Summary: Miss X complained about the Council’s failure to issue a draft amended Education, Health and Care Plan and related matters including lack of provision, poor communication and complaint handling. We found the Council to be at fault. To remedy the injustice to Miss X, the Council has agreed to apologise and make a payment to acknowledge her loss of provision, distress and frustration.

The complaint

1. Miss X complains about the Council’s failure to properly support her further education and her special educational needs. In particular, she complains about the following matters:
1. Failure to issue an amended Education, Health and Care (EHC) Plan after an annual review in August 2023.
2. Failure to provide special educational needs support as specified in her EHC Plan.
3. Failure to respond to her complaint.
4. Failure to communicate with her or her advocate.
5. Removal of the personal budget from the amended EHC Plan.

2. Miss X says this has caused significant distress and has affected her well-being. She is disadvantaged as a result of being denied access to a place at college. This has also caused social isolation.
3. Miss X is represented by her mother, Mrs D, in making this complaint.

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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 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)
5. 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)
6. 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.
7. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
8. 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.
9. 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

10. Paragraphs 18 to 22 apply to this complaint. For this reason, I have only investigated events up to March 2024 in relation to 1(b) and 1(d) when the Council issued the final EHC Plan. Miss X exercised her right of appeal to the SEND Tribunal.

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How I considered this complaint

11. I spoke to Mrs D and considered the information she and Miss X provided.
12. I made enquiries of the Council and considered its response and case records. This included an audio recording of an annual review held in February 2024.
13. I reviewed the relevant law and guidance.
14. Miss X and the Council now have an opportunity to comment on my draft decision. I will consider all comments received before making a final decision.

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What I found

Relevant law and policy

Education, Health and Care Plans

15. A child with special educational needs (SEN) may have an Education, Health and Care Plan (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them.
16. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 

17. The Council is responsible for making sure that arrangements specified in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.

SEND Tribunal and appeal rights

18. There is a right of appeal to the SEND Tribunal against the special educational provision specified, the school or placement or that no school or other placement is specified.

19. 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)

20. 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.

21. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.

22. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 

Failure to secure provision

23. Councils have a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act 2014). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable.

Annual Reviews

24. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.

25. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 

26. Where the 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. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.
27. The council must issue the amended EHC Plan within eight weeks of the original amendment notice.

Personal Budgets

28. A Personal Budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.

The Council’s complaints procedure

29. At stage one (local resolution) the service will acknowledge the complaint within three working days and provide a full reply within 20 working days.
30. If the complainant remains dissatisfied, they may escalate to stage two and a formal response will be provided within 20 working days but may take up to 65 working days with complex complaints.

What happened

31. The chronology below sets out the relevant key events but is not intended to describe everything that happened.

Background information

32. Miss X is a young adult who has SEN and an EHC Plan. This was last updated in September 2021. Until June 2022, she attended College P, named in Section I. Miss X found she was unable return to College P in the autumn term because of trauma she experienced arising from previous events associated with both College P and the Council. It is not necessary for me to elaborate further for the purpose of this decision statement other than to say this led to a previous complaint to the Ombudsman that was upheld by us.

Events since August 2023

33. An annual review was held in August 2023. The Council issued a notice of amendment in September 2023. Miss X did not receive a copy of the proposed amended EHC Plan, despite making several requests for one to be sent. She also asked the Council to arrange alternative provision whilst a longer-term educational placement was found.
34. In response to this request, the Council arranged online tutoring. Shortly before it was due to start, the provider withdrew, citing the conflict between the Council and Mrs D as its reason.
35. An annual review was held in February 2024. The Council initially said it intended to cease the EHC Plan but then agreed to contact providers proposed by Miss X. Miss X requested an advocate. The Council agreed to arrange this. An advocate was sourced in March 2024.
36. The Council issued the final EHC Plan in March 2024. Despite Miss X requesting mediation the Council did not participate. Miss X lodged an appeal with the SEND Tribunal. The final hearing is due to take place in 2025.

Miss X’s complaint

37. Miss X first complained to the Council in September 2023. She sent several reminders that added further areas of dissatisfaction (summarised at paragraph one above). The Council did not respond and so she brought her complaint to the Ombudsman.

The Council’s position

38. In response to the Ombudsman’s enquiries, the Council’s position is as follows.

• It accepted it failed to respond to Miss X’s complaint.
• It accepted it failed to issue an amended EHC Plan following the annual review in August 2023. This delayed her right to appeal to the SEND Tribunal.
• Attempts were made to speak to Miss X directly but were largely unsuccessful. The caseworker had instead spoken to Mrs D, but these conversations were often confrontational and unhelpful. Offers were made to meet with Miss X and her advocate but a response was not forthcoming.
• It accepted it was at fault for not including details of the personal budget for occupational therapy in the final EHC Plan issued in May 2024. A corrected version was issued, and no payments were affected.
• Unsuccessful attempts were made to secure a college placement in October 2023. An online provider withdrew in late January 2024. The Council has cited communication issues between providers and Miss X’s family as being a contributory factor in these events.
• Miss X has attended an online course in her chosen career area since February 2024. This has been funded by the Council, as well as providing her with a laptop.
• It refuted Miss X’s claim that it failed to fulfil her EHC Plan because of the attempts it made to secure either a college place or online provision. This is because both were frustrated by communication issues between Miss X’s family and the provider, not because of Council fault.

Analysis

39. I will consider Miss X’s separate areas of complaint below.

Failure to issue an amended EHC Plan after the annual review in August 2023

40. The Council has accepted it acted with fault by failing to issue an amended EHC Plan at the correct time. The final plan was not issued until March 2024. This delay prevented Miss X from exercising her right of appeal by approximately four months. I am satisfied she would have appealed, based on the fact she confirmed this was the case in several letters I have seen.
41. This delay caused Miss X considerable distress and frustration.

Failure to provide SEN support as specified in the EHC Plan

42. The Council’s position is that its attempts to fulfil Miss X’s EHC plan were frustrated by the communication problems between providers and her family. Based on my discussion with her, I believe it is fair to say Mrs D’s position is this was a direct result of longstanding issues with the Council failing to meet its legal duties and lack of communication from the Council.
43. In my view, Mrs D’s conduct is irrelevant to this issue.
44. This is because the Council had an absolute legal duty to ensure SEN support as set out in Section F in the plan was in place. It also had a duty to ensure a place was available at an institution set out in Section I.
45. I have listened to an audio recording of the annual review held in February 2024. The Council’s position, from the start of the meeting, was for the EHC Plan to cease because it said Miss X was not engaging with education. Both Miss X and Mrs D were, in my view, understandably shocked and surprised by this position because up to that point the Council was attempting to source interim provision. The case worker failed to provide a detailed explanation as to why, but referred to difficulties providers had with Mrs D.
46. In response, Mrs D pointed out her conduct was irrelevant to the Council’s duty towards Miss X. She also reminded the Council that its delay had contributed significantly to Miss X being unable to start a suitable course in September 2023. This, in turn, affected her ability to join a course late and restricted her options going forwards.
47. On balance of probabilities, I am satisfied that previous delay and inactivity (covered in the previous Ombudsman decision) was a significant contributory factor in Miss X being unable to start college in September 2024. The difficulties finding a college place between August 2023 and March 2024 was again, on balance, avoidable.
48. For this reason, I reject the Council’s argument that Mrs D was responsible for lack of provision. I therefore conclude that there was fault by the Council by failing fulfil the entirety of Miss X’s EHC Plan between August 2023 and March 2024.
49. I accept Miss X was provided with some support during this time, specifically occupational therapy. This is reflected in my recommendations below.

Failure to respond to her complaint

50. The Council has accepted it acted with fault. This fault caused Miss X significant distress and frustration because she felt her voice had not been heard. This injustice requires a remedy (below).
51. The Council has explained the poor complaint handing in this case is part of larger backlog caused by lack of resources and increased demand for SEN support. The Council has developed a strategy to address this backlog. This issue has been the subject of several other investigations by the Ombudsman where recommendations have been made to improve the situation. For this reason, I will not made any further service improvement recommendations to the Council.

Failure to communicate with Miss X or her advocate

52. Lack of direct communication with Miss X was discussed at the annual review in February 2024. The case worker explained since taking over Miss X’s case she provided weekly written updates because she did not have capacity to respond to telephone calls.
53. Mrs D explained this was effectively a restriction on contact and against Miss X’s preference.
54. The case records show Miss X emailed and called her caseworkers several times and did not receive a response. This often led to Mrs D also contacting the officers both by phone and email requesting updates and explanations. There were also times when Miss X asked the case workers to discuss matters with her mother.
55. Whilst I accept the volume of contact from Mrs D was time consuming for officers, I cannot ignore the wider context. This being the significant delay, lack of annual review and progress in finding Miss X a college place. There were numerous attempts to elicit a response from the Council about its failure to issue an amended EHC Plan in September 2023 and lack of complaint response. All of these contacts could have been avoided, had the Council complied with its legal duties and complaint handling policy in the first place.
56. I have also seen evidence of the Council failing to respond to Miss X’s advocate when she contacted the Council about her unanswered complaint.
57. My overall assessment is there was fault by the Council its poor communication with Miss X.

Removal of the personal budget from the amended EHC Plan

58. The Council has accepted it acted with fault and has now corrected this error. This caused additional uncertainty to Miss X because she was unsure whether the Council intended to continue funding her occupational therapy. This injustice requires a remedy.

Injustice and remedy

59. I have identified several areas of fault that caused a significant injustice to Miss X. She went without both the educational provision and additional support set out in her in her EHC Plan for just less than two terms (that I am able to investigate and remedy). The fact she was denied this support meant an already vulnerable young person has been further disadvantaged.
60. The situation was made worse by the Council’s failure to respond to her complaint, failure to respond to her enquiries and delay in allowing her the right of appeal to the SEND Tribunal.
61. The Ombudsman has published guidance to explain how we calculate 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.
62. Where fault has resulted in a loss of educational/SEN provision, we normally recommend a remedy payment of between £800 and £2400 per term to acknowledge the impact of that loss. The figure is based on the circumstances of each case, to reflect the particular impact on that young person.
63. Given Miss X’s age, the stage of her education and the support she missed, I consider a payment of £1500 per term would be appropriate for the autumn term of 2023 and part of the spring term of 2024 (up to the time her appeal right arose).
64. When we recommend a payment for distress or time and trouble, we only take account of avoidable distress that is the result of fault by the Council. A remedy payment for distress is often a moderate sum of between £100 and £300. In cases where the distress was severe or prolonged, up to £1000 may be justified.
65. I am satisfied the distress and uncertainty caused to Miss X justifies a financial remedy at the top end of our scale after taking into account:

• the failure respond to her complaint at all;
• the failure to include the personal budget in the final EHC Plan;
• the delay in the ECHP process. This delayed her right to appeal to the Tribunal by several months; and
• the poor communication

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Agreed action

66. Within four weeks from the date of my final decision, the Council has agreed to take the following action.
1. Apologise to Miss X.
2. Pay Miss X £2250 to recognise the failure provide educational and SEN support set out in her EHC Plan.
3. Pay Miss X £1000 as a symbolic payment to acknowledge the distress, frustration and uncertainty caused by the Council’s failure to comply with EHC Plan statutory timescales, the poor communication and complaint handling and failure to include a personal budget within the final EHC Plan.

Service improvements

67. Over the last few years, we have issued multiple decisions highlighting failings by the Council’s SEN Service. We have issued decisions where the Council agreed the following recommendations to:

• improve adherence to statutory timescales for producing new EHC Plans and conducting annual reviews;
• arrange alternative provision when the duty arises; and
• improve its complaint handling.

68. Those recommendations are relevant to this case and there seems little benefit in repeating them here. For this reason, I have made no further service recommendations.
69. The Council should provide us with evidence it has complied with the above actions.

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Final decision

70. I have completed my investigation. I found the Council to have acted with fault in several areas and the Council has agreed to remedy the resulting injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman