The Ombudsman's final decision
Summary: Miss X complained about the Council’s failure to provide her son, Y, with the provision set out in his Education, Health and Care (EHC) plan between June 2021 and July 2022 after he moved to the Council’s area. The Council was at fault when it failed to secure the provision set out in Y’s plan. It delayed naming a school placement and failed to adhere to statutory timescales for sending EHC documents. The Council should pay Miss X £4,100 to remedy the impact the faults had on Y’s education. It should also pay Miss X £200 for the distress and frustration it caused when it delayed naming a mainstream school for Y. The Council should remind relevant staff of the timescales for sending documents relating to EHC plans.
The complaint
Miss X complained about the Council’s failure to provide her son, Y, with the provision set out in his Education Health and Care (EHC) Plan between June 2021 and July 2022. Miss X says the Council placed Y in an unsuitable temporary school setting and provided tutoring which was unable to deliver the content of his plan.
Miss X says the lack of provision has impacted on Y’s academic and social development. She says it has caused distress, upset and frustration, and has led to a deterioration in Y’s mental health.
What I have investigated I have investigated Miss X’s complaint about the Council delivering the content of Y’s EHC plan. I have not investigated her complaints about the school, or about complaints before June 2021 and I explain why at the end of this statement.
The Ombudsman’s role and powers
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) 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) 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.
We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended) It is unlawful to treat someone less favourably someone because of age, race, religion, or disability. We can consider whether an authority has had “due regard” to their duties under the Equality Act. However, only a court can say whether a council has acted unlawfully or in breach of the Equality Act.
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 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.
How I considered this complaint
I spoke to Ms X about the complaint and considered information she provided.
I considered information provided by the Council.
I considered our Guidance on Remedies.
I considered relevant law and statutory guidance, including: The Special Education Needs and Disability (SEND) Regulations 2014.
The Special Educational Needs and Disability (SEND) Code of Practice.
Ms X and the Council had the opportunity to comment on the draft decision. I considered comments before I made a final decision.
What I found
Background information Education, Health and Care plans A child with special educational needs 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. 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. The right of appeal is only engaged when the final amended plan is issued.
The council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
Transfer of EHC plans between councils Where a child or young person moves to another council, the ‘old’ council must transfer the EHC plan to the ‘new’ council. The new council must tell the child’s parent or the young person, within six weeks of the date of transfer, when it proposes to make an EHC needs assessment. (Special Educational Needs and Disability Regulations 2014) The new authority may, on the transfer for the EHC plan, bring forward the arrangements for the review of the plan and may conduct a new EHC needs assessment. (SEN Code paragraph 9.160) The new council must review the plan before one of the following deadlines, whichever is later: Within 12 months of the plan being made or being previously reviewed by the old council, or Within 3 months of the plan being transferred. (SEN Code paragraph 9.161) The requirement for young person or child to attend the educational placement specified in the EHC plan continues after the transfer. However, where attendance to the named placement would be impractical then the new council must place the child or young person temporarily at an appropriate placement other than that specified. This is until the EHC plan is formally amended.
Alternative provision Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013) Where a child is placed at an alternative placement the provision must be arranged in line with a child or young person’s EHC plan. A council may need to amend a plan or consider whether the EHC plan needs to be reviewed to ensure the child or young person is appropriately supported. (SEN Code paragraph 10.42) Annual reviews & re-assessment The SEND code of practice (the Code) provides guidance to councils on how to ensure it fulfils its statutory duties.
Following comments from the child’s parent or the young person, if the council decides 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) If the council decides to re-assess it has 14 weeks from the decision to re-assess to the issuing of a final EHC plan. The council must aim to complete the process as soon as practicable. (Section 27(2) SEND Regulations 2014 and SEN Code paragraph 9.192)
Background
Y is a child with special educational needs (SEN). He lived in Council A’s area. In February 2021 Council A finalised his EHC plan. The plan said Y would transition to a mainstream secondary school in September 2021. The plan said Y would receive 1-1 support to regulate his emotions, daily peer work and daily social interactions with adults and peers. It also included weekly work with a learning mentor to develop his understanding of social interactions.
In May 2021 Y moved to live in the Council’s area. The Council received Y’s EHC plan from Council A in June 2021 and accepted responsibility for the plan. The Council decided Y should attend a mainstream school and sent out consultations in early July 2021. It did not send Miss X a letter notifying her when it would review the plan or conduct a needs assessment of Y and did not arrange for interim educational provision at the time.
Miss X complained to the Council in July 2021. She told the Council it had not provided any education for Y, or the provision set out in his EHC plan. She told the Council its offer of online tutoring in September 2021 would be inappropriate because it would be confusing and distressing for Y.
The Council responded 14 days later and told Miss X that it had sent consultations to mainstream schools, but that this had run into the school holidays and therefore there was a delay in naming a school. It said tutoring for the start of September 2021 was a temporary measure until a school could be found.
Y did not receive tutoring in September 2021 as Miss X believed this would be inappropriate and would not meet Y’s needs.
Between June 2021 and December 2021, the Council sent consultations to several mainstream and special schools. However, the mainstream schools responded saying they could either not meet Y’s needs or were full.
In October 2021 a special educational provision, school J, offered Y a placement. After visiting the provision Miss X declined the placement and said it was not suitable. She told the Council that Y was used to a mainstream setting and raised concerns that a special school would be unsuitable.
In early November 2021 Y was offered a placement at an alternative provision, school K. School K said it could meet Y’s needs in the short term but said the Council should continue consulting with other schools as it was unsuitable in the long term. Y started at school K in mid-November 2021.
Miss X wrote to the Council in December 2021 and in January 2022 and requested a stage 2 complaint response. She said Y’s provision, including 1-1 support and an educational psychologist review, was still not being provided and raised concerns that the plan had not been reviewed.
In mid-January 2022 the Council held an annual review meeting for Y’s EHC plan. During the meeting Miss X reiterated her view that Y should attend a mainstream school. The Council decided to amend the plan.
In February 2022 Ms X wrote to the Council and told them that school K was dangerous, and that Y had been attacked by an older child. She said Y’s mental health had significantly deteriorated and Y was unable to manage at the school. Miss X withdrew Y from school K.
The Council sent Miss X a stage 2 complaint response. It told her: The EHC plan was not converted to its own format due to being unable to secure a named mainstream school for Y. It said it had wanted to name a special provision, school J, but Y was unhappy during the visit and therefore a different alternative provision, school K, was identified to understand Y’s needs for the purpose of identifying an appropriate school.
The Council could not review the EHC plan until Y had attended school K and his needs had been reviewed and reports provided. This would then form the basis of enquiries to other schools.
School K could not provide the full provision outlined in Y’s EHC plan such as his social and emotional provision but could provide some of the provision whilst it assessed Y’s needs.
A review had been scheduled for January 2022. It told Miss X if it held a review before obtaining updated information about Y’s needs then schools may not accept Y based on outdated information.
Consultations to other provisions were sent.
School K could consider off-site provision.
In March 2022 the Council sent Miss X a draft copy of Y’s updated EHC plan.
Between March 2022 and June 2022, the Council continued to send consultations to mainstream and special schools. It received further rejections as the schools said they could not meet Y’s needs. A special school offered Y a placement, but Miss X believed Y should attend a mainstream school and declined the offer.
In April 2022 Miss X sent a further complaint to the Council. She said the Council had failed to name an appropriate school and deliver the provision set out in his EHC plan since June 2021.
The Council responded in late April 2022 and told Miss X that it had tried to find an appropriate placement. It repeated it had offered special schools in October 2021 and March 2022, but Miss X did not accept these. It said it had assessed Y’s needs at school K and held the annual review. It accepted the current arrangement was unable to provide all the provision listed in the EHC plan but said it would consider final responses from mainstream schools and hold a panel.
In early May 2022 a tutor began providing Y with 10 hours of educational input per week at the local library.
In June 2022 Miss X requested the additional complaint be considered again at stage 2. She raised concerns about the suitability of school K and the behaviour of pupils and staff at the provision. She said the Council was providing 10 hours of tuition for Y, but said the tutor had no training in supporting children with Y’s needs. She asked the Council why it had not named a mainstream setting and raised concerns Y was being discriminated against because of his disabilities.
In June 2022 Y’s tutor withdrew their services because Y had walked away from the library several times and the tutor could not guarantee his safety. The tutor also said it was clear Y did not want to be at the library. School K offered to arrange another tutor with experience in supporting children with Y’s needs, but Miss X declined.
In June 2022 the Council held a panel and instructed a mainstream placement, school L, to admit Y. The Council then finalised Y’s EHC plan in the same month and named school L as Y’s placement from September 2022.
The Council sent Miss X a final stage 2 response in July 2022. It said: It had consulted with schools since Y moved to the area, but the schools did not feel able to meet Y’s needs.
Miss X had declined the offer of special schools.
It reviewed Y’s plan in January 2022 and sent further consultations, but the schools responded and said they were unable to meet Y’s needs.
School K was able to support children with needs like Y’s and said it was investigating the other concerns. It apologised that it had not been able to name a school for Y.
Apologised for the lack of contact and acknowledged this could have been better.
Said a panel had been held and a mainstream school, School L had been named.
Disagreed that Y had been discriminated against because of his disabilities and reiterated the Council had taken steps to secure Y an appropriate school.
Miss X remained unhappy and complained to us. She said: The online tutoring offered in September 2021 was not reasonable because the family are a large household, and she could not support Y to focus and engage with an online tutor.
The tutoring offered in May 2022 did not meet Y’s social needs and the tutor was not trained to meet a child with Y’s needs.
In response to our enquiry letter, the Council reiterated its response to Miss X at stage 2. It apologised for the delays in securing the correct provision for Y and any distress caused. It said once Y stopped attending school K, several alternative strategies were offered including provision of a specialist tutor, tuition at home or in another public space, and having work sent home. Miss X had declined these offers.
Analysis EHC plan transfer Within 6 weeks of transfer, and in line with statutory guidance, the Council should have written to Miss X to tell her when it intended to review the plan and whether it intended to conduct an EHC needs assessment of Y. It did not do so, which was fault. The fault caused Miss X uncertainty about when the plan would be converted to the Council’s format and what provision would be provided to Y.
EHC plan review & named school The Council held a review of the plan in January 2022. Upon accepting the plan, the Council must review the plan either by 12 months of the old plan or within 3 months – whichever later. It did so within 12 months of the previous plan being completed. This is not fault.
The Council sent Miss X a draft copy of the EHC plan in March 2022. The SEND Regulations state a council has 8 weeks to send the final plan after a draft is issued. The Council sent the final plan to Miss X 16 weeks later. This is not in line with statutory timescales and is fault.
The Council made enquiries with education providers and held a panel in June 2022 to instruct a mainstream school to admit Y. It made efforts to consult with a wide number of schools throughout the year but received rejections from all mainstream schools. Once the Council received several rejections it could have held a panel to consider instructing a school to admit Y at an earlier stage. It did not do so, and this is fault.
These faults led to a delay in the Council naming a school for Y and caused him uncertainty about his future provision.
The faults also delayed Miss X’s right of appeal to the SEND Tribunal about the content of the plan and the named provision. It caused her distress, frustration and uncertainty about the educational provision Y would receive.
Temporary educational provision The Council accepted responsibility for Y’s EHC plan in June 2021. No arrangements were made to provide Y with the content of his plan in June or July 2021. This is fault.
The Council offered online tutoring to Y in September 2021 to meet its section 19 duty. Miss X declined this because it would not meet Y’s needs, deliver the provision set in his plan, and because she could not support him to engage in this type of provision from home. There is no evidence the Council considered any other alternative provision. Y therefore received none of the provision set out in his EHC plan between September 2021 and November 2021. This is fault.
The Council placed Y at an alternative provision, school K, between November 2021 and February 2022. Y received most of his educational provision and the content of his plan, but the Council accepted it was not able to meet the social and emotional provision. This is fault.
Miss X removed Y from school K in February 2022 because Y was distressed and unable to engage in this setting. The Council attempted to organise tutoring and other home learning at various times between February and July 2022. Miss X declined some of these offers and the tutor withdrew their services after three weeks. Whilst tutoring may have met some of Y’s educational needs, it would not have met the provision in line with his plan. This is fault.
As a result of the above the Council did not meet its duty to deliver the content of the EHC plan between June 2021 and July 2022. There were times Y received some of the education and provision he was entitled, but this was inconsistent. This is fault, which led to a disruption in Y’s education at a key transition between primary and secondary school. It caused him to miss the provision he was entitled to and caused him uncertainty. It also caused Miss X distress and frustration about the provision Y was entitled.
Equality act Miss X complained that the Council breached its duties under the Equality Act (2010) and discriminated against Y because of his disabilities as it had not named a mainstream school. I have not seen evidence of direct or indirect discrimination by the Council. In any case, the Ombudsman cannot say whether the Council breached the Equality Act, only the courts can do this.
Agreed action
Within one month of the final decision the Council agreed to: Write to Miss X and apologise for the distress and uncertainty it caused when it delayed in securing the provision set out in Y’s EHC plan.
Pay Miss X £4100 for the benefit of Y’s education and socialisation. This represents a loss of education and socialisation over 39 weeks he would have received, taking into consideration holiday periods and times that Y was provided with some education at the alternative provision and by tutors.
Pay Miss X £200 to acknowledge the uncertainty it caused when it failed to secure the provision outlined in Y’s EHC plan.
Write to relevant staff and remind them of the requirement to inform a parent within 6 weeks of the transfer of an EHC plan when the Council intends to complete a review of the plan and whether it intends to conduct a review of the child’s needs.
Write to relevant staff and remind them of the requirement to issue a final EHC plan within 8 weeks of a draft being issued.
Final decision
I completed my investigation. I found fault and I have made recommendations to remedy the injustice caused by the fault.
Parts of the complaint that I did not investigate I did not investigate Miss X’s complaint about the conduct of staff and bullying in school K. This is because we cannot investigate what happens in schools.
I have also not investigated Miss X’s complaints about provision prior to June 2021 as these concerns are about a different Council.
Investigator's decision on behalf of the Ombudsman