Summary: Ms Y complained the Council did not arrange Y’s educational provision under her Education Health and Care Plan (“EHCP”) from September 2022 meaning she could not start college. The family also missed out on benefits linked to Y’s education. We found the Council at fault. We recommended it apologises to Ms Y, pays £150 for time and trouble, pays £500 for distress and uncertainty, pays £1500 for Y’s missed educational provision, pays £5263.33 to reimburse financial losses, arranges social skills provision for Y, updates Y's EHCP, and trains staff to prevent recurrence.

The complaint

1. Ms Y complains the Council did not ensure her daughter Y could attend college from September 2022 or make alternative provision. She says Y has missed education and the family has missed out on child tax credits and child benefit, causing financial difficulty.
2. Miss X is acting as Ms Y’s representative.

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The Ombudsman’s role and powers

3. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
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. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), 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.
7. 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)

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How I considered this complaint

8. I spoke to Miss X and I reviewed documents provided by Miss X and the Council.
9. I gave Miss X and the Council an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Children and Families Act 2014

10. Under section 42 of the Act, councils must secure the special educational provision specified in an Education Health and Care Plan (“EHCP”) for the child or young person.
11. Under section 43, where a further education college is named on an EHCP they must admit the child or young person.
12. There is no requirement for parents of a child with an EHCP to go through the usual admissions process as EHCPs are dealt with separately to this process.

EHCP process; SEND Code of Practice

13. Councils must review an EHCP at least every 12 months.
14. An EHCP must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education, to allow for planning for and, where necessary, commissioning of support and provision at the new institution.
15. For young people moving from secondary school to a post-16 institution or apprenticeship, the review and any amendments to the EHC plan – including specifying the post-16 provision and naming the institution – must be completed by the 31 March in the calendar year of the transfer.
16. In some cases, young people may not meet the entry requirements for their chosen course or change their minds about what they want to do after the 31 March. Where this is the case, councils should review the EHCP with the young person as soon as possible, to ensure that alternative options are agreed and new arrangements are in place as far in advance of the start date as practicable.
17. Within 2 weeks of the review meeting the school must provide a report to the council with any recommended amendments.
18. Within four weeks of the meeting, the council must decide whether it will keep the EHCP as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school. If it needs to amend the plan, the council should start the process of amendment without delay.
19. The council must send the draft EHCP to the child’s parent and give them at least 15 days to give views on the content.
20. If a child’s parent asks for a particular school or college the council must name the school in the EHCP unless:
• it would be unsuitable for the age, ability, aptitude or SEN of the child or young person, or
• the attendance of the child or young person there would be incompatible with the efficient education of others, or the efficient use of resources
21. The council must consult the governing body, principal or proprietor of the school or college concerned and consider their comments very carefully before deciding whether to name it in the child or young person’s EHCP.
22. The school or college should respond within 15 days. Where a school or college is named on an EHCP they must admit the child or young person.
23. The council should issue a final EHCP to the parent and any setting named within 8 weeks of issuing the amendment notice. It must also notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so.

Council complaints policy

24. The Council publishes its complaints policy on its website.
25. It aims to respond at stage 1 within 10 working days.
26. It aims to respond at stage 2 within 20 working days.
27. If you remain unhappy with the stage 2 response you can contact the Ombudsman.

Benefits for children in education

28. A parent’s Child Benefit stops on 31 August on or after their child’s 16th birthday if the child leaves education or training. It continues if they stay in approved education or training, but the parent must tell the Child Benefit Office.
29. Parents will be sent a letter in their child’s last year at school asking them to confirm their plans.
30. Child Tax Credit usually stops on 31 August after a child turns 16 but can continue for children under 20 in approved education, training or registered with a careers service.

Equality Act 2010

31. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
32. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. Race is one of those protected characteristics.
33. The Ombudsman cannot find that an organisation has breached the Equality Act. However, we can find an organisation at fault for failing to take account of its duties under the Equality Act.

Direct discrimination

34. Direct discrimination occurs when a person treats another less favourably than they treat or would treat others because of a protected characteristic.

Indirect discrimination

35. Indirect discrimination may occur when a service provider applies an apparently neutral provision, criterion or practice which puts persons sharing a protected characteristic at a particular disadvantage.

What happened

36. In March 2022 Y was aged 15 and attended School A.
37. On 25 March the Council issued an EHCP naming School A until July 2022 and College A from September 2022.
38. The EHCP outlined teaching strategies. It did not include specific therapy or provision except access to ongoing small group support using an evidence based structured social skills programme.
39. On 15 September a third party contacted the Council on behalf of Ms Y. They explained it was unusual for someone of Y’s ethnic heritage to finish school and even less common that Y’s parents were supportive of her doing so. Y’s parents valued education but they needed the right support for Y to continue. Y was at risk of becoming a child not in education employment or training because her parents could not read or write. Neither the Council nor College A had contacted Y’s parents regarding her post 16 provision. On chasing, College A said they had no record of Y and the family would need to apply for a place. They did but heard no further.
40. On 30 September the Council replied to say they would be in contact with College A and Ms Y.
41. The third party chased on 18 October as Ms Y was still unaware of the start date for College A.
42. On 19 October the third party complained to the Council, with reference to what had happened to date and said Y had now missed the first half term of college.
43. The Council issued its stage 1 response on 23 November. In summary:
• It apologised for the delay in responding.
• It explained, when securing Post 16 provision, in addition to the Council consulting with the preferred college, students must make their own application to secure a place. In this instance College A had not received an application to study from Y or her parents. Therefore, a place was not secured and Y could not enrol until she applied.
• College A confirmed it would look at the application as soon as it was made and a course of study identified by Y, as well as confirmation of the appropriate grades.
• If Y was unable to complete the application, or did not have access to someone who could assist, they could contact the Council for help.
• It apologised if it did not communicate this process clearly previously.
44. On 25 November the third party escalated their complaint. They said:
• The Council had not addressed the complaint.
• College A said it had no record of Y and the Council did not consult with it.
• An application was made on 2 September 2022.
• Y still without provision and the family’s benefits has been stopped as Y was not in education, causing financial difficulties.
• The Council delayed responding at stage 1.
• Ms Y felt she was being discriminated against due to her ethnicity and that she was being ignored because she could not read or write or access email.
45. The Council issued it stage 2 response on 17 February 2023. In summary:
• It apologised for the delay in responding.
• College A was named in the EHCP but did not receive an application as required.
• It was now seeking alternative provision and would contact Ms Y.
• It would improve its communications around post 16 education going forward.
• It referred to the Ombudsman.
46. The Council told the Ombudsman:
• During the Annual review it told Y’s parents they needed to make their own application to college to be accepted onto a course.
• On 20 December, College A denied receiving any application. On 24 January, College A confirmed it received a late application but the course was now full.
• On 7 March, it sent a new application to College A.
• It arranged 13 hours per week tutoring for Y from 17 April 2023. (Internal emails show the Council considered 12 hours 1:1 tuition was equivalent to full time education).
• College A had now agreed Y would be suitable for a foundation course. This may enable Y to transition to the mainstream college, for a September 2023 placement.
47. Upon request Miss X provided bank statements to evidence the shortfall in Ms Y’s benefit payments. These show:
48. Ms Y’s child tax credit payments dropped from £291.25 per week in July 2022 to £161.21 per week from 5 September 2022. Payments increased slightly from 17 April 2023 and then returned to a higher amount from 19 May 2023. I calculate the shortfall as £4161.28 from 5 September 2022 to 17 April 2023 and £560.25 from 17 April to 19 May 2023.
49. Ms Y’s child benefit payments dropped from £36.25 per week in July 2022 to £21.80 per week from 6 September 2022. Payments increased slightly from 11 April 2023, there was one low payment on 18 May and then payments returned to a higher amount from 23 May 2023. I calculate the shortfall as £447.95 from 6 September 2022 to 11 April 2023, £73.50 from 11 April to 16 May 2023 and £20.35 on 18 May.

Findings

50. The Council should have ensured it commissioned support and provision for Y to start College A in September 2022 during the EHCP process and so by the end of March 2022. This would include identifying a course and ensuring Y met entry requirements. However, the information seen shows the Council did not complete this planning. It did not identify a suitable course or provide Ms Y or Y with information about the course and start date. This is fault.
51. The Council repeatedly told Ms Y she needed to apply for a place at College A for Y. This is incorrect and amounts to fault. The Council’s practice in this regard put Ms Y at particular disadvantage given she could not read or write. I consider this evidence the Council did not have due regard to its duties under the Equality Act 2010.
52. The Council knew it had not secured Y’s educational provision upon contact of 15 September 2022 yet it took no action to address this until March 2023 and made no alternative provision until April 2023. This is fault.
53. Because of the Council’s fault, Y was unable to start College A as intended. Y was out of education from September 2022 to April 2023 and missed out on social skills provision. Further, Y’s family were put to inconvenience seeking to apply to College A unnecessarily. They suffered financially due to missing out on benefits which would have been paid if Y continued in education. And they have suffered distress and uncertainty due to the circumstances of this case and because they have felt discriminated against. This is injustice.
54. The Council delayed issuing complaint responses at stage 1 and stage 2. This is fault. Ms Y was put to avoidable time and trouble in the complaint process. This is injustice.

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Agreed action

55. To remedy the injustice set out above the Council should complete the following actions:
56. Within one month:
• Provide Ms Y with an apology;
• Pay Ms Y £150 for time and trouble;
• Pay Ms Y £500 for distress and uncertainty;
• Pay Ms Y £1500 for Y’s missed educational provision;
• Pay Ms Y £5263.33 to reimburse her financial losses;
• Arrange social skills provision for Y in line with her EHCP or pay Ms Y £100 per month term time only until this is in place;
• Ensure it completes planning for Y’s educational provision, making clear the arrangements from September 2023, and update Y’s EHCP accordingly;
57. Within three months:
• Provide training to staff responsible for EHCPs to ensure they are aware to complete planning during the EHCP process and that placements have a duty to admit once named on the plan; parents do not need to go through the usual admissions process.
58. The Council should provide us with evidence it has complied with the above actions.
59. The Council has accepted my recommendations.

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Final decision

60. I find the Council at fault because it did not complete planning on Y’s EHCP and it did not arrange provision for Y as necessary, causing injustice. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman