Cambridgeshire County Council (17 018 101)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 13 Aug 2019

The Ombudsman's final decision:

Summary: Ms X complains on behalf of her son Y about the way the Council handled his education over the past few years. She says it failed to: re-assess his needs; carry out annual reviews of his Statement of Special Educational Needs or Education, Health and Care Plan; ensure he received a full-time education or the provision detailed in his Plan; or carry out adequate transition planning when he was scheduled to attend a new school. In addition, she complains about the way it handled a safeguarding referral about Y. The Ombudsman has found the Council was at fault for failing to carry out an EHC needs assessment and not conducting sufficient enquiries to establish why Y was unable to attend school. It was also at fault for taking too long to arrange Y’s occupational therapy, poor recordkeeping, and the way it handled the safeguarding referral. These faults caused some uncertainty therefore we have recommended the Council makes a payment to remedy this injustice. It has agreed to carry out this recommendation.

The complaint

  1. Ms X complains on behalf of her son Y about the way the Council handled his education over the past few years. She says it failed to: re-assess his needs; carry out annual reviews of his Statement of Special Educational Needs or Education, Health and Care Plan; ensure he received a full-time education or the provision detailed in his Plan; or carry out adequate transition planning when he was scheduled to attend a new school. In addition, she complains about the way it handled a safeguarding referral about Y.

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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. 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)
  3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  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)
  5. 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)
  6. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
  7. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
  8. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
  9. 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 have:
    • Read Ms X’s complaint and the documents she submitted in support of it.
    • 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.

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What I found

  1. On 1 September 2014, the law for Special Educational Needs (SEN) changed. The Children and Families Act 2014 introduced a more holistic approach to meeting the needs of a child or young person with SEN, with a mandate for local authorities to replace Statements of SEN (SSEN) with Education, Health and Care (EHC) plans.
  2. Local authorities were required to transfer all children and young people from SSENs to the new system by 1 April 2018, using the ‘transfer review’ process. As part of this process they were legally mandated to carry out an assessment of the education, health and social care needs of the child or young person. This type of assessment is known as an EHC needs assessment and requires the input of the child’s parent or young person, the educational establishment they are attending, and any relevant professional. In all cases, advice should be sought from an educational psychologist.
  3. When carrying out the assessment, local authorities should have considered whether any new evidence, input or advice from professionals was required to inform the process. They were entitled to use existing evidence when conducting the assessment but could only do so where the person who provided the advice and the child’s parent or the young person were satisfied that no new evidence or input was required. Once the assessment was complete, local authorities were required to decide whether to issue an EHC plan.
  4. Prior to the introduction of the new legislation, the assessments that local authorities carried out were known as statutory assessments. These focussed on educational need and could be requested by a parent, educational setting, or other agency such as children’s services. If a local authority decided not to undertake an assessment the parents of the child could appeal to the SEND Tribunal.

The Education Act 1996 and alternative provision

  1. 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.
  2. Other 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. Moreover, it states they should work closely with medical professionals and consider the evidence before deciding what provision should be put in place.

What happened

  1. In 2012, the Council issued Y a SSEN for the first time when he was eight years old.
  2. In September 2015, Y started attending School B and entered Year 7.
  3. Toward the end of February 2016, Ms X requested an emergency annual review of the SSEN that Y was issued in June 2015. She asked for the review as she felt her son’s needs were not being met at School B.
  4. At the beginning of March 2016, the emergency annual review took place at School B and was attended by Ms X, Y, and a caseworker from the Council’s SEN Team, as well as the Headteacher and Deputy Headteacher. The paperwork completed by the School noted Y’s move there had been a big change for him and he was still adapting to this and secondary education. It listed his needs and noted they had changed in relation to cognition and learning, meaning his SSEN required amending. It also noted that Ms X and Y were yet to provide completed forms about their views and stated these should be submitted by the middle of the month. Furthermore, it highlighted the School had requested that an educational psychologist assess Y.
  5. At the end of April 2016, the Council sent Ms X a copy of the proposed amended SSEN.
  6. In mid-May 2016, it issued the final amended SSEN. This stated Y’s needs could be met at a mainstream school and that he was attending School B. It also noted that Ms X felt the School was not meeting his needs or delivering the provision he required.
  7. In mid-June 2016, Ms X emailed the Council to inform it she had removed Y from school along with his sister, after receiving medical advice. Again, she questioned how School B could meet her son’s needs and asked for a meeting to discuss the matter. She also requested that alternative provision be arranged for him.
  8. The following day, both the Council and Ms X agreed to meet at the beginning of July. Regarding alternative provision, she said she would be content if this was delivered by teachers from the National Teaching and Advisory Service (NTAS), either in the library or at home. The following day, the Council submitted a request to a number of providers seeking provision.
  9. At the beginning of July 2016, the Council emailed Ms X to cancel their scheduled meeting. It stated it did this as it felt a meeting was not necessary and it wanted to progress Y’s case in a timely manner. It noted it would submit his case to its panel the following week and asked for her views on which school she wanted him to attend. Ms X then questioned what the panel would consider and the Council stated it would decide what type of school her son should attend based on the available evidence. Ms X subsequently stated Y needed to attend a school which specialised in dyslexia.
  10. A few days later, Y’s GP wrote a letter stating he was medically unfit to attend school because of “psychological distress caused by inappropriate placement” in School B. She also noted Y was under the care of the local Mental Health Team. Around the same time, School B informed the Council it had taken Y off its roll.
  11. In the middle of the month, the Council sent another request to providers seeking provision. This was after a provider withdrew its offer to provide home tuition after corresponding with Ms X.
  12. At the end of the month, the Council notified Ms X it had awarded a contract to the NTAS to deliver provision, adding someone would be in contact to discuss arrangements for September 2016. It also asked whether Y had an interest in music as another provider had offered a 10-week programme.
  13. In mid-August 2016, the Council’s panel decided it was unable to agree to Ms X’s request for a specialist school placement for Y, stating the evidence suggested his needs could be met in a mainstream school. Consequently, it instructed the SEN Team to ask Ms X which mainstream school she wanted her son to attend.
  14. At the end of the month, a solicitors’ firm acting on behalf of Ms X wrote to the Council after both parties had exchanged correspondence about Y’s education. It said the Council was breaching its statutory duties by failing to put educational provision in place for Y. It added Ms X had received little communication from NTAS and the Council had not consulted with her before seeking provision. In summary, it said Ms X had no choice but to seek a judicial review and would do so if the Council failed to act to rectify matters before the end of the week.
  15. At the beginning of September 2016, the Council wrote to several schools to check whether they could offer Y a place.
  16. A few days later, Ms X emailed the NTAS after she met with it a few days earlier. She provided information about Y’s needs and stated he needed 25 hours of home tuition per week from a specialist dyslexia teacher. However, she added this tuition could not take place at the family home as was a working parent.
  17. The NTAS subsequently liaised with the Council and said it did not feel it could provide the level of provision that Ms X had requested.
  18. Around this time, Council officers exchanged emails discussing the situation. They noted that Ms X had not provided any evidence that Y was medically unfit to attend school and there was no reason he should not be attending School B. They also noted the Council was not under a duty to provide home tuition as Ms X had chosen to remove Y from school, suggesting attendance proceedings may be required.
  19. In the middle of the month, two schools responded to the Council’s consultations and said they did not feel they could meet Y’s needs.
  20. A few days later, the Council opened a child missing education case in respect of Y.
  21. In mid-October 2016, the Council wrote to Ms X and sent her a proposed amended SSEN.
  22. Around a week later, the Council’s panel sat again and noted Ms X had not yet identified a mainstream school she wanted Y to attend. It also noted there was an absence of medical evidence to support his non-attendance at school.
  23. At the beginning of November 2016, Ms X emailed the Council to acknowledge receipt of the proposed amended SSEN. She said the emergency annual review held in March 2016 was adjourned and not concluded, but the paperwork did not refer to this. A week later, she asked it to revert to the SSEN that was issued in January 2015 as she felt the current version was not suitable. At the end of the month, she highlighted she was concerned about the length of time Y had been out of education and asked the Council to issue the final SSEN so she could appeal to the SEND Tribunal if it did not want to engage with her.
  24. In mid-December 2016, an Educational Psychologist commissioned by Ms X wrote a draft report after assessing Y in mid-October. She said his needs could only be met in a specialist school for children with dyslexia and associated needs.
  25. Two days later, the Council initiated the process to seek a place at a specialist dyslexia school for Y.
  26. In mid-January 2017, the Council noted it had not received a response from the schools it had consulted. It also noted Ms X wanted the Council to finalise the SSEN so she could appeal to the SEND Tribunal, adding the four specialist schools she had spoken to had stated they could not meet Y’s needs.
  27. A few days later, the Council issued the final amended SSEN. It stated Y should be placed in a mainstream school but did not name one.
  28. At the beginning of March 2017, Ms X submitted an appeal to the SEND Tribunal about parts two, three and four of the SSEN. These parts related to Y’s identified needs, the provision given to meet them, and the naming of an educational placement.
  29. Toward the end of July 2017, the SEND Tribunal issued its decision. It instructed the Council to amend several parts of the SSEN and to name a specified mainstream school as Y’s placement. Following the decision, the Council started to implement the Tribunal’s decision.
  30. In mid-October 2017, the SEND Tribunal set aside the decision made in July as it contained an error of law. Consequently, it reopened Ms X’s appeal.
  31. Toward the end of November 2017, an Educational Psychologist at the Council submitted a safeguarding referral stating Ms X had denied professionals access to Y to assess him and would not let anyone in the family home. Details of the referral were not shared with Ms X.
  32. The Council decided to conduct an assessment after receiving the referral and allocated a social worker to the case. At the end of the month, the social worker contacted Ms X about the matter. Shortly after, the Council closed the case.
  33. At the end of January 2018, the SEND Tribunal issued a final, revised decision. It noted the Council and Ms X had agreed on the wording of the SSEN and instructed this be amended in accordance with a document containing details of the agreement.
  34. Shortly after the Tribunal’s decision, the Council issued a final amended SSEN incorporating the agreed terms. This named a specialist school as Y’s placement and noted several programmes designed to meet his needs would be delivered by the school. The statement also noted that Y would be supported by a speech and language therapist and an occupational therapist.
  35. At the beginning of February 2018, the Council wrote to Ms X after she raised several issues about the way it had dealt with Y’s case. It informed her it would deal with these issues under stage two of its complaint’s procedure, bypassing stage one.
  36. In the middle of the month, Ms X submitted a complaint to the Ombudsman. Around the same time, Y started attending his new school.
  37. In the middle of March 2018, the Council held a meeting to transfer Y’s SSEN to an EHC plan. Ms X noted her son’s school did not have an occupational therapist and requested that outside support be provided from someone she knew. The Council stated an occupational therapist would be commissioned “to identify, monitor and review” the provision detailed in the SSEN issued in January. It also noted the school were in the process of updating Y’s assessments following his recent admission.
  38. The Council’s panel sat at the beginning of May 2018 to consider Ms X’s request for occupational therapist support. It decided the SEN Team should contact the school to check whether it could provide or commission this support, otherwise it committed the Council to doing this. At the same time, the Council sent Ms X a copy of the EHC plan it proposed to issue Y.
  39. In the middle of the month, the school notified the Council its fees did not include the provision of support from an occupational therapist. However, it stated it could commission an assessment if the Council agreed to fund this.
  40. A week later, the Council issued Y’s final EHC plan. Shortly after, it told Ms X it would amend the plan once Y had been assessed by an occupational therapist.
  41. Toward the end of the month, Ms X informed the Council she could not attend an annual review meeting it proposed to hold the following month.
  42. At the beginning of June 2018, the Council wrote to Ms X and said it had instructed Y’s school to commission an independent occupational therapist to assess him.
  43. A week later, Ms X agreed the detail and parameters of her complaint with the Council, which it proceeded to investigate.
  44. In mid-July 2018, the Council wrote to a solicitor’s firm acting on behalf of Ms X about the lack of occupational therapy. It accepted this provision had not been put in place after the Tribunal made its final decision at the beginning of the year. But, it stated Y’s school had indicated the provision would be included in the fees when this was not the case. It stated it was only made aware of this matter in May and had subsequently instructed the school to arrange an assessment and provision, which it would commission. It also stated it would fund catch-up sessions if advised to do so by the occupational therapist.
  45. At the beginning of August 2018, the Council responded to Ms X’s complaint. It upheld the parts about a lack of record keeping, the failure to arrange occupational therapy, and the conduct of the social worker following the safeguarding referral in November 2017. It also stated it would undertake several actions to remedy the parts of the complaint it had upheld.
  46. In the middle of the month, Ms X asked the Council to escalate her complaint.
  47. At the end of September 2018, a meeting to conduct the annual review of Y’s EHC plan took place. After the meeting, the Council officer who attended noted the school had still not arranged any occupational therapy.
  48. At the end of October 2018, the Council responded to Ms X’s complaint at stage three of its corporate procedure. It agreed with the findings made at stage two and addressed the issues that Ms X had raised since. It acknowledged there were gaps in its records and accepted there were delays in its decision making and a poor level of communications in some instances. It apologised for these failures and the amount of time it had taken to arrange Y’s occupational therapy, and for the way it handled the safeguarding referral. It offered Ms X £300 for the distress it had caused and the time and trouble she had incurred in making her complaint. It also outlined the changes it was making to improve its SEN service.
  49. Around this time, the Council informed Ms X it had asked the Occupational Therapist she requested to assess Y.
  50. At the beginning of November 2018, Ms X resubmitted her complaint to the Ombudsman.
  51. In mid-December 2018, the Occupational Therapist wrote a report after assessing Y in school at the beginning of the month. She provided an occupational therapy programme for him to follow and stated she needed to review him for three hours every half-term. She noted this equated to 18 hours of provision per academic year, adding she had already delivered three hours when she conducted the assessment.
  52. In her complaint to the Ombudsman, Ms X states the Council failed to carry out an EHC needs assessment when transferring Y from a SSEN to an EHC plan in 2018. In addition, she says it failed to carry out a statutory assessment of his needs after his SSEN was issued in 2012, despite it having information in its possession which indicated that a new assessment was warranted. Similarly, she complains it failed repeatedly to carry out an annual review of his SSEN. Moreover, she complains it failed to carry out any transition planning before Y attended a new school in 2017, and recently delayed when arranging the occupational therapy that was ordered by the SEND Tribunal.
  53. She also complains that Y missed 18 months of education between 2016 and 2018 because of the Council’s failings. Moreover, she complains about the way it dealt with a safeguarding referral made by one of its educational psychologists in November 2017. She feels there was no basis or justification for the referral being made and complains about the conduct of the social worker involved in the case, stating this person incorrectly thought that her daughter was the subject of the referral.
  54. She says the Council’s failures have had a big impact on the family and the time spent dealing with these issues has prevented them from spending time together doing other things. Furthermore, she states she commissioned private assessments of Y at her own cost to establish what his conditions and needs were, and feels he would not have got the support he is currently receiving if she did not do this. She says this should have been the Council’s responsibility therefore to remedy its failures, she wants the Council to reimburse her the costs she incurred when commissioning these assessments.

Analysis

  1. This is a complex complaint because it involves multiple parts which cover several years. In addition, within the timeframe of the events complained about there are periods that I cannot investigate because Ms X could have, or did submit an appeal to the SEND Tribunal. Moreover, some parts of the complaint are late because they were submitted more than 12 months after the events complained about occurred. Consequently, I have analysed each part of the complaint and highlighted what I did not investigate, adding whether I found the Council was at fault for the areas I did investigate.

Part one – The Council failed to carry out a statutory assessment of Y’s needs after his SSEN was issued in 2012, despite it having information in its possession which indicated that a new assessment was warranted

  1. I have reviewed the evidence but have found no information that suggests the Council should have carried out a statutory assessment of the SSEN. Similarly, I have found no evidence that Ms X requested an assessment, apart from during a meeting that was held in September 2017. This meeting was held at the school the SEND Tribunal directed be named in Y’s SSEN, when it issued its order in July 2017. I understand this order was later set aside, but I cannot investigate this issue because the case was reopened and considered by the Tribunal.

Part two – The Council failed to carry out an EHC needs assessment when transferring Y from a SSEN to an EHC plan in 2018

  1. When the Council issued Y’s SSEN in January 2017, Ms X was made aware of her right to appeal to the SEND Tribunal. The law states I cannot investigate what happened after this point because she submitted an appeal. This appeal was concluded in January 2018, meaning the events that took place between these dates are out of the Ombudsman’s jurisdiction and something I cannot investigate.
  2. In late-January 2018, the Tribunal ordered the Council to issue an amended SSEN. It did this, but the deadline for transferring all SSENs to EHCPs was 1 April 2018. Clearly, the Tribunal process hindered the Council’s ability to complete the transfer review process on time and it issued the final EHC plan after the deadline, in May 2018.
  3. The law states the Council should have conducted an EHC needs assessment when it undertook the transfer review process but it did not. Instead, it took a different approach and created a special proforma for transfer review meetings to help it identify whether an assessment was needed. If it was, it would initiate an assessment. If not, it would transfer the SSEN to an EHC plan if one was required and notify parents of their right to appeal its decision not to undertake an assessment, as well as the other grounds for appeal. It states it sought legal advice before adopting this approach but is unable to provide me with a copy of this advice.
  4. Given the Council was required to conduct an EHC needs assessment and it cannot provide a copy of the legal advice supporting the approach it took, I have found it was at fault. However, this did not cause Ms X or Y any significant injustice because they were notified of their right to appeal to the SEND Tribunal. More importantly, I see several assessments were sought throughout 2017 when the Tribunal considered Ms X’s appeal, meaning a needs assessment effectively took place, albeit through a different process.

Part three – The Council failed repeatedly to carry out an annual review of Y’s SSEN

  1. I note an emergency annual review meeting was held in March 2016 therefore I have investigated whether further annual reviews were held after this date. I did not investigate whether any were held before this date because this part of the complaint is late. Likewise, I did not investigate whether a review was held between January 2017 and January 2018 because of the ongoing Tribunal appeal.
  2. After the March 2016 emergency annual review meeting was held, Ms X withdrew Y from school in June for medical reasons. The Council later issued a proposed amended SSEN in October 2016, then the final version in January 2017. Given Y was out of education it should have conducted another review if it felt Y could not attend school. This matter is closely related to the other parts of Ms X’s complaint so I will return to it later.
  3. After the Tribunal issued its decision in January 2018, the Council held a transfer review meeting in March before it transferred Y to an EHC plan. A meeting was then held in September to review this plan. Consequently, I cannot find the Council was at fault after the Tribunal made its decision because it ensured reviews were carried out.

Part four – The Council failed to carry out any transition planning before Y was due to attend the school directed by the Tribunal

  1. The events relating to this matter took place when the Tribunal process was ongoing, so I cannot investigate this part of the complaint.

Part five – Y missed 18 months of education between 2016 and 2018 because of the Council’s failings

  1. As noted above, I cannot investigate what happened after Ms X was informed of her right to appeal to the Tribunal in mid-January 2017. Therefore, I have not investigated what happened after this date. In addition, I cannot investigate whether Y missed any education prior to 2016 as this part of the complaint is late. Therefore, I have investigated what happened after Ms X withdrew her son from school in mid-June 2016 up until the point she was able to appeal to the Tribunal in January 2017.
  2. When Y was withdrawn from school, the Council did not make any enquiries to establish why he could not attend. It should have done as it did not have any medical evidence at this point supporting the withdrawal, it only had Ms X’s word. I see Y’s GP later wrote a letter in July stating he could not attend because of “psychological distress caused by inappropriate placement” in School B and was under the care of the local Mental Health Team. At this point, it should have made enquiries to the GP and the appropriate mental health professionals to establish exactly why Y could not attend and request advice on the type of provision he could receive, assuming it received the GP’s letter.
  3. I see that School B removed Y from its roll at this point. This meant the Council was not in a position to take formal action against Ms X if the response to any enquiries it had made indicated Y should not have been withdrawn from school. What it did do was try to seek alternative educational provision for the start of the new school year in September 2016. Given Y was withdrawn close to the end of the previous school year, it was unable to consult schools to secure a placement in time for the new school year due to the approaching summer holidays. Therefore, it was right to prioritise alternative provision.
  4. The Council quickly secured some home tuition in July 2016 for Y but the provider withdrew its offer after Ms X questioned whether the tutors were suitably qualified. It then secured provision through the NTAS but again, the offer was withdrawn after Ms X questioned the level of provision and stated this could not be delivered in the family home. I accept the Council did not ensure this provision was put in place for the beginning of the new school year as Ms X only met with it at the start of the term. However, I do not see why she rejected this provision as the NTAS stated it could provide a tutor with a dyslexia qualification. Moreover, in an email in June 2016, Ms X informed the Council she would accept provision delivered by the NTAS and this could take place in a library or the family home.
  5. At this point, the Council should have met with Ms X. It previously declined to do this and prioritised finding alternative provision. Given it was under a statutory duty to do so I understand why it took this course of action. However, when Ms X raised concerns about the provision it was arranging it should have met with her to discuss these concerns. In this meeting, it could have sought information why Y could not attend school, as well as Ms X’s consent to obtain medical evidence. If this information and evidence was not forthcoming it should have considered whether to take formal action against Ms X to get Y back into education. Conversely, if it decided her concerns were legitimate it should have held a review to consider whether Y’s SSEN should be amended. However, it did neither.
  6. What it did do was issue a proposed amended SSEN in October 2016. I see it did this because Ms X stated the March 2016 emergency review was not concluded and her views were not taken into account. In addition, she had commissioned an independent report from an educational psychologist which she wanted the Council to consider. It then issued the final SSEN in January 2017 following a request from Ms X to do so as she wanted to submit an appeal to the Tribunal.
  7. Considering all these points, I have found the Council was at fault for not conducting sufficient enquiries to establish why Y was unable to attend school. It did not meet with Ms X or request medical evidence from the relevant professionals. This hampered its ability to decide what it needed to do to get Y back into education.
  8. However, I have found it was not at fault for failing to arrange suitable alternative provision. The tuition it arranged was in line with what Ms X originally requested and as far as I can see, was appropriate for Y’s needs.

Part six – The Council did not deal with the safeguarding referral made in November 2017 in the proper manner

  1. It is not in my remit to question whether this referral should have been made therefore I have considered how the Council handled the referral once it was received. It has accepted the social worker made errors when she conducted her assessment and that Ms X should have been notified the referral had been made. I concur with these conclusions and acknowledge the Council was at fault.

Part seven – The Council delayed when arranging the occupational therapist provision that was ordered by the SEND Tribunal in January 2018

  1. Again, the Council has accepted it was at fault for not ensuring this provision was arranged in a timely manner. I agree and see that Y was not assessed or given this provision until December 2018, when an occupational therapist visited his school. This is a significant delay and is clearly fault.

Other issues identified during the investigation

  1. I note the Council accepts it was also at fault for failing to keep all the records associated with this case, noting there are gaps in the information it holds. I agree with this conclusion and am concerned I was not provided with copies of any paperwork which show how the panel decided Y’s needs could be met in a mainstream school, when it sat in August 2016. Consequently, I was unable to ascertain whether the Council made the correct decision and whether it should have sought a place at a specialist school instead.
  2. Ms X has recently raised concerns that her son was not given provision from a speech and language therapist, as stipulated in his SSEN then EHC plan. The Council states Y’s school should have delivered this provision whereas Ms X says she recently discovered this has not happened. As the Council is currently investigating this matter and Ms X only raised it recently, I have not investigated it.

Injustice

  1. In summary, I have found the Council was at fault for:
    • Failing to carry out an EHC needs assessment.
    • Not conducting sufficient enquiries to establish why Y was unable to attend school.
    • Poor recordkeeping.
    • The way it handled the safeguarding referral.
    • Taking too long to arrange Y’s occupational therapy.
  2. I have already established that the first fault did not cause Ms X or Y any significant injustice. Therefore, I cannot recommend the Council reimburses her the cost of any assessment that she commissioned. Regarding the safeguarding referral, the Council has apologised for the way it handled this. An apology is sufficient to remedy the injustice caused by this fault therefore I do not see any need to make a recommendation in respect of this fault.
  3. I note the Council has offered Ms X £300 for the distress and inconvenience it caused her, and the time and trouble she incurred when making her complaint. However, the injustice that Y was caused by the remining faults identified above has not been considered.
  4. It is possible that Y could have returned to education sooner had the Council conducted enquiries in a timely manner, given this fault hampered its ability to decide what it needed to do to get him back into education. Similarly, if enquiries were conducted the panel may have received information which caused it to decide Y should attend a specialist school. However, I cannot say with any certainty this would have happened, meaning the Council’s faults have caused uncertainty.
  5. Likewise, the Council took around 10 months to arrange the occupational therapy stipulated in the SSEN then EHC plan. I see the assessment conducted in December 2018 concluded Y should receive three hours every half-term. As he received three hours when the assessment was undertaken, he lost a total of 15 hours of provision as there were five half-terms between January and December 2018. If he received this provision it could have enabled Y to perform better in class, but again I cannot say with any certainty this would have happened.
  6. The Ombudsman’s Guidance on Remedies says we can recommend payments for uncertainty, therefore I have made such a recommendation in the section below to remedy the injustice that Y was caused. I have also made a service improvement recommendation to prevent some of the faults identified from reoccurring.

Agreed action

  1. Within one month of the Ombudsman’s final decision, the Council has agreed to:
    • Allocate £300 of funding to be used to benefit Y’s education and wellbeing, in recognition of the uncertainty it caused. This funding must be over and above that used to provide any ongoing, day-to-day support that Y is currently receiving.
    • Write to Ms X and reiterate its offer to pay her £300 for the distress and inconvenience it caused, and the time and trouble she incurred when making her complaint.
  2. Within two months of the Ombudsman’s final decision, the Council has agreed to send a copy of these findings to all those working in the 0 to 25 SEND Service. It should instruct its staff to read the final decision statement for learning purposes and stress the importance of:
    • Conducting sufficient enquiries when a child is withdrawn from school on medical grounds or for any other reason.
    • Using the information gained from these enquiries to guide decision making about what to do next, such as whether to arrange an annual review or take formal action to get the child back into education.
    • Ensuring any provision stipulated in an EHC plan is arranged in a timely manner. If there is any doubt about whether provision is being delivered, staff should act proactively and liaise with the necessary parties until they are confident the provision is in place.
    • Maintaining complete records in all cases.

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Final decision

  1. The Council was at fault for failing to carry out an EHC needs assessment and not conducting sufficient enquiries to establish why Y was unable to attend school. It was also at fault for taking too long to arrange Y’s occupational therapy, poor recordkeeping, and the way it handled the safeguarding referral.

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Investigator's decision on behalf of the Ombudsman

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