Norfolk County Council (18 013 093)

Category : Education > Alternative provision

Decision : Upheld

Decision date : 01 Apr 2019

The Ombudsman's final decision:

Summary: Mr B left college in October 2016. He did not return to any form of education or training until April 2018, eighteen months later. The Council took too long to amend Mr B’s Education, Health and Care (EHC) Plan, and did not support Mr B to return to education as soon as practically possible. However, Mr B’s appeal to the Tribunal means the Ombudsman cannot consider much of his complaint.

The complaint

  1. Ms M complains her son, Mr B, missed education between October 2016 and April 2018 following his unsuccessful transition to college.
  2. Ms M is unhappy with the Council’s response to her complaint.

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What I have investigated

  1. I have investigated Mr B’s education between October 2016 and the start of his appeal to the First Tier Tribunal. I cannot investigate the complaint once he lodged his appeal.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question council decisions simply because the complainant disagrees with them. We must consider whether there was fault in the way the decisions were reached. (Local Government Act 1974, section 34(3), as amended)
  2. 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)
  3. The law says we cannot normally investigate a complaint when someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
  4. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
  5. 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

  1. I have considered:
    • information provided by Ms M;
    • information provided by the Council;
    • the Education Act 1996 and the Children and Families Act 2014;
    • the Special Educational Needs and Disability Regulations 2014;
    • the Special educational needs and disability code of practice: 0 to 25 years published by the Department for Education in 2015; and
    • Participation of young people in education, employment or training. Statutory guidance for local authorities issued by the Department for Education in September 2016.
  2. I invited Ms M and the Council to comment on my draft decision.

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What I found

  1. Ms M’s son, Mr B, is 18. Mr B has autistic spectrum condition. He has an Education, Health and Care (EHC) Plan maintained by the Council. He finished school and transferred to college in September 2016.

Mr B’s education between October 2016 and April 2018

  1. In September 2016, Mr B started a computer course he had chosen at a mainstream college. He left the course in October 2016. He had difficulties interacting with his peers.
  2. Mr B wanted to take an A-level in Ancient Civilizations instead. He asked the Council to fund an online course. The Council’s Special Educational Needs Placement Advisory Group (SEN PAG) refused Mr B’s request on 22 December 2016. The Council said, “the funding of a classics A-level by home study is not SEN provision and the LA is therefore not under a duty to arrange this.”
  3. The Council held an annual review of Mr B’s EHC Plan on 31 January 2017. The Council agreed to amend Mr B’s Plan “in order to give [the] parent a right of appeal against the SEN PAG decision.” The Council issued a final amended plan on 25 May 2017. Part I, which says where Mr B will receive his education, says, “NEET [not in employment, education or training]; mainstream college or other FE provision or 6th form.” The Council said it then requested advice from an Educational Psychologist in anticipation of Ms M’s appeal.
  4. The Tribunal registered Mr B’s appeal on 6 September 2017.
  5. In April 2018, Mr B changed his mind about the A-level in Ancient Civilizations and decided he wanted study politics instead.
  6. The Council and Mr B agreed a bespoke package of supervision and support by the college, some life skills work (from which Mr B has subsequently disengaged) and a personal budget of £399 for an online A-level.
  7. As the parties had resolved their disagreement, the Tribunal made a Consent Order on 18 September 2018. This ended the appeal.

Consideration

  1. The Ombudsman can only consider Ms M’s complaint about what happened before the Tribunal registered Mr B’s appeal on 6 September 2017. I cannot consider a complaint about matters included in Mr B’s appeal, or what happened between 6 September 2017 and 18 September 2018 when the Tribunal made its decision.
  2. It appears the Council changed its mind about funding an online A-level course to meet Mr B’s special educational needs during his appeal to the Tribunal. This calls its December 2016 decision not to fund the course into question. It also suggests the Tribunal appeal, which the Council proposed as a means to resolve the disagreement about funding the course, could have been avoided since the Council agreed to fund Mr B’s course, it was not ordered to do so by the Tribunal.
  3. Nevertheless, Mr B made his appeal and the Tribunal has considered his case. The law prevents the Ombudsman investigating complaints about matters that have been the subject of Mr B’s appeal. Ms M and Mr B are unhappy with the course events have followed, but the Ombudsman cannot make a finding or recommend a remedy for these matters.
  4. There were, however, delays by the Council before Mr B lodged his appeal.
  5. Government guidance says councils are expected to act on any information they receive about a young person who has dropped out of education, contacting them at the earliest opportunity and supporting them to find an alternative place in education, training or employment. Where 16-18 year olds with EHC plans are NEET, or at risk of becoming NEET, their plan should be maintained and they should be encouraged and supported to return to education and training as soon as practicably possible.
  6. Mr B dropped out of college in October 2016. The Council suggested he continue his studies at the college site for students with additional needs. Mr B declined. Mr B did not return to any form of education or training until April 2018, eighteen months later. I do not consider the Council supported Mr B to return to education as soon as practically possible.
  7. The Council held an annual review of Mr B’s EHC Plan on 31 January 2017 and issued a final amended plan on 25 May 2017. Regulations say that when a Council decides to amend an EHC Plan following a review, it must issue a final Plan as soon as practicable and in any event within 8 weeks of giving the parent or pupil notice of the Council’s intentions to amend the Plan. The Council took approximately seven weeks too long to amend Mr B’s Plan.
  8. Had the Council avoided these delays, Mr B might have returned to education sooner. Alternatively, he may have lodged his appeal with the Tribunal sooner. Regrettably, however, I cannot say how likely, or how much sooner, Mr B’s return to education might have been. So, while I find the Council was at fault for the delay, I cannot recommend a remedy. The Ombudsman’s remedies are intended to put people back in the position they would have been in if the fault by the Council had not occurred. It was not the Council’s fault Mr B dropped out of his first college course. The fault is the delay in his return to education. I cannot say how long the delay was. In these circumstances, I recommend the Council apologise to Ms M and Mr B for the delay.
  9. The Tribunal then took 12 months to consider Mr B’s appeal. The further delay this caused is not the fault of the Council. The Tribunal has, however, provided a remedy for Mr B since the Council has now agreed to fund his online A-level. Mr B will continue to receive the support in his EHC Plan after the Council might otherwise have expected him to complete his education if he had continued with the computer course he started.

The Council’s response to Ms M’s complaint

  1. In July 2018, following the Tribunal, Ms M complained to the Council about the education Mr B had missed. The Council said it would only consider events in the 12 months before Ms M’s complaint. The Council said this was its policy. The Council acknowledged that Mr B had been out of education for some time and apologised this had happened. The Council said it had made considerable efforts to engage Mr B in education and arrange suitable provision.
  2. The Council took four months to respond to Ms M’s complaint. Its response was very brief and focussed on what had happened during Mr B’s appeal. The Council did not respond to Ms M’s complaint about what happened before Mr B’s appeal.
  3. In response to my enquiries, the Council said it normally expects people to complain within 12 months, but managers have discretion to consider complaints about matters that happened longer ago. The Council said the manager who responded to Ms M’s complaint no longer works for the Council, so it cannot explain his decision. The Council said it would like to apologise for not exercising its discretion to consider Ms M’s complaint. I welcome the Council’s offer.

Agreed action

  1. I recommended the Council:
    • apologise to Ms M and Mr B for the delays I have identified in supporting Mr B’s return to education, including the delay in amending his EHC Plan; and
    • apologise to Ms M and Mr B for not investigating their complaint beyond the 12 months before they contacted the Council in July 2018.
  2. I recommended the Council send the apologies within one month of my final decision.
  3. The Council accepted my recommendations.

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Final decision

  1. The Council has accepted my recommendations so I have ended my investigation.

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Investigator's decision on behalf of the Ombudsman

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