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Hampshire County Council (17 011 676)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 26 Apr 2018

The Ombudsman's final decision:

Summary: Mr and Mrs B complain that the Council failed to provide alternative education or deliver special educational needs provision for their son, C, while he was out of school, took too long to issue an education, health and care plan, and refused to allow them to educate C at home. The Council was not at fault because it issued the plan within statutory timescales, and because Mr and Mrs B refused to send C to the placement which the Council had provided. However, the Council was at fault for failing to respond to part of a complaint that Mr and Mrs B made in April 2017. It has agreed to apologise for this.

The complaint

  1. The complainants, whom I refer to as Mr and Mrs B, complain that the Council failed to provide alternative education or deliver special educational needs (SEN) provision for their son while he was out of school. I refer to their son as C.
  2. Mr and Mrs B also complain that the Council took too long to transfer C from a statement of SEN to an education, health and care (EHC) plan, that its efforts to find a new school for C were inadequate, and that it refused to allow them to educate C at home.
  3. Mr and Mrs B complained to the Council about these issues in April 2017, but the Council refused to respond to their complaint, saying that the complaint issues would be addressed by their upcoming Tribunal appeal.
  4. Mr and Mrs B also complain about C’s previous school, the content of his 2016 statement of SEN, and the content of his 2017 EHC plan.

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What I have investigated

  1. I have investigated the complaints set out in paragraphs 1-3, above. The final paragraph of this decision statement sets out why I have not investigated other matters.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
  3. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
  4. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Chamber of the First Tier 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)
  6. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

  1. I considered information provided by Mr and Mrs B and the Council. I wrote to Mr and Mrs B and the Council with my draft decision and considered their comments.

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What I found

  1. I will address each part of Mr and Mrs B’s complaint in turn, below.

The Council took too long to issue an EHC plan

Special educational needs and disability: managing the September 2014 changes to the system

  1. This document sets out non-statutory advice to councils to help them transfer children from statements of SEN to EHC plans.
  2. Paragraph 4.15 says:

In the academic year within which the local authority intends to transfer the child or young person from a statement of SEN to the new SEN and disability system, the Transfer Review … should replace the annual review of the statement. Where the Transfer Review does replace the annual review it must be completed within 12 months of the date the statement of SEN was issued or of the previous annual review of the child or young person’s statement.

  1. Paragraph 5.14 says that, after a council has started the transition process, it must complete it within 18 weeks.

Analysis

  1. The Council held a transfer review on 12 December 2016, and decided to conduct an EHC assessment on 30 December. The Council issued C’s final EHC plan on 12 April 2017.
  2. The transfer review meeting on 12 December 2016 took place within 12 months of the statement of SEN being issued. From the date of the meeting to the final EHC plan being issued was a period of just over 17 weeks. This was within the timescales set out in the guidance, so the Council was not at fault.

The Council refused to allow Mr and Mrs B to educate C at home

What happened

  1. On 7 November Mrs B told the Council that she and Mr B were home-educating C until they had found a suitable school. The Council registered C as being educated at home on 9 November.
  2. The Council held an annual review of C’s statement of SEN on 12 December (this review was also C’s transfer review, which started the process of transferring to an EHC plan). On 20 December the Council told Mrs B that she and Mr B could not educate C at home because he had to go to the placement named on his statement of SEN until the review process was concluded (at which point the Council would have decided which placement was most suitable).
  3. On 16 January 2017 Mrs B told the Council that she and Mr B had removed C from his school because of serious concerns they had about the school. She said she would not return C to school until a new placement had been identified. She said she did not wish to educate him at home, she just wanted him to go to a more suitable school.
  4. In April 2017, after it had completed its EHC assessment, the Council issued an EHC plan for C and named a new school.

Law and guidance

  1. In 2016 and early 2017 C had a statement of SEN, which was governed by the Education Act 1996. He did not get an EHC plan (which is governed by the Children and Families Act 2014) until April 2017.
  2. Section 7 of the Education Act 1996 says the parent(s) of every child must ensure the child receives a suitable education “either by regular attendance at school or otherwise”. Section 9 says:

In exercising or performing all their respective powers and duties under the Education Acts, the Secretary of State and local education authorities shall have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure.

  1. Section 324 of the Act says that, if a council maintains a statement of SEN for a child, it must deliver the SEN provision set out in the statement unless the child’s parent(s) have made suitable arrangements for the provision.
  2. Section 324 of the Act also says that councils do not have to name a placement on a statement of SEN if the child’s parent(s) have made suitable arrangements for the SEN provision.
  3. The 2001 SEN code of practice, which provides statutory instructions to councils on how to maintain statements of SEN, says:

In such cases [where a parent wants to educate a child at home], if the child has a statement of special educational needs, it remains the [council’s] duty to ensure that the child’s needs are met … If the parent’s arrangements are suitable the [council is] relieved of [its] duty to arrange the provision specified in the statement. If, however, the parents’ attempt to educate the child at home results in provision which falls short of meeting the child’s needs, then the parents are not making ‘suitable arrangements’ and the [council] could not conclude that [it was] absolved of [its] responsibility to arrange the provision in the statement.

Analysis

  1. The Education Act requires that councils allow a child to be educated at home if they are satisfied the education is suitable for the child’s needs – this includes children who have statements of SEN. If a council allows a child to be educated at home, it must ensure they are receiving the SEN provision set out in their statement of SEN.
  2. In C’s case, the Council agreed to home education before changing its mind, saying this would only be agreed following a review. At that point the Council was about to conduct a transfer review, followed by an EHC assessment. It is my view that, had Mr and Mrs B continued to express a wish to educate C at home, the Council should have decided whether that arrangement would be suitable as part of its EHC assessment.
  3. However, Mr and Mrs B told the Council in January 2017 that they did not want to educate C at home, they wanted him to attend a more suitable school. I consider it clear, from this email and others, that they did not want the Council to assess whether home education would be suitable. They wanted it to find a school for C and wanted to keep him at home until this happened.
  4. This means that, because it did not have the opportunity to properly assess whether the arrangement would be suitable, the Council was not under the duty to agree home education. As a result, I do not consider it to have been at fault.

The Council did not provide alternative education or deliver SEN provision while C was out of school

What happened

  1. On 4 October 2016 Mr and Mrs B told C’s school that they were removing him from the school. The school told the Council the same day.
  2. The Council tried to contact Mr and Mrs B to discuss this on 4 and 5 October, but was unsuccessful. On 5 October Mrs B emailed the Council and said she and Mr B were not educating C at home, but were trying to identify a new school for him. She said they had visited one school and were going to visit another.
  3. On 7 November Mrs B told the Council that she and Mr B were home-educating C until they had found a suitable school. The Council registered C as being educated at home on 9 November.
  4. The Council held an annual review of C’s statement of SEN on 12 December (this review was also C’s transfer review, which started the process of transferring to an EHC plan). On 20 December the Council told Mrs B that she and Mr B could not educate C at home because he had to go to the placement named on his statement of SEN until the review process was concluded (at which point the Council would have decided which placement was most suitable).
  5. On 16 January 2017 Mrs B told the Council that she and Mr B had removed C from his school because of serious concerns they had about the school. She said she would not return C to school until a new placement had been identified. She said she did not wish to educate him at home, she just wanted him to go to a more suitable school.
  6. In April 2017, after it had completed its EHC assessment, the Council issued an EHC plan for C and named a new school. Mr and Mrs B disagreed with the Council’s decision, so they appealed to the SEND Tribunal.

Law and guidance

  1. Section 19 of the Education Act 1996 requires that councils provide suitable education for:

“… those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them”.

  1. Section 324 of the Act says that, if a council maintains a statement of SEN for a child, it must deliver the SEN provision set out in the statement unless the child’s parent(s) have made suitable arrangements for the provision.

Analysis

  1. If a council has arranged education for a child which is suitable and available, but – for whatever reason – the child is not making use of that education, it does not automatically mean the authority is under a duty to arrange alternative provision.
  2. However, if there is no suitable education available to a child, then the Education Act requires that councils arrange an alternative. In cases where a child has a statement of SEN, councils should ensure that the child receives the SEN provision set out in the statement.
  3. After 4 October 2016, when Mr and Mrs B withdrew C from school, C still had a placement available to him. It was Mr and Mrs B’s decision not to send him there, and they had not expressed a wish to educate him at home. This meant that the Council was not under the duty to provide alternative education or deliver SEN provision, because it had provided a placement which did both and it was not preventing C from accessing the placement. It decided C’s absences were unauthorised. This was not fault by the Council.
  4. Although, in November 2016, the Council initially agreed to home education, it then decided that this could not be agreed until a review had been completed. As set out in paragraphs 28-31 of this decision statement, the Council was not at fault in its refusal to agree that Mr and Mrs B could educate C at home until it had conducted an EHC assessment. As a result – until the Council named a new school in his EHC plan of April 2017 – he should have attended the school named on his statement of SEN.
  5. The school named on C’s statement of SEN, which would have delivered the SEN provision set out in the statement, was available to C and the decision to prevent him attending was that of Mr and Mrs B, not the Council or the school. The Council did not share Mr and Mrs B’s view that the school was unsafe.
  6. As a result, I do not consider the Council to have been under the duty to provide alternative education to C, or to deliver SEN provision at home, and I have not found it to be at fault.

The Council’s attempts to find a new school for C were inadequate

What happened

  1. On 5 October 2016, after Mr and Mrs B had withdrawn C from school, Mrs B told the Council that they were trying to identify a new school for him. She said they had visited one school and were going to visit another.
  2. On 6 October the Council sent placement requests to the two schools Mrs B had named the day before. On 20 October both schools said they could not accept C, so on 27 October the Council sent placement requests to eight more schools. However, by 17 November all eight schools had told the Council that they could not accept C.
  3. The Council held a transfer review, and started the EHC assessment process, in December 2016. As part of the assessment it consulted more schools. By April it had found a school which it decided was suitable, so it named the school in C’s final EHC plan.

Analysis

  1. When Mr and Mrs B withdrew C from school and said they wanted him to attend a different school, the Council sent ten placement requests within a reasonable time. However, all ten requests were unsuccessful.
  2. Shortly afterwards the Council conducted its EHC assessment which, as set out earlier in this decision statement, was completed within correct timescales. At the end of this process the Council had identified a school.
  3. As a result, I consider the Council to have taken action to try and identify a school, and it identified one without unnecessary delay. I do not consider this to have been fault by the Council.

The Council failed to respond properly to Mr and Mrs B’s complaint

What happened

  1. Mr and Mrs B submitted a complaint on 9 April 2017. They complained that:
      1. The timetable at C’s previous school was ‘illegal’;
      2. The previous school – as named on C’s 2016 statement of SEN – was unsafe;
      3. The Council removed occupational therapy from C’s EHC plan;
      4. C’s new school was not appropriate for his needs;
      5. The Council did not respond to emails in June and October 2016;
      6. C did not get SEN provision while he was out of school;
      7. The Council refused to discuss schools with them during C’s transfer review meeting;
      8. The Council threatened Mr and Mrs B when they removed C from school; and
      9. The Council delayed issuing C’s EHC plan.
  2. Mr and Mrs B appealed the EHC plan on 12 April.
  3. On 26 April and 2 May the Council told Mr and Mrs B that it would not investigate their complaint because their complaint points would be considered by the SEND Tribunal.

Analysis

  1. Out of the complaint points set out in paragraph 52 of this decision statement, I only consider that points (c) and (d) would have been considered by the SEND Tribunal. The Tribunal would consider the merits of the EHC plan and would decide whether the provision (and named placement) were suitable.
  2. The Tribunal would not consider point (a), which was a complaint about the school itself, or point (b), which concerned C’s 2016 statement of SEN rather than his 2017 EHC plan. However, these points were not for the Council to consider either. Point (a) should have been directed to the school, and point (b) could have been appealed to the Tribunal in 2016.
  3. The Tribunal would also not consider points (e) to (i), which were about the processes of maintaining C’s statement of SEN and of issuing his EHC plan, rather than the content of the EHC plan. The Council should have responded to these points under its complaints procedure.
  4. Given the time that has passed, I do not consider it appropriate for the Council to go back to the complaint and respond to it, particularly as I have now investigated the Council’s decision-making late 2016 and early 2017. However, the Council should apologise for its failure to respond to part of Mr and Mrs B’s complaint.

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Agreed action

  1. The Council has agreed to write to Mr and Mrs B and apologise for its failure to respond to part of their complaint in April 2017.
  2. This action should be completed within two weeks of the date of this decision statement.

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Final decision

  1. The Council was not at fault in how long it took to issue C’s EHC plan, its refusal to agree to home education for C, or its decision to not provide alternative education or deliver SEN provision while C was at home. However, it was at fault for failing to respond to part of a complaint that Mr and Mrs B made in April 2017. The agreed action remedies Mr and Mrs B’s injustice.

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Parts of the complaint that I did not investigate

  1. I could not look at complaints about C’s school or about the content of his 2017 EHC plan. The Ombudsman cannot investigate complaints about schools or complaints which have been subject of a Tribunal appeal. I did not look at the complaint about the content of C’s 2016 statement of SEN, because Mr and Mrs B were offered the right to appeal to the SEND Tribunal at the time and they decided not to exercise that right.

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Investigator's decision on behalf of the Ombudsman

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