The Ombudsman's final decision:
Summary: Mr X complained the Council failed to ensure his son, Y, received the provision set out in his Education, Health and Care Plan. Mr X also complained the Council delayed issuing Y’s final amended Plan for over 14 weeks. He said this caused his son distress and had a significant negative impact on his education and psychological development. The Council was at fault when it failed to issue Y’s final amended Plan within the required timescales. This caused avoidable distress. The Council has agreed to pay Mr X £150 to remedy this injustice.
- Mr X complained the Council:
- failed to ensure Y was provided with support and monitoring during school breaks;
- did not ensure the School provided interventions to help Y with his numeracy and literacy;
- took 31 weeks to issue a final amended EHC Plan after Y’s annual review in January 2019;
- failed to ensure Y received a suitable education from January 2019 to June 2019; and
- did not follow its own process in facilitating a managed move for Y.
What I have investigated
- I have investigated complaints 1 a) to 1 d). I have not investigated complaint 1 e) and I explain why in the final section of this decision statement.
The Ombudsman’s role and powers
- 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)
- 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)
- 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)
- When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
- SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
- The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. If someone has appealed to a tribunal we cannot investigate the matter appealed. (Local Government Act 1974, section 26(6)(a), as amended)
- We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), 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
- I have discussed the complaint with Mr X and considered the information he provided.
- I spoke to the Council and made enquiries and considered the information it provided before writing my draft decision.
- I have written to Mr X and the Council with my draft decision and given them an opportunity to comment. I considered their comments before making a final decision.
What I found
Education, Health and Care Plan
- A child with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
- The Council is responsible for making sure arrangements specified in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.
- If a Council receives a request for a re-assessment of the EHC Plan from the child or the child’s parent, it should decide whether to re-assess the Plan and communicate the decision within 6 weeks of receiving the request.
- The process for re-assessment is the same as the process for a first assessment. The overall maximum timescale for a re-assessment is 14 weeks from the decision to re-assess to the issuing of the final EHC Plan.
Alternative provision and law
- The Education Act 1996 states councils must make suitable full-time educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise.
- There is no fixed definition of full-time education, but it is generally considered to be between 22 and 25 hours a week. If the child is thought to be unable to cope with full-time provision, the council may decide to arrange part-time provision but there must be a clear medical reason for this.
- The law also allows councils to consider one-to-one provision as worth more than provision delivered to a group.
- The Children and Families Act 2013 makes clear that councils must consider the views, wishes and feelings of the child/young person and the child’s parents when carrying out their functions under the Act.
- A managed move is designed to ensure a child is not left without education.
- Councils can oversee the child’s transition between schools and make sure the child is in a suitable placement.
- Mr X’s son Y has a learning disability and low working memory. This means he can become easily overwhelmed at school and needs support during lessons and break times.
- On 17 July 2018, Y’s EHC Plan was finalised by the Council. Among other things, the Plan specified that:
- Y should receive support from an adult he trusts during unstructured times, e.g. breaktimes and lunchtimes;
- Y should be offered daily literacy intervention to support his reading and comprehension skills; and
- there should be a clear protocol established for Y when he became overwhelmed or upset.
- The Council completed Y’s EHC Plan on 17 July 2018 and Y began high school in September 2018.
- Y experienced bullying almost immediately after joining the School.
Mr X says this was caused by the Council failing to make sure the School assigned a trusted adult to monitor Y during breaktimes. This meant that when Y became involved in confrontations with other pupils he sometimes reacted inappropriately. Mr X says the School often responded to this by excluding Y and this had a further negative impact on his self-esteem and overall development.
- In October 2018, Y had a meeting with a Council employee, who noted, “Y said that some people pick on him at break and lunchtimes…”
- On 2 November 2018, the School contacted Mr X to advise it was having trouble implementing the intervention aspect of Y’s EHC Plan because he did not often attend the sessions and would not participate fully when he did. The School reported that of 36 interventions, Y attended 14 of them.
- Mr X requested an early review of the EHC Plan on 12 November 2018. Mr X also wrote to the Council on 16 November 2018 to advise he was not satisfied the provisions specified in the EHC Plan were being made available to Y.
He contacted the Council several times about these concerns.
- The Council responded on 12 December 2019 by telling Mr X to discuss lunchtime clubs and suitable chat times with Y with a view to including this information in the EHC Plan. The Council also contacted the School to agree this. The Council then emailed the School on 5 December 2018 to request an update. The School’s response states, “We have a member of support staff who is on duty with Y at break and Learning Support Assistants are supervising him to and from lessons.”
- Following this, the School allocated a specific member of staff to monitor Y during break and lunch times, and give Y an opportunity to “check in,” emotionally.
The Council also emailed the School to agree on a “traffic light,” system Y could use to discreetly signal when he was becoming upset or overwhelmed during class times.
- The Council held a review of Y’s EHC Plan on 30 November 2018 and put forward some amendments. Mr X was not happy with the suggested changes as he felt they were vague and did not address the problems Y was having.
- The Council issued a final EHC Plan and Mr X is currently appealing it at tribunal.
- The evidence indicates the School appointed a teaching assistant to monitor Y during break times in December 2018. Mr X has advised that neither the School or Council told him this and this caused Y to become distressed when he realised he was being supervised. Mr X says he wrote to the School and Council to inform them that Y had a fear of being watched and/or followed and so they should have carried this out more sensitively.
- Mr X says Y continued to experience bullying at school and the School excluded Y several times. Mr X decided to remove Y from the School altogether in January 2019.
- The School started to provide Y with six hours a week home tuition from January 2019 after assessing him and determining that “Y may find extended periods of one-to-one tuition overwhelming.”
- A reintegration meeting took place between Mr X, the School and the Council soon after this. During this meeting, the School stated it was struggling to meet Y’s needs. Mr X queried whether the Council had initiated a managed move for Y. The Council explained that it was not requesting a managed move. The School also expressed its opinion that Y would be better suited to an Assessment Centre Programme, which would identify and cater for Y’s needs.
- Mr X asked the Council to reassess Y’s needs in late January 2019. The Council met with Mr X in April and May 2019 to finalise Y’s EHC Plan.
- Mr X requested amendments to the Plan after both meetings. The Council issued two draft EHC Plans, which Mr X did not agree with.
- The Council decided Y should receive further support in addition to the home tutoring and provided an additional half-day support a week at a care facility, which increased to one day a week from May 2019.
- Mr X raised a complaint in May 2019 because he was unhappy the Council had failed to finalise the EHC Plan. He was also unhappy with the contents of the draft.
- The Council sent Mr X a third revised draft of the EHC Plan in June 2019 after reviewing Mr X’s requests and asked for his views. Y received a full time offer of a place at a school along with transportation.
- The Council also responded to Mr X’s complaint at this time, stating the delay in issuing a finalised EHC Plan was partly caused by Mr X’s requests. The Council also said it needed an update from Y’s doctors regarding Y’s needs and was waiting for Mr X’s comments before finalising the Plan.
- Mr X remained unhappy and requested an emergency review of the plan in July 2019. He then wrote to the Council again in August 2019, saying he did not agree with the contents of the draft EHC Plan.
- The Council met with Mr X to discuss, amongst other things, a report the Council had received from a doctor and the possible amendments to the Plan that needed to be made considering this new information.
- The Council said Mr X did not agree with these amendments and requested that the Council finalise the Plan based on the third draft. Mr X went on to refer the matter to tribunal when he remained unhappy with the final amended EHC Plan which the Council issued in August 2019.
- Mr X decided to refer his complaints to the Ombudsman. During the investigation, Mr X said Y only received 5 hours home tuition from January to April 2019.
The Council said the School arranged provision from January to June 2019 after which Y was offered a full-time placement at a school. Y attended the school for a short period until Mr X withdrew him.
Provision of break time support
- The Council is responsible for making sure arrangements specified in the EHC Plan are put in place.
- The Council became aware Y was experiencing bullying at breaktimes in October 2018 when Y had a meeting with a Council employee. This should have alerted the Council to the fact Y may not have been receiving the breaktime monitoring specified in his EHC Plan. At this stage therefore, I would have expected the Council to liaise with the School to ensure this provision was in place. However, the Council did not address this with the School until November 2018.
The Council’s failure to act for approximately six weeks is fault. However, when the School did implement monitoring at breaktime, this was not successful. Therefore, on balance, I do not consider Y experienced a significant injustice.
- Mr X is unhappy the Council did not make him aware when it began monitoring Y. I cannot hold the Council responsible for the School’s actions and it was the School’s responsibility to inform him of this. The monitoring was stated in the July 2018 EHC Plan and the Council acted correctly by confirming with the School that this was taking place. Further, there is no evidence indicating Y would have responded differently if the School or Council had notified Mr X.
Provision of literacy and numeracy interventions
- The EHC Plan stipulated that the School carry out daily literacy and numeracy interventions and it was for the School to decide how to put this in place. The evidence indicates these interventions were taking place but were not always successful because they took place during lessons Y enjoyed. This is not fault on the part of the Council. Mr X may be unhappy with the interventions, but I cannot investigate the actions of the School.
- Mr X complained that this provision in Y’s EHC Plan was not in place between July 2018 and December 2018. The evidence I have received indicates the Council responded appropriately once it became aware of the issue. After Mr X raised his concerns, the Council contacted the School to confirm Y was receiving the appropriate provision. It then relayed this to Mr X, conducted an early review of the EHC Plan and put forward amendments designed to support Y. I do not find fault in how the Council reacted to Mr X’s complaint.
Delays in issuing Y’s final amended EHC Plan
- If a council is asked to reassess the contents of an EHC Plan, it must issue its decision on whether it proposes to amend or keep the Plan the same within six weeks. The Council then has 14 weeks to issue the final amended EHC Plan.
I cannot investigate the contents of the EHC Plan.
- The Council agreed to reassess the EHC Plan in January 2019. It issued the final amended Plan in August 2019. This is a delay of approximately 5 months.
- The Council delayed issuing the EHC Plan in order to accommodate Mr X’s views and wishes. However, whilst it was important for the Council to try to take Mr X’s wishes on board, ultimately the Council had a duty to complete the EHC Plan within the required timescales.
- Had the Council completed the EHC Plan in time, Mr X would have been in the position to refer the matter to the tribunal approximately 5 months earlier than he did. By allowing the process to drift, the Council denied Mr X the opportunity to appeal the EHC Plan for 5 months, which caused him an injustice.
Provision of suitable alternative education
- Councils must ensure suitable full-time education for children who are not at school. There is no fixed definition of full-time education, but it is generally considered to be between 22 and 25 hours a week. However, the law also allows councils to consider one-to-one provision as worth more than provision delivered to a group.
- Mr X says Y received insufficient tuition until June 2019 and has not had access to education since.
- As Y was still on the School roll the School was responsible for the decision to provide Y six hours tuition per week. As I have said I cannot look at decisions by the School about the provision of education. The Council decided to provide Y with additional support at a social skills provider, from April to July 2019; at the advice of the provider this was initially half a day a week, then from May one full day a week. From June 2019 the Council offered Y a full-time placement at a school. I am satisfied the Council sufficiently considered Y’s needs when he was out of school. There is no fault in the Council’s actions.
- Mr X has provided no evidence to show Y’s tuition stopped in June 2019 or the reasons why. There is no evidence to demonstrate Mr X complained to the Council at the time that Y’s tuition had stopped or that the Council was aware of this. The Council cannot be held responsible for issues it was not made aware of. And even if the Council was aware of this, it the Council offered Y a full-time school placement in mid-June 2019. Allowing a reasonable period for the Council to source a new tutor who Mr X considered suitable, the amount of schooling missed by Y did not cause a significant injustice.
- On the balance of probabilities, the Council met its obligation to ensure Y received a suitable alternative education during the period he was out of school. The Council is not at fault.
- Mr X also complained the Council failed to follow its managed move process.
The Council informed Mr X during the reintegration meeting in January 2019, the events had not triggered the managed move process for Y. Instead, Y was receiving home tuition which the Council considered suitable alternative education. There was no fault in the Council’s actions.
- Within one month of the date of my final decision the Council has agreed to make a payment of £150 to Mr X for injustice caused by its 5-month delay in issuing a finalised amended EHC Plan.
- There was fault in the Council’s actions which caused Mr X an injustice.
The Council has accepted our recommendations for how to remedy this. We have therefore completed the investigation.
Investigator's decision on behalf of the Ombudsman