Cornwall Council (18 002 904)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 26 Sep 2018

The Ombudsman's final decision:

Summary: Mrs A complains the Council did not fulfil its legal obligations and provide a full-time education to her daughter, B until November 2017. She also complains it failed to adhere to the statutory timeframes when dealing with her request for an Education, Health and Care (EHC) Plan. The Ombudsman has found the Council was at fault for failing to ensure B received a suitable education after it was notified she was being educated on a part-time basis in February 2017. It was also at fault for delaying unnecessarily during the EHC needs assessment process. The Council has agreed to make a payment to B to acknowledge the loss of provision and injustice she was caused, and a payment to Mrs A to recognise her time and trouble in making this complaint.

The complaint

  1. Mrs A complains on behalf of her daughter and states the Council did not fulfil its legal obligations and provide a full-time education to her until November 2017. She also complains it failed to adhere to the statutory timeframes when dealing with her request for an Education, Health and Care Plan.

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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 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)
  4. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
  5. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
  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 have:
    • Read the complaint and discussed it with Mrs A.
    • 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.

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What I found

  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. Statutory guidance on alternative provision states the duty to provide such provision applies to all children of compulsory school age resident in the local authority area, “whether or not they are on the roll of a school, and whatever type of school they attend.” The guidance also states this provision should be made “as quickly as possible”.
  3. The Special Educational Needs and Disability Code of Practice states that parents can ask local authorities to carry out an Education, Health and Care (EHC) assessment of their child’s needs. Local authorities must decide whether to carry out this assessment and notify the parents of its decision within six weeks of their request.
  4. If a local authority decides not to issue an EHC plan after conducting a needs assessment, it must inform the parents within 16 weeks of the date of their request. Conversely, if it decides to issue a plan it must ensure it does this no later than 20 weeks after the assessment is requested. Although, the Code of Practice does state it is not reasonable to expect local authorities to adhere to these time limits when there are “exceptional circumstances”.
  5. Parents can appeal to the SEND Tribunal if a local authority decides not to carry out an EHC needs assessment or issue an EHC plan. Similarly, they can appeal if they do not agree with the description of their child’s special educational needs outlined in a plan, or the designated provision.

What happened

  1. In mid-February 2017, Mrs A wrote to the Council and asked it to conduct an EHC needs assessment in respect of her daughter, B. She stated B suffered from Myalgic Encephalomyelitis (ME)/Chronic Fatigue Syndrome (CFS) and received extensive support from her school, although highlighted she only attended on a part-time basis. She outlined the adjustments B’s school had made to help her manage her condition, and said an EHC plan would help with her forthcoming transition to post-16 education. At the time of the request, B was aged 14 and in Year 10.
  2. At the beginning of March 2017, the Council wrote to B’s school to ask for information so it could consider the request. A response was provided nine days later. It noted B had joined the school in September 2013 and had a diagnosis of chronic fatigue syndrome and hypothyroidism. It also noted she was on a reduced timetable and attended the school part-time, whilst stating her attendance was 93.3%. Similarly, it said B’s tiredness had affected her ability to attend lessons, but highlighted she was “on track with her subjects” and making progress.
  3. In the middle of the month, the Council’s Special Educational Needs (SEN) Resources Panel met to consider the request. It decided not to undertake an assessment as it believed B’s needs were being met by the school. Nine days later, it wrote to Mrs A and her husband to notify them of the outcome. It also provided advice and signposted them to an independent support service that deals with SEN matters.
  4. Following the Council’s decision, Mrs A submitted an appeal to the SEND Tribunal. This was withdrawn when the Panel reconsidered the request and decided to undertake an assessment. It made this decision at the beginning of June 2017.
  5. In mid-June 2017, the Council wrote to several professionals requesting their advice and input into the EHC assessment process. Requests were sent to the headteacher at B’s school, an educational psychologist, a consultant paediatrician, and a children and therapy service. At the same time, the Council wrote to Mrs A and her husband and stated it would write to them with details of the outcome of the assessment by mid-August, assuming there were no unforeseen delays. It added they could continue to send it information about B’s needs up until this date.
  6. In mid-August 2017, Mrs A sent the Council a social services report and letter from B’s ME/CFS clinic for consideration. She added they were now only awaiting input from the educational psychologist.
  7. Ten days later, Mrs A emailed the Council to complain about the way the assessment was being carried out. She noted she had until mid-August to submit information for consideration and had recently done this, but her correspondence was not acknowledged. In addition, she said the Area Assessment Coordinator had called her and highlighted B’s case had gone to the SEN Resources Panel earlier that week, but it decided it could not decide how to proceed as the educational evidence from the school had not been submitted. Mrs A said she thought this evidence had been submitted and was concerned it had been lost.
  8. The Council then noticed it possessed part one of the educational advice the school submitted in March before the assessment was authorised. However, it had not provided part two, which was requested after the assessment process began. Consequently, it emailed the school to ask that it provide this. It then emailed Mrs A to explain the situation and apologise for its poor communication. It also provided an update on the case and confirmed the SEN Resources Panel would meet again in mid-September and consider all the evidence.
  9. At the beginning of September 2017, the Council received part two of the educational advice from the school, as well as further information from Mrs A. This was subsequently put to the Panel along with the evidence already collated, and it decided not to issue an EHC plan as it reasoned the help B required could be provided by “delegated SEN support funding”. The Council wrote to Mrs A and her husband 11 days after the Panel meeting to inform them of the outcome.
  10. At the end of September 2017, three days after receiving notification of the decision, Mrs A emailed B’s school and sent a copy of her message to the Council. She said she was now aware the school was under an obligation to notify the Council whenever a pupil is unable to attend for 15 days or more due to medical reasons, so it could arrange alternative provision if required. She explained B’s situation, stating she had been on the SEN register at the school since 2013 and had never received any input or support from its SEN Coordinator (SENCO), until she submitted her request for an EHC plan in February 2017. She added she had only recently obtained B’s attainment information from the school and this showed a drop in Maths, English and Science in Year 10. In conclusion, she asked the school to work with the Council to revisit B’s educational needs.
  11. In mid-October 2017, the Council emailed Mrs A to provide an update on the action it and the school had taken following her earlier email. It noted its Physical and Medical Needs Advisor and the school’s SENCO would be speaking to B that week to explore her alternative provision options. Mrs A responded and stated the school did not fully disclose the extent of B’s circumstances when it provided input to the EHC needs assessment. As a result, she asked that the case be resubmitted to the SEN Resources Panel.
  12. The Council agreed to Mrs A’s request and asked the school to resubmit its evidence. Following its resubmission, the SEN Resources Panel sat in mid-November 2017 and decided that an EHC plan should be issued.
  13. Four days after the decision, the Council sent Mrs A and her husband a draft EHC plan and requested their input. It stated it was awaiting further comments from social care and asked them to list their preference of schools. In response, Mrs A asked for details from the occupational therapist’s report to be included in the plan, and that the outcomes be made Specific, Measurable, Achievable, Realistic, and Time-based (SMART). The Council subsequently acknowledged Mrs A’s input and said it would issue a revised draft in due course. It also stated the time limit for issuing the final EHC plan was the first week in February 2018.
  14. At the beginning of December 2017, the Council sent a revised draft to Mrs A and her husband. It then received input from social care and held a meeting with Mrs A to discuss the draft plan. She raised several points regarding the content of the plan, and requested that it was not finalised until after she had met with B’s school in January.
  15. The Council agreed to revise the plan and issued a new draft that day following the meeting. It highlighted it did not have B’s views about college which Mrs A had asked to be included, and requested these from her. It also asked her to confirm the evidence which showed B’s condition was lifelong, and stated it had emailed her school about support for her self-esteem.
  16. The day after the meeting, a solicitor’s firm acting on behalf of Mrs A and her husband wrote to the Council complaining it had failed to provide B with suitable full-time education. It added the content of the draft EHC plan was “vague, poorly written and non-specific” and was potentially unlawful if issued as it was. In addition, it stated the Council’s failure to request advice from social care had resulted in delays. Consequently, it asked the Council for an apology and a financial payment to cover legal costs and two full years of missed education.
  17. Following this, the Council emailed the school SENCO with an update on the case. It stated Mrs A had highlighted there were no outcomes or provision for dyslexia in the draft plan, but it believed the evidence did not warrant this. It added Mrs A intended to contact the Cognition and Learning Service about this matter, which she subsequently did and requested an assessment of B. At the same time, she wrote to social care and asked it to provide its input to the EHC plan. She also wrote to the educational psychologist requesting additional input, and provided the Council with the information it requested about B’s college views and lifelong condition.
  18. The Council subsequently issued a revised draft EHC plan after it received the input from social care. It also emailed Mrs A’s solicitor asking for evidence that it was authorised to act on her behalf.
  19. At the beginning of January 2018, Mrs A emailed the Council asking for more detail about its intention to conduct an interim review of the EHC plan in early summer 2018. She also stated the Cognition and Learning Service planned to see B at school and advise the SENCO accordingly. Therefore, she requested that this be reflected in the plan. She also said she would provide detailed comments on the draft once she had reviewed it more closely.
  20. Five days later, Mrs A sent the Council her version of the revised draft with comments. She stated the paediatrician’s advice still needed to be added, and accepted that any provision relating to B’s dyslexia could not be included until the Cognition and Learning Service provided its report. Despite the content of the educational psychologist’s report, Mrs A said she was concerned there would be no provision for B’s social, emotional and mental health and was unwilling to accept the plan without this matter addressed. She also asked that the plan be made as SMART as possible. By the end of January 2018, the Council received the input from the Cognition and Learning Service and the educational psychologist.
  21. In mid-February 2018, Mrs A’s solicitor emailed the Council stating it had not received a response to the letter it sent in mid-December. The Council responded and referred it to the email it had sent requesting evidence it had authority to act for Mrs A and her husband. The solicitor subsequently provided this evidence, but stated it never received the Council’s initial email.
  22. At the same time, the Council finalised the EHC plan and issued it to Mrs A. It highlighted an interim review of the plan would take place in early summer and a representative from the college B proposed to attend would be present.
  23. At the beginning of March 2018, the Council responded to the complaint submitted by Mrs A’s solicitor. It stated that B’s school had incorrectly recorded her attendance for several years and did not notify Mrs A or her husband that their daughter was on the SEN register. It added the school had not made it aware that B was on a reduced timetable, and reasoned the complaint should be referred to the school and dealt with through its complaint procedure. It highlighted an EHC plan had since been issued and the Council was working with the family to support B and address her needs. It concluded it was not at fault for the lack of full-time provision and stated it would not pay a financial remedy.
  24. At the end of May 2018, Mrs A complained to the Ombudsman. In addition to the points already raised, she says B was placed on a part-time, reduced timetable by her school at the end of year seven when she was struggling to cope in class. She says this arrangement continued throughout B’s time at the school, and feels the Council may have been aware B’s provision was lacking before she asked for an EHC plan in February 2017. This is because the Council provided B with pupil transport when in primary school because of her ill-health, and a number of Team Around the Child (TAC) meetings were held throughout B’s time at the school which discussed her absence and health issues.
  25. Mrs A states the failure to provide a full-time education and the delayed EHC plan have had a detrimental impact on B’s exam prospects, as she was only able to undertake five GCSEs. She believes B could have taken more if she had received the right support, but states this was not forthcoming. She says the Council and the school never made her aware of B’s legal entitlement to alternative educational provision, and highlights she was under the impression the education being provided to B was all that was available, despite her ill-health. She adds she has had to fight for the support that is now being provided, which involved her conducting her own research, employing the services of a solicitor, and writing to the Council. She states the lack of alternative education and reduced provision isolated B and has had a negative impact on her mental health and self-esteem, which she has received Counselling for.
  26. She wants the Council to apologise for its failures and make a financial payment to B for the lack of education provided and the distressed caused, plus a payment to her for her time and trouble in making this complaint.

Analysis

  1. I have considered whether the Council might have been aware B was not receiving a full-time education prior to Mrs A’s request for an EHC plan in February 2017. It states none of its social workers were involved in the TAC meetings arranged by the school, nor was it made aware B was attending on a part-time basis during this period. It has explained the school had incorrectly recorded B as being in education but off school premises, and had failed to notify it of B’s part-time status through its formal reporting system. I have found no evidence to suggest the Council was aware of the matter prior to February 2017, therefore I am content it was not at fault during this period.
  2. Since responding to her complaint, the Council has admitted it should have noticed B was on a reduced timetable when it received Mrs A’s request in February 2017 and the school’s submission a month later. It has stated internal checks which should have been undertaken in response to this information were not carried out, and accepts arrangements could have been made to provide B with a suitable education had these checks been done. It takes responsibility for this oversight and proposes to apologise to Mrs A and B, and make a financial payment to the latter to remedy the loss of provision she suffered, which it says amounted to a term and a half. I welcome the Council’s admission and offer, and agree it was at fault in relation to this aspect of the complaint.
  3. I have also considered whether the Council failed to adhere to the statutory timeframes when it dealt with Mrs A’s request. As I note at paragraph 12 of this statement, local authorities must ensure that an EHC plan is issued within 20 weeks of any parental request. In this case, the Council took approximately six weeks to decide it would not carry out an assessment and notify Mrs A, after receiving her request. When it changed its decision at the beginning of June and initiated the assessment process, it took just under 14 weeks to notify Mrs A of its decision not to issue an EHC plan. Then, when the Panel reversed its decision in mid-November and decided to issue a plan, it finalised this just over 14 weeks later. Thus, the total time taken to complete the process was just over 34 weeks, which shows the 20-week statutory limit was exceeded. However, this is a rather crude analysis as it does not consider the reasons for the delays.
  4. The Council acknowledges it took longer than 20 weeks but attributes this breach to additional information being made available during the process which required its consideration. It also points out it based its decision not to assess in March 2017 on the evidence available to it at that time, and concludes it met the statutory timeframes.
  5. I appreciate the school did not provide the Council with full details of B’s circumstances and provision in March 2017. Moreover, at the time, Mrs A was unaware of the provision B should have been receiving, and was under the impression the school had been providing extensive support. Consequently, there was little to suggest the information provided by the school was inaccurate or incomplete.
  6. Nevertheless, there is evidence of unnecessary delay throughout the process which can be attributed to the Council. Firstly, it took 18 days to request the school’s input after it received Mrs A’s request for an assessment in February 2017. Similarly, it put B’s case to the Panel in mid-August 2017 without part two of the educational advice, despite having sufficient time before the summer holiday period to request this. This meant the case had to be resubmitted to the Panel in mid-September 2017 after the necessary advice had been received, which equates to a delay of approximately one month. Moreover, the Council took 11 days to write to Mrs A and her husband to notify them of the Panel’s decision, which is evidence of further delay.
  7. This amounts to a total avoidable delay of approximately eight weeks. The Code of Practice states the whole process “must be completed as soon as practicable”, therefore I have found the Council was at fault for this unnecessary delay. However, it is important to note that neither Mrs A nor the Council were aware of the shortcomings in the school’s reporting until late September 2017. Once aware, the Council resubmitted the case to the panel, then worked with Mrs A to ensure the EHC plan met B’s needs. It made several revisions to the plan following input from Mrs A and did not finalise this until she was content. It could have dismissed her comments and finalised the plan earlier in an attempt to meet the timescales, but this would have benefitted no one. Therefore, in my opinion the Council did the right thing at this stage of the process, even though the 20-week statutory time limit was breached.

Injustice

  1. The Council was made aware B was attending school on a part-time basis in mid-February 2017, yet it failed to act on this information and she only began receiving a suitable education in November 2017. Excluding holidays, this equates to approximately five weeks missed of the Spring term, 13 weeks of the Summer term, and seven weeks of the subsequent Autumn term. In total, this amounts to 25 weeks or six months of reduced provision.
  2. Mrs A states the reduced provision and lack of support has had a considerable impact on B’s mental health and self-esteem. In addition, I note she was at a particularly important stage of her schooling when this happened. Equally, it is also important to note that B was receiving some education, albeit this was not on a full-time basis. Moreover, the injustice caused by the lack of provision cannot be fully attributed to the Council, given that it was only made aware of the issue in February 2017. Considering these points, I have made a recommendation in the section which follows to remedy the loss of the provision resulting from the Council’s inaction, and the impact this had on B. The Council has agreed to carry out this recommendation.
  3. Regarding the delay, this would have caused Mrs A some frustration as she tried to progress her daughter’s case. Moreover, she made the Council aware that B was receiving a part-time education in February 2017 and could have expected it to act on this information; the fact that it did not meant she had to continue seeking the correct provision. The effect of the delay would therefore have compounded her frustration. Consequently, I have made further recommendations in the section that follows in an attempt to remedy this injustice, which the Council has agreed to carry out.

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Agreed action

  1. As mentioned above, the reduced provision in this case extends over a six-month period. Given the extent of the injustice, I believe the payment to remedy this loss of provision should sit around the middle of the scale outlined in the Ombudsman’s guidance. Therefore, the Council has agreed to pay B £300 for every month of provision lost, meaning a total payment of £1800. This payment should be used for educational purposes and to help improve her mental health and self-esteem.
  2. The Council has agreed to pay Mrs A £200 for her time and trouble in making this complaint.
  3. The Council will also write to both Mrs A and B and apologise for the faults mentioned in this statement. In its apology, it will explain what went wrong and acknowledge the impact of these faults. It will also provide assurances these faults will not happen again, by outlining the steps it has taken to address them.
  4. The Council has agreed to complete these recommendations within one month of the date of this decision.
  5. I do not consider it is necessary to make any service improvement recommendations in response to this complaint as the Council has already proposed what action it will take. It states it will provide training to its staff to remind them of its procedures and the importance of carrying out checks when notified of a student being educated on a reduced timetable. It also says it will amend its procedures so the SEN Resources Panel now carries out this check too. I believe these measures are a proportionate response to the faults identified and should help prevent any reoccurrence.

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Final decision

  1. The Council was at fault when it failed to ensure B received a suitable education after it was notified she was being educated on a part-time basis in February 2017. It was also at fault for delaying unnecessarily during the EHC assessment process. Consequently, it has agreed to make a payment to B to acknowledge the loss of provision and injustice she was caused, and a payment to Mrs A to recognise her time and trouble in making this complaint.

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Parts of the complaint that I did not investigate

  1. I did not investigate the Council’s decision not to undertake an EHC assessment in March 2017 or the consequences of that decision, as Mrs A appealed to the SEND Tribunal. Similarly, I did not investigate its decision not to issue an EHC plan in September 2017 or the consequences of that decision, as Mrs A could have appealed to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman

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