Summary: Miss F complains through her mother, Mrs J, that the Council has failed to provide the provision set out in her EHC plan since July 2021. We found there was service failure which caused Miss F to miss out on education for six terms and significant distress to Mrs J. The Council has agreed to make payments to them to remedy that injustice.

The complaint

1. Miss F complains through her mother, Mrs J, that the Council has failed to provide the provision set out in her EHC plan since July 2021.
2. This has severely affected her health and wellbeing as she has missed out on social and educational activities. It has also affected Mrs J, who has had no break from caring.

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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 an 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 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

6. I spoke to Mrs J about the complaint and considered the information she sent and the Council’s response to my enquiries.
7. Mrs J 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

Education, Health and Care Plans

8. A child or young person aged 19 to 25 with special educational needs (SEND) may have an Education, Health and Care Plan (EHC plan). This sets out the young person's needs and what arrangements should be made to meet them. The council is responsible for making sure that all the arrangements specified in the EHC plan are put in place.
9. EHC plans cover young people up to the age of 25. There is no automatic entitlement to continued educational support at age 19, or an expectation that those with an EHC plan should all remain in education until age 25.
10. Parents have a right of appeal to the SEND Tribunal if they disagree with the SEN provision, the school named in their child's plan, or the fact that no school or other provider is named.
11. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.

What happened

12. I have set out the key events, this is not meant to detail everything that happened.
13. Miss F is a young autistic adult with health conditions which cause complex medical needs, cognitive and communication difficulties (including visual impairment and hearing loss), and problems with motor skills. She has a tracheostomy and therefore requires carers and escorts who are tracheostomy trained.
14. Miss F has an EHC plan which named a specialist college (“the College”). In July 2020 Mrs J applied to the Council for transport assistance to college. The Council agreed to provide a vehicle and a passenger escort.
15. No suitably trained escort could be found, so Mrs J agreed to carry out this role whilst the Council searched for one. The Council paid Miss F a personal transport budget to fund Mrs J. Miss F started attending the College in September 2020.
16. A care agency was asked to provide escorts. One started in November 2020, but then left. Efforts to find replacements were unsuccessful, so Mrs J continued to escort Miss F.
17. Miss F appealed to the SEND Tribunal for a residential placement at the College. The Council agreed to this and the Tribunal issued a consent order in August 2021. This said Miss F would be unable to attend on a residential basis until the College had fully trained staff. She was therefore to continue going on a daily basis for a period. The order says the Council “agreed to provide transport with tracheostomy trained staff until Miss F attends on a residential basis. It is anticipated that this will be in October 2021.”
18. In October 2021 Mrs J told the Council that her physical and mental health had deteriorated and, following GP advice, she was no longer able to escort Miss F to college.
19. I have seen that the Council, the College and the NHS who funded Miss F’s care, then made a number of attempts to find suitably trained escorts. The training required staff to complete competency tests which could only be done in an emergency situation. This meant that a trained person needed to travel with Miss F until the competency checks were completed. Due to the nature and the complexities of the procedures involved, it was agreed that this was a nursing responsibility.
20. Some agencies did not have the trained staff required and did not wish to recruit because of the intended temporary nature of the arrangement. One agency did try to recruit but without success. Mrs J offered to train staff in her home, but this was not taken up. As no tracheostomy trained support staff could be found, Miss F was unable to attend the College or take up her residential placement.
21. At the annual review of Miss F’s EHC plan in March 2022, Miss F was still unable to attend the College.
22. In May 2022 Mrs J’s solicitor wrote to the Council advising she may take legal action as it had failed to put Miss F’s SEN provision in place. Mrs J also made a formal complaint.
23. The Council’s response to Mrs J’s solicitor accepted that, despite its best endeavours, it had failed to put the transport in place.
24. Mrs J met with the Council to discuss other options, including education at home using tutors. The Council contacted a tutoring agency in September 2022 but it has been unable to find a suitable tutor by May 2023.

My findings

25. Whilst I can see the difficulties the Council faced in finding suitable staff, it was ordered to and agreed to provide transport and an escort for Miss F to the College but has failed to do so. It has also failed to put a home tutor in place since September 2022.
26. 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 on the part of 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)
27. I find there has been service failure by the Council which has meant Miss F has been unable to attend college or have a post-16 education from September 2021 to June 2023 (six terms).
28. This has also caused significant distress to Mrs J, whose mental and physical health deteriorated and who has had to continually care for Miss F when she should have been at a residential college.
29. Our guidance on remedies says that, if there has been a loss of education caused by fault, a payment of £900 - £2,400 per term may be appropriate to be used now for the person’s educational benefit. The figure should take account of factors such as:
• The severity of the child’s SEN as set out in their EHC plan.
• Any educational provision – full time or part time, without some or all of the specified support – that was made during the period.
• Whether additional provision can now remedy some or all of the loss.
• Whether the period concerned was a significant one for the child or young person’s school career – for example the first year of compulsory education, the transfer to secondary school, or the period preparing for public exams.
30. Given Miss F has severe SEN and that it may be possible to fund further provision now to remedy her loss of education, but she is not of compulsory school age, my view is that a figure of £1,600 per term is appropriate.
31. For Mrs J, we normally recommend a remedy payment for distress up to £500. We can recommend higher payments where we decide it was especially severe and/or prolonged. Given the prolonged period and severe impact on her health, I consider £1,500 to be an appropriate amount.

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Agreed action

32. Within a month of my final decision, the Council has agreed to:
• Pay Mrs J £9,600 to be used for Miss F’s educational benefit.
• Pay Mrs J £1,500 to remedy the distress she has been caused.
33. The Council should provide us with evidence it has complied with the above actions.

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Final decision

34. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman