The Ombudsman's final decision:
Summary: Mrs X complained about delay in finding a special school placement for her son and failure to provide suitable education for him in the meantime. The Council was not at fault as it took reasonable steps to arrange the school placement and consider alternative provision.
- Mrs X complained that the Council:
- delayed unreasonably in identifying a specialist school placement for her son after agreeing his primary school could no longer meet his needs; and
- failed to provide suitable education for him in the meantime.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- 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)
How I considered this complaint
- I discussed the complaint with Mrs X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I spoke to the Special Education Needs Officer (SENO) over the telephone. I shared my draft decision with the Council and the complainant and considered the comments I received.
What I found
- A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them.
- The Special Educational Needs and Disability Code of Practice provides statutory guidance for councils as follows.
- Councils must review an EHC Plan at least every 12 months. The first review must take place within 12 months of the date when the EHC plan was issued, and then within 12 months of any previous review.
- The council must write to the child’s parent or the young person within four weeks of the review meeting to say whether it proposes to amend the EHC Plan and send a copy of the draft Plan. If the council proposes to amend the Plan it must give the parent or young person at least 15 days to make representations or request a particular school. The council must send them the final amended Plan within eight weeks of sending the draft.
- A parent or young person has a right to ask for a particular school to be named in an EHC Plan. The council must agree unless the school would be unsuitable or the child’s attendance there would be ‘incompatible with the efficient education of others, or the efficient use of resources’. Councils must consult a school before deciding whether to name it in an EHC Plan, giving them 15 days to respond.
- There is a right of appeal to the Special Educational Needs and Disability Tribunal against a decision not to amend the Plan and against the content of a final EHC Plan, including the named placement.
- Local authorities have a duty to arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such provision. (Education Act 1996, section 19)
- The Council’s alternative education provision for children out of school for health reasons is the Oxfordshire Hospital School Service (‘the Hospital School’). The Council’s process is usually that the school where the child is on roll makes the referral to the Hospital Service with supporting medical evidence from a consultant.
- Mrs X has a son, Y, now aged 11. He has had an EHC Plan since July 2017. Y received a diagnosis of Autistic Spectrum Disorder in August 2017. He has a sensory processing disorder and suffers from high levels of anxiety. He was attending primary school, Primary School 1. He was receiving some support from the Child and Adolescent Mental Health Service (CAMHS). When he started Year 6 in September 2017 after some disruption during the school holidays he struggled to cope, his anxiety levels increased and he started refusing to go to school.
- An Annual Review meeting for Y’s EHC Plan took place in October 2017. He was due to transfer to secondary school in September 2018. The Council’s Special Educational Needs Officer (SENO) attended the meeting. Mrs X and the School shared concerns about how Y was coping. The Council says she asked for a place at a special school, School 2, for Year 7 from September 2018. The record of the meeting shows Mrs X was concerned about whether Y could wait until September 2018 for a special school place. The School felt his emotional state had deteriorated to the point that he could not cope with school.
- School 1 placed Y on a part-time timetable in October 2017 to help with his anxieties and avoid him refusing to attend school altogether.
- In early November 2017 Mrs X contacted the Council’s SEN team to say Y was not coping and needed to move to a special school before Year 7. She said her preferred school was School 2, which had told her it might be able to take Y but not before Easter 2017. She also considered another special school, School 3, but said it had told her it was full.
- Around the same time School 1 told the Council it had made a referral to the Hospital School. The Hospital School advised the School and Mrs X that it could not provide education to Y unless there was medical evidence from CAMHS saying he was medically unfit to attend school. Mrs X asked about the process. She says there were several weeks when she was speaking to the School, her son’s GP and CAMHS. She says CAMHS told her it could not sign her son off sick. She did not provide medical evidence to the School or the Council. She felt the School was doing everything it could to help, but Y needed another placement.
- On 21 November 2017 the Council put the case to its Moderation Panel with a request for a place at School 3 to start immediately if possible, or if there was no capacity, then for Year 7 from September 2018. The Panel approved the request and put it to the Countywide Admissions Panel due to take place on 6 December 2017.
- The Council sent Mrs X a draft amended EHC Plan on 27 November 2017 which contained some additional teaching strategies.
- The following day the SENO put Y’s case to the Council’s Complex Cases Panel to consider Mrs X’s preference for School 2 for his secondary transfer. The Panel decided it should wait for the outcome of the Countywide Admissions Panel to see if School 3 would offer a place.
- At the same time Mrs X contacted the Council to ask if Y could attend an alternative provision outdoor activities centre (‘AP1’) which had offered him a place. She said School 1 could not meet his needs and his behaviour was deteriorating. The Council said the request would need to be put back to the Complex Cases Panel. But it was likely to refuse it as the Council would not be looking for alternative placements while waiting to hear whether Y would get an early place at School 3. The Council also advised Mrs X about other sources of support apart from CAMHS, including a referral made to children’s social care.
- A week after the Countywide Admissions Panel Mrs X sent an email to the Council asking for an update. On learning that the Panel minutes would not be available until the new year Mr X made a formal complaint to the Council on 16 December 2017. He said there had been no progress and no provision offered since School 1 reported in October 2017 that Y needed specialist provision as matter of urgency. He said since then Y had been kept in the library at school and had not received any education. Following a recent incident when Y tried to join his class, the School said it was likely to exclude him. Mr X asked for a specialist placement to start in January.
- In the Council’s response to the complaint it set out the history of events and said the SEN Team were working to secure a special school placement and had kept all concerned updated on developments. It said the Council had also advised the family that social care and health may be able to offer extra support. At the same time it said it upheld the complaint. It said the “decision-making was not in line with the Code of Practice”. The Council apologised. It said in January the Council would either have the offer of a special school placement or would pursue alternative provision.
- Mrs X also wrote to the SEN Team in December asking what would happen from the start of term. She said if Y was to return to School 1 she wanted an assurance that the Council had made alternative suitable arrangements for his continued education.
- When Y returned to school at the start of term in January 2018 School 1 reported to the Council that he had had a violent outburst and would not engage with the activities planned for him. The School called Mrs X in and sent Y home with some learning activities on a one-day exclusion. It said it would try again the following day. The School then reduced Y’s timetable further, to one hour a day. It said it would contact children’s social care for some support for Mrs X at home.
- The same day the SEN Team Leader wrote to the School saying “I think we need to construct a bespoke provision for [Y] between now and the end of the academic year”. She proposed a package of alternative provision for the rest of the term consisting of two days a week at AP1 and a 1:1 tutor at school for three hours a morning, three days a week.
- Mrs X also wrote to the Council asking what was happening with the review of Y’s EHC Plan. She wrote again on 22 January 2018.
- The following day School 3 confirmed it would be able to offer Y a place from the beginning of the February half term. It would arrange transition visits first to prepare him.
- Mr and Mrs X visited School 3 and confirmed they were happy with the placement.
- The Council issued the final amended EHC Plan on 5 February 2018 naming School 3.
- Y attended School 3 for transition visits during January 2018 and then started there full-time on 19 February. My understanding is that the family is happy with the placement.
- Mr X asked the Council to take his complaint about delay in finding a specialist school placement to stage 2 of the complaints procedure. The Council’s response was similar to the stage 1 response. It set out the history of events with an update on more recent developments. The Council said it upheld the complaint as it took too long to place Y in a special school and apologised for this.
Council’s response to the Ombudsman
- In response to the Ombudsman’s enquiries the Council says it does not consider there was unreasonable delay in identifying a special school placement for Y. It says it was notified of the request for a specialist placement for Year 7 in October 2017 and then in early November Mrs X asked for an earlier start date. The Council says it considered the request promptly and took timely action to find a placement. It offered a place at a suitable specialist school on 23 January 2018 and Y started in February. So overall it took three months from when it received the request for a change of placement, which it does not consider unreasonable.
- Regarding education for Y in the meantime, the Council says it did not consider the Hospital School as did not receive any document saying Y was medically unfit to attend school. It says it did not explore other alternative provision because it had agreed a specialist school would be the most appropriate setting for Y and it was in the process of identifying a place for him. It says given Y’s needs it did not consider it would have been appropriate for him to transfer to other alternative provision for a short time before starting at a new school.
- When asked what fault the Council had identified in the previous complaint responses to Mr X, the Council said it was not clear but it thought it was probably in the EHC Plan review process. It recognised that it did not send a notice to Mr and Mrs X within four weeks of the Annual Review meeting saying it would be amending the Plan. It said it would learn from this and was reviewing its procedures.
- Also the Council said it did not send out the final EHC Plan within the required timescale. However it said it did not consider it would have been in the best interests of those concerned to do so as it had not identified a suitable placement at that point. It would therefore have needed to name Y’s existing school rather than the new school that finally offered a place. So it says the delay did not cause any disadvantage to Y.
Analysis – was there fault causing injustice?
- Following the Annual Review meeting in early October 2017 the Council agreed Y needed a specialist school placement for his transfer to secondary school. Although at the meeting Mrs X said an earlier move should be considered, she specifically asked for this in early November. The Council responded to this request and took active steps to identify a suitable placement at a special school that would be available before September 2018. It had to go through the process of approving the request and consulting schools. Also the Christmas holidays intervened. By the third week of January 2018 it had identified a suitable place and agreed a transition programme to introduce Y to School 3. I do not consider the Council was at fault in the way it responded to the request for a change of placement. It actively pursued the matter and I have not seen evidence of any significant avoidable delay.
- During this time Y was only able to attend school on a reduced timetable. The Council’s duty to arrange alternative education for a child who is out of school because of exclusion, illness or for other reasons arises if the child would not otherwise receive suitable education.
- In this case the Council would have offered a place at the Hospital School if the parents had provided medical evidence that Y was medically unfit to attend school. But they did not do so. Mrs X has explained her difficulties in obtaining the evidence and says while she was trying to do so she found another alternative education provider that she considered more suitable than the Hospital School. I appreciate the difficulties she had, but I could not say it was fault for the Council not to provide alternative medical provision without the evidence required under its policy. The SENO says she did not know until 6 December 2017 that the Hospital School had rejected the application on the basis that there was no medical evidence.
- At this point the Council could have considered whether other alternative provision was needed in addition to the part-time hours at School 1. However it was actively pursuing a specialist school placement. The SENO says she was also discussing with the School what extra support could be put in place for Y. In January 2018 at the start of term the Council proposed a package of alternative education. So there was a period of about two school weeks between the Council being aware the Hospital School referral was not going ahead and proposing an alternative education package. Two weeks later Mrs X received the offer of a place for her son at School 3. The Council did not arrange the alternative provision at that point because it did not consider it in Y’s best interests to have a short-term change of placement, when the transition to School 3 would be starting.
- Given the above sequence of events my view, based on the information I have seen so far, is that the Council was not at fault in the way it considered provision of alternative education. But even if it had considered the matter in mid-December 2017 I could not say any alternative package would have been in place before Y started his transition to School 3 in January 2018.
- The Council has already accepted it was at fault in failing to follow the proper process for amending the EHC Plan following the Annual Review. It should have issued the final EHC Plan by 12 weeks after the Annual Review meeting, in this case the end of December 2017. So it was about six weeks late. However I agree with the Council that this did not cause significant injustice because it was waiting to hear about the placement. It would not have been of benefit to Mr and Mrs X If the Council had issued the final EHC Plan with the existing school named or without a named placement. They would have had a right of appeal, but an appeal would not have produced a place at a special school any sooner.
- I have found that the Council took reasonable steps to arrange a special school placement for Y and was not at fault in failing to arrange alternative education provision for him in the meantime. It failed to follow the procedure properly for amending Y’s EHC Plan following his Annual Review, but this did not cause significant injustice.
Investigator's decision on behalf of the Ombudsman