Derby City Council (20 004 972)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 31 Mar 2021

The Ombudsman's final decision:

Summary: Mrs X complained the Council repeatedly delayed in finalising her son, Mr Y’s, Educational Health and Care Plan which led to him missing out on provision he needed to progress at school. Mrs X also complained the Council did not plan for Mr Y’s transition from school to adulthood. Mrs X said the Council’s actions have negatively affected Mr Y’s educational development and caused her and her family stress and upset. The Council was at fault when it delayed completing the Plan within the required statutory timescales, leading to frustration for Mrs X. The Council has agreed to provide an apology and take action to ensure it keeps to statutory timescales in future.

The complaint

  1. Mrs X complained the Council significantly delayed in finalising her son, Mr Y’s Education, Health and Care Plan (EHC Plan) for several years. Mrs X also said the Council did not plan for Mr Y’s transition from school to adulthood. She said this matter has negatively impacted Mr Y’s development and caused her and her family stress and upset.

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The Ombudsman’s role and powers

  1. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
  2. 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)
  3. 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)
  4. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

  1. I contacted Mrs X and discussed her view of the complaint.
  2. I considered the Council’s submission which included the complaint correspondence, complaint form and Mr Y’s EHC Plans.
  3. I wrote to Mrs X and the Council with my draft decision and gave them an opportunity to comment. I considered their comments before I made a final decision.

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What I found

Education, Health and Care Plan

  1. A child with special educational needs or disabilities (SEND) may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
  2. Councils must review EHC Plans at least yearly. They should decide whether to maintain, amend or discontinue the plan within four weeks of the annual review. If the Council decides an amendment is necessary, it must issue a final amended plan within eight weeks of the decision.
  3. The Special Educational Needs and Disability Code (the Code) states if a council decides to amend the Plan, it should start the process of amendment “without delay,” so there are no set timescales here but we would consider whether actions were ‘without delay.’ (SEN Code para 9.176)
  4. The council must give the parent or young person at least 15 calendar days to comment on the proposed changes. (s22 (2)(c) SEND Regulations 2014)
  5. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC Plan as soon as practicable and within eight weeks of the date it sent the EHC Plan and proposed amendments to the parents. (s22 (3) & (4) SEND Regulations 2014)
  6. If the council decides not to make the amendments, it must notify the child’s parent or the young person, explaining why, within the same time limit. Councils must ensure a child’s parent or the young person is fully included in the assessment from the start and made aware of opportunities to offer views and information
  7. The Council is responsible for making sure arrangements specified in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.
  8. The Council should monitor the provision and support needs of the child regularly and carry out a review of the plan on an annual basis.

Preparing for Adulthood

  1. Councils must ensure that the EHC Plan includes a focus on preparing for adulthood at each review after Year 9. Planning must be centered around the individual and explore the child or young person’s aspirations and abilities, what they want to be able to do when they leave post-16 education or training and the support they need to achieve their goals.
  2. Transition planning must be built into the revised EHC Plan and should result in clear outcomes being agreed that are ambitious and will prepare young people for adulthood.
  3. Preparing for adulthood planning in the review of the EHC Plan should include support to prepare for higher education and/or employment. It should also include support to prepare for independent living.
  4. The Council’s Preparing for Adulthood (PFA) team works with young people with diagnosed learning disabilities who qualify for support under the Care Act 2014.
  5. The PFA team works closely with families and professionals in meeting the young person’s individual needs.
  6. Mr Y has been known to the Council’s PFA team for some time.

What happened

Background

  1. Mrs X’s son Mr Y is due to leave secondary school. He was diagnosed with autism and profound deafness when he was very young.
  2. Mrs X has been unhappy with the Council’s management of Mr Y’s EHC Plan for several years.

Mrs X’s Complaint

  1. In February 2019, the Council held an annual review of Mr Y’s EHC Plan. Mrs X and staff from Mr Y’s school were in attendance. The Council decided to amend Mr Y’s Plan and issued a proposed amended EHC Plan in April 2019. The plan set out special educational provision Mr Y should receive which included:
    • An educational environment where sign language was used as the first language and Mr Y was taught by adults skilled in British Sign Language
    • An educational environment where the emphasis was on visual communication and staff followed a support programme to support Mr Y and manage his behaviour
    • Mr Y to have opportunities to develop social communications with his peers.
    • Mr Y’s needs to be regularly reviewed by all adults involved with his education.
    • Mr Y to be taught in an acoustically treated room with minimal auditory and visual distractions
    • Mr Y to be taught by a professional who specialises in teaching pupils with autism
  2. The Plan stated its aim was to help Mr Y improve his academic development and social interactions.
  3. Mrs X was unhappy with the draft EHC Plan and told the Council it was not comprehensive enough. The Council issued further amended EHC Plans in April and May 2019. The Plans detailed further provision recommended in an Occupational Therapist assessment Mrs X privately commissioned. Mrs X was not happy with the drafts because she felt they were not detailed enough and did not contain enough information regarding the Council’s plans to support Mr Y once he had left secondary school.
  4. The Council sent Mrs X an amended Plan in December 2019. Mrs X contacted the Council in December 2019 and said she was unhappy the Council had failed to finalise Mr Y’s EHC Plan despite holding the annual review in February 2019. The Council acknowledged Mrs X’s unhappiness and advised it would get back to her.
  5. In January 2020, the Council sent Mrs X a further amended EHC Plan. Mrs X contacted the Council and again said she was unhappy the Council had failed to include plans for Mr Y’s post 16 education.
  6. The Council said it had taken Mrs X’s unhappiness with Mr Y’s Plan on board. The Council said it gave Mrs X the opportunity to comment on the Plan despite the 15 day response time elapsing and this had contributed to the delay. The Council conceded it had failed to include plans for Mr Y’s development after leaving school in his EHC Plan but said it had contacted Mr Y’s school to discuss how to address this and it would issue a further amended EHC Plan with this in mind.
  7. The Council issued an amended EHC Plan in July 2020. Mrs X contacted the Council to advise she was still unhappy with its content. She said the Council had again failed to include plans for Mr Y’s post 16 education and she was concerned Mr Y’s progress at school had been affected by the Council’s failure to finalise his EHC Plan.
  8. The Council responded to Mrs X the next day and agreed it had taken a long time to finalise Y’s EHC Plan. The Council said it was unsure of the amendments Mrs X wanted made and this was the reason it had yet to finalise the draft. The Council asked Mrs X if she would like a meeting to discuss the situation.
  9. Mrs X declined this offer as she had met with the Council previously and did not feel it achieved anything. Mrs X told the Council she was unhappy she had to pay for a private Occupational Therapist assessment and the Council did not include all the information gained from this in Mr Y’s EHC Plan. Mrs X again said she was unhappy the Council had failed to include outcomes for Mr Y’s post 16 education and indicated that she was considering referring the matter to the Ombudsman.
  10. The Council responded to Mrs X at Stage 1 of its complaints process in early August 2020. The Council apologised for failing to address the outstanding issues Mrs X had complained about. The Council acknowledged the delay in producing a finalised EHC Plan and the impact this had on Mr Y. The Council agreed there had been a lack of preparation for Mr Y’s post-secondary school education but said it had included a section regarding this in the draft amended EHC Plan. The Council said it could not comment on Mrs X’s assertion that the lack of a final EHC Plan had created problems with the provision at Mr Y’s school. The Council concluded the letter by issuing a deadline of late August 2020 to collect any further comments from Mrs X and finalise Mr Y’s EHC Plan.
  11. The Council finalised Mr Y’s EHC Plan in early September 2020. The plan included specialist support for Mr Y’s autism and continued training for school staff regarding Mr Y’s needs. Mrs X contacted the Council to complain as she remained unhappy with the contents of the EHC Plan.
  12. The following week the Council responded to Mrs X’s complaint at Stage 2 of its complaints process. The Council said it had included changes suggested by Mrs X and objectives suggested by the PFA in Mr Y’s final amended EHC Plan. The Council said it would discuss implementation of the Plan with Mrs X and Mr Y’s school in late September 2020. The Council said it had also arranged a speech and language assessment for Mr Y and would review Mr Y’s EHC Plan as necessary following this assessment in the coming months. The Council concluded the letter by apologising for the delay in producing Mr Y’s EHC Plan.
  13. Mrs X complained to the Ombudsman.
  14. In response to the Ombudsman’s enquiries, the Council acknowledged it has amended Y’s EHC Plan three times since 2019 and failed to keep to statutory timescales in finalising the Plan. The Council said this was partly due to COVID-19. The Council said the delay has also been caused by Mrs X because she has disagreed with each version of the Plan it had put forward and the Council had had difficulty establishing what Mrs X was unhappy about.
  15. The Council said it has appointed extra staff and reviewed its annual review process to ensure it would adhere to the statutory required timescales in future.

My findings

  1. Mrs X complained the Council significantly delayed issuing Mr Y with a final EHC Plan which had a negative impact on him.
  2. Following an annual review meeting, a council must issue a decision letter within four weeks of holding the meeting. If amendments are required, the Code says councils must send the parent a copy of the proposed amendments “without delay.” Councils then have a maximum of eight further weeks after sending the copy of the amendments to issue the final amended EHC Plan.
  3. The Council was required to issue a finalised EHC plan within 8 weeks of sending Mrs X the proposed amended draft plan. I would therefore expect the Council to collect Mrs X’s views and finalise the Plan by July 2019, in line with the statutory guidelines. At this point it would have been open to Mrs X to appeal the contents of the Plan at tribunal. However, the Council delayed finalising the EHC Plan until August 2020 because Mrs X was not happy with the amended Plans it put forward. This is fault. Because of the Council’s actions, Mrs X has been denied the opportunity to appeal for several months and spent time chasing the Council. Whilst the Council has taken action to ensure it does not delay finalising future EHC Plans, I consider there is further action it should take to address the injustice caused to Mrs X.
  4. Part of Mrs X’s complaint is her belief that Mr Y lost out on provision he needed to progress at school because of the Council’s failure to finalise Mr Y’s EHC Plan. The law requires the Council to ensure Mr Y receives the provision set out in his Plan. I would expect the Council to continue to ensure Mr Y received the provision set out in his 2019 Plan whilst it was working to finalise his 2020 Plan. Having reviewed the evidence so far Mr Y continued to have access to the provision set out in his 2019 plan and so I cannot see that Mr Y has experienced an injustice due to this part of the complaint.
  5. The Council was required by law to carry out a review of Mr Y’s EHC Plan on an annual basis. Due to the Council’s delay it also failed to carry out an annual review within the required timescales in February 2020. This is fault. The Council was in consistent contact with Mrs X and the school throughout 2019 and 2020 with regards to reviewing Mr Y’s plan and so I cannot see any significant injustice caused by this fault.
  6. Mrs X complains the Council failed to make plans for Mr Y’s post 16 education. The Council was required to include plans for Mr Y’s development as he is in his last year at school. The evidence shows the Council amended the EHC Plan several times after Mrs X complained but did not include plans for Mr Y’s transition to adulthood until August 2020. This is fault. The Council has accepted fault regarding this part of Mrs X’s complaint. As the Council took this action prior to Mr Y’s departure from school I cannot see that Mr Y has sustained an injustice due to this fault.

Agreed action

  1. Within one month of the date of my decision the Council has agreed to issue Mrs X with an apology for the delay in finalising Y’s plan.
  2. Within three months of the date of my decision the Council has agreed to carry out a review of its annual review process over the last 12 months and submit a report to the relevant overview and scrutiny panel to ensure it keeps to statutory timescales in future.

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Final decision

  1. The Council was at fault when it unnecessarily delayed completing Y’s EHC Plan and failed to hold an annual review within statutory timescales. I have made recommendations to address the injustice this caused and the Council has agreed to them. I have therefore completed the investigation.

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Investigator's decision on behalf of the Ombudsman

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