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Torbay Council (20 012 769)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 10 Sep 2021

The Ombudsman's final decision:

Summary: Miss X complained the Council has failed to carry out all the actions agreed to remedy her earlier complaint to the Ombudsman. The Council’s failure to make the provision in Miss Y’s EHC Plan or pay the agreed sum while this provision was not in place amounts to fault. This fault has caused Miss Y and Miss X an injustice.

The complaint

  1. The complainant, whom I shall refer to as Miss X complains the Council has failed to carry out all the actions agreed to remedy her earlier complaint to the Ombudsman. The Council had agreed to make the provision stated in Miss Y’s EHC plan or pay £100 for each month from January 2019 while GCSE ICT tuition remained on Miss Y’s EHC Plan if the Council had not found an alternative tutor.
  2. Miss X states the Council tried to cease Miss Y’s EHC Plan, but the Tribunal order it should be maintained. She complains Miss Y is still not receiving the GCSE ICT tuition provision set out in her EHC Plan as the Council has not yet advertised for a tutor. Miss X also complains the Council made the agreed payments in January and February 2019 but has not made any further payments.

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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. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
  4. 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)
  5. 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. 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; 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

Education, Health and Care (EHC) plan

  1. A 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. The EHC plan is set out in sections. We cannot direct changes to the sections about education. Only the tribunal can do this.
  2. The Council is responsible for making sure that 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.

What happened here

  1. Miss X’s daughter, Miss Y is a young adult. She has an EHC Plan dating from September 2017 that specifies three hours of GCSE ICT tuition per week. Miss X has previously complained to the Ombudsman about the Council’s failure to provide this tuition. This complaint was concluded on the basis the Council was at fault in not making this provision or amending Miss Y’s EHC Plan to remove it.
  2. The Council agreed to make this provision or pay Miss Y £100 for each month from January 2019 where this tuition remains on her EHC Plan, and the Council has not found a tutor.
  3. As the Council had not found a tutor, it paid Miss Y £100 for January and February 2019. In March 2019 it then wrote to Miss Y proposing to cease her EHC Plan. It advised that unless it heard from Miss Y it would assume she no longer required support and would cease the plan with effect from 22 March 2019. The Council states Miss Y did not respond, and it wrote to her on 24 May 2019 confirming it was no longer maintaining her plan, which ceased that day.
  4. Miss X appealed to the Tribunal against the decision to cease to maintain Miss Y’s EHC Plan. The appeal process took much longer than usual. The tribunal initially dismissed the appeal, then set this decision aside. A new hearing was arranged, but postponed due to COVID 19 restrictions and the tribunal then decided it would determine the appeal without a hearing. The tribunal issued a decision in October 2020 allowing the appeal and ordering the Council to maintain Miss Y’s EHC Plan.
  5. Miss X complains that despite the tribunal’s ruling, the Council has not provided the tuition set out in Miss Y’s EHC Plan. She states it has not advertised for a tutor or arranged an annual review of Miss Y’s plan. Nor has it made any further payments to recognise Miss Y is not receiving the tuition.
  6. In response to my enquiries the Council states it ceased the £100 monthly payments in March 2019, when it ceased Miss Y’s EHC Plan. The Council did not reinstate the payments when Miss X appealed to the tribunal as it was for the tribunal to establish whether the decision to cease the EHC Plan would be upheld.
  7. The Council accepts that when the tribunal ordered the Council to maintain the EHC Plan, it should have paid the backdated payments. It states it did not make these payments as due to the COVID-19 restrictions, it was unsure of the exact amount due. Miss X will only consider face to face tuition at home. This would not have been possible due to the COVID -19 restrictions and the family shielding.
  8. The Council states there has also been a delay in recruiting a tutor due to Miss Y’s specific requirements. The Council states Miss X has stipulated that Miss Y can only work face to face with a tutor who has Qualified Teacher Status (QTS) and the tuition must take place in the family home. The Council states it contacted local and national tuition agencies on a monthly basis, but none were able to provide a QTS tutor and face to face tuition.
  9. Although a QTS tutor would be preferable, the Council states that as exhaustive attempts have failed to secure this, it would consider seeking face to face tuition from a skilled ICT tutor who does not have QTS. The Council has also offered Miss X and Miss Y a personal budget to secure face to face ICT tuition they would be satisfied with, but they have declined. The Council states it has not advertised for a tutor as it feels the EHC Plan needs to be amended to better reflect Miss Y’s needs. It notes the EHC Plan does not stipulate that tuition needs to be face to face or take place in Miss Y’s home.
  10. The Council states it sent Miss X and Miss Y an invitation to an annual review in December 2020, but they are unable to attend virtual meetings. An officer made a doorstep visit in January 2021 and began to gather evidence for amending the EHC Plan. Miss X and Miss Y have since annotated the current EHC Plan and provided details of Miss Y’s GP to allow the Council to obtain up to date medical information. The Council has since contacted Miss X to arrange an annual review meeting, which can be a socially distanced doorstep meeting if Miss X and Miss Y request this.

Analysis

  1. The Council states it only made two payments to Miss Y as it ceased the EHC Plan in March 2019. However, the records show that although it proposed ceasing the plan in March, the Council did not cease the plan until May 2019. As Miss Y was not receiving the tuition set out in the plan, the Council should also have paid Miss Y £100 in March and April 2019.
  2. Miss X has exercised her right of appeal to SEND so we have limited jurisdiction to investigate this matter. The Ombudsman has no jurisdiction where a parent has appealed to the SEN Tribunal from the date the appeal right arises until the appeal is completed. We can look at the period before the EHC plan is issued, and after the appeal decision. But any loss of education or fault during the period from the date the appeal right arises until the appeal is completed, which is a consequence of the decision being appealed, is outside the Ombudsman’s jurisdiction. This is the case even though the Tribunal has no power to provide a remedy for the lost education. I am therefore unable to consider Miss X’s complaint about Miss Y’s ongoing missed provision or payments between May 2019 and October 2020.
  3. I note however the Council accepts it should have made backdated payments following the tribunal’s decision. The fact that we are unable to consider this period does not preclude the Council from making any payments due between May 2019 and October 2020.
  4. The Council’s failure to make the provision specified in Miss Y’s EHC Plan after the tribunal’s decision in October 2020 was fault. I recognise there were still some COVID-19 restrictions in place in late 2020, but temporary changes to the law had expired and the absolute duty to arrange SEN provision had been reinstated.
  5. While it may not be specified in her EHC Plan, the Council was aware, and appears to accept, that Miss Y required face to face tuition at home. The Council was also aware Miss X and Miss Y were unable to manage a personal budget or arrange tuition themselves. If the Council was unable to find a tutor via an agency I would have expected it to advertise externally. I do not consider it appropriate to delay recruiting a tutor pending the annual review.
  6. I also recognise there was a further national lockdown in January and February 2021 which included an order to stay at home and the closure of educational establishments to most pupils. It is unlikely that face to face tuition would have been possible during this period. Since then, however there has been an easing of the restrictions and tuition could have resumed.
  7. In line with the agreed actions following Miss X’s previous complaint, I consider the Council should also have paid Miss Y £100 in November and December 2020, and each month between March and July 2021 in recognition of the failure to provide the ICT tuition. The failure to do so is fault.

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Agreed action

  1. The Council has agreed to
    • apologise to Miss Y for failing to make the provision in her EHC Plan and not paying her the agreed £100 each month while this provision was not in place;
    • pay Miss Y £900 for the missed ICT tuition in March and April 2019, November, and December 2020 and from March to July 2021;
    • either make the provision stated on Miss Y’s EHC Plan or pay her a further £100 for each month from September 2021 while the provision remains on her EHC Plan if the Council has not found an alternative tutor;
    • apologise to Miss X and pay her £100 in recognition of the time and trouble she has been put to in having to return to us for further assistance.
  2. The Council should take this action within one month of the final decision on this complaint.

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Final decision

  1. The Council’s failure to make the provision in Miss Y’s EHC Plan or pay the agreed sum while this provision was not in place amounts to fault. This fault has caused Miss Y and Miss X an injustice.

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Investigator's decision on behalf of the Ombudsman

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