The Ombudsman's final decision
Summary: Mr X complains about the Council’s handling of his child’s (Child Y) Education, Health and Care Plan (EHCP) last year. The Council should have better explained why it would not reimburse the costs Mr X has incurred. It has also not done enough to remedy the injustice caused to Child Y due to a lack of special education needs provision for the first two months of school. The Council has agreed to apologise and make payments to Mr X for his time and trouble and Child Y for missed provision.
The complaint
Mr X complains about the Council’s handling of the annual review of his child’s (Child Y) Education, Health and Care Plan (EHCP) last year. Mr X is unhappy that the Council has upheld his complaints about its handling but has not offered any meaningful remedies to address the impact caused to Child Y and the rest of the family. Mr X also believes the Council has not made any tangible improvements to its procedures to help avoid similar problems in the future as stated in its complaint responses. Mr X wants the Council to reimburse the costs his family incurred in obtaining professional reports privately and their legal costs in pursuing this matter at the SEND Tribunal.
What I have and have not investigated I have investigated the Council’s handling up to the point Mr X’s right of appeal to the SEND Tribunal became active in February 2021 and following the conclusion of the appeal and the issuing of Child Y’s final EHCP on 25 November 2021.
Part of Mr X’s complaint to the Council included his concerns about how it had processed his requests for personal data under the Data Protection Act 2018. I have explained in paragraphs 5 and 59 of the statement why I cannot investigate this element of Mr X’s complaint.
I have explained at the end of this statement why I cannot investigate Mr X’s concerns about the section I of the EHCP and the Council’s handling in respect of Mr X’s appeal to the SEND Tribunal.
The Ombudsman’s role and powers
We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. (Local Government Act 1974, section 24A(6), as amended) The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), 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 a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended) 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) 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)
How I considered this complaint
I have spoken to Mr X and considered the information he has provided in support of his complaint.
I have considered the information the Council has provided in response to my enquiries.
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.
Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Relevant guidance Special Educational Needs A child with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the SEND Tribunal can do this.
Key transfers EHCPs should be reviewed annually. An EHCP must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education, to allow for planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year of the transfer at the latest for transfers into or between schools. The key transfers are: early years provider to school infant school to junior school primary school to middle school primary school to secondary school, and middle school to secondary school Where a council proposes to amend an EHCP, the law says it must send the child’s parent or the young person 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) 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) Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHCP as soon as practicable and within eight weeks of the date it sent the EHCP and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196) Provision The Council has a duty to secure the specified special educational provision in an EHCP for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135) Appeal rights Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHCP. The right of appeal is only engaged when the final amended plan is issued.
The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHCP we cannot seek a remedy for lack of education after the date the appeal was submitted if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
Where the Tribunal orders a council to amend an EHCP, the council shall amend the EHCP within five weeks of the order being made. (Special Educational Needs and Disability Regulations 2014)
Background
Child Y has special educational needs. They have received support at nursery school through an EHCP, first issued by the Council in August 2019.
In October 2020, the Council started the annual review process for Child Y’s EHCP. Mr X and his wife indicated a preference for Child Y to be placed at School B. School B is a mainstream school with special educational needs resource. Child Y’s twin would be attending School B and Mr X and his wife felt Child Y would benefit from being with their twin.
Following a meeting in January 2021, School B advised the Council that it would not be offering a school place to Child Y. It felt it could not meet Child Y’s needs and that a mainstream school would be too much for Child Y to cope with.
On 12 February 2021, the Council issued a final EHCP to Mr X. It explained School B’s refusal to offer Child Y a place and that it would work with Mr X and his wife to secure an alternative placement. The Council’s covering letter advised Mr X of his right to appeal to the SEND Tribunal at this point.
Mr X and his wife challenged School B’s refusal through the Council. During March 2021, they had correspondence and meetings with the Council, School B and other professionals about Child Y’s needs and how they could be supported at School B. Mr X also highlighted concerns that the Council had not obtained updated assessments of Child Y from professionals as part of the annual review.
The Council arranged for professional assessments of Child Y from a Speech and Language Therapist (SALT), Occupational Therapist (OT) and Education Psychologist (EP). The SALT assessment was completed on 18 March 2021 and the EP report completed on 30 March 2021.
Mr X remained unhappy with the Council’s handling and School B’s continued refusal to offer Child Y a place. He lodged an appeal with the SEND Tribunal in late April 2021.
In late July 2021, Mr X privately obtained SALT, OT and EP assessments of Child Y. The Council’s commissioned OT undertook their assessment of Child Y on 15 July 2021.
On 6 September 2021, School B’s term started and Child Y’s twin attended. The Council had yet to secure a placement for Child Y. On 23 September 2021, Council commissioned 12 hours of weekly home tuition started for Child Y, while it resolved issues with their school placement.
Meetings between the Council, School B and Mr X eventually led to Child Y securing a place at School B. They started with a part-time transition on 4 October 2021 and attended full-time from 27 October 2021.
The SEND Tribunal completed a paper hearing on 22 October 2021, in which it ordered the Council to amend Child Y’s EHCP in line with the working document submitted to it. The Council issued the final EHCP on 25 November 2021.
The Council was unable to secure one-to-one Higher Level Teaching Assistant (HLTA) support for Child Y until 21 February 2022 and the OT provision Child Y needed until 26 April 2022.
Mr X’s complaints Mr X made a stage one complaint to the Council on 28 January 2022, in which he complained the Council had failed to: instruct reviews by SALT, OT and EP ahead of the annual review and in turn update sections B, F and I of Child Y’s EHCP; provide a timely and complete response to Mr X’s Subject Access Request provide statutory reasons why School B had refused a placement to Child Y and delayed consideration of Mr X’s suggestions of changes to accommodate Child Y; provide a school placement for Child Y at the start of the academic year; and, implement the provision contained in Child Y’s EHCP within statutory timescales.
Mr X requested the following remedies from the Council: A full review of the complaint, lessons learned and written apology; Reimbursement of costs incurred in obtaining private SALT, OT and EP assessments and legal costs involved in appealing to the SEND Tribunal; Compensation for the distress caused to Child Y by their delayed start at School B; and, Speedy implementation of all provision in Child Y’s final EHCP.
The Council responded to Mr X’s stage one complaint on 14 March 2022. It upheld complaints a, c, d and e (listed above) and explained it had not received Mr X’s Subject Access Request. The Council explained it had made changes to its procedures to improve how it completed EHCP annual reviews. The Council also apologised for the complaints it had upheld. The Council confirmed it had taken longer than it should to implement all the provision in Child Y’s EHCP. It noted HLTA support had been secured recently and it was working with School B and Mr X (and his wife) to secure the outstanding OT provision.
Mr X escalated his complaint to stage two on 5 April 2022. He explained he did not accept the Council’s explanations for delays in securing Child Y’s placement at School B or the provision specified in their EHCP. Mr X also expressed his concern at the Council’s lack of response to the remedies he had requested.
The Council responded to Mr X’s stage two complaint on 5 May 2022. It explained it had nothing further to add to its previous response in respect of complaints it had upheld at stage one. The Council apologised to Mr X in respect of complaint b as it had since discovered it had received his Subject Access Request. The Council explained its complaint process was not a compensatory service and could not consider Mr X’s requests for reimbursement or compensation.
Mr X brought his complaints about the Council to us as he remained dissatisfied with its response.
Analysis SALT, OT and EP reviews The Council has accepted it was at fault for not at the very least considering if it needed to obtain professional reviews of Child Y’s needs before it completed its annual review in February 2021.
The Council did however obtain SALT and EP reports for Child Y in March 2021 while it was trying to resolve the issues with Mr X and his wife. These appear to have then fed into the changes the Council sought to make to Child Y’s EHCP during the course of Mr X’s appeal to the SEND Tribunal.
The OT review commissioned by the Council was not completed until 15 July 2021. It is unclear from the evidence I have seen whether the Council even informed Mr X that an OT would be assessing Child Y on this date. I can therefore understand Mr X’s frustration when he had presumably already commissioned his own OT assessment by this point.
Mr X says he had no choice but to commission private professional assessments of Child Y. While that might have been correct in respect of the Council’s annual review in February 2021, this was no longer the case in March 2021, by which point the Council had received two out of the three required professional reviews.
In response to our enquiries, the Council has explained that it did not offer to reimburse Mr X’s costs for obtaining his own professional assessments as it had already completed its own. It also highlighted that the SEND Tribunal had favoured the advice of its OT over the OT Mr X had instructed. It is therefore disappointing the Council did not explain this to Mr X when it responded to his complaints. In addition, I note Mr X’s stage one complaint explains that he obtained these professional reviews to assist with his appeal to the SEND Tribunal.
In conclusion, I agree there appears no good cause for the Council to reimburse the costs Mr X incurred in obtaining his own professional assessments of Child Y. The Council was however at fault for the lack of clarity in its communication with Mr X. It failed to give him or his wife adequate, or any, notice of its OT assessment in July 2021 and then did not explain why it would not reimburse their professional assessment costs. This has caused avoidable confusion and frustration to Mr X which the Council has now agreed to remedy.
Legal costs Mr X decided to seek legal advice to assist with his appeal to the SEND Tribunal and incurred costs in excess of £24,000, which he believes are a result of the Council’s mishandling.
We only exceptionally recommend reimbursement of such costs if they directly and necessarily flow from the fault identified. I do not consider it is appropriate to recommend the Council reimburses Mr X’s legal costs. Mr X raised his concerns about Child Y’s EHCP directly with the Council and it was working with him and School B to try to resolve these issues. I am therefore not satisfied Mr X’s legal costs were unavoidable. I am mindful Mr X was concerned about the time taken by the Council to rectify the issues and why this might have led him to involve a legal advisor when lodging his appeal to the SEND Tribunal. However, there is no general expectation that parents instruct a solicitor to pursue an appeal.
Delay in Child Y’s SEN provision The Council has accepted and apologised to Mr X for the delay in implementing the HLTA and OT provision specified in Child Y’s EHCP by the time they started at School B, which I commend. Our jurisdiction only allows me to consider the impact this had on Child Y from the date the final EHCP following the SEND Tribunal direction was ordered.
In my view the Council has not done enough to remedy the impact or injustice caused to Child Y by this delay. I have therefore recommended it takes further action below to address this for the just over two months of term time Child Y has spent at School B without this provision.
Lack of procedural changes Mr X says he does not believe the Council has made any tangible changes to its procedures to prevent recurrence of the issues he and his family have experienced.
In response to our enquiries, the Council has explained it has made changes to the structure of its SEN Team to better manage and complete timely processing of new EHCP assessments and annual reviews. It has provided statistical data to demonstrate how these changes have helped reduce the amount of outstanding annual reviews on the team.
The Council has also explained that it appointed a senior SEN Officer for Child Y to provide consistency of contact for Mr X and his wife. The Council says Senior Officer completed weekly meetings with Mr X and his wife until the outstanding HLTA and OT provision was implemented. Based on this, I am satisfied the Council has sought to take tangible steps to improve its service following Mr X’s complaint.
Agreed action
Within one month of my final decision, the Council agrees to: apologise to Mr X for injustice caused by the lack of clarity in its communication with him; pay £200 to Mr X for the time and trouble of pursuing his concerns; pay £800 for the benefit of Child Y’s education for the term time they spent without HLTA and OT provision The Council should provide us with evidence it has complied with the above actions.
Final decision
I have completed my investigation and uphold Mr X’s complaint. This has caused Mr X and Child Y injustice and the Council has agreed to take action to take further action to remedy that injustice.
Parts of the complaint that I did not investigate We have no jurisdiction to investigate complaints about how a council has processed a Subject Access Request for personal data under the Data Protection Act 2018. I understand Mr X has already approached the Information Commissioner’s Office (ICO) about this matter.
As explained in paragraph 21 above, the courts have said that we cannot investigate matters that are either appealable or ‘inextricably linked’ to matters under appeal. This means we cannot investigate Mr X’s complaints about how the Council dealt with: School B’s initial refusal to admit Child Y; the delay in securing Child Y’s placement at School B; or, the lack of HLTA and OT provision at School B from the date Child Y started school to when the Council issued the final EHCP following the SEND Tribunal hearing (4 October 2021 to 25 November 2021).
The way the Council conducts itself within the Tribunal process is a matter for the Tribunal and not something we can investigate. The Tribunal can make case management directions, has powers to deal with non-compliance and can make costs orders.
Investigator's decision on behalf of the Ombudsman