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Bury Metropolitan Borough Council (20 012 308)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 10 Sep 2021

The Ombudsman's final decision:

Summary: Miss X complained the Council delayed reviewing and amending her son, Y’s Education, Health and Care plan in preparation for his transition to post-16 education. The Council was at fault for not providing a formal decision after reviewing Y’s E, Health and Care plan and not securing the provision it specified. The Council agreed to apologise for the delay and pay Y £2700 to recognise his loss of education and social development and the impact on his wellbeing.

The complaint

  1. Miss X complained the Council delayed reviewing and amending her son, Y’s Education, Health and Care (EHC) plan in preparation for his transition to post-16 education. Miss X said the delay meant Y did not have post-16 education in place for 15 weeks. Miss X stated this caused Y distress, uncertainty and loss of education and social opportunities.

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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. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
  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 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 read the documents provided by Miss X and discussed the complaint with her on the telephone.
  2. I read the documents provided by the Council.
  3. 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

Education, Health and Care (EHC) Plan

  1. A child or young person with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the young person’s needs and what arrangements should be made to meet them. This can include the support needed in school.
  2. The council is responsible for making sure arrangements for educational and social care provision specified in the EHC plan are put in place.
  3. The statutory process for assessing, producing, and reviewing EHC plans is set out in the SEND code of practice. It states the timescales for each part of the process which councils must keep to.
  4. Once there is an EHC plan in place the council must review it at least every 12 months. The annual review must consider the young person’s progress towards their goals and whether the plan still meets their needs. For young people who are transferring between secondary and post-16 education the review and any amendments must be completed by 31 March in the calendar year of the transfer.
  5. Councils must decide whether to maintain the EHC plan in its current form, amend it, or cease to maintain it within four weeks of the review meeting and inform the young person and parent of their decision. The decision notice must also provide the parent’s appeal rights against the decision made. Although there is no statutory timeframe for how long the council can take to make amendments and issue the final plan, the guidance says this should happen ‘without delay’.
  6. When a final EHC plan or an amended plan is issued the young person or parent has the right to appeal to the SEND tribunal. The tribunal can consider decisions made within the EHC plan including the educational setting named in the plan. The young person or parent has two months from the date of the plan to lodge their appeal.

What happened

  1. Y has special educational needs and an EHC plan.
  2. On 31 March 2020, when Y was in Year 11, the Council issued Y’s final amended EHC plan. The plan identified the provision Y required, including face to face support particularly at the beginning and end of each day. It also stated Y should have access to regular conversations with key staff members who should offer a consistent and nurturing approach. The plan named College G as Y’s post-16 provider from September 2020.
  3. In April, Miss X contacted the Council and raised concerns about Y’s ability to cope with the transition to College G named in his EHC plan. Miss X and Y visited a number of alternative providers but did not find any they considered were appropriate to meet Y’s needs.
  4. In May, Y’s school held a review. The notes from the meeting showed the school did not consider the provision in Y’s EHC plan needed amending. The school informed the Council of this outcome. The Council failed to issue Miss X with a decision notice informing her of this.
  5. Miss X continued to raise concerns about Y’s mental health, well being and education with the Council. In July, she suggested a virtual provider which specialised in teaching children with Y’s conditions. Miss X requested this again in August. Y also emailed the Council asking for support to find an appropriate provider.
  6. In September, Y did not attend College G named in his EHC plan and was, therefore, not in education. The Council attended a professionals meeting with Y, Miss X, a mental health worker, and an NHS representative. In the meeting they discussed Y’s deteriorating health and wellbeing. The Council’s notes recorded all parties agreed Y needed structure and routine.
  7. In October Miss X contacted the Council again and requested the virtual provider for Y and gave further details on Y’s deteriorating mental health. Miss X continued to contact the Council throughout October and November to raise her concerns for Y and request approval of the virtual provider.
  8. In November the mental health team organised another professionals meeting which the Council attended as did Miss X and Y. The Council stated a panel would consider Y’s request for the virtual provider the following week. This did not occur and Miss X contacted the Council again to request approval of the funding for the virtual provider.
  9. In December the Council approved funding for Y to attend the virtual provider which commenced in January 2021. The virtual provider was not able to provide some of the support outlined in Y’s plan including face to face interaction and individual conversations with students on a day-to-day basis.
  10. Miss X complained to the Council. She stated the Council had failed to issue Y’s EHC plan following the annual review in May 2020, Y had not been in education since September 2020 and the Council had failed to respond to her, and Y’s, communications.
  11. The Council responded five weeks later in January 2021. It apologised for the delay in issuing Y’s EHC plan following the annual review and the poor communication. It stated it would issue the EHC plan the following week, naming the virtual provider, and discussions were ongoing about an alternative setting for Y to attend.
  12. Dissatisfied with the Council’s response Miss X escalated her complaint to stage two. She highlighted inaccuracies in the Council’s initial response. Miss X also stated the Council’s response had minimised the poor communication and the impact on Y’s emotional and mental health and wellbeing.
  13. The Council responded in February offering further apologies and stated the EHC plan had now been issued. The Council officer stated he had written directly to Y to apologise for no one answering his email. The Council outlined key performance indicators it had introduced to improve services. This included:
    • acknowledgement of correspondence from families within 24 hours;
    • ‘keep in touch’ phone calls or emails with families for particular issues; and
    • a named SEN caseworker for each child or young person.
  14. Y did not receive a letter from the Council officer until Miss X contacted the Council again in March. Dissatisfied with the Council’s response Miss X complained to us. Miss X stated the Council’s response was insufficient to explain the impact on Y’s health, well being and access to education. She also stated the situation had not improved and communication was still extremely poor.
  15. In March 2021 the Council issued Y’s final amended EHC plan from the annual review in May 2020. The EHC plan named the virtual provider but there were no amendments to the provision as identified in the May 2020 review meeting. There has been no review of Y’s EHC plan since May 2020 to the date of this decision.
  16. In the Council’s response to my enquiries, it recognised a number of faults:
    • It delayed in issuing the decision notice and amended EHC plan for Y following the annual review in May 2020. This resulted in Y not receiving appropriate education between September 2020 and January 2021.
    • It has not provided Y an education in line with the provision set out in his EHC plan since January 2021 to date.
    • It has not responded to Miss X’s ongoing concerns about the lack of provision for Y detailed in his EHC plan.
  17. The Council offered an unreserved apology, a financial remedy of £2,700 to Y for missed education from September 2020 to the date of this decision and £300 to Miss X for delay, distress and frustration caused to her.

My findings

  1. Miss X became unhappy with College G named in Y’s EHC plan from April 2020 onwards. Because the Council issued Y’s final amended EHC plan was issued on 31 March 2020, she was still within the statutory timescales to appeal to the SEND Tribunal about the named provision in Y’s plan. If she had done so, she would have been able to request Y attended her preferred provider.
  2. Without a formal decision from the Council or the Tribunal that College G was unsuitable, in September 2020, Y had a placement which was deemed suitable. Although the decision not to attend was Y’s, ultimately, the Council still remained under a duty to secure the provision in his plan. The Council was therefore at fault.
  3. In May 2020, the Council held a review of Y’s EHC plan. Following this review, it should have issued a decision notice stating whether it intended to amend Y’s plan or keep it the same. Its failure to do so is fault.
  4. In January 2021, Y began to attend the virtual provider. However, because the virtual provider was unable to deliver all the support in Y’s EHC plan, the Council did not meet its duty to secure all the provision Y required. This is fault.
  5. The faults caused Y an injustice because he did not receive all the provision specified in his EHC plan from September 2020 to August 2021.
  6. During my investigation, the Council offered Y £2,700 to remedy the lack of provision from September 2020 to August 2021. This is suitable to remedy the injustice Y experienced because:
    • Miss X was offered her appeal rights;
    • Y was over 16 years of age and therefore the Council did not have a duty to provide an education under the Education Act; and
    • from January to August 2021, Y received some of the provision in his plan.
  7. The Council held Y’s last annual review in May 2020. The Council should have held and finalised the next annual review of Y’s EHC plan by May 2021. It has failed to do so and this is fault. As a result, it has caused Y and Miss X uncertainty and they have not been given the opportunity to discuss whether Y’s plan still meets his needs.
  8. Miss X made numerous contacts with the Council in order to resolve the matters. The Council’s response was insufficient and sporadic and it failed to respond to Miss X’s ongoing concerns. The Council’s poor communication was fault and caused Miss X unnecessary time and trouble.

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Agreed actions

  1. The Council has agreed to, within one month of the final decision:
    • Write to Y to apologise for the delay in finalising his EHC plan and its poor communication and recognise the impact of the lost educational and social opportunities on his mental health and emotional wellbeing.
    • Pay Y £2,700 to recognise the education and social opportunities he did not receive for the 15 school weeks between September 2020 and January 2021 and the 25 school weeks Y did not receive the provision specified in his EHC plan from January to August 2021. Y should use this money as he and Miss X see fit towards his education, social and emotional wellbeing and mental health; and
    • Pay Miss X £300 to recognise the distress and time and trouble caused to her by the delay and poor communication.
  2. Within six weeks of the date of the final decision the Council agreed to hold the annual review for Y’s EHC plan and provide Y and Miss X with its decision and their appeal rights. The Council will provide us with evidence it has done so.
  3. Within four months of this decision the Council agreed to provide us with evidence it is consistently applying the key performance indicators specified in its response to Miss X;
    • acknowledgement of correspondence from families within 24 hours;
    • ‘keep in touch’ phone calls or emails with families for particular issues; and
    • a named SEN caseworker for each child or young person

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Final decision

  1. I have completed my investigation. I have found fault leading to injustice and the Council has agreed to my recommendations to remedy the injustice the faults caused.

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Investigator's decision on behalf of the Ombudsman

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