Summary: The Council was at fault because it failed to secure educational and social care provision on Mr Y’s Education, Health and Care Plan. This caused a loss of provision. The Council agreed an appropriate financial remedy during its internal complaints procedure. The Council will apologise and complete the annual review.

The complaint

1. Mr and Mrs X complained for their son Mr Y that since 2022, the Council failed to:
1. Secure special educational provision in Mr Y’s Education Health and Care Plan (EHC Plan)
2. Review and amend Mr Y’s EHC Plan within the required timeframes
3. Issue a post appeal EHC Plan within the required timeframe
4. Act on the Tribunal’s recommendations.
5. Provide social care and support in the EHC Plan.
2. Mr and Mrs X seek a payment of over £100,000 for costs and lost educational provision.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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)
5. 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). 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.
6. 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.
7. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example, any fault before an appeal right started.
8. 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).
9. 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)
10. 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)
11. 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 have and have not investigated

12. I have not investigated all the complaints. Below I explain why.

Date Summary of key event

May 2022 The Council issued Y’s amended EHC Plan

June 2022 Mr and Mrs X appealed to the SEND tribunal about Y’s educational provision, his needs and educational placement. They also requested recommendations from the Tribunal relating to Y’s social care needs and provision.

August 2023 The tribunal made its decision. The parties agreed to a 52 -week placement for Y at a residential special school. The tribunal made social care recommendations for a transition plan for Y.

September 2023 The Council issued Mr Y’s post-Tribunal EHC Plan naming the agreed placement.

March 2024 Complaint to the Council

May 2024 Council’s stage one response

July 2024 Council’s stage two response

September 2024 Complaint to the LGSCO.

The investigation period

13. Complaints (a) and (e) are about matters which were appealed (the provision and placement in Mr Y’s Plan) or connected to the appeal (the lack of education under Education Act duties). The Millburn case in paragraph five applies so we cannot investigate during the appeal period (between May 2022 and August 2023). This means there is a period of injustice for Mr Y (lack of educational provision), but the court in the Field case (paragraph eight) established that this does not mean we can investigate. Complaints (a) and (e) also late as they include periods before September 2023. There is no good reason for the delay in complaining to us. Where I have mentioned earlier events and records before September 2023, it is for context only.
14. I have investigated complaints (a) and (e) from September 2023 to September 2024. I have also investigated complaints (b) (c) and (d) and because they are in time and do not have a right of appeal.

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How I considered this complaint

15. I considered the complaint to us, the Council’s responses to the complaint and documents set out in this statement. I discussed the complaint with Mr X.
16. Mr and Mrs X 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

Relevant law and guidance

17. A child with SEN may have an Education Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections including:
• I – the placement
• F – special educational provision (SEP)
• H - social care provision.
18. There is a right of appeal to the SEND tribunal about sections F and I. The tribunal also has the power to make non-binding recommendations about social care provision in Section H.

19. 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 council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. 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.

20. 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) 

21. 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.

22. The parent must have at least 15 days to comment and make representations on proposed changes including requesting a particular school (SEN Code paragraph 9.195)
23. If the council decide to continue with the amendments, it must issue the final amended EHC Plan within eight weeks of the amendment notice. (SEN Code paragraph 9.196)
24. When a council concludes an annual review by proposing to amend an EHC plan, it must notify the parent/young person of this decision and what the proposed amendments are within four weeks of the annual review meeting. The final EHC plan must be issued as soon as practicable, within eight weeks of the draft plan being issued. Therefore, the council must send the final amended EHC plan within 12 weeks of the annual review meeting. (R (L, M, and P), v Devon County Council [2022] EWHC 493 (Admin))
25. The council has a duty to secure the specified special educational provision in an EHC Plan for the child or young person (Children and Families Act 2014, section 42).
26. Councils must respond in writing to the tribunal’s recommendations within five weeks, stating what steps, if any the Council has decided to take following its consideration of the recommendation and give reasons for any decision not to follow all or part of a recommendation (Regulation 7, SEND (First-Tier Tribunal Recommendations Power) Regulations 2017)

What happened

27. Mr Y is 19. He has learning disabilities and is autistic. Mr and Mrs X appealed Mr Y’s EHC Plan of March 2022 to the SEND tribunal.

2023

28. The tribunal issued its decision on 21 August 2023. The tribunal noted the parties had agreed on a residential special school for Mr Y’s educational placement and had agreed changes to sections B and F. The only issue for the Tribunal to decide was Mr Y’s social care provision to enable him to transition to education. The Tribunal recommended the following transition plan for the first term:
• For Mr Y to attend college 5 days and 4 nights; from term 2 permanently on a 52-week basis.
• Transport and support to deliver him and belongings;
• A social care package two to one staff; for 8 hours a day Friday to Sunday;
• £900 a month rent from September to December 2023
29. On 20 September, the Council’s social care department wrote to Mr and Mrs X explaining they would not implement the tribunal’s recommendations. It said:
• It agreed Mr Y needed a transition plan, but did not accept the tribunal’s recommendations on transition, which were vague
• The four-month transition period was too long for Mr Y, there was no independent evidence to support the need for this other than the parents’ views
• The recommendation would mean Mr Y would have to move between a new school placement and a new home every three to four days; with two environments and two different sets of staff. There would be agency staff and no consistency.
• A 52-week placement was agreed to ensure consistency as this was the professionals’ view
• Such a long transition period risks Mr Y getting used to the idea that it is a Monday to Friday placement and making the transition to 52 weeks harder.
• The tribunal has no powers to direct transport.
• As there was no need for a four-month transition, the Council did not accept the need for social care support or accommodation at the weekends.
30. The Council issued Y’s post-tribunal EHC Plan on 29 September. I have summarised the main provision in Section F and H:
• Occupational therapy, speech and language therapy and music therapy individual sessions
• Due to Mr Y’s social care needs he will require a placement at a residential college, 52 weeks, funded by social care. He needed support with toileting, supervision at night, supervision outside the home, personal care and accessing play and leisure. He required two to one support.
31. There was an emergency annual review meeting on 12 October 2023.

2024

32. The Council issued a final amended EHC Plan on 11 January 2024. The SEP in Section F and social care provision in Section H are broadly the same as the previous plan. Section I does not have a placement, it just names a type.
33. Mr X complained to the Council through his lawyer in March 2024. The Council’s complaint investigation covered May 2022 to July 2024. The first stage response in May upheld most issues and the Council offered a payment to reflect lost educational provision, a symbolic payment for time and trouble and a payment for out-of-pocket expenses due to no suitable provision being arranged. Mr X escalated his complaint to stage two. The second response in July noted Y had been out of education since the middle of September 2023 and was still not receiving any education. The Council’s stage two response accepted it failed to secure provision for the period this investigation covers. (The Council’s investigation period is from 2022). The Council offered a payment of £10,086 for missed provision, £1000 to reflect time and trouble complaining and £2000 for parental expenses.
34. Mr X was unhappy with the outcome to his complaint and complained to us. He told us since the Council’s response to his complaint, there had been no educational provision secured for Mr Y who was still living at home. Mr X said the Council had arranged some social care provision for Mr Y including some respite care.

Was there fault?

The Council failed to secure special educational provision in Mr Y’s Education Health and Care Plan (EHC Plan)

35. The Council has accepted fault causing injustice in the failure to secure provision in Mr Y’s EHC Plan. And it has offered a payment to reflect Mr Y’s loss of provision. The payment the Council recommended for missed provision and avoidable distress is in line with our Guidance on Remedies for the period I have investigated.

It failed to review and amend Mr Y’s EHC Plan within the required timeframes

36. The Council should have amended the EHC Plan within 12 weeks of the annual review meeting in October 2023. It met this timeframe so there is no fault.

It failed to issue a post-appeal EHC Plan within the required timeframe

37. The Council missed the five-week deadline by a few days. This is fault but it did not cause any injustice.

It refused to act on the Tribunal’s recommendations.

38. The Council does not have to act on recommendations, it must provide a written response with reasons within five weeks. The Council explained why it rejected the recommendations and gave full reasons. This is in line with the 2017 Regulations and there is no fault.

It failed to provide social care and support in the EHC Plan.

39. As set out earlier, the social care and support in Section H of the 2023 and 2024 Plans was based on Mr Y attending residential school which he did not because the placement broke down after two weeks. The Council is legally required to secure provision in an EHC Plan. The failure to do so was fault causing a loss of provision. The Council has recognised this in its complaint response and offered an appropriate remedy.

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Agreed action

40. Within one month, the Council will apologise for the injustice set out in the previous section. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended.
41. The payment of £13,086 already offered during the Council’s complaint process is appropriate and in line with our guidance and is still available. I make no recommendation for a further payment.
42. Within two months, the Council will complete the annual review of Mr Y’s EHC Plan of January 2024 which should have happened this month and has not.
43. The Council should provide us with evidence it has complied with the above actions.

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Final decision

44. The Council was at fault because it failed to secure educational and social care provision on Mr Y’s Education, Health and Care Plan. This caused a loss of provision. The Council agreed an appropriate financial remedy during its internal complaints procedure. The Council will apologise and complete the annual review.
45. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman