Summary: Miss X complained, on behalf of her son Mr Y, about the support the Council provided for his special educational needs. There was fault in how the Council failed to ensure Mr Y received some of the support in his Education Health and Care plan between May and October 2022 and how it delayed referring him for an adult social care assessment. The Council agreed to apologise to Mr Y and pay him a financial remedy. It also agreed to review how it monitors referrals of young people for adult social care assessments.

The complaint

1. Miss X complains, on behalf of her son, Mr Y, about the support the Council provided for his special educational needs since May 2022. She says the Council:
1. failed, or took too long, to arrange all the support in Mr Y’s education health and care (EHC) plan;
2. failed to include the right speech and language therapy support in Mr Y’s EHC plan;
3. did not arrange an adult social care assessment for Mr Y which is overdue;
4. did not provide suitable alternative education for Mr Y after he stopped attending college in November 2022;
5. refused to fund her choice of independent advocate; and
6. failed to investigate safeguarding concerns about Mr Y.
2. As a result, Miss X says Mr Y became unable to attend college and fell further behind with his education. She also says both she and Mr Y were caused significant stress and frustration. She wants the Council to properly recognise the support Mr Y missed and arrange the support he needs.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
7. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
8. 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.
9. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
10. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
11. 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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What I have and have not investigated

12. I have not investigated parts b) and d) of Miss X’s complaint.
13. Miss X had the right to appeal what speech and language therapy support the Council included in Mr Y’s EHC plan. Miss X brought other appeals to the SEND Tribunal, so I am satisfied it would have been reasonable for Miss X to appeal about this is she had wished to.
14. When Mr Y stopped attending his education placement in November 2022, Miss X had already appealed to the SEND Tribunal about his latest EHC plan. In her appeal, Miss X said she might later ask the Tribunal to decide what education provider Mr Y should attend. If Miss X considered Mr Y’s current placement unsuitable, she had the right to appeal this to the Tribunal.
15. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
16. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
17. Therefore, I cannot investigate the consequences, including any missed education, as a result of the Council’s decision to name Mr Y’s educational placement in his EHC plan.
18. I have investigated the other parts of Miss X’s complaint.

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How I considered this complaint

19. I considered:
• the information Miss X provided and discussed the complaint with her;
• the Council’s comments and the supporting information it provided;
• our final decision about Miss X’s last complaint involving Mr Y; and
• relevant law and guidance.
20. Miss X and the Council had opportunities to comment on drafts of my decision. I considered their comments before making a final decision.
21. 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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What I found

Education Health and Care plans

22. 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. 
23. 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)  
24. 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. 
25. 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. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 

Transition to adult social care

26. When a child reaches 18 years of age, they are legally an adult and responsibility for meeting their needs moves from the council’s children services to its adult services. The legal basis for assessing their needs changes from the Children Act 1989 to the Care Act 2014. However, councils can decide to treat a children’s assessment as an adult assessment and can also carry out joint assessments.
27. Statutory guidance says transition assessments should begin when the council can be reasonably confident about what the young person’s needs for care and support will look like when they turn 18. However, for a young person with an EHC plan, the process should begin in year 9 (age 13 to 14). The purpose of the assessment is to provide the young person and their family with information so they know what to expect in future and can prepare for adulthood.
28. The council must involve the young person in the assessment and should consider whether they need an advocate to fully participate. It should also involve anyone else the young person wants to involve, such as their carer.
29. After completing the transition assessment, the council must give an indication of which of their needs are likely to be “eligible needs” under the Care Act 2014, and which are not. This is so young people and their carers can understand the care and support they are likely to receive and can plan accordingly. For those needs that are not eligible the council must provide information and advice on how those needs can be met.

Background

30. Miss X’s son, Mr Y, has special educational needs and has an Education Health and Care (EHC) plan from the Council. From September 2021, Mr Y attended a mainstream post-16 college (School A).
31. In a previous investigation we found that the Council failed to ensure that Mr Y received some of the support set out in his EHC plan, up to the end of April 2022. This included small social groups supervised by a speech and language therapist (SaLT) and sensory circuits to help Mr Y prepare for lessons.
32. Mr Y continued to attend School A for the rest of the 2021/22 school year (between May and July 2022).
33. Following a review of Mr Y’s EHC plan in early 2022, the Council issued an amended EHC plan in August 2022. This removed the SaLT supervised social groups, but still said that Mr Y should have access to sensory circuits and a teaching assistant during lessons.
34. Mr Y returned to School A in September 2022, at the start of the 2022/23 school year. However, Mr Y stopped attending some of his lessons at this time and the School recorded increasing levels of absence for him.
35. In early September, Miss X appealed the August 2022 EHC plan to the SEND Tribunal. In her appeal she said that she was not happy with the level of support set out in the plan and that she might ask the Tribunal to also decide what educational placements Mr Y should attend.
36. Following some meetings between Miss X and the School in October, Mr Y stopped attending School A in November 2022. Miss X told the Council that Mr Y was not getting the right support and she did not think he was safe at School A.

My findings

Securing the support in Mr Y’s EHC plan

37. In our previous investigation, we found that the Council, or School A on its behalf, had failed to arrange the SaLT led social groups between September 2021 and April 2022.
38. Mr Y’s EHC plan said he should have received a further six of these social groups in the last term of the 2021/22 school year.
39. However, the Council has not provided any evidence that it, or the School, arranged these sessions. On the balance of probabilities, I am satisfied these sessions did not take place for the final term between May and July 2022. That was fault which meant that Mr Y went without those sessions. The Council should apologise and pay a financial remedy to recognise the support Mr Y missed.
40. Mr Y’s EHC plan changed in August 2022 and no longer included any direct therapy or support from a speech and language therapist.
41. In its response to Miss X’s complaint, the Council accepted there had been between three and four weeks during which Mr Y did not have access to a teaching assistant (TA) during September 2022. This was because the previous assistant had left at the School had to recruit a replacement.
42. While this was outside the Council’s control, the law still requires that the support set out in Mr Y’s EHC plan was provided. The failure to provide a teaching assistant in September 2022 was, in my view, service failure and so was fault. Miss X said this lack of support meant that Mr Y’s placement at School A broke down. However, I do not consider that short period without access to a teaching assistant caused Mr Y a significant injustice or caused him to stop attending School A. He had access to other teaching staff while at school and a new assistant was in place from October 2022 meaning the delay was relatively short.
43. There is some evidence to show that, after the delay we found in our previous investigation, the School arranged the sensory circuits for Mr Y from May 2022 and that he made some use of them. I am also satisfied, on the balance of probabilities, that these were in place from October 2022 (when the TA support was in place), but that Mr Y chose not to use them at that time.

Adult social care assessment

44. Although Mr Y was not receiving any social care support as a child, the Council told Miss X that it would arrange for an assessment of any social care support Mr Y needed as an adult.
45. However, the Council has not provided any evidence it carried out that assessment until March 2024, when it was instructed to do so by the SEND Tribunal. Mr Y turned 18 in mid-2023. That delay was fault.
46. The Council decided in April 2024 that Mr Y needed 20 hours a week social care support in improving his independence and agreed a direct payment for him to pay for that support. Had the Council caried out Mr Y’s adult social care assessment when it should have done, before he turned 18, I am satisfied it would have likely decided Mr Y needed a similar level of support. Therefore, I am satisfied the delay in referring Mr Y for the assessment led to him going without support he needed for nearly a year after he turned 18. The Council should apologise and pay Mr Y a financial remedy to recognise the support he likely went without.

Independent advocate

47. The Council commissions an independent advocacy service through its special educational needs Local Offer. I am satisfied the Council offered to refer Mr Y to that advocacy service but that Miss X refused that offer on his behalf.
48. There is no evidence to suggest the service the Council offered could not meet Mr Y’s needs. I do not consider it was fault for the Council to refuse to fund Miss X’s choice of advocacy for Mr Y when it already funded a suitable service.

Miss X’s safeguarding concerns

49. Miss X told the Council she was concerned about Mr Y’s safety while he was at school but not in lessons. The Council said it considered Miss X’s concerns but decided these did not meet the threshold for formal safeguarding action. The Council said there was no evidence to suggest Mr Y was in any danger when not directly supervised.
50. On the balance of probabilities, I am satisfied the Council did consider Miss X’s concerns and decided it did not need to take any formal action. This was a decision the Council was entitled to take and, since there is no evidence of fault in how the Council made this decision, I cannot question it. In any case, there is no evidence Mr Y was at any risk while at school but not attending lessons.
51. I cannot investigate what steps School A took to keep Mr Y safe while at school. This is an internal school matter which the Ombudsman is not allowed to investigate.

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Agreed action

52. Within one month of my final decision the Council will:
• apologise to Mr Y for failing to ensure that he had access to the SaLT supervised social groups between May and July 2022;
• pay Mr Y £200 to recognise that support he missed out on; and
• pay Mr Y £500 to recognise the adult social care support he went without between mid-2023 and mid-2024.
53. Within three months of my final decision the Council will review its processes for referring young people approaching adulthood, who have special educational needs or are receiving children's social care support, to its adult social care team for an assessment of their needs as an adult. The Council should ensure referrals are made promptly and it has systems in place to identify missed referrals.
54. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
55. The Council should provide us with evidence it has complied with the above actions.

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Final decision

56. I have completed my investigation. There was fault in how the Council failed to ensure Mr Y received some of the support in his EHC plan between May and October 2022 and how it delayed referring him for an adult social care assessment. The Council agreed to apologise to Mr Y and pay him a financial remedy. It also agreed to review how it monitors referrals of young people for adult social care assessments.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman