The Ombudsman's final decision:
Summary: the Council left Mrs B’s son without education for 16 weeks, delayed completing a reassessment of his education, health and care plan and failed to take her complaint to stage two. An apology, payment to reflect the lost education, payment for Mrs B’s time and trouble, reminder to officers and agreement to review the Council’s feedback policy is satisfactory remedy.
- The complainant, whom I shall refer to as Mrs B, complained about the way the Council dealt with her son’s education, health and care plan. Mrs B complained the Council:
- failed to make suitable alternative full-time education provision for her son;
- delayed responding to her request for a special educational needs (SEN) placement;
- delayed completing a reassessment for her son’s education, health and care plan;
- delayed contacting her preferred schools until January 2019; and
- unreasonably refused to take her complaint to stage two.
The Ombudsman’s role and powers
- The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
- SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
- 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)
- 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)
- 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.
How I considered this complaint
- As part of the investigation, I have:
- considered the complaint and Mrs B's comments;
- made enquiries of the Council and considered the comments and documents the Council provided;
- considered Mrs B’s comments on my draft decision; and
- considered the Council’s comments on my draft decision.
What I found
- The Special Educational Needs Code of Practice 2014 (the Code) is a document that lays out councils' statutory responsibilities to children with SEN. The Code states at paragraph 9.192 that Councils have 14 weeks to reassess and issue revised education, health and care plans after a decision to amend them.
- The Council’ feedback policy details the stages for its consideration of complaints. The policy says if a customer is not happy with the response to their complaint at stage 1 they have 30 days to ask for it to be considered by the relevant Director. It says the customer will be asked to explain why they are dissatisfied with the outcome of the investigation. The Director will then respond to the customer within 10 working days. It says a complaint can be referred to the Ombudsman after completing both stages of the Council’s feedback procedure.
Chronology of the main events
- I understand Mrs B’s son attended a mainstream school in 2017. Mrs B’s son had an education, health and care plan which named a mainstream school as suitable provision. Mrs B had asked the Council to consult an SEN school. The Council did that on 1 August 2017. The school did not respond to that consultation.
- On 5 September 2017 the education welfare service told the Council Mrs B’s son would no longer be attending school and Mrs B would home educate him.
- Mrs B asked for an SEN school for her son again in April 2018. The Council’s SEN panel considered the request and declined it on 27 April.
- On 1 May Council officers visited Mrs B to discuss the SEN panel decision. Officers agreed to seek agreement from its SEN panel for a reassessment so the Council had an accurate picture of Mrs B’s son’s needs to inform a suitable education placement. The Council agreed for Mrs B’s son to receive home tuition while the reassessment took place.
- On 21 May the Council told Mrs B it had assigned a tutor who would start working with her son following the half term holiday. In response Mrs B said her son would not cope with full-time home tuition and she did not want home tuition. The Council explained this was an interim option until it identified a suitable educational setting. The Council said it could reduce the days on which the home tuition would take place if that was more acceptable.
- On 25 May the SEN panel agreed to a reassessment. The Council told Mrs B about that on 29 May. The Council explained it needed to get reports from all professionals involved with Mrs B’s son and said it had asked for those by the six week deadline set out in the code of practice. The Council asked Mrs B to submit any additional information before the six week date of 10 July. The Council told Mrs B it would decide by 7 August whether a new education, health and care plan was required and would confirm that to her at that point. Mrs B raised concerns about the length of time it would take.
- On 31 May Mrs B told the Council her son could only take part in home tuition one day a week due to her other son being at home the other four days.
- On 1 June the Council told Mrs B about the agencies it had asked for information to update her son’s education, health and care plan. The Council said it intended to issue an amended draft plan at the start of the autumn term and use that to seek a suitable education placement.
- On 12 June Council officers met with Mrs B and her advocate to discuss the reassessment and other concerns. The meeting recorded tuition was yet to start due to difficulties with Mrs B’s brother’s part-time timetable. Mrs B agreed to discuss the possibility of the tuition taking place in a children’s centre.
- On 15 June Mrs B provided her contribution to the education, health and care plan.
- One-to-one tuition began with Mrs B’s son at a children’s centre on 25 June.
- On 14 September the SEN panel agreed the education, health and care plan. Panel refused the request for a special school place as it considered it unsuitable for Mrs B’s son. The panel agreed to explore enhanced resourced provision.
- On 28 September the Council sent Mrs B the draft education, health and care plan. The Council told Mrs B its SEN panel had said it did not consider a placement at a special school appropriate as the plan did not show Mrs B’s son had a severe learning difficulty. The Council said panel had suggested a placement in an enhanced resourced provision at a mainstream primary school. The Council said panel had also suggested a placement in a maintained school with a bespoke package of support as an option.
- On 1 October the Council sent consultations to an enhanced resource provision and special schools, including Mrs B’s preference.
- On 4 October Mrs B provided amendments to the draft education, health and care plan. Mrs B asked the Council to consult with various schools.
- On 3 December Mrs B’s chosen school told the Council it would need to meet Mrs B’s son before it responded to the consultation. The school then told the Council on 17 January 2019 of its assessment that Mrs B’s son had higher ability than the other children in the class. The school said it had off-site arrangements with a mainstream primary school which would be suitable but did not have any places. The school told the Council Mrs B said she wanted to wait for a place.
- On 6 February the Council told Mrs B her chosen school could only provide its days of the timetable (2-3 days a week) subject to the employment of teaching assistant support until September 2019 when he could begin the full-time split placement. The Council asked whether Mrs B was happy with that and the Council would then send the case to the SEN panel for agreement.
- On 11 February the SEN panel refused the request for a split placement due to it previously considering Mrs B’s son unsuitable for a special school.
- On 25 February the Council issued the final education, health and care plan. The plan continued to record a mainstream school as the suitable type of school for Mrs B’s son. Mrs B appealed. The SEN Tribunal was due to hear the appeal in July 2019 but the Council has since conceded and issued a final education, health and care plan which names Mrs B’s chosen school.
- Officers met with Mrs B and her preferred school on 13 May. The SEN panel reconsidered the case on 17 May and agreed a split placement with the SEN school. I understand Mrs B’s son began transition days at the SEN school on 21 June 2019 with the plan for him to begin the split placement in September 2019 on a gradual reintegration programme.
- Mrs B put in a complaint on 30 October 2018. Following contact with Mrs B to agree the nature of her complaint the Council responded to the complaint on 21 November. The Council upheld four of the complaints and partially upheld another four. The Council offered Mrs B £400 for nine weeks of education Mrs B son had missed between 1 May 2018 and 10 October 2018 and an additional £150 for the stress this caused her.
- Mrs B asked the Council to move her complaint to stage two on 23 November. The Council declined as it did not consider stage two would produce a different outcome. The Council offered to increase the payment to £750 to reflect additional missing education provision between 10 October 2018 and 4 December 2018.
- Mrs B again asked the Council to move her complaint to stage two. The Council again declined as it did not consider stage two could produce a different outcome.
- Mrs B says the Council failed to make suitable alternative full-time provision for her son while he was out of education. Having considered the documentary evidence it is clear Mrs B son has been out of school since September 2017. However, the documentary evidence suggests Mrs B was electively home educating her son from September 2017 and only made clear to the Council on 1 May 2018 she no longer wanted to continue with that. I therefore do not criticise the Council for the lack of education provision between September 2017 and 1 May 2018.
- I am satisfied following 1 May 2018 the Council began making arrangements for home tuition. The evidence I have seen satisfies me this was intended to be an interim arrangement until a school placement could be identified. It was also intended to be part-time. The evidence I have seen satisfies me communications from Mrs B to the Council made clear her son could not cope with sessions five days a week. I therefore do not criticise the Council for putting in place part time tuition given that was all Mrs B’s son could cope with.
- The Council has already conceded Mrs B’s son missed nine weeks of education between 1 May 2018 and 10 October 2018. The Council has offered £400 to Mrs B to reflect that lost education. I also understand the Council failed to put in place education between 10 October 2018 and 4 December 2018, for which it has offered £350. As I understand it, Mrs B’s son received no further education between 4 December 2018 and when he began transition days at his new school on 21 June 2019. However, I note the Council offered Mrs B a continuation of the out-of-school tuition from 4 December 2018 which Mrs B declined. In those circumstances I cannot criticise the Council for any lack of education between December 2018 and June 2019 as it is clear it had offered education. So, I consider fault by the Council resulted in Mrs B’s son missing out on nine weeks of education between 1 May 2018 and 10 October 2018 and between 10 October 2018 and 4 December 2018. That is a total of 16 weeks missed education. The Ombudsman normally recommends an amount between £200 and £600 for each month of missed education. £200 is for those cases where there is some tuition in place with £600 more appropriate where no provision has been made at all and full time provision has been missed out on. As there was no provision in place at all for Mrs B’s son for 16 weeks but he would only have received part time provision in any event I consider a payment of £400 per month appropriate. I therefore recommend the Council pay Mrs B £1,500 to reflect the lost education provision.
- Mrs B says she asked the Council for an SEN placement in July 2017 and the Council did not respond until March 2018. The evidence I have seen though satisfies me the Council consulted the SEN school identified by Mrs B on 1 August 2017. So, I could not say the Council had not acted on Mrs B’s request for an SEN placement. As I understand it the Council did not receive a response from the school on that occasion. I will return later in this statement to Mrs B’s concern about delay contacting her preferred schools.
- Mrs B says the Council delayed completing her son’s reassessment which delayed her ability to appeal. The evidence I have seen satisfies me the Council decided to carry out a further assessment following the SEN panel in May 2018. I do not criticise the Council for carrying out a further assessment at that point given the need to better establish Mrs B’s son’s needs as his education, health and care plan at that point said a mainstream school was appropriate. The Council should therefore have completed the reassessment process within 14 weeks of when it agreed to reassess on 25 May 2018. Delay issuing the final plan until 25 February 2019 is therefore fault. That delayed Mrs B being able to appeal. It is unlikely that resulted in any loss of provision though given Mrs B’s son will not start his new school until September 2019.
- Mrs B says the Council delayed contacting her preferred schools until January 2019. Mrs B say she asked the Council to consult an SEN school in July 2017 and again in October 2018. As I said earlier though, the evidence I have seen satisfies me the Council consulted Mrs B’s preferred school in August 2017 and the school failed to respond. At that point though Mrs B’s son’s education, health and care plan identified a mainstream school as suitable for his needs. So, for Mrs B to have secured an SEN school for her son she would have needed changes to the education, health and care plan and for the Council’s SEN panel to approve the school. The evidence I have seen satisfies me the change to the education, health and care plan to name a special school did not take place until 2019. Given I am satisfied Mrs B was home schooling her son until she told the Council she no longer wanted to do so in May 2018 I do not consider failure to follow up with a special school in 2017 resulted in any injustice. It seems to me, in any event, unlikely the Council would have agreed the school at that stage given its SEN panel refused to consider an SEN school until it met in May 2019.
- I am satisfied the Council consulted Mrs B’s chosen school in September 2018. The Council did that even though its SEN panel had decided not to approve a special school placement. The evidence I have seen satisfies me Mrs B’s chosen school did not respond until January 2019 after it had met Mrs B’s son. In those circumstances I cannot criticise the Council for any delay between September 2018 and January 2019.
- I recognise Mrs B is concerned it took until May 2019 for the Council to agree to pursue a split placement with her chosen school. The evidence I have seen though satisfies me the Council’s SEN panel refused the proposal for a split placement with an SEN school at its meeting in February 2019. That was because Mrs B’s son’s education, health and care plan at that point said a mainstream school was appropriate. I recognise Mrs B strongly disagrees with that decision and I am aware the Council has now changed it. However, the issue of which school or what type of school is named in an education, health and care plan falls outside the Ombudsman’s jurisdiction because Mrs B had a right of appeal in relation to that issue, which she exercised. I therefore cannot criticise the Council for not agreeing split placement until May 2019.
- The Council says it decided not to put Mrs B’s complaint through stage two of its procedure because it did not consider it would lead to a different outcome given it had upheld most of her complaints. While I understand the Council’s point, the Council’s feedback procedure says when a customer is not satisfied with the stage one response they can request a stage two investigation which is considered by the relevant Director. The Council’s feedback procedure does not say there are circumstances in which complaints will not be considered at stage two. If the Council intended that to be the case it would have had to make that clear in the feedback procedure. The Council now accepts it did not follow the feedback procedure in this case. The Council has reissued the feedback procedure to officers and intends to put the issue on the team meeting agenda. I welcome that.
- So, I have found fault in that the Council failed to make available suitable education provision for Mrs B’s son for a 16 week period. As I say in paragraph 35 I consider an apology and payment of £1,500 appropriate to reflect the fact Mrs B’s son missed out on what would have been part-time education for that period. I have also found fault in that the Council delayed completing Mrs B’s son’s reassessment which delayed her ability to appeal and refused to take her complaint to stage two. For those failures I recommend the Council apologise and pay Mrs B an additional £500 to reflect the time and trouble she has had to go to pursuing her complaint, along with the stress this placed on her. That makes a total financial remedy of £2,000.
- Within one month of my decision the Council should:
- apologise to Mrs B for the faults identified in this statement;
- pay Mrs B £2,000; and
- send a memo to officers to remind them of the need to comply with the timescales in the code of practice when completing assessments and reassessments for an education, health and care plan.
- I have completed my investigation and uphold the complaint.
Investigator's decision on behalf of the Ombudsman