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Birmingham City Council (20 012 611)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 13 Dec 2021

The Ombudsman's final decision:

Summary: Ms B complained about the Council’s handling of her son’s education, health, and care (EHC) plan annual review, and that it did not comply with the SEND tribunal’s orders. She also complained the Council did not respond to her complaints. Ms B said the Council’s failures negatively affected her son’s mental health. We found fault with the Council causing injustice. The Council agreed to take action to remedy this injustice.

The complaint

  1. The complainant, who I shall refer to as Ms B, complained:
    • about the Council’s administration of her son C’s education, health, and care (EHC) plan;
    • the Council’s actions during an annual review meeting;
    • the Council did not secure social care, speech and language, occupational therapy and literacy provision;
    • the Council did not comply with the SEND tribunal’s orders;
    • the Council did not consider Ms B’s request for a personal budget;
    • she had to commission an educational psychologist report;
    • the Special Educational Needs and Disability Information, Advice and Support Service (SENDIASS) was not independent; and
    • the Council did not respond to her complaints.
  2. Ms B also complained about the Council’s actions during the SEND tribunal and that it named School 2 in C’s July 2021 EHC plan.
  3. Ms B said the Council’s failures negatively affected her son’s mental health. She said she was put to time and trouble trying to get the Council to fulfil its statutory duties and this caused her frustration.

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What I have investigated

  1. I have considered this complaint from November 2019 to July 2021. In August 2021, Ms B appealed to the SEND tribunal.
  2. I investigated the Council’s management of Ms B’s son’s education, health, and care (EHC) plan and the Council’s response to Ms B’s complaints.
  3. I did not investigate:
    • whether the Council secured the provision in section F of C’s EHC plan. This included speech and language, occupational therapy, and literacy provision. This is a new complaint. The Council has not had an opportunity to carry out its own complaint investigation.
    • whether the Council secured the social care provision in section H1 and H2 of C’s EHC plan or offered a personal budget. Birmingham Children’s Trust are investigating Ms B’s complaint under the statutory children’s complaint procedure. We will not consider this complaint until the Trust has finished its investigation.
    • the Council’s decision to name School 2 in section I of C’s 2021 EHC plan. Ms B is appealing this decision at the SEND tribunal.
    • the Council’s or SENDIASS’s actions during the SEND tribunal. Ms B had the opportunity to raise any issues during the tribunal.

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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. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
  3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  4. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
  5. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. (Local Government Act 1974, section 26(5))
  6. 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:
    • Ms B’s complaint and the information she provided;
    • documents supplied by the Council;
    • relevant legislation and guidelines; and
    • the Council’s policies and procedures.
  2. Ms B and the Council commented on a draft decision. I considered their comments before making my final decision.

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What I found

Legislation and Guidance

EHC plans

  1. A child with special educational needs may have an EHC plan. This sets out the child’s needs and what arrangements should be made to meet them. Part 3 of the Children and Families Act 2014, the Special Educational Needs and Disability Regulations 2014 and the SEND code of practice: 0 to 25 years give council’s information about its duties.
  2. The EHC plan is in sections which include:
    • Section B: The child or young person’s special educational needs.
    • Section D: The child or young person’s social care needs which are related to their SEN or to a disability.
    • Section E: The outcomes sought for the child or the young person.
    • Section F: The special educational provision needed by the child or the young person.
    • Section I: The name and type of the school, post-16 institution or other institution to be attended by the child or young person and the type of that institution.
    • Section H2: Any other social care provision reasonably required by the learning difficulties or disabilities which result in the child or young person having SEN.
  3. We cannot direct changes to the sections about education or name a different school. Only the SEND tribunal can do this. In an extended appeal, the tribunal can also make non-binding recommendations about health and social care aspects of EHC plans, provided those appeals also include education elements.
  4. Where the SEND tribunal orders a council to amend an EHC plan, it must do it within 5 weeks of the order.
  5. EHC plans should be reviewed by the council at a minimum every 12 months. For young people moving from secondary school to a post-16 institution or apprenticeship, the review and any amendments to the EHC plan – including specifying the post-16 provision and naming the institution – must be completed by the 31 March in the calendar year of the transfer.
  6. Within four weeks of the review meeting, the council must decide whether it proposes to keep the EHC plan as it is, amend the plan, or cease to maintain the plan, and notify the child’s parent or the young person and the school or other institution attended.
  7. Where the council proposes to amend an EHC plan, it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes.
  8. The parent or young person must have at least 15 days to comment and make representations on the proposed changes, including asking for a particular school or other institution be named in the EHC plan.
  9. Following representations 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 quickly as possible and within eight weeks of the original amendment notice.

Corporate complaint procedure

  1. The Council has a two-stage complaint procedure:
    • Stage 1: The Directorate that provided the service will investigate the complaint and respond within 15 working days.
    • Stage 2: The complaint will be looked at by an independent officer and the Council will respond to within 20 working days.

What happened

  1. This chronology includes key events in this case and does not cover everything that happened.
  2. C’s diagnoses include autism spectrum disorder and anxiety. In year 5 he moved from a mainstream school to School 1, an independent school that offered support for students diagnosed as having Asperger’s syndrome or high functioning autism. In September 2019, C was in year 11 at School 1.
  3. In November 2019, School 1 held an annual review for C. Ms B said C would need to move to a specialist post-16 residential placement and her preference was for School 2.
  4. The Council sent Ms B a notice of amendment in February 2020. It sent her a copy of C’s EHC plan with its proposed amendments.
  5. The Council issued a final amended EHC plan in April 2020. It named School 2 in section I and said this would be a day placement.
  6. Ms B appealed to the SEND tribunal in May 2020. She appealed sections B, F and I of C’s EHC plan. The appeal was registered as an extended appeal for recommendations about social care, section H2.
  7. C finished his placement at School 1 in June 2020 and started at School 2 in September 2020.
  8. In November 2020, Ms B complained to the Council about its conduct during the SEND tribunal. The Council said it would respond within 15 days.
  9. The final SEND tribunal hearing was held in December 2020. It issued its final decision the same month. The tribunal ordered the Council to amend section B, E and F of C’s plan. The tribunal also made recommendations about sections D and H2.
  10. The Council issued C’s amended final EHC plan in January 2021 following the SEND tribunal. Ms B told the Council there were errors in the plan. She asked the Council to amend and reissue the plan before C’s EHC plan review.
  11. School 2 held an EHC plan review in February 2021. The Council did not attend. Concerns were raised that C was struggling with the structure of the education provision and it was suggested he changed course. Ms B says she told attendees the provision in C’s EHC plan was not being delivered. Attendees recommended the Council amend C’s EHC plan.
  12. The Council issued a second amended final EHC plan in February 2021 following the SEND tribunal.
  13. The SEND tribunal issued an amended final decision order in February 2021. It clarified its recommendations for section H2 of C’s plan. Ms B asked the Council to update C’s EHC plan with this information.
  14. Ms B complained to the Council about the management of C’s November 2020 annual review. She was unhappy the Council did not accept the meeting’s recommendation that C needed a residential placement. She also complained the Council did not assess C’s social care needs when she asked it to. The Council responded in February 2021:
    • It accepted it should have held C’s 2019 review earlier because he was moving from secondary school to post-16 provision. It said going forward it would hold these reviews in the autumn term.
    • The Council explained it was standard practice to delegate organisation of annual reviews to school. It advised it could not comment on School 1’s actions.
    • It advised it does not have to accept recommendations from an annual review.
    • It told her how to ask for a personal budget for C.
    • It also addressed the complaint she made in November 2020 about the Council’s actions during the SEND tribunal.
  15. In March 2021, Ms B asked the Council to escalate her complaint to stage two of its complaint procedure. The Council responded in April 2021.
    • The Council apologised for the delays in its complaint procedure. It advised there had been a change of personnel and this should not happen again.
    • The Council told Ms B although it delegated responsibility for EHC plan review to schools, it remained responsible. It accepted it did not fulfil its duties regarding the EHC plan review and apologised. It said it would remind School 1 of its duties.
    • It explained the decision-making group considered all the evidence available, including the minutes of the review before it made its final decision whether to maintain, amend or cease the plan. It told Ms B these decisions came with a right of appeal.
    • It told Ms B it could not comment on the actions of Birmingham Children’s Trust.
    • It also addressed the complaint she made in November 2020 about the Council’s actions during the SEND tribunal.
  16. The Council issued a third amended final EHC plan in April 2021.
  17. In May 2021, Ms B complained the Council had not issued a notice to amend C’s EHC plan following his annual review in February 2021. The Council issued an amendment notice and an amended EHC plan. The Council gave Ms B 15 days to comment.
  18. Forward Think Birmingham, the city’s mental health service for children and young people, asked the Council to hold an emergency EHC plan review for C. It said C’s mental health was worsening. C’s psychologist’s report said C had not received the support he needed at School 2 and alternative placements should be considered.
  19. School 2 held an emergency EHC plan review in June 2021. Attendees agreed School 2 was not meeting C’s needs. School 2 confirmed C’s placement was no longer suitable. Ms B and C expressed a preference for School 3, a specialist education provider. Ms B said she would like a new placement to start in September 2021.
  20. Following the emergency review meeting the Council consulted with the professional’s involved with C about the content of his amended EHC plan. School 2 told the Council it was C’s last day at the school as it could not meet his needs.
  21. The Council responded to Ms B’s May complaint in June 2021. It accepted it delayed issuing the proposed amended EHCP and apologised. It said it would work with Ms B to confirm she was happy with the amendments and then finalise the plan.
  22. The Council issued an amended final EHC plan in July 2021. It named School 2 in section I. The Council said School 2 was a suitable setting and it could provide suitable provision for C. It added that it had a duty to use public funds efficiently and it took this into account when it named School 2.
  23. Professionals who attended the emergency EHC plan review contacted the Council to express their concern that C did not have a placement. They stressed the detrimental impact this was having on his mental health.
  24. In August 2021, Ms B appealed to the SEND tribunal against sections B, F and I. The appeal was registered as an extended appeal for recommendations about social care, section H2.

Analysis

  1. The Council issued a final amended EHC plan in April 2020. This should have been issued by 31 March 2020 because C was moving from secondary school to a post-16 institution. The Council delayed issuing the final amended EHC plan by four weeks, this was fault. This delay frustrated Ms B’s right of appeal to the SEND tribunal.
  2. The Council should have issued Cs amended final EHC plan five weeks after the SEND tribunal. The Council issued final amended EHC plans in January, February, April 2021. The plan issued in January 2021 contained errors; this was fault. The Council remedied the fault by issuing a revised amended final EHC plan in February 2021. The Council sought clarification from the SEND tribunal about the wording of section H2. The SEND tribunal gave this in February 2021. The Council should have issued a final amended EHC plan by the end of March 2021. The Council delayed issuing the plan by four weeks. This delay was fault and caused Ms B frustration as she had to repeatedly chase the Council.
  3. The Council should have issued a notice to amend four weeks after C’s February 2021 EHC plan review. Not doing so was fault. Once the Council has issued a notice to amend it has eight weeks to issue the final amended EHC plan. The Council should have issued the plan in May 2021, but it did not do this until July 2021. There was a delay of two months, which was fault. Ms B was put to time and trouble chasing the Council and the delay frustrated her right of appeal to the SEND tribunal.
  4. The Council accepted it did not fulfil its duties for C’s annual review in November 2020. This was fault and it affected Ms B’s ability to engage in the meeting. The Council apologised to Ms B and explained how it would ensure the problems she faced did not happen again. This was a suitable remedy.
  5. Ms B complained she had to pay for an educational psychologist report for C. The Council commissioned its own educational psychologist report. A parent can ask the SEN tribunal to order the Council to commission assessments if they think the one submitted is inadequate. It was Ms B’s choice to commission her own. The Council is not responsible for funding private reports commissioned by parents during a SEND tribunal appeal.
  6. There were delays in the Council’s complaint responses. It did not respond to Ms B’s November 2020 complaint until February 2021, a delay of two months. It delayed sending Ms B its stage two response by three weeks. It also delayed responding to her May 2021 complaint by three weeks. These delays were fault and caused Ms B distress and frustration.

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Agreed action

  1. Within one month of the final decision, the Council will:
    • Apologise to Ms B and C for the faults identified in this investigation.
    • Pay Ms B £200 for the time and trouble she was put to chasing the Council and the frustration this caused.
    • Pay Ms B £200 for frustrating her right of appeal to the SEND tribunal.
    • Issue guidance to staff involved in the EHC process about the statutory timescales for EHC plans.
  2. The Council should provide the Ombudsman with evidence these actions have been completed.

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Final decision

  1. I have completed my investigation and uphold Ms B’s complaint. Ms B was caused an injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.

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Parts of the complaint that I did not investigate

  1. I did not investigate whether the Council secured the provision in section F of C’s EHC plan. This included speech and language, occupational therapy, and literacy provision. This is a new complaint. The Council should have the opportunity to carry out its own complaint investigation first.
  2. I did not investigate whether the Council secured the social care provision in section H1 and H2 of C’s EHC plan or offered a personal budget. Birmingham Children’s Trust are investigating Ms B’s complaint under the statutory children’s complaint procedure. We will not consider this complaint until the Trust has finished its investigation.
  3. I did not investigate the Council’s decision to name School 2 in section I of C’s 2021 EHC plan. Ms B is appealing this decision at the SEND tribunal.
  4. I did not investigate the Council’s or SENDIASS’s actions during the SEND tribunal. Ms B had the opportunity to raise any issues during the tribunal.

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Investigator's decision on behalf of the Ombudsman

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