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Cheshire East Council (17 008 870)

Category : Education > Special educational needs

Decision : Not upheld

Decision date : 23 Mar 2018

The Ombudsman's final decision:

Summary: Mrs M complains about delay issuing her daughter, D’s Education, Health and Care (EHC) Plan. The Council took longer than 20 weeks to issue D’s final Plan, but the delay was not the result of fault by the Council.

The complaint

  1. Mrs M complains about delay issuing her daughter, D's Education, Health and Care Plan.
  2. Mrs M complains the Council has not assessed D's social care needs and made appropriate provision.

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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. 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)
  2. We cannot question whether council decisions are right or wrong simply because the complainant disagrees with them. We must consider whether there was fault in the way decisions were reached. (Local Government Act 1974, section 34(3), as amended)
  3. The law says we cannot investigate a complaint when someone has, or could have, 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 Chamber of the First Tier Tribunal (‘SEND’))
  4. 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)

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How I considered this complaint

  1. I have considered:
    • information provided by Mrs M;
    • information provided by the Council, including D’s Education, Health and Care Plan, a SEND Tribunal decision, and a Child and Family Assessment;
    • the Children and Families Act 2014; and
    • the Special Educational Needs and Disability Regulations 2014.
  2. I invited Mrs M and the Council to comment on my draft decision.

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What I found

  1. Mrs M’s daughter, D, has special educational needs. Mrs M explained that D experienced a dramatic regression at 15 months having previously exceeded all her developmental milestones. It was some time before D was diagnosed with Autistic Spectrum Condition and severe food allergies. This was clearly a very difficult and distressing time for the family. Unable to find a suitable nursery for D, Mrs M’s husband gave up work to care for her. They privately funded an ABA programme which Mrs M reports was very successful.
  2. Mrs M asked the Council to assess D’s special educational needs in August 2014. The Council refused. Mrs M asked the Council again in April 2016. The Council agreed and decided to issue an Education, Health and Care Plan for D.
  3. Mrs M requested a mainstream school and asked the Council to fund D’s ABA programme. In July 2016, the Council proposed a mainstream school with 32.5 hours per week of support, but not the ABA programme Mrs M wanted.
  4. Unhappy with the Council’s offer, Mrs M requested a place for D at an independent special school.
  5. On 12 October 2016, the Council refused Mrs M’s request to name the independent special school with ABA provision in D’s Education, Health and Care Plan. The Council considered this an inefficient use of resources. The Council consulted maintained special schools instead.
  6. Mrs M complained to the Council on 17 October 2016. She asked the Council to issue D’s final Education, Health and Care Plan so that she could begin an appeal to the Tribunal.
  7. Mrs M appealed parts B (special educational needs), F (special educational provision) and I (the named school) of D’s Education, Health and Care Plan. The Tribunal heard Mrs M’s appeal on 5 April 2017. In a decision dated 17 May 2017, the Tribunal dismissed Mrs M’s appeal and decided D should start in the Reception class at a maintained special school, without an ABA programme, in September 2017, one year behind her chronological age. D should have started school in September 2016.
  8. Mrs M’s application for permission to appeal the Tribunal’s decision was unsuccessful.
  9. D did not start at the maintained special school in September 2017. Mrs M requested a place at a mainstream school, which the Council agreed, and is currently exploring the possibility of elective home education.

Education, Health and Care Plans: the law

  1. The procedure for assessing a child’s special educational needs and issuing an Education, Health and Care Plan is set out in legislation and Government guidance.
  2. The law says that Councils must name a parent’s preferred school in their child’s Education, Health and Care Plan, so long as the school is suitable and the child’s attendance would not be an inefficient use of resources. (Children and Families Act 2014, section 39)
  3. Parents have a right of appeal to the SEND Tribunal if a Council refuses to carry out an assessment, or they disagree with the special educational provision or the school named in a child’s Education, Health and Care Plan.

Complaint 1) delay issuing D's Education, Health and Care Plan

  1. Mrs M first asked the Council to assess D’s special educational needs in August 2014. The Council refused. The Ombudsman cannot consider the matter because too much time has passed, and Mrs M could have appealed the Council’s decision to the Tribunal. This would have been the best option since, unlike the Ombudsman, the Tribunal decides whether an assessment is necessary and if so, orders the Council to carry it out.
  2. The Council agreed to assess D’s special educational needs following Mrs M’s request on 13 April 2016. Regulations and Guidance set out timescales for issuing Education, Health and Care Plans. The Guidance expects the whole process, from a parent’s request to the final Plan, to take no more than 20 weeks.
  3. The Council should have issued D’s final Plan by 31 August 2016.
  4. However, Mrs M and the Council were unable to reach an agreement on the provision necessary to meet D’s needs. When the Council refused Mrs M’s request to fund an ABA programme in July 2016, Mrs M asked the Council to consider a special school instead. This caused delay, but it was not the result of fault by the Council.
  5. Mrs M complains the Council then caused further delay by consulting maintained special schools rather than the independent special school she requested. The Council consulted both the independent special school Mrs M requested and maintained special schools in other areas.
  6. The outcome of the consultations was that the Council refused to name the school Mrs M wanted and Mrs M appealed to the Tribunal. Mrs M’s appeal was unsuccessful. Mrs M has not sent D to the school chosen by the Tribunal. While Mrs M’s negotiations with the Council were no doubt frustrating, the delays in the process were not the result of fault by the Council.

Complaint 2) D's social care needs

  1. Mrs M complains the Council has not assessed D's social care needs and made appropriate provision.
  2. The Council began a Child and Family Assessment in December 2016, after it had issued D’s final Education, Health and Care Plan. The Council visited D at home on three occasions. The assessment concluded that D was eligible for support from a personal assistant (PA) so that her parents could spend time with their son. The Council says it has made a referral to the Cheshire Centre for Independent Living which administers Early Help Individual Payments on its behalf.
  3. The Ombudsman does not decide whether, or how much, social care support D needs. This is the Council’s job. The Ombudsman’s job is to make sure the Council makes its decision properly. The Ombudsman cannot question Council decisions taken without fault.
  4. The Council has assessed D’s needs and offered social care support. There are no grounds for the Ombudsman to question the Council’s decision.

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Final decision

  1. I have ended my investigation. The Council took longer than 20 weeks to issue D’s final Education, Health and Care Plan, but the delay was not the result of fault by the Council. The Council has assessed D’s social care needs and offered support.

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Investigator's decision on behalf of the Ombudsman

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