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Walsall Metropolitan Borough Council (20 008 282)

Category : Education > Special educational needs

Decision : Not upheld

Decision date : 15 Jul 2021

The Ombudsman's final decision:

Summary: Miss X complained about delays and errors in the EHC plan process. She complained the Council ignored her comments on the draft plan, lost her son, Mr Y’s medical records, and that the final plan contains incorrect information. Miss X also complained the Council wrongly treated her son as an adult and refused to correspond with her. There is no evidence of fault on the part of the Council in the way it has dealt with Mr Y’s EHC Plan. Nor is there evidence the Council has refused to communicate with Miss X or ignored her requests for reasonable adjustments.

The complaint

  1. The complainant, whom I shall refer to as Miss X complains about delays and errors in the EHC plan process. She complains the Council ignored her comments on the draft plan, lost her son Mr Y’s medical records, and that the final plan contains incorrect information.
  2. Miss X also complains the Council wrongly treated her son as an adult and refused to correspond with her, even though Mr Y was 17 and had confirmed Miss X was assisting him. Miss X complains the Council also ignored her requests for reasonable adjustments in it communication with her.

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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. 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. As part of the investigation, I have:
    • considered the complaint and the documents provided by Miss X;
    • made enquiries of the Council and considered the comments and documents the Council provided;
    • discussed the issues with Miss X; and
    • Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Key facts

  1. The Council issued an Education, Health and Care (EHC) Plan for Miss X’s son Mr Y in May 2020. Miss X disagreed with the plan and she and Mr Y attended mediation in September 2020, by which point Mr Y had received a diagnosis of autism. Miss X and Mr Y were supported in the mediation by a Special Educational Needs and Disabilities Information Advice and Support Service (SENDIASS) case worker. The Council agreed at mediation to make amendments and to issue a final amended plan by 23 October 2020.
  2. To enable the Council to do this, Miss X agreed to provide medical evidence of Mr Y’s diagnosis of autism by 24 September 2020. Miss X would normally hand deliver any documents to the Council offices, but this was not possible due to the COVID-19 restrictions which required officers to work remotely. Miss X states she repeatedly posted the documentation to the Council, including by recorded delivery, but the Council has no trace of receiving it.
  3. Miss X was also unhappy with comments made by Speech and Language Therapy team (SALT) which were included in the EHC plan. She contacted SALT who then asked the Council, in October 2020, to remove their report from the EHC Plan.
  4. To try and progress the matter, the Council contacted both Walsall and Wolverhampton NHS Trusts in early November 2020 requesting confirmation of Y’s diagnosis. The Trusts confirmed they had not made the diagnosis.
  5. The Council finalised the amendments and sent the proposed EHC Plan to Miss X by email on 19 November 2020. Miss X was unhappy the plan did not refer to Mr Y’s autism diagnosis. She also expressed concerns about receiving the plan by email as she was unable to read it. The Council therefore sent a copy in the post.
  6. Mr Y also contacted the Council on 19 November 2020 and submitted details of his diagnosis via email. He asked the Council to post him a copy of the EHC Plan.
  7. The Council wrote to Mr Y confirming it had also sent the plan to Miss X. It stated that as Mr Y was an adult it would be working directly with him and asked whether he would like to receive future paperwork by post or email. And whether he would prefer contact by telephone or email. The Council also asked Mr Y to confirm whether he would like Miss X copied into future communications. I have not received any evidence of Mr Y’s response to these queries.
  8. The Council also suggested that SENDIASS could support Mr Y with issues around his EHC Plan if needed. It provided contact details of the person who supports young adults.
  9. Miss X was unhappy with the delays and made a formal complaint. The Council’s response apologised for the delay and inconvenience. It noted it had previously explained that it was unable to issue the final EHC Plan by 23 October 2020 as it had not received a copy of Y’s diagnosis. The EHC Plan is an evidence based document and the Council can only make changes based on the evidence which has been provide.
  10. The Council advised Miss X it could not locate the documents she said she had sent and had no records of receiving them. It confirmed it had now received a copy of the diagnosis via email and had added this to Mr Y’s records. The Council also noted it had sent the proposed amendments to the EHC Plan to Miss X on 19 November 2020.
  11. In addition, the Council noted Miss X was being supported by SENDIASS, and that Mr Y was being supported by a youth engagement worker within SENDIASS. As Mr Y was of adult age and had mental capacity, the Council considered it was appropriate to communicate with him directly. It would however inform Miss X of matters relating to his EHC Plan as appropriate.
  12. Miss X contacted her SENDIASS case worker who provided information on support for young people and confirmed they could support Miss X and Mr Y with the EHC Plan. The case worker also provided information on EHC plans for young people from 16 years. They noted Mr Y had previously told the Council he also wanted Miss X to receive the information and suggested he send an email to the Council confirming this.
  13. Miss X responded to the SENDIASS case worker and copied in the Council. She stated the Council was aware she was Mr Y’s parent and advocate and that they had informed the Council of this at every meeting and mediation. She questioned who the youth engagement worker was and complained the Council was not supporting her or Mr Y. She also noted they had still not received the final EHC Plan.
  14. The Council issued the final EHC plan on 8 January 2021. The records state it was sent to Mr Y, by post.
  15. As Miss X remains unhappy with the way the Council has dealt with this matter, she has asked the Ombudsman to investigate her complaint. In response to my enquiries the Council has reiterated it was unable to finalise the EHC Plan until it had evidence of Mr Y’s diagnosis of autism. The Council states it has checked with the relevant teams but has been unable to locate the copies Miss X states she has posted. The Council states Miss X has not provided the tracking details for the documents sent recorded delivery and signed for. It states it did not receive the required information until Y’s email of 19 November 2020.
  16. Miss X was unhappy with information provided by SALT, which was included in the EHC Plan. SALT asked the Council to remove this information. It is no longer included in the final EHC Plan.
  17. As Mr Y is a young person with mental capacity the Council considers it appropriate to communicate directly with him. The Council states it has provided Mr Y with the information regarding advocacy and SENDIASS, which included the direct contact details of the youth engagement worker.
  18. The Council states Mr Y did not respond to its query about how he would like the Council to communicate, or whether he would like Miss X to be copied in on correspondence. It states it has therefore continued to communicate with Mr Y and Miss X in accordance with Miss X’s request. The Council states it has no record of Mr Y asking that it communicate with Miss X on Mr Y’s behalf.
  19. The Council states it has communicated with Miss X and Mr Y via email. It was aware of Miss X and Mr Y’s learning difficulties, but until 19 November 2020 had no record that email was an inappropriate or inaccessible form of communication. The Council notes that Miss X regularly communicates with the Council and other agencies via email.
  20. In response to the draft decision Miss X disputes that Mr Y was supported by a youth worker. She states they have not received consistent support from anyone. Their support worker at SENDIASS repeatedly changed as the management of the service kept changing. Miss X states Mr Y does not read or reply to any emails he receives, and that this was explained to the Council during mediation. She also maintains the Council refused to post a copy of the EHC plan to her new address and would only send it by email.

Analysis

  1. The outcome from the mediation sets out the changes to be made to the EHC Plan. It states that Miss X will post confirmation of Mr Y’s autistic spectrum disorder to the Council by 24 September 2020, and the Council will then consider whether it should amend section C (Health Care needs) and whether it should add additional provision to section F (Special Educational Provision required). The Council will then issue a final plan by 23 October 2020.
  2. Miss X states she posted the information four times and does not accept that the Council did not receive it. She has provided a proof of postage dated 21 September for a letter addressed to the Council’s offices. A check on the Royal Mail website for the tracking reference for this item shows it was received at a post office but does not record that it has been delivered or signed for.
  3. It is unclear what happened to Miss X’s correspondence, or why the Council did not receive it, but this does not appear to be due to fault by the Council. The Council’s records show it checked the incoming post but could not locate any documents for Mr Y.
  4. The delay in receiving confirmation of Mr Y’s diagnosis will inevitably have delayed the issue of the final plan. But we would not expect the Council to include reference to the diagnosis or consider additional provision without the necessary evidence. The Council tried to verify the diagnosis directly with the NHS but was unable to.
  5. The mediation outcome does not refer to Miss X’s concerns about inaccurate information in the SALT report. But at her request this has been removed from the final EHC Plan.
  6. Miss X is unhappy the Council corresponds directly with Mr Y rather than via her. Mr Y was 17 at the time the Council issued the final decision. The Children and Families Act 2014 allows young people (between 16 and 25) more of a say about their education, although parents and other family members can still be involved. It is therefore correct that the Council ensures Mr Y is involved in EHC plan process.
  7. There is no evidence the Council has refused to communicate with Miss X. The Council has primarily corresponded with Miss X regarding the EHC Plan and in November 2020 asked Mr Y whether he wanted it to continue to send Miss X copy correspondence. There is no evidence Mr Y responded, or that he asked the Council to correspond with Miss X on his behalf.
  8. As the Council has continued to correspond with Miss X we would expect it to consider any reasonable adjustments. The Council states it was unaware until November 2019 that communication via email was inappropriate or inaccessible for Miss X. However, I note the mediation outcome document state that the Council will post the EHC Plan to Miss X as well as send by email.
  9. This suggests there has been an earlier discussion regarding how the Council will communicate with Miss X. The documentation provided suggests the Council has primarily contacted Miss X by email, often in response to her own emails. It has however also sent the EHC Plans by post. I would recommend the Council clarifies with Miss X and Mr Y any reasonable adjustments they would like the Council to make in its communication with them.

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Final decision

  1. There is no evidence of fault in the way the Council has dealt with Mr Y’s EHC Plan. Nor is there evidence the Council has refused to communicate with Miss X or ignored her requests for reasonable adjustments.

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Investigator's decision on behalf of the Ombudsman

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