Privacy settings

LGO logogram

Review your privacy settings

Required cookies

These cookies enable the website to function properly. You can only disable these by changing your browser preferences, but this will affect how the website performs.

View required cookies

Analytical cookies

Google Analytics cookies help us improve the performance of the website by understanding how visitors use the site.
We recommend you set these 'ON'.

View analytical cookies

In using Google Analytics, we do not collect or store personal information that could identify you (for example your name or address). We do not allow Google to use or share our analytics data. Google has developed a tool to help you opt out of Google Analytics cookies.

London Borough of Enfield (21 005 235)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 15 Jun 2022

The Ombudsman's final decision:

Summary: Mrs R said the Council failed to provide the education set out in her adult daughter Miss C’s education, health and care plan and also failed to provide tutoring it agreed to provide. The Council was at fault for delay in providing tutoring and for minor failures in the education health and care plan process. These caused Miss C injustice in the form of distress. The Council has agreed to pay Miss C £500 in recognition of that distress, to take all reasonable steps to ensure she receives education and to provide evidence that it has reviewed its processes.

The complaint

  1. The complainant is Miss C. Her representative is her mother Mrs R. They say the Council is at fault for:
      1. a failure to provide the educational provision set out in Miss C’s education, health and care plan (‘EHCP’);
      2. a failure to provide Miss C with tuition it agreed to provide;
      3. a failure to attend mediation which Mrs R requested after she complained about a revised EHCP;
      4. poor communication; and
      5. a failure to deal with her complaint for two years.
  2. Mrs R says the Council’s failures have caused Miss C injustice. She says Miss C’s mental health has suffered, she has missed out on a great deal of education and she has been distressed, losing sleep and confidence.
  3. Mrs R says Miss C wants interim educational support, an updated EHCP, a suitable college education and compensation for the education she has lost.

Back to top

What I have investigated

  1. I have investigated the complaint dating back to 2020. I have set out the parts of the complaint that I have not investigated at the end of the decision.

Back to top

The Ombudsman’s role and powers

  1. We cannot investigate late complaints unless we decide there are good reasons. A late complaint is one made more than 12 months after something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  2. We investigate complaints about ‘maladministration’ and ‘service failure’. 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. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
  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)

Back to top

How I considered this complaint

  1. I spoke to Mrs R. Using the information she gave me, I wrote an enquiry letter to the Council requesting further information. I considered the evidence I had gathered alongside any relevant law and guidance.
  2. Mrs R and the Council 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

What should happen

Education for young people aged 19 to 25 who have disabilities

  1. The Special educational needs and disability code of practice: 0 to 25 years (‘the guidance’) says local authorities should be ambitious for young people with special educational needs (‘SEN’). They should ensure that young people have access to the right support and opportunities to prepare them successfully for adulthood by helping them achieve the outcomes set out in their EHCP.
  2. Local authorities must set out the support and provision that 19- to 25-year-olds can access in their ‘local offer’. Further education colleges must use their best endeavours to secure the special educational provision needed by all young people aged 19 to 25 with SEN.
  3. 19 to 25 year olds with EHCPs should have free access to further education as 16 to 18 year olds do. The funding for this education will be provided by local authorities and/or the Education Funding Agency.
  4. There is a presumption that EHCPs for young people will continue until they are aged 25. Councils must continue to review them at least annually. Local authorities should ensure that young people have clear information about what support they can have.
  5. There must be an annual review of an EHCP.

Council’s offer for young people with an EHCP

  1. The Council’s website says that, if you want to go to a local college, you have to apply in September of the previous year. It adds that some colleges have two intakes a year and those wishing to apply should check the college’s website.
  2. The website provides a list of local colleges and says young people will normally have to fund their own transport “unless this is not possible for some reason”.

Mediation

  1. Councils must set out the right of the young person or child’s parent to request mediation. Councils are not required to attend mediation but must tell the person concerned or their parent so that they can get on with their appeal or wait for mediation. (Special Educational Needs and Disability Regulations 2014).

What happened

Introduction

  1. Miss C is a young adult. She has an autism spectrum disorder and has had an EHCP for some years. The provision set out in Section F includes:
  • Support by experienced teaching staff to help her communicate clearly;
  • Shared activities with others working at a similar level in a mainstream setting;
  • Provision of simplified text;
  • Short clear instructions delivered to her by name;
  • Access to support staff with knowledge of autism spectrum disorders; and
  • Access and encouragement to join in social opportunities.
  1. Miss C’s EHCP has been reviewed annually. Miss C completed two terms of a course at a college in the 2018/19 academic year but has not attended any courses since then. Recent versions of the EHCP, therefore, do not have a named education setting but say education should take place at ‘a day placement in a maintained further education setting’.
  2. The Council says that, since 2019, Mrs R and Miss C applied for several courses but either withdrew or failed to attend interviews. It also says they have applied for courses for which Miss C was not qualified so she has not been offered places.

2020

  1. In September 2020, Mrs R identified a course at a college in another council area though she later withdrew her interest. Mrs R then requested a bespoke course for Miss C. The Council refused to provide this because, it said, it had already provided a range of options which Mrs R had refused. The Council said it did not know what Miss C herself wanted. It said that, whatever course Miss C took, it was vital that she met the academic criteria for the course.
  2. In September and October 2020, there were annual review meetings for Miss C’s EHCP. Mrs R and the Council’s SEN advisory officer suggested amendments to the EHCP.
  3. Mrs R met with Council officers again in November 2020. The Council agreed to carry out two assessments of Miss C in early 2021; one by a social worker and the other by an educational psychologist. It agreed that, when these were prepared, it would provide careers advice to recommend courses which were suitable for Miss C and which would help her progress towards qualifications in her chosen field.
  4. The global COVID-19 pandemic continued to disrupt the country during this time. This meant that, in early 2021, educational psychology meetings were held remotely and there was some delay in the assessments agreed in September 2020. An educational psychologist assessed Miss C in early March 2021. An annual review of the EHCP was arranged for early April 2021.

2021

  1. In March 2021, upset by what she saw as unacceptable delay, Mrs R engaged a solicitor, Ms S, who wrote to the Council on Miss C’s behalf. Ms S said the Council had failed and continued to fail to provide the education set out in Miss C’s EHCP. She said it had failed to review the EHCP annually as was required by the Children and Families Act 2014. She said that, if the Council did not take steps to arrange a suitable education for Miss C within five days, she would apply for leave to judicially review the Council.
  2. The Council wrote to Ms S explaining why, in its view, Miss C had had no education for several years. It said, in essence, that Miss C and Mrs R had applied for courses for which Miss C was not qualified against Council advice.
  3. After a meeting between Mrs R and the Council, the Council agreed an action plan to try to get Miss C back into college. This would involve tuition to help her prepare herself for full time education.
  4. Soon afterwards, in an internal email, the Council’s careers adviser said she was concerned Miss C had, in previous years, applied for courses for which she was not qualified and seemed to intend to do so again. She said, “the courses [Miss C] is describing are high level/degree study and [she and Mrs R] need to be told she needs to take stepping ‘academic’ stones towards her career aspirations”.
  5. In late April 2021, the Council agreed to fund home tuition to prepare Miss C for a course in September 2021. It agreed to fund three hours tuition two days a week, in English and maths until the start of the next academic year when, it was hoped, Miss C would attend a college.
  6. A Council officer wrote to Ms S to say that the Council had advised Mrs R that Miss C should apply for a ‘bridging course’ beginning in September 2021 which would allow her to build up her skills so she could later transfer onto a Creative Media or Art and Design course in September 2022.
  7. The Council consulted three colleges, Colleges 1, 2 and 3 with a view to securing a place for Miss C in September 2021. The Council stated that Miss C and/or Mrs R would have to apply for the places themselves and that they must apply for courses which were suitable for Miss C.
  8. The Council and Mrs R discussed tuition for Miss C. In early May 2021, the Council contacted an agency supplying tutors for those with SEN about finding a tutor for Miss C.
  9. A week later, Mrs R said Miss C could not receive tuition at home. The Council were concerned that finding an alternative site would be difficult because of COVID-19 and expensive because it would have to hire a room and Miss C might require two to one care and supervision for safeguarding reasons.
  10. The Council held internal discussions about the matter before deciding that tuition would have to be at home.
  11. A week later, Mrs R told the Council she wanted it to employ Miss T, a tutor who had previously taught Miss C, rather than a tutor from the agency.
  12. The Council met Mrs R in mid-May 2021 for an annual review meeting for Miss C’s EHCP. The Council agreed the following:
    • The Council would contact Miss T and would employ her if the costs were not excessive but stressed that the tuition was purely to prepare Miss C for college.
    • The Council would contact Colleges 1 and 3 about places for Miss C
    • Mrs R would apply for a course recommended by Miss C’s careers advisor and Miss C would have to meet the entry requirements.
  13. At the end of May, Ms S wrote to the Council again saying there had been no progress with tuition. She continued to write to the Council through June 2021.
  14. In mid-June 2021, the Council wrote to Mrs R to inform her of the outcome of the annual EHCP review. It sent a draft revised EHCP. The Council says that this draft EHCP was incorrectly headed ‘amended final plan’ rather than ‘draft’. There was a covering letter with the EHCP though requesting Mrs R’s comments.
  15. This EHCP included input from the educational psychologist after her interview with Miss C in March 2021. These included:
    • Statement that Miss C had been working at Entry Level 2 for English and maths in 2019;
    • Goal for Miss C to have at least two positive social relationships by June 2022:
    • Goal for Miss C to be able to answer questions using inference skills five times out of six by June 2022;
    • Support in developing social interactions.
  16. Later in June 2021, at Mrs R’s request, the Council contacted College 2 again about the possibility of Miss C attending. It received confirmation from all three colleges that, if Miss C applied for a course for which she did not meet the entry criteria, she would not be offered a place.
  17. The records show that, on 14 June 2021, a Council officer emailed another saying she was concerned Mrs R was not following the careers advice that had been provided by the Council. The officer was concerned that she would apply on Miss C’s behalf for an A level standard course rather than the bridging course suggested. The officer said; “I cannot see how her application can be successful if she does not have the entry criteria”.
  18. The officer was also concerned that Mrs R and Ms S claimed the Council had agreed to employ Miss T. She said the Council had never said it would employ Miss T. It had only said it would investigate the cost of doing so. The officer said she would do that immediately. She did not send the email for a week. Miss T replied five days later. It was now the end of June 2021.
  19. In July 2021, Mrs R complained to the Ombudsman saying Miss C had had no tutoring, there had been no progress with the EHCP and no progress with finding a college course.
  20. Also in July 2021, the Council received a quotation from Miss T who charged less than the tutors the Council usually used. However, Miss T was not part of an agency. She did not have a standard contract or a safeguarding policy. This, the Council thought, would be likely to make employing her difficult. There were numerous internal emails discussing what could be done.
  21. In late July 2021, a Council officer decided that it was ‘too problematic’ to employ Miss T as it would cause safeguarding issues. The Council also felt that the costs of providing tuition outside the home would require 2:1 staff ratios for safeguarding reasons as well as hiring a room. It therefore decided that the agency would supply the tuition at Mrs R’s home. The agency agreed that it would be able to provide about ten hours of tuition per week over the summer holidays.
  22. In early August 2021, College 3 wrote to Miss C saying that it had been trying to get in touch with the Council for some time but had received no response. It said that it needed information about Miss C’s EHCP and could not, therefore, process the application at that time. Ms S wrote to the Council asking for action.
  23. College 3 wrote to the Council a few days later asking for the EHCP. The Council sent the EHCP. It also sent the EHCP to Ms S.
  24. The records show that Mrs R then denied that this was the correct EHCP and denied that she or Miss C had agreed to it. The Council said that it was the correct EHCP incorporating the changes recommended by the educational psychologist. Ms S said Mrs R had not received a revised EHCP that year. The Council investigated and later explained the confusion. It had sent the EHCP but with the wrong cover sheet. Mrs R was not satisfied with this explanation and continued to dispute the contents of the EHCP.
  25. The Council communicated with the College and said that this was the correct EHCP. The College asked for details of Miss C’s previous college courses in the last years. The Council explained that she had had no education since 2018/19.
  26. In early September 2021, the Council sent a copy of the final EHCP to Mrs R along with a letter advising her of her right of appeal. The letter stated that she would have to apply for mediation first.
  27. Also in early September 2021, the Council followed up with the tuition agency. The agency said it had not been able to carry out any tuition as Mrs R had insisted that tuition should take place outside the home. Miss C had also refused to work with the tutor offered as she felt she was too old.
  28. The tuition agency tried to find someone who Miss C could work with. The Council authorised them to do so though it was recognised that it was unlikely that anyone could be found who was both between 25 and 30, as Miss C said she wanted, and also qualified to provide the tuition she needed.
  29. The Council also continued to correspond with College 3 which questioned Miss C’s ability to cope with a mainstream course as she was ‘working at entry level’.
  30. Miss C did not go to college in September 2021. Mrs R says this was because of a problem with the EHCP. The Council says it was because Miss C did not meet the entry criteria for the course she applied for.
  31. The records show that, in October 2021, Ms S asked the Council about the EHCP. She said Mrs R and Miss C had never seen the 2021 EHCP. The Council said it had sent it to her.
  32. The tuition agency says it continued to try to contact Mrs R during October 2021 but never received any reply. Mrs R says that the tuition agency said it would contact her and never did so.
  33. Mrs R said, during October 2021, that she was becoming increasingly concerned about Miss C’s mental wellbeing. In late October 2021, she asked for a psychological assessment of Miss C. The Council sent Mrs R details of how to self-refer for a psychological assessment.
  34. An officer wrote to Ms S in late October setting out the Council’s position: “Home tuition was only meant to be in place until September to give [Miss C’s] English and maths a boost in preparation for college. As you know [Mrs R] was insisting that this took place outside of the home which we did not agree to. [Miss C] and her mother are refusing to work with the tutor that was allocated [because] she is ‘too old’ which is simply unacceptable. As you are aware [Miss C] has not applied for a course that is suitable for her needs and despite counting with several colleges she has not been offered a place. This is not likely to change.
  35. “Had [Miss C] applied for a suitable course three years ago, she may well have been at a higher level now and able to gain a place on a course such as those she is applying for now. … Some colleges offer courses starting in January although they may not in an area of her interest. But if [Miss C] and her mother accepted the tutor that has been selected for her then she may be in a better position when applying in January. As mentioned previously, [Miss C] will not be offered a place on a course that is above a Level 1 …. If we are to move forward, then [Miss C] and her mother have to accept this, otherwise nothing will change and only more time will be wasted”.
  36. Mrs R decided to challenge the EHCP and, as required, in December 2021, Mrs R requested mediation. The Council initially agreed to attend.
  37. In December 2021, Mrs R requested another annual review meeting. The Council said that this would take place in April 2022.
  38. In January 2022, Ms S requested a personal budget to allow Mrs R to engage a Miss T. The Council said it believed this option would work. It has since agreed to provide one.
  39. The Council says that, since the time of the events described above, it has reorganised its SEND department.

Was there fault causing injustice?

Failure to review EHCP

  1. The evidence shows that the Council did review the EHCP in line with the timetable and its undertakings. It engaged an educational psychologist and her suggestions were included in a draft EHCP for 2021/2. It then sent this draft to Mrs C in June 2021.
  2. The Council accepts that the title page of this EHCP was wrongly headed. But it was sent with a covering letter and Mrs R, as someone familiar with the process could reasonably have been expected to understand what it was. Therefore, any fault and injustice were minimal and I do not intend to find the Council at fault.
  3. Mrs R later decided to challenge the EHCP. I do not believe that the delay in doing so was due to Council fault.

Failure to provide education set out on EHCP

  1. The Council’s position is that any delays or loss of education in this case were caused by Mrs C and Miss R who applied for courses for which Miss C was not qualified and refused tuition when it was offered.
  2. The records show that the Council has carried out a great deal of work on Miss C’s case and I have reviewed hundreds of emails and other documents. The central problem has been that the Council has twice provided Miss C with advice about suitable courses which Miss C and Mrs R ignored.

Academic year 2020/21

  1. The evidence I have seen suggests that Mrs R and Miss C did not apply for courses in 2020/21. Mrs R did ask the Council to provide a bespoke course for Miss C but the Council took the view that it had no certainty that Miss C would attend nor that this was really what Miss C wanted.
  2. It was Miss C’s and Mrs R’s role to apply for courses and it was for the Council to support them with this. I do not find the Council at fault for a failure to create a course for her.

Academic year 2021/22

  1. The Council has suggested that some of the problems in 2021/22 were caused by the COVID 19 pandemic. The Ombudsman’s view is that, while we are understanding of the pressures councils faced, the pandemic did not excuse them of their normal duties.
  2. In this case, despite COVID, the Council did fulfil its undertakings. The educational psychologist met Miss C before Ms S, the solicitor, contacted the Council and threatened judicial review.
  3. The Council had also contacted its careers advisor in March 2021. The progress agreed in late 2020 was, therefore, under way before Mrs R engaged Ms S and I do not find fault for this.
  4. On receiving the letter before action sent by Ms S, the Council responded to her setting out its view of the reasons for delay. There followed a meeting at which a plan of action was agreed. The Council agreed to contact three colleges, which it did and it agreed to provide Miss C with interim education, which it did not.

2021 Failure to provide tuition

  1. The records show that the Council’s SEND department was chaotic. The evidence I have seen showed that no one at the Council monitored the department’s inbox for a week so that no one saw Mrs S’s letter demanding action and threatening judicial review until the day before her deadline for action.
  2. The Council agreed in April 2021 that it would provide tutoring to help Miss C prepare for a course in September 2021. She did not receive any and, so far as I am aware, has still not done so a year later.
  3. No one person seemed to be in control of the process. There were weeks of discussion, for example, of whether the Council would agree to pay Miss T. These discussions began in May 2021 and continued until September 2021 when the Council finally decided it would not do so. Ms S emailed the Council in early August asking for urgent action. She emailed again at the end of August having received no response. By this stage, the new academic year was about to begin.
  4. This was fault and it clearly caused injustice in the form of distress and anxiety for Miss C.
  5. However, the Council was not entirely responsible for the delay. Mrs R, having originally accepted an offer of tuition, later said tuition must take place outside the home. This clearly caused further delay though some of this, again, was caused by a lack of Council decisiveness in its response.
  6. Later, when the Council had refused to employ Miss T, Miss C refused tuition from another tutor because she was too old. The Council’s immediate response to this refusal was to say that such a refusal was ‘unacceptable’. The Council says it feared the request was discriminatory. However, given Miss C’s condition, the Council should not have dismissed Miss C’s concerns without giving them due consideration. This was fault.
  7. The Council did later agree to look for a younger tutor, though the agency it employed said it was unlikely that they would be able to find someone as young as Miss C wanted who was qualified to teach her. However, the original position contributed to delay.
  8. The Council engaged in discussions in early 2022 with Mrs R about paying for tutoring through direct payments allowing the family to engage whatever tutor they wanted. The Council is at fault for not considering these possibilities sooner and more urgently.

Failure to attend College 3

  1. It is clear from the records that the Council was at fault for its failure to respond to requests for information from College 3 in August 2021. One email from the College to Miss C states that it had been trying to contact the Council frequently for a week but had received no response. This was fault.
  2. However, the Council did, after a few days, respond and did send the EHCP. Mrs R says the Council sent the wrong EHCP. However, the evidence shows that this was not the case.
  3. The reason Miss C did not receive a place was that the College believed she was not qualified for the course. Therefore, I do not find that any Council fault caused Miss C injustice.

Mediation

  1. Mrs R says that the Council refused to take part in mediation. On the evidence, this appears to be correct. It did not. But it had no duty to do so. The Council originally intended to take part in mediation and told Mrs C that it would do so but later found that it had no one available and withdrew.

Communication

  1. Mrs R says the Council was at fault for poor communication. I have looked at the correspondence between the Council, Mrs R and Ms S, it is clear that there were periods when the Council failed to communicate adequately. Ms S, for example received no response to an email for the entirety of August 2021. This was fault.
  2. This fault caused injustice. Mrs R says that, in the runup to the start of the academic year, the lack of communication, alongside the lack of tuition, affected Miss C’s confidence.

Complaint handling

  1. Mrs R also says the Council’s complaint handling was inadequate. Mrs R complained to the Council in early 2020 and received a constructive response. She did not make a stage two complaint and has not complained since. Therefore, I do not find the Council at fault.

Remedy analysis

  1. The Ombudsman’s guidance on remedies says we should recommend payments of between £200 and £600 a month to acknowledge the impact of the loss of education in SEN cases, where we are satisfied that council fault has led to the loss of education.
  2. In this case, I have found the Council at fault for its failures to take adequate steps to provide Miss C with tuition between early May and September 2021, a period of four months.
  3. However, I cannot be sure that, even if the Council had acted faster, Miss C would, in fact, have received tuition as Mrs R continued to insist that it should take place away from home and because Miss C might have refused to be taught by any tutor provided. Therefore, while I have found the Council at fault, I have based my remedy on distress suffered by Miss C.

Back to top

Agreed action

  1. Within four weeks of the date of this decision, the Council will:
      1. Write to Miss C and apologise for the fault identified in this decision and pay her £500 in recognition of the distress it caused her; and
      2. Provide evidence of the review of the SEND department and explain how this will prevent similar fault in future.

Back to top

Final decision

  1. I have found the Council at fault and closed my investigation.

Back to top

Parts of the complaint that I did not investigate

  1. Mrs R has said that she has had problems with the Council over Miss C’s education for many years. The Ombudsman does not normally investigate events that occurred more than a year before a complaint is made unless there is a good reason to do so.
  2. In this case, I have decided that I should not consider events which occurred before autumn 2020, the academic year before Miss C’s current complaint. This is because Miss C could have complained about this sooner.

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page