Essex County Council (18 004 457)

Category : Education > Alternative provision

Decision : Upheld

Decision date : 25 Sep 2019

The Ombudsman's final decision:

Summary: After a previous finding by the Ombudsman, Mrs X complains the Council continues to fail to provide her son with a suitable education and the special education needs provision he is entitled to. The Ombudsman found there was fault by the Council when it took too long to carry out a reassessment of her son’s Education, Health and Care Plan. It also failed to put in place suitable alternative provision for his education for five months after his school excluded him. This fault caused a significant injustice to her and her son and the Council has accepted our recommendation it should apologise and pay a financial remedy.

The complaint

  1. Mrs X complains the Council continues to fail to provide her son with a suitable education and the special education needs (SEN) provision he is entitled to. She says:
  • The Council has failed to ensure her son receives the provision detailed in his Education, Health and Care Plan (EHCP).
  • The Council took too long to agree to review her son’s EHCP and then took too long to issue a new version once it had decided to.
  • Her son has not received a full-time education for several years and efforts since January 2017 have involved untrained staff and personal carers rather than a qualified teacher.
  • No suitable alternative provision has been made for her son’s education since he was excluded in June 2018.
  • The Council has failed to put the procedural changes agreed with the Ombudsman in a previous investigation into practice on a day-to-day basis.

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What I have investigated

  1. I have investigated the actions of the Council in this complaint. While the law makes councils responsible for the education provision in an EHCP, other aspects of a child’s education are a matter for his or her school. The Ombudsman cannot investigate these, for reasons I will explain at the end of this statement.
  2. The Ombudsman has previously investigated a complaint from Mrs X. I have decided I can only look at events after January 2017, to avoid crossover with the previous investigation. Given Mrs X says the issues she has faced are continuing, I also had to limit my investigation going forward. I decided February 2019 was appropriate, as that is when Mrs X formally asked the Ombudsman to look at her latest complaint. This means events after that date fall outside of this investigation.
  3. Finally, I recognise Mrs X has asked the Ombudsman to look into events dating back further than 12 months. Having seen the evidence, I am satisfied Mrs X has been in regular dialogue with the Council to express her concerns since our last investigation. There are also enough records on which to base a robust decision. On that basis, I believe there is good reason to investigate Mrs X’s complaint now.

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The Ombudsman’s role and powers

  1. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  2. 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)
  3. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
  4. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
  5. 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)

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How I considered this complaint

  1. I spoke with Mrs X to discuss her complaint and read the information she sent to the Ombudsman. I wrote to the Council to make enquiries and reviewed the information it sent in response.
  2. I have considered relevant legislation in this area and the “Special educational needs and disability code of practice: 0 to 25 years”, which is statutory guidance which councils are expected to follow.
  3. I shared my draft decision with Mrs X and the Council and I invited them to comment on it.
  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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What I found

  1. Mrs X brings her complaint on behalf of her son, who I will refer to as Y in this statement. Y is a child with severe learning difficulties. The Ombudsman has previously investigated a complaint from Mrs X. We ended that investigation with a public report, which we issued in November 2017. We found fault with several aspects of the Council’s approach to arranging Y’s education.

Delivery of EHCP provision

  1. 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 councils, schools and local health bodies should make to meet them. The EHCP has different sections. We cannot direct changes to the sections about education, or name a different school. Only the SEND Tribunal can do this.
  2. The Council is responsible for making sure the arrangements mentioned in Y’s EHCP are in place. We can look at complaints about this, such as where the Council has not provided or arranged the support set out in the EHCP, or where there have been delays in the process.
  3. The SEN Code of Practice says, “provision must be detailed and specific and should normally be quantified, for example, in terms of the type, hours and frequency of support and level of expertise, including where this support is secured through a Personal Budget.”
  4. Mrs X says the Council has consistently failed to ensure Y’s school has given him what his EHCP promises. She feels it has let him down and not given him the same educational opportunities as other children with similar needs.
  5. Educational provision is in Section F of an EHCP. The Council says the provision it has decided on is suitable for Y’s ‘complex and unique’ needs. It says measures that work on one occasion may not work later. It believes the EHCP is sufficiently detailed to enable the outcomes to be achieved, while giving the provider the ‘flexibility needed’.
  6. The Ombudsman would normally use the content of Section F to decide whether someone with an EHCP is receiving the provision promised. It would be fault if a council failed to do what it said it would. However, I have reluctantly concluded the way in which the Council has written Section F makes it impossible for me to decide with any certainty whether the Council has met its responsibilities to Y. This is because the way the provision is written is very broad.
  7. I cannot find fault with Section F of Y’s EHCP as its content is within the jurisdiction of the SEND Tribunal. The Council believes the wording it has chosen is suitable and, in the circumstances, the only way Section F will change is if the Council agrees with Mrs X to do so or if the SEND Tribunal orders it after an appeal.

Review of the EHCP

  1. Y’s first EHCP came into force in February 2016, when it replaced his statement.
  2. The Council told the Ombudsman the first review falling within the period under investigation should have happened in January 2018. It says Y’s school tried to arrange it, but Mrs X cancelled the meeting. Mrs X says she was unaware of this meeting. The Council says there were efforts to rearrange the review, but it accepts it did not happen. Later, in July 2018, Mrs X and Y’s school both asked for a reassessment of Y’s needs. The Council says it started this in July 2018 and completed his new EHCP in February 2019.
  3. The SEN Code of Practice says a reassessment should take a maximum of 14 weeks between the decision to reassess and the issuing of the final EHCP. Although the Code suggests reasons a delay may be allowable, I do not consider any apply to this case.
  4. The failure to review Y’s EHCP on time, and then the further failure to complete his reassessment in a way which was compliant with the Code, were both fault. Even allowing for the fact Y’s school would have been a significant contributor to the reassessment, and there will have been periods where the school closed for holidays, there is no justification for taking around 29 weeks.
  5. Having found fault, I have to consider the injustice caused to Mrs X or Y. I have compared the two EHCPs, noting of course Y’s original EHCP remained in place while the reassessment was happening. The main injustice our guidance says we should look to put right is the loss of educational provision. Although Section F’s wording differed between the two plans, for the reasons I have already explained it is difficult to quantify what Y missed out on while the reassessment was happening.
  6. I note Y was out of school from July 2018 because he was excluded. The reassessment took place at a time when Y was not accessing any meaningful education. The Council was aware of this and it should have been treated with more urgency.
  7. There is no evidence the delay in Y’s reassessment contributed to him being out of education, particularly as the same school was named in the revised EHCP issued in February 2019. However, I accept a significant personal injustice was caused to Mrs X as a result of this happening at the same time as Y was not in school. This was in the form of the stress and frustration caused to her.
  8. The Council told the Ombudsman it accepted there was an element of delay and offered a financial remedy of £300 for this. I think this payment should be £500 in recognition of the effect the background events while the delay was ongoing had. As I will explain below, the Council was at fault for those events and so I take into account its effect on the injustice here too.
  9. Mrs X told me she feels Y’s EHCP still is not finished. However, the Council completed it in February 2019 and told her about her appeal rights. She did not appeal. Mrs X says this was because she was working with the Council at the time.
  10. The Council told me that, because of more recent developments, it is likely to have to amend Y’s EHCP again. This will trigger further appeal rights. If Mrs X is still unhappy with the content of Y’s EHCP at that point, she can consider appealing to the SEND Tribunal.

Education provided between January 2017 and June 2018

  1. Mrs X complains Y has not received the education he is entitled to for several years. She says he was receiving little classroom time and anything that did happen, was only possible because of her personal involvement in organising it. She says she had to liaise with various professionals to try to get Y the education he is entitled to. Mrs X says this has been extremely stressful for her.
  2. She has particular concerns about the long-term effect on Y of his lack of inclusion. She believes she provided around 1200 education hours which were otherwise unallocated by the Council, between late 2016 and June 2018. She has asked the Council to pay her for this time but it has refused.
  3. The Council says it has met its statutory duties to Y. It says he has ‘complex medical needs’ and it believes many of the steps taken have been with Mrs X’s agreement.
  4. It says it has previously suggested alternatives for Y’s education – for example placing him in a residential setting – but Mrs X has opposed that. The Council says Ofsted says Y’s school is ‘Outstanding’ and it is the best option in the circumstances.
  5. Under section 19 of the Education Act 1996, if a child of compulsory school age (between 5 and 16 years old) cannot attend school for reasons of illness, exclusion from school or otherwise, the council must arrange to provide ‘suitable education’. This can either be at school or elsewhere.
  6. The term ‘suitable education’ is defined as efficient education suitable to the child’s age, ability and aptitude and to any special educational needs they may have.
  7. The education arranged by the council must be full-time, unless, in the interests of the child, the council considers part-time education more suitable. This would be for reasons relating to the child’s physical or mental health.
  8. I have seen the planning that went into Y’s education. Aside from his EHCP, I have also seen timetables, lesson plans and learning diaries documenting the work he completed. This is not a case where the Council, and through it the school, did nothing at all. I have also seen Y’s attendance records. These show in 2016/17, Y’s overall attendance was 88.1%. In the following school year, it was similarly strong until May 2018. Mrs X disputes the accuracy of these records. However, the attendance register is a matter for Y’s school, and I cannot investigate whether it has been correctly filled out.
  9. In the first half of 2018, Y was attending Monday to Thursday for a ‘slightly reduced’ school day. The Council says this was to avoid busy drop off and collection times which could cause Y anxiety. Y’s EHCP names his school but also allows him to “…access educational provision through a bespoke programme delivered otherwise than at school”. It does not say Y has to be in the school itself for a specific number of days or hours.
  10. Mrs X understandably believes Y should have more opportunities and exposure to education. She wants the best for her son. However, it is not for the Ombudsman to make those sorts of determinations, as the background relies heavily on the professional judgement of those involved in Y’s education. It also touches on the internal management of the school.
  11. We would expect the Council to be able to show engagement with relevant professionals, such as its SEN officers, the headteacher and an educational psychologist, in Y’s case. In this case there was and so I cannot find grounds to say there was fault.

Alternative provision since June 2018

  1. Y’s situation changed in June 2018, when he received a short-term exclusion from his school. The Council’s evidence suggests this was because of several incidents involving violence towards teachers within a short period of time. The exclusion then continued for many weeks.
  2. The Council says it recognised Y was now absent from his education and met with the school and Mrs X. It says it agreed with Mrs X plans for alternative provision for Y’s education would start in September 2018. This is because it would have been difficult to do so in the time remaining in the school year, given Y’s complex needs. The Council has produced emails showing the headteacher of Y’s school quickly began trying to identify a provider to supply staff to teach Y at home.
  3. The school identified a provider and believed, after discussing Y’s case, it was suitable. It agreed the agency would provide two staff members to work with Y at home in August 2018. However, when the new school year started, Mrs X had concerns about some of their interactions she saw with Y and their training and backgrounds. She quickly told the school. Y’s headteacher withdrew from the agency agreement soon afterwards and accepted it was not suitable.
  4. There then followed a further period in which the school approached other agencies, but they could not help. Eventually, it decided to reemploy a former staff member to work specifically with Y. The school still had to go through a formal recruitment process, which took time. The Council says it kept Mrs X updated about this.
  5. Ultimately, recruitment of the new staff member took until January 2019. The arrangement seemed to work at first but then broke down again the following month.
  6. I accept the Council, and Y’s school, kept Mrs X updated about its efforts to recruit staff to work with Y. However, even though she may have suggested she understood their difficulties, her comments did not override the Council’s duty to Y. The Council should not have placed so much weight on its opinion of Mrs X’s position, given the other stresses she is clearly under.
  7. Y received no substantial education in July, September, October, November and December 2018. The small amount in September quickly turned out to be unsuitable. Although I appreciate Y has complex needs, it is not right that it took Mrs X’s intervention to identify the issues in September. The Council is responsible for the lack of alternative provision for Y’s education, especially as the breakdown in his placement at his school was somewhat foreseeable. This was fault.
  8. I am satisfied this caused a significant injustice to Y. Children have a legal right to an effective education and any time they miss is difficult to replace later. Our guidance suggests a financial remedy for this injustice, on a scale from £200 to £600 per month. It is my view the injustice in this case sits in the middle of this scale, given the difficulties in finding a provider able to work with Y’s complex needs.
  9. There was also an injustice to Mrs X. The Council caused her avoidable distress in the form of undue significant stress, inconvenience and frustration by not making suitable alternative arrangements for Y’s education. The Council should remedy this as well.

Changes since previous Ombudsman investigation

  1. Finally, Mrs X says the Council has failed to put into practice the procedural changes it agreed in response to the Ombudsman’s previous public report.
  2. Having read the report, I can see most of the remedies proposed were personal to Mrs X and Y. However, we also asked the Council to review its procedures to ensure it monitors the suitable alternative education put in place for those out of school.
  3. In this case, there was a failure to identify suitable alternative education for Y. However, the Council had involvement in that process, getting updates from the school and Mrs X. There is no evidence it failed to monitor it properly. I cannot conclude there was fault on this point.

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Agreed action

  1. By 25 October 2019, the Council has agreed to:
    • Write to Mrs X to apologise for the delays in reviewing Y’s EHCP and then the reassessment process and its failure to fulfil its duty to provide alternative provision for Y’s education in the second half of 2018.
    • Pay Mrs X £1000. This is £500 for the frustration caused to her by the EHCP issue and £500 for the avoidable distress it caused in not finding alternative provision for Y’s education quickly enough.
    • Pay a further £2000 to Mrs X, for Y’s benefit, in recognition of the five months he was outside of education with no alternative provision of note in place.
  2. By 25 November 2019, the Council has agreed to commission, at its own cost, a suitably qualified and experienced independent person to report on how it should meet Y’s education needs going forward. The Council will consult Mrs X about the person it intends to appoint before doing so. The person completing the report should meet with Mrs X and Y in person, as well as taking evidence from professionals already engaged with Y’s case, so they can reach robust conclusions. A copy of their report will be shared with Mrs X and the Ombudsman.
  3. The Council should update the Ombudsman when it has completed these actions.

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Final decision

  1. There was fault by the Council when it took too long to carry out a reassessment of Y’s EHCP. It also failed to put in place suitable alternative provision for his education for five months.

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Parts of the complaint that I did not investigate

  1. Mrs X has expressed significant concern about the performance of Y’s school in her correspondence with the Ombudsman.
  2. We cannot investigate this, as the law says the internal management of schools is outside the Ombudsman’s jurisdiction. This means decisions about things like exclusions, whether an absence is authorised, the use of funding provided by the local authority, the allocation of staff and timetabling are not a matter for us.
  3. Mrs X should direct her complaints about the school its governors in the first instance.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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