The Ombudsman's final decision:
Summary: Mrs X complains the Council did not follow the statutory procedure when it arranged the annual review of her son’s Education, Health and Care Plan. Additionally, she complains it failed to provide him a suitable education in accordance with Section 19 of the Education Act 1996, and did not follow its own policy when it dealt with her complaint about these matters. The Ombudsman has found the Council was at fault for not completing the annual review process within the 12-month time limit. We have also found it was at fault for taking too long to arrange alternative educational provision and for not ensuring the full provision detailed in her son’s plan was given. This resulted in Mrs X incurring costs arranging alternative tuition and her son not receiving the full provision he was entitled to. Therefore, to remedy this injustice the Council has agreed to make a payment to them and apologise for its faults. It has also briefed its staff so they can learn from this complaint and ensure the faults identified do not reoccur.
- The complainant, who I shall refer to as Mrs X, complains the Council did not follow the statutory procedure when it arranged the annual review of her son’s Education, Health and Care Plan (EHCP). Additionally, she complains it failed to provide him a suitable education in accordance with Section 19 of the Education Act 1996, and did not follow its own policy when it dealt with her complaint about these matters.
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)
- 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)
- 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 have:
- Read Mrs X’s complaint and discussed it with her.
- Considered the Council’s comments about the complaint and the supporting documents it provided.
- Provided both parties with an opportunity to comment on the draft decision and considered the comments that were made.
What I found
- Section 19 of the Education Act 1996 provides the basis for statutory guidance about the educational provision a child must receive. This states that local authorities must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or elsewhere, but must be suitable for the child’s age, ability, and aptitude, including any special needs.
- Statutory guidance on alternative provision states the duty to provide such provision applies to all children of compulsory school age resident in the local authority area, “whether or not they are on the roll of a school, and whatever type of school they attend.” The guidance also states this provision should be made “as quickly as possible”.
- Other statutory guidance about children who cannot attend school because of health reasons states that local authorities should provide alternative education “as soon as it is clear that the child will be away from school for 15 days or more, whether consecutive or cumulative”. It also advises local authorities to consult with the parents of a child before making any arrangements regarding alternative provision.
Special Educational Needs and Disability (SEND) Code of Practice and Education, Health and Care Plans (EHCPs)
- The Code of Practice provides statutory guidance on duties, policies and procedures relating to children and young people with Special Educational Needs (SEN).
- The guidance outlines local authorities’ responsibilities regarding EHCPs. An EHCP is a legal document that describes a child or young person’s special educational, health and social care needs. It explains the extra help that will be given to meet those needs and how that help will support the child or young person to achieve what they want to in their life. The plan is drawn up by local authorities after an EHC needs assessment involving, where appropriate, health and social care professionals. Once complete, the local authority concerned must secure all the special educational provision that is detailed in an EHC plan.
- The Code of Practice states that EHCPs “must be reviewed by the local authority as a minimum every 12 months”. At least two weeks before the annual review meeting, the school or placement concerned:
“must seek advice and information about the child or young person prior to the meeting from all parties invited, and send any advice and information gathered to all those invited”.
- Within two weeks of the meeting taking place, the school or placement “must prepare and send a report of the meeting to everyone invited”. This report must outline any amendments to the plan that have been recommended.
- Within four weeks of the meeting taking place, the local authority must decide whether it proposes to make any amendments that were recommended by the school or placement, and notify the young person or their parent of its decision. If it decides to amend the plan, it must send the young person or their parent a copy of the existing plan and “an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes”. The guidance states that if amendments are required, “the local authority should start the process of amendment without delay”.
- In mid-March 2017, the Council issued Mrs X’s son Y an EHCP. At the time, Y was aged eight and in year three of a mainstream school. He had been diagnosed with an Autism Spectrum Disorder (ASD) and his plan stipulated that he should receive 25 hours of ‘non-teaching support’ every week.
- In mid-January 2018, the Special Educational Needs Coordinator (SENCO) at Y’s school emailed the Senior Casework Practitioner at the Council responsible for his EHCP. The former confirmed that the annual review of Y’s plan would take place during a meeting at the end of March 2018.
- Around 10 days later, a clinical psychologist commissioned by Mrs X and her husband observed Y in school, after they had raised specific concerns about his wellbeing in November 2017. Mrs X states the psychologist, who had first assessed Y in January 2016, called her and her husband after this observation and informed them the school was not following the EHCP. She highlights this was a massive shock to them both and the psychologist recommended holding a meeting with the school so she could present her findings and they could address this issue.
- At the end of the month, this meeting took place and was attended by the psychologist, Mrs X, her husband, the school headteacher, the SENCO, and one of Y’s teaching assistants. In response to the psychologist’s findings, Mrs X recalls the school saying it could no longer meet Y’s needs. She says this surprised her as it had never given her any indication that this was the case. She also recalls the psychologist asking whether the resources used to deliver the provision in the EHCP could be used at home instead.
- After the meeting, Mrs X emailed the Senior Casework Practitioner at the Council and said those present at the meeting had agreed that Y would temporarily be on authorised absence from school. She stated that she and her husband were going to evaluate their son’s options and noted that the psychologist would issue her report before half-term, adding the school would review this to see if, and how, it could best meet Y’s needs. She also said the school had suggested looking at other placements and asked for some information about this process.
- Later that day, the Senior Casework Practitioner responded and suggested arranging a meeting to review Y’s “presenting difficulties and the provision that has been/needs to be put in place”. She provided details of her availability and asked Mrs X to respond stating when she was available to meet. In response, Mrs X stated she wanted to see when she was likely to receive the psychologist’s report and would take things from there. She also stated she would respond to the Senior Casework Practitioner as soon as possible.
- At the beginning of February 2018, the school headteacher emailed Mrs X and the Senior Casework Practitioner. He mentioned the school had considered Mrs X’s request for teaching assistants to work with her son at home, but stated it was unlikely this could be arranged. Nevertheless, he said he asked the Council for a recommendation on what to do next and was waiting for it to confirm its position, although he highlighted its initial response suggested it would reject the proposal.
- A few days later, the school headteacher sent Mrs X details of some activities and trips which might be suitable for Y to attend during the forthcoming week.
- Two days later, Mrs X called the Senior Casework Practitioner. The Council note detailing the call states that Mrs X said an emergency review needed to be arranged quickly as an appropriate placement for Y needed to be arranged as soon as possible. It also says that Mrs X stated Y could no longer attend school and was working from home, adding the clinical psychologist had concluded that he required a high level of support which could not be delivered locally. The Senior Casework Practitioner noted that Mrs X had arranged a visit to a specialist school before explaining the process for changing placements would not happen quickly. She added that it was important to put a plan in place for Y’s short-term education and this could be discussed at their meeting.
- Mrs X’s recollection of this call differs slightly, although she highlights the Senior Casework Practitioner was very supportive and provided reassurance when they spoke. She remembers being upset as she was struggling with the news that her son could not continue in mainstream education, but stated she and her husband were willing to consider all options at the time. She states she cannot recall requesting an emergency review or using this terminology, and does not remember the Practitioner discussing the need for short-term provision. An email she sent the psychologist after the call supports her account and shows the Practitioner explained four schools had been identified which could potentially meet Y’s needs. The email states the Practitioner described the process for seeking a new placement and highlighted the schools would be asked to submit a proposal outlining how they could meet Y’s needs.
- Approximately a week later, Mrs X’s husband emailed the school headteacher and the Senior Casework Practitioner to acknowledge receipt of Y’s Access, Plan, Do, Review (ADPR) notes. He also noted this document stated Y had been absent from school due to mental health issues. He stated this was not accurate and clarified his son could still attend those lessons where his needs were met, adding Y had attended one activity that day and was scheduled to attend two more later that week. He also stated that he and his wife would like consideration to be given to other interventions and sought confirmation that an emergency review meeting would take place at the beginning of March.
- The Senior Casework Practitioner responded the following day and stated it was encouraging that Y was now accessing some interventions at school. She also said that increasing his timetable in a mainstream setting could be discussed at their forthcoming meeting and it would be useful to receive advice from the clinical psychologist so that any changes or increases could be carefully planned. Mrs X has commented that she does not think the Senior Casework Practitioner was aware of how little provision the school was delivering at this point, which she says amounted to no more than a few hours per week.
- The school headteacher responded shortly after and confirmed the emergency review meeting would take place at the beginning of March. He stated it was not clear why Y felt the way he did about attending school or why his attitude had changed so much between terms. He added the clinical psychologist’s report should help clarify matters and allow any underlying problems to be addressed. He added that Y’s teacher could provide an overview of the type of adjustments she could make in her class which might help him. Mrs X states her son’s teacher did not do this and questions the accuracy of the comments made by the headteacher, stating the school had been aware of Y’s issues and her concerns since March 2017.
- At the beginning of March 2018, two days before the emergency review meeting was due to take place, Mrs X emailed the Council and the school. She provided information about Y’s experiences and views over the past year, and meetings she and her husband had attended with the school and other professionals. She added she had not sent the parents’ views as they wanted to see details of Y’s progress matched against the outcomes in his EHCP first. She also asked that she be sent any additional information that was to be presented at the meeting, so she and her husband had time to read it.
- The next day, the SEN Team Manager at the Council emailed all of the parties involved and stated there appeared to have been some confusion over the purpose of the meeting. She initially concluded the status of the meeting was the same as Y’s annual review, noting this needed to take place before the end of the month. She subsequently proposed that the meeting be rescheduled so the emergency review and the annual review could take place at the same time and all the necessary paperwork could be circulated beforehand. She then noted she had spoken with the school headteacher and was unaware the annual review had already been scheduled for the end of the month. Therefore, she suggested that the annual review went ahead on this date as originally planned, and the emergency review be conducted at the same time.
- The Senior Casework Practitioner then emailed Mrs X the following day to clarifying that the meeting scheduled that day was an emergency review meeting and not an annual review, apologising for the confusion. She asked whether Mrs X wanted to go ahead with both meetings or whether she wanted them to be held at the end of the month on the planned date of the annual review.
- Mrs X subsequently responded to the Senior Casework Practitioner and noted the original date for the annual review was no longer suitable as the clinical psychologist could not attend. She referred to a conversation she had with the Practitioner at the beginning of February and said that following this call, it was her understanding the annual review meeting scheduled for the end of March would be brought forward. In addition, she highlighted the term “emergency review” was used, and noted she had commented Y’s EHCP was originally issued in mid-March 2017 and therefore the rescheduling of the annual review meeting would have brought it within the 12-month deadline stipulated in the Code of Practice. She then went on to discuss another a call which indicated she thought the annual review meeting was brought forward. Nonetheless, she concluded the school should have sufficient information to initiate the annual review process and stated she saw no need to hold two separate meetings. Therefore, she asked for a suitable date on which a new meeting could be held.
- After further emails were exchanged between the parties, the revised meeting, encompassing both the annual review and the emergency review, was scheduled for the middle of the month. In one of these emails, the Senior Casework Practitioner stated she could not recall agreeing to combine the emergency review and the annual review, although she did apologise if she had not been clear.
- In the middle of the month, the annual review and the emergency review meeting took place. The typed notes of the meeting show that all those in attendance agreed that Y’s needs were not being met in a mainstream setting. In addition, it was noted the Senior Casework Practitioner confirmed that Y “would benefit from immediate total withdrawal from school” whilst a new placement was sought. However, in response to a request from Mrs X and her husband for home tuition, it was also noted that they would consider keeping one of Y’s teaching assistants as the family were comfortable with her. Similarly, the handwritten notes state that although Mrs X, her husband, and the clinical psychologist wanted the placement to cease immediately, the school maintained its offer of a reduced timetable.
- Regarding the next steps, it was noted that an out-of-borough referral would be completed by the school and the Council to seek a specialist placement. It was also noted that everyone agreed this referral would take priority over the annual review process, which would be completed when Y was settled in his new placement.
- Mrs X’s recollection of this meeting differs slightly and she states that neither she nor her husband were given the opportunity to comment on the notes before they were distributed. She recalls the psychologist discussing her son’s needs then everyone considered the practicalities of what to do next, including whether to continue with the reduced timetable provided by the school. She says everyone agreed this was not in Y’s best interests and that he should not continue in mainstream education. She also states she cannot recall her or her husband stating they wanted the funded placement to cease immediately, or the school offering to continue issuing the reduced timetable.
- The following day, the Council started consulting potential new placements. At the same time, the Senior Casework Practitioner emailed the SEN Team Manager. She explained what had happened during the meeting and noted Mrs X had asked about Y’s options as she wanted to withdraw him from school with immediate effect. She stated she would enquire whether anything could be put in place in the interim but noted she told Mrs X this would not be full-time. She also noted that Mrs X had been employing a private tutor and asked the Manager for advice on how to proceed.
- At the beginning of April 2018, Mrs X emailed the Senior Casework Practitioner and asked for an update on the status of the annual review and EHCP. She stated she assumed the plan needed to be amended and noted she had an appointment to visit a specialist school at the end of the month.
- The Senior Casework Practitioner responded two days later and said that following the meeting in mid-March, it was her understanding the priority would be to seek a new placement due to the exceptional circumstances of Y not being able to access his current placement. She added that the school would complete the annual review documentation after the referral paperwork, and it was agreed the EHCP would be amended following an interim review at a new placement.
- Two days later, Mrs X responded to the Senior Casework Practitioner. She admitted she did not focus on the points made about the annual review at the end of the meeting in mid-March, and asked that it be finalised within the requisite four-week timeframe. She added she felt that some of the plan could be updated immediately given the detailed report that had been submitted by the clinical psychologist.
- Toward the end of the month, Mrs X emailed the Senior Casework Practitioner and asked for an update on her son’s case. She also noted the Practitioner had stated at the meeting she would review the request for home support, and asked whether the matter had been considered.
- The Senior Casework Practitioner responded shortly after and provided an update on the consultation process. She also noted the school had submitted the paperwork for the out-of-borough placement that day so she would now ask it to focus on the annual review paperwork. She confirmed the Council would amend the EHCP but stated the process would take longer than the four weeks stipulated in the Code of Practice because of exceptional circumstances. She also stated she had referred Mrs X’s request for home support to the SEN Team Manager and was waiting for a response.
- At the beginning of May 2018, Mrs X emailed the Senior Casework Practitioner and highlighted she had not received a copy of the notes of the annual review meeting from the school. She also reiterated her request for the annual review process to be concluded and questioned why this should be delayed until Y was in a new placement. In response, the Senior Casework Practitioner repeated what was agreed at the meeting and stated she understood the school would be issuing the annual review documentation the following week.
- Mrs X subsequently emailed the SEN Team Manager. She said that she had not been given a response to her request for home support for Y and stated his EHCP needed to be amended, pointing out that everyone who attended the meeting agreed it did not meet his needs. She also mentioned previous concerns she had about the way the school recorded information and had little confidence in the current process. In conclusion, she requested a written record of the annual review meeting and that the process be concluded according to the Code of Practice.
- The SEN Team Manager responded to Mrs X later that day. She said the Council would follow the prescribed timescales for the annual review and said she thought the agreement to prioritise the referral was a genuine misunderstanding that arose during the meeting. She explained the referral process needed to be completed so that evidence could be presented to senior managers outlining why Y’s needs could not be met at his current school and the reasons why a specialist placement was required. She also stated she understood the school felt it could not complete aspects of the annual review paperwork, particularly in relation to the setting of outcomes as these might not be applicable in a new placement.
- A few days later, Mrs X emailed the SEN Team Manager and the Senior Casework Practitioner. She said she had now received and reviewed the annual review paperwork that had been circulated by the school, but noted it contained several inconsistencies. She highlighted that Y’s progress against the EHCP outcomes were not discussed in the meeting yet this matter was addressed in the paperwork. Similarly, she said that she, her husband and their son had not had their views taken into consideration and they disagreed with some key conclusions, some of which she detailed. She asked for advice about how they could ensure their comments were provided in the paperwork, and asked that this was not circulated in its current format.
- Two days later, the specialist school that Mrs X had visited offered Y a place starting in September 2018. On the same day, the Senior Casework Practitioner responded to Mrs X and advised her to contact the school to request that it amend the paperwork to reflect the difference in views. Mrs X comments she was not made aware of the offer made by the specialist school until later and says it would have been reassuring to have been informed of this at the time, given no other placements were being sought.
- The following day, Mrs X emailed the Senior Casework Practitioner noting she had spoken with an education rights service. She stated it had advised that she send her comments and views about the annual review directly to the Council and request that they be taken into account. Therefore, she attached comments both she and her husband had made. Regarding the paperwork provided by the school, they commented they did not recall the Senior Casework Practitioner saying during the meeting that Y would benefit from an immediate withdrawal from school. Rather, she said the Practitioner had stated the Council would fund the school for a further term and Y would stay on the register because it would be illegal to do otherwise. She also pointed out that she and her husband stated they were content for their son to leave the school with immediate effect, given that it had been assessed that mainstream education was no longer suitable.
- In the middle of the month, Mrs X submitted a complaint to the Council about the lack of suitable education being provided to her son. She outlined the background to her complaint and stated Y had not received a full-time education since the end of January 2018. She highlighted she had arranged private tuition for him and the Council had not responded to her request for some provision to be delivered at home. She also complained about the way the annual review process had been conducted and asked that it provide Y with a suitable education.
- The following day, the Council acknowledged receipt of the complaint and stated it would respond within 20 working days.
- Toward the end of the month, the school sent the Council a copy of the annual review form it had completed. It noted it had only partially completed the form because it was agreed at the meeting that the review of the EHCP would take place at Y’s next placement, which was yet to be finalised.
- At the end of the month, the Senior Casework Practitioner wrote to Mrs X and her husband with notice of the Council’s proposal to amend the EHCP. She provided a copy of the proposed amendments and noted the Council did not make any significant changes to sections E and F. She said this was because the school felt it would be inappropriate if it were to set any outcomes, given Y’s likely change of placement. She also said the final amended EHCP would be issued within eight weeks.
- On the same day, the Senior Casework Practitioner wrote to the school to request its comments on the proposed changes. She noted the agreement which had been reached at the annual review meeting and said the Council had now decided to amend the EHCP because Mrs X had asked that it follow the “protocol” in the Code of Practice.
- In mid-June 2018, the SEN Team Leader responded to Mrs X’s complaint at stage one of the Council’s corporate procedure. Using its records, she provided a chronology of what had happened, noting that Mrs X had decided to keep Y off school at the end of January because of her concerns about his “low mood”. She also referred to the misunderstanding about the purpose of the meeting arranged in March and noted that the Senior Casework Practitioner had apologised about the matter. She accepted there was some delay in arranging home tuition for Y, apologised for this, and noted the Council had agreed to provide 10 hours of one-to-one tuition per week from mid-May 2018.
- The following day, Mrs X sent the Senior Casework Practitioner comments on the draft EHCP.
- At the end of the month, Mrs X emailed the SEN Team Leader and asked if there was a time limit in which she should escalate her complaint to stage two, noting this was not mentioned in the stage one response. The latter responded and stated requests for escalation should be submitted within 28 days.
- In mid-July 2018, Mrs X wrote to the Council’s Chief Executive to escalate her complaint. She complained about the way her complaint was handled at stage one, stating she was not contacted during this stage and the response provided omitted key information. In relation to this latter point, she said she did not decide to keep Y off school, rather it agreed with her that he would only attend those lessons where his needs could be met. In addition, she said the timetable issued by the school was limited and it was insulting for the stage one response to suggest that it was her and her husband’s choice to remove Y from mainstream school. She also disputed some other parts of the chronological account provided at stage one and questioned how the Council felt it had met the timescales outlined in the Code of Practice about the annual review process.
- Toward the end of the month, the Council issued Y’s final amended EHCP after the Senior Casework Practitioner had considered further comments made by Mrs X.
- A few days later, the Council’s Chief Executive responded to Mrs X’s complaint at stage two. He apologised for the misunderstanding about the purpose of the March meeting, although he said the offer of an additional meeting was good practice. He also apologised for the delay in arranging the home tuition and offered to reimburse her the cost of the private tuition she had arranged for Y, from the date of the meeting to the date the provision it arranged had started.
- However, he did not accept the Council was at fault for the way it conducted the annual review process. He acknowledged the 12-month rule for completing the process in the Code of Practice, but said timescales in the guidance were “often applied flexibly” and that a two-week delay in this case was reasonable. Similarly, he said the Council had complied with the timescales following the meeting and noted it was agreed the priority at the time was to complete the out-of-borough referral for another placement, rather than complete the annual review process.
- At the beginning of September 2018, Y started attending a new, specialist school.
- At the beginning of October 2018, Mrs X complained to the Ombudsman about the way it had handled these matters. In addition to the points already raised, she states her son did not receive a suitable education and his mental health deteriorated because of this, due to a lack of stimulation and social isolation. She notes he is now back at school, but states the lack of education he received during this period continues to have a negative impact on his wellbeing.
- She says the events also had a significant impact on her and the family as a whole. She states she and her husband had to make arrangements to ensure her son was looked after, which involved them taking time off work or asking extended family to help. She also states they paid a private tutor to educate her son during this period and she spent a considerable amount of time and effort making her complaint to the Council to rectify what happened, adding her mental health has suffered as a result.
- She feels the Council’s offer to reimburse the expenses she incurred hiring a private tutor does not adequately reflect the entirety of the injustice the family suffered. She wants it to apologise to her son for what happened, reconsider the amount it has offered, and make service improvements to ensure the faults identified do not reoccur.
- Firstly, I have reviewed the events which followed the meeting Mrs X had with the school at the end of January 2018. It is clear that she and her husband were considering their son’s options at this point whilst the school worked to identify those lessons and activities he could attend which still met his needs. At the same time, the Council tried to setup a meeting to discuss the issues Y was facing and identify any provision which needed to be put in place. The statutory guidance states local authorities should consult with parents before making any arrangements regarding alternative provision, therefore this was an appropriate course of action for the Council to take, given the circumstances. I accept that relatively little provision was being offered by the school during this period, but it appears the Council was not fully aware of this. Therefore, given the circumstances, the action it could have taken was limited.
- I do note there was some delay in arranging the meeting but this can be attributed to the availability of the attendees. In addition, I do not think it would have been wise to hold the meeting before the clinical psychologist issued her report, which happened toward the end of February 2018. I accept there was some confusion around the purpose of the meeting, which can be attributed partly to the Council’s use of the terminology “emergency review”. Therefore, it may want to consider the language it uses in the future when discussing these matters, to avoid any potential further confusion or misunderstanding. However, I do not believe this issue warrants a formal finding of fault against the Council.
- Nevertheless, I have found the Council was at fault for not ensuring the annual review process was completed within 12 months, as per the SEN Code of Practice. Moreover, I am concerned about the approach it has taken to annual reviews in general. It states the 12-month deadline is flexible and seems to think the annual review meeting merely needs to be completed within this timeframe. This is incorrect. Firstly, the annual review process, not simply the meeting, must be completed within 12 months and ends when the Council decides whether or not it will amend an EHCP and notifies those concerned. Secondly, the 12-month deadline is a statutory requirement meaning the Council must follow the relevant legislation and Code of Practice.
- Similarly, I see the Council prioritised the out-of-borough referral for a new placement over the completion of the annual review process. Given it had breached the 12-month deadline, it should not have done this and could have carried out each task in line with the other. I understand the Council and the school were concerned about setting outcomes which the latter could not meet, but this should not have been a key consideration. Rather, the Council should have focussed on identifying what Y’s needs were first and his desired outcomes, before seeking a placement. It is illogical to do otherwise and this partly explains why the annual review process is afforded such importance in the legislation.
- I also note the Council states that all those who attended the annual review meeting agreed to prioritise the referral, including Mrs X and her husband. However, neither of them were knowledgeable about the annual review process therefore I would have expected the Council to take the lead and advise what needed to be done and when.
- Regarding the part of Mrs X’s complaint about the lack of educational provision given to her son, I see that all those who attended the annual review meeting agreed his needs were not being met in a mainstream setting. I also note the Senior Casework Practitioner is reported to have said Y “would benefit from immediate total withdrawal from school” and the clinical psychologist felt the placement should cease immediately. Given these points, the Council should have considered arranging alternative provision out with a mainstream setting. It did not do this at the time of the meeting and only offered some alternative provision after Mrs X complained to the Council about the matter, despite her repeated requests for such provision to be made. The Council has already acknowledged it was at fault for not arranging this provision sooner and I agree with its findings.
- However, I note Y’s EHCP stated he was entitled to receive 25 hours of “non-teaching support” per week, yet the Council only arranged the provision of 10 hours from the start of the summer term. I do not know how it reached this figure or why it thought the full 25 hours should not be provided. At the time, it had not completed the annual review process so it was not in a position to decide whether the 25 hours was still suitable. Likewise, it could have consulted the clinical psychologist to check what level of provision would have been appropriate given Y’s circumstances, but again it did not do this.
- Therefore, considering that local authorities are under a statutory duty to arrange the provision outlined in an EHCP, and that they must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise, I have found Council was at fault for not arranging the full 25 hours of provision. It should have ensured this provision was in place, in one form or another, from the date of the meeting in mid-March 2018 given the outcome of this meeting. However, it failed to do this.
- Conversely, I have not found fault with the way the Council handled Mrs X’s complaint. I understand why she was unsatisfied with its responses but they were provided within the timescales stipulated in the Council’s Complaint Policy. In addition, the SEN Team Manager considered the complaint at stage one, followed by the Chief Executive at stage two. Again, this is in line with its Policy so there is no fault.
- Despite my findings, I think it is important to acknowledge the Council’s SEN Team did work hard to secure a specialist placement for Y. Similarly, once it had agreed to complete the annual review process it did this in a timely and efficient manner. Therefore, I am confident it can provide a good level of service; it just needs to adhere to the Code of Practice and take steps to address the faults identified in this statement. These comments have been echoed by Mrs X, who wishes to highlight the Senior Casework Practitioner was particularly helpful and supportive when they spoke on the phone at the beginning of February 2018, then again when the annual review meeting took place the following month.
- Y should have received the 25 hours of provision per week that was stipulated in his EHCP and this should have been provided from the date of the annual review meeting in mid-March 2018. I note the Council has offered to refund the private tuition that Mrs X funded from the date of the meeting to the date it arranged the 10 hours of provision per week, but she has not accepted this offer. I also note that Mrs X funded an additional five hours when this provision was put in place. Likewise, she paid for Y to attend 11 two-hour sessions at a forest school after the annual reviewing meeting took place.
- The Ombudsman’s Guidance on Remedies states that when a fault has resulted in the loss of educational provision, we can recommend a financial payment to acknowledge the impact of that loss. Similarly, we can also recommend that any tuition costs incurred by a complainant be reimbursed. Therefore, in this case I have recommended the Council makes a payment to Mrs X to remedy the loss of education suffered by Y, and another to reimburse her for the cost of the tuition she arranged. Further details can be found in the section below. The Council has agreed to carry out this recommendation.
- I note that Mrs X states the lack of education resulting from the Council’s faults affected her son’s wellbeing as well as hers. Similarly, she says she relied on her extended family to look after Y when he was not in education and this also affected her ability to accept work as a self-employed contractor. Moreover, she states she spent a significant number of hours conducting research, seeking advice from independent services, and dealing with the Council to ensure it followed the correct processes. Consequently, its faults caused the family uncertainty, distress and inconvenience therefore I have recommended that it makes a written apology to them to acknowledge this, which it has agreed to do.
- Finally, I have recommended the Council arranges a staff briefing to discuss this complaint in order to ensure the faults identified do not reoccur. The Council has agreed to this recommendation and has already delivered the briefing. Moreover, it has provided details of other measures it has taken, or will take to improve its service, which is encouraging.
- The Ombudsman’s Guidance on Remedies states payments for lost provision should be between £200 and £600 per month. I have decided a payment at the lower-to-medium end of the scale of £300 is appropriate in this case. This is because the Guidance states that payments at the higher end are appropriate when a council makes no provision or the child concerned loses provision during a key stage of their education, for example when moving from primary to secondary school. These factors are not relevant in this case.
- The Council did not arrange any provision for Y between mid-March 2018, the date of the annual review meeting, and mid-May 2018, when it agreed to start providing 10 hours of tuition per week. This equates to six full weeks of lost provision, taking into account the Easter break. During this period, Mrs X paid for six two-hour forest school sessions which cost approximately £58. Therefore, to remedy the injustice caused in this period the Council will pay Mrs X £450 for the lost provision and reimburse her the £58 she paid to the forest school.
- During the eight school weeks which fell between mid-May 2018 and the end of the school year in mid-July 2018, the Council provided 10 hours of provision per week and Mrs X paid £800 for five additional hours, plus a further £60 for six two-hour forest school sessions. This means Y received approximately 17 hours of tuition per week out of the 25 his EHCP stipulated he should receive. Over the eight weeks this equates to 48 hours of lost tuition, or approximately two weeks. Therefore, to remedy the injustice caused in this period the Council will pay Mrs X £860 for the tuition she funded, plus another £150 for the two weeks lost provision.
- Consequently, after adding these amounts together the Council has agreed to pay Mrs X a total of £1518. This payment will recompense her for the money she has spent on private tuition, and provide additional funds which should be used to benefit Y’s education.
- The Council has also agreed to write to Y, Mrs X and her husband and apologise for the faults mentioned in this statement. It will acknowledge the impact of these faults on the family and outline the steps it is taking, or has taken, to ensure they do not reoccur.
- After considering the Ombudsman’s draft decision, one of the Council’s Executive Directors arranged a briefing for all officers that deal with matters relating to SEN and EHCPs. This briefing took place at the end of February 2019 and covered the following subject areas:
- The need to prioritise the annual review process and ensure it is conducted within the 12-month time limit.
- How best to meet the needs of those children who are not receiving education in a mainstream school.
- The need to identify appropriate alternative provision when children are out of school and not receiving a full-time education.
- How the Council can ensure that schools in its area have the necessary tools to carry out an annual review after initiating the process, so they comply with the statutory guidance. On a related point, it has confirmed it will brief all schools on these matters in the forthcoming summer term.
- The Council was at fault for not completing the annual review process within the 12-month time limit. It was also at fault for taking too long to arrange alternative educational provision and for not ensuring the full provision detailed in the EHCP was given.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman