The Ombudsman's final decision:
Summary: The Council is at fault as it delayed in implementing the provision set out in Y’s Education Health and Care Plan. This fault caused injustice to Miss X and Y as it caused distress and anxiety to Miss X and put Y in a worse position that he should have been in for a term. The Council has agreed to remedy the injustice to Miss X and Y by apologising and making payments of £300 each to them. The Council will also review its procedures.
- Miss X complains that the Council:
- Delayed in appointing an independent keyworker which was provision set out in section F of her son’s Education, Health and Care plan (EHCP). As a result Miss X has had to undertake the role and has incurred costs and avoidable time and trouble in doing so and she has been caused significant distress.
- Delayed in providing a qualified teacher to support Y’s college in preparation of resources and teaching strategies which was provision set out in section F of Y’s EHCP
- Failed to consult Speech and Language Therapy (SALT) on Y’s final EHCP which meant the service was not able to provide the provision in section F of his plan. As a result there was a delay in Y receiving the provision;
- Failed to provide SENDIASS with a copy of Y’s final EHCP which meant the service could not assist Miss X with the keywoker role;
- Delayed in making payments to Miss X to reimburse her for the costs of Y’s transport to college which caused financial hardship to her;
- Failed to notify her of the information she needed to provide in order for the Council to grant a personal budget for the costs of Y’s travel to college.
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)
- 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)
- The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
How I considered this complaint
- I have:
- Considered the complaint and the information provided by Miss X;
- Discussed the issues with Miss X;
- Made enquiries of the Council and considered the information provided;
- Invited Miss X and the Council to comment on the draft decision.
- Shared this decision with Ofsted in line with our information sharing protocol.
What I found
- Miss X’s son, Y, has special educational needs. He has an EHCP which was finalised on 3 August 2017. Y attends a further education college.
- Section F of the EHCP sets out the special educational provision required by Y. this includes:
- Provision of a qualified teacher to support the college in the preparation of resources and advise on teaching strategies for one day per week;
- Programme of speech and language targets to be set by speech and language therapists (SALT) and termly review of service;
- Provision of an independent keyworker to co-ordinate the educational programme and act as point of contact for all parties, to arrange and attend meetings for one day per week.
- Y started the new academic year at college on 12 September 2017. At this time the Council had not appointed a teacher to support the college as set out in section F of Y’s EHCP. In response to my enquiries the Council has said that Miss X requested a teacher who had previously worked with Y to be appointed. It contacted this teacher and found she was not available.
- Emails provided by the Council show Ms X told the Council on 7 July 2017 that her requested teacher would not be available for September 2017. The Council acknowledged this in an email to Ms X of 18 July 2017 and suggested it contact its supply service to source a teacher.
- On 27 September 2017, the Council contacted its home tuition service to see if it could provide a teacher. The service provided a teacher. She started at the college on 9 October 2017 and provided resources to the college on 19 October 2017.
- The Council held an interim review of Y’s EHCP on 5 October 2017. The Council has said this was to find a way forward to resolve the outstanding actions in the EHCP. At this time the Council had not put in place a keyworker as required by section F of the EHCP.
- The minutes of the interim review record that there was confusion about what the keyworker would do. The minutes note Ms X set out her expectations of the role.
- Emails provided by the Council show it approached an organisation on 18 October 2017 to see if it could provide a keyworker. The organisation advised it could not. The Council has said it approached other colleges but they could not provide a keyworker. In October 2017, the Council approached another organisation, who I shall call organisation B. They said they could not provide a keyworker. Organisation B then agreed to provide a keyworker following further discussions with the Council in November 2017.
- On 28 November 2017, the Council arranged a meeting with Ms X, professionals and Y to establish the role and remit of the keyworker. The keyworker started working with Y on 31 January 2018.
- As I understand it the college provided SALT with a copy of Y’s EHCP at the end of August 2017. SALT informed the Council had not provided them with details of changed to Y’s EHCP before it was finalised and it could not provide the termly review of service for Y unless the college or Ms X made a referral.
- In November 2017 the Council commissioned SALT to assess and review Y’s targets each term and attend a programme and target writing meeting with college staff. SALT assessed Y in December 2017. The SALT assessment set out Y’s needs and strategies to meet those needs.
- The Special Educational Needs and Disabilities Information and Advice Support Service (SENDIASS) is commissioned by the Council to provide advice and support to parents. Miss X has said that SENDIASS could not support her for three weeks as it did not have a copy of Y’s EHCP. The Council has provided evidence to show it sent a copy of Y’s EHCP to SENDIASS on 3 October 2017. It acknowledged it delayed in sending the EHCP to SENDIASS.
Personal Travel Budget
- The Council provided transport for Y to attend college. Following an incident Miss X withdrew Y from this transport. Miss X arranged her own transport to take Y to college as she considered the alternative transport offered by the Council to be unsuitable for Y. Miss X paid for the transport and the Council reimbursed those costs. The Council has said its usual timescale for paying taxi receipts or parental mileage is six weeks in arrears.
- Miss X has said that the Council delayed in paying the costs of the taxis. Miss X has provided an email from a Council officer showing the dates of when she processed Miss X’s requests for payment. The Council has provided a breakdown showing the date when Miss X submitted the receipts and the date when the Council made the payments to her. This breakdown shows the Council made payments to Miss X between one and three weeks from when she submitted the receipts.
- The Council’s home to school transport policy is to provide transport to post 16 students with learning difficulties or disabilities. But it requires parents or guardians to make a contribution of £540 per year towards the costs. Miss X paid her contribution in monthly instalments. The Council considers applications from parents/guardians to reduce the yearly contribution in exceptional circumstances.
- Miss X has said the Council continued to charge a contribution of £60 per month while she was waiting for it to reimburse the taxi costs. She has said this and delays in reimbursing her caused financial hardship and she had to take out loans to cover the costs. Miss X considers the Council should have reduced or waived her contribution due to her exceptional circumstances.
- In response to my enquiries the Council has said that Miss X did not make an application for the Council to reduce her contribution at this time. The Council’s policy has since changed and it will now charge a reduced contribution of £270 for parents/guardians on a low income. It has applied this policy retrospectively. Miss X paid £260 for 2017/18 academic year so the Council has refunded £90 to her. The Council will refund £30 to Miss X for 2016/17 academic year.
- Miss X requested a personal travel budget for Y. The Council’s special educational needs panel considered Miss X’s request on 13 October 2017 but deferred a decision as it required more information. The Council then approved Miss X’s application on 20 October 2017 and offered a personal travel budget in line with its policy. Miss X rejected the personal travel budget as she did not consider it to be sufficient to meet Y’s transport costs. The Council sought advice from the Department for Education and agreed to pay an increased personal budget in December 2017.
- Miss X made a complaint to the Council which it considered through its two stage complaints procedure. The Council upheld Miss X’s complaints about the delay in appointing the teacher and keyworker. It also acknowledged it should have shared changes to Y’s EHCP with SALT before finalising it. It also acknowledged that there were delays is sharing Y’s EHCP with SENDIASS. The Council offered a payment of £300 to Miss X to acknowledge distress caused to her.
- Miss X considers the delays in appointing a keyworker caused her to take on the role in an unofficial capacity. Miss X is seeking payment for the hours she has spent acting as Y’s keyworker.
- We consider that where the Council has a clear knowledge of what provision is required and a likely start date for that to happen then delay in arranging that provision is fault.
- The Council is at fault as it delayed in appointing a teacher in accordance with section F of the EHCP. The Council would be aware that the provision needed to be in place for the start of the new academic year. The evidence shows the Council was aware on 7 July 2017 that Miss X’s preferred teacher would not be available. But it only started to source a teacher on 27 September 2017 and appointed a teacher on 9 October 2017. The Council found a teacher within two weeks of when it contacted the home tuition service. So it is likely that the Council would have found a teacher to start at the beginning of the academic year if it had taken action to source a teacher in July 2017 when it became aware Miss X’s teacher was not available.
- The Council delayed in appointing a keyworker for Y. The evidence shows the Council did not make any arrangements to put this provision in place before the start of the academic year. The minutes of the interim review of 5 October 2017 show the Council was not clear about what the keyworker would do. This is fault as the Council should have been clear about the role and remit when it included this provision in Y’s EHCP. It would inevitably take some time for the Council to appoint a keyworker. But the Council was aware of the provision for a keyworker by 3 August 2017 at the latest when Y’s EHCP was finalised. Its two month delay in starting the process and its delay in establishing the role and remit caused a delay of four months in appointing the keyworker. This is fault. As a result Miss X was put to significant avoidable time, trouble and anxiety in co-ordinating Y’s support.
- The Council delayed in commissioning SALT to assess and set targets for Y. It is not clear if the Council’s failure to consult SALT on Y’s final EHCP caused this delay. But the Council was aware this provision was in Y’s EHCP when it was finalised on 3 August 2017 so it could have commissioned SALT at that time to carry out Y’s assessment so the provision was in place by the start of the academic year on 12 September 2017. This is fault. As a result Y did not have an up to date programme of targets for a term. The college and qualified teacher also did not have the benefit of an up to date knowledge of Y’s needs for term. Miss X has said this affected Y’s education as the qualified teacher could not appropriately adapt Y’s work.
- The Council has acknowledged it delayed by three weeks in sending SENDIASS a copy of Y’s EHCP. This will have impacted SENDIASS’s ability to provide and support to Miss X which will have added to the avoidable time, trouble and anxiety caused to her by the delay in appointing the keyworker.
- There is no evidence of delay by the Council in reimbursing Miss X the cost of Y’s transport to college. The evidence provided by Miss X and the Council shows it made some payments within a week and some payments within three weeks of Miss X submitting her receipts. This is within the Council’s usual timescale of six weeks for making payments and it is not excessive as it will inevitably take some time to process payments. So, on balance, there is no evidence of fault.
- Miss X has said the Council should have waived or reduced her contribution to Y’s home to school travel at this time as paying for Y’s transport and paying her contribution caused significant financial hardship to her. In commenting on my draft decision Miss X has said she was not aware she could make an application and she had told officers she could not afford to pay her contribution. But Miss X had applied for a reduction in 2016 so she would have been aware she could make an application. But in any event the Council has reduced Miss X’s contributions for 2016/17 and 2017/18 to £270 per year in accordance with its revised policy and refunded payments to her. Further investigation will not achieve anymore for Miss X.
- The Council deferred a decision on Miss X’s request for a personal travel budget as it considered Miss X had not provided sufficient information. I do not know if there is fault in the Council’s decision to defer the matter and whether it did not provide Miss X with sufficient information. However, the Council decided Miss X’s application a week later so I will not pursue this matter further as the deferral did not cause significant injustice to Miss X.
- The Council exercised its discretion to pay an increased level of personal travel budget. Miss X considers the Council should have made this decision in October and not offered the rate in line with its policy. I do not know if there was fault in how the Council made its initial decision to offer the personal travel budget in line with its policy and not an increased level. But I will not pursue this matter further as it did not cause significant injustice to Miss X to warrant further investigation. The Council made its decision to pay the increased level seven weeks after its initial decision to offer the personal travel budget in line with the Council’s policy. This is not an excessive period of time. The Council also reimbursed Miss X’s travel expenses for Y at this time
Injustice to Y
- The delay in commissioning SALT meant Y did not have SALT targets in place for one term and the college did not have an up to date knowledge of his SALT needs. The college also did not have the benefit of the teacher advising it and adapting resources for Y for five sessions. It is difficult to say what specific impact the delays had on Y’s education but overall, he will have been placed in a worse position than he should have been for a term. The Council should remedy this injustice.
Injustice to Miss X
- Miss X has been caused significant anxiety and distress by the Council’s delay in appointing a teacher and commissioning SALT as she was understandably concerned about the impact on Y’s education. Miss X was also put to avoidable time, trouble and anxiety as she arranged meetings to co-ordinate Y’s support in the absence of a keyworker. The Council’s delay in sending SENDIASS Y’s EHCP also made it more difficult to obtain advice and support for three weeks which will have caused more anxiety for her.
- Miss X wants the Council to pay her for the hours she co-ordinated Y’s support at the rate it pays the keyworker. This is not a remedy the Ombudsman would generally seek so it is not appropriate to recommend the Council pays Miss X for the hours. But the Council should make a payment to Miss X to acknowledge the anxiety and avoidable time and trouble caused to her by the faults identified. I note the Council offered to make a payment to Miss X in its response to her complaint.
- That the Council:
- Sends a written apology to Miss X and Y for the anxiety and time and trouble caused by the delays in appointing a teacher, commissioning a SALT assessment and appointing a keyworker and for placing Y in a worse position than he should have been in for a term;
- Makes a payment of £300 to Y to acknowledge that he was placed in a worse position than he should have been for a term due to the delays by the Council. The payment can be used to purchase additional support for Y if required;
- Makes a payment of £300 to Miss X to acknowledge the anxiety and avoidable time and trouble caused by the fault by the Council. The Council should send the written apologies and make the payments to Miss X and Y within one month of my final decision.
- Reviews its procedures for implementing part F of EHCPs to ensure provision is in place as soon as possible and explain to the Ombudsman what action the Council will take to ensure such delays do not occur in future. The Council should take this action within three months of my final decision.
- The Council is at fault as it delayed in implementing the provision set out in Y’s EHCP plan. This fault caused injustice to Miss X and Y which the Council has agreed to remedy. I have therefore completed my investigation.
Investigator's decision on behalf of the Ombudsman