Staffordshire County Council (19 016 655)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 23 Sep 2020

The Ombudsman's final decision:

Summary: Mrs C and Mr D complain the Council delayed issuing an Education, Health and Care Plan for Mr D following an Annual Review in November 2018 and that it also failed to provide education to Mr D when his school said it could not meet his needs. Mrs C said the lack of education and the need to chase the Council at each stage caused injustice. There is evidence of fault in Mr D not having his special educational needs met and in the time and trouble Mrs C was put to over this time. The Council has agreed to apologise and make an appropriate payment. It will also look at its procedures.

The complaint

  1. The complainants, whom I have called Mrs C and Mr D complain that:
      1. the Council failed to properly plan for Mr D’s transition post-16;
      2. The Council delayed issuing an amended Education, Health and Care Plan (EHCP) (or saying it was ceasing to maintain it) following an annual review on 21 November 2018; and,
      3. The Council failed to provide education after Mr D was effectively permanently excluded from his special school on 8 March 2019 after he assaulted a fellow pupil.
  2. I am also considering the Council’s complaints handling.

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What I have investigated

  1. I have investigated points b) and c) of the complaint. I have not investigated point a) as planning for transition would have begun when Mr D was in Year 9, which is too long ago for me to be able to investigate robustly.

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The Ombudsman’s role and powers

  1. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  2. 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)
  3. 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)
  4. 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.

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How I considered this complaint

  1. I considered the information provided by Mrs C with the complaint and I made enquiries with the Council and assessed its response. I sent Mrs C and the Council a copy of my draft decision in order to take any comments they made into account before issuing a decision.

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What I found

Background

  1. Mr D was diagnosed with autistic spectrum disorder in 2011. In 2017 this was updated to include high levels of anxiety with oppositional and defiant behaviour and demand avoidance. He has had an Education, Health and Care Plan since 23 February 2017. Mr D is now an adult and agreed that his mother, Mrs C, could make a complaint that was also on his behalf.
  2. Mr D previously attended a special school, School A, which said at the annual review in 2018 it intended to end his placement at the end of March 2019. It told the Council in January 2019 it was going to end the placement at the beginning of March instead.

The Council delayed issuing an amended Education, Health and Care Plan (EHCP) (or saying it was ceasing to maintain it) following an annual review on 21 November 2018.

  1. The Council has accepted it received the information from the school the day after Mr D’s annual review. It did not send out information to Mrs C until January 2019. This is fault and Mrs C was caused time and trouble trying to find out what was happening. The Council has told me this delay was caused by administrative oversight and that there have been no further examples of such lack of oversight. As such, I will not make any practice suggestions here.
  2. The Council subsequently agreed to make changes to Mr D’s EHCP. It said Mrs C would receive Mr D’s finalised EHCP in September 2019, then 28 February 2020. Mrs C did not receive this until June 2020. This is fault although Mr D’s provision did not change so there is no injustice to him from this fault. It did cause Mrs C time and trouble chasing the Council for this, however. The Council has provided no evidence to show it kept Mrs C informed through this time, which is also fault. It should consider how it might do this in the future.

The Council failed to provide education after Mr D was effectively permanently excluded from School A on 8 March 2019 after he assaulted a fellow pupil.

  1. When the placement ended, Mr D was not of compulsory school age. The Council has no duty to provide education to someone above compulsory school age although it must provide what is in a child’s EHCP in order to meet their special educational needs. I can see it consulted with different providers, which could not meet Mr D’s needs, and it wanted to know his views about his future, which was appropriate as he needed to be involved in decision-making. The Council did not provide Mr D with education until October 2019.
  2. Mr D missed out on provision for his special educational needs. On the balance of probabilities, once the other providers turned down Mr D for a place, it was going to take time to arrange provision although the Council had advance notice of the placement at School A ending. Also, any tutoring service would need to find a premises (Mrs C said she identified somewhere appropriate at an earlier stage and I have no reason to doubt this) and be assured of the tutors’ safety. Given the notice the Council had, it is not unreasonable to think the Council could have put provision in place by April 2019 rather than October 2019. This delay is fault and the Council should make a payment of £1000 for the five months Mr D’s SEN was not met.
  3. Mrs C also says Mr D did not receive enough education. The Council told her initially he would have ‘at least ten hours’. The Council then said it would request fifteen hours. He seems to have had, generally, thirteen hours of education, which was reduced to six hours and then reinstated to thirteen hours because it was not reviewed appropriately. As Mr D was not of compulsory school age, he did not have an automatic entitlement to full time education.
  4. Mr D’s attendance was low so I cannot say (even on the balance of probabilities) he would have chosen to engage for longer had he been given more education. Up until the end of July 2020, Mr D had managed to attend for only two complete weeks since the alternative provision began; once in May 2020 and once in July 2020. Now Mr C is eighteen, the Council is providing 6 hours of education but has asked for an attendance of 80% for this to continue. There is no injustice to Mr C for receiving part-time education nor can I say Mr D missed out on education.

Complaints handling

  1. Mrs C raised complaints about the Council’s actions. The Council received Mrs C’s complaint on 19 July 2019. It allocated the complaint to someone involved in the complaint and it was reallocated on 5 August 2019. The Council’s procedures say it can take fifteen working days to respond at Stage One; it responded on 23 August, which is within its timescales following the reallocation.
  2. It accepted a Stage Two complaint on 3 October 2019. It says this was due to be responded to on 6 November 2019. I can see no information about Stage Two on its website. I was unable to identify appropriate timescales. This is fault. The Council should consider adding details about this further stage on its website.
  3. The Council did not respond at Stage Two until 16 January 2020. This is fault and it caused time and trouble to Mrs C.

Agreed action

  1. For the Council to apologise for the fault identified in this statement within one month of the date of my decision.
  2. For the Council to make a payment of £1,000 to Mr D for the special needs provision he missed within three months.
  3. For the Council to make a payment of £300 for the substantial time and trouble experienced by Mrs C over the duration of the matters complained of within three months.
  4. For the Council to consider how to keep parents and guardians informed of the progress of EHCPs within three months.
  5. For the Council to consider how it might put details of Stage Two complaints on its website within three months.

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Final decision

  1. There is evidence of fault leading to injustice. Actions have been agreed to remedy the injustice.

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Parts of the complaint that I did not investigate

  1. I did not investigate Mrs C’s complaint about the failure to properly plan for Mr D’s transition to post-16 as this normally happens from when a child is in Year 9.

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Investigator's decision on behalf of the Ombudsman

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