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Barnsley Metropolitan Borough Council (21 006 470)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 10 Apr 2022

The Ombudsman's final decision:

Summary: Mrs X complained the Council delayed finalising her child, Y’s, Education, Health and Care plan and did not ensure they received provision in line with the plan. She also complained about poor complaints handling. The Council was at fault. The delays and poor service have caused Mrs X frustration and distress and Y has missed out on provision. The Council has agreed to offer Mrs X a financial remedy for the injustice caused to herself and Y.

The complaint

  1. Mrs X complained the Council:
      1. Delayed amending and finalising her child, Y’s, Education, Health and Care Plan between January 2017 and January 2019;
      2. Did not ensure her child received speech and language therapy in line with their plan during 2018-19; and
      3. Handled her complaint poorly.
  2. In its complaint response to Mrs X, the Council accepted fault as there was unreasonable delay finalising the plan and poor complaint handling. It has offered her £1000 as a remedy. Mrs X does not consider this sufficient to remedy the injustice caused to her and her child. She says her son has missed out on educational provision and they have been caused uncertainty, distress and financial loss.

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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 investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended). I have decided there are good reasons to investigate this complaint during the time periods stated in Paragraph 1. Mrs X says she did not know she could bring her complaint to us earlier, which is reasonable in this case as the Council has accepted there were delays and errors in its handling of Mrs X’s complaint.
  3. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
  4. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), 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. 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.
  7. 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)
  8. 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. I read Mrs X’s complaint and spoke with her about it on the phone.
  2. I considered information provided by the Council and Mrs X.
  3. I considered our Guidance on Remedies.
  4. Mrs X and the Council had the opportunity to comment on the draft decision. I considered all comments received before making a final decision.

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What I found

Legal and administrative background

Education, Health and Care Plans

  1. Some children and young people with special educational needs and disabilities will have an Education, Health and Care Plan (EHC Plan). The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs.
  2. EHC Plans came into being from September 2014 onwards, as part of the Children and Families Act 2014. Children who had a Statement of Special Educational Needs had their statements gradually transitioned over to an EHC Plan as part of the annual review process.
  3. The Special Educational Needs Code of Practice provides statutory guidance for councils on how to assess, maintain, amend or discontinue EHC Plans. A council must review a child’s EHC plan at least every 12 months. After the review meeting, the council must tell the child’s parents whether it intends to maintain, amend or discontinue the plan within 4 weeks.
  4. If it intends to amend the plan, the Code does not state a specific timescale but says the council must start this process “without delay”. The council must then send the parents a copy of the EHC plan with a notice of proposed amendments. The parents then have a chance to make representations about the content of the plan or the proposed amendments.
  5. The council must issue the final amended plan within 8 weeks of the date it sent the proposed amendments to the parents.
  6. If a person disagrees with the content of an EHC Plan, they have a right of appeal to the SEND Tribunal.
  7. After an EHC Plan is finalised, councils have a duty to ensure the special educational provision set out in the Plan is delivered. This duty is set out in the Children and Families Act 2014 and is non-delegable. Councils usually use the annual review process to satisfy themselves that school-based provision listed in a plan is being delivered and the child is achieving or making progress towards their identified outcomes. However, if, in between annual reviews, a Council becomes aware of concerns a school is not delivering provision, we would expect it to act to address this.

The Council’s complaints procedure

  1. Councils must have complaints procedures to support the effective handling of complaints. Barnsley Metropolitan Borough Council’s policy has two stages.
    • Stage One – investigation and resolution

The Council will acknowledge receipt of the complaint within 3 working days. It will then contact the person to discuss the complaint and agree a timescale for the investigation. This can be between 10 and 65 working days. It will then write a complaint resolution plan and provide the complainant with a copy. It will ensure the person receives a full written response form the person investigating the complaint.

    • Stage Two – complaint review

If a person is unhappy with the stage one response, the Council may offer a complaint review. This is not another investigation but will look at providing a response to points a person feels remains unanswered. This can take between 10 and 30 working days.

  1. If a person remains unhappy after the stage two response, the Council will advise them they can contact the Local Government and Social Care Ombudsman.

What happened

  1. Mrs X’s child, Y, has Special Educational Needs (SEN). Up until 2017, Y had a statement of SEN which set out specialist provisions to meet their needs. This included Speech and Language Therapy.

Y’s EHC Plan

  1. In January 2017, the Council met with Mrs X to review Y’s provision and transfer it from a statement into an Education, Health and Care plan (EHC plan).
  2. The Council produced a draft EHC plan in March 2017, but Mrs X did not agree with it. She requested amendments to the plan.
  3. Between March 2017 and April 2018 Mrs X and the Council met to discuss amendments to the plan and had multiple email correspondences. However, they did not agree an amended plan.
  4. In April 2018, Mrs X complained to the Council. She said it was now over a year since the transfer review meeting and Y still did not have a finalised EHC plan.
  5. The Council issued a further draft amended plan in May 2018. Mrs X did not agree with the plan but asked the Council to finalise it to give her appeal rights to the SEND tribunal.
  6. The Council provided a stage two complaint response in July 2018. It upheld her complaint about unacceptable delay in the EHC plan process. It apologised for this and the uncertainty and distress caused. It said it would now finalise the plan.
  7. The Council did not finalise the plan until January 2019. Mrs X was dissatisfied with the content of the plan and appealed to the SEND Tribunal.
  8. In its final complaint response to Mrs X in March 2021, the Council accepted there had been significant delays in the process and it had not met the statutory timescales to issue the EHC plan. It also acknowledged there was an additional six-month delay between July 2018 and January 2019, when it agreed to finalise the plan but did not do so. It offered Mrs X £850 as a financial remedy to recognise the distress and uncertainty caused.

Y’s speech and language therapy provision

  1. In January 2018, Y was attending school A. The Speech and Language therapy set out in their statement was being delivered in the school setting. The service model in place was a consultative model, where the NHS Speech and Language Therapist (SALT) devised Y’s therapy programme and provided training to school staff on how to deliver this. School staff then provided the SALT sessions for Y. The SALT service reviewed progress regularly and updated Y’s therapy programme as needed.
  2. In March 2018, Mrs X asked school A for an update on Y’s SALT sessions. The school replied and said Y was having SALT sessions each morning for 20 minutes. It said it had spoken to the SALT service who said they were doing well with their programme and had identified areas to focus on moving forward.
  3. In April 2018, the SALT contacted the school. She said she had recently visited to review Y at school and the staff member delivering Y’s programme had told her that, due to staffing problems, Y may sometimes only receive therapy sessions twice a week and some weeks not at all. They asked the school to ensure staff were allocated the time to complete Y’s SALT sessions each week.
  4. In late April, Mrs X attended an annual review meeting. She told the Council she was concerned school A was not delivering the SALT sessions. School told her that it had two staff members trained to deliver the programme and Y was receiving SALT every day. It said the staff member who said it was only being delivered twice a week was not aware there was another staff member delivering it on days when they did not.
  5. In May 2018, school A confirmed to the SALT service that it was delivering Y’s SALT programme 4 days a week. The SALT service was satisfied school A was delivering the programme as intended. It reviewed Y again later that month.
  6. In November 2018, school A wrote to Mrs X. It said Y was doing well in their SALT sessions. Mrs X thanked school A for the update and asked it whether it could provide more information for her about what Y was doing in the sessions.
  7. School A replied to say it would ask the staff member delivering the sessions if there was any information they could send home. It also agreed to upload pictures to the school’s parent information site so Mrs X could see what Y had been doing.
  8. The Council says its records show Mrs X again told it she was concerned Y was not receiving the SALT provision in March 2019. However, due to a lack of records, it cannot say what action it took in response to her concerns or how it satisfied itself school A was delivering the SALT provision as set out in Y’s plan at this time.
  9. The Council held an annual review in April 2019.
  10. In June 2019, the SALT service emailed school A. It said it had met with Y and the staff member trained to deliver Y’s SALT programme last week. The staff member told them it was not being delivered regularly due to staffing issues. The school replied and said this was true that provision was “hit and miss”, however it had recently recruited two new members of staff, so it would be able to deliver Y’s programme regularly again soon.
  11. In July 2019, the SALT service met with Y and their class teacher to review the programme and Y's progress.
  12. Mrs X met with the Council. She told it she was concerned Y was not receiving the SALT provision.
  13. In August 2019, Mrs X complained to the Council. She said it had not ensured Y received their SALT provision and this had led to a lack of progress.
  14. In September 2019, Y’s new teacher contacted Mrs X. They said they were meeting with the SALT therapist to ensure they understood their SALT goals and could support these during lessons. They also agreed to email Mrs X with weekly updates, including what Y had been working on in the SALT sessions.
  15. Between September and November 2019, the school updated Mrs X each week with what Y was working on in their SALT sessions.
  16. In its response to our enquiries, the Council accepted there were gaps in its record keeping. It says there were no records of how staff monitored Y’s SALT provision between January 2018 and July 2019 or how it satisfied itself that school A was delivering the provision. It says since Mrs X‘s complaint it had invested in improvements in this area. It now had a stable staff team and had introduced new systems to ensure more robust and complete record keeping.

Complaint handling

  1. In its complaint response to Mrs X in March 2021, the Council accepted it did not share the complaint response plan with Mrs X and that there were delays in its complaint handling. It apologised to Mrs X for these errors and offered her £150 to acknowledge the time and trouble she had gone to pursuing her complaint.
  2. In its response to our enquiries, the Council said it accepted it had also caused confusion by misinforming Mrs X that its complaints procedure had three stages and not two. This was due to a misunderstanding about what complaints procedure was being used. It said it apologised to Mrs X for this at the time, but accepted this error caused further frustration and delay.
  3. The Council said it apologised unreservedly to the family. It also told us it had reconsidered its offer of financial remedy for poor complaint handling. It said it had decided £500 was more appropriate to recognise the distress caused and a further £200 for time and trouble. This brings the Council’s total financial remedy offer for poor complaint handling to £700.
  4. It said it had also learnt lessons from Mrs X’s case and improved its complaints handling processes. It had shared the lessons with relevant services and now included any areas of concern in its quality assurance framework so they were audited as part of ongoing improvement. It had also invested in workforce development and in the skills of its teams. It now closely tracked all complaints to ensure they were responded to in reasonable timescales.

Analysis

Delay finalising Y’s EHC Plan

  1. The Council took two years to finalise Y’s EHC Plan. The Council has accepted these delays were unacceptable. I agree with this finding which is fault. The delays caused Mrs X considerable uncertainty, frustration and distress. It also delayed her right of appeal to the SEND Tribunal.
  2. The Council has offered Mrs X £850 to acknowledge the delays and distress caused. In considering whether this is a suitable figure, I have reviewed our Guidance on Remedies and published decision statements about similar issues on our website. Our Guidance on Remedies says payments for distress are usually between £100-300 but can be up to £1000 if the distress is severe and prolonged.
  3. In this case there was considerable delay and Mrs X was put to considerable time and trouble trying to reach agreement on the EHC Plan and complaining to the Council that it had not been finalised. The Council’s offer of £850 to acknowledge this is in line with our remedies guidance and remedies we have suggested in similar cases. This figure is a suitable remedy for this part of the complaint.

Speech and Language Therapy provision

  1. There is no evidence which shows Y did not receive SALT provision between January and July 2018, or that the Council was made aware it was not being delivered during this time. In March 2018, school A told Mrs X that Y was receiving the SALT provision each morning and in April 2018, it confirmed this again in a review meeting. The SALT service reviewed Y again in May and was satisfied Y was receiving the SALT provision in their plan.
  2. There are no records from September to October 2018, but in November 2018, school A told Mrs X that Y was doing well with their SALT provision and agreed to share evidence of their sessions with her. On balance, I consider it more likely than not that Y was receiving the SALT provision during this time.
  3. Mrs X raised concerns with the Council that Y was not receiving their SALT provision in March 2019. There are no Council records to show the Council took any action in response to Mrs X’s concerns, so on balance, I consider it did not. In June, the school confirmed it was not delivering all Y’s SALT provision due to staffing issues. Based on this evidence and on the balance of probabilities, I consider it more likely than not that Y did miss out on some SALT provision between March and July 2019 although I cannot know how much. The Council had a duty to ensure Y received the provision set out in their plan and it did not do this during this time. This is fault. This lost provision caused Y an injustice and I have recommended a suitable remedy below.
  4. The evidence shows Y did receive their SALT provision from September to November 2019.

Complaint handling

  1. The Council has accepted it made errors during its handling of Mrs X’s complaints and there were significant delays. This is fault which caused Mrs X distress and she has gone to considerable time and trouble pursuing her complaint. The Council’s increased offer of £700 is a suitable remedy to recognise the considerable time and trouble Mrs X has gone to over this protracted period. It should now make this offer to Mrs X.

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Agreed action

  1. Within one month of the final decision the Council will make a financial remedy offer to Mrs X. It will offer her:
    • £850 for the delays in finalising the EHC plan;
    • £700 for poor complaints handling; and
    • £500 to be used for Y’s educational benefit as Mrs X sees fit. This is to remedy Y’s lost SALT provision between March and July 2019.

If Mrs X accepts, it should pay these amounts to Mrs X within the month and provide evidence to the Ombudsman that it has done this.

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Final decision

  1. I have completed my investigation. I have found fault and the Council has agreed action to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman

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