London Borough of Richmond upon Thames (18 007 626)

Category : Education > Special educational needs

Decision : Not upheld

Decision date : 21 Dec 2018

The Ombudsman's final decision:

Summary: Ms X complains the Council has failed to provide her son Y with any form of education for over a year. She says it issued him a final Education, Health and Care Plan in December 2017 but did not name an educational setting or placement. The Ombudsman has discontinued the investigation into this complaint as Ms X started court action about the matters she has complained about.

The complaint

  1. Ms X complains the Council has failed to provide her son Y with any form of education for over a year. She says it issued him a final Education, Health and Care Plan (EHCP) in December 2017 but did not name an educational setting or placement.

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The Ombudsman’s role and powers

  1. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  2. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)
  3. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
  4. 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)
  5. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
  6. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

  1. I have:
    • Read Ms X’s complaint and the documents she submitted in support of it.
    • Considered the Council’s comments about the complaint and the supporting documents it provided.
    • Provided both parties with an opportunity to comment on the draft decision, and considered the comments that were made.

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What I found

  1. Y is 20 years old and suffers from dyslexia, dyspraxia, and a history of childhood epilepsy and rickets. He also has literacy difficulties, significantly delayed maths skills, delayed perpetual reasoning skills, short-term auditory memory difficulties, and an extremely delayed processing speed. In September 2014, he started attending a mainstream, further education college after the Council conducted a Learning Difficulty Assessment (LDA). At the time he was aged 16.
  2. In March 2017, Ms X asked the Council why it had not transferred her son to an EHCP. The Council subsequently considered the matter but decided Y did not require an EHC needs assessment or plan. However, it changed its decision at the end of June 2018 after Ms X submitted an appeal to the Special Educational Needs and Disability (SEND) Tribunal.
  3. In July 2017, Y left the mainstream, further education college he had been attending.
  4. At the beginning of August 2017, the Council started the EHC needs assessment. In the middle of the month, Ms X wrote to the Council and informed it Y had been offered a place at an independent college in Cambridge, College Z. She asked it to contact College Z to arrange Y’s start date and provided a copy of the offer letter. This was addressed to Y and stated he should send an up-to-date copy of his EHCP, so it could ascertain whether it could accommodate him.
  5. In mid-December 2017, the Council issued the final EHCP after completing the needs assessment. It did not name an educational setting and merely said Y should attend a “local mainstream, maintained further education college”. It sent the EHCP to Ms X along with a covering letter which included details of her right to appeal to the SEND Tribunal.
  6. Two days after issuing the final EHCP, the Council received a letter from Ms X that was dated eight days earlier, together with a form it sent her with the draft plan that she had subsequently completed. She stated she disagreed with the content of the EHCP and asked the Council to amend it and name College Z as the placement, ensuring her son could start in September 2018.
  7. In mid-February 2018, the Council started consulting with colleges in the local area about a placement for Y.
  8. At the beginning of May 2018, the Council sent a consultation letter to College Z. Four days later, Ms X complained to the Council. She said it had not yet finalised Y’s EHCP and this was causing him anxiety and distress. She added the Council had wasted considerable time dealing with the matter and asked that the plan be finalised. She also said Y had lost a year of education.
  9. The Council responded at the end of the month. It said a final EHCP was issued but a placement had not yet been named, adding efforts were ongoing to identify a setting.
  10. At the beginning of June 2018, Ms X responded to the Council. She said her son was vulnerable and that she wanted his needs met by September so he could pursue his studies. In addition, she discussed efforts made by the Council to secure a placement at their chosen setting, and expressed dissatisfaction about the length of time the consultation process was taking.
  11. The next day, College Z responded to the Council’s consultation. It said it could not meet Y’s needs, even if it were to make several reasonable adjustments.
  12. In mid-July 2018, the Council responded to Ms X’s complaint. It noted it began consulting with College Z in May, which had recently responded and said it could not offer a place as it did not think it could meet Y’s needs. It stated it was liaising with other, local settings to try and secure a placement and would contact her when there was an update.
  13. Additionally, it said Y had not accessed education since his EHCP was finalised in December 2017, although it attributed this to several factors. It stated there were difficulties in establishing Y’s preferences and this was compounded by “the requested placement not having space part way through an academic year”. In conclusion, it partially upheld her complaint about the time taken to identify a suitable placement. It also accepted it could have done more to ensure both Ms X and Y understood the process, and acknowledged “this may have resulted in a positive outcome sooner”. Consequently, it said it would hold information sessions for young people and parents to help them understand the processes involved.
  14. In mid-August 2018, Ms X complained to the Ombudsman. In addition to the points already raised, she says her son has been unable to complete his GCSEs and has felt down and stressed at being out of education for so long. She wants the Council to make arrangements to ensure the provision named in the EHCP is delivered without delay. She also wants it to make a payment to her son to recognise the provision he was not given, and another to her for her time and trouble in making this complaint.
  15. At the beginning of October 2018, Ms X submitted a Judicial Review (JR) claim to the High Court. She states she did this because she was frustrated waiting for the Ombudsman to deal with her complaint.
  16. On her JR claim form, she cited “ongoing failure” as the decision to be judicially reviewed and noted the date of the decision was the date the final EHCP was issued in December 2017. She complained the Council had missed the statutory timeframes for transferring Y to an EHCP. She also complained it did not name a placement and asserted the provision detailed in the plan should be implemented. In addition, she asked that Y be allowed to continue with his education and requested that the Council pay costs and expenses, plus compensation for distress.
  17. In mid-November 2018, the Council responded and stated it intended to contest the claim. Nine days later, a judge considered Ms X’s case. He refused her permission to proceed and decided her application was “totally without merit”.

Analysis

  1. There are essentially three parts to Ms X’s complaint. The first relates to the Council’s decision to name a type of placement in the final EHCP and not College Z. Ms Y was informed of her right to appeal to the SEND Tribunal about this matter when she received the final EHCP but did not exercise this right. She subsequently complained to the Ombudsman, then submitted a JR claim about this issue. The law says we cannot investigate a complaint if someone has started court action about a matter, therefore I cannot investigate this part of Ms X’s complaint.
  2. The second part of the complaint relates to the provision of education after the EHCP was issued in December 2017. Case law on this matter dictates that when someone does not appeal to the SEND Tribunal about a council’s decision to name a placement or type of placement, the Ombudsman should only investigate the consequences of that decision if it was unreasonable for the person to have submitted an appeal in the first place. In this case, I have found no evidence which suggests Ms X or Y could not, or should not have appealed. Equally, Ms X’s JR claim seeks to obtain the provision detailed in the EHCP as well as costs, expenses and compensation. Therefore, the Ombudsman also cannot investigate this part of the complaint as Ms X referred the matter to the courts.
  3. The third and final part of the complaint concerns what happened before the final EHCP was issued in December 2017, specifically the extent of the educational provision the Council arranged for Y as Ms X states this has been lacking for over a year. I note Y left his previous college in July 2017, at which point the LDA with the Council ended. It started the EHC assessment process shortly after at the beginning of August, then Ms X asked the Council to arrange a placement at College Z around two weeks later so Y could start in September 2017. I would not expect the Council to arrange a placement without first assessing Y’s needs, and it had 20 weeks to do this and issue an EHCP. Therefore, it would be unrealistic to expect it to arrange a placement in September when it only started the EHC needs assessment in August.
  4. In essence, Ms X’s complaint is really about whether the Council should have started the assessment process earlier. If it did this, it could have completed the assessment, consulted colleges, and issued the final EHCP ensuring a placement was arranged in time for a September 2017 start. I note the Council considered whether to assess in March 2017 but decided not to a month later. Ms X then appealed to the SEND Tribunal and the Council reversed its decision. Consequently, I cannot investigate this specific matter because Ms X appealed to the Tribunal.
  5. This leaves the period which followed the Council’s decision to carry out an EHC needs assessment. I am concerned it appears to have only started consulting colleges about placements after it had issued the EHCP, despite Ms X requesting College Z as a placement in mid-August 2017. There is potentially fault here, but I cannot investigate this part of the complaint because Ms X’s JR claim also included this period as it discussed ongoing failure and Y’s transfer to an EHCP. Therefore, as court action was started I cannot investigate this part of the complaint.
  6. In summary, I cannot investigate any part of the complaint because Ms X referred the matter to the High Court. The Ombudsman cannot consider a matter after it has been considered by a court, therefore I have decided to discontinue our investigation into the complaint.

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Final decision

  1. I have decided to discontinue the Ombudsman’s investigation into this complaint as Ms X started court action about the matters she has complained about.

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Investigator's decision on behalf of the Ombudsman

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