The Ombudsman's final decision
Summary: Mr X complaineds the Council has failed to enable his son, Z, to access suitable full-time education. As a result Z has missed the education he should have received and it has had a significant impact on Mr X, his wife and their other children.
The complaint
Mr X complaineds the Council has failed to enable his son, Z, to access suitable full-time education. As a result Z has missed the education he should have received and it has had a significant impact on Mr X, his wife and their other children.
The Ombudsman’s role and powers
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.
The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. We cannot investigate if they have already appealed to the tribunal. (Local Government Act 1974, section 26(6)(a), as amended) We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended) We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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) We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide: further investigation would not lead to a different outcome, or we cannot achieve the outcome someone wants.
(Local Government Act 1974, section 24A(6)) 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)
How I considered this complaint
I considered the complaint and documents provided by Mr X and spoke to him. I asked the Council to comment on the complaint and provide information. Mr X and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decisionI considered the complaint and documents provided by Mr B and spoke to him. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Mr B and the Council and considered their comments. .
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.
What I found
Summary of the relevant law, guidance and good practice Section 19 of the Education Act 1996 (the Act) says each local authority will make arrangements for the provision of suitable education at school, or otherwise than at school, for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them. The Act goes on to say suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he or she may have.
Government guidance makes clear that where a council knows a child is not receiving suitable full-time education, or not receiving the number of hours they could benefit from, it should step in to arrange provision.
Where the Tribunal orders a council to amend an Education, Health and Care Plan (EHCP), the council shall amend the EHCP within five weeks of the order being made. (Special Educational Needs and Disability Regulations 2014) Summary of relevant events Z has a medical condition which requires frequent monitoring and intervention. He went to a local mainstream primary school which he had attended since September 2019. There was a plan in place - Individual Health Care Plan for a Child or Young Person in the Education Setting – which set out his medical condition and how it was to be managed. When he was in school it was the responsibility of the school to carry out the interventions needed. In October 2020 the school decided it could not carry out the interventions as it considered the system in use was not medically authorised. Mr X and his wife therefore withdrew Z from school. Z has not attended school since then.
Mr X took what had happened to a SEND Tribunal claiming the school had discriminated against Z on the grounds of his disability. In summary, the Tribunal found in his favour and ordered various actions by the school. The Tribunal concluded that Z had been out of school through no fault of the parents as the actions of the school had left them with no alternative other than to keep him home.
The same Tribunal members had shortly before this also considered an appeal by Mr X that the Council should issue an EHCP for Z. The background to this is that in November 2020 the Council had refused to issue a plan. The Tribunal again found in favour of Mr X and directed the Council to issue an EHCP for Z “on a rapid timetable”. The key point at issue was the need for Z to have 1:1 support in school – a position the Tribunal supported.
The Council issued a draft EHCP at the end of June. Mr X immediately complained as it did not include for the provision of 1:1 higher level teaching assistant support. There was a meeting between various officers and Mr and Mrs X and the Council issued a further draft EHCP.
A final EHCP was issued in early September when a school place had been found for Z.
Analysis I am considered ing the actions of the Council from when the school said it could no longer support the equipment Z was using in school. I am not considering the school’s actions as they have already been before the tribunal.
The Council provided legal advice to the school. It has did not share d that advice with usme as it considereds it is legally privileged. Mr X has argued it wasis no longer privileged as the school waived privilege at one of the tribunal hearings. The Council did oes not agree with that view and saysid its client, the school, considered s the advice to beis still privileged. I I cannot decide this argument and is, I consider, one which can only be determined by a court. We would normally accept that legal advice is privileged and I do not consider II do not have grounds to deviate from that position.
OurMy role is to consider whether there has been administrative fault. The Council’s position was informed by legal advice and following contact with its insurance brokers. That said it agreed with the Council’s position that the school could not be held liable for the use of the equipment and there needed to be an agreed plan in place. This advice was based on information provided by a Council officer which in turn was based on information from the head teacher. I do not consider that was an accurate reflection of the information provided by the head. But this was only one part of the Council’s role here. The most significant was the provision of legal advice on which I cannot come to a view. While I consider the information given to the insurers to be fault I cannot say it was in itself significant in the decisions made by the school.
That was the proper process to follow and I cannot, therefore, question the decision it reached. II say that knowing the Tribunal was critical of the stance taken by the school which in turn was supported by the Council. But the Tribunal was addressing itself to different matters. I am only looking at the way the Council came to its view and I consider that was done without fault.
The Council also had a role because Z was not attending school. As I I explain above where it knows a child is not receiving education it should step in. Here its position was there was a place available for him at the school if agreement could be reached on a different method of monitoring his medical conditions. It said his absences should be recorded as unauthorised. Again the Tribunal was critical of this. It commented Mr and Mrs X had no choice but to remove Z from school and it was inappropriate that his absences were recorded as unauthorised. But the Council’s position followed from the view it had reached on the school’s approach and as I I consider there was only limited no fault in that there is not a basis to I cannot criticise its conclusions there was a place available at the school. And it did not, therefore, need to make other educational provision.
Once the outcome of the tribunals was known then the position changed. The Council needed to issue an EHCP and to make provision for Z.
The first draft of the EHCP was issued very slightly over the required five weeks. I do not consider thThere was any no delay here that amounted s to fault. Mr and Mrs X considered that the level of one to one support it specified for Z fell well short of what would be needed. And that the tribunal had commented it considered significant support would be needed. Mr and Mrs X complained and there was a meeting between them and Council officers. The minutes of the meeting record that officers said that the draft plan had been created by an agency caseworker who may not have had all the paperwork. And they were sorry they (Mr and Mrs X) had been put in this position. They would ensure that a plan that reflected Z’s needs would be produced.
I do not consider tThe Council did not have had proper regard to all the relevant information when producing the draft plan. The reports of Z’s needs and the comments by the tribunal pointed to a far higher level of support than had been specified. The comments made by the officers when they met with Mr and Mrs X indicate that they recognised the level specified was too low. This will have added to the time taken to produce the final plan. A revised draft was issued at the end of July and the final in August. I consider tThe fault I refer to will have delayed the issue of the final plan by about three weeks.
Once the plan was issued Z was still not attendingin school. During the consideration of the plan the Council had approached Mr and Mrs X’s preferred school but it had said it could not accept Z as the class was already full. The Council eventually directed the school to take Z. However he was not able to start there because the required level of teaching support was not in place. I do not consider tThere was any no fault by the Council over this period.
As Z was not in school, the Council needed to be making suitable alternative provision for him. I am only considering the period from the date of the tribunals in May to the end of October, Z was receiving four hours of home tuition a week. I do not consider tThis could not be considered to be an appropriate level of education. I consider that gGiven the level of Z’s needs and the support provided the Council should make a payment of £400 a month for the period from the tribunal at the end of May to the middle of October when Mr X complained to us. I calculate that to be a period of three months, allowing for school holidays. This is to reflect the impact on Z’s education.
Mr X also said he considered the Council officers had had contact with medical professionals involved with Z. I have seen emails requesting input into the tribunal process and then the issue of the EHC plan. There is nothing untoward in that correspondence. The Council has said it considers there may have been a meeting between an officer and a medical professional but has not been able to provide any more information about that. If there had been a meeting a proper record should have been kept. But even if there was some failing here I do not consider that I I cannot achieve anything more. I am not goingcannot to be able to establish if there was a meeting, or if there was what, if any, the consequences were. If Mr X considered there had been a breach of date protection requirements that would be a matter for the Information Commissioner’s office.
Recommended Agreed action The Council shouldwill, within a month of the final decision, make a payment of £1450 to Mr and Mrs X.
Draft Final decision Subject to further comments by Mr X and the Council, I intend to find there was fault which caused injustice.
Investigator's decision on behalf of the Ombudsman