Plymouth City Council (18 012 906)

Category : Education > Special educational needs

Decision : Not upheld

Decision date : 25 Jun 2019

The Ombudsman's final decision:

Summary: V says the Council, and an organisation offering advice to parents of children with special needs, failed to treat her and her mother, Mrs U, appropriately. This had left V studying at home with no support except from Mrs U. There was no evidence of Council fault.

The complaint

  1. The complainant, whom I shall call V was transitioning to post-16 education in September 2017. Although V had special educational needs; V did not have an Education, Health and Care Plan (EHCP). Mrs U, acting for V, wanted support to find suitable provision for V. V had been home educated and wanted to transition to a college to study.
  2. Mrs U made four complaints to the Council, on V’s behalf, as a result:
      1. She received incorrect information from Plymouth Information and Advice Service for Special Educational Needs and Disabilities (PIAS), which meant she had a lack of support at a critical time.
      2. The Council delayed producing an EHCP.
      3. The Council failed to help her identify suitable education for V at 16+ and did not support her through the process
      4. The Council failed to make the provision specified in the EHCP.
  3. Mrs U was dissatisfied with the way the Council investigated her complaints and asked the Ombudsman to consider them.
  4. I am considering complaints a) and c) together. I also consider the Council’s complaints handling.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
  2. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’)). It also considers allegations of disability discrimination against children. 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)
  3. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
  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 considered the information Mrs U submitted with V’s complaint. I also spoke to her on the telephone. I made enquiries of the Council and assessed its response. I sent a copy of my draft decision to V and Mrs U and the Council and took their comments into account before issuing a decision.

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What I found

  1. I am considering Mrs U’s complaints in turn.

Mrs U received incorrect information from Plymouth Information and Advice Service for Special Educational Needs and Disabilities (PIAS), which meant she had a lack of support at a critical time. The Council failed to help her identify suitable education at 16+ and did not support her through the process

Background

  1. At 16, a child is no longer of compulsory school age according to the Education Act 1996. However, since 2013, young people must continue in education, employment or training until the age of 18. According to the relevant government website, this can be in the form of staying at a school or going to a college setting, undertaking an apprenticeship or spending 20 hours or more a week working or volunteering, while in part-time education or training. Mrs U, and V, decided V should go to college full time to study, ideally, a Level 3 Art Extended Diploma. V did not have an EHCP so the Council was not responsible for consulting with schools and colleges and identifying somewhere for V to attend.
  2. A Ministerial Statement from 2013 says; ‘From August 2014 students who have not achieved a good pass in English and/or maths GCSE by age 16 must continue to work towards achieving these qualifications or an approved interim qualification as a ‘stepping stone’ towards GCSE as a condition of student places being funded’. V had a GCSE in maths but not in English. She would generally be expected to continue to work towards a GSCE English post-16.

PIAS

  1. I have a record of Mrs U contacting PIAS on 13 March 2017 in relation to experiences she had trying to find appropriate provision for V for September 2017. Mrs U thinks at this point she should have been told that an Education, Health and Care Plan was important for V but children and young people with special educational needs do not necessarily need them. PIAS was prepared to assist Mrs U even though V did not have an EHCP.
  2. One provider turned V down for a place in April. It gave prospective pupils assessments to see whether they could potentially pass the English GCSE in a year. V failed the assessment. The college said it would offer a further assessment with a reader as it said it had only been aware, on the day V took the test, that this might be appropriate. Mrs U says she had a meeting with someone had the college 4 weeks before this so it would, or should, have been aware of her needs. This is a college matter and I cannot comment. V did not retake the test. Mrs U said to the provider; ‘we will be taking this further’ and could have taken this to the SEND tribunal as this deals with disability discrimination claims in relation to children and young people.
  3. Two offers from colleges were received on 25 June 2017 and a preferred provider was mentioned by Mrs U to an officer at a home visit on 14 August 2017. Mrs U said about the provider; ‘I think (provider) offer(s) the best support of any of the colleges we have looked at’. V was accepted there to study the course of her choice even though she did not have the usual number of GCSEs that would be accepted for that qualification. She had to work on an English GCSE as part of the offer.
  4. The placement started to break down on 19 September. On 17 October, Mrs U reported there was an ‘unfavourable comparison of U’s work with another’s’ and bullying. On 13 November Mrs U complained to the college that she was ‘surprised…the college has shown no interest in rectifying this as soon as possible to enable V to return’. The college appeared to agree and offered a meeting but the day after, on 14 November, Mrs U wrote to PIAS saying she did not think V ‘will get back into college now’.
  5. Once V decided not to go back to the college, she needed to either find another school or college placement or consider alternatives. V decided an online course would be appropriate. By then, V would have missed quite a lot of provision if she was planning to continue in a formal educational environment and Mrs U says a number of colleges were unable to meet V’s needs in any case. There is no evidence of Council fault. It was Mrs U and V’s choice as to how to ensure V was participating in education or training; not for the Council. Mrs U says that PIAS tried to encourage V to ‘sit at home and pretend she was being home educated because no one would check’ but this was not something V wanted to do. I am not investigating this matter as there is no injustice to V or Mrs U.
  6. There is no evidence PIAS failed to offer support or that it provided incorrect information. The evidence I have shows PIAS was proactive and engaged in supporting Mrs U and V through the process of finding a suitable college, in line with what Mrs U and V wanted. On the balance of probabilities, it provided as much support as it could, including setting up meetings at colleges and liaising with Special Educational Needs Coordinators (SENCOs) at those colleges. Mrs U says she was not fully made aware of routes or options available, especially in relation to law but PIAS supported them to find a suitable setting, which is what they both wanted, as a priority, at the time.
  7. Support at school or college would not be the same as being home educated with support on a 1:1 basis. I note that V’s current EHCP does not say 1:1 support is necessary in an educational environment. If Mrs U thought V did need 1:1 support, she would need to appeal the EHCP at tribunal or ask the Council to consider changes at Annual Review but this is for her to decide, not PIAS.

The Council

  1. Mrs U is critical of the Council’s actions. However, the Council was only able to advise about what could or should happen once Mrs U applied for a place for V. It apologised if Mrs U felt any officer had been rude or unsupportive (or had failed to answer emails or telephone calls). This is appropriate.
  2. There was a delay in reimbursing Mrs U for the payment made for the online course taken by V; Mrs U says she was refused this funding twice. However, on the balance of probabilities, this was not a regular provider of education so approval would not be immediate and V had previously committed to another provider. I am not minded to find the Council at fault for this.

The Council delayed producing an EHCP.

  1. The Council says that an initial request for an EHCP assessment was sent by Mrs U and received by the 0-25 statutory assessment team on 4th January 2018. There is evidence of discussions between Mrs U and PIAS about this including, on 31 December 2017, an acknowledgement that the letters used to provide evidence about V ‘look great. You have summarised the points really well and as you said it is not too long, which is what they want’.
  2. I can see evidence of earlier discussions about this with PIAS. Mrs U had said in March 2017, when she was aware of V’s difficulties, ‘I am guessing that means that V should have had an educational healthcare plan (sic). Well it’s never been offered to us as home educators’. Mrs U could have asked for this at any time – she did not need PIAS support to do this; she would also not have had one ‘offered’. In June 2017 Mrs U said; ‘we would like to do the necessary to see if S would get and (sic) EHCP’. If the application had been made at this point, the very earliest V could have got an EHCP was the end of September – this was extremely unlikely, on the balance of probabilities, to have stopped the original placement breaking down even if, as Mrs U said to me, it had ‘nearly’ been put in place by this time.
  3. As it was, in April 2018, the Council said it would not support V having an EHCP. This decision was appealable to tribunal. The Council issued an EHCP for V in January 2019, at which point Mrs U had appeal rights to SEND.
  4. Mrs U told me the Council suggested, at a drafting meeting, that V would need to be in mainstream education before she could be assessed. On the balance of probabilities this was a meeting held on 18 October 2018. The purpose of the meeting was to produce a draft ECHP and prior to the meeting an officer had produced a skeleton plan which was used as a starting point at the meeting. The conclusion of the meeting was that the draft plan was formulated and agreed on 7th November. As the meeting took place at the end of the EHC assessment period; the assessment had already taken place. There is no evidence of fault.

The Council failed to make the provision specified in the EHCP.

  1. The provision specified in the EHCP is primarily for when V is in formal education. This is clear in the latest EHCP even though Mrs U says it was not in the previous copy she had in November 2018.
  2. V is unhappy the EHCP does not detail the current situation of doing an online course at home and a GCSE English at a college. It reflects V is being electively home educated (the online course) and has made ‘own arrangements’ for education rather than studying full time in formal education. This is not fault. Mrs U suggests V needs a plan to transition to a formal setting; this is something to ask providers if Mrs U and V wish V to return in the next academic year. If Mrs U wanted a placement named, rather than for elective home education to be specified, she would need to ask the Council or go to the SEND tribunal.
  3. Mrs U says the Council may not have used V’s dyslexia diagnosis because of suggestions it was ‘out of date’ even though it was not. As it is referred to in the EHCP I consider it was used.

The Council’s consideration of the complaints

  1. As I have not found the Council at fault in the substantive matters of this complaint, I am not considering its complaint handling.

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Final decision

  1. There is no evidence of Council fault and I have completed my investigation on that basis.

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Investigator's decision on behalf of the Ombudsman

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