Central Bedfordshire Council (21 010 722)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 26 Jun 2022

The Ombudsman's final decision:

Summary: Mrs X complained that the Council failed to provide her son’s special educational provision in line with his Education, Health and Care (EHC) plan. She also complained that the Council delayed issuing a final EHC plan after a review. Mrs X said this impacted her son and the wider family and caused her stress. We find the Council at fault for delay issuing the amended EHC plan. This caused injustice. The Council has agreed to make a payment to Mrs X to reflect the injustice caused. We do not find the Council at fault regarding special educational provision.

The complaint

  1. The complainant, who I refer to here as Mrs X, complained that the Council failed to provide her son’s special educational provision in line with his Education, Health and Care (EHC) plan. She also complained that the Council delayed issuing a final EHC plan after a review.
  2. Mrs X said this has impacted on her son’s education and mental health, and has impacted on the wider family. She said it has caused her stress and meant she had to leave her job to get her son support.

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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 question whether an organisation’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)
  3. 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)
  4. 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 considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
  2. I considered the relevant legislation and statutory guidance, set out below. I also considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

  1. Section F of an Education, Health and Care (EHC) plan sets out the special educational provision required to meet a child’s needs. Councils have a legal duty to provide the special educational provision specified in an EHC plan. If a school’s resources, either financial or expertise, cannot make the provision outlined in the plan, the council must provide it.
  2. EHC plans can be amended for certain reasons. To amend an EHC plan, a council must send the parent a notice detailing the proposed amendments. The parent must be given at least 15 calendar days to comment and make representations on the proposed changes. After this, a council must issue an amended EHC plan as quickly as possible, and within eight weeks of the amendment notice.

What happened

  1. Mrs X’s son, C, has special educational needs. In December 2019, the Council issued C’s Education, Health and Care (EHC) plan. This set out the special educational provision and support he would get while at his mainstream school.
  2. In September 2020, C’s EHC plan was reviewed. Mrs X asked the Council to change C’s educational provision from mainstream schooling to a special residential placement. The Council said it would commission an assessment by an educational psychologist. It also said it would put in place alternative provision to support C.
  3. In October, the Council told Mrs X it would make amendments to C’s EHC plan.
  4. In November, the Council agreed to change C’s educational provision from mainstream to a residential placement. The Council immediately began contacting relevant schools to find C a place.
  5. In December, the Council issued the first draft amended EHC plan.
  6. In January 2021, The Council agreed with Mrs X that it would not be conducive to issue a new amended EHC plan without the updated assessment from an educational psychologist, which was in progress.
  7. In March, the Council received the educational psychologist’s assessment.
  8. In April, the Council started to look at interim arrangements for C’s education because of the time it was taking to find a suitable residential placement. The Council suggested a place at a different school which provided bespoke therapeutic education for children with special educational needs. Mrs X declined this.
  9. In April and May, the Council issued three further draft amended EHC plans. At the end of May, the Council issued the final amended EHC plan.
  10. In May, the Council told Mrs X it would look into a package of Education Otherwise Than At School (known as EOTAS) for C. The Council offered C a place at an alternative educational setting which catered for children with special educational needs. Mrs X declined this because she worried about the impact of too many changes or transitions which C could not cope with.
  11. In June, Mrs X complained to the Council.
  12. In July, the Council told Mrs X it had consulted with a suitable residential setting who could offer a placement for C.
  13. The Council replied to Mrs X’s complaint. It agreed it had not issued C’s final amended EHC plan within the statutory timeframes. It said this was because there were delays getting the educational psychologist’s assessment. The Council said there had been extensive joint working with Mrs X and professionals on the draft plan before it finalised the plan. It apologised for the distress and worry the delay caused.
  14. Regarding educational provision in line with C’s EHC plan, the Council said it had provided substantial additional support to the school to support C while he attended there. This included additional staff training, resources for increased adult support, mentoring in school, and access to some off-site alternative provision. It said the mentoring had been successful, but C was not accessing the alternative therapeutic provision put in place.
  15. The Council recognised it had taken a long time to identify a specialist residential school for C. It said it had only consulted residential settings once Mrs X had agreed. It said it had already offered alternative provision for C as an interim measure before Mrs X asked for EOTAS. It listed what this alternative provision was. The Council said it had been in regular communication with Mrs X throughout.
  16. Part of Mrs X’s complaint was that, as an interim measure while looking for a residential placement, the Council had looked to place C in a school which she said was unsuitable for C’s long-term education. The Council said this suggestion was only as an interim measure, and was not meant to be for C’s long-term education. It explained that it felt the school was suitable as an interim measure because it offered a holistic service of care and education within a therapeutic environment.
  17. Mrs X then complained to the Ombudsman.

Analysis

Special educational provision

  1. Mrs X complains that the Council failed to provide C’s special educational provision in line with his Education, Health and Care (EHC) plan.
  2. Until the final amended EHC plan was issued in May 2021, the Council was obliged to make sure C received the special educational provision set out in his 2019 EHC plan. This plan says all special educational provision for C was to be delivered by the teacher or SENDCo (the Special Educational Needs and Disability Coordinator within the school).
  3. While the Council found the place at the residential setting, it provided the school with additional support so the school could continue to provide C’s education in line with his EHC plan.
  4. C attended one class with his peers. The rest of the time, C received one-to-one support in a different room. The Council says this was a bespoke learning environment. I agree. It is clear from both the Council and Mrs X that it was not in C’s best interests to receive an education in the same classroom as his peers for every class.
  5. The Council accepts that some elements of C’s EHC plan could not be delivered. I find that these elements were either the parts of the EHC plan that related to C being in a classroom environment with his peers (which largely he was not), or that C had disengaged from some of the alternative provision put in place (equine therapy, for example).
  6. I bear in mind that between September 2020 and May 2021, the Council was amending C’s EHC plan to reflect the changes in his educational needs and what was to be provided.
  7. The final EHC plan, issued in May 2021, set out the changes to C’s educational provision. The mainstream school would provide this until the end of summer term 2021 (after this, C would be at the residential school).
  8. I have considered what each of C’s EHC plans set out in terms of special educational provision. I find that the Council made the provision available. I therefore do not find the Council at fault.
  9. I do not find fault with the Council for not being able to provide all the provision set out in C’s EHC plan after September 2020. I find that parts of the 2019 EHC plan were no longer relevant because C was mainly not attending classes with his peers. I find that the provision set out in EHC plan was available for C, where appropriate.
  10. Mrs X complains that C only received a part-time timetable. I do not find the Council at fault for this. During this time, the Council was amending C’s EHC plan and waiting for the educational psychologist’s assessment. So, I cannot say that a full-time timetable would have been suitable for C.
  11. While amending C’s EHC plan, the Council gave the school additional resources to make sure C could still access an education while in a mainstream environment.
  12. I do not agree that C’s timetable, whether full- or part-time, is a failure to provide the educational provision set out in either of C’s EHC plans. For this reason, I do not find the Council at fault.
  13. Mrs X complains that C was being taught in a cloakroom. The Council says when Mrs X brought this to its attention, it inspected the room. It says the room used to be a cloakroom but it had been converted for use as a bespoke learning environment. The Council considered the room was an appropriate space for bespoke teaching.
  14. I cannot disagree with the Council’s assessment of the suitability of the room C was being taught in. I find the Council acted without delay to investigate and inspect the room, and it found the room was suitable. This is a decision the Council is entitled to make. I do not find the Council at fault for this.
  15. Mrs X complains that the Council, as an interim measure (while looking for a special residential school) suggested a specialist school that would not meet C’s long-term needs.
  16. I find this option was never intended to be a long-term solution or proposal. It was an interim measure. I do not find the Council at fault for suggesting what it considered could have been a more appropriate setting for C: it was a special learning environment for children with special educational needs, unlike the mainstream school C was attending.

Delay issuing final EHC plan

  1. Mrs X complains that the Council delayed issuing C’s final amended EHC plan after the review in September 2020.
  2. I find the Council told Mrs X it would amend C’s EHC plan in October 2020. It issued the final amended EHC plan in May 2021, seven months later.
  3. The Council accepts it did not issue the final amended EHC plan within the timeframe set out in law. The Council says it was waiting for the educational psychologist’s assessment and was working collaboratively with Mrs X to produce the final EHC plan.
  4. While it is positive that the Council took such an approach to amending C’s EHC plan, the law is clear: an amended EHC plan must be issued within eight weeks. In this case, that would have meant issuing the final amended EHC plan in December. The Council did not do this. This is fault. This fault caused Mrs X injustice because it denied her a right to appeal the EHC plan if she wanted.
  5. I am satisfied that the Council has apologised (in both complaint responses) for the injustice caused by the delay.

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Agreed action

  1. Within four weeks of my final decision, the Council will make a payment to Mrs X of £250 for the injustice caused by the delay in issuing C’s final amended EHC plan. In reaching this figure, I have taken into account the following:
    • the impact of not receiving the educational psychologist’s assessment for months, and how important this assessment was in finalising C’s EHC plan;
    • COVID-19 lockdowns in late 2020 and early 2021;
    • the Council was in regular communication with Mrs X about the delay (which shows good practice); and,
    • the Ombudsman’s published guidance on remedies.
  2. Usually the Ombudsman would propose a remedy of approximately £100 per month for each month of delay. I have reduced that amount given the above factors. I have concluded that £50 per month is a suitable remedy for the delay. This is in line with the Ombudsman’s published guidance on remedies.
  3. The Ombudsman will need to see evidence that this action has been completed.

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Final decision

  1. I have completed my investigation. I uphold the part of Mrs X’s complaint about delay issuing the final amended EHC plan. I find this fault caused injustice. The Council has agreed to make a payment to Mrs X to reflect the injustice caused.
  2. I do not uphold the part of Mrs X’s complaint about failure to make the educational provision set out in C’s EHC plan. This is because there is no fault.

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Investigator's decision on behalf of the Ombudsman

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