London Borough of Barnet (19 003 898)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 04 Sep 2020

The Ombudsman's final decision:

Summary: Ms C says the Council failed to deal with her request to find alternative education for her daughter promptly. She says X missed out on education as a result. The Council was at fault. It has agreed to pay X £1,900 in recognition of her missed education and pay Mrs C £300 for the trouble she was caused.

The complaint

  1. The complainant, who I have called Mrs C, says the Council was at fault for:
      1. Failure to arrange an annual review of her daughter, X’s education, health and care plan (EHCP) for her daughter, who I have called X; and
      2. Delay in finding X a place at another school.
  2. The Council’s failure, she says, caused injustice to X as she had to stop attending school and to become isolated from her friends.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. 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. 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)
  3. 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.

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How I considered this complaint

  1. I spoke to Mrs C. I wrote an enquiry letter to the Council. I considered its response alongside the relevant law and guidance.

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What I found

What should happen

  1. The responsibility for providing support to children and young people with special educational needs (SEN) and/or a disability is shared between Councils and education settings.
  2. Most children and young people will have their SEN needs met within early years settings, schools or colleges without any need for involvement from the Council. This level of support is known as SEN Support.
  3. Children with more complex needs might need an educational health and care plan (‘EHCP’). Councils are the lead agency for carrying out assessments for EHCPs and have the statutory duty to ensure special educational provision in an EHCP is made available.
  4. The responsibilities of the Council, settings and partner agencies (including health bodies) are set out in the Children and Families Act 2014 and associated Regulations and statutory guidance, The SEN Code of Practice 2015 (The Code). Agencies are expected to work in an integrated way, with the child and family fully included in decisions.
  5. If a child receives an EHCP, the Council must ensure the child receives the education specified in it.

Annual review

  1. EHCPs should be reviewed annually. Also, where an educational placement has failed, a review should be held.

Emergency review

  1. Parents can ask for an early review of an EHCP if they have good reason to do so. Good reasons include:
    • where a placement has failed;
    • Where a child’s needs have changed; or
    • Where the child has been excluded or is at risk of exclusion.

Duty to provide educational provision

  1. The Education Act 1996 (Section 19) provides the basis for statutory guidance. This says education authorities must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special needs.
  2. Parents have a duty to provide their children with a ‘suitable’ and ‘sufficient' education. They can choose to do this either through a school or at home. Where parents elect to educate their child at home, councils do not have a duty to provide an education where parents have elected to school their child at home.
  3. However, where a parent has stated, as in this case, that they will educate their child at home until a council provides a suitable education, councils should not treat this as a parental choice to educate their children at home. The parent’s wish is clearly for education in school. The council has a duty to provide it.

What happened

Background

  1. X is currently 14 years old. She has been diagnosed with an autism spectrum disorder (ASD). In 2016, her primary school requested she should be assessed for an EHCP. After initially refusing, it agreed to assess her in October 2016. It issued an EHCP in February 2017. It named her primary school as the school for her education until she went to secondary school in the autumn term 2017. It did not name a secondary school for the next academic year.
  2. In autumn 2017, X went to School 1, a secondary school in the Council’s area. The placement was not successful and, Ms C says, X’s performance and behaviour suffered. Mrs C says the school would phone her up almost daily and ask her to collect X early.
  3. Mrs C says X’s education caseworker never answered her calls and failed to respond to her emails. She says the school told her that the Council also failed to respond to its calls about X. The Council says, and I accept, Council officers discussed the possibility of X going to School 2 in January and February 2019.
  4. In late November 2018, Mr and Mrs C wrote to the Council saying X was unhappy at School 1. They said they would like to move her to another school, School 2 which they felt would be a better fit for X. Mrs C says she tried to get a response from the Council without result.
  5. In early December 2018, X was excluded from School 1 for three days for ‘persistent disruption and defiance’. The next day, the Council’s Autism Advisory Teacher observed X at School 1.
  6. In December 2019, the school held an emergency review of X’s EHCP.
  7. In January 2019, the headteacher of School 1 attended a meeting with an autism advisory worker and a caseworker to consider a school exchange. It was later decided that this would not be possible.
  8. Mrs C continued to complain to the Council which said that her caseworker had been indisposed for personal reasons.
  9. In late February 2019, Mrs C told School 1 that she intended to school X at home until the Council found a more suitable school.
  10. In mid-March 2019, the caseworker chased School 2 about providing education for X. School 2 asked for further information from School 1. Five days later, the caseworker chased School 1 for the information.
  11. The next day, School 1 said it had had to postpone the annual EHCP review in December 2018 to allow time to gather reports from an educational psychologist, an occupational therapist, a psychologist and Child and Adolescent Mental Health Services (CAMHS). The Council told me in late November 2019 that a review had not yet occurred and was scheduled for February 2020.
  12. In early April 2019, School 2 wrote to the Council saying it could not offer X a place. In late May 2019, after holding a case management meeting, the Council sent an email to School 2 saying that the Council intended to name it as the school on X’s EHCP. It said it would support the school with extra resources allowing it to engage a teaching assistant for her for 25 hours per week. It offered the school time with an educational psychologist to help with transition planning.
  13. In early June, Mrs C wrote to the Council wanted to challenge School 2’s refusal to take X. The Council soon updated her with the action it had taken to encourage the school to take her.
  14. School 2 continued to object to X attending. But, following a meeting at the school in late June 2019, it agreed to take her. She entered the roll at School 2 at the beginning of August 2019. She remains there today.

Was there fault causing injustice?

Failure to hold annual review

  1. X’s EHCP was finalised in February 2017 when she was still at primary school and named her primary school as the school she should attend. X went to secondary school in autumn 2017. An annual review should have been held in February 2018. It was not. This was fault.

Failure to provide education

  1. Mrs C withdrew X from School 1 in February 2019 saying she would home educate X until the Council found an alternative school. The Council continued to try to find a school place for C but did not provide her with any education until it did because, it says, she had elected to school X at home.
  2. This decision was fault. Mrs C did not choose to educate her child at home. She believed that sending her to School 1 was damaging her and so kept her at home until the Council provided an alternative. The Council should have provided education within three weeks of X’s departure from School 1; by 20 March 2019. In fact, it did not find a suitable placement, at School 2, until July 2019.

Remedy

  1. The Ombudsman’s Guidance on remedies says:
    • Where a person has lost educational provision due to council fault, we will usually recommend a remedy payment of between £200 and £600 a month.
    • Where a person has lost the chance of educational provision due to Council fault, the Ombudsman will make a payment in recognition of that loss.
    • The Ombudsman will also recommend payments, where appropriate, in recognition of distress caused by Council fault and the time and trouble expended as a result of that fault.
  2. X was out of education from March until July 2019. The Council provided no education during this period. The period included three months of term time. I therefore recommend a payment of £1200. X’s integration into School 2 began in July 2019. As this was phased, the education on offer was still inadequate. I have therefore recommended a further £200 payment for this month.
  3. Mrs C first complained about X’s problems at School 1 in November 2019. She says the Council did nothing about this until February 2019. During this period, X continued to attend School 1 where she was frequently sent home from school missing education and suffering distress. I have recommended a remedy payment £300 in respect of this.
  4. X was also caused distress by being at School 1. I recommend a payment of £200 in recognition of this distress.
  5. Mrs C was put to considerable time and trouble as a result of Council fault. I recommend a payment of £300 in recognition of this.

Agreed action

  1. Within three weeks, the Council will:
      1. write to Mrs C and X apologising for the fault and the injustice found:
      2. Pay X £1900 in recognition of the lost and inadequate educational provision and the distress caused;
      3. Pay Mrs C £300 in recognition of the time and trouble the fault caused.

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Final decision

  1. I have decided the Council was at fault. I recommended a remedy for the injustice caused which the Council has agreed to. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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