Local Government Ombudsman recommends comprehensive training for special educational needs and disabilities staff following multiple service failures
Background
This decision concerns a teenage boy, referred to by the Ombudsman as ‘Z’, and his mother, Ms X. Z “has a neurodevelopmental condition and requires specialist support including occupational therapy” and he has an education, health and care (EHC) plan. Despite a previous complaint by Z’s mother and the Ombudsman’s decision recommending a financial remedy for 12 months of missed occupational therapy, Z continued not to receive it.
Following an annual review of Z’s EHC plan in late January 2022 (at which time he was 15 years-old), several types of provision were recorded in Z’s plan, including weekly sensory integration occupational therapy, access to advice from an occupational therapist and a programme of strategies to help Z manage his sensory issues. Some amendments to the boy’s EHC plan were suggested but neither the annual review meeting notes nor the draft amended plan set out clearly what these were. The draft amended plan “repeatedly said people should refer to multiple different documents for more information rather than explaining the changes in the annual review meeting notes, or in the amended EHC plan”. The January 2022 review also failed to address ‘preparation for adulthood’, as required for children and young people in or beyond school year 9, with this part of the boy’s EHC left blank. The draft plan was sent to Ms X five months later but, as it was never finalised, the 2021 plan remained in force.
Following a complaint by Ms X in September 2022, the council apologised for the poor service and said it would send an amended EHC plan in the coming days. Unhappy with the council’s response, Ms X asked to escalate her Children Act 1989 complaint to stage 2.
At the same time, the council held another EHC plan review, which had been scheduled specifically as a ‘preparation for adulthood review’, at which Z’s “progress against several measures” was discussed and “several outcomes for Z to work towards” were identified. The notes again referred to multiple documents for details of the proposed amendments instead of explicitly listing them. The draft amended plan had to be resent to Ms X “several times [and] in different formats” as it was unclear, and Ms X said she could not understand it.
In January 2023, the council responded to Ms X’s complaint at stage 3 of the Children Act 1989 procedure, admitting that Z missed 10 weeks of occupational therapy (in addition to what had been identified in the Ombudsman’s earlier decision) and attributed this “mostly to his school no longer having an occupational therapist available”. The council offered Ms X £500 and directed her to the Ombudsman if she remained unhappy. Ms X continued to complain to the council between February and June 2023. Another response from the council accepted that it had, in fact, failed to provide 28 weeks of occupational therapy between January 2022 and June 2023 and offered Ms X £2,600 instead of its previous remedy of £500.
After Ms X sought help from a solicitor, “the council accepted in a letter … that it should have begun looking for alternative [occupational therapists] earlier than it did, as it was aware … that Z was not always receiving the [therapy specified] in his plan”.
Ms X then complained to the Ombudsman.
The complaint
Z’s mother complained that the local authority:
- Delayed reviewing and finalising Z’s EHC plan;
- Failed to properly plan for his ’preparation for adulthood’; and
- Failed to ensure Z received the occupational therapy specified in his EHC plan.
These faults caused her son to miss out on the provision he was entitled to and meant Z had an out-of-date record of what special educational provision he required. This caused the family frustration and uncertainty.
The legal framework
Content of education, health and care (EHC) plans:
Regulation 12 of The Special Educational Needs and Disability Regulations 2014 sets out what must be included in an EHC plan (sections A – J, with each section being separately identified within each plan). These include:
- The views, interests and aspirations of the child and their parents or the young person (section A);
- The child or young person's special educational needs (section B);
- The outcomes sought for the child or the young person (section E);
- The special educational provision they require (section F);
- The name of the nursery, school, post-16 institution or other institution the child or young person will attend or, where the name of a school/other institution is not specified in the EHC plan, the type of school/other institution (section I);
- Where direct payments are to be made, the special educational needs and outcomes to be met by the direct payment (section J).
Additionally, where the child or young person is in or beyond year 9, the EHC plan must include within the special educational provision, health care provision and social care provision specified, provision to assist the child or young person prepare for adulthood and independent living.
Duty to secure special educational provision and health care provision:
Section 42 of the Children and Families Act 2014 requires that where a local authority maintains an EHC plan for a child or young person, it must secure the special educational provision specified in the plan. If the plan specifies health care provision, the responsible commissioning body must arrange it.
This duty has been interpreted by domestic courts as being owed personally to the child and being non-delegable. In N, R (on the application of) v North Tyneside Borough Council [2010] EWCA Civ 135 (15 January 2010), the Court of Appeal held that the obligation under section 42 is absolute and that “there is no best endeavours defence in the legislation”.
Special educational needs and disability – preparation and planning for adulthood:
The Special Educational Needs and Disability Regulations 2014 impose clear duties on local authorities in relation to planning and preparing for adulthood and independence for children and young people in or beyond year 9. These include seeking advice and information about preparation for adulthood and independent living when assessing needs (regulation 6(1)(g)), setting out connected provisions within an EHC plan (regulation 12(3)) and considering what provision is required to assist the child or young person in preparation for adulthood and independent living during annual EHC plan reviews (regulation 20(6) for children and young people who attend school or other education settings, and regulation 21(6) for those who don’t).
Statutory guidance – Special educational needs and disability code of practice: 0 to 25 years – sets out clear expectations in relation to helping young people with special educational needs and disabilities prepare for adulthood:
“Planning must be centred around the individual and explore the child or young person’s aspirations and abilities, what they want to be able to do when they leave post-16 education or training and the support they need to achieve their ambition. Local authorities should ensure that children and young people have the support they need (for example, advocates) to participate fully in this planning and make decisions. Transition planning must be built into the revised EHC plan and should result in clear outcomes being agreed that are ambitious and stretching and which will prepare young people for adulthood”. (Paragraph 8.9 of the Code)
The Code recognises that “children and young people’s aspirations and needs will not only vary according to individual circumstances but will change over time as they get older and approach adult life”. (Paragraph 8.8)
Preparation for adulthood is defined broadly in the Code (para 7.38) as helping young people:
- Prepare for higher education and employment;
- Prepare for independent living, including making sure young people have “choice, control and freedom over their lives and the support they have, their accommodation and living arrangements”;
- Participate in society, including through building friendships and supportive relationships; and
- Be as healthy as possible in adult life.
The Ombudsman’s analysis and findings
The Ombudsman identified various failings by the local authority, ranging from delays and poor communication to failure to meet its legal duties and acting contrary to statutory guidance.
There were multiple delays throughout the EHC plan review and amendment process, including delays of 17 and 16 weeks respectively when sending the amended draft plan to Z and his mother following annual reviews. “As a result of these faults, Z was without an up-to-date record of his [special educational needs] and what provision he required to meet them for a year and a half, which caused a period of uncertainty and distress”.
The Ombudsman found that poor communication in sharing the proposed changes to the EHC plan disadvantaged Z and his parent:
“The draft amended plans … failed to make clear what amendments [were being] proposed and instead asked … to refer to multiple other documents for more information. This poor communication was fault. [It] risked [the young person and their parent] not being sufficiently informed at draft stage to understand what changes the council had suggested and comment on them…”. (Paragraphs 48-49; emphasis added)
The Ombudsman found that, contrary to the legal requirements, support connected to ’preparing for adulthood’ was not discussed during each annual review. This “caused uncertainty and frustration to Ms X and Z regarding whether the council was properly managing a key part of his EHC plan”.
Regarding Z missing the occupational therapy he was entitled to, the Ombudsman accepted the local authority’s prior offer of £2,600 as adequate and in line with the Ombudsman’s guidance on remedies. The Ombudsman stressed, however, that the non-delegable duty to provide the provision specified in section F of an EHC plan means that when a council becomes aware that the provision is not being made, it must start seeking alternative arrangements. Drift and delay in seeking alternative arrangements will amount to a fault:
“The Council had a non-delegable duty to provide the occupational therapy [set out in the] EHC plan. It failed to meet this duty, partly due to delay in the council seeking alternatives … and partly due to service failure (the lack of available occupational therapists).[…] We do not expect councils to keep a watching brief on the exact amount of SEN provision every pupil is receiving at their school. However, once the council became aware [the young person] was missing his provision, we would expect the council to have been collecting information on how much was being missed”. (Paragraphs 56-58; emphasis added)
Lastly, the Ombudsman identified “continued incorrect interpretation of the council’s duties” connected to the council saying it could not complete the annual EHC plan review in full while an appeal before a tribunal was ongoing. While this was the subject of Ms X’s previous complaint to the Ombudsman and outside the scope of this complaint, the Ombudsman commented on it as follows:
“The Code says councils must review EHC plans at a minimum every twelve months and there is no exception in the law or guidance which says this should not happen when a plan is under appeal. [This matter] falls outside the scope of this investigation as it is in part too late for us to look at and in part, the injustice arising from the fault has already been remedied by a previous Ombudsman decision. However, it came to our attention during this investigation … that the Council still understands that it does not have to carry out annual reviews when tribunal proceedings are active. As this continued incorrect interpretation of the council’s duties around annual reviews is likely to cause injustice to others, I have recommended a service improvement to prevent recurrence of this in future”. (Paragraphs 60-64; emphasis added)
Recommended remedies
Individual remedies
The Ombudsman recommended that, within one month of the decision, the local authority:
- Apologises to Z and Ms X for the injustice caused by its faults;
- Pays Z £400 “in recognition of the multiple instances of uncertainty, distress and frustration caused to him by the faults” and pays Ms X £400 in recognition of the same injustices;
- Pays Z £500 to recognise the uncertainty caused by the council’s poor record keeping and £2,600 for the estimated 28 weeks of missed occupational therapy.
Service improvements
The Ombudsman asked the local authority to demonstrate, within three months of the final decision, that it has delivered training to its staff responsible for special educational needs and disabilities on:
- The statutory duty and timescales to finalise EHC plans following annual reviews;
- The statutory timeframes for progressing through the different stages of annual EHC plan reviews (e .g., when decision letters and draft amended plans must be issued);
- The importance of draft amended plans and associated notes being clear and comprehensible;
- The duty to address ‘preparing for adulthood’ sections of the EHC plan during each annual review for young people from year 9 onwards;
- The duty to conduct annual reviews of EHC plans regardless of any ongoing appeals with the SEND Tribunal;
- Local authorities’ non-delegable duty to provide the provision in section F of an EHC plan;
- The importance of seeking and sharing information with education providers to ensure awareness of any missed education or special provision.
You can read the full decision (dated 16 October 2023) here: Suffolk County Council (23 000 434)
To learn more about statutory duties connected to EHC plans, see the following issues of our children’s rights legal digest:
- June 2022: Education health and care plans – statutory timescales (High Court judgment)
- May 2022: Special and alternative educational provision (High Court judgment)
- March 2022: Education health and care plans – maximum duration (Upper Tribunal decision)
