Kent County Council (19 004 037)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 26 May 2020

The Ombudsman's final decision:

Summary: Mrs Y complains the Council failed to offer appropriate education to her son, Z, when he was out of school, and also failed to provide suitable transport when he was in school. There is evidence of fault and the Council has agreed to apologise and make a payment for missed provision and distress.

The complaint

  1. The complainant, Mrs Y, complains that Kent County Council (the Council) failed to provide transport to school for her son, Z, from 26 February to 20 April 2018 and then failed to make a payment to her for the transport until May 2018. The Council also failed to identify a school for Z to attend from July 2018 until July 2019 but did not provide him with any interim education.

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What I have investigated

  1. I have investigated Mrs Y’s complaint. However, I am not considering matters where she could have appealed to SEND in order to get a specific school named in Z’s EHCP. I explain more at the end of this statement.

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The Ombudsman’s role and powers

  1. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
  2. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
  3. 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)
  4. 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.
  5. The Council is responsible for making sure that 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.
  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)

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How I considered this complaint

  1. We considered the information submitted by Mrs Y and spoke to her on the telephone. We made enquiries of the Council and assessed its response. We have sent Mrs Y and the Council copies of our draft decisions and taken their comments into account before issuing a final decision.
  2. 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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What I found

Provision of transport

  1. Mrs Y’s son Z has special educational needs. Mrs Y had appealed to SEND about the placement named in his EHC plan. During this process the Council agreed to name School B in section I of the plan.
  2. On 5 February 2018, School B confirmed Z’s start date as 26 February. By 20 February 2018 the Council had organised transport for Z and named a specific car. I am unclear if it notified Mrs Y or her representative of this point.
  3. On 23 February the SEND tribunal issued its decision, acknowledging the Council would make an amendment to Z’s EHCP to name School B and the Council issued the amended EHC plan the same day. (The law requires a council to issue an amended EHCP within five weeks of a tribunal decision).
  4. Prior to this Mrs Y’s representative (REP) had suggested to the Council (on 7, 15 and 20 February) that Mrs Y was willing to take her child to school for the ‘interim’ providing she was reimbursed. This indicates that neither the REP nor Mrs Y were aware that transport had been arranged.
  5. The Council advised REP on 23 February 2018 that if Mrs Y wished to transport Z to school herself she could apply for a personal budget to do so. It did not explain that the arranged transport would be cancelled, that arranging a personal budget would take a little time and that she would not be paid until the agreement had been signed.
  6. However, some of this information is available on the Council’s website as part of the application process:

Payments will be calculated from the date that the parental agreement form is returned…Payments are not backdated and no refunds are provided if your application for a PTB is processed within 6 weeks of receipt of the application…Please be aware that PTB applications require additional information about journey costs from transport providers and so can take longer to assess than standard transport applications.

  1. The Council started the personal budget process on 20 March 2018. It completed the process on 22 March 2018 and sent the agreement form to Mrs Y. The Council says the form made clear that payment would not be made until the agreement form had been signed and returned and the next payment date was on 23 March 2018.
  2. Mrs Y says she wasn’t able to sign it quickly due to work commitments and it was unreasonable to ask her to return the form in such a short space of time. Mrs Y returned the form on 20 April 2018. Due to the monthly payment cycles she was not paid until May 2018 and the payments were backdated to 20 April 2018.

Analysis

  1. The law requires the Council to issue an amended EHC plan within five weeks of the tribunal order. The Council did this on 23 February 2018 on the same day as the tribunal confirmed its decision and the Council had transport lined up for Z to start at the school on 26 February 2018. There is no fault here.
  2. However, Mrs Y was not aware of the transport arrangements and in any event wished to transport Z herself. The Council said it would set up a personal budget for this and said Mrs Y needed to make the request, which she did on 24 February 2018.
  3. It appears she assumed that the Council would pay from the school start date, whereas the Council’s procedure meant that nothing would be paid until the agreement was completed and returned. Although the Council did not communicate this directly to Mrs Y, the information is clearly available on the website in several places. So, I have concluded the information was available for Mrs Y to make an informed choice about the transport options.
  4. The Council did not start the personal budget process for almost a month until 20 March 2018. It accepts this was avoidable delay but has balanced this against Mrs Y’s delay in returning the personal budget agreement until 20 April 2018. The website indicates that the process will take longer than a standard transport application, that payments will be calculated from the date the parental agreement form is returned and the payments will not be backdated.
  5. I accept it was unreasonable to expect Mrs Y to return the form by 23 March 2018, but she delayed a further four weeks, not returning it until 20 April 2018. This was not due to fault by the Council and it has backdated the payments in accordance with its transport policy. I consider the Council’s communication could have been clearer but given the information available on the website I do not consider the Council should backdate the payments to an earlier point.
  6. I also note the Council says Mrs Y has not paid back an overpayment of transport costs. However, Mrs Y has provided some evidence that she has paid this. I will pass this information to the Council for it to investigate.

Finding a school and provision of education

  1. Councils have legal duties under Section 19 of the Education Act 1996 to provide appropriate full-time education to a child where they cannot attend school because of exclusion, medical reasons or ‘otherwise’.
  2. At Z’s Annual Review on 9 July 2018 all parties agreed to remove Z from School B as the placement had broken down and the school no longer felt it could meet his needs. A change of placement to a specialist school setting was identified as appropriate. Mrs Y requested that the Council consult with two specific schools.
  3. Z stopped attending school B on 9 July 2018. The Council says it was informed of this on 12 September 2018. The Council consulted with three specialist settings and held an emergency annual review in October 2018. Mrs Y said the Council failed to tell her the outcome of the review within six weeks. By the end of November 2018 all the settings had declined to offer a place as they were unable to meet Z’s needs
  4. Z was due to transfer from primary to secondary education in September 2019, so the Council had to issue a final EHC plan by 15 February 2019. The Council issued a final EHC plan for Z on 14 February 2019 but named the type of school as opposed to a specific school. Mrs Y was given the right of appeal to the Tribunal in the decision letter.
  5. The Council says it offered Mrs Y alternative tuition for Z but she turned it down as she felt it would not be appropriate for Z. The Council has not been able to provide evidence of this.
  6. The Council could not find a placement for Z. In September 2019 Mrs Y requested funding for a package of education other than at school (EOTAS). The Council agreed to this and is due to review the situation in June 2020.

Analysis

  1. Mrs Y had the right to appeal to the Tribunal and ask for a specific school, within two months of the final EHC plan being issued in February 2019. Going to tribunal may have given Mrs Y the outcome she wanted of identifying a specific school for Z.
  2. But the Council should have provided Z with education from September 2018 to February 2019 and then from April to July 2019 (a period of approximately eight and a half months). The failure to do so was fault. The Council had previously offered education otherwise than at school to Z and should have put this back in place. I note it told Mrs Y, in its complaints response, she had turned down an offer of temporary home tuition but I have seen not evidence of this and when Mrs Y asked the Council for evidence, it did not provide anything. This is fault.

Injustice

  1. The fault caused significant injustice to Z as he was out of education for a long period of time. It also caused Mrs Y considerable distress and time and trouble in trying to resolve the matter.

Agreed action

  1. In recognition of the injustice identified above, I asked the Council (within one month of the final decision) to:
    • apologise to Mrs Y and Z;
    • make a payment of £3,400 for Z’s missed education (£400 per month). Through at least part of this time, given Z’s anxieties, I cannot see he would have been able to benefit from full time education and this sum acknowledges that.
    • to make a payment of £500 for Mrs Y’s distress and time and trouble over this time; and
    • change its procedures to ensure it offers appropriate full-time education to children out of school given its duties under the Education Act 1996. This is the case even where parents may disagree with what is offered given the duty is to the child
  2. The Council has agreed to my recommendations.

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Final decision

  1. I consider this is a proportionate way of putting right the injustice caused to Mrs Y and Z and I have completed my investigation on this basis.

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Parts of the complaint that I did not investigate

  1. I did not investigate part of the complaint where Mrs Y had access to the tribunal in order to obtain a suitable placement for Z. We are unable to look at the time from when an appeal was permitted to two months after. This is because the tribunal would have offered a remedy to Z not having a school place.

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Investigator's decision on behalf of the Ombudsman

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