Kirklees Metropolitan Borough Council (18 016 766)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 03 Jun 2020

The Ombudsman's final decision:

Summary: There were delays by the Council in the implementation of alternative educational provision for a child out of school; and the provision, once implemented, was inadequate. There were also delays in the implementation of the child’s specialist provision, and confusion and delays in the Council’s complaint handling. The Council had already offered a partial remedy for these faults, but has agreed with the Ombudsman’s recommendation to increase its offer.

The complaint

  1. I will refer to the complainant as Mrs W. I will refer to Mrs W’s son as J.
  2. Mrs W complains the Council:
  • agreed her preferred school placement for J only after she had appealed the matter to the Tribunal, which has left her with legal costs;
  • did not make timely arrangements for alternative educational provision for J while he was not attending school;
  • did not make timely arrangements to ensure the delivery of J’s specialist provision;
  • did not agree to her choice of assessor and occupational therapist, which meant she had to pay for an assessment herself; and
  • did not handle her complaint about these matters properly.

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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. 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)
  3. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)

How I considered this complaint

  1. I reviewed Mrs W’s correspondence with the Council, J’s EHC plan, and two chronologies provided by the Council to detail the course of events relevant to this complaint.
  2. I also shared a draft copy of this decision with each party for their comments.

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What I found

  1. The following chronology is to give a basic overview of the events relevant to this complaint. It does not include every detail of what happened.

Education, provision and placement

  1. J is autistic. He also suffers from a number of learning difficulties and physical disabilities. He is subject to an Educational, Health and Care (EHC) plan, which sets out a range of specialist programmes.
  2. At the beginning of 2018, J was attending a mainstream school, to which I will refer as School 1. Mrs W did not consider this school could meet J’s needs, and had asked the Council instead to fund a place for him at a specialist autism school, to which I will refer as School 2. The Council said it considered School 1 was suitable for J, and Mrs W had appealed this matter to the Special Educational Need and Disability Tribunal (SENDIST).
  3. On 12 March 2018, J stopped attending School 1 due to his anxiety.
  4. The Tribunal heard Mrs W’s appeal over two dates, 23 March and 16 April. It issued its order on 8 May. It decided neither School 1 nor School 2 was appropriate for J, and instead added a description of the type of placement he needed to his EHC plan.
  5. On 16 May, Mrs W told the Council she believed J was able to access some education away from School 1. On 8 June, the Council implemented an interim package of alternative provision, consisting of two hours of teaching by a teaching assistant, and two hours of specialist provision, per week. This continued to the end of the school year on 20 July.
  6. On 25 July, there was a meeting between Mrs W and the Council, to discuss provision for J from September. There followed a series of meetings and correspondence between Mrs W, the Council and the school over the summer holiday.
  7. Due to confusion arising from a change in headteacher at School 1, J’s education package did not begin again at the beginning of the new school year, although his specialist provision continued.
  8. On 10 September, the specialist teacher agreed J should receive an additional hour of specialist provision per week, above that set out in his EHC plan. However, this was not implemented until 23 November.
  9. On 3 October, J began attending School 2 for three days per week. The Council agreed his placement there on 25 October, with a period of gradual transition.
  10. On 25 October, J’s attendance at School 2 was increased to four days per week.
  11. In January 2019, J began receiving Cognitive Behavioural Therapy (CBT), which had been agreed under his EHC plan. In May, the Speech and Language Therapy (SALT) element of J’s EHC plan was reviewed, and it was agreed the SALT approach at School 2 was appropriate for J’s need.

Complaint handling

  1. Mrs W submitted a complaint to the Council initially on 19 September. This was handed informally by the Council’s SEND manager, to whom I will refer as Mrs Y, who responded quickly.
  2. Mrs W submitted a further complaint to Mrs Y on 8 November, which was also handled informally and quickly by Mrs Y.
  3. Mrs W then submitted another complaint to Mrs Y on 19 November. She sent an email to Mrs Y on 31 December, chasing her response.
  4. Mrs Y responded in a letter on 3 January. She explained the Council had decided her previous complaints had not been dealt with under its formal complaint procedure; and so her latest complaint must be considered as being at formal stage 1. However, if Mrs W wished to escalate it further, the Council would then move straight to stage 3 of its procedure. Mrs Y also provided the substantive stage 1 response in this letter.
  5. Mrs W referred her complaint to the Ombudsman on 4 February. We decided her complaint was premature, and advised her to continue the Council’s complaint procedure, which she did.
  6. The Council gave a very detailed formal stage 3 response on 7 June. It upheld several elements of Mrs W’s complaint:
  • a delay of four and a half weeks in arranging alternative provision for J after the conclusion of Mrs W’s appeal to the Tribunal;
  • a delay of nine weeks in arranging dyscalculia provision for J, caused by administrative issues;
  • a failure to plan for J’s support before end of the 2017/18 school year;
  • a “potential” delay in J being placed on the waiting list for Cognitive Behavioural Therapy (CBT).
  1. The Council noted J was now attending School 2, and that he appeared to be settling in well. It said, given the complexity of the matter, it was difficult to consider an appropriate remedy for the elements of the complaint it had upheld, and noted some of the issues arose because of J’s health and anxiety.

However, having referred to the Ombudsman’s guidance, it concluded it was appropriate to offer Mrs W £600 to reflect a month’s loss of education in its entirety, and a further £250 for Mrs W’s time and trouble in pursuing the complaint.

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Legislative background

Children out of school because of medical needs

  1. Section 19 of the Education Act 1996 says “councils must make arrangements for the provision of suitable education at a school or otherwise than at school for those 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”.
  2. The Children, Schools and Families Act 2010 clarified that this should be full-time or part-time education if considered in the child’s best interests.
  3. Government statutory guidance of January 2013 ‘Ensuring a good education for children who cannot attend school because of health needs’ states that councils are responsible for arranging suitable full-time education for children who because of illness would not receive education. This applies whether the child is on the roll of a school and whatever the type of school the child attends.
  4. The 2013 Guidance says that children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. Where full-time education would not be in the best interests of a particular child because of reasons relating to their physical or mental health, councils should provide part-time education on a basis they consider to be in the child's best interests. Full and part-time education should still aim to achieve good academic attainment particularly in English, Maths and Science.
  5. The guidance stresses the need for medical information to inform the decisions about what education a child or young person may be able to manage. It states that “In order to better understand the needs of the child, and therefore choose the most appropriate provision, LAs should work closely with medical professionals and the child’s family, and consider the medical evidence. LAs should make every effort to minimise the disruption to a child’s education. For example, where specific medical evidence, such as that provided by a medical consultant, is not quickly available, LAs should consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
  6. The guidance states councils should ensure alternative education is arranged as quickly as possible and that it appropriately meets the needs of the child. It also stresses the need to include the young person, when age appropriate to do so, in the discussions and decisions reached about his or her educational provision.
  7. Councils should therefore:
  • provide suitable full-time education (or as much education as the child’s health condition allows) as soon as it is clear the child will be away from school for 15 days or more and make every effort to minimise the disruption to a child’s education;
  • address the needs of individual children in arranging provision and not withhold or reduce provision because of how much it will cost; meeting the child’s needs and providing a good education must be the determining factors;
  • while ‘full-time’ is not defined in law, pupils in alternative provision should receive the same range, quality and amount of education as they would receive in a maintained school;
  • if a child receives one-to-one provision the hours of face-to-face provision could be fewer than full-time, as the provision is more concentrated;
  • good alternative provision is that which appropriately meets the needs of pupils and enables them to achieve good educational attainment on par with their mainstream peers particularly in English, Maths and Science (including Information Technology). The alternative provision should also meet specific personal, social and academic needs including being suited to the pupil’s capabilities, give pupils the opportunity to take appropriate qualifications and involve suitably qualified staff who can help pupils make excellent progress;
  • evidence should be sought from medical consultants as to how much education it is appropriate for a child to receive and when they might be ready to return to school;
  • the pattern of complex and long-term health illnesses can be unpredictable. Councils should discuss the child’s needs and how these may best be met with the school, relevant clinician and parents, and where appropriate the child.

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Analysis

School placement

  1. Mrs W complains the Council triggered an unnecessary appeal to the Tribunal, by disputing her choice of placement for J at School 2, before conceding this several months later. She considers her costs arising from the appeal to be an injustice which the Council should remedy.
  2. The Ombudsman is barred by law from investigating this matter. This is because the question of J’s placement was put to the Tribunal, which brings it entirely outside our jurisdiction.
  3. Even if I could investigate this point, I would have to take account of the fact the Tribunal also did not agree J should attend School 2. I could not say, therefore, the Council was alone in not supporting Mrs W’s preferred placement at that time.
  4. The courts have also held the Ombudsman has no jurisdiction to investigate the consequences of a matter which has been put to Tribunal, nor can he seek to remedy any outstanding injustice which has not been resolved by the Tribunal. In this case, this means I cannot investigate any costs which Mrs W may have incurred through her appeal.
  5. Further to this, it appears Mrs W sought a costs order against the Council from the Tribunal, but was unsuccessful. As this matter has been ruled on by the Tribunal, I have no jurisdiction to investigate it anyway.
  6. I have therefore discontinued my investigation of this element of Mrs W’s complaint.

Alternative educational provision

  1. The Council has offered Mrs W a remedy of £600, to reflect that J missed education entirely for a period of four and a half weeks. This is the period between the conclusion of the appeal and the implementation of his tuition package.
  2. Mrs W says she considers J instead missed education from 5 March (when he stopped attending School 1, due to his anxiety at the upcoming appeal), and 3 October, when he began at School 2. This is a period of 21 weeks, excluding school holidays.
  3. For the same reasons I have given in the previous section, the Ombudsman is unable to investigate the period of time during which Mrs W’s appeal to the Tribunal was live, and cannot provide a remedy for any injustice which may have arisen due to events which occurred then. So I must exclude the period before the conclusion of the appeal from my considerations.
  4. This being the case, I can only consider the period in which J was entirely without education after the conclusion of the appeal. As the Council says, this is approximately one month, and its offer of £600 as a remedy for this is in line with the Ombudsman’s guidance.
  5. I also cannot agree with Mrs W that J was entirely out of education until he started at School 2 in October. There is some disagreement between Mrs W and the Council to what degree J was ready to receive education, but there is no dispute he could not return to School 1. There was also, at that time, no other school named as a placement, and so the only alternative was J to receive alternative provision in the manner he did.
  6. However, the Government guidance says education out of school should be, as far as possible, on a par with that received in school. There is no formal definition of ‘full-time’ education, and there is a recognition that 1:1 tuition can be delivered in fewer hours than equivalent education in a group setting.
  7. The guidance also says local authorities should seek advice from relevant medical professionals to determine how much tuition a pupil should receive, bearing in mind their particular circumstances.
  8. It is difficult to accept two hours per week as being the equivalent of a full-time education, even if it was 1:1 tuition. The guidance also specifies tuition should cover English, Maths and Science. But in J’s case, it appears his lessons were in English and Maths only.
  9. I can see from the correspondence between Mrs W and the Council the arrangements for J's tuition presented considerable difficulty, much of which related to finding a suitable location. It is not clear, therefore, whether it would have been practical for J to have received additional hours of alternative provision.
  10. But equally I cannot overlook that the level and breadth of the alternative provision J was receiving was inadequate, according to the Government guidance. And I am concerned there does not appear to be any recognition of this fact in the Council’s response to Mrs W’s complaint.
  11. On balance, therefore, I consider this an additional injustice which merits a further remedy.
  12. By my calculation there was a period of approximately two and a half months during which the only education J was receiving was this tuition – approximately six weeks from the implementation of the package to the end of the school year, and another month at the beginning of the next school year, before he began to attend School 2.
  13. I consider the Council should offer a further £100 per month to recognise this, which would bring the remedy to £850 for lost education.
  14. I have found fault causing injustice in this element of Mrs W’s complaint.

Specialist provision (not including Occupational Therapy)

  1. J’s EHC plan includes a range of specialist programmes. This includes, but is not limited to, dyslexia and dyscalculia tuition, Speech and Language Therapy (SALT), and Cognitive Behavioural Therapy (CBT).
  2. The Council has provided me with a chronology, showing the stages at which each element of the specialist provision was implemented, during J’s time out of school and after he started at School 2.
  3. I do not propose to describe and make detailed findings on each element. The process of implementing the specialist provision was extremely complex.
  4. I can see some elements of the specialist provision were to be delivered as part of a group, and so I accept these could not be implemented while J was out of school and subject only to 1:1 teaching. In addition, once J began attending School 2, the SALT element of his EHC plan was no longer applicable in the same way, because this is incorporated in the school’s specialist approach anyway.
  5. It is clear J’s situation presented some practical obstacles to the effective implementation of his EHC plan. But the fact remains J was not receiving significant parts of his agreed provision, for a long period of time. I note the Council has specifically accepted fault in a delay in providing some of J’s dyslexia teaching, and also in referring J for CBT, which meant it did not start until January 2019. While it has apologised for these, it has not offered an additional financial remedy.
  6. Drawing these points together, I consider the Council should offer a further remedy to Mrs W. Acknowledging the failure to fully implement J’s specialist provision was not entirely due to fault by the Council, I consider this remedy should be at the lower end of the Ombudsman’s range for loss of provision. I therefore recommend the Council offer £100 per month to Mrs W, between May and December 2018; which, excluding school holidays, comes to £500.
  7. I have found fault causing injustice in this element of Mrs W’s complaint.

Assessor and Occupational Therapist

  1. Part of J’s EHC plan was a ‘sensory diet’ and Occupational Therapy (OT) programme. The implementation of these was dependent on J being assessed.
  2. Mrs W complains she was offered a choice between two providers. She did not agree to either, because she had previous experience with one and did not trust it, and because the other had a lengthy waiting list. Mrs W says her request for a particular provider was rejected, and as a result she was required to pay for the OT assessment herself. This dispute also meant there was a delay in the implementation of this element of J’s EHC plan.
  3. The Council has explained it works in partnership with the local clinical commissioning group (CCG), an NHS body, to commission these services. I note Mrs W has complained to the Parliamentary and Health Service Ombudsman (PHSO) on the same matter, which did not uphold her complaint because it considered the CCG had made an adequate offer.
  4. This being the case, I do not consider I can make a separate finding on the Council’s role in this. The decision was not the Council’s alone to make, and I have no jurisdiction to investigate the NHS, especially as its actions have already been subject to investigation by the relevant Ombudsman.
  5. In any case, the Ombudsman’s role is to review the Council’s adherence to procedure. We are not an appeal body and have no power to overturn matters of professional judgement, unless there is evidence of clear procedural errors which have affected the outcome of the Council’s decision-making process.
  6. While I appreciate Mrs W’s reasons for her preferred provider, it is not evidence of fault that the Council did not agree to this. The Ombudsman cannot uphold a complaint solely because a person disagrees with a Council decision.
  7. I have found no fault in this element of Mrs W’s complaint.

Complaint handling

  1. Mrs W submitted a formal complaint direct to the SEND manager, Mrs Y, in September. Mrs Y responded on the same day, followed by a further exchange of emails. Mrs W then submitted a follow-up complaint to Mrs Y in November, who again responded quickly.
  2. However, the Council subsequently decided these exchanges did not form part of its formal complaints process. When Mrs W submitted a further complaint, Mrs Y then gave a formal stage 1 response. Mrs W’s next complaint was accepted immediately as a formal stage 3 complaint, but the response did not come until June, some five months after she had submitted it.
  3. In the general sense, and notwithstanding the findings I have made here, I consider the Council’s responses to Mrs W’s complaints (both informal and formal) to be of good quality. The stage 3 response, in particular, is extremely thorough and detailed, accepts fault on various points, and offers an adequate remedy for some of these points.
  4. However, it is evident the failure to treat Mrs W’s earlier complaints formally caused a degree of confusion and frustration, and also meant the whole complaint process took some nine months.
  5. This said, the Council recognised this in its stage 3 response, and offered Mrs W a £250 remedy for her time and trouble. I consider this an adequate offer and so make no further recommendation.
  6. I find fault causing injustice in this element of Mrs W’s complaint.

Agreed action

  1. During its internal complaints process, the Council had already agreed to offer Mrs W £600, to reflect the impact of J’s entire loss of education for one month. This is in line with the Ombudsman’s guidance on remedies.
  2. However, within one month of the date of my final decision, the Council has also agreed to offer Mrs W a further:
  • £250 to reflect the inadequate alternative educational provision J received while he was out of school;
  • £500 to reflect the failure to properly implement J’s specialist provision between May and December 2018.
  1. This makes a total of £1350 as a remedy for the impact on J. With the £250 the Council has offered for Mrs W’s time and trouble, this makes an overall total of £1600.

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Final decision

  1. I have completed my investigation with a finding of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman

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