The Ombudsman's final decision:
Summary: The complainant says that the Council delayed in completing his daughter’s Education Health and Care Plan and this has meant that she did not receive the targeted provision which she required. The Ombudsman finds fault in the Council’s actions which have caused a significant injustice to the complainant’s daughter and family. He has now made recommendations to remedy the complaint.
- The complainant, who I shall refer to as Mr X, complains about the way the Council has managed his daughter’s (Ms X’s) special educational needs during the period of July 2014 to September 2016.
- Ms X is now a young adult. I have her written consent to her father pursuing a complaint on her behalf.
- Ms X has significant health problems including Certified Severe Visual Impairment and Myalgic Encephalomyelitis (ME).
The Ombudsman’s role and powers
- 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)
- SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
- 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)
- We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
- 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)
How I considered this complaint
- I have spoken to Mr X on the telephone and he has sent written evidence to support his complaint. The Council also has provided comments on the complaint which Mr X has seen and responded to. I issued a draft decision statement and I have taken into account the Council and complainant’s further comments.
- I discontinued Mr X’s earlier complaint about these matters because of Ms X and his ill health. I have exercised the Ombudsman’s discretion to consider this complaint as from September 2014.
- I issued two draft decision statements and considered the Council and the complainant’s further comments when reaching my final decision.
- Under the information sharing agreement between the Local Government Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share the final decision statement with Ofsted.
What I found
- Prior to 1 September 2014, it was only possible to carry out an Education, Health and Care (EHC) Plan for pupils with special educational needs as part of a pilot scheme, with parental agreement, as the new legislation (described below) had not come into force. The opportunity to be part of a pilot was offered to a number of families.
- In September 2014, the Children and Families Act 2014 (the Act) changed the way councils should assess and provide for a child’s special educational needs. Accompanying the Act, is the Special Educational Needs Code of Practice 2015 (Code) and the Special Educational Needs and Disabilities Regulations 2014 ‘Regulations. These contain detailed guidance to councils about how they should manage the process.
- The Act says that a council is responsible for a child or young person if he or she is in the council’s area and has been identified by the council as someone who has or may have special educational needs (SEN) or brought to the council’s attention by any person as someone who has or may have special educational needs.
- Section 36(8) provides that an Education Health and Care (EHC) needs assessment must be carried out if the council considers that a child has or may have special educational needs and it may be necessary for provision to be made available to the child or young person.
- The Code says that, following a request for an EHC needs assessment, a council must determine whether a needs assessment is necessary and it must make a decision within 6 weeks. Section 34(4) of the Act provides that a council should consult the parents as soon as practicable after receiving a request.
- Paragraph 9.14 of the Code gives examples of what sort of information a council might consider for deciding to proceed with a statutory assessment. For example, evidence of the child’s academic attainment and rate of progress, information about the nature, extent and context of the child’s SEN and evidence that, where progress has been made, it has only been as a result of additional support over and above that which is usually provided.
- Paragraph 9.16 of the Code says that councils may develop criteria as guidelines to help them decide when it is necessary to carry out an EHC needs assessment but councils must be willing to depart from those criteria where there is compelling reason to do so.
- A request for an assessment may be made by the child’s parent. The term request is not defined in the legislation and the guidance stipulates that only a request has to be made.
- Where the council decides that an assessment is unnecessary, it must notify the child’s parent and provide reasons for its decision. Parents can appeal this decision to SEND Tribunal.
- Once an assessment determines that special educational needs provision is required for a child, the council has a duty to ensure it is in place and is maintained. The courts have decided that councils can ask other agencies to make the provision on their behalf but the duty to make sure it is in place remains with the council. The child’s needs and provision should be set out in the EHC Plan.
- The Regulations require councils, subject to certain exemptions, to send the final EHC Plan within 20 weeks of receiving the parent’s request to conduct an assessment.
- Regulation 18 requires that, where a child is within 12 months of a transfer between phases of education, the council must review and amend, where necessary, the child’s EHC Plan before 15 February in the calendar year of a child’s transfer (unless it is to secondary school or post 16 education). This gives time for parents to appeal to the SEND Tribunal before the start of the school year.
- Paragraph 9.179 of the Code provides that an EHC Plan must be reviewed and amended in sufficient time prior to the child or young person moving between key phases of education to allow for planning for and, where necessary, commissioning of support and provision at the new institution. The review and amendments must be completed by 15 February in the calendar year of the transfer.
Provision and Appeals
- Paragraph 9.61 of the Code sets out the principles for the preparation of an EHC Plan. Decisions about the content should be made openly and collaboratively with the parents, child and young person.
- Councils are not obliged to provide what each parent requests, but they should ensure that parents are involved properly in the decision making and be able to explain clearly why they consider a suggested provision meets the assessed needs of any individual child.
- Where the child or young person has an EHC Plan it is open to the council to offer a personal budget to allow the young person or his parents to arrange the special educational needs provision themselves. The council should include details of the proposed personal budget in the draft EHC Plan. It also must provide written notice of the conditions for receiving direct payments.
- The SEND Tribunal deals with disputes about assessments and provision for special educational needs. This means the Ombudsman cannot normally look at a council’s decisions not to carry out an assessment or provide an EHC Plan. Once the SEND Tribunal has made an order the council must comply and time scales apply. Where the order is to amend an EHC Plan the Council must do so within five weeks.
- Even if a complainant is appealing against the provision specified or the named placement, the council still has a duty to provide the support specified during that period.
- The Court of Appeal confirmed in R v Commission for Local Administration, ex parte Field  EWHC 754 (Admin) that the Ombudsman cannot consider a complaint when the complainant has pursued an alternative remedy, even if it does not provide a complete remedy to the claimed injustice. This means we cannot consider a complaint about the suitability of education arranged by a Council when someone has appealed to the SEND Tribunal about the provision named in an EHC Plan.
- Ms X attended a school (referred to as School Z) between September 2010 and June 2015. However, her fatigue levels began to significantly impact on her school attendance in Year 9. During this period, Ms X had six weeks off school.
- Ms X started Year 10 in September 2013. This was the beginning of her GCSEs. From November 2013, Ms X was unable to attend school and arrangements were made for School Z to provide individual tuition to take place at home. From about February 2014, Ms X received home tutoring in English and Music. In addition, the Council’s Sensory Impairment Service arranged for her to receive Braille training.
Events of March 2014 to July 2015
- Between March and May 2014, Mr X raised concerns with School Z about the support Ms X required. Discussions began about Ms X’s special educational needs and which included the Council.
- On 11 July 2014, the Council emailed Mr X about how it intended to deal with Ms X’s possible special educational needs. The Council explained that it had already asked School Z to gather information in preparation of the reforms due to start on 1 September 2014. The Council stated that it wished to invite Mr X to participate in the EHC Plan pilot. The Council explained that it would start to write to the agencies it must involve in the process and that the formal evidence gathering period would commence on 1 September 2014. The Council explained that this evidence gathering would last 6 weeks.
- Mr X replied promptly, stating that they would be very pleased to be part of the pilot scheme.
- On 18 August 2014, Mr X completed the EHC assessment parental permission slip. This was returned to the Council. The permission slip confirmed the parents’ agreement with taking part in the pilot scheme. The document was headed ‘Education, Health & Care Assessment’.
- The Council has said subsequently that the parental response of 18 August 2014 was not considered a statutory request for an assessment. The Council had therefore not logged it as a formal request although Mr X considers it was a clear request for an assessment. Therefore, he considers that the timeframe for the completion of the EHC Plan was 20 weeks from the commencement of the new legislation.
- On 17 September 2014, there was a meeting and Mr X asked for a Maths tutor to be provided. On 17 October, the Council’s SEND Adviser stated that the Council had not received the necessary paperwork. Mr X questioned this.
- On 7 November 2014, the Council stated again that it had not received the necessary paperwork and told Mr X “Ms X is considered a bright student so in that respect has no learning difficulties as such and therefore no educational needs”.
- In November 2014, the Council says that School Z requested the Council to carry out a statutory assessment of Ms X’s special educational needs. Mr X says that this was not the case. On 18 November 2014, the Council confirmed it would proceed and a decision would be made by 20 December 2014.
- On 5 January 2015, the Council wrote to Mr X to say that the Council had agreed to carry out an EHC needs assessment. It stated reports from professionals were due by 16 February 2015 and the plan was to consider the case on 3 March 2015. The Council has since clarified that the inclusion of Mr and Mrs X and Ms X on the EHC pilot scheme was not a response to the request for a statutory assessment.
- On 25 March 2015, the Council’s Inclusion Support Panel considered Ms X’s case. The Council says that the Panel see a summary of the child’s needs and it has the opportunity to ask questions before issuing its recommendations. But it is not a decision-making panel. It recommended that an EHC Plan was necessary. On 7 April 2015, the Council wrote to Mr X confirming that the Council would issue a draft EHC Plan. A draft EHC Plan was issued on 1 May 2015.
- On 9 May 2015, the Council sent a further revised EHC Plan stating that the education placement would be School Z. The Council stated it required Ms X’s views. While the Council has said in its comments to the Ombudsman that this was a final Plan, there was no accompanying letter stating that Mr X and Ms X could appeal to SEND Tribunal. On 18 May 2015, Mr X met SEN staff to discuss outstanding issues in relation to the proposed EHC Plan. On 21 May the Council stated it hoped to issue a final Plan by 6 June 2015.
- The Council issued a final Plan on 27 May 2015.
- The Plan stated Ms X should receive 4 half hour individual tuition sessions at home. Mr X asked the Council to consider Ms X attending a course at the local College. He also raised concern that there was no assurance that Ms X could extend her years at College and there was no information about transport. The Council says it had no objection to Ms X attending a college but she needed to find a course which she wished to attend.
- On 1 June 2015, Mr X advised that Ms X’s health had deteriorated. Mr X highlighted that it was vital for Ms X to have an EHC Plan in place, that there should be continued funding of Ms X’s music lessons but that she would not be able to take up the Critical Thinking course this year at College because of her deteriorating health. On 15 June, Mr X confirmed that it was essential for Ms X to have a place at College.
- On 10 June, the Council requested a medical report from a Consultant. This was finally received on 23 July 2015 which advised that Ms X required a gradual reintegration to education but that Ms X was too unwell to start the intended course at College.
- There then followed further email correspondence. On 27 July 2015, the Council having considered the information from Ms X’s Consultant, decided not to issue an EHC Plan. It was considered that it was best for Ms X to pursue a FLEX course at the College but that she could do this without an EHC Plan in place. The Council says that there was no need to ask the Inclusion Panel for its views.
- On 27 July 2015, the Council wrote to Mr and Mrs X confirming its decision not to issue an EHC Plan for Ms X and providing details of how they could appeal to SEND Tribunal.
Events of July 2015 to March 2016
- Ms X participated in the FLEX course but during 2015 and 2016 she was not well enough to attend College. In September 2015, Mr X complained to the Council about its delays in assessing Ms X’s special educational needs and its failure to make adequate provision.
- On 17 September 2015, the Council responded to Mr X’s complaint about the Council’s delays in the EHC process. It explained that Mr X had asked for some flexibility with timescales on 11 May 2015. It stated that the draft EHC Plan was due to be issued by 3 March 2015 but it was not presented to the Inclusion Panel until 25 March because Mr X had asked that additional medical information was included.
- Mr X appealed to SEND Tribunal about the Council’s decision not to issue an EHC Plan on behalf of Ms X.
The Tribunal 26 February 2016
- On 25 February 2016, the Tribunal considered the matter. On 14 March 2016, the Tribunal issued its Order stating that the Council had 5 weeks to issue an EHC Plan for Ms X.
- The Tribunal Order explained that the Tribunal had been persuaded by paragraphs 9.55 of the Code which states that, where despite appropriate assessment and provision, the young person is not progressing sufficiently well, the Council should consider what further provision may be needed. Further, whether the special educational provision required can be provided from within the resources normally available in post 16 institutions.
- The Tribunal noted that Ms X is academically able and motivated. Ms X explained to the Tribunal that her ambition was to attend the College of Music.
- The Tribunal was satisfied that Ms X’s current progress was not as good as can reasonably be expected given her clear academic abilities. The Tribunal noted Ms X’s illness but stated: “Ms X’s available time for study is a very precious resource which it appears is not being maximised”. The Tribunal noted that the co-ordinator for the FLEX course had not properly monitored Ms X’s progress and the Council had not ascertained what the entrance requirements were for the College of Music and what support was anticipated to be put in place.
- The Tribunal concluded that, without targeted provision towards planned achievements, it was not possible to conclude Ms X’s progress was adequate. The Tribunal also noted that Ms X’s progress had been impeded by the lack of specific resources identified as necessary, including an I Pad, tinted paper, pens and adapted materials. Ms X’s start at the College had been delayed in part by the Council and College failing to put in appropriate arrangements.
- The Tribunal recommended specialist Maths tuition, a teaching assistant to take on the role that Mrs X was fulfilling in supporting her daughter and recommended the active presence in the home of the course co-ordinator. The Tribunal also recommended that the Council considered, as Ms X became less tired, and was then able to attend College, that it should provide transport and make appropriate plans and adaptations to support Ms X at college.
- The Tribunal recognised that the new EHC Plan would out of necessity look different to the draft plan approved by the Inclusion Panel of 2015.
Events of March to June 2016
- The Council had five weeks to issue a final EHC Plan from 14 March 2016, the date of the Tribunal Order. The Council issued a modified draft EHC Plan on 18 April 2016. It requested Ms X’s views and stated that the Council could not move forward without these.
- On 9 May 2016, Mr X filed a judicial review stating that the Council had not complied with the Tribunal Order to issue a final EHC Plan in five weeks. Mr X explained that he had waited 22 months for a final EHC Plan since the commencement of Ms X’s EHC needs assessment.
- On 11 May 2016, the Director of Children Services wrote to Mr X’s Member of Parliament (MP) in response to the parents’ continued concerns about the Council’s delays. The Council stated that the recently issued draft EHC Plan was a starting point upon which it could build. It told the MP that it was waiting for Ms X’s views. But it gave a commitment to issue a final EHC Plan by 30 May 2016.
- On 6 June 2016, the Court dismissed Ms X’s judicial review claim on the basis that she had a right to appeal the finalised EHC Plan to the SEND Tribunal.
The Council’s comments
- The Council says that there were significant and frequent changes to Ms X’s health and it did not want to put her or her parents under additional pressure regarding finalising the Plan. It also considered that she needed a Plan at the point she could participate in and access education.
- The provision requested has been music lessons and braille teaching. This the Council has continued to provide. The Council also say that the Flex course was identified by Ms X and the College made attempts to adapt the course for her. It says that there are reports that she was managing the Flexi course.
Mr X’s comments
- Mr X says that the Council subsequently acknowledged that the Flex course was not suitable for those with a visual impairment. He witnessed, at first hand, when observing Ms X’s first lesson, that it was setting Ms X up to fail. The College also confirmed to him that the Flex course was not suitable.
- Mr X has described how difficult it has been for Ms X to have faced, over a slow period, her sight loss. Mr X and his wife worked hard to ensure that Ms X did not give up hope and they found a College of Music teacher, who told Ms X about how she might still pursue her passion for music, by the use of Braille Music. In addition, Ms X had wanted to pursue the higher level Mathematics GCSE.
- However, the Council’s failure to arrange appropriate support through an EHC Plan, during Ms X’s most critical stage of education, preparing and sitting her GSCEs, triggered a serious decline in Ms X’s mental health to the point that she required inpatient treatment at an Adolescent Psychiatric Unit. It meant that Ms X lost out on the opportunity to pursue the above two options.
- Mr X says it has been such a damaging experience for Ms X to be let down by the Council that she is not willing to have any further contact with the Council.
- In addition, Mr X and his wife suffered avoidable frustration and distress by the Council’s delays and by its changes in approach. Time and time again they asked for the required support and communicated with Officers who could make the provision available for their daughter. But the Council frustrated the process which eventually meant that it declined to issue an EHC Plan on grounds that the Tribunal subsequently considered were not justified.
- The Council dispute Mr X’s comments. It says that during Ms X’s GCSE year, she received individual tuition for her Maths, music lessons and weekly sessions with the Children’s Rehabilitation Worker. It never disputed that Ms X’s sight loss could not amount to an educational need.
- The Council say that that the Tribunal decision recognised that there had been some failings but it did not consider the Council had been irrational. Music Braille has never been refused and, following the Tribunal decision, provision was made for Ms X to study higher Maths in her Plan. The Council say that the option for Ms X to study this remains.
- The Ombudsman cannot deal with the merits of the content of Ms X’s EHC Plan because of the right of appeal to SEND Tribunal. Therefore, the Ombudsman is only considering the delays in completing the EHC Plan.
- The Ombudsman cannot also consider the delay subsequent to the Tribunal Order of March 2016 because of Ms X’s legal action. However, the complainants have emphasised that Ms X applied for judicial review only for the purposes of ensuring the Council issued an EHC Plan within the required time. She sought no other remedy.
- Mr and Mrs X were invited by the Council to take part in the pilot scheme prior to the implementation of the new legislation of September 2014. The Council’s email of 11 July 2014 clarified that the formal period for information gathering would commence on 1 September 2014 and would last 6 weeks.
- Mr and Mrs X’s expectation was that this assessment process would serve to provide Ms X with the support her needs required to pursue her education. The parents thought that, in view of the Council’s July 2014 email, the statutory assessment would begin on 1 September. I consider that Mr and Mrs X’s expectation was reasonable and was based clearly on what the Council had told them would happen.
- On 18 August 2014, the parents completed the permission slip, agreeing to an EHC assessment under the pilot scheme. The Council now says that it did not regard this as a formal request for a statutory assessment and therefore it was not logged as such. The Council says that it was not until November 2014, it regarded the statutory process had begun.
- My view is that the Council has been at fault. The Council’s July 2014 email stated that involvement in the pilot scheme meant that the statutory assessment process would start on 1 September 2014. The signed permission slip of August 2014 was a follow up to the commitment the Council had already given to Mr and Mrs X that the statutory assessment process started on 1 September 2014.
- Therefore, the Council had 20 weeks from 1 September 2014 to complete the statutory EHC process. On that basis, the Council would have had until mid-January 2015 to complete the process and issue a final EHC Plan. This would have been before Ms X’s health deteriorated in June 2015.
- The Council has accepted that there was some avoidable delay by it. The question is what injustice has this caused to Ms X and, in particular, what educational provision has she missed out on as a result.
- The Council says that there were frequent changes in Ms X’s health and that the Council provided the provision which she had requested; music lessons and braille. It considers that this mitigates against the claimed injustice.
- Mr X disagrees. He says the Council’s delays meant that Ms X’s experience of gradual sight loss was compounded by the Council’s faults. Mr X and Ms X feel particularly aggrieved that the Council did not accept her sight loss amounted to an educational need and it justified its decisions by reference to the fact that Ms X was academically able and had managed, despite her physical disability.
- The February 2016 Tribunal was critical of the Council’s actions. It accepted that Ms X had not progressed as much as she could have given her academic abilities, that she required targeted provision and that her available time to study was a precious resource which had not been maximised.
- Mr X says that two particular areas of study, which Ms X had wanted to pursue, but she has been prevented from doing so, are her Mathematics at the higher GCSE level so that she could pursue an A’ level, and also Braille Music. The Council disputes this.
- In respect of the latter, Ms X could, until her vision became seriously impaired, sight read music and therefore she could play independently. It also meant that she could play in an Orchestra with fellow musicians. Now, Ms X cannot read a music score so she is dependent on a teacher telling her the notes and then she has to memorise the music. This is a time-consuming activity for her and one of her previous pleasures-sitting down, reading a music score and playing-have been lost to her.
- Had the Council completed the EHC Plan by mid-January 2015, Ms X would have had the benefit of a statutory Plan and targeted provision. I cannot say exactly what that provision might have entailed or what Ms X has missed out on as a result. But Ms X would have had the protection of a statutory plan with opportunities for reviews and reassessment as her vision deteriorated and her needs became more significant.
- Further, if a Plan had been issued in January 2015, this would have been before her mental health decline. I cannot say that a Plan would have prevented the decline. But I can understand Mr X’s view that the Council’s actions compounded the difficult situation his daughter was facing. Moreover, if Ms X had been dissatisfied with the provision in the Plan she, with the help of her father, could have exercised her appeal rights much sooner.
- The Ombudsman has guidance regarding lost educational provision and he suggests between £200 to £600 per month. The amount depends on the severity of the pupil’s special educational needs, whether the period was a significant one in a pupil’s school career and whether additional provision can be made to remedy some or all of the loss.
- I am satisfied that Ms X’s injustice is severe and she possibly lost important educational provision and protection at an important stage in her school career and at a stage when she was facing a very difficult challenge- the loss of her sight. I also consider that, but for the Council’s faults, Ms X’s mental health may have been better catered for.
- In terms of avoidable distress and frustration, the Ombudsman considers payments for this are symbolic and he recommends often a modest sum between the range of £100 to £300. But, in some cases, where the avoidable distress is severe, up to £1000.
- Ms X’s EHC Plan has not lapsed because she found it too hard to continue a relationship with the Council. So, the option of the Council providing additional provision is not available. Therefore, the only option is to recommend a financial remedy to try to make up for the lost educational provision. I have decided that Ms X’s loss is severe.
- In respect of avoidable distress, I am satisfied that Ms X and her family’s very difficult situation has been compounded by the Council’s faults.
- Difference of opinion remain between Mr X and the Council. But both accept that it is important to put these behind them and work towards achieving an appropriate EHC Plan for Ms X’s continued education and training.
- Having considered all the facts, to remedy the injustice and to pave the way ahead, I recommended the following:
- £1,500 to Ms X for the loss of targeted provision at a significant time in her school career. Ms X can use this money to make up that lost provision in a way she considers most beneficial to her;
- £500 for Ms X’s avoidable distress and in recognition that targeted educational provision might have helped to prevent a decline in her mental health;
- £500 to Mr and Mrs X for their avoidable distress, for Mrs X’s time in helping her daughter and for their time and trouble in pursuing the complaint;
- The Council will arrange an Annual Review of Ms X’s EHC Plan. Both Ms X and her father are willing to attend. As the Annual Review was suggested earlier, this should be held within one month from the date of this final statement. Further, as Ms X is known to Adult Mental Health Services, it is appropriate that someone from there is invited to the Annual Review;
- As the Council is aware, Ms X’s needs have increased in that she has lost her sight. At the Annual Review, consideration should therefore be given to the need for Ms X to have assistive technology, primarily a Braille Printer which would enable her to access 3,000 music scores and mean that she is not dependent on a music tutor to tell her the notes. The Braille Printer can also print other documents so these do not have to be read to her. The complainant has details of the Braille Printer which would meet Ms X’s needs and which is compatible with her other assistive technology. This can be discussed at the Annual Review;
- Further, at the Annual Review, the Council should consider issuing an amended final Plan given Ms X’s needs have changed considerably and she requires additional support/technical aids to access education/training. An amended final Plan would also enable Ms X to appeal to the Tribunal in the event of disagreement;
- I consider Ms X would benefit from having an independent advocate and I have therefore asked that the Council considers this and, if it agrees, the Council should start to make enquiries as to who might be suitable and available before the Annual Review takes place;
- The Council should provide the Ombudsman with an update within two months of the date of our final decision.
- I find fault in that the Council delayed beyond the statutory timescale in completing Ms X’s EHC Plan. This has caused Ms X the loss of the protection of an EHC Plan and caused avoidable distress.
- The Council has agreed the recommended settlement. I am therefore satisfied that this resolves the complaint and I am closing the complaint.
Investigator's decision on behalf of the Ombudsman