Kent County Council (18 013 366)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 15 Jul 2019

The Ombudsman's final decision:

Summary: Miss X complains of the delay by the Council in issuing an Education and Health Care Plan for Child Y. Based on the evidence seen the Ombudsman has found fault with the Council and because of this, Y missed the education he was entitled to. To remedy the injustice caused to Y and his brother, the Council has agreed to apologise, make a financial payment and review its process.

The complaint

  1. Miss X complains that the Council delayed in issuing an EHCP for Y and failed to provide him with suitable alternative education.

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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. 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 EHC plan is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
  1. 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)
  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. 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 considered the complaint and information provided by Miss X. I discussed the complaint with Miss X by telephone. I made enquiries of the Council and considered its response and the documents it provided.
  2. I provided Miss X and the Council with a copy of my draft decision and invited their comments. I considered the comments I received.

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What I found

Relevant legislation and guidance

  1. A child with Special Educational Needs (SEN) may have an Education, Health and Care Plan (EHCP). This sets out the child’s special educational needs (SEN) and provision required to meet them.
  2. The Special Educational Needs and Disability (SEND) Code of Practice Statutory Guidance provides the following:
  • The process of the EHC needs assessment must be carried out in a timely manner. The time limits set out below are the maximum time allowed. However, steps must be completed as soon as practicable. Local authorities should ensure that they have planned sufficient time for each step of the process so that wherever possible any issues or disagreements can be resolved within the statutory timescales;
  • The whole process of EHC needs assessment and ECHP development, from the point when an assessment is requested (or a child or young person is bought to the local authority’s attention) until the final EHC plan is issued must take no more than 20 weeks.
  • The following specific requirements apply:
          1. Local authorities must give their decision in response to any request for an EHC assessment within a maximum of six weeks from when the request was received or the point at which a child or young person was bought to the local authority’s attention;
          2. When local authorities request information as part of the EHC needs assessment process those supplying the information must respond in a timely manner and within six weeks from the date of the request;
          3. If a local authority decides following an EHC assessment not to issue a plan it must inform the child’s parents or the young person within a maximum of 16 weeks from the request for an EHC needs assessment; and
          4. The child’s parent’s or the young person must be given 15 calendar days to consider and provide views on a draft ECHP and ask for a particular school or other institution to be named on it.
  1. Local authorities have a duty to arrange for the special educational provision set out in an EHCP (Children and Families Act 2014, section 42)
  2. SEND is a tribunal that considered special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))

Alternative Education

  1. Councils have a duty to make arrangements for the provision of suitable full-time education at a school or elsewhere for children of compulsory school age, who “by reason of illness, exclusion from school or otherwise may not for any period receive suitable education unless arrangements are made for them”. (Education Act 1996, Section 19)
  2. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 16(6))
  3. Statutory guidance ‘Alternative Provision’ says while there is no statutory requirement as to when suitable full-time education should begin for children placed in alternative provision for reasons other than exclusions, council should ensure children are placed as quickly as possible.
  4. The Ombudsman issued a Focus Report in September 2011 amended in June 2016, ‘Out of School…out of mind?’ This gives guidance on how we expect local authorities to fulfil their responsibilities to provide education for children who for whatever reason do not attend school full-time.

What happened in this case

  1. I have set out below a brief chronology of events. It is not intended to show everything that happened.
  2. Y arrived in the United Kingdom as a refugee in September 2017 to join his brother. Y was 15 years old at the time. Y is profoundly deaf and faces significant challenges around communication. He has limited English and understanding of british sign language.
  3. On 28 September 2017 the Council received a referral for an EHCP for Y. On 9 November 2017 the Council agreed to complete a statutory assessment for Y.
  4. The educational psychology team was asked to provide information as part of the assessment process. It is not clear when this request was made but on 13 November 2017 a reminder was sent to the education psychologist. The educational psychologist responded to the email and said she required further information before she could complete the assessment. The Council said the psychologist’s advice was crucial for the EHCP as there was no other information that could inform Y’s cognitive ability. This information was due on 18 January 2018 but was not received until 23 February 2018.
  5. On 8 March 2018 the Council agreed to issue Y with an EHCP. On 9 March 2018 the Council wrote to three colleges to ask if they could take Y. College A was Y’s preference at the time. This was confirmed by the specialist teaching service in an email dated 21 March 2018.
  6. Pending a response from College A, on 19 April 2018 the Council wrote to School D for Y to attend Year 11 before starting college. The Council received an email from the specialist training service which stated, “this has taken so long, and I am concerned that he is very isolated and not accessing anything at the moment beyond what KRAN [Kent Refugee Action Network] is providing”.
  7. On 23 April 2018 College A said it was unable to meet Y’s needs and outcomes and did not consider it appropriate for the college to be named in the final EHCP.
  8. On 25 April 2018, School D said it would offer Y a place, initially until the end of the year. On the same day Miss X contacted the Council and said that School D would not be able to meet Y’s needs. She said that Y and his brother had been told that neither School D nor College A would be appropriate placements. Miss X said that Y’s brother would look at alternative colleges and asked the Council to postpone issuing the final EHCP on this basis.
  1. On 3 May 2018 Y’s brother told the Council that he had arranged to visit College B on 10 May 2017. On 4 May 2018, the Council wrote to College B to ask if they could take Y.
  1. The Council scheduled a co-production meeting for 25 May 2018. Y’s brother was unable to attend, and the meeting was rearranged for 26 June 2018. At the meeting it was agreed that Y required a communication support worker (CSW) with a level 3 qualification in signing.
  2. The EHCP was amended and sent to two other colleges and resent to College A and B and School D.
  3. On 4 July 2018 School D said it was unable to meet Y’s needs. On 16 July 2018 College A said it was still not able to meet Y’s needs. College B responded on the same day and confirmed it would offer Y a place.
  4. On 17 July 2018 the case was submitted to the independent placement panel. It was decided that the SEN team should approach College A again. In its letter, the Council directed the College to admit Y as it was the Council’s view that it could meet the needs of Y. The Council said this placement was close to Y’s home address and was an efficient use of resources.
  5. The Council issued its final EHCP on 7 August 2018. However, Y did not start college until 29 October 2018 because College A did not have the provision in place to provide him with the support he needed, as detailed in the EHCP. This meant he missed the first term of college.
  6. Miss X lodged an appeal with the SEND tribunal about the provision and the type of educational placement named in the ECHP. On 14 March 2019 she informed the Ombudsman that, two weeks before the hearing was due to be held, the Council conceded. It agreed to name College B as the educational placement for Y.
  7. On 21 March 2019 the Council contacted the Ombudsman and offered to make a payment of £1000 to Y and his brother. The Council said:

“Having conducted a full review of this case and in consideration of the previous omissions of the Local Authority through the complaints process. There have been some delays in progress which will have had a negative impact on [Y]. As such the Local Authority would like to apologise to [Y] and his brother for this and offer the sum of £1000”.

Miss X’s complaint to the Council

  1. Miss X complained to the Council about it’s a handling of the EHCP process for Y. She first complained on 23 August 2018 and received a stage one response on 21 September 2018. She made a further complaint as she considered the Council had not resolved the issues she had raised. This led to a stage two response by the Council on 13 November 2018.
  2. In its stage two response the Council summarised Miss X’s complaint as follows:
  • No action taken by the Council to help Y get into school at the end of 2017/start of 2018;
  • Lack of support from Specialist Teacher Advisory Service to help Y learn or help [them] know which schools or colleges to look at;
  • Delays in the EHC assessment process;
  • Y’s meeting at College A on 18 July 2018.
  1. The Council apologised for not directing Y to the department for admissions in September 2017. It recognised that as a refugee Y should have been registered as a child missing education and this would have triggered an internal process to gain education. The Council said that where necessary it can secure a placement in a specialist setting for a pupil without an EHCP, if there is capacity. It said that at the time SEN became aware of Y there was no capacity to do this.
  2. The Council explained that the role of the specialist teaching and learning service was to provide advice and guidance to schools and to provide assessments for the EHC process. It said it could not provide advice and guidance outside of a school-based provision.
  3. The Council said that delays in the ECH process were a result of rising numbers of statutory assessment over the past 12 months and limited educational psychology capacity. It said because of this there have been unavoidable delays in the submission of ‘Appendix 5’ psychology reports.
  1. The Council did not offer a remedy for the delay and Y’s missed education.

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Analysis

  1. I find there was a delay by the Council in completing a final EHCP for child Y. This is fault. The Code of Practice is clear that councils have a maximum of 20 weeks to complete the process. All necessary advice and assessments should be obtained within the 20-week period. I note that the Council faced an increase in requests for assessments of children, but it is still statutorily required to complete the process within 20 weeks. If the EHCP had been issued in accordance with the statutory timescales, Y would have had an educational placement named in his EHCP by mid-February 2018.
  2. The Council caused further delay by contacting College A on more than two occasions, even though the College had previously said on two occasions that it could not meet Y’s needs. Despite naming the College in the final EHCP on 7 August 2018, College A could not provide Y with the support he needed and therefore he did not start education until 29 October 2018. This is fault.
  3. While the Council tried to arrange provision of suitable education for Y it had a duty to provide alternative provision. The Council said where necessary it can secure a placement in a specialist setting for a pupil without an EHCP, if there is capacity. It said that at the time SEN became aware of Y there was no capacity to do this. The Council did approach School D for Y to attend Year 11 before starting college, however Miss X said this was not a suitable placement for Y and the School also said it could not meet Y’s needs. I appreciate that it was difficult for the Council to identify an appropriate provider that could meet Y’s needs, however I have seen no evidence of any other attempts made by the Council to arrange suitable interim education for Y. This is fault.
  1. Because of the faults identified, Y experienced significant injustice as he missed at least one year of education provision and was left feeling isolated. His brother also experienced significant injustice, having to attend a number of meetings with the Council and prospective colleges.
  1.  

Agreed action

  1. I recokmend that The Council has agreed to my recommendations and within four weeks of my final decision it will:
  2. FaultyFaa) Apologise to Y and his brother for the faults identified;
      1. Pay Y £1250 in recognition of the delay in completing the EHCP. The Council should have completed the EHCP by 15 February 2018. Instead the final plan was issued on 7 August 2018. This amounts to £500 for each month of delay minus two-and-a-half-month period of school holidays. In calculating this figure, I have considered the Ombudsman’s guidance on remedies. This suggests a figure of £200 and £600 per month to recognise the impact of lost education. Our guidance suggests the higher figure should be used for a child with SEN.
      2. Pay Y £1000 for the failure to secure suitable interim education and the impact this has had on his education and development.
      3. Pay Y £500 in recognition of the delay in commencing education at College A. College A could not provide the support Y needed and because of this he missed a term of education.
      4. Pay Y’s brother £500 for the inconvenience and distress caused by Y being out of education.
  3. Within three months of my final decision the Council will review its procedures to meet the 20-week timescale required to complete EHC Plans.

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Final decision

  1. For the reasons set out above there was fault causing injustice to Y and his brother. The Council has agreed to my recommendations and I have completed my investigation on this basis.

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Parts of the complaint that I did not investigate

  1. The Act and Regulations set out the timescales for each stage of the ECHP process and also specify the stages when an appeal can be made. In this case Miss X appealed the Council’s decision to place Y in College A. The Council conceded two weeks before the date of the hearing and agreed to place Y in his preferred placement at College B.
  2. The law says the Ombudsman cannot investigate a complaint if someone can or has appealed to a tribunal. Therefore, in this case I cannot investigate the Council’s decision not to name College B on the EHC Plan sooner.

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Investigator's decision on behalf of the Ombudsman

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