended final plan was issued in December 2022. This is not part of Miss X’s complaint and there were not significant changes to the plan, other than the placement, but it is a concern to see such a delay when a young person is not in their education placement.

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Agreed action

47. To remedy the outstanding injustice caused to Miss X and Y by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Miss X and Y for not ensuring Y received a suitable transition, sufficient education and the provision set out in Y’s EHCP. This apology should be in accordance with the Ombudsman’s new guidance Making an effective apology.
• Pay Miss X £300 it previously offered as an acknowledgement of the distress pursuing this complaint.
• Pay Miss X £300 for her time and trouble pursuing this matter and having to deliver the training to staff herself.
• Pay £2100, in line with its previous offer, for not providing sufficient education over two academic terms. This money should be used for Y’s benefit. It should pay Miss X a further £100 per month from the date the decision is issued until Y is able to return to college.
• Pay £1800 for not providing the provision specified in Y’s EHCP for two academic terms, specifically the OT. This money should be used for Y’s benefit. It should pay Miss X a further £100 per month from the date the decision is issued until the OT provision is arranged and has started.
• Ensure college and transport staff receive the necessary medical training and produce an action plan to confirm the steps which will be taken with specific timescales to ensure Y is able to attend college.
• Remind staff of the Council’s responsibilities to ensure the provision set out in the EHCP is secured and provided.
48. The Council should provide evidence of the actions taken to satisfy the recommendations.

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Final decision

49. I have completed my investigation. I have found fault by the Council, which caused injustice to Miss X and Y.

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Investigator's decision on behalf of the Ombudsman