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Kent County Council (17 005 195)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 04 May 2018

The Ombudsman's final decision:

Summary: Miss X complains the Council did not ensure her daughter Y got the support required by her Education, Health and Care Plan from September 2016 until June 2017. The Council took part in the annual review of Y’s Education, Health and Care Plan in May 2017 without fault. The Council could not compel Y to have the travel training. It took four months to fully respond to Miss X’s complaint about non-delivery of part of that Plan which is fault. It has agreed to pay Miss X £100 for the time and trouble caused by its delay which is an appropriate remedy.

The complaint

  1. Miss X complains the Council did not ensure her daughter Y got the support required by her Education, Health and Care Plan from September 2016 until June 2017.
  2. Miss X also complains the Council did not respond to all the points she made in her complaint to it about this.
  3. Miss X wants the Council to apologise, make sure this does not happen again and to others. She wants the Council to cover the cost of her time providing travel training for Y that the school should have provided.

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The Ombudsman’s role and powers

  1. 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)
  2. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  3. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Chamber of the First Tier Tribunal (‘SEND’)) The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
  4. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
  5. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
  6. 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 spoke to Miss X about her complaint and considered evidence she provided.
  2. I asked the Council questions about the complaint and considered its reply.
  3. I read relevant sections of the Children and Family Act 2014 and Statutory Guidance: Special Educational Needs and Disability Code of Practice, “the Code of Practice”, updated in January 2015.
  4. I gave the Council and Miss X the opportunity to comment on my draft decision. I considered their comments before making my final decision.

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What I found

  1. Councils assess children who may have special educational needs. An assessment may decide the child needs an Education, Health and Care Plan (EHCP). The council must then develop and issue the plan, ensure it is reviewed annually and implement any changes from each review.
  2. Councils must consult the child and their parent throughout assessment and production of an EHCP. Plans should focus on achieving outcomes for the child
  3. Section F of an EHCP sets out the special educational provision required. This must be detailed and specific. Health or social care provision that educates or trains a child must be treated as special educational provision and be included in Section F of the EHCP. This can include travel training to improve a child’s confidence when using public or other transport.
  4. Councils are responsible for ensuring children with an EHCP get the support they need. The council has a legal duty to provide special educational provision specified in a plan. The council cannot delegate this duty to a school. If a school’s actual resources, financial or expertise, cannot make the provision outlined in the plan, the council must provide it.
  5. Councils must review an EHCP every twelve months. Reviews must focus on the child’s progress towards targets in the Plan and on what changes might need to be made to any support to help the child achieve those outcomes. Councils can require a school to convene and hold a review meeting on their behalf. The Code of Practice says reviews are generally most effective when led by the school. The council must be invited to attend a review meeting.
  6. The review must consider whether outcomes and targets remain appropriate. Reviews must be taken in partnership with the child and parent and must take account of their views, wishes and feelings.
  7. After the review, the school must prepare and send a report of the meeting to everyone invited within two weeks. The report must set out recommendations for any amendments to the plan. It must refer to any differences in views between the school’s recommendations and those of others attending the meeting.
  8. Within four weeks of the meeting the council must decide whether to keep the EHCP as it is, amend the plan or cease to maintain the plan. It must tell the parent and school of this decision.
  9. A review only ends once the council has issued an amended plan or provided a written decision it will not amend the Plan. Either decision carries a right of appeal to the Tribunal.

Background

  1. Miss X’s daughter Y has special educational needs including anxiety, sensory and processing difficulties. The Council issued Y with an EHCP in August 2016, transferring from her previous Statement. Y goes to a specialist school and was starting preparation to travel for a course at a further education college from September 2017.
  2. Section F of Y’s EHCP set out a number of specific outcomes to improve her self-confidence ready for this travel to college. This was to help her prepare for choices about higher education or employment and to become more independent. It said the school would help Y visit colleges and give her travel training. The plan set out a specific intervention requiring travel training and confidence building in her local area. This said the school should run two sessions per week from September 2016 onwards.
  3. Miss X complained to the Council in May 2017 that the school had not met all the outcomes in Section F of the EHCP since September 2016. She asked a Council officer to attend the first EHCP annual review meeting to be held that month. The Council did not reply to Miss X’s letter. Its officer attended the review meeting. The Council thought Miss X’s concerns were dealt with at that meeting. It has apologised for not responding to Miss X’s letter.
  4. Miss X’s statement to the review said she was concerned about Y’s progress, and that she did not consider her special educational needs were being met because of her mental health issues. The review documentation records discussion about difficulties with Y’s confidence, her anxiety about starting college and her “room for improvement” about being able to travel independently. Miss X kept notes of the meeting which record her concerns about Y’s progress, the importance of independence and travel training and of starting this as soon as possible. She recalls that the meeting discussed whether Y was ready for travel training and other therapy. She said the meeting discussed that Y was not getting adequate therapy. She said Y was left sitting alone all day with no therapy or input from school staff. She felt the Council officer took the school’s side at the meeting.
  5. The Council said the annual review showed Y was on track to achieve the outcomes set out in her EHCP and there was no record of disagreement. Miss X and Y had completed a questionnaire after the meeting that did not show concerns. The Council said the school had allocated a one to one worker as available to work with Y on travel training.
  6. Miss X contacted the Council in June 2017. She complained the Council had not replied to her letter of 5 May. She was concerned the school had only carried out one travel training session since September 2016 rather than the two sessions per week her plan said she must have. She said this was not enough to prepare Y for college. She understood Y was reluctant to take part in the training but she expected the school to be able to deal with this. She expected the Council to ensure Y got what was required by her EHCP. She said the school had not arranged college visits required by her plan to improve her confidence.
  7. Miss X gave Y travel training at her own expense during the summer. She says she had to frequently take Y on public transport on routes to and from college to get her more used to travel.
  8. The Council issued a proposed, amended EHCP following the review in August 2017. This took longer than the timescale required by the Code. It gave Miss X the right of appeal. Miss X contacted the Council again with concerns about the lack of action by the school to help Y prepare for attendance at college. She said she had tried to discuss her concerns at the annual review meeting. She also made complaints about the school.
  9. The Council wrote to Miss X in September 2017. By now Miss X had also contacted the Ombudsman. The Council said it could not get involved with complaints about schools. It said travel training had been discussed at the annual review meeting. This had agreed training would happen during the final term of the school year. It said it was considering paperwork from the annual review and would contact Miss X to meet and discuss further amendment to the EHCP.
  10. Miss X told the Council its letter had not dealt with her concerns, it had not explained the Council’s complaint procedure or how to take the matter further. She said the Council had failed to enforce delivery of the EHCP. It was not responding to her emails about suggested amendments to the EHCP.
  11. Y started attending the further education course at college in September 2017.
  12. In October 2017 a senior council officer wrote to Miss X. She had investigated events of the past year and decided:
    • The Council had not responded to or communicated properly with Miss X about her complaint. It apologised for this and improved how it worked for the future.
    • The Council accepted it was responsible for ensuring delivery of Y’s EHCP. It had to review the plan each year. It said Y would get the provision specified in the plan. It would keep progress under review.
    • The Council apologised Y had not got the travel training required by the EHCP. This was because the school thought Y was not ready for the training.
    • Where specific actions were set out, the Council could not force Y to engage with this. She has capacity to make her own decisions.
    • The Council offered a good will gesture of £50 for Miss X’s time and trouble making her complaint. It asked Miss X to send receipts so it could consider her request to cover costs relating to transport training. It also asked Miss X to explain therapy sessions for which she was seeking reimbursement and on what grounds.
  13. The senior officer agreed a lead officer would arrange an informal disagreement resolution meeting between Miss X, Y, the school and the SEN manager. She agreed two meetings would take place during the next academic year between Miss X and the school to keep provision under review. This was as well as the next annual review meeting scheduled for May 2018.
  14. The Council issued Y’s amended final EHCP later in October 2017, triggering a right of appeal for Miss X. This carried forward the requirement for travel training and confidence building in section F. Y was now attending the college and was travelling to her home independently but with support to get to college.
  15. Miss X wrote to the Council in November 2017. In summary she said:
    • Communication from the Council about the EHCP had not improved.
    • Y had still not received travel or independence training, despite starting at the college two months ago. This meant she had missed out on one year and two months of this support.
    • The school had not met with Miss X or Y to discuss progress with the EHCP during the year. The only meeting, in January 2017, was at Miss X’s insistence. This meeting was because Y had struggled with her course and had five months without any education apart from a basic food and media course. For the rest of the time she said Y had been left in an art room without much to do.
    • Y had been forgotten about by the school since February 2017 with no alternatives, no travel or independence training.
  16. Miss X said she and Y were now happy with the support she was getting at the further education college. Miss X wanted an apology, assurance it would not happen again and to know staff were properly trained to deal with this. She wanted the Council to cover her costs providing travel training. She could not attend a mediation meeting as she had used up her annual leave.
  17. The Council wrote to Miss X later in November to say it understood why she could not attend the mediation meeting. It asked the area manager to meet with the school and share concerns. It apologised for Miss X’s experience and said it wanted to learn from this as well as ensuring Y received the right provision over the next year.
  18. In replying to my enquiries, the Council said it fully sympathised with Miss X’s frustration. It accepted Y was not fully ready to use public transport when she started college in September 2017. It says evidence suggests the school tried to work with Y and that she engaged to a limited extent with travel training at a pace she was willing to engage in.
  19. The Council said it had met its statutory duty in securing the special educational provision, making sure it was in place and available. It said Y had refused to engage in travel training that was offered. The Council said it could not force Y to engage in the provision. She had capacity to make her own decisions about this.
  20. The Council said Y had made a successful transition to further education and the school had arranged visits to college before the start. Her most recent Annual review from March 2018 says Y continues to work towards developing independent living skills, has completed a travel training programme and now travels home from college independently. It says she will begin train travel training in the summer term. The provision is still in her EHCP.
  21. The Council has implemented a new system for recording all complaints and ensuring it sends a timely response. It repeated its apology to Miss X for not responding to her complaint in a timely way. It confirmed its offer of £50 as a remedy for the injustice caused by its delay in responding to Miss X remained open. It has since offered to increase this to £100 for its failure to communicate effectively with Miss X, and for her time and trouble.

My findings

  1. Y’s EHCP set out specific outcomes and actions, including a requirement for her to get two sessions per week travel training. The Council had a non-delegable duty to ensure delivery of that plan. Y’s EHCP still contains that requirement. The Council was entitled to monitor delivery of the plan through participation in annual review meetings.
  2. Y did not take part in the travel training set out in the EHCP. The school said this was because Y was not ready or willing to take part in the training that it offered. The school had also told Miss X, at the annual review, it normally planned for travel training to only start in the summer term. Miss X believes the school and Council could have done more to make this happen. In practice Miss X provided her own training to Y at her own cost.
  3. I cannot investigate the school’s actions. I can only consider whether the Council took appropriate action to ensure it met its duty to ensure delivery of the plan. Miss X first raised concerns with the Council about non-delivery of the EHCP in May 2017. The Council was therefore not at fault for what did or did not happen before May.
  4. By then there was a short time before Y was due to start attending the FE course at college. Shortly after Miss X raised concerns, the school held the annual review of the EHCP. The Council took part in this review and did so without fault. The meeting noted difficulties with progress in a number of areas.
  5. During the period May 2017 – October 2017 Miss X told the Council about her concerns several times. It did not respond adequately to those concerns before Miss X complained to the Ombudsman in October. This delay is fault causing Miss X uncertainty, time and trouble continuing to raise her concerns. The Council has already apologised for its failure to respond to her complaint appropriately. It has offered £100 as a remedy for Miss X’s time and trouble and for delay issuing the EHCP. This is an appropriate remedy for injustice caused by these faults.
  6. During this period Y was still not taking part in travel training set out in Part F of her EHCP. The Council had a non delegable duty to ensure this happened. However travel training was available to Y. She had capacity to make decisions herself, including making unwise decisions. She decided not to have the training although Miss X disputes this. The Council could not force Y to take the training.
  7. Miss X provided training herself. The training is still in Y’s EHCP so she is still entitled to receive it. Evidence from the most recent annual review shows Y is making progress with independent travel training. There is more work to do so the provision remains in the plan. This is appropriate and without fault.
  8. The Council’s comprehensive response to Miss X in October, after our involvement, set out what it would do to keep Y’s progress under review. It appropriately suggested a disagreement resolution meeting with the school and scheduled interim reviews on Y’s progress. It offered to consider covering costs of Miss X providing training. These were appropriate actions.
  9. Miss Y does not have receipts to explain her expenses during the time the Council was at fault. This means she cannot comply with the Council’s request for this information. I am satisfied the agreed remedy is appropriate to address injustice caused.

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Agreed action

  1. Within one month of my final decision the Council has agreed to pay Miss X £100 to cover the time and trouble caused by its fault and for delay issuing the EHCP.

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Final decision

  1. I have completed my investigation. I have found evidence of fault causing injustice. The Council has agreed action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman

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