Leeds City Council (17 018 053)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 14 Jan 2019

The Ombudsman's final decision:

Summary: The Council did not make or consider making alternative education provision for Ms X’s son, Y, after it had directed a school to offer him a place and there was a delay of around two months in making the arrangements for this placement to commence. This amounts to fault and the Council will take action to recognise the injustice this caused.

The complaint

  1. The complainant, whom I shall refer to as Ms X, says the Council is at fault in that it:
  1. made inadequate educational provision for her son, Y, after she withdrew him from school in Easter 2017;
  2. delayed in ensuring he started a new school which, although named in in his EHCP in July 2017, he did not start attending until half-way through the Autumn term 2017; and
  3. its actions in relation to her son’s special educational needs over the last five years have been inadequate.

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What I have investigated

  1. I have investigated Ms X’s complaint about educational provision for Y. The final section of this statement contains my reasons for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

  1. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  3. 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 discussed the complaint with Ms X and considered the information she provided with her complaint. I made written enquiries of the Council and considered all the information before reaching a draft decision on the complaint.
  2. I gave the Council and Ms X the opportunity to comment on my draft decision. At Ms X’s request I made enquiries directly to the school following her comments on the draft decision. I took account of the information the school provided before reaching my final decision on the complaint.
  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

  1. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them.
  2. The Council is responsible for making sure that arrangements specified in a child’s EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process. Parents may apply to the First Tier Tribunal to challenge some council decisions regarding an EHC plan. These decisions include where a parent disputes the school named on the EHC plan, for example.
  3. Councils must arrange reviews of a child’s EHC plan annually. This review considers whether the provision remains appropriate and whether progress is being made towards the targets in the plan. A council may arrange to review a plan early if there is a change in circumstances.
  4. The relevant legislation under the Children and Families Act 2014 says that if a parent or child request a particular school is named in the EHC plan the Council must comply with the request unless the school would be unsuitable to meet the child’s needs or it would be incompatible with the efficient education of others or use of resources.
  5. Project Z is a local authority approved project working with children struggling with mainstream education due to behavioural issues and anger managements problems for example. The aim of the project is to reintegrate children back into mainstream education and it offers courses up to one year.
  6. Project Q is local authority approved education provider for students struggling to access mainstream education. It offers study for qualifications in Art and Design, Creative Media, Music, English and Maths.
  7. The Education Act 1996 (Section 19) states that education 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 otherwise, but must be suitable for the child’s age, ability and aptitude, including any special needs.
  8. Generally a full time education in secondary school amounts to 25 hours per week.

Background

  1. Y is fourteen years old. He has an EHC plan. His current EHC plan (dated July 2017) states he struggles to behave appropriately in school and at home and this has resulted in numerous exclusions from school and a managed move to a different school. He has received input from mental health specialists including the Community and Adolescent Mental Health Service and a targeted mental health in schools team. His EHC plan focusses on providing a “highly differentiated and personalised curriculum wherever possible” and opportunity for Y to demonstrate his strengths in creative activities with an emphasis on visual learning approaches using hands on activities rather than written tasks. It also states that activities such as theatre, drama, singing, car mechanics are preferred as they play to his strengths.

What happened

  1. In March 2017 Ms X contacted a local councillor with concerns about her son’s schooling provision. At that time Y was attending a council maintained special needs school for children with social, emotional and mental health difficulties (School A) that was named on Y’s then EHC plan (dated October 2016). The Council points out School A was designated as outstanding.
  2. The councillor handed the matter over to the Council’s special educational needs (SEN) team to handle. On speaking to Ms X the SEN team clarified Ms X’s concerns as:
    • the school made Y feel suicidal and he was being treated in the same way as he was at his previous school;
    • Ms X wanted a different plan for his provision in school as Y felt isolated; and
    • Y was aware of his social communication difficulties and felt that the current situation was exacerbating these issues.
  3. In order to address these concerns, in April, the Council asked the school to arrange an early annual review meeting. This was duly arranged to take place in May.
  4. At the annual review meeting Ms X said she wanted Y to move to a mainstream school. The Council agreed to consult a mainstream school when she identified one she was interested in. Y attended the review meeting and the notes of this state that he said he did not like School A. Ms X said she did not consider it was the right placement for Y.
  5. The Council points out that Y’s place at School A was always available to Y but, as Ms X said she did not want him to return to School A while an alternative school was being sought. School A provided a small amount of weekly offsite one-to-one provision and counselling sessions when he was not attending.
  6. In early July 2017 Ms X named the mainstream school she wanted Y to attend and told the Council this. The day after providing the name of the school she wanted for Y, Ms X complained formally to the Council.
  7. The Council points out that Y had struggled previously in mainstream school, had required additional support in specialist provision and says that professional advice considered specialist provision was necessary for him. However, the Council says that in order to comply with the legislative requirement to comply with a parental request for a mainstream school (unless the school would be unsuitable to meet the child’s needs or it would be incompatible with the efficient education of others or use of resources) it pursued Ms X’s request and contacted the school she had identified.
  8. The Council contacted Ms X’s preferred school (School B) and asked it to offer Y a place. It asked the school to respond within 15 working days.
  9. The school provided its response on 21 July. It said staff were concerned that the school would not be able to meet Y’s needs and that the school site would not be suitable to Y’s complex needs including his “high risk dangerous and unpredictable behaviours and his complex needs for a smaller, calm environment”.
  10. Despite School B’s concerns, the Council felt that it would not be able to successfully defend a decision to refuse a place at School B at any challenge brought to the SEN in tribunal. The Council therefore decided to name School B in Y’s EHCP. It issued this on 31 July 2017.
  11. In early September the Council resumed work on Y’s placement. It was unable to make progress before this due to the school summer holidays when no-one was available from the School. The Council contacted School A to ask whether Y had a particularly positive relationship with any staff there who would be able to help Y with his transition to School B. School A offered a Parent Support Advisor for this role. When advised of this Ms X said she would prefer a different member of staff to fulfil this role. It seems that following a difficult meeting with staff from School A, Ms X decided very shortly after that School A should not be involved in the transition process and so the Council instead provided a “specialist Inclusion Support Worker” to fulfil this role.
  12. The Council arranged a meeting with School B the following week (the second week of the new school term) to discuss Y’s move to School B with its head teacher and Special Educational Needs Co-ordinator (SENCO).
  13. A transition plan for Y was produced by relevant involved professionals at a meeting in late September. A meeting was arranged and took place with Ms X the following day. The Council says it considered Y needed a slow build up of school provision given the amount of time he had missed in school. The transition arrangements agreed were broadly a one hour visit weekly to complete an assessment and a gradual increase of time in school with additional support and therapy from specialist funding which focussed on areas of particular interest for Y and in which he was especially able following the assessment period. The school/Council identified a local project (Project Z) which provides a course for young people struggling in mainstream education with the aim of reintegrating them back into mainstream education.
  14. Following the October half-term holiday in 2017 Y was placed on roll at School B starting with one and a half hours provision a week. By 9 November this had increased to 7 hours a week (comprising 2 hours in school and five at Project Z). The following week this increased to 9 hours a week (4 hours teaching at school and five hours at Project Z). This increased weekly up to mid-December by which time Y was receiving 17 hours a week education which comprised 2 days a week at Project Z, seven hours of teaching and four hours after school work. The amount of provision was adjusted over the rest of the school year with attempts to increase the amount of mainstream education. In its account of the provision made the Council says this increase in mainstream provision increased difficulties with Y’s behaviour. Nonetheless Y was attending school for 22 hours a week by the end of the school year in July 2018. His timetable by this time included a significant amount of time off site attending the specialist projects identified but also time in school attending lessons including English, History, Geography and Science. The school also provided a private music tutor for Y.
  15. In response to my enquiries to the school, the SENCO has said during Y’s first year in the school she gradually increased the amount of time Y was in school but that sometimes attempts to increase the amount of provision were unsuccessful. She said that whilst Y was often keen to join in with larger class lessons he often found this difficult because if his anxiety and other needs. She said that when the amount of time timetabled was increased at Y’s request the school agreed with Ms X that she would be available in case he was unable to manage. The school agrees that on occasions when Y was unable to manage in school despite high levels of support they would send him home. When Y struggled to manage standard PE lessons in school, membership of a leisure centre was agreed for both Y and his mother and Ms X took him so that he could access physical activity there. The school agreed there were difficulties at the end of the academic year in July 2018 which meant Y was unable to attend school on occasions and Ms X kept him at home. Following an annual review in December the Council is now looking into formalising additional support for Ms X in providing help to Y, including financial support.
  16. The annual review in December 2018 notes the need to increase the educational hours being provided to Y from 22 to 25 hours by looking into some online tuition to make up the outstanding three hours.
  17. In its concluding comments on Y’s integration into the School it states “…as the gradual reintegration and creative provisions were put into place to allow Y to be successful Y was not accessing a full-time table as we needed to carefully plan this in order to ensure success. The nature of the gradual reintegration, which was unavoidable, did leave Y in the care of his mother (in agreement with all parties) to support his reintegration into mainstream school”.

Ms X’s complaint to the Council

  1. Ms X complained to the Council in July 2017. This related to Ms X’s unhappiness with the delay in providing Y with a mainstream school placement. The Council provided its written response to Ms X within around two weeks.
  2. The Council responded to further complaints about Y’s educational provision in October 2017 and December 2017. It offered Ms X an apology and a payment of £450 to recognise its failure to make alternative schooling provision for Y in September and October 2017.

Was the council at fault and did this cause injustice?

  1. Ms X withdrew Y from School A around Easter 2017. The Council and school considered School A could meet Y’s needs. I accept that Ms X does not agree that it was the right placement for Y but I have seen no evidence which suggests it was not able to meet his needs while she pursued a different school she would prefer for Y. As I accept the Council’s position that the school was suitable for Y there are no grounds for me to conclude the Council was at fault for failing to make alternative schooling provision for Y after Ms X withdrew him from School A up until the end of the summer term in July.
  2. The Council’s SEN team did not become aware of Ms X’s request for a place at School B until early July. Once it was aware of Ms X’s preference for School B I consider the Council acted promptly in pursuing a place for Y there and took action to direct the school to offer a place swiftly following its initial refusal to accept Y.
  3. The Council accepts it took some time to make arrangements for Y’s transition to the school from September and that it could have considered alternative provision eg one to one teaching, during this period but did not do so. The Council has offered to pay Ms X £450 to recognise the injustice this caused. I acknowledge the Council’s acceptance of its failure to make education provision for Y in September and October 2017: by this time School B had been directed to offer Y a place and it was very clear that Ms X wanted him to attend there and would not send Y to School A following the decision to offer a place at B School. I therefore agree that the failure by the Council to consider alternative provision until arrangements were made for Y to start attending School B amounts to fault that caused injustice as Y missed out on education.
  4. The Council says that due to Y’s significant special educational mental health needs, its officers were aware that the transition from specialist to mainstream provision was likely to challenging for him. It says it wanted to ensure the transition was successful and was concerned that if this was not planned well and did not consequently go well this could have a detrimental effect on Y’s wellbeing and learning. It says that it therefore worked with the school and other services to ensure that a gradual integration plan was in place that could take account of his progress in order that Y could settle into School B. It confirms this approach was agreed at a planning meeting in September. I accept there were good reasons for a gradual introduction back into mainstream school for Y so do not consider partial provision during this settling in period amounts to fault.
  5. The Council argues that from November 2017 Y was receiving education that was suitable to his needs. The timetable provided by the Council for Y from November 2017 shows provision gradually increasing throughout November from about two full days and three half days at the beginning of the month to three full days and two half days in the second week. The Council says it accepts that no educational provision was in place in September and also that only part-time provision was made in October. I consider the individualised timetable provision put in place by the school after he began attending complies with that detailed in Y’s EHCP and that the gradual build up to nearly full time provision is the result of trying to ensure that the placement has been successful. It is clear from the information provided by the School that it has tried making different provision since Y started attending the school in order to work out what best suits Y. As Ms X is providing support when Y is unable to access some of the timetable it seems the Council has agreed to look into providing her with financial and other support to recognise this and is in the process of doing this.

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Agreed action

  1. The Council reiterates its earlier apologies to Ms X for its shortcomings in exploring alternative provision. I acknowledge the Council has already apologised and now reiterates this apology and so I am not asking the Council to directly apologise to Ms X again.
  2. The Council will pay Ms X £1200 to recognise the injustice caused by the failure to make any suitable educational provision for Y in September and October 2017. I acknowledge the Council offered a payment of £450 to do this. In calculating this amount the Council said it took account of our guidance on the level of payment we would ordinarily consider when a child has not received education. Our guidance states we would usually recommend a payment of between £200 and £600 a month with the specific level being determined after taking account of a number of factors including any special needs and whether any partial provision has been made, for example. The Council offered a rate of £300 a month and so offered a total payment of £450 which comprised £300 for the absence of any education in September and £150 to recognise the failure to provide education for part of October. Given the Council accepted it should have considered making alternative provision and did not, that no provision was made at all for September and, it is now clear, for all of October also, and Y had special educational needs recommended a higher payment at a rate of £600 a month which the Council accepted. So, for two months of no provision the Council will pay Ms X £1200.
  3. The Council’s offer of a further £100 to recognise the avoidable time and trouble Ms X was caused in having to pursue her complaint to this office to have the matter resolved is acceptable and it will now make this payment.
  4. The Council will take the agreed action within four weeks of the date of the final decision on this complaint.

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Final decision

  1. I have completed my investigation and uphold some of Ms X’s complaint. There was fault by the Council as detailed and that this caused injustice. I am satisfied the action the Council has agreed to take is sufficient to recognise this injustice.

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Parts of the complaint that I did not investigate

  1. I have not investigated part c) of the complaint as 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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Investigator's decision on behalf of the Ombudsman

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