Summary: There was some fault in how the Council supervised the implementation of an Education, Health and Care plan, and also its response to the complaint about it. This caused a limited injustice, for which the Council has agreed to apologise. It has also agreed to remind relevant staff of the Council’s duty to secure EHC plan provision.

The complaint

1. The complainant, to whom I will refer as Mr B, says elements of his son’s Education, Health and Care (EHC) plan were not implemented when they should have been. I will refer to Mr B’s son as J.

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The Ombudsman’s role and powers

2. 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)
3. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)

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How I considered this complaint

4. I reviewed J’s EHC plan, the Council’s case notes, and its correspondence with Mr B and with both schools during the relevant time period.
5. I also shared a draft copy of this decision with each party for their comments.

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What I found

6. J is autistic, and has been diagnosed with other learning difficulties. He has always attended mainstream education, but his behaviour has at times caused him problems.
7. The Council issued an EHC plan for J on 3 December 2018. The plan named his current school (‘the Primary School’) as his placement. J had never had a plan before, and was in his final year at primary school, being due to start secondary school in September 2018.
8. J’s plan was extensive and explained, in detail, his needs and how best these could be met. It said school staff should undergo specialist autism training, provided by the Council, and develop a support plan for J. The Council’s autism team was to deliver this training to school staff during the Spring Term.
9. The plan also said there would be a “carefully structured transition programme” to support J’s upcoming move to secondary school, including visits to the school beforehand.
10. On 6 December, the Council sent a consultation form to a mainstream secondary school (‘the Secondary School’), to obtain its view on placing J there. On 18 December, the Council notified Mr B it intended to amend the EHC plan to name the Secondary School as J’s placement from September 2019; and on 11 February 2019, it issued a plan with this amendment.
11. On 15 February, the Primary School sent an email to the Secondary School. It explained there had been incident that day, where J had injured a teaching assistant, and the school had internally excluded him as a result. The Primary School said J’s mother had raised some concerns about transition, and the Secondary School’s ability to manage similar incidents once J started there.
12. On 28 February, a meeting was held at the Primary School, with a representative from the Secondary School and one from the Council. Dates were arranged for J’s visits to the Secondary School between March and the end of the school year, and it was also explained that J’s annual EHC plan review was to be held at the Primary School on 23 May. The meeting noted there was to be another meeting the following day with J’s parents to discuss transition.
13. On 3 March, Mr B emailed the Council. He said he was concerned the EHC plan was not being implemented at the Primary School, and that the lack of experience and training had resulted in the incident of 15 February. He said the training had originally been arranged for February, and was supposed to have been completed by 5 April, but now had been postponed to June to allow both schools to attend the same session.
14. Mr B also said he was concerned with the Secondary School’s approach to the EHC plan, as it was proposing to use several different staff members as J’s dedicated support, when it was important for him to have one consistent member of staff in this role. Mr B said the Secondary School had already told him it would use exclusions to deal with poor behaviour by J.
15. On 11 April, Mr B emailed the Council’s complaints team with a formal complaint about the failure to deliver the training for staff at the Primary School, and that training was not likely to take place until 12-14 June.
16. The Council replied on 12 April, saying it had passed Mr B’s concerns to the Special Educational Needs (SEN) service and School Effectiveness Team, to liaise with the Primary School. It said it would contact Mr B again the following week to explain what it was going to do. It also suggested Mr B raise the matter as a formal complaint with the school itself.
17. On 24 April, a Special Educational Need (SEN) manager the Council emailed members of staff at both schools. She explained she had spoken to Mr B, who had again raised concerns about transition to the Secondary School and the implementation of J’s plan. She asked if a meeting could be arranged between the schools and the Council to discuss transition and ensure the provision in the EHC plan would be delivered.
18. On 1 May, Mr B emailed the Council’s complaints team again. He said, under the children’s statutory complaints procedure, he should have received a stage 1 response within 10 working days, which he had not. Mr B queried this.
19. On 3 May, the Secondary School emailed the Council. It explained it was having difficulty sparing staff for the proposed June training dates, because they were required to support existing SEN pupils during the GSCE exams. It suggested moving the training to the Autumn Term for the Secondary School staff.
20. On 7 May, the Council’s complaints team responded to Mr B. It explained it was the Council’s corporate complaints procedure which applied here, not the statutory complaints procedure, which was for children’s social services complaints. However, as Mr B’s complaint was about the school’s implementation of the EHC plan, this could only be addressed by the school, and was outside of the Council’s control.
21. On 13 May, Mr B referred his complaint to the Ombudsman.
22. On 16 May, a meeting was held at the Secondary School to discuss J’s transition. In attendance were representatives of both schools, the Council, and also Mr B.
23. Mr B explained his concerns about consistency in J’s dedicated support. The Secondary School said it was arranging three or four members of staff to take on this role, which it considered was best for J. However, it said there would be a ‘main keyworker’ who would work with J on social communication, and for him to approach when he felt it necessary.
24. Mr B said he was disappointed that autism training was not scheduled until June. The Primary School said the original February booking was cancelled by the Council’s autism team, and that it had been difficult to release staff for training after that because of the SATS.
25. The Secondary School said it was looking to arrange autism training for its staff in September, but was hoping to send at least one member of staff to the June training at the Primary School, to ensure some support was in place for the beginning of the year.
26. Transition was also discussed at the meeting, and it was noted J’s visits to the Secondary School had begun. Mr B said there had been an incident during J and another pupil during a visit, and the school said both had been spoken to about it and no blame had been placed on either. However, the school had discussed future visits with J and this had been a positive exchange.
27. On 18 May, Mr B emailed the Secondary School with a list of questions about the arrangements for training their staff.
28. On 19 May, the Secondary School emailed the Council, requesting that training for its staff be arranged for September. However, it said it was hoping to send one named member of staff to the June training, to ensure support was in place for September.
29. On 20 June, the Council’s autism team emailed the SEN service to confirm the scheduled autism training, with staff from both schools in attendance.
30. On 24 June, an EHC plan annual review meeting was held at the Primary School. It was attended by both schools and J’s mother.
31. On 21 August, the Council met with Mr B. The Council’s note records Mr B had said the transition process had gone well. He asked questions about when further training for staff would take place.

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Legislative background

32. A child or young person with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the young person’s needs and what arrangements should be made to meet them. Councils must review EHC Plans at least every 12 months.
33. Councils have a duty to secure the special educational provision set out in an EHC Plan. (Children and Families Act 2014, section 42)

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Analysis

34. As I understand it, Mr B’s complaint is about the implementation of one particular element of J’s EHC plan:

“An autism aware support plan to be developed, monitored and reviewed termly by staff who have been trained in autism focused strategies. Consultation with a relevant support service, eg Autism Team, EP Service when needed to ensure that [J] continues to make progress against outcomes of plan. The plan will be made available to all members of school staff involved with [J]. The plan will include advice and instructions on how to provide positive support for [J] in a consistent manner and with a focus on expectations and strategies agreed by professionals and parents. The Autism Spectrum Team will provide a package of bespoke autism training over three days for staff members required to implement the plan; this training will be delivered during the spring term 2019.”

35. Specifically, Mr B complains about the delay in training members of staff at both the Primary and Secondary Schools. As there are different considerations for each school, I will address each as a separate matter.

The Primary School

36. J’s EHC plan was finalised on 3 December 2018, at the end of the Autumn Term of his final year of primary school. The bespoke training package was to be delivered during the Spring Term. I cannot say for certain when the school’s Spring Term ended, but it appears likely to have been around mid-April, so the training should have been delivered by that point.
37. The records provided by the Council indicate that training was originally arranged for February, but was cancelled by the Autism Team for reasons which are not clear. It was then re-arranged for 12-14 June, which did go ahead – but this was only five to six weeks before J left the Primary School.
38. The Council said this was the school’s responsibility, and advised Mr B to approach it with his complaint instead. It is true the day-to-day implementation of the plan is for the school to manage – but it is the Council’s duty to secure the provision, and so it retains ultimate responsibility to ensure it is delivered.
39. Mr B first raised his concerns about this with the Council on 3 March. I cannot see there was any direct response to this email. Mr B then raised the matter again as a formal complaint on 11 April. I note, also, the training was to be delivered by the Council’s own Autism Team, not an external provider.
40. So, taking this together, I am satisfied the Council should have been aware the deadline of the end of the Spring Term was going to be missed.
41. From the correspondence between the various parties, I can see both schools had difficulty making time for staff to attend the training. This, I accept, was something outside the Council’s direct control.
42. But I cannot see the Council raised any concerns about the missed deadline for the training; nor the failure to create the support plan, which was supposed to follow on from this. These were important parts of J’s EHC plan, and I am concerned there seems to have been a lack of input from the Council on this once the plan was issued.
43. As a linked, but separate, issue, I am also concerned the response to Mr B’s complaint does not recognise the Council’s responsibility here.
44. The Council’s second response, of 7 May, first explains to Mr B the children’s statutory complaints procedure is not applicable here (which is correct). But it then says:

“As your complaint is about the Schools and school staff not complying with your son’s EHC plan these actions are outside of the Council’s complaints process as those staff are not Cornwall Council staff and our complaints policy has no authority over them or the schools. This complaint will need to be raised directly with the schools themselves … “

45. As I have said, while the day-to-day implementation of the plan is the school’s responsibility, it is not true the Council has no authority in the matter. If the Council was aware – which it was – that an element of the plan was not being followed, it should have been more proactive here. It should also have accepted Mr B’s complaint on the matter. This is fault.
46. This said, I am not convinced there is evidence of any significant injustice to J or Mr B from this.
47. Mr B referred to a serious incident on 15 February, where J injured a member of teaching staff. He perceives the lack of staff training contributed to this situation.
48. However, I do not consider a clear causal link can be drawn between these two issues. Staff training is clearly important in supervising and supporting children with autism, but it cannot eliminate all risks. It is too speculative to say this incident would have been avoided, if the member of staff had received training by this point.
49. And, moreover, the plan called for training to be completed in the Spring Term. So even if this deadline had ultimately been met, the training could still legitimately have been outstanding on 15 February. So I cannot find this incident occurred because of a failure to adhere to the plan.
50. The training was eventually completed in mid-June. Taking into account the Easter Holidays, this means there was a period of six to seven weeks where, according to the plan, staff at the Primary School should have been trained, but were not. This was not a manifestly excessive delay.
51. I do not seek to dismiss Mr B’s concern about the failure to meet the deadline, and I accept it caused him some distress and frustration. This is an injustice; but I cannot see any evidence that J’s experience at school during those few weeks was significantly affected because of the delay in training staff.
52. I consider the Council should apologise to Mr B for failing to be more proactive about the implementation of the training, and also for wrongly failing to recognise it was the Council’s responsibility to do so. This is sufficient to remedy his injustice.
53. I also consider the Council should remind staff dealing with SEN matters, including those responding to complaints, that they are responsible for ensuring the delivery of an EHC plan; and it is not appropriate to simply direct complainants to the educational establishment where they raise concerns about this. I make a recommendation on this point also.
54. On this element of Mr B’s complaint, I find fault causing injustice.

The Secondary School

55. When the original EHC plan was issued on 3 December, it named only the Primary School. The Council then began the consultation process for J’s transition, and issued an updated plan, naming both schools, on 11 February. However, the wording of the deadline for the training to be delivered remained the same – “during the spring term 2019”.
56. As I read the plan, this meant the deadline then applied to both schools – but I am not convinced this was intentional. There was no logical reason for the Secondary School to need to implement the training in the academic year before J started there. This may have been an oversight on the part of those drafting the updated EHC plan, although I accept this would be a simple error to make.
57. Either way, the Secondary School made efforts to ensure at least one staff member attended the training before the beginning of the 2019/20 academic year. It also asked for training to be arranged for other staff members within the Autumn Term.
58. I note also the effort that was put into arranging for J to visit the Secondary School during the latter part of the 2018/19 year, as part of his transition. The Council’s note of its meeting with Mr B on 21 August indicates he was happy with how this had been implemented.
59. So I see no problem with the school’s adherence to the plan.
60. I do recognise Mr B may have had some concerns toward the end of the 2018/19 year about how well the school was preparing for J’s arrival, as, at that point, it was unclear which members of staff would be trained and when.
61. However, the Council responded to Mr B’s concerns well. I note, in particular, it arranged a meeting in May for all parties to discuss the transition process, after Mr B had raised his concerns. It also met him with during the summer holidays, and contacted the school shortly after the beginning of the year to enquire how J was settling in. This was all good practice, and I find no fault here.
62. Mr B has raised some other concerns with the Secondary School’s approach to implementation. For example, he considers the school was planning to use too many different members of staff to support J, when consistency is important to him; and was concerned how it intended to supervise J during certain parts of the school day. He was also concerned the school raised the prospect of exclusions before J had even started there.
63. However, while the Council has a duty to ensure the delivery of an EHC plan, it is not responsible for the school’s internal management. It is for the school to decide how best to deploy its staff, and any complaints about this, or about a decision to use sanctions against pupils, must be addressed to the school, not the Council. By extension, the Ombudsman cannot investigate complaints about the internal management of schools.
64. I do note the Secondary School said it was planning to undertake an EHC plan review for J sometime during the Autumn Term, once he had had a chance to settle in. If Mr B has any ongoing concerns about the school’s implementation of the plan, this will provide an opportunity to explore his concerns and discuss possible improvements.
65. On this element of Mr B’s complaint, I find no fault.

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Summary

66. The Council should have been more proactive about ensuring training was delivered to the Primary School by the set deadline. It also should have recognised it was its responsibility to do this.
67. This caused Mr B some frustration, which is an injustice. However, the delay in providing the training was not excessive, and there is no evidence it had any significant effect on J’s experience at school.
68. The Secondary School implemented the training in good time, and there is no fault in how the Council responded to Mr B’s concerns in this respect. The Council is not responsible for the internal management matters Mr B has raised.

Agreed action

69. Within one month of the date of my final decision, the Council has agreed to:

• write formally to Mr B, acknowledging it should have been more proactive about ensuring the timely delivery of the training for the Primary School staff, and apologising for its failure to do so. It will also acknowledge and apologise for failing to recognise it was its responsibility to do so;
• remind relevant staff it is the Council’s responsibility to ensure the provision in an EHC plan is secured, and it is not appropriate to simply advise complainants to approach the school or other educational establishment where they have concerns about a plan’s implementation.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman