The Ombudsman's final decision:
Summary: Miss P complains the Council failed to issue an amended Education, Health and Care Plan for her child, Q. This meant Q was insufficiently supported at school. There is evidence of Council fault and the Council has been asked to make payments for missed education and distress, arrange for services and monitor the timeliness of Education, Health and Care Plans being issued.
- The complainant, whom I shall call Miss P complained the Council failed to support her child, Q’s, special educational needs and failed to provide appropriate, full time education.
- Miss P says that, as a result, Q missed out on education she should have had. Miss P was also caused distress by the Council’s actions.
The Ombudsman’s role and powers
- 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) I have exercised discretion to consider the complaint from November 2016, which is the date of the first annual review that Q had in the Council’s area.
- When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
- SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
- There has been a legal ruling which clarifies that the Ombudsman has no jurisdiction to investigate a complaint about alternative educational provision while a parent is exercising their right of appeal to a Special Educational Needs and Disability Tribunal. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman)  EWCA Civ 1407)
- 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)
- Under our information sharing agreement, the Local Government and Social Care Ombudsman will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
How I considered this complaint
- I considered the information Miss P submitted with her complaint and I made enquiries of the Council and assessed its response. I sent Miss P and the Council a copy of my draft decisions and took their comments into account before issuing a decision.
What I found
Events in 2016
- Q moved to the Council’s area in September 2016 with an Education, Health and Care Plan (EHCP) from another council. EHCPs set out the support a child needs when they are in school. Q attended a mainstream primary school as Q had attended one before moving. Miss P was critical the Council did not conduct a full re-assessment of Q’s EHCP. The Council had discretion whether to reassess or not. Failing to reassess is not fault. Miss P did not make a formal request, which would have given her appeal rights to the tribunal if the Council refused. Miss P pointed out there was nothing in law and guidance to say she had to make ‘a formal request’ but if she wanted a re-assessment, I consider she needed to make this explicit. From the evidence presented to me, the request was not explicit.
- An Annual Review of Q’s EHCP was held on 17 November 2016. The Council agreed to make amendments and told Miss P this in December. Once the Council said this, it had six weeks to send the amended final EHCP to Miss P i.e. until 29 December. The Council did not do this, which is fault causing distress to Miss P as she wanted an EHCP to set out what support Q needed.
Events in 2017
- The first draft amended EHCP was sent to Miss P in June 2017. Q was at school full time at this point although Miss P says she was often in internal exclusion. The Council has said the school asked for a specialist placement for Q in March suggesting it was not coping.
- I have evidence that the Council acknowledged professional reports were necessary in order to get a good understanding of Q’s needs but reports were not commissioned at that point (reports received are dated from March and April the following year). Failure to action this is fault and it led to distress for Miss P as she wanted to understand how the Council would support Q going forward.
- Q moved to a Pupil Referral Unit (PRU) in September 2017 where Miss P says Q was often only benefitting from two hours of education each day. The Council should make a payment for approximately 45% of the time Q was not in school from September 2017 (given it was aware Q was not attending full time) until January 2018 when it issued the final amended EHCP, which allowed Miss P to appeal.
- The Council says it held termly meetings with the PRU to check pupil progress but Q was not there for a full term. Nevertheless, there is no evidence Q could only cope with a part time timetable. Miss P says this had an adverse effect on Q’s mental health as Q felt like a failure for not being educated in the way everyone else was. Miss P withdrew Q from the PRU in October 2017.
- An officer told Miss P, on 27 November 2017; ‘Q’s case can be examined in more detail during a…’support and challenge’ visit to the PRU to challenge the reduced offer of education and why this could not be increased to more than 3 hours per (day)’. The Council says this information is not on Q’s file. However, because by then Miss P had removed Q, there would be nothing gained by the Council investigating this further. There is no evidence Miss P wanted Q to return there. I am not making a finding on fault.
- The Council identified a school in November 2017 for Q to start at in September 2018. The Council says Miss P did not want an immediate placement but there is no evidence it asked her when she wanted Q to return to education. On the balance of probabilities, Miss P would have been concerned Q would not have sufficient support to return to formal education without an up-to-date EHCP. I have already asked the Council to make a payment for Q’s missed education over this time and to acknowledge Miss P’s distress due to the delay in issuing an amended EHCP.
- The Council did not hold an Annual Review of Q’s EHCP in 2017. This is fault. Although I cannot say that Q’s situation would have been improved by having an Annual Review, it would have been an opportunity for Miss P to emphasize the need for a finalised, amended EHCP. It would also have clarified opportunities for alternative placements. I consider this further contributed to Miss P’s distress and uncertainty about the way Q would be supported.
Events in 2018
- Q’s final amended EHCP was issued in January 2018. At this point, if parents are unhappy with the content of the EHCP, we expect them to go to the SEND tribunal. This was Miss P’s opportunity to ensure the EHCP reflected Q’s needs. Miss P did not go to tribunal at this stage.
- The Council would be expected to provide therapies specified in the EHCP from this date. However, Q was out of school and there was no agreement for the Council to provide therapies when Q was not in school. If Q had been in school (or the PRU, even for the 55% of time that was timetabled), on the balance of probabilities Q would have received this. There is no evidence of Council fault.
- The next Annual Review of Q’s EHCP was held in April 2018, which considered professional reports, and a draft amended EHCP was sent out in May with a further draft circulated at the beginning of June. The Final Amended EHCP is dated 28 June. The drafts were sent out promptly and there is no evidence of fault. Miss P went to the tribunal following this as she wanted the Council to name a specific special school for Q. This shows the Council’s procedures ensure statutory timescales are met so I will not ask it to change them. However, given the Council’s failure on the first occasion, where it was at fault, it would be appropriate for the Council to monitor this periodically.
- I cannot consider any matters between the date of Miss P’s appeal to SEND and the date of the tribunal’s decision.
- Once the Final Amended Plan as ordered by the tribunal was issued in November 2018, Q was to transition to the named school in December. I would expect the Council to have offered alternative provision until that date. Q received insufficient education in November and December 2018 and this is fault.
Events in 2019
- Miss P says that Q is meant to have support from a specialist Occupational Therapy service. The Council would be expected to provide this once Q attended school. There is evidence the Council tried to put this in place although not until late in January and the provider could not, then, start the provision until March. The delay is fault as the therapy should have been available to Q as soon as Q started at the school. The Council has now put this in place. It should ask the therapist to assess whether any additional sessions would be appropriate (given approximately eight sessions were missed) and to arrange them. Otherwise, the money the missed sessions would have cost the Council should be given to the school to support Q’s education. The Council should also make a payment to Q of £200 for distress at missing the provision.
- Miss P says Q has also missed speech therapy from January. The failure to have overview from a speech therapist is fault and the Council should apologise. It should put this in place as soon as possible and apologise to Miss P and Q for the delay. I am not minded to ask for an additional remedy as the school, as a specialist provision, would have trained personnel able to support Q and an ‘overview’ is not the same as 1:1 sessions.
- The Council says referrals to the Child and Adolescent Mental Health Service (CAMHS) can only be through a doctor even though CAMHS’ support might be important in supporting a child to attend school, as in this case. This is fault given the need for all professionals to work together to support EHCPs. The Council should begin a dialogue with CAMHS to identify the best way forward.
- Miss P wants the Council to put appropriate information in Q’s EHCP in relation to Q’s social care needs. Miss P needs to ask for this at Annual Review. If the Council does not do this, Miss P can go to SEND and ask it to make recommendations. The Ombudsman cannot make changes to EHCPs.
- For the Council to apologise for the fault in this statement within a month of the date of my decision.
- For the Council to make a payment of £500 as acknowledgement of Miss P’s distress due to its delay in commissioning professional reports, considerable delay issuing Q’s EHCP following notification of amendment, its failure to conduct an annual review and to acknowledge Miss P’s uncertainty as to whether Q could have returned to a full time placement sooner. It should make this payment within one month of the date of my decision.
- For the Council to periodically monitor the timeliness of EHCPs issued. It should put in place processes to do this and tell me what actions it will take within four months of the date of my decision.
- For the Council to make a payment to Q of £750 for missed education from September 2017 to January 2018 and then £300 for missed education in November and December 2018 (which is £150 per calendar month when school is in session) within a month of my decision.
- For the Council to make a payment of £200 for Q’s distress at missed occupational therapy from January 2019 within a month of my decision.
- For the Council to ask the specialist occupational therapist to assess whether any additional sessions would be appropriate within two months of the date of my decision (given approximately eight sessions were missed) and to seek to arrange them as soon as possible if so. Otherwise, the money the missed sessions would have cost the Council should be given to the school to support Q’s education; for example, to purchase something meaningful to Q for use in school that is in addition to meeting her specified needs.
- For the Council to put in place overview from a speech therapist within two months of my decision and to apologise that this has not been done previously.
- For the Council to establish a dialogue with CAMHS to discuss how best to work together going forward within four months of the date of my decision.
- I have made a finding of fault leading to injustice and the Council has agreed actions to remedy this.
Investigator's decision on behalf of the Ombudsman