South Tyneside Metropolitan Borough Council (21 015 973)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 29 Aug 2022

The Ombudsman's final decision:

Summary: Mr X complained about delays in the Council’s communication, especially in issuing a finalised Education and Health Care Plan and responding to his complaint. He says this caused him significant distress. The Council accepted fault and agreed to remedy the injustice.

The complaint

  1. Mr X complained about the delays in the Council’s communication, especially in issuing a finalised EHC plan and responding to his complaint. He says this caused him significant confusion over the summer holidays about where he would be studying at the start of the academic year.

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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. If we are satisfied with an organisation’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)

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How I considered this complaint

  1. As part of the investigation I have considered the following:
    • The complaint and the documents provided by the complainant.
    • Documents provided by the Council and its comments in response to my enquiries.
    • The Children and Families Act 2014, Special Educational Needs and Disability Regulations 2014 and the Special Education Needs Code of Practice 2015 (“the Code”).
    • The Councils Complaints Policy.
  2. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and regulations

  1. A young adult or child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the young adult or child’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, or name a different school. Only the tribunal can do this.

Arrangements for reviewing an EHC plan

  1. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
  2. Within four weeks of a review meeting, a council must notify the young adult or 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)
  3. Where a council proposes to amend an EHC plan, the law says it must send the young adult or the child’s parent 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)
  4. The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
  5. Following comments from the young adult or the child’s parent, 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 young adult or the child’s parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
  6. Young adults or a child’s parents have a right of appeal to the Special Education Needs and Disability (SEND) Tribunal if they disagree with the special educational provision or the school named in the EHC plan. The right of appeal is only engaged when the final amended plan is issued.

The Council’s policies and procedures

  1. The Council has a three-stage process to deal with complaints.
  2. The first stage is informal and focuses on putting things right. The service manager of the relevant team or a senior member of the Customer Advocate Team will do this. A complainant will not usually receive a written response unless they ask for one.
  3. The second stage is a formal investigation carried out by a senior manager who is not involved with the complaint. The Council sends an acknowledgement of the complaint and a full response within 15 working days. If the Council needs more time, it will contact the complainant and let them know what is happening.
  4. For the third stage, the Chief Executive will appoint an Officer to investigate a complaint on their behalf. The Officer has not previously been involved in the complaint and is not employed in the service area. The individual investigator will send an acknowledgement of the complaint and a full response within 20 working days. If they need more time, they will contact the complainant and let them know.
  5. If the complainant isn’t happy with the response, they can contact the Ombudsman.

What happened

  1. I have summarised below the key events; this is not intended to be a detailed account.
  2. Mr X is a young adult and lives with his family.
  3. Mr X has a diagnosis of Autism Spectrum Disorder (ASD). He can find social interaction challenging and he is easily overwhelmed by noisy and busy environments. He has issues with his sleep pattern which impacts on his mood and ability to focus.

Drafting and reviewing the EHC Plan

  1. The Council drafted Mr X’s original EHC plan in March 2020.
  2. The Council held an annual review meeting in February 2021.
  3. The Council held a Post 16 SEND Panel in March 2021. The Panel agreed three full days education for Mr X, starting in September at a named school. The Council telephoned Mr X and his mother after the Panel meeting to tell them the decision.
  4. Mr X asked for five days of education. The Council took the case back to Panel in April who agreed three days education and two days social care. The Council telephoned Mr X and his mother after the Panel meeting to tell them the decision.
  5. Mr X discussed the plan with his Social Worker and expressed he still wanted five days of education rather than a mix of education and social care. The Council took Mr X’s request back to the Panel in July 2021. The Panel agreed to four days education and one day social care provision. The Council telephoned Mr X and his mother after the Panel meeting to tell them the decision.
  6. The Council started the social care assessment in July 2021. There were delays in securing social care provision due to staffing issues and because of COVID-19. Mr X started accessing social care provision in March 2022.
  7. The Council completed the amended EHC plan in September 2021
  8. Mr X started attending the named school in September 2021.

Mr X’s complaint to the Council

  1. Mr X complained to the Council in July 2021. Mr X said he was unclear how many days he would be attending the named school and had not received a copy of his EHC plan. He also said he found it difficult contacting his SEND Officer and knowing how to complain.
  2. The Council issued a stage one response within seven days.
  3. Mr X asked for a stage two investigation at the end of July 2021. The Council issued a stage two response in November 2021.
  4. Mr X asked for a stage three investigation at the beginning of December 2021. He received a stage three response at the beginning of January 2022.
  5. Mr X complained to the Ombudsman at the end of January 2022. He said the Council took more than 30 weeks to complete his amended EHC plan and there had been delays in addressing his complaint. He also said his stage three complaint was not investigated by an independent external body. He said the matter caused him significant distress.

Analysis

  1. The Council admitted fault in its response to Mr X’s complaint and in its response to my enquiries.

Drafting and reviewing the EHC Plan

  1. The Council has explained it met the initial timescales to review Mr X’s EHC plan. It held the annual review meeting within the 12 month timescale set out in the Code. It also held the first Panel meeting within the four week timescale set out in the Code. The Council telephoned Mr X and his mother to inform them of the decision. I find no fault in the Council’s initial review of the EHC plan.
  2. The Council recognises there was delay completing the EHC plan. It failed to issue the revised plan within the eight week deadline as set out in the Code. The Council has accepted this is fault and upheld this part of Mr X’s complaint. In its complaint response, the Council apologised to Mr X for the distress and anxiety caused.
  3. Mr X started at the named school at the beginning of the academic year. He did not miss any education provision. In a conversation with me, he said he does not feel like he has missed any sections of his EHC plan because of the delay in the review.
  4. Mr X did miss some social care parts of his EHC plan, but this does not form part of his substantive complaint to the Ombudsman.

Mr X’s complaint to the Council

  1. The Council accepted there were significant delays in responding to Mr X’s complaint.
  2. In its complaint response to Mr X and in response to my enquiries, the Council explained there was a misunderstanding about how it was to respond to the complaint and by which Officer. This caused delay in the investigation.
  3. The Council admitted fault and upheld this part of Mr X’s complaint. In its complaint response, the Council apologised to Mr X for the distress and anxiety caused.
  4. The Council has explained it has made changes to its internal complaints process to prevent similar mistakes happening again. The Information and Feedback Team (“the Team”) now email Officers to tell them the time frame for their response to the complaint as well as sending an alert through the internal complaints system. The Team also works with Officers to check investigations are on target and ready for completion within the deadlines. If an Officer needs extra time, the Team contacts the Complainant in advance to tell them about the delay and agree an extension.
  5. Mr X also complained the Council did not appoint an independent external body to conduct his stage three investigation. Mr X told me he discussed this with an Officer of the Council. I have summarised the Council’s complaints procedure in paragraphs 14 to 18. The Council’s complaints procedure states at the third stage of a complaint, the Chief Executive appoints someone who is not employed in the service area complained about to investigate the matter on their behalf. This information is publicly available online and was explained to Mr X. The Council followed its procedure in Mr X’s case. I do not find the Council at fault. In response to my enquiries, the Council said it was not clear where Mr X’s expectation had come from but apologised for any confusion it may have caused.

General communication

  1. The Council has explained there were great difficulties experienced by the SEND Service team during this time. Half the Officers were on long-term sickness, and the team were struggling with the impact of COVID-19. In response to my enquiries, the Council recognised it could not provide its usual standard of service and would like to apologise to Mr X for the upset and distress caused.

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Agreed action

  1. Within four weeks of the final decision being issued, the Council has agreed to:
    • Apologise in writing to Mr X for the distress and anxiety caused by the lack of general communication, delay in finalising the EHC plan and investigating his complaint.
    • Make a payment to Mr X of £200 to recognise the time and trouble in making his complaint.
    • Make a payment to Mr X of £100 to recognise the distress and anxiety caused by the delay in finalising his EHC plan.

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Final decision

  1. I have completed my investigation. The Council admitted it failed to finalise the EHC plan and respond to Mr X’s complaint within the normal time frame. The Council’s communication was also below standard.

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Investigator's decision on behalf of the Ombudsman

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