Summary: Mrs X complains on behalf of her daughter, Y and states the Council has failed to arrange suitable provision to meet her special educational needs. She also complains it did not address her concerns about this matter in a timely manner, if at all, and it failed to ensure Y was properly safeguarded whilst at school. The Ombudsman has found the Council was at fault for failing to ensure suitable alternative educational provision was given to Y between December 2015 and April 2016. It was also at fault for not following statutory guidance and taking too long to transfer Y’s Statement of Special Educational Needs to an Education, Health and Care Plan. The Council’s faults resulted in Y losing educational provision therefore we recommend it makes a financial payment to her to remedy this injustice. We also recommend it apologises to her and her family for what happened. The Council has accepted our findings and will carry out our recommendations.

The complaint

1. Mrs X complains on behalf of her daughter, Y and states the Council failed to ensure the provision detailed in her Statement of Special Educational Needs (SSEN) was given when the family moved to the area in December 2015. She says it did not ensure Y was provided with a full-time education between December 2015 and April 2016, and it failed to identify that she was effectively missing in education during this period. Similarly, she says that the failure relating to the provision of full-time education has been ongoing, extending into late-2018, and the Council has consistently failed to ensure the provision detailed in either Y’s SSEN or Education, Health and Care Plan (EHCP) was delivered.
2. In addition, she says the Council delayed when responding to her correspondence about these matters, if it did respond at all, and it failed to follow the relevant policies and procedures when dealing with Y’s case. Furthermore, she complains it did not ensure Y was properly safeguarded whilst at school as it failed to ensure her teaching assistants were given the training they needed to support her, specifically in fire evacuation and manual handling.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
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

7. I have:
• Read this complaint and the documents Mrs X submitted in support of it.
• 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 and considered the comments that were made.

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What I found

8. A child with Special Educational Needs (SEN) may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. Local authorities are responsible for writing EHCPs and ensuring they are reviewed on an annual basis. They are also responsible for ensuring the provision detailed in plans is delivered.
9. EHCPs were established when the Children and Families Act came into force on 1 September 2014. Prior to this date, local authorities used a Statement of SEN (SSEN) to document a child’s needs and how these would be met. Like EHCPs, they were required to ensure the provision detailed in these statements was delivered.
10. Local authorities were required to transfer all children and young people from SSENs to EHCPs by 1 April 2018, using the ‘transfer review’ process. During this process, they were required to adhere to the 2001 SEN Code of Practice until the transfer had been completed. This outlines what a local authority should do when a child with a SSEN issued by another local authority moves into its area. The guidance states:

“The new authority may, on the transfer of the statement, bring forward the arrangements for the review of the statement, and may conduct a new assessment regardless of when the previous assessment took place. The new authority must tell the parents, within six weeks of the date of transfer, when they will review the statement and whether they propose to make an assessment...”

The Education Act 1996 and alternative provision

11. 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.
12. Guidance issued by the Department for Education states:

“Responsibility for the alternative provision used rests with the commissioner. The nature of the intervention, its objectives and the timeline to achieve these objectives should be agreed and clearly defined. Progress against these objectives should be frequently monitored, appropriate reviews should be built in and continuity into the next stage in the child’s life should be considered.”

What happened

13. In mid-August 2015, Mrs X, her husband and Y lived in a county north of London. At that time, their local authority issued Y an amended SSEN following an annual review. This stated she had a diagnosis of spinal muscular atrophy, used a wheelchair, and was reliant on adult support for all her self-care needs. It also stipulated she would receive one-to-one support at all times from a named member of school staff so her educational needs could be met. Moreover, it stated she required two-to-one care for all medical interventions and a back-up carer should be available to provide immediate support when required. At the time, Y was aged 12.
14. In mid-September 2015, Dorset County Council wrote to a local school stating the family were scheduled to move to the area later in the year. It asked that Y be considered for a place at the school and gave a brief overview of her needs.
15. A week later, the Council emailed the school and confirmed it could start the process to recruit Teaching Assistants (TAs) to support Y. It also stated its Occupational Therapy (OT) Team could not assess her until she moved to the area and it had received a referral from the previous local authority or a medical professional.
16. At the beginning of October 2015, a multi-agency meeting was held to discuss Y’s move to the area. The minutes of the meeting show the Council felt it was unlikely she could start at the school until after the February 2016 half-term, due to delays in the TA recruitment and training process, and the need to make adaptations to the school building. An email sent at the time by the Council also notes that Mrs X was content with her daughter being educated at home for “an interim period”.
17. In the middle of the month, the school emailed the Council and outlined its plan to recruit and train TAs so Y could start by half-term.
18. At the end of November 2015, Mrs X wrote to the Council and confirmed the family would be moving to the area a week later.
19. At the beginning of December 2015, the family moved to the area. On the day before they moved their previous local authority issued Y a new amended SSEN. This contained the same provision that was in her previous statement.
20. In the middle of the month, one of the Council’s social workers visited the family to complete an assessment of Y’s needs. After her visit, she emailed one of her colleagues and noted Y’s start at school in February 2016 had been delayed because the TA it had hired to support her had decided not to take up the position. The social worker also stated Mrs X had requested home tuition for her daughter until she could start attending school.
21. A few days later, the Council emailed the school and said it had agreed to fund two TAs from an agency whilst the latter restarted the recruitment process to find two permanent school-based TAs.
22. At the beginning of January 2016, a home tutor commissioned by the Council started delivering six hours of tuition per week to Y. Following a request from Mrs X, this was increased to 10 hours per week at the beginning of February.
23. At the beginning of March 2016, the Council emailed the school after speaking to Mrs X. It said she was not content with the type of work the school was sending home and was concerned Y was falling behind her peers. It also noted she had asked for details of what was being taught in school, requesting copies of class handouts and details of the book her classmates were reading in English.
24. A few days later, Y stated she wanted the privately commissioned, external provider which supported her at home to also support her in school. The Council subsequently agreed to fund a carer from this provider, as well as fund a full-time TA to provide back-up support. Mrs X highlights this was only meant to be a temporary measure.
25. In mid-April 2016, Y started attending school. The Council agreed to continue funding home tuition to cover any days which the external provider could not support. The school also agreed to source in-house back-up provision as a contingency.
26. Toward the end of May 2016, the Council noted Mrs X had raised concerns the external provider was not able to support Y on Tuesdays and Thursdays throughout June. It also noted she had requested a meeting to discuss the matter but highlighted Y had only missed one day of school since starting in April because of a lack of external provision.
27. At the beginning of June 2016, the Council, Y’s school, Mrs X and the external provider attended a planning meeting. The minutes of the meeting state there had been two occasions since April when Y was unable to attend school due to a lack of support from the external provider. Similarly, it was noted there were no back-up staff in place within the school to support Y in these circumstances. The school highlighted it could not compel its staff to undertake medical duties but would recruit someone to fill this role.
28. During the meeting, Mrs X raised concerns about the home tuition that had been provided to Y to date. She said her daughter had not had access to the national curriculum and the school had not supported this, despite her requesting access. She also discussed concerns Y had raised about forthcoming exams.
29. In mid-June 2016, Mrs X emailed the school and copied the Council into her message. She said the external provider was unable to support Y the following day and asked when back-up staff would be trained. In response, the Council stated none of the school staff had volunteered to undertake medical duties and the process to recruit someone was ongoing. It added the school was overseeing this process and it was hoped someone would be in post from the beginning of September.
30. At the beginning of July 2016, a meeting was held at Y’s school. It noted it was struggling to recruit someone to support Y but was scheduled to interview four candidates that week. It was also noted that by the end of the week, she would have missed four days in total due to a lack of available support.
31. At the end of November 2016, the transfer review of Y’s SSEN took place. The paperwork highlighted a TA had been appointed by the school at the beginning of September 2016 to support Y, alongside the external provider.
32. In February 2017, one of the carers employed by the external provider went on maternity leave.
33. Toward the end of October 2017, the Council issued Y her final EHCP. This stipulated that a TA and support from a carer would be made available to her throughout the school week. It added the school’s SEN Coordinator and Y’s class teacher would oversee these arrangements.
34. At the end of November 2017, a meeting to conduct the annual review of Y’s EHCP took place. The paperwork noted the external provider was supporting her in school three days per week and the TA was covering the remaining two days. Y expressed concern the external provider was not employed on a full-time basis but understood the reasons why this level of support was not provided. The school noted that Y’s attendance was affected whenever the TA or carer were absent. The external provider agreed it would recruit more staff to ensure it could meet Y’s needs.
35. In mid-January 2018, Y raised concerns about her TA’s behaviour towards her, saying she was being bullied and undermined. Both Mrs X and the school made the Council aware of this issue. Consequently, the Council provided both parties with advice about how to proceed. It also noted the external provider was able to support Y four days a week, from Tuesday to Friday, with the TA covering Mondays. However, it stressed that Y might not be able to attend on Mondays if the issue regarding the TA was not resolved, as there were no other staff to support her.
36. Toward the end of the month, the Council emailed Mrs X after she had requested home tuition to cover the days when Y could not attend school. It stated it could not grant her request as the school had agreed to provide online learning for Mondays and any other day the external provider could not support Y.
37. In mid-February 2018, the Council met with the school. It said it had agreed to provide a home tutor on Mondays for two to three hours to supplement the online learning being directed by the school. It also raised concerns about the current arrangements and the external provider’s ability to provide Y with continuous, reliable support. Consequently, it proposed to recruit two new school-based TAs for the long term so the external provider was no longer needed.
38. At the beginning of March 2018, the Council noted a second external provider was able to support Y on a Monday in the short term. Consequently, it cancelled the home tuition it was arranging.
39. Toward the end of the month, Mrs X emailed the Council after she had met with the school governors earlier in the week. She said it was clear the one-to-one provision that Y required had not worked effectively during her time at the school, adding her daughter wanted the external provider to continue supporting her.
40. A few days later, the Council responded to the concerns raised by Mrs X. It said she had stated on a number of occasions the current arrangements were not working so it had decided to implement a new system to better support Y. It explained how the new system would work and highlighted the proposed changes were supported by several professionals. It added the external providers would continue to support Y while the changes were implemented.
41. At the beginning of May 2018, the Council, Mrs X and a number of health and social care professionals attended a meeting to discuss Y’s case. It was noted there were ongoing issues relating to the external providers’ ability to meet her needs. However, the school highlighted it had recently recruited three TAs who would start once the necessary administrative processes and checks had been completed.
42. At the end of the month, the Council noted that one of the individuals who had been recruited had rejected the offer of employment.
43. At the beginning of October 2018, the school noted the two primary TAs who supported Y were off sick. It also noted the two back-up TAs were yet to complete their training and a further member of staff was still to be appointed. Consequently, the school requested that Y did not attend school and remained at home.
44. In the middle of the month, Mrs X submitted a complaint to the Council. She said the provision in her daughter’s EHCP had not been met since the family moved to the area in 2015 and questioned why the necessary arrangements had not been made before their move. She complained Y was unable to attend school until April 2016 and said she had requested support from the school to supplement the home tuition the Council had arranged, but this was not provided. She added Y often missed school once she started attending because there was no back-up provision when her TA or carer were absent. Similarly, she said no provision was given when concerns were raised about her daughter’s TA at the beginning of 2018.
45. In addition, she said the school mishandled the process to recruit new TAs following the meeting in March 2018 and stated those that were eventually recruited did not receive the mandatory training needed to care for Y. She raised other concerns about the school and questioned the amount of time the Council had taken to transfer her daughter to a Dorset SSEN. In conclusion, she said these events had significantly affected their whole family and asked the Council to address the points she raised.
46. Toward the end of November 2018, a meeting to conduct the annual review of Y’s EHCP took place. When submitting her comments to inform the review, Mrs X raised some of the concerns she had detailed in her complaint to the Council. Other notes show she was unhappy with the lack of manual handling and hoist training being provided to TAs. The school accepted this was an issue and stated it would prioritise the matter.
47. At the beginning of December 2018, Mrs X contacted the Council and stated the school could not provide Y with support that day, despite her having an exam. Consequently, she said she took Y to her exam and sat through it with her, missing work. The Council subsequently called the school and it stated Y was offered the opportunity to reschedule her exam. It also said her TA would return to work the following day and it was waiting for two other members of staff to be approved to provide medical support.
48. The next day, the Council responded to Mrs X’s complaint. Regarding the time it took to arrange Y’s provision when the family moved to the area, it said significant arrangements needed to be made and these took longer than expected. However, it stated this process was necessary to ensure the correct support was put in place and highlighted there had been problems with TA recruitment. It also noted it had provided home tuition between January and April 2016 to address this issue.
49. It discussed the issues concerning the external provider’s ability to support Y on a consistent basis and stated it had subsequently agreed to fund three school-based TAs. It accepted this new system was still being put in place but felt it had done everything it could to support Y at school. Nevertheless, it did accept it failed to comply with statutory guidance when it transferred her SSEN to an EHCP and took too long to do this, which it apologised for.
50. In the middle of the month, Mrs X wrote to the Council to dispute the response to her complaint. She said it should have actively ensured the provision in Y’s EHCP was met given her medical condition and stated she would escalate the matter to the Ombudsman.
51. The following day, Mrs X submitted a complaint to the Ombudsman. In addition to the points already raised, she says the Council’s failures have had a massive impact on Y’s health, education, and development, as well as her ability to integrate and feel part of other groups, adding this all happened at a key stage of her education. In addition, she states the failures have had a detrimental impact on the family and affected their work, health, finances, and opportunities to spend quality time with one another. She says this all happened because of the time and effort they expended trying to resolve these issues, and the need to support Y at home when she should have been in school.
52. She feels it is difficult, if not impossible to remedy the injustice that Y and her family have suffered in this case. Nevertheless, she wants the Council to apologise to them all, acknowledging its failings and the impact these had on Y, her education, and the family as a whole. She also wants it to support Y’s request for a sixth form placement and transport that will enable her to attend this placement. Additionally, she wants it to make service improvements to ensure its failings do not reoccur, as well as make payments to recognise the following: the educational provision that Y lost; the expenses she incurred when arranging private tuition; the distress the Council’s actions caused the family; and their time and trouble in making this complaint.

Analysis

53. Mrs X states the Council failed to ensure the provision detailed in Y’s SSEN was given when the family moved to the area in December 2015, therefore I have considered whether it delayed unnecessarily when making preparations for the family’s arrival. Following Y’s visit to her new school in mid-September 2015, I note the Council confirmed the recruitment of TAs could begin and this process was led by the school. I also note a multi-agency planning meeting was held at the beginning of October 2015 and it was anticipated that all the necessary arrangements would be in place so Y could start attending school around the February 2016 half-term. At this meeting, the Council stated it would arrange home learning to make up for any gaps in provision. The evidence I have seen suggests Mrs X was happy with these proposed arrangements.
54. It is clear the school encountered serious problems when trying to recruit the TAs Y needed. I see the Council was aware of this and in mid-December 2015 it stated it would pay for TAs sourced from an external provider whilst the school continued its attempts to recruit permanent staff. The external provider then had to ensure the staff its staff were appropriated trained and the necessary arrangements were made before it could support Y. Consequently, this caused a delay and she was unable to start school until mid-April 2016.
55. Considering the points above, I cannot find the Council was at fault for failing to ensure the necessary arrangements were place for Y’s arrival. It is evident significant preparations were needed once a school had been identified and this left little margin of error if things went wrong. Unfortunately, recruitment and training issues out with the Council’s control hindered the necessary preparations being made and delayed Y’s start date. I am concerned the Council’s OT Team stated it could not assess Y until she had moved to the area even though it had advance notice of her move, but this does not appear to have caused any delay. Nevertheless, I suggest the Council reviews the process its OT Team followed and considers whether a change in policy is required. Although I have not found fault in this case because there was no unnecessary delay, there was potential for me to do so. Therefore, it is in the Council’s best interests to consider this issue.
56. I have found the Council was at fault for failing to ensure suitable alternative educational provision was given to Y when she arrived in the area. It indicated in the multi-agency planning meeting that home tuition would be provided whilst the necessary arrangements were being made for her to attend school. However, it did not do this even though it was responsible for ensuring she was provided with a full-time education from the date she arrived in the area. It should have done this given it had advance notice of the move and only arranged home tuition after Mrs X had raised the issue after Y received a visit from a social worker in mid-December 2015.
57. The Council did provide six hours of home tuition per week starting at the beginning of January 2016, then increased this to 10 hours a month later. But it is clear little thought was put into why this level of provision was appropriate or whether it was equivalent to a full-time education. This is evident in an email the Council sent the home tutor provider around this time, which stated it would commission six hours provision to begin with and would “see how that goes”. It should have planned better and considered what provision Y needed to meet her learning objectives, given that guidance from the Department for Education states:

“Responsibility for the alternative provision used rests with the commissioner. The nature of the intervention, its objectives and the timeline to achieve these objectives should be agreed and clearly defined. Progress against these objectives should be frequently monitored, appropriate reviews should be built in and continuity into the next stage in the child’s life should be considered.”

58. I understand the Council has stated Mrs X was content with the home tuition arrangements that were made. However, it is important to remember that this was a very busy period for her family. They had just moved across the country to a new area and were still in the process of adapting to this move, therefore the Council should have eased their burden and undertaken the necessary planning to ensure Y’s educational needs were met.
59. I note that Mrs X states the Council also failed to ensure consistent provision was given after this period and the problem was ongoing. This part of her complaint relates to the availability of TAs and carers to support her daughter in school. The evidence shows that in March 2016, Y stated she wanted the privately commissioned, external provider which supported her at home to also support her in school. The Council funded this arrangement and tried to balance Y’s wishes with its duty to ensure she was provided with a suitable education. The evidence I have seen shows it tried to address any concerns that were subsequently raised by Mrs X or the school about the external provider. It later concluded the system was not working and proposed a return to the original plan of recruiting school-based TAs. I understand Mrs X and Y were opposed to this decision but the Council were in a very difficult, if not impossible position. If it did not change the system, it could be accused of failing to ensure adequate provision was put in place. When it did, it acted against Y’s wishes. Consequently, I cannot find the Council was at fault for failing to ensure consistent provision was given. Although, I do acknowledge that there were periods when Y could not attend school due to a lack of provision.
60. I have considered whether there were any prolonged periods when Y was absent from school due to a lack of support. The only period I have identified relates to the beginning of 2018, when Y’s relationship with her TA broke down. Between the end of January and mid-March 2018, Y was absent for approximately 14 days and mainly on Mondays. I note the Council asked the school to provide online learning during this period and started to arrange home tuition, but cancelled this after it decided to fund a second external provider to cover Mondays until it implemented the new support system. Considering these points, I cannot find the Council was at fault as it acted to ensure provision was given after it was presented with a unique and unexpected set of circumstances.
61. Conversely, I have found the Council was at fault for not following the statutory guidance in the 2001 and 2014 SEN Code of Practice. It did not write to Mrs X within six weeks of the family moving to the area, stating when it would review Y’s SSEN or whether it proposed to conduct an assessment. Similarly, it took too long to transfer her SSEN to an EHCP.
62. However, I have not found any fault in relation to the other parts of the complaint. The evidence I have seen indicates the Council responded to Mrs X’s communications and the responsibility for ensuring TAs were properly trained was held by the school. Regarding this latter point, Y’s EHCP stated the school would support her intimate care needs and it was responsible for the day-to-day management of the TAs. In addition, when this issue was brought to the Council’s attention at the annual review meeting in November 2018, it was agreed the school would address the matter. Moreover, the Council contacted the school in January 2019 to check the issue was being addressed after Mrs X had raised further concerns.

Injustice

63. To recap, I have found the Council was at fault for:
• Failing to ensure suitable alternative educational provision was given to Y between December 2015 and April 2016.
• Not following the SEN Code of Practice and taking too long to transfer Y’s SSEN to an EHCP.
64. Regarding my first finding, I have calculated that Y was not in school for approximately 13 weeks between December 2015 and April 2016, taking holidays into account. She received no provision during two of these weeks, six hours of home tuition per week during four of these weeks, and 10 hours for the remaining seven weeks. Considering the extent of this provision and the standard school week is considered to be 25 hours, Y lost approximately eight weeks of provision, or two months.
65. The Ombudsman’s Guidance on Remedies says we can recommend that local authorities make payments to complainants in recognition of any loss of provision. In this case, little planning was put into the level of provision given to Y during what was a period of significant change for her. Therefore, I recommend the Council pays her £600 to recognise this injustice. Regarding Mrs X’s request for a reimbursement of private tuition fees, I am unable to recommend this as she does not have any invoices or receipts documenting the provision that was given.
66. It is clear the Council’s faults caused the family distress therefore I recommend it also apologises to them for these faults and acknowledges the impact they had. I have not recommended a payment for time and trouble as I did not find the Council was at fault for the way it handled this complaint. I also understand that Y has now secured a place at her preferred sixth form placement and the Council has granted her request for transport. Therefore, I have made no recommendations in response to this part of the complaint.
67. Finally, I have considered whether to make service improvement recommendations to address the faults I have identified. Several recent Ombudsman investigations have identified similar failures to those described in this statement. I understand the Council has acted, or is in the process of acting on the recommendations made following these other investigations and a new Director of Children’s Services is working to address these issues. In addition, the Ombudsman is currently in the process of drafting a public report to highlight these issues. Therefore, I do not see any need to make widespread service improvement recommendations in this statement. Nevertheless, I have recommended that my final decision is shared with the Director of Children’s Services for learning purposes.

Agreed action

68. The Council has agreed to:
• Pay Y £600 in recognition of the educational provision she lost.
• Apologise to the family for its faults and acknowledge the impact of them.
• Share the Ombudsman’s final decision statement with the Director of Children’s Services for learning purposes.
69. It will carry out these recommendations within one month of the date of this final decision.

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Final decision

70. The Council was at fault for failing to ensure suitable alternative educational provision was given to Y between December 2015 and April 2016. It was also at fault for not following the SEN Code of Practice and taking too long to transfer Y’s SSEN to an EHCP.

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Parts of the complaint that I did not investigate

71. I did not investigate the parts of the complaint which relate to the actions undertaken by Y’s school. This is because the Ombudsman does not have jurisdiction to investigate complaints about what happens in schools.

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Investigator's decision on behalf of the Ombudsman