Summary: Mrs X complained on behalf of her son, Mr Y, that the Council failed to properly meet his special educational needs. The Council accepted there were delays in planning and meeting Mr Y’s needs. However, the remedy it offered did not fully recognise the education Mr Y missed or the distress this caused him. The Council agreed to pay an improved financial remedy to Mr Y.

The complaint

1. Mrs X complained on behalf of her son, Mr Y. She said the Council failed to properly meet Mr X’s special educational needs and that it:
• took too long to issue his Education Health and Care (EHC) plan after it agreed to in April 2020;
• issued a poor quality EHC plan and did not properly plan for his transition to adulthood or include an agreed personal budget;
• failed to ensure the support in the EHC plan was provided; and
• did not follow the recommendations from the final stage of its complaint procedure.
2. As a result, Mrs X said Mr Y did not achieve the results he could have before leaving school which has impacted his future prospects. She also says this caused both Mr Y and her significant distress and made his mental health difficulties worse, which led to him becoming homeless.
3. She wanted the Council to properly recognise the impact of the delays on Mr Y, properly review his EHC plan and provide support for his future education.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
6. 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.
7. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
8. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
9. 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.
10. If we are satisfied with a council’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

11. I considered:
• the information Mrs X provided and discussed the complaint with her;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law and guidance.
12. 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.
13. Mrs X, Mr Y and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

EHC plans and reviews

14. Children and young people aged up to 25 who need more support to access education may have an Education Health and Care (EHC) plan. This identifies their educational, health and social care needs and sets out the support required to meet those needs. EHC plans are set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
15. 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.
16. For young people with an EHC plan, preparation for transition to adulthood must begin from year 9 (age 13 to 14). Transition planning must consider the young person’s needs as they move towards adulthood. It should plan to support their choices for further education, employment, career planning, financial support, accommodation, and personal budgets where appropriate. 
17. A personal budget is a sum of money which the Council assesses as being necessary to meet a child or young person’s needs in the EHC plan. Parents can ask for a personal budget and for direct payment from the budget.
18. The SEN Regulations 2014 says that, where the SEND Tribunal orders a Council to make an EHC plan, it must send a draft of the plan to the child’s parents within five weeks and must issue the final plan within 11 weeks of the tribunal’s decision.

Council’s complaints procedure

19. The Council has a three stage complaints procedure. The first two stages are internal reviews by the Council. The third stage is an external review by the Council’s independent adjudicator.

What happened

20. While at school, Mr Y had special educational needs caused by mental health difficulties which affected his behaviour.
21. Towards the end of Mr Y’s time in high school his mother, Mrs X, asked the Council to complete an Education Health and Care (EHC) assessment for him. The Council decided Mr Y did not need an assessment. Mrs X appealed this decision to the SEND Tribunal which ordered the Council to assess Mr Y’s needs.
22. After assessing his needs, the Council decided not to issue an EHC plan. Mrs X appealed this decision to the SEND Tribunal. In April 2020, during the tribunal proceedings, the Council agreed to make an EHC plan for Mr Y. While the Council was preparing Mr Y’s plan, Mrs X asked the Council for a personal budget to meet Mr Y’s needs.
23. The Council issued an EHC plan for Mr Y in September 2020. This plan said that Mr Y needed:
• a learning mentor to support him with day-to-day organisation and to meet school deadlines; and
• additional individual learning support to review his progress with coursework and revision.
24. Mrs X said the plan was of poor quality, did not fully account for Mr X’s needs, did not prepare for Mr Y’s transition to adulthood and wrongly said that no personal budget had been requested.
25. Although the plan was made in September 2020, the Council’s records show it did not share the plan with Mr Y’s school until January 2021, and with Mrs X until February 2021. Mrs X complained to the Council about how it had made the plan, and the plan’s content.

The Council’s stage three response

26. Following internal responses, the Council’s independent adjudicator considered Mrs X’s complaint and made the following findings in September 2021:
• There were delays in planning and arranging both Mr Y’s EHC plan and the personal budget.
• A meeting the Council arranged to discuss Mr Y’s needs in June 2020 was poorly arranged, meaning that Mr Y and his parents could not properly participate.
• The EHC plan did not include full information about Mr Y, lacked information from social workers, failed to plan for his transition to adulthood, did not mention the personal budget and lacked detail about the support Mr Y needed.
• The Council only shared the EHC plan with Mr Y’s school and Mrs X several months after it made the plan.
• Because of the delays and poor planning, Mr Y did not have the learning mentor he should have had.
27. The independent adjudicator found that, because of these failures Mr X missed out on vital support during his final years of his education. However, they suggested that some of this lost education could be made up by Mr Y repeating his final year of school with the appropriate support.
28. The adjudicator recommended the Council:
• apologise to Mr Y and Mrs X;
• pay Mr Y £1600 to recognise the education he missed because of the lack of proper support;
• pay Mr Y £150 and Mrs X £250 to recognise the stress the Council’s failures caused;
• review Mr Y’s EHC plan, including the possibility of repeating his final year in school and to properly prepare him for adulthood; and
• review how it drafts and finalises EHC plans following a tribunal decision.

Events after the independent adjudicator report

29. Shortly after the independent adjudicator’s September 2021 decision, Mr Y’s behaviour towards Mrs X and other family members got worse. This led to Mr Y leaving the family home and becoming legally homeless.
30. The Council says it was not appropriate to arrange the agreed review into Mr Y’s needs after her became homeless. Instead, it says it referred Mr Y to its adult social care team who offered Mr Y support, which he declined. Mrs X says there were delays in arranging the review before the adjudicator’s decision in September 2021 and that had the review taken place Mr Y would not have become homeless.
31. Mr Y is now living independently but Mrs X says he now has no interest in furthering his education and, because his grades were affected by the lack of support, he would find it difficult to secure a university place.

My findings

32. Normally, we would not be able to consider the consequences of a decision which someone could appeal to the SEND Tribunal, such as the content of Mr Y’s EHC plan. However, the Council did not share this with Mrs X until several months after it made the plan in September 2020. By this time, Mrs X was out of time to appeal. Therefore, I am satisfied it was not reasonable for Mrs X to appeal.
33. I have not re-investigated what happened when preparing Mr Y’s EHC plan. The Council has fully accepted the findings of its independent adjudicator and Mrs X does not disagree with those findings. The Council accepted that things went wrong in the process and that this had an impact on both Mr Y and Mrs X.
34. However, Mrs X disagreed with the remedy the Council offered, particularly because Mr Y did not repeat his last year at school, due to becoming homeless. She said this permanently affected his educational prospects.
35. The independent adjudicator recommended the Council make a payment to Mr Y to recognise that missed education. The amount they recommended took into account the possibility of Mr Y repeating his final year of school. However, this did not happen and so I am satisfied that any payment to Mr Y should fully recognise the impact of the education he missed and has not been able to catch up on.
36. After the tribunal decision in late April 2020, the Council should have made the final EHC plan and arranged suitable support for Mr Y by the start of August 2020. Mr Y then continued in education until September 2021. So, Mr Y missed out on over a year of support at a particularly important time in his education, including during his A-level exams.
37. Our Guidance on Remedies explains we usually recommend a payment of between £200 and £600 a month to recognise the impact of missed education because of a failure to provide support for special educational needs. Considering the important stage of Mr Y’s education at the time, the support specified in his EHC plan and that, without that support, he struggled to fully access the education he did receive, I am satisfied a remedy of £400 a month is appropriate.
38. Mrs X says that because of the lack of support, Mr Y did not achieve the exam results he could have done, and that this has harmed his future prospects. The evidence shows Mr Y had significant difficulties which extended beyond his special educational needs. I cannot say what exam results Mr Y would have achieved if he had received the support he needed. However, I accept there is a significant uncertainty about this and the Council should make a further payment to Mr Y to recognise that uncertainty.
39. While the lack of support he received at school likely contributed to Mr Y’s difficulties at home, I am not satisfied this lack of support was solely responsible for Mr Y becoming homeless in late 2021. The Council contacted Mr Y shortly after he left the family home and offered him support from its adult social care team, which Mr Y refused at the time. There is no evidence Mr Y lacked capacity to make that decision. Therefore, I am satisfied there was no fault in how the Council offered this support to Mr Y.
40. In its response to my enquiries, the Council accepted there were some delays in early September 2021 in arranging Mr Y’s review. It apologised for this to Mrs X. Although there were delays in arranging the review in September 2021, I cannot say, if the review had been done at that time, what the outcome of the review would have been or that Mr Y would not have become homeless.
41. I accept the Council’s explanation that it was not appropriate to proceed with a review of his special educational needs after he became homeless in October 2021. However, the Council has not provided any evidence it has offered to do this now that Mr Y is living independently. It should offer Mr Y a further review to explore his wishes and any needs for any further education.
42. The Council has already accepted that the lack of support also affected Mrs X and proposed to pay her £250 to recognise that distress. This is in line with our guidance on remedies and I am satisfied it is a suitable remedy.

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Agreed action

43. Within one month of my final decision, the Council should:
• Pay Mr Y £4,800, including the £1,600 it has already offered, to recognise the impact of the education he missed due to a lack of support between August 2020 and September 2021;
• Pay Mr Y £400, including the £150 is has already offered, to recognise the distress and uncertainty caused to Mr Y;
• Pay Mrs X the £250 is has already offered to recognise her distress; and
• Offer Mr Y a review of his education options and the support available to him, involving any members of Mr Y’s family he asks the Council to.
44. Normally, I would also make recommendations for the Council to improve how it makes EHC plans following tribunal decisions. However, the Council says it has already done this following the independent adjudicator report and so I have decided no further recommendations are necessary.

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Final decision

45. I have completed my investigation. The Council accepted there were delays in planning and meeting Mr Y’s special educational needs. However, the remedy it offered did not fully recognise the education Mr Y missed or the distress this caused him. The Council agreed to pay an improved financial remedy to Mr Y.

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Investigator's decision on behalf of the Ombudsman