Summary: the Council failed to ensure that a significant element of the special educational provision in Mr S’s May 2022 Education, Health and Care (EHC) Plan was delivered. The staff at Mr S’s supported living did not receive training from his teacher to embed his learning throughout his waking day. The Council failed to hold an annual review in May 2023, and may have ended Mr S’s EHC Plan 12 months earlier than necessary.

The complaint

1. Ms M complains the Council failed to arrange all the special educational provision in her son Mr S’s Education, Health and Care (EHC) Plan. In particular, Ms M complains the Council failed to arrange 280 hours of direction and monitoring for Mr S’s supported living staff.
2. Ms M complains the Council failed to hold an annual review of Mr S’s EHC Plan before the plan ended when Mr S reached 25.
3. Ms M complains about her dealings with the Council in connection with Mr S’s education and her complaints.

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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 injustice we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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)
6. 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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How I considered this complaint

7. I have considered information provided by Ms M and the Council. I invited Ms M and the Council to comment on my draft decision.

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What I found

8. Ms M’s son, Mr S, had an Education, Health and Care (EHC) Plan maintained by the Council. Mr S lives in supported accommodation.
9. The Council issued Mr S’s last EHC Plan in May 2022. The Plan says:
• Mr S shall be taught by a qualified teacher for 48 weeks of the year;
• the teacher will ensure that supported living staff actively support Mr S’s educational programme and embed his learning throughout the waking day. To this end, the teacher will provide 280 hours per year of direction and monitoring for the supported living staff in addition to delivering Mr S’s direct teaching.
10. Ms M first raised concerns that the teacher was not providing direction to Mr S’s supported living staff through her solicitor in January 2023. The Council told Ms M the teacher was providing training when the staff were on their lunch breaks.
11. Ms M later received information from the teacher which appeared to contradict the Council’s assurances. In a report for a review of Mr S’s Individual Education Plan (IEP) in March 2023, the teacher noted training sessions had not gone ahead and some staff were unwilling to take part.
12. Ms M made a formal complaint to the Council on 19 October 2023. She also complained the Council had not held a final annual review of Mr S’s EHC Plan.
13. The Council responded at both stages of its complaints procedure. The Council said it was satisfied the teacher had delivered the direction and monitoring for supported living staff, although it was unable to provide records. The Council said this was because of data protection regulations. The Council said it did not have a duty to hold an annual review for Mr S’s EHC Plan, although it had offered to meet with Ms M to discuss future plans for Mr S. The Council acknowledged its officers had taken too long to respond to Ms M’s emails and apologised. The Council offered a symbolic payment of £200.
14. Unhappy with the Council’s response, Ms M complained to the Ombudsman.

Complaint 1: special educational provision

15. Ms M complained the Council failed to arrange 280 hours of direction and monitoring for Mr S’s supported living staff.

My investigation

16. I asked what the Council did to check the provision was in place once it issued Mr S’s EHC Plan in May 2022, and again when Ms M raised concerns in January 2023. I asked the Council to send the evidence which satisfied it the provision was delivered. I asked the Council to explain why the evidence cannot be shared with Ms M, if that was still the case.
17. I asked the Council to send copies of the teacher's reports for Mr S’s IEP reviews.
18. I asked when the training for Mr S’s supported living staff began, since the teacher’s report for the March 2023 review of Mr S’s IEP suggests there were delays delivering the training.
19. I asked the Council to send evidence.

The Council’s response

20. The Council referred me to its responses to Ms M’s complaints. The Council said it had no further comment to make and no further information to provide in relation to this case.

Findings

21. Once the Council has issued an EHC Plan, it must secure the special educational provision specified in the Plan for the child or young person. (Children and Families Act 2014, section 42)
22. The Courts have made it clear the Council’s duty to arrange provision is owed personally to the child and cannot be delegated. (R v London Borough of Harrow ex parte M [1997] ELR 62)
23. We recommend councils check the provision is in place and record they have done so at least:
• when they issue a new or significantly amended Plan;
• at statutory reviews; and
• when concerns are raised that provision is not in place.
24. I made enquiries because the Council’s responses to Ms M’s complaints did not answer all my questions.
25. The Council’s response to Ms M’s complaints suggested the Council had information to justify its assertion the teacher had delivered the direction and monitoring for supported living staff which it was unable to share with her. I asked to see the information.
26. The Council said it had no more information to provide.
27. The only conclusion I can draw is that the evidence the Council alluded to in its response to Ms M does not, in fact, exist.
28. I asked what the Council did to check the provision was in place once it issued Mr S’s EHC Plan in May 2022, and again when Ms M raised concerns in January 2023 since the Council is responsible. I wanted to understand the process the Council followed.
29. The Council did not provide any information.
30. The only conclusion I can draw is that the Council has no processes to check provision is in place, or to respond when a parent raises concerns.
31. The lack of evidence calls the Council’s response to Ms M’s complaint into question. With no evidence to support the Council’s assertions that everything was in order, and evidence from Ms M to suggest there were problems, I find on the balance in favour of Ms M.
32. The Council’s suggestion the teacher was training staff during their lunchbreak sounds improbable. In any event, it would be inappropriate.
33. Therefore I uphold Ms M’s complaint and find there was delay arranging the provision in Mr S’s EHC Plan, and the provision was not delivered in its entirety. This is fault.
34. Where we find fault, we consider the impact on the complainant. We refer to this as the injustice. We may recommend a remedy for injustice that is the result of fault by the Council.
35. The impact on Mr S is difficult to quantify but is likely to have been significant. Ms M described Mr S being bored and underoccupied. I note the provision was not simply to occupy Mr S, but also intended to train and educate him.
36. I will recommend a remedy for the injustice caused by the Council’s failure to ensure Mr S received all the provision in his EHC Plan. My recommendations are at the end of this statement.
37. We can also make recommendations to ensure similar faults do not happen in the future.

Complaint 2: final annual review

38. Ms M complained the Council did not hold an annual review of Mr S’s EHC Plan in May 2023. The Council said a “full EHC review” was “not legally required”.
39. The Council’s complaint response refers to a “meeting” in June 2023 which, although not an annual review, the Council said would be the final meeting. The Council said that Mr S’s EHC Plan would “naturally cease” as he would turn 25 within the academic year.

My investigation

40. I asked whether the Council held an annual review of Mr S’s EHC Plan in the 12 months to May 2023 (that is, in the 12 months after the Plan was issued)? If so, I asked the Council to send the papers. If not, I asked the Council to explain why not. I asked the Council to direct me to the relevant regulations or guidance if the Council believes it was not required to hold a review.
41. For completeness, I asked when the last review of Mr S’s EHC Plan took place.

The Council’s response

42. As already noted, the Council referred me to its responses to Ms M’s complaints.
43. The Council said it had no further comment to make and no further information to provide in relation to this case.

Consideration

44. The Council has not said which regulations or guidance to support its view that it was not required to hold an annual review in May 2023.
45. My reading of the regulations is that a review was required. The fact Mr S’s EHC Plan may have been about to end is irrelevant.
46. An EHC Plan must be reviewed at least every 12 months. Regulations set out the procedure the Council must follow to review a Plan. Government guidance makes specific reference to questions which must be considered in reviews where a Plan is about to end.
47. The Council issued Mr S’s last Plan in May 2022. The Council did not hold an annual review in May 2023. The Council’s failure to hold an annual review is fault.
48. I am also concerned by the Council’s suggestion that Mr S’s EHC Plan would “naturally cease” as he was turning 25 during the year academic.
49. The Council can maintain an EHC Plan until the end of the academic year in which the young person attains the age of 25. (Children and Families Act 2014, section 46)
50. For a young person who is not attending an institution in the further education sector, or receiving apprenticeship training, this is the period of twelve months which ends on the day that the young person’s course of education or training is scheduled to end, or on the day before the young person attains the age of 26 if earlier. (Special Educational Needs and Disability Regulations, Regulation 46)
51. Mr S was 25 in August 2023. He was not attending a further education institution or receiving apprenticeship training. He was not, as I understand it, following a course of education or training with a scheduled end date. In these circumstances, the Council could have maintained his EHC Plan until August 2024.
52. Without a review to establish whether Mr S had met the objectives of his May 2022 EHC Plan, the Council should not have ended his Plan.
53. If the Council wished to end his Plan, it should have held a review and issued a decision. Ms M and Mr S would have had a right of appeal to the SEND Tribunal if they disagreed.
54. On the evidence available to me, it appears the Council ceased to maintain Mr S’s EHC Plan early (that is, before the date specified in Regulation 46) without holding a review. This is fault.
55. The impact on Mr S is impossible to quantify, but is likely to have been significant.
56. I will recommend a remedy for the injustice caused. My recommendations are at the end of this statement.

Complaint 3: poor communication

57. Ms M complains about the failure of Council officers to respond to her complaints in a timely manner. The Council upheld Ms M’s complaints, apologised and offered a symbolic payment of £200. I consider this an appropriate response.

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Agreed action

58. We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred. When this is not possible, as in the case of Ms M and Mr S, we may recommend the Council makes a symbolic payment.
59. The Council failed to ensure that a significant element of the special educational provision in Mr S’s May 2022 EHC Plan was delivered. The staff at Mr S’s supported living did not receive training from his teacher to embed his learning throughout his waking day. The Council failed to hold an annual review in May 2023, and may have ended Mr S’s EHC Plan 12 months earlier than necessary.
60. I recommended the Council:
• apologises to Ms M; and
• offers a symbolic payment of £2,000 to Ms M for Mr S’s benefit to acknowledge the impact of the Council’s faults.
61. We can also make recommendations to ensure similar faults do not happen in the future.
62. I recommended the Council reviews its policies and procedures relating to:
• checking the provision in EHC Plans is arranged and responding to reports of problems;
• annual reviews; and
• ending EHC Plans

to ensure they comply with the legislation, regulations and government guidance.

63. The Council should send the apology and payment to Ms M within six weeks of my final decision. The Council should update us on any changes it has made to its policies and procedures within three months of my final decision.
64. The Council should provide us with evidence it has complied with the above actions.
65. The Council accepted my recommendations.

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Final decision

66. I have ended my investigation as the Council accepted my recommendations.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman