Derbyshire County Council (19 003 959)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 08 Dec 2020

The Ombudsman's final decision:

Summary: Mrs X complained the Council failed to provide her son, F, with a suitable education and failed to meet his special educational needs set out in his Education, Health and Care (EHC) Plan between 2016 and 2019. The Council was at fault. It accepted during its stage 2 investigation into Mrs X’s complaints that it failed to provide F with a suitable full-time education or provide him with the provision in his EHC Plan between April 2017 and November 2019. The Council also failed to amend F’s EHC Plan within statutory timescales following annual reviews in 2017 and 2018. To remedy the injustice this caused F the Council agreed to pay Mrs X a total of £6,900 to use for F’s education benefit. It also agreed to pay Mrs X a further £500 to acknowledge the significant distress, uncertainty and time and trouble this caused her. The Council will also carry out service improvements.

The complaint

  1. Mrs X complains the Council failed to provide her son, F, who has an Education, Health and Care (EHC) Plan with a suitable education in line with his special educational needs (SEN) between 2016 and 2019. Mrs X said the Council identified fault in its stage 2 complaints investigation into the matter but did not adequately remedy the injustice.
  2. Mrs X said F has not achieved his academic potential as a result. She said the matter has caused F, her and the wider family significant distress, uncertainty and time and trouble.

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The Ombudsman’s role and powers

  1. 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)
  2. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended) I have used my discretion to consider matters from September 2016 onwards when F started at secondary school. This is because the fault began when F moved to secondary school and was ongoing at the time Mrs X complained to us.
  3. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
  4. Caselaw has established that where someone may appeal to SEND, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the contents of an EHC Plan or the type of educational placement it specifies, we cannot seek a remedy for lack of education after the date of the final EHC Plan. But, where there has been a delay in issuing an EHC Plan, the Ombudsman may consider whether any additional provision ordered by the Tribunal could have been made sooner but for the council’s delay. (R (on the application of ER) v The Commissioner for Local Government Administration [2014] EWCA Civ 1407).
  5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
  6. 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)
  7. 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 X about her complaint.
  2. I considered the content and outcome of the Council’s stage 2 investigation into Mrs X’s complaint.
  3. I considered the Council’s response to my enquiry letter.
  4. Mrs X and the Council had an opportunity to comment on my draft decision. I considered comments before I made a final decision.

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What I found

Law and guidance

  1. The Department for Education issued guidance entitled ‘Alternative Provision’. This guidance says ‘Local authorities are responsible for arranging suitable education for permanently excluded pupils, and for other pupils who – because of illness or other reasons – would not receive suitable education without such arrangements being made’.
  2. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6)
  3. The ‘Alternative Provision’ guidance says the alternative education must be of good quality. It should prevent the child from slipping behind their peers in school and allow them to reintegrate successfully on return to school.

Education, Health and Care Plan (EHC) Plan

  1. Children with complex needs may require an Education, Health and Care (EHC) Plan. This is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care. This can include support needed in school.
  2. Councils are responsible for making sure all the arrangements named in the EHC Plan are put in place.
  3. Once the Council completes the EHC Plan it has a legal duty to deliver the educational and social care provision set out in the EHC Plan. This duty is non-delegable. The local health care provider will have the duty to deliver the health care provision.

Annual Reviews

  1. Councils must review EHC Plans at least every 12 months.
  2. Councils must decide whether to maintain the EHC Plan in its current form, amend it, or cease to maintain it within four weeks of the review meeting. There is no statutory timeframe for how long the council can take to do the amendments. The guidance says this should happen ‘without delay’.
  3. The Council must issue the final EHC Plan or decide not to amend the EHC Plan at all as soon as practicable and within eight weeks of the date it sent the plan to the parents/young person with the proposed amendments. Decisions to amend or cease a plan can be appealed to the Tribunal.

Exclusion from school

  1. Under the School Exclusions Code, schools may exclude children for a fixed period of up to a maximum of 45 days, or permanently. The school is responsible for the child’s education for the first five school days. But where a child remains excluded from education, the council must offer alternative educational provision from the sixth day of exclusion. The council’s duty to the excluded child is the same whether the school acts in accordance with the School Exclusions Code, or whether it contravenes it by excluding a child informally. The council’s offer must of be full time education unless it assesses the child as unable to cope with this.
  2. Where a pupil with an EHC Plan is at risk of exclusion, schools should consider what additional support or alternative placement may be required and consider requesting an early annual review or emergency review.

SEND Tribunal

  1. The Ombudsman cannot investigate the Council’s decision whether to conduct an assessment, nor can it investigate the content of the EHC Plan. These are appealable to the Special Educational Needs and Disability Tribunal (SEND).
  2. The Ombudsman has no jurisdiction where a parent has appealed to the tribunal from the date the appeal right arises until the appeal is completed. We therefore cannot consider any loss of special education provision or fault during this period, which is a consequence of the decision being appealed
  3. The Ombudsman can look at any delay in the assessment and the issuing of an EHC Plan as well as any failure by the Council to deliver the provision within an EHC Plan.

What happened

  1. Mrs X has a son, F, who is now 15 years old. F has learning difficulties a diagnosis of autistic spectrum disorder (ASD) and attention deficit hyperactivity disorder (ADHD). F was formally diagnosed with autistic spectrum disorder (ASD) at the start of 2018 F also suffers from both situational and social anxiety.
  2. In September 2016 F moved from primary school to a mainstream secondary school, school A. F had an EHC Plan in primary school which named school A within it. The Council decided not to amend the other parts of F’s EHC Plan before he started in year 7 at the school. The EHC Plan included specific provision to meet F’s SEN including techniques to manage his social skills and behaviour. The EHC Plan gave F a teaching assistant (TA) for 23 hours per week to support the delivery of the provision specified in the plan, working under the direction of his teacher.
  3. When F started at school A in September 2016, he immediately found it difficult to cope with attending such a large mainstream school. Mrs X said she was under the impression school A would teach F within its learner support base; however, this did not happen. Between October 2016 and March 2017, school A put F on a part-time timetable.
  4. F continued to struggle at school A and so between April and May 2017 he stopped attending and instead received tuition off school premises from the Inclusion Pathways Team (IPT). The IPT supports and provides education for children and young people who are out of school or have a history of social, emotional and mental health needs.
  5. The school carried out an annual review of F’s EHC Plan in May 2017. The Council attended the meeting. Mrs X reported numerous issues with the IPT provision. She said on many occasions TAs were not available and F was sent home early without any educational tasks. She said when TAs were available, they let F watch video channels on the internet, took him shopping or took him to coffee shops. F said he did not want to continue at the IPT and instead wanted to return to school A.
  6. It was agreed at the review that F would return to school A with flexible provision, on a part-time basis with TA support for every lesson in line with his EHC Plan. It was agreed that F would be allowed withdrawal opportunities if he was unable to stay in lessons. The review recommended F’s EHC Plan be amended to reflect the TA support he would receive. The review also recommended a further 5 hours TA support taking the total up to 28 hours.
  7. Records show Mrs X received the minutes from the annual review. She said they were not a true reflection of what was discussed. She said the record of the review did not truly reflect F’s behaviour or the lack of progress and the amount of school he had missed. Mrs X reported this to the Council on four separate occasions between June and October 2017, however the Council did not follow this up or investigate her concerns.
  8. Between June 2017 and March 2018, F remained at school A on a part-time timetable. However, F’s EHC Plan was not amended as was discussed at the May 2017 annual review. Mrs X said although F attended school during this period, the agreed measures were not in place. As a result, she said he did not adequately engage with lessons and either turned up to school late or left early on occasions.
  9. F’s annual review of his EHC Plan took place in March 2018. The review recommended a complete re-write of F’s EHC Plan to better reflect his needs, medical diagnosis and ASD. The records show the Council was asked to consult with specialist schools for F. Following the annual review school A decided it could no longer meet F’s needs. IPT provision was again put in place for F.
  10. Between April and June 2018 F received no education at all. The records show this was because the IPT did not put a TA in place for F. The IPT did manage to find a TA for the last five weeks of term between June and July 2018. However, the evidence shows the TA fell ill which left F without education for the final two weeks of the term.
  11. At the start of year 9 in September 2018 F remained at the IPT. He received no education for the first two weeks. Between September 2018 and January 2019 F received part-time provision, although this was very inconsistent. Some weeks F received nothing at all. F began receiving tuition from an external training provider from January 2019 onwards. Records show this began with one day a week and increased to two days a week between February and June 2019. F then received 3 days per week between July and November 2019.
  12. Following the annual review in May 2018 the Council had written to Mrs X notifying her of its intention to amend F’s EHC Plan. Records show F’s case went to the Council’s SEN panel on four occasions to discuss consultation with alternative placements. However, the records show the panel did not receive adequate information about the case. For example, when it met in June 2018 the panel refused to consult with other schools as there was ‘no evidence F had learning difficulties and there was no diagnosis of ASD’, despite this being clearly noted in his Plan and the Council having already received official notification of his ASD diagnosis at the beginning of 2018. There was no evidence the panel notified Mrs X of its decision.
  13. Mrs X asked the panel in January 2019 to further consider consulting with different schools for F. One placement said it could meet F’s needs, however records show this would have been at a significant cost to the Council. The panel met for a final time in March 2019 and decided school A could meet F’s needs. So, it recommended the F be reintegrated back into school A, even though school A had already said in March 2018 it could no longer meet his needs. The Council issued F’s final EHC Plan naming the school A.
  14. Mrs X appealed to the SEND tribunal in March 2019.
  15. In June 2019 Mrs X complained to the Council. She complained it had failed to meet F’s SEN in line with his EHC Plan and had failed to provide him with suitable education since he started at the school in 2016. The Council provided Mrs X with a stage 1 response and said it would follow up her concerns with its SEND officer. Mrs X did not receive a further response so she escalated her complaint to stage 2 of the Council’s complaints procedure.
  16. The Council carried out a stage 2 investigation into Mrs X’s complaints. It completed its report in February 2020. It upheld all of Mrs X’s complaints. The Council found:
    • Between 2016 and 2019 it failed to provide F with provision in line with his EHC Plan and failed to provide him with a full-time education.
    • It failed to ensure F had adequate provision and tuition at the IPT.
    • The minutes were not a true representation of the annual review which took place in March 2017.
    • It failed to amend F’s EHC Plan in line with statutory timescales after agreeing to do so in March 2018.
    • There had been a significant lack of communication with Mrs X from the SEND team and a delay in finding a suitable alternative educational placement which in turn delayed issuing F with a final EHC Plan.
    • It failed to adequately respond to Mrs X’s complaint at stage 1.
  17. The adjudicating officer agreed with the stage 2 investigation findings and offered Mrs X £2,200 to acknowledge F’s loss of education between 2016 and 2019. It also offered Mrs X £250 to acknowledge her time and trouble pursuing the complaint.
  18. The adjudicating officer also agreed to carry out service improvements in light of the stage 2 investigation findings. These included:
    • Ensuring referrals to IPT included appropriate tailor-made programmes for students.
    • Ensuring the Council’s SEN panel was robust and considered all relevant information when considering educational placements and amendments to EHC Plans. It also recommended the panel clearly recorded decisions and the legal basis for it.
    • Ensuring SEND staff were reminded to clearly communicate with parents
    • Ensuring children and young people received their entitlement to full -ime education within the IPT.
    • Ensuring complaints were responded to within timescales set out in the Council’s procedures.
  19. F remained on part-time provision at the IPT until November 2019. Mrs X was successful at the SEND tribunal which directed the Council to name school B on F’s EHC Plan. F started at school B in November 2019 and remains there. The evidence shows he has settled in well and is now making good progress.
  20. Mrs X was unhappy with the outcome of the stage 2 investigation. She felt the remedy offered by the Council did not reflect the significance of F’s loss of education nor the significant distress the matter had caused her and F’s wider family. So, she complained to the Ombudsman.

My findings

  1. The Council carried out a robust, thorough and proportionate stage 2 investigation which upheld all of Mrs X’s complaints. Mrs X has not complained about the findings of the stage 2 investigation. Therefore, I have not re-investigated Mrs X’s complaints. I have instead summarised the faults below and made recommendations to remedy the injustice caused by those faults.

F’s education September 2016 – March 2017

  1. When F started in year 7 at school A in September 2016 he had an EHC Plan which entitled him to a full-time education including 23 hours a week support from a TA. The evidence shows F started well at school A up until December. However at the start of 2017 his behaviour deteriorated, and he was placed onto a part-time timetable. There is a lack of records to show whether the Council was aware of this at the start of 2017. However, I am satisfied that it was aware when F started at the IPT in April 2017. At this point the Council’s duty to ensure F received a suitable full-time education began.
  2. Between April and May 2017 F spent five weeks at the IPT. The stage 2 investigation found F did not receive a full-time education and did not receive his provision in line with his EHC Plan. I have seen no evidence to show F had any input from a qualified teacher and the Council has no records to show it had any oversight of F’s tuition. That is fault.

May 2017 annual review

  1. The evidence shows the Council agreed at the annual review to amend F’s EHC Plan, which included an additional five hours of TA support. There is no evidence this was followed up by the Council, despite Mrs X contacting and chasing it on different occasions during 2017. The Council failed to amend F’s EHC Plan after agreeing to do so. That is fault.

F’s education June 2017 – March 2018

  1. F ended year 7 and started year 8 back at school A. The records show F attended school A until March 2018. However, Mrs X reported to the Council on at least three occasions that F was not receiving adequate support. There is no evidence the Council followed this up with her. That is fault and I find on balance it is unlikely F received full-time education to meet his needs during this period. This fault is compounded by the Council’s failure to follow up on the recommended amendments to F’s EHC plan following the review in May 2017

March 2018 annual review

  1. The Council agreed to amend F’s EHC Plan and formally notified Mrs X of that decision. This included identifying a new placement for F because school A had said it could not meet his needs. The Council’s SEN panel considered F’s case for an alternative placement on four occasions between May 2018 and March 2019. However, poor internal communication meant the panel did not have relevant information about F’s SEN and diagnosed disabilities to come to an informed decision. The panel also failed to keep Mrs X up to date with its decisions. All of this was fault and contributed to the Council’s failure to issue F’s final EHC Plan within the statutory timescales. The Council delayed by 8 months after notifying Mrs X of its intention to amend it. That was fault.

F’s education March 2018 – November 2019

  1. The records show that F went back to the IPT in March 2018 after the school decided it could not meet his needs. Between March and July 2018 F had virtually no education because the IPT could not source a TA. From September 2018 to January 2019 F attended the IPT on a part-time basis. However, I have seen no relevant evidence which shows the TA was under the direction of a qualified teacher, nor have I seen any evidence which shows F’s progress was monitored or adequately marked. The evidence shows the TA allocated to F regularly picked him up late and dropped him home early. Sometimes no TA was available leaving F with no access to education. The Council failed to provide F with a suitable education or provide F with the provision in line with his EHC Plan during this period and that is fault.
  2. Between January 2019 and November 2019 F attended at an external training provider. This began at one day per week and increased to three days per week. However, the maximum amount of education F received during this period only equated to 15 hours a week. I have also seen no evidence the tuition provided was from a qualified teacher. Therefore, F did not receive suitable full-time education during this period and did not receive the provision in line with his EHC Plan. That is fault.

Injustice to F

  1. The Council’s investigation found that F did not receive full-time education from April 2017 until November 2019. The evidence supports this.
  2. The Ombudsman has no jurisdiction where a parent has appealed to the Tribunal to investigate events from the date the appeal right arises until the appeal is completed. Any loss of education or fault during this period which is a consequence of the decision being appealed is out of jurisdiction, even if this means the injustice will not be remedied.
  3. Mrs X’s appeal rights arose in March 2019 when the Council finalised F’s EHC Plan. Because the matters she appealed were inextricably linked to the complaints she made to the Ombudsman I can only look at injustice caused by the school placement up to that date. However, F was entitled 28 hours support from a TA under the direction of a qualified teacher before Mrs X appealed. As this provision was not part of the appeal, I can consider injustice caused to F by the Council’s continued failure to provide this provision during the period of appeal.
  4. Although there were periods when F attended school A the evidence shows this was mostly part-time which meant he did not receive all of the provision he was entitled to in line with his EHC Plan. The annual reviews in 2017 and 2018 identified that school A could neither meet F’s needs nor provide him with the provision in line with his plan. There was missed opportunities to rectify this at the annual reviews in 2017 and in 2018 but the Council’s failure to amend the plans in line with statutory timescales meant F continued education with an outdated EHC Plan at a school that had said it could not meet his needs.
  5. Although the Council may make arrangements for others to carry out its statutory duties, the Council remains responsible. It is important, therefore, the Council maintains oversight and has processes in place to react when problems arise. The IPT and the external training provider placements caused F further injustice. There is no evidence of input from a qualified teacher and no evidence of adequate monitoring of any work F completed. In reality the IPT did not provide F’s SEN and he received no suitable education at the times he attended there.
  6. The Council has a non-delegable duty to ensure the provision stated in the EHC Plan is provided. F did not receive a suitable education or his special educational provision in line with his EHC Plan between April 2017 and March 2019. He then did not receive the TA provision under the direction of a qualified teacher in line with his EHC Plan between March and November 2019. Along with the impact on F’s education he also lost opportunities to develop socially.
  7. We welcome that the Council carried out a robust and thorough investigation into Mrs X’s complaint and acknowledge its acceptance of the identified faults. However, the Council’s recommended remedy following its stage 2 investigation does not in my view reflect the significant injustice caused to F by the loss of suitable education. I have therefore made recommendations in line with our guidance on remedies below.

Injustice to Mrs X

  1. The evidence shows Mrs X has spent a significant amount time and trouble pursuing her complaint. It failed to adequately deal with her complaint at stage 1. The Council’s stage 2 investigation documented the frustration and distress this matter has caused Mrs X from 2017 onwards. The Council’s failure to amend F’s EHC Plan in March 2017 meant Mrs X lost her opportunity to appeal against the school being the named placement. The Council’s 10-month delay in issuing F’s final plan in March 2019 meant Mrs X could not appeal earlier. Mrs X is left with the uncertainty that if she could have done so, F may have started at school B earlier than he did.
  2. The Council’s faults have caused Mrs X significant distress, uncertainty, frustration and time and trouble over a prolonged period of time. I have therefore made recommendations to remedy this injustice in line with our guidance on remedies below.

Agreed action

  1. Within one month of the final decision the Council agreed to:
    • pay Mrs X £5,900 to recognise the failure to deliver the provision set out in F’s EHC Plan and the loss of a suitable education between April 2017 and March 2019. Mrs X should use the payment for F’s educational benefit as she sees best.
    • pay Mrs X £1,000 to recognise the failure to deliver the provision set out in F’s EHC Plan between April 2019 and November 2019 during the period Mrs X appealed to the SEND tribunal. Mrs X should use the payment for F’s educational benefit as she sees best.
    • pay Mrs X £500 to recognise the distress, uncertainty and frustration caused by the Council’s poor handling of F’s education, its failure and delays to amend F’s EHC Plan and the time and trouble spent pursuing her complaint.
  2. Within three months of the final decision the Council agreed to provide the Ombudsman with evidence of how it has carried out the service improvements identified at the conclusion of its stage 2 investigation. This includes:
    • how it will ensure going forward that referrals of young people to IPT are appropriate
    • ensuring how the SEN panel will consider all relevant information and assessments when considering alternative placements and amendments to EHC Plans.
    • ensuring the SEN panel communicates with parents during and following the panel process about its decisions.
    • a review of how its IPT service ensures young people receive their entitlement to a full-time education. The review should include how it uses qualified teachers, how it will ensure young people receive provision in line with their EHC Plans and how it will monitor and mark work completed by the young person.
  3. Within six months of the final decision the Council agreed to carry out an audit of 10% of all children with EHC Plans ensuring there has been an up to date review, or whether there are any significant delays in issuing a final amended EHC Plan. The sample must include a number of children with EHC Plans who are receiving alternative provision because of exclusion, illness or otherwise.

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Final decision

  1. I have ended my investigation. There was fault leading to injustice and the Council has agreed to my recommendations to remedy the injustice caused by the faults.

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Investigator's decision on behalf of the Ombudsman

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