London Borough of Croydon (17 014 850)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 25 Nov 2019

The Ombudsman's final decision:

Summary: Mrs D complains about the way the Council dealt with her adult son’s Education, Health and Care plan and his care and support needs. The Ombudsman has found fault by the Council. The Council has agreed to apologise and make payments to Mrs D and her son. It will assess his care and support needs without delay.

The complaint

  1. Mrs D complains the Council:
      1. Failed to deal with the bullying her adult son, Mr J, suffered at school
      2. Ceased Mr J’s EHC plan without notice in 2017
      3. Failed to ensure a smooth transition from school to college in 2017/18
      4. Delayed in providing home tutoring in 2017/18
      5. Failed to meet Mr J's care and support needs
  2. Mrs D says as a result Mr J became very stressed, lost a term’s education, and was not able to do exams or spend time with his peers.

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What I have investigated

  1. I have investigated parts b) to e). I explain at the end of this statement why I have not investigated part a).

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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. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
  3. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
  4. 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 Mrs D about her complaint and considered the Council’s response to my enquiries and:
    • The Children and Families Act 2014
    • The Special Educational Needs and Disability Code of Practice January 2015 (“the Code”)
    • The Special Educational Needs and Disability Regulations 2014
    • The Care Act 2014
  2. I sent Mrs D and the Council my draft decision and considered the comments I received.

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What I found

Education, Health and Care Plans

  1. A young person with special educational needs (SEND) may have an Education, Health and Care Plan (EHC plan). This sets out the young person's needs and what arrangements should be made to meet them. The council is responsible for making sure that all the arrangements specified in the EHC plan are put in place. Parents may appeal to the SEND Tribunal about the provision specified in an EHC plan.
  2. EHC plans cover young people up to the age of 25. There is no automatic entitlement to continued educational support at age 19, or an expectation that those with an EHC plan should all remain in education until age 25.
  3. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.

Ceasing an EHC plan

  1. An EHC plan will automatically cease at the end of the academic year in which a young person turns 25. A council may cease a plan for a 19 to 25 year old if it decides that it is no longer necessary for the EHC plan to be maintained, or if it is no longer responsible for the young person. A council is no longer responsible for a young person aged 18 or over if they leave education and no longer wish to engage in further learning.
  2. If the council decides to cease to maintain the EHC plan, it must notify the child's parent, or the young person, and the school. It must also give the child's parent details of their right to appeal to the SEND Tribunal about the decision.
  3. Where it is known that a young person will soon be completing their time in education and training, the council should use the annual review prior to ceasing the EHC plan to agree the support the young person will have once they have left education. During this planning process, the council must continue to maintain the young person’s EHC plan as long as the young person needs it and remains in education or training.

Transition to adulthood

  1. The Code says councils must ensure EHC plan reviews from Year 9 onwards include a focus on preparing for adulthood and what the young person wants to be able to do when they leave post-16 education or training. Reviews should include support to prepare for higher education and/or employment. As children approach the transition point, schools and colleges should help children and their families with more detailed planning, for example through taster days and visits.

Adult care and support

  1. The Care Act 2014 requires local authorities to carry out an assessment for any adult with an appearance of need for care and support. The assessment determines what the person's needs are and whether the person has any needs which are eligible for support from the council.
  2. Where a council determines that a person has any eligible needs, it must meet those needs. The council must provide a care and support plan which sets out the person’s needs, what they want to achieve, which needs the council will meet and how they will meet them.
  3. The Care Act says that if a child is likely to have care and support needs when they turn 18, the local authority must assess them if it considers there is ‘significant benefit’ to the individual in doing so. This is regardless of whether the child currently receives any services. This is known as an adult care transition assessment.
  4. Where young people aged 18 or over continue to have EHC plans, and are receiving care and support, the care and support plan forms the ‘care’ element of the EHC plan. The care plan will remain in place when the other elements of the EHC plan cease.

What happened

  1. Mr J has a diagnosis of Asperger’s Syndrome and has significant problems with communication. He had been attending independent special schools for people with a diagnosis of autism but had had to leave due to bullying.
  2. In May 2015, at the age of 18, he started at School 1, which is an independent special school up to age 19 for young people with autism.
  3. In January 2016 a social worker visited Mrs D at home to discuss the transition process to adult care and support for Mr J. She emailed Mrs D details of services and leisure activities that Mr J could access and referred him to the Council’s post-16 SEN Coordinator. In response to my enquiries, the Council said an adult care transition assessment was started but not completed.
  4. The Council issued a final EHC plan in July 2016. This said Mr J was to stay at School 1 until the end of the 2016/17 academic year (July 2017), when he would be 20 years old.
  5. The case records say on 31 August 2016 the social worker posted information about social and leisure activities and a financial assessment form to Mrs D and “called Mrs D and left a message” that she would visit to go through the Care Act assessment. Mrs D disputes this call as she was abroad at the time.
  6. The social worker visited Mrs D in October 2016 to start an assessment of Mr J’s care and support needs and consider his transition to adult care and support. There was a discussion about college placements and direct payments. Mrs D says the Council did not send her the forms she needed to complete a financial assessment. The case records of the home visit say the social worker “was prepared to support in completing a financial assessment but Mrs D did not have the information.”
  7. There is no evidence a care and support assessment was completed or a care plan written following this visit. This is fault.
  8. The annual review of Mr J’s EHC plan on 2 February 2017 considered his transition. There is a dispute about what was discussed at the meeting.
  9. Mrs D says she was not told that the Council planned to cease the EHC plan at the end of the academic year. She says it was a discussion about Mr J’s progress against the plan, and there was no mention of him leaving School 1. Mrs D also says that no financial assessment forms were issued afterwards.
  10. The note of the meeting says:
    • As this is Mr J's last year at School 1, the meeting will focus on transition
    • Reason for review is to "look at how to transition Mr J from School 1 and put in place social care support"
    • It was felt that college would not work for Mr J and the head teacher suggested supported employment
    • It is not the plan for Mr J to move into education but employment with an education link should be explored
    • Mr J’s EHCP remains appropriate to meet his current needs
    • It was agreed to explore a possible level 1 course on music & computing
  11. The Council sent a decision letter on 29 March 2017 to Mr J setting out its intention to cease the EHC plan after July 2017. Mrs D says they did not receive this letter as the address was wrong.
  12. I have seen the letter; it uses the same address as in the July 2016 EHC plan. The house number and postcode are correct, but the name of Mr J’s road is wrong. This is fault.
  13. The case records say a financial assessment form was sent recorded delivery to Mrs D on 12 July 2017.
  14. Mrs D complained to the Council on 18 July 2017 that it:
    • had ceased Mr J’s EHC plan without notice
    • had taken no action about the bullying of Mr J at previous schools
    • had failed to send forms for financial assessment to enable social care support;
    • had not informed her Mr J’s social worker had changed
    • had not organised any transition from school to college
  15. The Council replied that ceasing the EHC plan had been agreed during the transition review meeting in February 2017. It said Mrs D had requested a social care package for Mr J, but would not complete the financial assessment and had said the family would take responsibility for caring for him. The Council had also sent the decision to cease the EHC plan letter to School 1, which had confirmed that formal education was no longer appropriate to meet Mr J’s needs.
  16. Mrs D replied on 22 August 2017 that she was unhappy with the response, but the complaint was not escalated to Stage 2. This is fault.
  17. Mrs D appealed to the Tribunal in September 2017 against the Council’s decision to cease the EHC plan. Although the appeal was late, in November 2017 the Tribunal agreed to hear it as the 29 March 2017 letter had not contained all of the information required by the statutory framework and did not set out the relevant information about mediation.
  18. Following a social worker visit in September 2017, the Council referred Mr J to a mentoring service to enable him to access the community. However, I have seen no evidence a care and support needs assessment or care plan was written, which is fault.
  19. Mr J met two mentors, but found they were not suitable. Mrs D told the Council in November 2017 that the mentoring service would not be suitable for Mr J’s needs,
  20. The Council consulted four colleges (including School 1) in November and December 2017 on whether they could meet Mr J’s needs. On 20 December 2017 it contacted tutors to arrange home tuition for Mr J. School 1 replied that it was unable to meet Mr J’s needs and home tuition started on 10 January 2018.
  21. In March 2018 the Council suggested Mr J attend College 1. Mrs D’s appeal to the Tribunal was upheld in June 2018 and the Tribunal ordered the Council to issue a final EHC plan, naming home tuition until the end of July 2018 and College 1 from September 2018. This was issued on 12 June 2018.
  22. Mr J visited College 1 for a taster day in July 2018 and started there in September 2018. Mrs D says it was a difficult adjustment as he had not had a proper transition.
  23. Mrs D approached the Ombudsman in August 2018, we asked for consent from Mr J for her to complain on his behalf. She made a further complaint to the Council in January 2019 that:
    • The EHC plan had been ceased without notice
    • There was no transition from School 1 to College 1
    • Mr J had received no support from social care
    • There had been a delay in providing home tuition
  24. The Council’s Stage 1 and Stage 2 responses accepted there had been a slight delay in starting home tuition. The Council recapped its explanation of events around ceasing the EHC plan and starting at College 1. It said Mrs D had not wanted to pursue the social care support offered to Mr J.

My findings

  1. I have summarised my findings on each part of Mrs D’s complaint separately.

Ceased Mr J’s EHC plan without notice in 2017

  1. There is some dispute about what was agreed at the February 2017 transition review. However, even if the outcome of that meeting had been clear, the Council is still required to formally notify Mr J in writing of its intention to cease the EHC plan.
  2. The Council wrote to Mr J on 29 March 2017 with its decision, however there was an error in the address, which was fault. Mrs D says they did not receive the letter and I have no reason to question this. I consider the most credible explanation for the letter not arriving is that it was wrongly addressed.
  3. I have considered whether this fault caused injustice to Mr J or Mrs D. A failure to be notified of the intention to cease the plan would mean Mrs D may have lost her opportunity to appeal to the Tribunal. However, her late appeal was accepted, and ultimately upheld, so no injustice was caused.
  4. However, if Mr J had received the letter on time, the appeal could have been considered sooner. Tribunals usually take 16 weeks from when the person appeals to issuing their decision. If Mrs D had received the letter and appealed by the deadline of 29 May 2017, it is likely that the Tribunal would have upheld her appeal and issued its order by 18 September 2017. This means Mr J could have returned to education in mid-September, three school months earlier than he did. The loss of that provision is his injustice.
  5. Where fault has resulted in a loss of educational provision, the Ombudsman’s Guidance on Remedies says we will usually recommend a remedy payment to acknowledge the impact of that loss. I have taken into account that Mr J was working towards exams.

Failed to ensure a smooth transition from school to college in 2017/18

  1. Although I have found fault in the Council’s notification of its decision to cease the EHC plan, in September 2017 there was no duty on the Council to provide education to Mr J. There was therefore no fault by the Council in not providing transition to College 1 in the summer of 2017.
  2. After the 2018 Tribunal, a new EHC plan was issued naming College 1. Mr J attended a taster day at College 1 before he started. Whilst I understand Mrs D does not consider that to be adequate, the Council was not required to do more, and I do not find fault.

Delayed in providing home tutoring in 2017/18

  1. When the Council became aware in November 2017 that the Tribunal would hear Mrs D’s late appeal, it contacted School 1 on 13 November 2017 to establish if it could meet Mr J’s needs. School 1 did not reply, so in December 2017 the Council consulted other colleges and made a referral to the home tutors. The tuition started on 10 January 2018.
  2. I have seen no evidence of avoidable drift or delay by the Council in arranging home tuition and do not find fault.

Failed to meet Mr J's care and support needs

  1. I have found fault by the Council in not completing Mr J’s care and support needs assessments or care plans in 2016 and 2017. Neither was there a financial assessment. The reasons for this are disputed, but councils must meet people’s needs regardless of whether a financial assessment has been done.
  2. However, the absence of a care and support assessment or care plan means there is uncertainty about whether Mr J had eligible needs, what they were, or whether they could have been met. This is his injustice.
  3. In considering the injustice caused to Mr J, I have taken into account that the Council referred him to a mentoring service to enable him to access the community, but this was later considered unsuitable. I have also considered that Mrs D says Mr J was stressed throughout this period and developed mouth ulcers.

Agreed action

  1. The Council has agreed to, within a month of my final decision:
      1. apologise to Mr J
      2. pay him £900 to acknowledge the impact of the loss in educational provision caused by fault
      3. complete an assessment of his care and support needs and a care and support plan without delay
      4. pay Mr J £300 to acknowledge the distress caused by the uncertainty of not knowing whether his care and support needs could have been met
      5. apologise to Mrs D and pay her £300 to acknowledge the distress caused by the loss of educational provision and uncertainty about Mr J’s social care support.

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Final decision

  1. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Parts of the complaint that I did not investigate

  1. I have not investigated part a). This is because it is for schools to deal with incidents of bullying and we cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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