The Ombudsman's final decision:
Summary: Summary: There was fault by the Council because of a delay in completing an education, health and care plan for the complainant’s daughter. The Council agreed to provide a financial remedy to reflect the injustice suffered by the complainant’s daughter.
- Ms X says the Council failed to provide education for her daughter from November 2015 to the present time. However, I have only investigated the matter between November 2015 and September 2016.
The Ombudsman’s role and powers
- 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)
- SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Chamber of the First Tier Tribunal (‘SEND’))
- We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
- 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)
How I considered this complaint
- I considered the background papers provided by Ms X and the Council. I telephoned Ms X to discuss matters. I sent a draft decision statement to Ms X and the Council and considered the comments of both parties in reply.
- Under the information sharing agreement between the Local Government and Social Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
What I found
- Ms X removed her daughter from school in October 2014 because her daughter was allegedly bullied by pupils at the school. Her daughter was 16 at the time.
- The Council arranged alternative education provision for Ms X’s daughter from February 2015. Her daughter was removed from the school roll in March 2015.
- In November 2015 Ms X contacted the Council to report various incidents involving a member of staff of the education provider. The provider decided to withdraw its education service on the same day. But it confirmed it would still investigate Ms X’s concerns.
- It appears Ms X discussed her daughter’s case with an officer who is presently an Assistant Director of Education and Skills. The excerpts from emails Ms X provided are incomplete and do not include all their exchanges. It appears Ms X told the officer her daughter was interested in horses and had found an education course her daughter could pursue. The now Assistant Director of Education and Skills contacted the Strategic Learning Manager about funding for the course as well as other matters. Ms X refers to an excerpt from the email reply from the Strategic Learning Manager which states:
“No, you definitely aren’t wasting your time. At the moment [Ms X’s daughter] is not able to take up learning packages via York Learning so we can proceed on the original basis – which is setting you up in the first instance to be able to take any post 16 learner that is suitable”.
- Ms X maintains the Council blocked her daughter from taking up the course because of this email.
- There were email exchanges between Ms X and various officers in the following months. The crux of the Council’s position was that Ms X’s daughter did not have the required qualifications in Maths and English to go on to the equine studies course. They suggested various alternatives from personalised provision to placements at other colleges. Ms X refused those offers as unsuitable for her daughter.
- Ms X says she obtained a conditional offer of a placement for her daughter at a college in May 2016. She says the condition was that the Council send her daughter’s Education, Health and Care Plan (EHCP) to the college so it could arrange the support her daughter needs. Ms X says the Council did not send the EHCP and so the college refused a place for her daughter.
- The email from the college to Ms X’s daughter says, ‘following information about your current working level and predicted attainment, I regret to inform you that a recommendation was made not to accept you on the course’.
- In September 2016, the Council sent Ms X a draft EHCP for her daughter. The annual review of her daughter’s statement of special education needs (SSEN) had been due in October 2015. That review should have been a transfer review from a SSEN to an EHCP. The final EHCP should have been complete within 18 weeks.
- Ms X noted the Council had not named an education provider and the assessment of her daughter’s needs was out of date. Ms X appealed on these grounds to the Special Education Needs and Disability Tribunal in October 2016. Ms X says she later withdrew the appeal because the solicitors acting for her told her they could no longer represent her through legal aid.
- We cannot investigate complaints where someone has used a right of appeal. Ms X appealed to SEND in October 2016. So, this service can only investigate matters up to the time that Ms X appealed. I note Ms X’s statement that she withdrew the appeal because she could not afford legal representation. However, SEND’s service is free and so I am satisfied the appeal was not misconceived and it was reasonable for her to use that right of appeal.
- The Council did not have a statutory duty to provide education for Ms X’s daughter post 16. But it had a duty to offer suitable education for anyone with an EHCP or SSEN.
- The annual review of Ms X’s daughter’s statement was due in October 2015 and the Council should have set a transfer to an EHCP in motion at the time. The EHCP would include the necessary details for Ms X’s daughter’s post 16 education. The process should have been completed by February 2016. But the Council did not send a draft final statement to Ms X until September 2016. I find there was unreasonable delay by the Council. This was fault.
- The delay meant there was a vacuum in terms of education provision for Ms X’s daughter. Contrary to Ms X’s contention and interpretation of emails, I do not find the Council tried to block her daughter from courses. The evidence satisfies me that the Council did not agree to placements for her daughter because it considered her daughter’s needs could not be met by providers or the provider itself considered it could not meet her daughter’s needs. I note Ms X’s contention that she found a provider that was suitable for her daughter in May 2016 but the placement fell through because the Council did not provide an EHCP.
- I cannot conclude it was because the Council did not provide an EHCP. The email from the provider shows it considered her daughter’s education attainment and it did not consider she was at an appropriate level for the course. The delay in completing the EHCP could have affected that offer. It is of course a matter on which I find fault by the Council and propose a remedy.
- I am satisfied the Council made reasonable efforts to find suitable placements between November 2015 and September 2016. But I am concerned it was not as proactive in commencing the process as it should have been.
- I find Ms X’s refusal of offers made by the Council contributed to the period without education for her daughter. For instance, Ms X refused offers of a personalised learning programme for her daughter because of the conduct of a member of staff of the last learning provider. But I do not consider that allegations involving one member of staff of one provider can be reasonably applied to all learning providers.
- However, the Council’s delay exacerbated these points of contention. Had the Council completed the EHCP process on time and with the required assessments of Ms X’s daughter’s ability there would have been less scope for disagreement and discord.
- Where we find fault we must go on to assess the injustice caused to a complainant and a remedy for the injustice. Here, the Council should have completed an EHCP for Ms X’s daughter which would have set out her education needs and requirements. It is on this finding that I recommend that the Council pays a total of £750 to Ms X’s daughter. This reflects the lack of education provision between November 2015 and September 2016 and the distress she was caused. The Council accepted my recommendation.
- I found fault by the Council because of a delay in completing an EHCP for Ms X’s daughter. I closed the complaint because the Council agreed to provide a financial remedy to Ms X’s daughter.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman