Council dispute over responsibility for EHC plan delayed implementation, Ombudsman finds

A council has been told to pay nearly £8,000 to a mother and her son after the young adult went four months without proper access to education because the council failed to take responsibility for implementing an Education, Health and Care (EHC) plan.

In a report the Local Government and Social Care Ombudsman (LGSCO) also found that Suffolk County Council’s failings kept him from receiving the therapies he needed for his condition. It also failed to organise a laptop needed to access education.

The complainant’s son, referred to as Mr Y in the report, is a young adult with Autism Spectrum Disorder. He also has dyspraxia, which means he requires a laptop to be able to write during lessons.

After his mother complained that the council had failed to properly update Mr Y’s EHC plan, a Special Educational Needs Tribunal (SEND) set out a list of requirements for Mr Y.

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The tribunal made its decision in November 2020. In the same month, Mr Y moved into an assisted living placement in a different council area.

A month later, the council sent its amended EHC plan to the mother, who found that it contained errors. The amended plan said that Mr Y would receive 540 hours of educational provision, 30 fewer hours than the lowest end of the required hours set out by the tribunal.

Three weeks after receiving the tribunal’s decision, the county council transferred the responsibility to maintain Mr Y’s education plan to another council, referred to as ‘Council B’.

Later, in January 2021, the mother complained again to the county council about its failure to properly amend the plan and secure the provision it listed.

Suffolk responded and apologised for the oversight but said it was no longer responsible for maintaining Mr Y’s plan, as it was now for Council B to amend and secure the provision.

The county council agreed to correct the errors it initially made and send it to Council B. However, in its investigation, the LGSCO did not uncover any evidence to suggest this was carried out.

Disagreements over which council was responsible for funding continued to delay the provision of education and therapy for Mr Y. Between February 2021 and March 2021, the mother contacted both the county council and Council B to try and update the plan and secure his SEN provision.

Eventually, the mother hired a solicitor and sent a Pre-action Protocol letter to Suffolk. In the letter, the solicitor alleged the council unlawfully transferred responsibility for Mr Y’s plan to the second council.

In response, the council accepted that as Mr Y did not have the capacity to decide about his residence in Council B’s area, the council should have considered him as ordinarily resident in its own area. Because of this, at the end of March, the council decided to resume the responsibility for maintaining Mr Y’s EHC plan and for securing his SEN provision.

In May 2021, around 16 weeks from the day the tribunal said Mr Y should get the provision, he got access to a custom-made educational package from the SEN provider the council consulted.

However, at the time of publication of the Ombudsman decision (October 2021), Mr Y was still not receiving any of the therapeutic provision listed in his EHC plan.

The Ombudsman said that Suffolk should pay nearly £8,000 to the mother and child, including £998 for avoidable legal costs. It should also pay £350 per month until therapy provision is secured.

The LGSCO also recommended that Suffolk, within three months from the date of the Ombudsman’s final decision, share this decision to the council officers dealing with cases of this nature “and emphasise the council’s legal position when considering whether a child with no capacity is ordinarily resident in the council’s area”.

Suffolk County Council has been approached for a comment.

Adam Carey