Summary: the Council accepts there were faults in the way it managed Mr F’s son B’s Education, Health and Care Plan. It ended B’s Plan without holding a review. The Council did not review B’s Plan when ordered to continue to maintain it by the Tribunal. The Council has put processes in place to address the problem and offered a symbolic payment to Mr F for B’s benefit.

The complaint

1. Mr F complains the Council has not complied with an Order of the First Tier Tribunal following his successful appeal against the Council’s decision to end his son B’s Education, Health and Care (EHC) Plan.
2. The Tribunal ordered the Council to continue to maintain B’s EHC Plan.
3. The Tribunal noted it was “imperative that no further time is wasted in making plans for [B’s] future” and hoped the Council would take the steps discussed during the hearing to ensure that any amendments required to B’s EHC Plan were made without further delay.
4. Mr F complains the Council delayed making amendments to B’s EHC Plan. He believes the Council was waiting for B to reach 25 so that it would no longer have to maintain his Plan.

Back to top

The Ombudsman’s role and powers

5. 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)
6. Once 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)

Back to top

How I considered this complaint

7. I have considered:
• information provided by Mr F, including the Tribunal decision; and
• information provided by the Council.
8. I invited Mr F and the Council to comment on my draft decision.

Back to top

What I found

9. Mr F’s son, B, is a young adult. He has autism. He has had an Education, Health and Care (EHC) Plan (or its equivalent) since he was a young child.
10. B was due to start college in September 2017. However, Mr F says the Council ended B’s EHC Plan without telling him. In March 2018, the Council told him it had made an ‘administrative error’ and B would start college shortly. B started college in April 2018.
11. Mr F says 2019 was a difficult year for B. He says the college ended B’s placement in January as it was unable to cope with his challenging behaviour. B moved to supported living accommodation. He did not attend college.
12. The pandemic caused further disruption.
13. In July 2020, the Council wrote to Mr F to say it had ceased to maintain (ended) B’s EHC Plan.
14. Mr F appealed against the Council’s decision at the First Tier Tribunal.
15. At the hearing on 14 May 2021, the Council conceded it had not held a review of B’s EHC Plan since 2017. Councils must review an EHC Plan at least every 12 months. A council may not end an EHC Plan where a young person aged over 18 has stopped attending college without first reviewing the plan.
16. Mr F told the Tribunal he wanted B to engage in meaningful activities which would give structure to his day. He said B had very limited independence and self-care skills. He said B’s skills had regressed since he left school.
17. B’s social worker gave brief oral evidence. She confirmed B has a care plan which was due for review. She agreed it was very important to develop “a robust structured week of meaningful activities” for B. This would also help reduce the potential for challenging behaviour.
18. The Tribunal noted there was very little up-to-date information about B’s special educational needs or the provision he required, and the Council had not sought his views.
19. The Tribunal expressed “astonishment at the complete lack of oversight of B’s EHC Plan in recent years, and noted that in view of his age it is imperative that no further time is wasted in planning for his future.” B was approaching 25, the age after which a council can no longer maintain an EHC Plan.
20. On 21 May 2021, the Tribunal ordered the Council to continue to maintain B’s EHC Plan.
21. The Tribunal noted that it was not in a position to make any amendments to B’s EHC Plan because of the lack of information about his needs.
22. Mr F received an Educational Psychologist’s report in September 2021 which said B’s supported living could meet all of his educational needs. Mr F disagrees, and he says the supported housing provider disagrees too. He says B’s behaviour is becoming more challenging as there is nothing to keep him occupied during the day.
23. With the help of his Member of Parliament (MP), Mr F complained to the Council. He complained the Council had not held a review of B’s EHC Plan as agreed at the Tribunal.
24. The Council replied on 18 October 2021. The Council said that as B had been living with Mr F at the time of the Tribunal hearing, it had decided to “allow [him] time to settle back into his accommodation” before holding the review. The Council said the Tribunal Officer would contact Mr F shortly to arrange the review. The Council noted, “Regardless [of the outcome of the review], Mr F must prepare himself that B cannot have an EHCP beyond 25 years of age. After this time, all of B’s support will be managed through social care.”
25. Mr F corresponded further with the Council about his complaint. In January 2022, the Council gave its final response. The Council acknowledged there had been an unacceptable delay arranging an annual review of B’s EHC Plan following the Tribunal and apologised. The Council also apologised for its past failure to regularly review B’s EHC Plan.
26. Mr F says the Council arranged an annual review meeting for B’s EHC Plan at short notice on 27 January 2022, but he was unable to attend due to a recent bereavement. The Council offered alternative dates in September 2022. I understand Mr F declined the offer of a meeting as B was about to turn 25.
27. Unhappy with the Council’s response, Mr F complained to the Ombudsman. He believes the Council was making excuses and wasting time so it no longer had to comply with the Tribunal’s decision and maintain B’s EHC Plan once he turned 25.
28. He is concerned B should have a programme of structured, meaningful activities.

The Council’s response

29. The Council said it accepted it was at fault for failing to hold a review before ceasing to maintain B’s EHC Plan which led to Mr F’s appeal. The Council said it would review B’s care plan, and offered B a payment of £1,500 in recognition of any harm caused.
30. The Council sent me the record of a visit to B in October 2022 to review his care plan, and a copy of his weekly activity planner. The Council said B was settled and happy in his accommodation where the staff knew him well. I can see that B’s weekly activities reflect his interests.
31. The Council said it will continue to review B’s care plan every twelve months, or sooner if B’s family or care provider request a review.
32. The Council gave frank and helpful answers to my questions. The Council acknowledged the service Mr F and B received was not satisfactory and apologised for the impact on them. The Council accepted it was at fault for not reviewing B’s EHC Plan following the Tribunal. It said its management of annual reviews was inadequate and it was putting processes in place to address the problem.

Conclusions

33. The Council has accepted there were serious faults in the way it managed B’s EHC Plan. It has not held an annual review since 2017, and it ended B’s Plan without holding a review. The Council did not review B’s Plan when ordered to continue to maintain it by the Tribunal.
34. These faults have caused B an injustice. However, it is not possible to say now what would have happened if the Council had carried out the reviews. The injustice, therefore, is the uncertainty of not knowing whether things would have been different if the Council had reviewed B’s EHC Plan every year as it should and again following the Tribunal. The likelihood is they would, although I cannot say how.
35. 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 there was no fault by the Council. In B’s case, this is not possible. In these circumstances, we may recommend a symbolic payment to acknowledge the injustice caused.
36. The Council has offered a payment of £1,500. I consider this a suitable remedy.
37. I understand Mr F manages B’s finances. Mr F can use the money as he thinks appropriate for B’s benefit.

Back to top

Agreed action

38. The Council has agreed to apologise to Mr F and make the payment of £1,500 to Mr F to use for B’s benefit. The Council should make the payment within one month of my final decision.
39. The Council explained that processes are being put in place to address problems with annual reviews of EHC Plans. I will not, therefore, make further recommendations.

Back to top

Final decision

40. I have ended my investigation as the Council accepts my recommendations.

Back to top

Investigator's decision on behalf of the Ombudsman