Cornwall Council (19 014 211)

Category : Education > Alternative provision

Decision : Upheld

Decision date : 12 Jan 2021

The Ombudsman's final decision:

Summary: Ms X complained about the way the Council dealt with her daughter’s Education Health and Care Plan. We found fault because the Council delayed in issuing the final Plan. The Council was also at fault in the way it dealt with the statutory Stage 2 investigation into Ms X’s complaints as it failed to issue an apology as agreed with the recommendations in 2018. The Council has agreed to apologise to Ms X and her daughter so we have completed our investigation.

The complaint

  1. The complainant whom I shall refer to as Ms X, complains the Council failed to comply with the Special Educational Needs (SEN) code of practice for her daughter Y, when carrying out an Education, Health, and Care (EHC) needs assessment. And in following the Education Health and Care Plan (EHCP) procedure to produce a plan . Ms X’s main areas of complaint are:
    • The Council and schools set the threshold for an EHC needs assessment too high and it took them too long to establish Y’s SEN need.
    • Between May and November 2016 Y was too ill to attend school and the Council and secondary school failed to provide alternative education for her. So, Y had reduced educational opportunities and unable to take GCSE exams.
    • The Council threatened to prosecute the family for Y’s absence at school rather than provide support to help her return. Ms X says the Council pressurised her into educating Y at home and forcibly removed Y from the school roll in September 2016.
    • Ms X considers Council officers tried to discredit the medical professionals she appointed and refused to accept the reports she obtained. Instead, the Council carried out its own assessments causing unnecessary duplication and used them to blame the family for Y’s situation. This impacted on Y being able to accept her health conditions. Ms X says the Council failed to list the reports she provided in the EHCP.
    • The Council failed to comply with the set EHCP timescales as it took 80 weeks rather than the required 20 weeks to produce an accurate EHCP. The EHCP was at draft stage for six months because the social care assessment was not completed on time. Ms X says this prevented her appealing to the Tribunal as she did not have a final EHCP and the Council has failed to explain the reasons for the delay.
    • The Council tried unsuccessfully to change the Tribunal hearing date to create further delays causing extra distress to the family and time trying to resolve matters.
    • The Council breached a court order to fund Sensory Integration Occupational Therapy (SIOT) for Y as part of the EHCP.
    • The Council took too long to deal with Ms X’s complaints (two years) and obstructed access to the complaint procedure. Ms X says the Council re-wrote her complaints several times to avoid answering her concerns.
  2. Ms X disagrees with the findings of the two investigations into her complaint and says the Council’s failures have caused distress to Y and herself. It has impacted on Y’s health and she missed a significant amount of education while out of school. Ms X says the Council’s failures also affected her financially because of private medical assessment costs, legal appointments, and loss of earnings while Y could not access school education. Ms X wants the Council to accept it was at fault and offer financial compensation.
  3. Ms X says the Council refuses to share the non-statutory stage 2 investigation report about her education complaints with her. Ms X says the Council failed to return her paperwork prepared for the complaint investigations.

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What I have investigated

  1. I have exercised discretion to investigate the complaints raised by Ms X about matters from 2016 even though this is more than 12 months ago. This is because the issues Ms X complains about stem from the Council’s decision to agree an EHCP application in 2016 and are referred to in the statutory and non-statutory complaints investigation completed by the Council in November 2019. I have explained within the statement below my reasons for not investigating complaints Ms X raised before 2016 and issues considered by a Tribunal hearing over the EHCP.

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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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. 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)
  3. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. 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).
  4. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended). SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
  5. We have no jurisdiction where a parent has appealed to the SEN Tribunal from the date the SEN appeal right arises until the appeal is completed. Any loss of education or fault during this period which is a consequence of the decision being appealed is out of jurisdiction, even if this means the injustice will not be remedied.
  6. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
  7. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. At stage 2 of this procedure, the Council appoints an investigating officer and an independent person (who is responsible for overseeing the investigation). If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 panel review hearing by councillors. If the Council has investigated something under this procedure, we would not normally re-investigate it unless we consider the investigation was flawed. But we may look at whether the Council properly considered the findings and recommendations of the independent investigation.
  8. 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 have read the papers submitted by Ms X and discussed the complaint with her. I considered the Council’s comments on the complaint and the supporting documents it provided. I considered relevant law and guidance on special educational needs.
  2. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
  3. 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

Education Health and Care Plans

  1. A child with special educational needs may have an 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.

Appeals

  1. There is a right of appeal to the SEND Tribunal against a decision not to assess, not to issue an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal.

Assessments

  1. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:
    • Where a local authority receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment.
    • The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable.
    • The whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply).
    • Councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.

Events before January 2016

  1. Ms X complains about Y’s education at primary school from 2007 onwards and requests she made the school to assess Y’s SEN . Y attended secondary school in 2014. Ms X complains she asked for Y’s SEN needs to be assessed and an ECHP in 2014 and 2015. Ms X expressed concerned about Y’s mental health and asked for her to be tested for Autistic Spectrum Disorder (ASD). The school and Council refused to assess for an EHCP or ASD as Y did not present with symptoms. The school considered it could meet Y’s needs, she was well settled and making good progress.
  2. Ms X arranged nine private assessments for Y during 2015. These included psychiatric and psychometric assessments to support her concerns about Y’s mental health and request for an EHCP. Ms X says Y’s mental health declined from September 2015 because she could not accept her health needs.

My assessment

  1. Ms X’s complaints about a primary school’s refusal to assess Y for SEN in 2007 refer to the actions of a school. As paragraph 10 explains we cannot consider complaints about what happens in school. So, we cannot consider this part of Mrs X’s complaint.
  2. Ms X’s complaints about the Council and secondary school’s failure to assess Y in 2014 and 2015 for an EHCP refer to actions of a school. So again, it is not a matter we can consider. In addition, Ms X could appeal against the Council’s decision not to assess Y in 2014 and 2015. As paragraph seven explains we normally expect someone to appeal to a tribunal unless we consider it was unreasonable to expect the person to do so. In this case I consider it was reasonable to expect Mrs X to appeal to the Tribunal in 2014 and 2015. The Tribunal could have considered whether the Council’s refusals were reasonable and whether it set the threshold for an EHC needs assessment too high.

Events from January 2016

  1. Ms X removed Y from school in January 2016 for mental health reasons saying she had medical evidence to support her decision. The school did not authorise the absence, expressed concern and said it expected Y to return. The school agreed to support an EHCP assessment referral to the Council because it considered it was not was in Y’s best interests to be absent from school.
  2. The Council involved its Elective Home Education, and the Education Welfare services due to Y’s absence from school. The Council told Ms X it may prosecute her for Y’s non-attendance as it considered Y’s needs could be met in a mainstream school. Ms X said she was providing unofficial Elective Home Education while Y remained on the school roll. The Council confirms it told Ms X about a family’s requirements should they remove a child from school and information on elective home education.
  3. In February 2016, the Council agreed to the EHCP referral. It arranged for a report from an education psychologist report and information from a community paediatrician. The Council arranged for a social worker to carry out a social care assessment on Y in March 2016 .
  4. The social worker completed the social care assessment in May 2016. The Council did not share it with Ms X because of child protection concerns about the private assessments Ms X arranged for Y and the alleged health needs. The Council decided it needed to carry out a section 47 enquiry as it was concerned a child may be at risk. The Council placed Y on a Child Protection Plan.
  5. The Council issued a draft EHCP in May 2016 within 16 weeks of receiving the referral so met statutory timescales. The Council says Ms X was unhappy with the draft especially the social care sections and wanted this resolving for the EHCP to be finalised.
  6. Ms X wanted Y to stay on the school roll and be home-schooled as recommended by one of the private medical professionals. The school did not support the request as it did not consider Y medically unfit for school and expected her to attend . In June 2016, the school opened an attendance case because of Y’s unauthorised absences. The Council issued a prosecution warning letter to Ms X in June 2016.
  7. The social worker completed the social work assessment (Child Protection) in July 2016 following an enquiry. The Council accepts a delay in holding the enquiry as, following best practice and government guidelines, the social worker needed to wait for the appointment of a paediatrician to take the lead. This and then sharing the social care assessment with Ms X caused a delay in social care contributing to the EHCP. However, the Council confirms the social worker kept in contact with the family during this time.
  8. The Council planned to hold an Initial Child Protection meeting in August 2016 to discuss Y, but it needed to be rearranged for a week later when the Chair of the meeting fell ill.
  9. The school removed Y from its roll in September 2016, and the Council registered her as Elective Home Educated. In October 2016 a Review Child Protection Conference, decided Y should move from a Child Protection Plan to a Child in Need Plan (CIN). This was passed to the CIN team to action and she was placed on the CIN register.
  10. The Council issued a final EHCP in November 2016. The Council said in the EHCP Y’s needs could be met in a mainstream school. It named the school Y had previously attended for educational provision, but said her parents elected to home educate her. The Council confirmed it took 44 weeks to issue the final EHCP from receiving the referral. It says it was because of the delays and requests for changes made by Ms X. Eventually the Council decided to publish a final ECHP which would then give Ms X a legal right to appeal it through the Tribunal process.
  11. The Council closed its child protection enquiries in early 2017 after contact with Ms X about what support she considered was needed for Y. Ms X asked for financial support to find a recommended therapy for Y and she would contact the team to advise. The Council closed the case as Ms X did not make any further contact.
  12. Ms X appealed to the SEND Tribunal in February 2017 as she disagreed with the EHCP listing mainstream education and school . Ms X considered the school unable to deliver the extra support Y needed and Y wanted to attend a certain education provider.
  13. The SEND Tribunal set the date for May 2017. The Council asked for the date and location to be re arranged because some of its witnesses found it difficult to attend due to personal circumstances. The Tribunal considered but declined the request and the hearing went ahead on the original date.
  14. The SEND Tribunal considered the appeal and noted the Council and Ms X reached agreement on the EHCP. The was that Y would be on the roll of a different school but attend classes at the college she requested for her educational provision.

Statutory Stage 2 complaint

  1. In November 2017 Ms X submitted 14 complaints to the Council about the social care involvement with her family for the EHCP. The Council appointed an Independent investigator (II) and an Independent person (IP) to consider the complaints according to the statutory procedure. The II and IP identified eight areas of complaint as some of Ms X’s concerns were not within the remit of the investigation. Ms X signed her agreement the areas of complaint identified by the II and IP ‘correctly expressed and recorded her dissatisfactions’. The documents show Ms X agreed with the II’s it was acceptable for them to take as long as necessary to thoroughly investigate her concerns.
  2. Ms X complaints included allegations the social worker provided inaccurate information before carrying out the assessment in April 2016, did not include all relevant information and did not follow correct procedure. Ms X alleged the Council did not properly consider the impact on her as a carer and raised concerns the Initial Child Protection Conference did not follow correct procedures or properly implement the outcome agreed.
  3. The Council received the stage 2 investigation report in April 2018. The investigation did not uphold five of Ms X’s complaints. It upheld two of Mrs X’s complaints. The first being the Council did not properly consider the impact on Ms X as Y’s carer in the assessment. Although it noted the social worker did record the impact onto Ms X and her health. The investigation reported the Council now offered a carer’s assessment when carrying out a social care assessment, but Ms X has not requested one.
  4. The second upheld complaint was the Council did not correctly carry out the outcomes of the Review Child Protection Conference due to a delay in arranging for Y to be subject to a CIN plan. The investigation recommended the Council apologise for the delay and ensure opportunities remained open for Y to re-engage with social services if she chose to.
  5. The investigation partially upheld the complaint the Initial Child Protection Conference did not follow the correct procedure. This was because it did hold a meeting within the timescales needed because of the ill health of the Chair and failed to provide support and advice to the family on communicating to the conference.
  6. The Council considered the report and responded to Ms X in May 2018. The Council accepted the findings and recommendations of the stage 2 investigation. It wrote to Ms X and acknowledged ‘some regrettable events we need to learn from in order to improve our service and prevent them re-occurring’. The Council thanked Ms X for bring her concerns to its attention.
  7. In responding to my enquiries, the Council accepts the stage 2 investigation procedure took 74 days from the date Ms X agreed the complaints points. The Council accepts this is nine days over the 65 working days set out in government guidance. But says Ms X did agree to it taking as long as necessary.
  8. The Council says it told Ms X about escalating her complaint to a stage 3 review in the stage 2 adjudication letter in May 2018 if she remained unhappy. But Ms X did not contact the Council to dispute the Stage 2 or escalate the complaint to stage 3. The Council considers she is now out of time to ask for Stage 3.

My assessment

  1. Ms X disputes the Stage 2 findings and questions the independence of the investigators involved. I consider the documents provided show the II’s carried out a thorough and robust investigation into the complaints raised by Ms X. The evidence shows the II’s ensured they met with Ms X, considered all her documents, and obtained her agreement over the matters to be considered. Because of this I see no grounds to re-investigate the matters Ms X raised in her stage 2 complaint and I have seen no evidence to call into question the independence of the investigators. I do not consider any further investigation will add anything to the investigation already carried out by the Council or achieve a different outcome for Ms X . However, I will look at the Council’s response to the findings and recommendations made.
  2. The Council acknowledged it did not properly consider the impact on Ms X as Y’s carer although the documents listed out her health needs. The Council now offers a carer's assessment as standard practice. Ms X has not requested an assessment. So, it is open to Ms X to request one if she considers it necessary.
  3. The Council accepted the finding it should provide more support to families preparing submissions to Child Protection Conferences. The Council has increased staff resources as explained later in this statement which should enable the Council to follow this recommendation.
  4. The Council accepted the recommendation and finding to apologise to Ms X for excessive delay in beginning to implement Review Child Protection Conference. The Council’s letter to Ms X in May 2018 refers to ‘regrettable events’ . I do not consider this constitutes an apology for the excessive delay. I have not seen any evidence of an apology to Ms X and so consider there is fault by Council as it has not implemented the recommendation of the stage 2 on this point . I consider it has caused an injustice to Ms X as she has not received the apology the Council agreed to make when accepting the findings of the stage 2 . To remedy the injustice caused I recommend the Council sends Ms X a written apology for the complaints upheld at stage 2 and for its failure to send the apology in 2018.
  5. The Council accepted the finding to ensure opportunities remain open for Y to re-engage with social care if she so chooses. So, it is for Y to engage with social care if she wishes. If Y has any issues about re-engaging, then she needs to submit a new complaint to the Council about this.
  6. As paragraph 10 explains the statutory complaints procedure allows a complainant to request a stage 3 review hearing if dissatisfied after stage 2. The Council says it advised Ms X of stage 3 in its adjudication letter, but she has not requested a hearing. The Council’s letter says if Ms X has any issues remaining unresolved then she should contact the Complaints Manager or go to the Ombudsman. The letter does not specifically advise Ms X of her right to request a stage 3 review of her complaint. I consider the failure to clearly explain the complaints procedure is fault by the Council, but the failure has caused limited injustice to Ms X to warrant pursuing the matter further. This is because Ms X has been able to continue with her complaint and complain to the Ombudsman. I would, however, recommend the Council makes it clearer in its stage 2 adjudication letters to complainants there is a right to go to a stage 3 review hearing.
  7. The stage 2 investigation took 74 days rather than the 65 recommended in government guidance. It is unfortunate the investigation exceeded the recommended timescales. But, due to complexity of the complaints and ensuring agreement with Ms X on the points of issue, I do not consider the additional days sufficient to warrant finding fault by the Council on this point.

Non statutory Stage 2 complaint about SEN

  1. Ms X submitted 102 complaints to the Council in January 2018 about the failure of its SEN provision for Y. In July 2018, the Council tried to analyse Ms X’s complaints and replied listing out the concerns. Ms X disagreed with the analysis and submitted further complaints.
  2. The Council decided to commission an Independent Investigator to look at the concerns as a non–statutory stage 2 investigation in November 2018. The investigator met Ms X in January 2019 discuss the complaints. The Council agreed to commission a second Independent person to help with the investigation because of the range and complexity of Ms X’s complaints.
  3. The II’s spent time analysing the information. They considered the social care complaint had looked at some issues so were outside the remit of the education complaint. Ms X also raised issues that had or should be dealt with by the SEND Tribunal. The II’s met with Ms X during March, April and June 2019 to clarify the complaints and Ms X gave her consent to continue.
  4. The II’s considered the overarching complaint was Ms X’s concern the Council failed to follow the SEND Code of practice for Y. The II’s broke the complaint down into 46 issues. These included Ms X’s disagreement with the May 2016 EHCP and unhappiness the Council requested multiple assessments of Y. It included her view the professionals involved were not sufficiently skilled in working with children. Ms X also complained the Council failed to carry out the EHCP needs assessment in a timely manner or update them on reasons for delays in the EHCP procedure.
  5. Ms X considered the Council ignored the advice she obtained from medical and other professionals so issuing the EHCP without taking this information into account. Ms X complained the Council failed to ensure Y received an appropriate education while out of school and obstructed them accessing the complaint procedure. Ms X also complained there was a lack of Sensory Integration Occupational Therapy (SIOT) in the area and the Council was in breach of a court order by not paying for the SIOT provision mentioned in Y’s EHCP between May and December 2017.
  6. The II’s completed the investigation report in September 2019. They found no findings in nine of Ms X’s complaints as the Tribunal dealt with the issues. So, it did not consider her concerns about ignoring information from medical professionals, failing to include all advice and information in the appendices to the EHCP, and the breach of the court order on paying for SIOT. The II’s also considered the Tribunal dealt with Ms X’s concerns the Council failed to carry out the EHC needs assessment in a timely manner and failed to comply with deadlines for the EHCP process.
  7. The II’s did not uphold 34 of the complaints. These included Mrs X’s complaint the Council failed to ensure Y received an appropriate education while out of school. The II’s found the school did not authorise Y’s absence from school so were not obliged to send work home for her. It considered that if a child was to be home-schooled those with parental responsibility should do it through the proper channels. This did not happen in this case, so the Council did not fail in its duty and had no obligation to provide educational support.
  8. The II’s upheld two of Ms X’s complaints. These were the Council failed to tell the family the reason for the delays in the EHCP process. The II’s established the delays were mainly due to the social care assessment but this issue had been considered by the statutory stage 2 investigation. The II’s acknowledged there were ‘many variables from all areas adding to the complexity’ . It agreed the published timescales were not met and the family should have been kept informed and advised of the delays. The II’s noted there should have been a more coordinated approach between professional involved with no one acting as a point of contact for the family. The II’s recommended the Council may wish to review this point.
  9. The second upheld complaint was the Council obstructing the family’s access to the complaints process because of delays in investigating Ms X’s complaint. Ms X originally made her complaint in January 2018 but did not receive a response from the Council until July 2018. The II’s were then not commissioned to investigate the complaint until November 2018. The II’s noted the Council had adopted new procedures to speed up the complaint procedure. But while the delay in dealing with Ms X’s complaint was not deliberate obstruction it could not be justified. The II’s recommended the Council should put in place review processes to quickly decide whether to escalate complex complaints, such as the one from Ms X, to a stage 2 investigation.
  10. The II’s noted Ms X’s concerns there had been missed educational opportunities for Y such as GSCE’s but considered the school was not required to send work home as it did not authorise Y’s absence . The II’s considered it was Ms X’s decision to take Y out of school in an unauthorised way and so prevented her from accessing and engaging with GCSE courses. The II’s found the Council could not be held responsible for Y missing opportunities to study.
  11. The Council issued its response to Ms X in November 2019. The Council did not share the non-statutory Stage 2 report with Ms X. The Council says it is not obliged to do so as it is not a statutory complaint investigation . The Council advises Ms X can send it a Freedom of Information (FOI) request to see the report if she wishes.
  12. In its response to Ms X the Council listed out the complaints she clarified with the II’s, the complaint investigation, findings, and recommendations. The Council accepted two learning points from the investigation following the recommendations of the II’s. The first involving the number of professionals involved with the EHCP process but no one coordinator. The Council explained it had recruited more casework officers to the SEN service to allow to it to be more proactive during the education, health and needs assessment procedure.
  13. The second point was to ensure when it receives ‘complex and meticulously detailed complaints such as this (and the one running parallel concerning Social care)’ the Council will put review processes quickly in place to decide whether to escalate such a complaint to Stage 2. The Council also ensured staff received training in effective complaint handling from the Ombudsman. This included how to agree voluminous complaints and avoid delays. The Council apologised to Ms X and Y for any distress they experienced, and it was not the Council’s intention to cause them any distress.

My assessment

  1. As paragraph eight explains we do not consider complaints where a complainant has been to a tribunal. So, we cannot look at the concerns raised by Ms X which have been considered by the Tribunal as noted by the II’s.
  2. Ms X remains unhappy with the outcome of the non-statutory investigation and questions the independence of the investigators involved. The documents show the II’s carried out a thorough and detailed investigation into the complaints raised by Ms X . The evidence shows the II’s ensured they had Ms X’s agreement over the matters to be considered and held meetings with Ms X to go through and understand her concerns. Because of this I do not consider there are grounds to re-investigate the matters Ms X has raised in the non–statutory stage 2 investigation further. Although I consider the time taken by the Council to issue a final EHCP and the alternative educational provision needs further comment.
  3. The statutory guidance requires the Council to issue a final EHCP within 20 weeks from the date of referral. The Council acknowledges the draft EHCP was issued within the statutory timeframe. But due to Ms X not accepting the draft because of the social care content, delays, and request for revisions by Ms X caused the process to take longer than it should. Although the Council decided to publish a final ECHP which would then give Ms X a legal right to appeal it through the Tribunal process, it took the Council 44 weeks rather than 20 to issue the final EHCP.
  4. The statutory guidance says the Council must carry out the process in a timely manner and should plan enough time for each step of the process . This is so wherever possible any issue or disagreements can be resolved within the statutory timescales. While I appreciate the Council was trying to accommodate Ms X’s revisions, I consider it should have issued the EHCP sooner to allow her the opportunity to appeal. So, there is fault by the Council as it took too long to deal with the ECHP process.
  5. However, I consider in this case the injustice to Ms X and Y is limited to frustration over the delays. This is partly because the evidence shows Ms X added to the delays as she did not agree with the draft EHCP and requested revisions. It is also because I cannot say for certain that even if the Council issued the final EHCP after 20 weeks and Ms X appealed, the issues would have been resolved any sooner than they were. Or that Ms X would have achieved the Tribunal outcome she did in May 2017. Because of this I recommend the Council apologises to Ms X and Y for taking too long with the EHCP process to remedy the injustice caused.
  6. It is for the school and Council to prove alternative educational provision if a child is deemed too ill to attend school. As the non-statutory investigation established Ms X removed Y from school in January 2016 in an unauthorised way. So, there was no requirement for the school or Council to provide Y with education from January to September 2016. Both the school and Council considered Y was not unfit to attend school and expected her to return for lessons. So, the Council warned of prosecution action against Ms X for Y’s non-attendance.
  7. Once Y was being Electively Home Educated by Ms X from September 2016 it was Ms X’s responsibility to ensure Y was provided with suitable education. There is no evidence of fault by the Council in failing to provide alternative educational provision for Y from January to November 2016. The Council issued the final EHCP in November 2016, so it was open to Ms X to appeal from that point. As paragraph nine explains we cannot consider any loss of educational provision once the right of appeal is available.
  8. The evidence shows the Council considered and acted on the findings and recommendations of the non-statutory stage 2 investigation. It has recruited more caseworkers to the SEN service.
  9. The Council accepted the finding it delayed when dealing with Ms X’s non- statutory complaint. The evidence shows Ms X complained in January 2018 but did not receive a response until July 2018 after she had referred the complaint to the Ombudsman. We referred the complaint back to the Council to consider first and Ms X rejected its response. The Council did not commission the II’s to investigate the complaint until November 2018.
  10. Once the complaint was progressed to a non-statutory stage 2, I consider the evidence shows it was being progressed. But there were significant delays in dealing with the complaint between January to July 2018 and then July to November 2018. This is fault by the Council as it should have responded to Ms X and progressed her complaints much sooner. I consider Ms X has been caused frustration because of the delays. The Council has already acknowledged it found the complaint difficult to deal with and acted to ensure officers are trained to deal with such complaints in future. The Council has apologised to Ms X and Y for the upheld complaints in the non–statutory stage 2. I consider this is suitable action for it to take to remedy the injustice caused to Ms X.

Mrs X’s complaint documents

  1. The Council confirms it agreed with Ms X in 2019 she would collect the two lever arch files of her complaint documents from a Council office near to her home. Ms X failed to collect the files as agreed so they were placed back in storage. Ms X complained later the files had not been returned to her, so the Council sent them back to her recorded delivery in December 2019.
  2. The Council confirms the complaints team still hold a file of the photocopied documents for the purpose of complaint investigation. The Council says it considers it is still necessary for it to hold the file during the complaints process so it can respond fully and robustly to enquiries. The Council says Ms X has reported the matter to the Information Commissioner to consider.
  3. The Council has confirmed it has returned Ms X’s original documents to her. Any concerns Ms X may have about the Council holding onto information from her are more properly dealt with by the Information Commissioner.

Ms X’s additional complaints

  1. The Council explained it reason for not sending Ms X the non–statutory stage 2 report . This is a decision it is entitled to make. Ms X can request a copy of the report through an FOI request to the Council.
  2. The documents I have seen show Y was removed from the school roll in September 2017 by the school. As this refers to action by a school, it is not a matter we can consider as paragraph 10 explains.
  3. Ms X’s concerns about Council’s request to change the date of the Tribunal hearing in May 2017 have been considered and dealt with by the Tribunal. So, it is not an issue for me to consider.

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Agreed action

  1. To remedy the injustice, I have identified in paragraph 48, the Council has agreed to the following actions, within one month of the date of my decision:
    • To send a written apology to Ms X for the complaints upheld at stage 2 and for its failure to send the apology in 2018. And the Council will apologise to Ms X and Y for taking too long with the EHCP process.
    • Ensure the Council makes it clear in stage 2 adjudication letters that a complainant can request a review to a Stage 3 hearing panel.

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Final decision

  1. I find fault in the way the Council dealt with the EHCP for Y as it delayed issuing the final Plan. I also find fault in the way the Council dealt with the statutory Stage 2 investigation into Ms X’s complaints as it failed to issue an apology as agreed with the recommendations in 2018. The Council has agreed to my recommendations to remedy the injustice caused to Ms X and Y.

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Investigator's decision on behalf of the Ombudsman

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