The Ombudsman's final decision:
Summary: Mrs X complains the Council failed to comply with statutory requirements in relation to her son’s Education, Health and Care Plan (EHCP). The Council is at fault. Its failure to act in line with statutory guidance has caused Mrs X and her son, XX, an injustice. We have made recommendations to remedy this injustice including a payment to acknowledge the distress caused and system reviews.
- Mrs X says the Council has:
- breached its duty under section 44 of the Children and Families Act 2014 (CFA Act) and section 19 of the Education Act 1996, (EA Act).
- failed to comply with the requirements of an annual EHC plan review, failing to notify Mrs X of its decision to cease XX’s plan within four weeks of a review hearing and failing to notify her of her right to appeal.
- failed to provide her with a copy of XX’s amended EHC plan.
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)
- We investigate complaints about ‘maladministration’ and ‘service failure’. 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)
- 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)
- Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).
How I considered this complaint
- I spoke with the complainant and made enquiries with the Council. I researched the relevant law and guidance. I gave both the complainant and the Council the opportunity to comment on my draft decision. I have made some amendments following their comments but none that materially affect the outcome.
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 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.
- Local authorities must ensure that children, their parents and young people are
involved in discussions and decisions about their individual support and about local provision. (1.3, Special educational needs and disability code of practice: 0 to 25 years, (“the Code”).
- Local authorities must consult children with SEN or disabilities, and their parents when reviewing local SEN and social care provision. (1.4, The Code)
- Children have a right to receive and impart information, to express an opinion and to have that opinion taken into account in any matters affecting them from the early years. Their views should be given due weight according to their age, maturity and capability. (1.6 The Code)
- Parents’ views are important during the process of carrying out an EHC needs
assessment and drawing up or reviewing an EHC plan in relation to a child. Local
authorities, early years providers and schools should enable parents to share their knowledge about their child and give them confidence that their views and
contributions are valued and will be acted upon. At times, parents, teachers and
others may have differing expectations of how a child’s needs are best met.
Sometimes these discussions can be challenging but it is in the child’s best interests for a positive dialogue between parents, teachers and others to be maintained, to work through points of difference and establish what action is to be taken. (1.7 The Code)
- The needs of the individual child and young person should sit at the heart of the assessment and planning process. Planning should start with the individual and local authorities must have regard to the views, wishes and feelings of the child, child’s parent or young person, their aspirations, the outcomes they wish to seek and the support they need to achieve them. (9.21, The Code)
- If a child’s parent makes a request for a particular school or post-16 institution the local authority must comply with that preference and name the school or college in the EHC plan unless:
- It would be unsuitable for the age, ability, aptitude or SEN of the young person, or
- the attendance of the child or young person would be incompatible with the efficient education of others, or the efficient use of resources. (9.79, The Code)
- Reviews must focus on the child or young person’s progress towards achieving the outcomes specified in the EHC plan. The review must also consider whether these outcomes and supporting targets remain appropriate. (9.166, The Code)
- Reviews must be undertaken in partnership with the child and their parent or the young person, and must take account of their views, wishes and feelings. (9.168, The Code)
- The local authority’s decision following the review meeting must be notified to the child’s parent or the young person within four weeks of the review meeting (and within 12 months of the date of issue of the EHC plan or previous review). (9.169, The Code)
- Where the local authority proposes to amend an EHC plan, it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. The child’s parent or the young person should be informed that they may request a meeting with the local authority to discuss the proposed changes. (9.194, The Code)
- The parent or young person must be given at least 15 calendar days to comment and make representations on the proposed changes, including requesting a particular school or other institution be named in the EHC plan. (9.195, The Code)
- Following representations from the child’s parent or the young person, if the local authority decides to continue to make amendments, it must issue the amended EHC plan as quickly as possible and within 8 weeks of the original amendment notice. If the local authority decides not to make the amendments, it must notify the child’s parent or the young person, explaining why, within the same time limit. (9.196, The Code)
- If the plan needs to be amended, the local authority should start the process of amendment without delay. (9.177, The Code)
- When sending the final amended EHC plan, the local authority must notify the child’s parent or the young person of their right to appeal and the time limit for doing so, of the requirement for them to consider mediation should they wish to appeal, and the availability of information, advice and support and disagreement resolution services. (9.198, The Code)
- A local authority may not cease to maintain an EHC plan for a child or young person under the age of 18 unless it determines that it is no longer necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.
- Where a child or young person under the age of 18 is not receiving education or training, the local authority must review the EHC plan and amend it in accordance where appropriate, to ensure that the young person continues to receive education or training. (s.29, SEN Regulations 2014)
- Mrs X’s son, XX, is autistic. He has had an EHC plan for a number of years. As he has additional needs, he had a place at a school which provides additional support, School P.
- Before the events dealt with in this complaint, XX had difficulties obtaining funding from the Council for 1:1 provision. It was stopped and started again a number of times because the Council had concerns about XX’s level of engagement with School P. In May 2018, the Council started looking for another placement for XX as it thought this was necessary because of the continual requests for funding for 1:1 from School P, which said it could not have XX on site without the funding.
The annual review and the question over whether an amendment was requested
- An annual review meeting was held for XX on 18 June 2018. In the papers that were provided to the panel by the school, it was recorded that, at that time, XX had 30 hours of 1:1 provision. He was not engaging well at School P but did engage very well with the school’s head teacher.
- Under the heading, ‘What support is needed in the future?’ it was stated that XX needed to continue with his 1:1 support to develop his skills so that he could access the classroom environment. It was suggested that XX required a timetable which would feature a significant proportion of time being educated off-site and that any transitions back to school would need to be carefully planned and resourced.
- Under the heading, “Who will make this happen?” the annual review report stated:
“The Local Authority need to fund [XX’s] placement with additional fees to cover 1:1 staffing.”
- It was stated that funding needed to be agreed and secured before September 2018 so that appropriate staff could be resourced.
- The report also said that:
- XX was not engaging well with other pupils
- He found it difficult to engage with core curriculum content but was beginning to complete maths work with trusted members of staff and had accessed a photography course.
- He told staff he preferred to work at home.
- His behaviour showed that being at school was overwhelming for him.
- He benefited from 1:1 sessions with the school headteacher
- XX’s parents wanted him to continue to stay at School P post 16
- It was felt XX needed 1:1 support from School P and to work at home part-time
- The papers did not say whether an amendment was needed to the EHC plan or not.
- On 27 June 2018 the Council decided not to fund 1:1 provision.
- On 29 July 2018 the school sent another set of papers to the Council. The papers were dated 18 June 2018, like the previous set of papers sent to the Council, which had been sent in preparation for the 27 June 2018 hearing. However, this set of papers said that an amendment was needed to the EHC plan.
- I have seen another set of papers, also dated 18 June 2018 and also saying that XX’s primary need should be amended. However, this set of papers also set out that the school said XX required 1:1 support to be funded by the local authority.
- A Council officer, CW1, told Mrs X about the decision on 4 July 2018. C1 said she would amend the EHC plan as soon as possible and then have a conversation with Mrs X.
- Mrs X responded immediately, saying she wanted to appeal the panel’s decision. She asked the Council to forward the plan to her, “…at the soonest…for me to get the ball rolling.”
- Mrs X did not receive a copy of the amended plan, although she asked for it seven times and School P asked for it at least once. She was told, at least five times, that the plan would be amended soon or that someone was working on amending it.
- The Council did not uphold Mrs X’s complaint about this. It argued that, although it accepted School P made a request for an increase in funding, it did not say an amendment was needed. It says this would usually be the trigger for notice of amendment to be sent.
The Council’s efforts to find alternative provision
- The notes written at the panel where the decision was made to withdraw funding say that XX’s social worker needed to speak to Mrs X about ‘other potential options’.
- In July 2018 C1 spoke with another school, School D, about providing a place for XX. Mrs X said the schools C1 was looking at would not be appropriate for XX’s complex needs. However, one of the schools confirmed that it, “…could be in a position to offer assistance.”
- On 4 August 2018 School D asked C1 what was happening with XX’s provision. On 6 August 2018 School D sent the Council a proposed offer.
- School P warned the Council prior to the August panel hearing that without 1:1 funding in September 2018, the school could not provide a placement for XX in September 2018.
- Mrs X did not want to visit the schools on offer because she felt it could raise XX’s anxieties and impact on his behaviour.
- After a further panel meeting in August 2018, where it was again decided that 1:1 funding would not be provided at School P, C1 emailed Mrs X. She said she would chase up the consultation with other school.
- On 24 August 2018, Mrs X emailed the Council to say, “it has come as a shock to me as I was not aware we were at the stage of serving notice to the school and with no school in place for [XX] to attend.” She asked again when the amended EHC plan would be issued.
- On 4 September 2018, another social worker tried to arrange a potential placement at another school. However, she said, “…this has yet to be considered and agreed by the LA.”
The August panel hearing
- In August 2018, School P provided a further educational psychologist report to the Council. The report said that XX felt like he had been ‘chucked out’ of School P. When told that he could not go on site at School P, “…he became quite upset…and covered his face to hide that he was crying.”
- The school said the educational psychologist report showed that XX needed 1:1 funding.
- On 22 August 2018 the case was discussed again at a review panel.. The educational psychologists report was considered. The request the panel considered was whether the Council would provide 1:1 funding, “…for at least the period of September to October….”
- The Council refused funding and gave notice that XX could no longer stay at School P. The Council say that Mrs X was informed that the notice period was six weeks from the 23 August 2018.
- On 3 September 2018 School P wrote to the Council. It said it needed clarification over the expectation for the next six weeks as, “…we were very clear that without 1:1 funding we would not be able to meet [XXs] needs.” It said that as the Council had failed to fund 1:1 provision, it could not provide a safe environment. It asked for a meeting to try and formulate a plan.
- The school also pointed out that keeping information from XX could pose a danger to XX and to staff.
- The next day the Council emailed Mrs X to say that School P was going to contact her about the support it could offer over the next six weeks. In an internal email, C1 said that School P would support XX for the six week period but were limited as to what could be offered.
- During the six week period XX was off school, School P’s head teacher provided one session each week. XX was able to access a photography course online but Mrs X says he was given no support during this period.
- Mrs X said she wanted XX to continue at School P as she did not feel a change of school would be in his best interests. She said that XX was highly anxious and said that he did not want to change schools.
- The Council said it was waiting for a response to other options for schooling.
- The records indicate that another school said it considered it would be able to provide a place for XX. However, the details were not finalised as XX did not want to change schools.
The Council decides to provide funding
- On 19 September 2018 the Council asked the head of School P for some revised costings so that a bespoke reduced timetable could be considered by senior colleagues.
- On 21 September 2018 School P said it could offer a bespoke individual timetable in a revised costing. It said it was not usual practice to offer part time placements but agreed to do so as a ‘gesture of good will’ and, “…to resolve the current issues for this young person.”
- On 24 September 2018 C1 responded to an email from one of the schools she had been trying to secure provision at. She said:
“Parent is not happy that we have given notice on the placement and she doesn’t believe any other provider will meet [XX’s] needs. [XX] has also stated that he wants to remain at [School P] and does not want to consider an alternative. I need to speak to the head of service about this one.”
- On 27 September 2018 the Council agreed to the revised costings at School P.
- On 18 December 2018 Mrs X was given confirmation that 1:1 funding would be in provided until the summer term of 2019. A letter was sent to Mrs X on 21 December 2018 saying that the Council would be amending XX’s EHC plan.
The Council says it provides the amended EHC plan
- By the time Mrs X came to the Ombudsman she had still not received a copy of an amended plan.
- The Council says it sent a copy of the amended EHC plan to Mrs X in February 2019. Mrs X says she received a copy of the amended plan but after she provided comments on this, she did not hear back from the Council again.
- Mrs X says XX has since left the school.
Mrs X’s complaint and the Council’s response
- Mrs X complained about the way the Council had handled XX’s case. She felt the Council had failed to abide by its statutory duty. She was upset that XX’s education had been disrupted by the Council’s decisions.
- The Council responded at stage 1 of her complaint, on 3 October 2018. It partially upheld her complaint that she was not advised of the Council’s decision regarding XX’s placement, in accordance with the SEND Regulations. It said:
- Mrs X had not been sent a letter after the review was held, informing her of any change to XX’s plan or whether the plan would remain as it was.
- An email was sent to Mrs X on 23 August 2018 to inform her of the decision to give XX notice on his placement at School P.
- Even though Mrs X said she was shocked by the decision, there had been long-standing discussions about XX’s placement and a number of alternative options had been discussed.
- The Council did not uphold Mrs X’s complaint that the Council had failed to provide XX with a full time education since ending his placement at School P.
- It said that prior to ending his placement at School P, it had discussed education at another placement, School D. It accepted that Mrs X did not think it would be wise for XX to visit School D. But it said that School D had confirmed it would be able to provide education for XX.
- It also said that School P had said it would be able to provide support to XX on visits to alternate placements.
- Mrs X was concerned that the Council failed to inform her it had ceased XX’s EHC plan. However, the Council never made a decision to ‘cease’ XX’s plan. But, it is understandable that Mrs X was confused about what decisions the Council had or had not made. It was not clear and there were a number of failings in its communications with her following the annual review meeting in June 2018, as I address below.
Failure to inform Mrs X of the outcome of the review meeting
- The Council has accepted it should have done this formally. However, it says it did inform Mrs X in an email in August 2018 that XX would have to leave School P.
- But this information was provided after the second panel hearing in August 2018. Mrs X was not written to following the panel decision in June 2018. C1 informed her by email on 4 July 2018 but she did not provide her with all the details she needed to properly understand what that notice period meant. She did not know, for instance, when it would start. On the evidence so far seen, this was fault causing injustice.
Failure to provide Mrs X with an amended EHC plan
- When the Council first informed Mrs X of the notice period she was told she would receive a copy of the amended EHC plan as soon as possible. The Code says that if an EHC plan needs amending the Council should start the process without delay. Mrs X asked for a copy of the amended plan seven times. As I point out in para 37, she was also told on at least five occasions, that the Council was working on the amendments. The Council never sent Mrs X an amended plan to reflect the decisions made at the June or August 2018 panel meetings. Even though Mrs X told the Council that she wanted to get the ‘ball rolling’, and appeal its decision, the Council still failed to send her the amended plan. On the evidence seen so far, this is fault causing injustice. I have made a recommendation to acknowledge this fault.
- The Council also failed to send Mrs X an amended plan to reflect the changes made following the December 2018 review for over eight weeks. This is fault causing injustice.
- When Mrs X complained about the above, the Council did not uphold her complaint because it said that since the documents provided to the Council did not state that an amendment was needed, the process was not triggered. This does not explain the Council’s failure. The Council was well aware that the EHC plan needed amending following its decision to withdraw funding.
- Further, as detailed above, Mrs X was told several times that an amended plan would be provided. It never happened. I have seen two other copies of papers dated 18 June 2018, which set out that an amendment was required. The Council received at least one of these copies on 29 June 2018. The Council’s unwillingness to accept its mistake in this regard is disappointing. It added to Mrs X’s frustration and caused her further injustice. I have made a recommendation to acknowledge this poor complaint handling as it compounded the other failings in this case.
Failure to provide Mrs X with a final EHC plan
- Mrs X says the Council has failed to provide a final EHC plan. This is fault. As the situation has moved on somewhat from when Mrs X first lodged her complaint and XX has now been left this placement, I am unable to comment on any injustice caused.
Failure to provide XX with an education for the month of September 2018
- The Council says it had set up other provision for XX. But it had not done so before the panel cut 1:1 funding for XX. It had still not confirmed any alternative provision when the panel met again in August 2018 and confirmed its original decision.
- In June 2018 the panel said that other options should be explored. The Council did try and arrange another placement, but it did not demonstrate that this was done while considering the views of XX or of Mrs X. Both were clear they wanted XX to remain at School P. If there were good reasons why their views should not have been listened to, I would have expected to see records of a full consideration of these views, at both panel meetings. However, there is no evidence their views were properly considered.
- The notes at the August panel meeting show the Council was aware that without 1:1 funding, School P would give notice on XX’s place at the school. Given this knowledge I would have expected the notes to also demonstrate what alternative it considered was in place. They did not. On the evidence seen so far, the Council failed to consider how cutting XX’s funding would impact on the provision his EHC plan said he required. This is fault and caused an injustice.
- School P asked for funding for only two months of the term. It would have given the Council the chance to set up alternative education that both Mrs X and XX were engaged with. Instead, with nothing suitable in place, XX was out of education for a month. This is fault.
- Mrs X said this break affected XX negatively. She says he felt he had been abandoned. It is hard to say how much the Council’s decision affected his education. He was not engaging very well at School P at the time the decision was made. But the evidence from the educational psychologist is that he felt he had been ‘chucked out’ and that he was visibly upset by the events. The fault caused him an injustice. I have made a recommendation to acknowledge the anxiety the Council’s decision-making caused him.
- The Council says it spoke with School P to ask what could be done to support XX and confirmed that the school would help Mrs X visit other placements. The mere fact that the Council was aware XX needed to visit other placements indicates it was aware he did not have a suitable placement set up. Further, Mrs X says School P was only able to provide minimal tuition during this period. It appears the Council was aware there was an issue because C1 had to discuss the situation with the head of service in order to address the situation. A decision was made to reinstate the funding. This decision was not made at a panel hearing. It appears to have been an emergency decision made to rectify poorly considered decision-making throughout the summer period.
- Within one month of my final decision, the Council should:
- Apologise to both Mrs X and XX, for the failure to take on board their views when making decisions around XX’s education and for the failure to provide an amended EHC plan after the June and August 2018 panel review meetings.
- Pay Mrs X £500 to acknowledge the distress and inconvenience she experienced by the Council’s repeated failure to provide her with an amended EHC plan.
- Pay XX the sum of £400 to acknowledge the failure to provide suitable and adequate education for a month and the distress the Council’s poorly considered decision-making caused him.
- Review its panel procedure and ensure that thorough records are kept of all panel meetings.
- Review its business processes to ensure that amendments to plans are completed as swiftly as possible in line with the guidance in the SEND Code of Practice so parents are fully aware of the position and able to engage further in the process.
- I have found the Council at fault and made recommendations to remedy that fault. I have now completed my investigation.
Investigator's decision on behalf of the Ombudsman