Summary: The Council was at fault because it failed to complete the annual review process for Ms Y and to issue an amended Education Health and Care Plan within the required timescales. The Council also failed to review restrictions on Mrs X’s contact causing avoidable distress, frustration and uncertainty. The Council also did not ensure Ms Y had the sensory equipment she needed at college. The Council will apologise, make payments, ensure the equipment is in place at Ms Y’s new college and arrange mediation.

The complaint

1. Mrs X complained about Kent County Council (the Council). She said:
1. No officer from the special educational needs (SEN) team attended her daughter Ms Y’s annual review meeting or arranged a meeting with her family to discuss the draft EHC plan. This was because of contact restrictions which were unreasonable
2. There was a failure to review the EHC plan at the correct time
3. The college is not providing equipment set out in Ms Y’s EHC plan, so the Council is not meeting its legal duty to secure Ms Y’s SEN provision.

Back to top

The Ombudsman’s role and powers

2. 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)
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)

Back to top

How I considered this complaint

4. I considered Mrs X’s complaint, the Council’s complaint response and documents described in this statement. I discussed the complaint with Mrs X.
5. Mrs X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and guidance

6. The Equality Act 2010 makes it unlawful for organisations carrying out public functions (including councils) to discriminate on any of nine protected characteristics including a disability. We cannot decide if an organisation has breached the Equality Act. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.
7. Councils will often be able to show they have properly taken account of the Equality Act if they have considered the impact their decisions will have on the individuals affected and these decisions can be challenged, reviewed or appealed.
8. A child with SEN may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them.
9. The council has a duty to secure the provision in an EHC plan (Section 42 Children and Families Act 2014). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
10. We recognise it is not practical for councils to keep a close eye on whether schools are providing all the special educational provision for every pupil with an EHC plan. However councils should show care in discharging the duty to arrange SEN provision and should investigate any complaints or concerns that provision is not in place.
11. The procedure for reviewing and amending EHC plans is in law and guidance. There should be a review within 12 months of issuing a plan and then within 12 months of any previous review. (SEN Code paragraph 9.168)
12. The council and school or college must co-operate to ensure a review takes place. The council can request the college holds the meeting on its behalf. (SEN Code paragraph 9.174)
13. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
14. Where a council proposes to amend an EHC plan, the law says 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. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
15. The SEN Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
16. Following comments 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 soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
17. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.
18. Councils must arrange for young people with SEN to receive information advice and support about matters relating to their SEN and disabilities (SEN Code paragraph 2.1). They should provide support and help through their Information, Advice and Support Service when things go wrong which should include supporting children, young people and parents in arranging or attending early disagreement resolution meetings (SEN Code paragraph 2.19)
19. Our Guidance on Managing Unreasonable complainant behaviour says unreasonably persistent complainants are those who because of the nature or frequency of their contacts, hinder the organisation’s ability to provide a service. In response, an organisation may restrict access. We expect councils who have imposed restrictions to have a specified review date. We also expect them to lift restrictions and return relationships to normal unless there are good grounds to continue. We say a council needs to explain its reasons for continuing to limit contact and state when the restrictions will next be reviewed.

What happened

20. Ms Y has autism, ADHD (Attention Deficit Hyperactivity Disorder). She has an EHC plan. Ms Y was in Year 12 in 2020/2021. She went to a mainstream college, (College A) where she studied a level 2 course and was retaking Maths GCSE.
21. Mrs X also has autism and ADHD. The Council is aware of this. Mrs X explained to me that it is part of her autism and/or ADHD to get things right in a factual way and so sometimes she sends a lot of emails which can be repetitive.
22. The Council’s lawyers wrote to Mrs X in April 2021 placing restrictions on her contact with council officers. The letter explained:
• She emailed staff too often (for example she sent 16 emails on one day and 27 emails in March. She sent emails from different addresses
• Her emails were disrespectful because she changed staff surnames in a derogatory way
• Her children phoned officers, but she then took over the call.
23. The letter went on to say Mrs X could contact the Council only by letter, not by phone and there would be no reply to any emails she sent. The letter did not say when the arrangements would be reviewed or acknowledge Mrs X’s disabilities. The Council sent Mrs X’s husband a letter which also had restrictions on the way he could contact the Council. Again, there was no date for a review.
24. The annual review of Ms Y’s EHC plan was due in January 2021 but did not take place until May. College A held the annual review meeting and Mrs X and Ms Y both attended. Ms Y said she was considering moving to College B. The minutes of the review noted:
• She wanted to go on to level 3 on the same course, but she needed to get Maths GCSE first
• If she did not get her results, she was interested in going to College B and doing a different course.
25. Ms Y’s EHC plan of 2020 said the education placement must have access to sensory equipment like a weighted lap pad, movement cushions and fidget tools which must be reviewed each term. An SEN case officer emailed College A at the end of May to ask if the college had got the sensory equipment in Ms Y’s EHC plan. College A replied saying it would get the equipment if the family asked for it, but Ms Y did not want to stand out from others in her group.
26. College B emailed the SEN team at the end of June saying Ms Y had applied for a place there to start in September. College B asked the Council to send a consultation letter. The SEN team consulted with College B at the start of July. College B responded saying it could meet Ms Y’s needs. At the end of July Mrs X and Ms Y emailed the SEN team saying they were unhappy about the consultation with College B and the Council should not have consulted without Ms Y’s permission. However, Mrs X also emailed College A’s teacher, copying the SEN team saying Ms Y needed her amended EHC plan to move college and to appeal.
27. Mrs X and Ms Y also emailed College A to ask if it had got the sensory equipment. College A said it had not been provided with sensory equipment.
28. The SEN team sent out an amendment notice and a draft amended EHC plan at the end of July. The draft plan highlighted proposed amendments including provision to accommodate Ms Y’s visual needs. In response, Ms Y emailed the SEN team saying she didn’t understand and asked for a meeting with her parents. She said she had not received a final EHC plan. Internal emails suggest officers considered Ms Y’s request for a meeting and thought they might need to arrange one because it was Ms Y’s right to request a meeting and so two senior officers may need to agree to meet Ms Y and her parents. But no meeting took place. Ms Y emailed again at the end of August complaining there had been no meeting. Ms Y emailed again at the start of September to ask for the final EHC plan.
29. Ms Y enrolled onto a course at College B for September 2021. The Council issued an amended final EHC plan in the middle of September naming College A. Ms Y complained the EHC plan named the wrong placement and that the Council had not arranged a meeting in line with her request. In the last week of September, the Council issued another final EHC plan naming College B.
30. The family made further complaints saying if officers had arranged a meeting when asked then they would have realised Ms Y wanted to change college.
31. Mrs X complained to us. In November 2021, we decided we would not investigate the complaint because the Council had provided her with Ms Y’s final EHC plan which she could appeal.
32. The Council’s response to the complaint said:
• SEN staff did not feel able to attend meetings with family members due to their approach and attitude
• Ms Y was 18 and could go to meetings herself
• Ms Y changed her mind about College B in an email to officers at the end of July and so the Council named College A on the final EHC plan. Then officers got confirmation she did not have the GCSE grades she needed to continue at College A and so it was agreed to support her at College B on another level 2 course.
33. We reopened the complaint following information from Mrs X which suggested potential fault by the Council causing injustice.
34. The Council told me it kept the contact restrictions under regular review across all services, but it did not provide any documents to evidence this. The Council said there was a further annual review of Ms Y’s EHC plan in February 2022 (after the complaint to us) and she was enjoying the course and making good progress.

Findings

No officer from the SEN team attended Ms Y’s annual review meeting or arranged a meeting with her family to discuss the draft EHC plan because of contact restrictions which were unreasonable

35. The Council did not have to attend the annual review meeting, because paragraph 9.174 of the SEN Code says it could ask the college to take the meeting on its behalf. So I do not uphold this part of the complaint.
36. The Council was entitled to place limits on Mrs X’s contact as the volume of emails from her in March was excessive. However, the letter of April 2021 should have set out arrangements for reviewing the restrictions with timescales and it did not. This was not in line with our guidance as set out in paragraph 19 and so was fault. There is also no evidence the Council had any regard to Mrs X’s autism and ADHD when it imposed the contact restrictions. I conclude this because there is no refence to Mrs X’s disabilities in the letter of April 2021. I consider there was a failure to consider the impact of Mrs X’s neurodevelopmental conditions when imposing a ‘letter only/no response to emails approach’ for an unspecified period.
37. Ms Y contacted the SEN team to ask for a meeting with her parents. My view is the Council should have responded to her request. Ms Y also contacted the SEN team by email on other occasions, becoming increasingly frustrated with the lack of action. Ms Y was not part of the contact restrictions, these applied only to her parents and so my view is officers should have replied. It was unfair of the Council to ignore Ms Y’s emails and in particular a reasonable request for a meeting with her parents. Ms Y is a vulnerable young person who cannot be expected to know the SEN process. It appears from internal emails that SEN officers shared my view that a meeting might be necessary to deal with Ms Y’s concerns.
38. If the decision was that senior officers would not meet Mrs X then, the Council could have involved an advocate to support Ms Y to try and resolve her concerns or referred her to the information and advice service. There is no evidence the Council considered any of these issues and this was fault. My view is the failure to respond to Ms Y’s request was poor practice and was not in line with Paragraphs 2.1 and 2.19 of the SEN Code as I have set out in paragraph 18. It caused Ms Y avoidable frustration, distress and uncertainty about whether the Council would approve the change of college placement.

There was a failure to review the EHC plan at the correct time

39. The EHC plan was due for review in January 2021. It was not reviewed until May which was not in line with Paragraph 9.168 of the SEN Code and was fault. The amendment process was also delayed and not completed in line with the time frames summarised in paragraphs 13 to 16 of this statement. This was also fault which caused the family avoidable frustration and delayed the right of appeal.

The college is not providing equipment set out in the EHC plan, so the Council is not meeting duties to secure provision in the EHC plan

40. College A, which Ms Y attended until July 2021, accepted it did not provide the equipment. The Council was at fault because it had a duty to secure the provision on Ms Y’s EHC plan which included sensory equipment.
41. We do not expect councils to monitor the provision on an EHC plan closely, but we do expect them to deal with concerns or complaints about provision not being in place. The Council did not deal effectively with the concern about a lack of sensory equipment because College A replied to say it was not in place and suggested this was because the Council had not provided it. This meant Ms Y did not have sensory equipment to meet her needs as specified in her EHC plan. There was a failure to act in line with Section 42 of the Children and Families Act 2014 and this was fault.
42. There has been a further annual review since Mrs X complained to us. The Council told me the provision at College B was working well, however I have no specific information about whether the sensory equipment is available for Ms Y at College B.

Back to top

Agreed action

43. The Council will within one month of my final statement:
• Apologise to Mrs X and Ms Y for the fault and avoidable frustration
• Check with Ms Y and College B about whether the sensory equipment in the EHC plan is in place and if it is not, put it in place or ensure College B does
• Pay Ms Y £500 to reflect her avoidable frustration in the lack of a response to her email asking for a meeting, for the failure to reply to her other emails and for the lack of sensory equipment in place when she attended College A
• Pay Mrs X £250 to reflect her avoidable frustration and distress at the lack of a review of contact restrictions and the failure to take into account her disabilities when imposing the restrictions.
44. The Council will, within two months:
• Arrange and fund mediation sessions between relevant officers in the SEN team, Mr and Mrs X and Ms Y (if Ms Y wishes to attend)
• As an outcome to mediation, set out an agreed contract of communication, to be reviewed at least yearly or as appropriate. This needs to take into account the disabilities of all family members.

Back to top

Final decision

45. The Council was at fault because it failed to complete the annual review process for Ms Y and to issue an amended Education Health and Care Plan within the required timescales. The Council also failed to review restrictions on Mrs X’s contact. This caused avoidable distress, frustration and uncertainty. The Council also did not ensure Ms Y had the sensory equipment she needed at college. The Council will apologise, make payments, ensure the equipment is in place at Ms Y’s new college and arrange mediation.
46. I have completed the investigation and shared a copy of this statement with OFSTED in line with our information sharing agreement.

Back to top

Investigator's decision on behalf of the Ombudsman