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London Borough of Bexley (21 003 540)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 28 Apr 2022

The Ombudsman's final decision:

Summary: Miss X complained that the Council failed to make special educational provision for her adult son in line with his Education, Health and Care plan. She also complained that the Council failed to review her son’s Education, Health and Care plan, failed to provide onsite learning during COVID-19 lockdowns, and failed to provide work experience. Miss X said her son’s education suffered as a result. We find the Council at fault for failing to provide special educational provision and for failing to review the Education, Health and Care plan. To remedy the injustice caused, the Council will apologise to Miss X’s son, makes a payment to him, and provide additional speech and language therapy sessions.

The complaint

  1. The complainant, who I refer to here as Miss X, complains on behalf of her adult son, Mr B, that:
      1. the Council’s responses to Mr B’s anxiety and anxiety-induced absences were inadequate;
      2. the Council failed to make the provision set out in Mr B’s Education, Health and Care plan, with some provision not made at all and other provision either not made consistently or delayed;
      3. the Council did not carry out an annual review of Mr B’s Education, Health and Care plan in 2020;
      4. the Council did not provide Mr B with on-site provision during lockdown and he was told to participate in online classes. Miss X says Mr B had a legal right to attend in person and that on-site classes were made available to other students with special educational needs; and,
      5. the Council failed to provide work experience with one-to-one support as previously promised and has given Mr B no support to develop a career path.
  2. Miss X says Mr B’s education has suffered as a result. Miss X wants the Council to put in place the appropriate support and provision for Mr B.

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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 cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), 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. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
  5. 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.
  6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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How I considered this complaint

  1. Mr B has given written consent for his mother, Miss X, to represent this complaint on his behalf.
  2. I considered the information and documents provided by Miss X and the Council. Miss X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
  3. I considered the relevant legislation and statutory guidance, set out below. I considered the Ombudsman’s published guidance during COVID-19 (‘Good administrative practice during the response to Covid 19’). I also considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

  1. Under the Children and Families Act 2014, when an Education, Health and Care needs assessment is completed by a council and it shows a need for special educational provision, the local authority must prepare and maintain an Education, Health and Care (EHC) plan.
  2. An EHC plan sets out the child or young person’s needs and what arrangements should be made to meet them. Councils have a duty to make sure the child or young person gets the special educational provision set out in an EHC plan.
  3. Many young people with special educational needs complete their education at 19, meaning their EHC plan ceases. However, some young people need longer to complete their education and training.
  4. When a 19- to 25-year-old continues with an EHC plan, the council must review it at least annually.

What happened

  1. Miss X has an adult son, Mr B, who is now aged 21. Mr B has special educational needs. He has an Education, Health and Care (EHC) plan. Mr B’s EHC plan said he would get speech and language therapy (SALT), one-to-one support, input and reviews by an occupational therapist, cognitive behavioural therapy (CBT), and sensory circuits. The EHC plan also says there will be “support to help him transition into lessons using CBT support” due to Mr B’s anxiety.
  2. In September 2020, Mr B started a course at college. Due to his anxiety, Mr B was not able to continue to attend the course. A few weeks into the term, the college decided that a different course would suit Mr B better. With Mr B’s agreement, he transferred onto a different course (a traineeship course). This started in November.
  3. Miss X appealed the content of Mr B’s EHC plan at the SEND Tribunal.
  4. In January 2021, Miss X complained to the Council. She said Mr B’s first college course started in September without CBT and other provision in place, and that Mr B had become so anxious he had not been able to attend. Miss X said the Council did not provide any education to Mr B between September and November. Miss X also said Mr B was not receiving his special educational provision on the traineeship course.
  5. Miss X complained that the Council had questioned the provision set out in Mr B’s EHC plan by requesting medical information, that he had not been provided with onsite learning during lockdown, and that the Council had not completed an annual review of Mr B’s EHC plan in 2020.
  6. The Council accepted it was at fault. It offered Mr B two additional hours of SALT and 12 sessions of CBT with an educational psychologist.
  7. Miss X then brought her complaint to the Ombudsman.

Analysis

Inadequate responses to anxiety and absences

  1. Miss X complains that the Council’s responses to Mr B’s anxiety and anxiety-induced absences have been inadequate (part a of the complaint).

Cognitive Behavioural Therapy (CBT):

  1. Miss X says the cognitive behavioural therapy (CBT) support set out in Mr B’s Education, Health and Care (EHC) plan was not available at the college at the start of term in September 2020. She says this lack of provision triggered Mr B’s anxiety which meant he was not able to continue to attend college.
  2. The Council says it thought the EHC plan meant CBT-related related provision. I find this is not what the EHC plan said. The Council is obliged to make the provision as it is set out in the EHC plan. I note that Mr B was provided with CBT-related support. However, this does not meet the provision set out in the EHC plan.
  3. Councils can amend EHC plans at annual reviews if they think the educational provision should be different from what the EHC plan says. This triggers the young person or parent’s right to appeal that decision at the SEND Tribunal.
  4. The Council accepts that it should have been clearer about CBT provision. It accepts that it should have raised this at the Tribunal when the Tribunal ordered that Mr B’s EHC plan should contain CBT.
  5. I find the Council at fault for failing to provide CBT for Mr B as set out in his EHC plan. I find this caused Mr B injustice because he missed out on provision he was entitled to.
  6. The Council has since put in place 12 sessions of CBT with an educational psychologist for Mr B. These sessions have now completed. I find these sessions are a suitable remedy for the provision Mr B missed.

Unsuitable course:

  1. Miss X says the first course was the wrong course for Mr B and was unsuitable. I do not agree. Mr B chose the course he wanted to attend. The Council assessed that it was a suitable course and facilitated a place on the course for him. I do not find the Council at fault here.

Educational provision between September and November 2020:

  1. Miss X says the Council failed to provide education for Mr B between September (when he stopped attending the first course due to his anxiety) and November (when he began attending the new course/traineeship).
  2. The Council says it was Miss X and Mr B’s preference for him not to return to college until a place on the new course was secured. Miss X disagrees that it was their preference: she says Mr B could not manage without the one-to-one support.
  3. There would naturally be some time in arranging an alternative placement. In this case, it was arranged in just over a month. As such, I do not find any undue delay with the Council’s actions. Taking everything into account, I do not find the Council at fault for failing to provide education during this period.

Asking for proof:

  1. Miss X says the Council asked for proof of Mr B’s anxiety. I have seen correspondence which shows that when Miss X asked about CBT provision in September 2020, the Council told her she would need to show “professional evidence as to what is being recommended”.
  2. The Council has explained that it did not ask Miss X for proof of Mr B’s anxiety or the requirement for provision. It says it asked to see a letter from a mental health charity which Miss X referred to. The Council says it was looking for recommendations for any specific quantity or format of CBT sessions.
  3. There appears to be a misunderstanding about the Council’s motivation for asking for this information. I do not find the Council at fault for this.

Special educational provision

  1. Miss X complains that the Council failed to provide the special educational provision set out in Mr B’s EHC plan, with some provision not made at all and other provision either not made consistently or delayed (part b of the complaint). The provision Miss X refers to is speech and language therapy (SALT), one-to-one support, sensory circuits, and termly assessments with an occupational therapist (OT).

Speech and language therapy (SALT):

  1. The Council accepted that SALT provision and review was delayed until January 2021. In response to Miss X’s complaint, the Council offered to provide two additional SALT sessions as a remedy for the missed provision in the autumn term 2020.
  2. The Council accepts that there was no review of SALT provision in the 2021 summer term and no provision in the autumn term.
  3. I find the Council at fault for failing to make the provision set out in Mr B’s EHC plan. This caused Mr B injustice because he missed out on provision he was entitled to.
  4. The Council has offered to remedy the further missed SALT with an additional four hours of SALT sessions. This would mean a total of six hours of additional SALT sessions.

One-to-one support:

  1. The Council says the college hired a one-to-one support worker to support Mr B once it was decided he was transferring course. The support worker provided feedback to Mr B’s annual review in March 2021.
  2. Miss X says that one-to-one support was not available when Mr B started the term in September. A few weeks into the term, the college decided that a different course would suit Mr B better. While one-to-one support may not have been available to Mr B during those few weeks, I do not find this caused Mr B an injustice because Mr B changed courses within a very short time, and one-to-one support was in place when he started his new course.
  3. I find that one-to-one support was in place for Mr B when he transferred courses. For this reason, I do not find the Council at fault.

Sensory circuits:

  1. I have seen an email from the college which says sensory circuits were available to Mr B when he attended. The college said Mr B did not choose to make use of these, but they were available to him throughout his time at college.
  2. Miss X disputes this. However, I have seen no evidence to support Miss X’s account.
  3. I find the Council had arranged a placement where sensory circuits were available to Mr B when at college. For this reason, I do not find the Council at fault.

Occupational therapist:

  1. Mr B’s EHC plan said there would be termly assessments by an occupational therapist (OT). An OT reviewed Mr B within the first two weeks of his enrolment on the first course and sent recommendations to staff. These were also provided to Mr B and Miss X. I have seen a copy of this email.
  2. Miss X told me that she and Mr B did not hear from the OT after the initial review.
  3. The Council accepts that OT reviews were missed in the 2021 spring and summer terms and says it has raised this with the college.
  4. I find the Council at fault for failing to provide termly OT assessments in line with Mr B’s EHC plan. This caused Mr B injustice because he missed out on provision he was entitled to.

Annual review

  1. Miss X complains that the Council did not carry out the annual review of Mr B’s EHC plan in 2020 (part c of the complaint).
  2. The Council accepts it did not carry out the annual review. It says it did not do the annual review because Miss X had appealed the contents of the EHC plan to the SEND Tribunal in 2020.
  3. The Council now accepts that the requirement for an annual review is not affected by an ongoing appeal.
  4. I find the Council at fault for failing to carry out an annual review of Mr B’s EHC plan. However, I do not find this fault caused Mr B injustice. This is because, at around the time when the annual review should have taken place, there was an ongoing appeal at the SEND Tribunal. In effect, this appeal reconsidered and reviewed Mr B’s needs and what provision was needed to meet those needs.
  5. The Council has since told all staff that annual reviews need to be held regardless of whether there are ongoing Tribunal proceedings. It is positive that the Council has taken steps to make sure a similar fault does not happen again.
  6. Miss X says the injustice to Mr B was that there were no target reviews, which she says would have been part of the annual review process. I do not agree. Target reviews are short-term reviews held with the college: they are not usually part of annual reviews of EHC plans (although target reviews could be included in an annual review setting). Annual reviews are for much longer-term plans.

On-site provision during lockdown

  1. Miss X complains that the Council failed to provide Mr B with on-site provision during COVID-19 lockdowns, and he was told to participate in online classes. Miss X says Mr B had a legal right to attend in person and that on-site classes were made available to other students with special educational needs (part d of the complaint).
  2. In the first week of January 2021, the college published a notice on its website stating that students with EHC plans had access to on-site learning, in line with Government guidance.
  3. Miss X then emailed the college to ask about on-site learning. The college said the traineeship course Mr B was attending was moving online. It said the plan was to support Mr B online with his one-to-one support worker so he could continue the course. It suggested that Mr B come to the college on a Thursday and access online lessons with his one-to-one support worker from a room in the college. The following day he would have a maths lesson online at home with his one-to-one support worker offering support via a separate Zoom call.
  4. In February, Miss X complained to the Council about lack of on-site learning. The Council liaised with the college, which said on-site learning was available to Mr B, but he had opted for remote (online) learning.
  5. On 1 March, the college emailed Mr B to say that following a government announcement, students would be returning to on-site learning on 8 March. However, the college said it had decided it was unnecessary for Mr B’s traineeship group to return to classroom teaching and that the course would not be returning to college. The email warned that students risked being removed from their course if they attended the college campus without invitation.
  6. Miss X emailed the college following this announcement and was told that Mr B could come on site. The college said Mr B’s usual one-to-one support worker would not be available as she was shielding from COVID-19 but that an alternative had been arranged for him. The Council says Mr B then confirmed to the college verbally that he preferred to work virtually (online).
  7. In March 2021, Mr B’s annual review recorded that online learning had seen Mr B in his “best element”, that he had fully participated in classes, and that his engagement and motivation during lockdown had been “outstanding”.
  8. Miss X disputes that the college offered Mr B on-site learning but verbally opted to learn online. I have seen evidence of the college’s offer of on-site learning, but I have seen no evidence of Mr B’s response to this. It is therefore not possible for me to reach a conclusion as to whether Mr B declined or was refused on-site learning.
  9. The annual review suggests online learning had no negative impact on Mr B. Therefore, I do not intend to investigate this further as there is insufficient evidence of injustice to Mr B to justify doing so.

Work experience and career support

  1. Miss X complains that the Council failed to provide work experience with one-to-one support as previously promised and has given Mr B no support to develop a career path (part e of the complaint).
  2. The work experience referred to here was an offer made to Mr B after a previous Ombudsman decision. There is a separate work placement which is part of Mr B’s traineeship course. It is important to make that distinction.
  3. Firstly, I will address the work experience which was an offer made after a previous Ombudsman decision. Miss X said the Council had not responded to her acceptance of an offer made in a letter to the Ombudsman of July 2020.
  4. I find that the Council tried to arrange the work experience placement but it did not materialise for a number of reasons. A previous Ombudsman investigation did not find fault here. For this reason, I will not investigate this part of the complaint any further.
  5. Secondly, I will address the work placement which is part of Mr B’s traineeship course.
  6. While there have been delays caused by staffing issues at the college, this is not evidence of fault by the Council. There is evidence that the Council pursued the matter throughout the period of delay.
  7. The Council says the college could not secure the placement because of COVID-19 restrictions and phases of lockdown. Since then, the providers have met and discussed the offer of a work placement in the context of Mr B’s course. The Council says there is an offer of two different options for Mr B to choose from. The Council is waiting for Mr B to give his preference. The Council has confirmed it will provide travel assistance for Mr B to see both sites, to move matters on swiftly.
  8. The Council says the work placement will be secured by the college, but the Council will monitor this. This is positive.
  9. I am satisfied that the Council has made considerable efforts to arrange a work placement for Mr B. For this reason, I do not find the Council at fault.

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Agreed action

  1. Within four weeks of this decision, the Council has agreed to apologise to Mr B in writing for failing to provide cognitive behavioural therapy in line with his Education, Health and Care plan (part a of the complaint). The Council has also agreed to apologise in writing for failing to provide speech and language therapy provision and occupational therapy reviews (part b of the complaint).
  2. Within four weeks of this decision, the Council has agreed to make a payment to Mr B of £200 for failing to provide the occupational therapy reviews. I note here that the Council suggested an increased payment from the one originally recommended by the Ombudsman. The Council did this to reflect the actual cost of those occupational therapy reviews. This is positive.
  3. Within four weeks of this decision, the Council has agreed to make arrangements for Mr B to receive six additional speech and language therapy (SALT) sessions/hours. This is made up of the two additional SALT sessions/hours which the Council agreed to as part of its original complaint response, and four additional SALT sessions/hours which the Council suggested as a remedy for the further missed sessions.
  4. These actions are in line with the Ombudsman’s published guidance on remedies.
  5. The Ombudsman will need to see evidence that these actions have been completed.

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Final decision

  1. I have completed my investigation. I uphold parts a, b and c of the complaint. I find the fault for parts a and b of the complaint caused Mr B injustice. The Council has agreed to take action to remedy the injustice caused.
  2. I do not uphold parts d or e of the complaint for the reasons given above.

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Investigator's decision on behalf of the Ombudsman

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