The Ombudsman's final decision:
Summary: the Council delayed issuing a final education, health and care plan and failed to follow government guidance when carrying out reviews. Those failures did not affect the provision to Ms B’s daughter. An apology, payment of £500 and a reminder to officers is satisfactory remedy for the injustice caused.
- The complainant, whom I shall refer to as Ms B, complained about the way the Council dealt with her daughter’s education, health and care plan and arrangements for her education. Ms B complained the Council:
- failed to review her daughter’s education, health and care plan after February 2015 which means her daughter has not received the services she is entitled to;
- failed to follow Government guidance when reviewing the education, health and care plan; and
- failed to provide sufficient and appropriate education to her daughter.
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. The Ombudsman cannot question whether a Council’s decision is right or wrong simply because Ms B disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, sections 26(1), 26A(1), section 30(1B) and 34H(i) 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
- As part of the investigation, I have:
- considered the complaint and Ms B's comments;
- made enquiries of the Council and considered the comments and documents the Council provided;
- considered Ms B’s comments on my draft decision;
- gave the Council an opportunity to comment on my draft decision and
What I found
- Section 19 of the Education Act 1996 (the Act) says each local education authority shall make arrangements to provide suitable education at school or otherwise than at school for those children who, due to illness may not for any period receive suitable education unless such arrangements are made for them. The Act goes on to say suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he or she may have.
- The Government issued statutory guidance to local authorities in January 2015. ‘Ensuring a good education for children who cannot attend school because of health needs’ says local authorities (LAs) must:
- Arrange suitable, full-time education (or as much education as the child’s health condition allows) for children of compulsory school age who, because of illness, would otherwise not receive suitable education.
- Where full-time education would not be in the best interests of a particular child because of reasons relating to their physical or mental health, LAs should provide part-time education on a basis they consider to be in the child's best interests.’
- The child’s parent or the young person, a local authority SEN officer, a health service representative and a local authority social care representative must be invited and given at least two weeks’ notice of the date of the meeting. Other individuals relevant to the review should also be invited, including youth offending teams and job coaches where relevant, and any other person whose attendance the local authority considers appropriate.
- The local authority must seek advice and information about the child or young person prior to the meeting from all parties invited and send any advice and information gathered to all those invited at least two weeks before the meeting
- The local authority must prepare and send a report of the meeting to everyone invited within two weeks of the meeting. The report must set out recommendations on any amendments required to the EHC plan, and should refer to any difference between the local authority’s recommendations, and those of others attending the meeting
- Within four weeks of the review meeting, the local authority must decide whether it proposes to keep the plan as it is, amend the plan, or cease to maintain the plan, and notify the child’s parent or the young person.
- If the plan needs to be amended, the local authority should start the process of amendment without delay.
Background to this case
- Ms B’s daughter has special educational needs. Until 2013 Ms B’s daughter was attending school full-time. She has not attended school since Easter 2014.
- In November 2014 the Council received a request for an education, health and care plan assessment. The Council issued a draft plan in February 2015. At that point Ms B’s daughter was working at home with a member of the ill health team. However, in February 2015 Ms B’s daughter refused to work with the teacher.
- The Council issued an amended draft education, health and care plan on 21 April, followed by a final education, health and care plan on 21 July.
- In October 2015 Ms B’s daughter began attending Vineyard on Mondays and Wednesdays to study GCSE English and Maths. After a few weeks Ms B’s daughter withdrew from English on Wednesdays and also often withdrew from maths lessons. Ms B reported her child using diversion tactics to avoid going.
- In December 2015 the Council began looking at a cognitive behaviour therapy (CBT) approach to perceived challenges, although Ms B disputes its suitability for her daughter.
- In January and February 2016 the Council put in place photography sessions in the local community. Working in the home on sewing and gardening projects also took place, alongside visits to the local community.
- In March 2016 Ms B’s daughter began a course at the Dogs Trust. Yoga sessions also began in the home.
- In April 2016 Ms B’s daughter began refusing to leave the home and withdrew from Vineyard. Flexible learning began at home. Yoga sessions were apparently stopped on the advice of the hospital.
- In May 2016 Ms B’s daughter began saying she did not want tutors in the home. Flexible learning sessions continued to take place at home though.
- In June 2016 the Council suggested a pilot project called Brain in Hand. Ms B said it might be difficult to get her daughter to agree. Ms B later emailed the Council to advise her daughter was using avoidance behaviour to avoid a lot of things and people.
- On 14 June 2016 the Council held an annual review of the education, health and care plan. The Council decided not to amend the plan until further information was received from Birmingham Children’s Hospital about the child’s forthcoming back operation and hospital appointments.
- On 24 June Ms B raised concerns with the Council about the NHS sending through an appointment which her daughter could not attend. The Council asked Ms B for permission to write to her GP, which Ms B provided. The Council wrote to the GP on 24 June to ask for support and advice to the family about accessing the hospital for tests and potential surgery.
- On 7 July Ms B emailed the Council raising concerns about the lack of psychological support to work with her daughter to enable her to attend hospital appointments. Ms B told the Council the NHS response was what the Council had been waiting for to complete the review.
- On 19 September the Council arranged for a tutor to support Ms B’s daughter for one or two sessions per week. Vineyard continued to provide weekly sessions at home. Art sessions took place as well as mentoring support.
- On 10 November the Council made a referral for funding for a psychologist and counsellor.
- On 9 January 2017 the Council sought psychological support for Ms B’s daughter in the home environment as other options did not allow for home-based support. The Council agreed to fund it as a matter of priority.
- On 17 January the Council issued a notice to amend the education, health and care plan.
- On 15 February the Council emailed the NHS to seek some input for Ms B’s daughter’s medical needs due to her inability to leave the house.
- On 3 March the Council held a review meeting to discuss amendments to the plan with the aim of finalising it.
- On 21 March the post 16 transitions coordinator asked the flexible learning team for a date when she could accompany a representative to visit Ms B’s daughter to discuss post 16 opportunities. In May the post 16 transitions coordinator completed a document detailing post 16 opportunities which stated they could be accessed when Ms B’s daughter felt ready to leave the house.
- Guitar lessons began in April 2017.
- On 26 June a meeting took place with a possible maths tutor. The Council gave Ms B the email address of the tutor that might be able to provide maths lessons on 3 July.
- On 12 July the Council suggested online learning. However, the online tutoring company later told the Council it could not offer one-to-one sessions. It also recorded Ms B’s daughter had done online learning before and did not get along with it as she did not like the set times and being part of an online classroom.
- On 27 July the maths tutor contacted the Council to say he had not heard from Ms B. Ms B says she did not realise the tutor expected her to contact him.
- On 10 October the Council made contact with another maths tutor to see whether she could provide one-to-one tutoring. Ms B says she had identified that tutor. The tutor agreed and contacted Ms B. Ms B later agreed for the maths tutor to work with her daughter on Thursday and Friday for one hour per session. That was to start week commencing 6 November.
- On 17 November the Council issued the final education, health and care plan.
- Government guidance on the production of education, health and care plans is clear an annual review should take place within 12 months. In this case the Council did not issue the final education, health and care plan until 21 July 2015. So, the review should have taken place by July 2016. I am satisfied the Council met that target in terms of beginning the review process given a review meeting took place on 14 June 2016. So, I could not say the Council failed to review Ms B’s daughter’s plan following February 2015.
- I am, however, concerned about how the Council carried out the 2016 review. There is no evidence the Council wrote to Ms B, her daughter or her daughter’s father to contribute to that review as is required by the SEN code of practice. Nor is there any evidence the Council sought input from the relevant professionals involved in Ms B’s daughter’s life. There is also no evidence the Council followed the process I refer to in paragraph 11 when Ms B’s daughter was in year nine in terms of considering her post 16 options. Again, that is not in accordance with the SEN code of practice. Failure to follow that code is fault.
- There was a delay issuing the revised education, health and care plan following the June 2016 review. The Council says that was deliberate because Ms B was seeking further information from Birmingham Children’s Hospital about potential surgery for her daughter. I have found nothing in the documentary evidence though to suggest this was an agreed way forward at the time. In any event, the evidence I have seen satisfies me Ms B provided the Council with the details she had been waiting for from the NHS by 7 July 2016. So, I see no reason why the Council could not have issued the education, health and care plan following that. In those circumstances the Council is at fault for failing to issue the plan until January 2017.
- Ms B says the Council only contacted the relevant professional for input into the education, health and care plan in 2017 because she challenged it. I am nevertheless satisfied the Council wrote to most of the relevant professionals in respect of the March 2017 review meeting given there is a note of those invited to attend. However, at that point Vineyard was providing support to Ms B’s daughter. I recognise a lot of that work related to increasing Ms B’s daughter’s self esteem due to the difficulty engaging her with education. Nevertheless, I consider the Council at fault for failing to invite Vineyard to formally comment for the 2017 review. While that may not have altered the provision in the education, health and care plan, it might have provided the Council with some more background about Ms B’s daughter’s progress in terms of increasing her educational input. Without consulting Vineyard Ms B is left not knowing whether more detail would have been possible in terms of progressing her daughter’s engagement in education.
- Ms B says delay issuing the plan means very often the information is out of date and therefore the provision is inadequate. However, having considered the various plans issued between February 2015 and November 2017 I note there is little difference between the various plans. So, delay issuing the plan has not affected the provision available to Ms B’s daughter. In those circumstances I consider Ms B’s injustice is limited to her frustration about the delay and the time and trouble she has had to go to pursuing her complaint.
- In reaching that view I am aware Ms B says the Council failed to ensure her daughter received sufficient and appropriate education throughout the entire period. Ms B says her daughter is academically able and wants to learn but the Council has only provided a minimal amount of education. As I said in paragraph 6, Government guidance says when a child is educated outside of school the expectation is the Council will arrange suitable full-time education or as much education as the child’s condition allows. Government guidance also says where it is not in the best interests of the child to provide full time education the Council should put in place part time education. I am therefore satisfied Government guidance is clear there are circumstances in which full-time education is not appropriate. So, failure to put in place full-time education, of itself, is not necessarily evidence of fault.
- In this case I am satisfied the various education, health and care plans produced by the Council make clear the difficulty in working with Ms B’s daughter to provide her with full-time education. Those plans also make clear any introduction to new provision or extended provision would require a gradual, phased introduction at a rate Ms B’s daughter feels comfortable with. The documentary evidence also shows there have been occasions when Ms B has reported her daughter introducing new barriers to prevent the provision of education. Alongside that there have been periods where Ms B’s daughter has refused to take part in education. In those circumstances I am satisfied the Council has put in place as much education as it feels Ms B’s daughter is able to cope with. I therefore have no grounds to criticise it.
- Within one month of my decision the Council should:
- apologise to Ms B for the delay completing the education, health and care plan and for failing to follow the SEN code of practice;
- pay Ms B £500 to reflect her frustration and the time and trouble she has had to go to pursuing her complaint; and
- remind officers dealing with education, health and care plans of the need to ensure they follow government guidance both in terms of consulting relevant professionals and in terms of timescales. Officers should be reminded that where the timescales cannot be met they should tell the parent the reasons for that and keep them up to date with progress.
- I have completed my investigation and found fault by the Council in part of the complaint which caused an injustice to Ms B. I am satisfied the action the Council will take is sufficient to remedy Ms B’s injustice.
Investigator's decision on behalf of the Ombudsman