Summary: Mrs X complains the Council was at fault in carrying out a social care assessment of her son’s needs and in transferring his Education Health and Care Plan to the Council’s own Plan. The Ombudsman has found no evidence of fault in the way the Council dealt with the social care assessment and transfer of the Plan. The Ombudsman cannot investigate Mrs X’s complaints about the school her son attended as the law prevents the Ombudsman from investigating such matters. The Ombudsman cannot investigate Mrs X’s complaints about the lack of educational provision to her son while he was out of school and the Council’s decision to name the school her son attended as his current educational provider in the Plan it produced. Mrs X has appealed to a tribunal about the named provider and commenced legal proceedings against the Council. The law prevents the Ombudsman from investigating in such circumstances.

The complaint

1. The complainant whom I shall refer to as Mrs X complains there were failings in the way the Council responded to her concerns about the education provided to her son, Y by a school. And the Council’s actions when transferring Y’s education health and care plan (EHCP) from her previous council to its own plan.
2. In particular Mrs X complains;

• The Council failed to investigate her concerns about practices at the school.
• The school failed to make a referral to a home tuition company to provide support whilst Y was out of school.
• The Council delayed in carrying out a social care review assessment of Y’s social care needs as part of an EHCP. Mrs X says the Council sent an inexperienced social worker to carry out the social care assessment. And when social workers carried out a Resource Allocations Questionnaire (RAQ) they altered the scores to reduce the likelihood of her family receiving short-term respite breaks.
• The Council failed to keep to the timescale for transferring Y’s EHCP into its own EHCP and delayed in producing an Amended Plan.
• The Council named Y’s current school as the educational provider in Y’s recent EHCP despite Mrs X’s concerns about the school and its educational provision.
• The Council failed to provide interim support while Y has been out of school.

3. So, Mrs X says Y has been out of education and without support since October 2018 causing distress to Y and the family.

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The Ombudsman’s role and powers

4. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
5. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’)). We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
6. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)
7. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
8. 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)

Summary of relevant guidance

9. A child with special educational needs may have an EHCP. This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the SEND Tribunal can do this.
10. When a child with an EHCP moves area, the current Council must transfer the EHCP to the new Council. The new council then becomes responsible for maintaining the plan and the special education provision specified in it. It is expected for the child to continue to attend the educational institution named in the EHCP. But where attendance is impractical the new council must place the child temporarily at an appropriate placement.
11. The new Council can bring forward the arrangements for the review of the plan. And conduct an assessment regardless of when the previous assessment took place. It must tell the parent within 6 weeks of the date of transfer when it will review the plan or whether it proposes to reassess. Or review the plan within 12 months of the plan being made. Or review the plan within 3 months of it being transferred.
12. After review or reassessment, a council can decide whether to keep the EHCP the same, make changes or cease to maintain it. A parent can appeal to the SEND Tribunal about the decision the council makes.

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How I considered this complaint

13. I have read the papers submitted by Mrs X and spoken to her about the complaint. I considered the Council’s comments on the complaint and the supporting documents it provided. I have explained my draft decision to Mrs X and the Council and considered the comments received.

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What I found

14. Mrs X and family moved into the City Council’s area in July 2018. Y has a diagnosis of severe Autism and other medical conditions. He attended a school I shall call Beech School. It is an independent school providing for children at the more severe end of the autistic spectrum. The school has small class numbers, high adult to pupil ratio, space and specialist resources. The school can also make expert, custom-made provision for young people with a-typical autism like Y. Y was placed at the school by the previous council and named in his EHCP.
15. Mrs X’s former council told the City Council of her move. Mrs X also contacted the Council’s social services and asked for a social care assessment having moved to the area. The Council accepted the request and arranged a social worker to carry out a home visit. The Council says a social care assessment takes 45 days to complete. The social worker with a Disabled Child Support Worker carried out the assessment on 22 August 2018. The social worker issued the assessment in October 2018. The Council says this was within the 45-day timescale. Mrs X disagreed with the conclusions and recommendations in the assessment.
16. The social worker and support worker also carried out a RAQ. The Council uses a RAQ to calculate the indicative budget for a child or young person after an assessment. And it is where some unmet needs are identified which require short break services to be put in place.
17. The Council says during the assessment Mrs X asked for a copy of the template used for the RAQ. The social worker shared it and Mrs X completed her own RAQ score. So, there were two final scores at the end of the visit. Mrs X calculated the support needed at pathway 4 and the social worker who calculated it at pathway 2. The Council says the social worker did not change the scores as Mrs X alleges but rather there were two significantly differing separate scores. The Council says it calculates pathway 4 where a young person has very complex needs and whose ‘respite’ is jointly funded by the NHS which is not the case with Y.
18. In August 2018 Mrs X raised concerns with the Council about Beech School and educational provision for Y. The Council’s SEN officer dealing with Y worked with Mrs X and Beech School to try and resolve the issues raised. In August 2018 the EHCP review team set a review date of 21 December 2018 for Y’s EHCP at the latest.
19. The SEN officer arranged a mediation meeting between Mrs X and Beech School in October 2018 to focus on the EHCP and any potential gaps in provision. The officer also intended to start creating a proposed amended EHCP. The officer reported the meeting did not go as planned due to Mrs X voicing criticisms of recent assessments including the social care assessment, events and concerns about the school.
20. The school considered it could meet Y’s needs and said it was making the provision in the EHCP. Mrs X asked the Council to investigate the school’s practices. The Council explained it could not do so as the school was an independent special school, so Mrs X needed to complain directly to the school’s governing body.
21. In September 2018 the EHC team confirmed the actual date of Y’s EHCP review needed to take place by 25 November 2018.
22. Mrs X made a formal complaint to Beech School in September 2018. Mrs X complained to the Council about the social worker’s lack of knowledge and the social care assessment produced. The Council says it has no concerns about the social worker’s knowledge. It says social worker was trained and carried out the home visits with a support worker. The social worker also spoke to a senior practitioner about the visits and assessment.
23. The Council says it cannot share a social care assessment report with other services without parental consent. So social workers could not share the social care assessment report with the SEN team as Mrs X was disputing the content. The Council tried to meet with Mrs X to discuss her complaint and it took several weeks for Mrs X to be available.
24. Mrs X did not send Y to Beech School in November 2018 after the autumn half term. During November 2018 to January 2019 the Council tried to put home tuition in place with two hours a day provided by Beech School. The Council says Mrs X refused it as she felt Y would not engage with tutors connected to the school. The Council’s SEN team asked the school to commission a home tutoring company to work with Y. The school agreed to do this but as it was not done quickly the Council made a referral directly with the school to pay the costs.
25. In January 2019 the Council served notice on Beech School to end Y’s placement in April 2019. This was because it considered the placement could not move forward because of Mrs X’s strength of feeling.
26. The home tutoring company carried out a home visit in February 2019. It concluded Mrs X’s property was not suitable for home tuition to take place. Mrs X also stated she would not allow tutors to take Y out of the house to receive his sessions. So, the company said they could not provide for Y.
27. Mrs X’s advocate told the SEN officer Mrs X was employing a home tutor to work on science projects with Y and it was going well. The advocate asked if the Council would pay Mrs X a personal budget to allow this option to continue. The officer agreed to consider it further but needed more information from Mrs X. The Council says Mrs X has not provided any information, so it has been unable to pursue the option further.
28. A senior social worker visited Mrs X at home in December 2018 to discuss her complaint about the social care assessment. The social worker offered Mrs X an interim package of support while social care addressed the issues with the assessment. The Council says Mrs X refused the services saying she did not trust anyone else to look after her children. In addition, Mrs X refused to let her children go out with a link worker to a group she was not allowed to stay at. The officer offered Mrs X a reassessment or a package of support in place while the Council looked at carrying out a reassessment later. After a few weeks Mrs X agreed to a social care reassessment.
29. Social workers carried out the reassessment in February 2019 and sent the assessment report to Mrs X on 25 March 2019 within the 45-day timescale. Mrs X emailed her agreement to the assessment and recommendations made. The report was sent to the SEN team so the content could be included in drafting a City Council proposed Amended and/or Final Amended Plan for Y.
30. Two experienced disabled children’s support workers visited Mrs X to compete another RAQ. The Council says it takes on average an hour to complete but officers could not complete the RAQ as Mrs X challenged everything officers said, and the score given. The officers left after two and a half hours. Mrs X then said she no longer agreed with the second social care assessment and refused to continue with the RAQ.
31. The Council says social workers completed the assessment and the professionally completed RAQ concluded Y’s outstanding needs would be at pathway 2 level of support for the family. The same result as the RAQ completed by a social worker in August 2018.
32. The Council says there has not been a request either an assessment or reassessment of Y’s educational needs. For the transfer of the plan the Council has used the EHCP written by the previous Council following an EHC Needs assessment, some associated assessment reports and comments on the plan from Beech School. It has also used a range of reports mostly commissioned by Mrs X, to create a City Council EHCP.
33. The Council says the delays in issuing its proposed amended plan after the family’s move to the area were at Mrs X’s request. It was not due to delay by the Council carrying out a second social care assessment or due to the need for a second assessment. The Council says Mrs X and her advocate wanted to remain focused on getting educational provision for Y rather than working on the draft plan. Mrs X also wanted to wait to receive all the outstanding reports so there would be just one proposed amended draft to work on rather than several drafts. The Council was waiting for the second social care assessment, but it was one of several outstanding reports including some from private professionals commissioned by Mrs X.
34. In April 2019 the Council issued a proposed amended EHCP for Y despite Mrs X asking it not to. This was because of its concern the proposed amended plan had not been issued. Mrs X wanted to see the Plan and the Council shared it with her before it was completed and ready to issue as a Proposed Amended EHCP. The Council advised it was still a draft. The Council received the outstanding reports while the proposed amended Plan was with Mrs X and officers added the information to it.
35. Mrs X asked the Council to issue the Plan in whatever form so she could appeal to the SEND Tribunal. The Council issued the final amended EHCP in June 2019. The Council named Beech School as the educational provider. It considered the school could meet Y’s needs and make appropriate provision for him. The ECHP also included the social care provision the Council assessed Y and his family needed.
36. Mrs X exercised her right of appeal to the SEND Tribunal as she disagreed with the EHCP and the Council’s decision to name Beech School. Mrs X has also started Judicial Review (JR) proceedings against the Council. The JR challenges the Council’s decision to specify Beech School within the EHCP. It asks the Council makes an interim support package to meet Y’s needs. The JR refers to the Council’s failure to provide educational support for Y while he was out of school.

Analysis

37. Mrs X complains the Council has not investigated her concerns about the practices of Beech School. The Council explained it was due to the school being an independent one and so Mrs X would need to complain to the school’s governing body. Paragraph four explains we cannot investigate what happens in schools and so we are also unable to investigate Mrs X’s concerns about the school. We are also unable to investigate Mrs X’s concerns the school did not make a quick referral to the home tuition company or provide home tuition while Y was out of school.
38. The documents show the Council initiated the home tuition referral once it realised the school had not acted quickly. The delay in making the referral was unfortunate but I cannot say it was due to any fault by the Council.
39. The documents provided by the Council show it carried out the social care assessments within the set 45-day timescale. So, I do not consider there has been any fault by the Council in the way it carried out the social care assessments. Mrs X considered the first social worker inexperienced, but it is for the Council to decide whether an officer can carry out such assessment. The Council was satisfied with the social worker’s qualifications and supervision received during the assessment.
40. Mrs X disagrees with the outcome of the social care assessments and the recommendations made alleges the social workers altered the RAQ scores when considering the family’s entitlement to short break. But this and the content of the social care assessment from part of Y’s EHCP. And so, the Council’s decision on the amount of social care provision Y needs can be appealed to the SEND Tribunal as well. As paragraph five explains we cannot investigate a complaint if some has appealed to a tribunal. As Mrs X has done so we cannot investigate her concerns about the content, outcome and social care provision the Council has specified.
41. Mrs X complains the Council did not keep to the agreed timescales when competing the transfer of the EHCP to its own plan. The Council’s EHC review team said it should be done by the end of November 2018. The documents show the Council did not comply with this timetable. But the documents show the Council took regular and robust action to try and progress matters. The Council has provided evidence of delays caused by the disagreement over the social care assessment, Mrs X’s unavailability to discuss matters and her requests to delay issuing the proposed amended plan. So, while it is unfortunate the Council did not comply with the set timescale, I do not consider it is due to any fault by the Council.
42. Mrs X disagrees with the Council’s decision to name Beech School in the Amended Plan. However, Mrs X has exercised her right of appeal to the SEND Tribunal who can consider her concerns about the Plan and placement. Mrs X’s JR proceedings also included her concerns about the placement. As paragraph five explains we cannot investigate a complaint if some has appealed to a tribunal. Mrs X has appealed and started judicial proceedings and so we cannot consider her concerns about the Council’s decision to name Beech School in the EHCP.
43. Mrs X complains the Council has failed to provide interim support for Y while he has been out of school. Where there is a right of appeal to SEND about a placement decision, the Court has decided the decision, and the consequences of it, are matters which are ‘inextricably linked’. (R (on the application of ER) v the Commissioner for Local Administration, 2014). The Ombudsman cannot, therefore, investigate either the decision subject to the appeal or the consequences arising from the decision. This means we cannot consider those periods where Mrs X has exercised her right of appeal. This includes any concerns she may have about the education provision being made for Y while he is out of school and she is waiting for the appeal to be heard.
44. For those periods outside of the appeal request the Council has provided evidence to show it offered educational provision and support to Mrs X while Y was not at school from November 2018. But Mrs X refused the support. So, I do not consider there has been any fault by the Council as it ensured that educational support was offered and available to Y.
45. However, Mrs X ‘s JR refers to a lack of interim support and requests the Council provides immediate interim support for Y. I consider Mrs X’s concerns about interim support for Y since November 2018 are inseparable from her request for support while waiting for the Tribunal and JR hearings. So, I do not consider that we can consider Mrs X’s concerns any further about the lack of interim support.

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Final decision

46. I am completing my investigation. I have found no evidence of delay by the Council in carrying out a social care assessment of Mrs X’s son. And no evidence of delay in transferring Y’s EHCP to a City Council plan.

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Investigator's decision on behalf of the Ombudsman