Summary: Mrs X complains about the Council’s handling of her son, Y’s special educational needs. We have not found fault with the Council’s handling and consider Mrs X could have exercised her appeal rights to the Tribunal about the content of Y’s Education, Health and Care Plans. The Council took just over month longer than it should to finalise Y’s Post-16 review, but this was not a fault that caused significant injustice to warrant a personal remedy.

The complaint

1. The complainant, whom I have called Mrs X, complains about the Council’s handling of her son’s special educational needs. Mrs X says the Council has failed to meet her son’s needs and this has resulted in failed placements at inappropriate schools since 2012. Mrs X feels the Council has not properly dealt with her requests for reviews of her son’s Education, Health and Social Care Plans (EHCP) and complaints about its handling about this. She says the Council also failed to complete a transition review in good time and the most recent annual review of her son’s EHCP was too vague and fails to meet her son’s needs. Mrs X wants the Council to acknowledge the impact of lost education provision on her son and the effect this has had on her and the rest of her family.

Matters I have investigated

2. Mrs X has told me there have been issues with the Council’s handling of her son’s education for a significant number of years. I have exercised discretion to examine elements of her concerns that mirror the Council’s final complaint response, despite these having occurred 12 months before Mrs X’s complaint to the Ombudsman.
3. Mrs X has previously complained to the Ombudsman about the Council’s handling of child in need plans for both her children (under reference 17008460), so I will not be revisiting any of the issues considered within that investigation here.

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The Ombudsman’s role and powers

4. 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)
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
6. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
7. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
8. 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’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe the injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended)
9. 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

10. I have spoken to Mrs X and considered the information she has provided in support of her concerns.
11. I have considered the information the Council has provided in response to my enquiries.
12. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
13. 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

Education, Health and Care Plan (EHC Plan)

14. A child with special educational needs (SEN) may have an 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 SEND Tribunal can do this.
15. Parents have a right to appeal to the SEND Tribunal if a council refuses to carry out an assessment, or they disagree with the special education provision or the school named in the child’s EHC Plan.
16. The court has reconfirmed that we cannot investigate a decision because it has been or could reasonably be appealed to a tribunal, and we also cannot consider the consequences of that decision. We are unable to investigate a council's alleged failure to provide alternative education for a child with special educational needs who is out of school, when the alleged failure is or could be subject to appeal. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407)

Annual Reviews

17. Councils must review EHC Plans at least every 12 months.
18. 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. The Council should 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.
19. Decisions to amend or cease a plan can be appealed to the Tribunal.

Post 16 Transition

20. If the young person is moving from secondary school to a post-16 institution, the Council must review and amend the young person’s EHC Plan before 31 March in the same year that the young person plans to move.
21. The SEND code of practice says EHC Plans ‘must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education, to allow for planning and, where necessary, commissioning support and provision at the new institution’.

What happened

22. This chronology of events does not include everything that happened.
23. Mrs X has two children, her son, Y has had a diagnosis of autism since 2008. The Council has been involved with supporting Mrs X’s family for several years because of Y’s behaviour and the impact of that on his sister, Z, and the rest of the family. Y has had a Statement of Special Education Needs since August 2008.
24. Mrs X complains the Council has failed to ensure Y’s school placements are appropriate since around 2010. Since then Y has attended two mainstream primary school placements, which ended due to the schools being unable to meet Y’s needs and him acting in ways that put other pupils at risk of harm. Y spent some time during 2014 receiving tuition at home while the Council sought an alternative school placement.
25. Mrs X says the Council has failed to meet Y’s needs at education placements as it has not included information about the specialist teaching Y required in order to help him deal with issues around emotional regulation, wellbeing, sensory processing, social communication and interaction skills. Mrs X says the Council has ignored her requests for information from specialists about Y’s needs from being included in the provision set out in his Statement of Special Education Needs and later his Education Health and Care Plan (EHCP).
26. Since 2008, the Council has had extensive engagement with Mrs X and her children. Both children have been on Child in Need plans with the Council for several years and it has tried to work with Mrs X and her husband in helping them to manage Y’s violent outbursts towards Mrs X and his sister while at home. Mrs X’s family receive a package of respite care via direct payments which are aimed at helping them manage Y’s behaviour in the home and provide Z with time away from her brother if needed.
27. The Council has suggested Y should attend a 52-week residential school placement as this would be of benefit to him in terms of structure and routine, but might also help minimise the risk to Z and Mrs X from Y’s violent outbursts. The Council agreed to consider 38-week and day placements instead in recognition of Mrs X’s concern that Y might feel like he was being sent away from home if she and her husband agreed to a 52-week placement. At various points throughout 2016, Mrs X and her husband were willing and unwilling for Y to attend a residential school placement fulltime.
28. Since December 2014, Y has attended two residential school placements with varying degrees of success. Mrs X says she has continued to raise concerns with the Council that Y’s sensory and emotional regulation needs were not being met by his placements and this is what has led to Y being excluded for short periods during February 2016. This she says has also culminated in Y receiving all education from tutors away from the main school site from May 2016 to December 2016. In November 2016, tutors reported they could not provide the agreed 2.5 hours of daily tuition to Y as he would only engage in teaching for 45 minutes each day. Mrs X and school staff had also reported occasions when Y was reluctant or refused to take medication to help with his conditions.
29. In December 2016, Y had started attending a new residential school placement for a few days to see how he managed there. Mrs X had selected placement at this school for Y, after she had been to see a number of other schools and felt these were either too far away from home, unable to meet Y’s needs or did not have a place available. The selected school offered a residential placement and felt it was able to meet Y’s needs subject to a period of transition arranged between the school and Mrs X.
30. In May 2018, the school started to report Y was having difficulties with settling into his placement and raised concerns with the Council and Mrs X that it was unable to continue Y’s placement. The school said Y was refusing or struggling to engage with the support and learning needed to attain the level of education expected and it could no longer see a meaningful way of meeting Y’s needs when he would not participate. The school informed Mrs X and the Council that it might have to serve notice on Y’s placement but would continue to support him until an alternative placement could be identified.
31. An annual EHCP review meeting was held at the school on 5 June 2018. The Council had obtained updated professional advice from a Speech and Language Therapist (SALT), Education Psychologist (EP) and Occupational Therapist (OT) in preparation for the meeting. The meeting was rescheduled to the end of June 2018 to allow Mrs X time to consider all the new professional advice. The rescheduled meeting recorded the school could no longer meet the significant changes in Y’s needs. Mrs X and her husband told the Council and school they would like Y to stay in his current placement if possible. Y received a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD) in July 2018.
32. The Council sent an EHCP amendment notice to Mrs X at the beginning of August 2018. It chased a response from Mrs X in early September 2018 because she had not indicated a preferred school placement for Y. Mrs X authorised the Council to consult with potential placement providers on her behalf. The Council approached three schools about whether they could meet Y’s needs. One of the schools approached asked to assess Y to see if it could offer him a place. Mrs X refused the assessment as she was concerned how Y would react if he knew he would be leaving his current school placement. Mrs X also asked the Council to review Y’s existing school placement as it appeared he was making good progress on a reduced timetable. Y’s current school confirmed he was able to stay on placement until Post-16 provision could be arranged.
33. The initial Post-16 option meeting took place at Y’s school on 27 November 2018. The school suggested several residential options for Y and the Council sent Mrs X details of those options available for Y within the county for her to consider.
34. A further multi-agency meeting, including Y’s school, social care and specialist support services, was held in January 2019 to discuss Y’s Post-16 options in detail. Further reviews of what Y wanted to do Post-16 were arranged and the Council sent Mrs X an EHCP amendment notice to facilitate Y’s eventual transfer to his new placement. Mrs X reported at the end of January 2019 that Y was struggling at school and in choosing what he wanted to do next. The school reported Y’s behaviour was becoming increasingly challenging and he was no longer engaging in provision, even when this was provided offsite. The school indicated it could not continue Y’s placement Post-16. Mrs X complained about Y’s lack of attendance and the school explained it was trying to get Y to engage in lessons.
35. Two further multi-agency meetings took place on 7 February and 5 March 2019. It was agreed further work was needed to help gather Y’s views for Post-16 options and to finalise the transfer review. The Council suggested Y might benefit from the help of an advocate to gather his views, but Mrs X felt this was not needed. The Council consulted with three local colleges Mrs X had selected for Y’s Post-16 provision.
36. At the end of March 2019, one of the selected colleges (College A) confirmed it could offer Y a place, but he would need to apply for a course. Mrs X told the Council Y preferred another of the consulted colleges (College B), which had suggested Y attended a taster day before it offered him a place. At the beginning of May 2019, Mrs X confirmed Y would like to attend a course at College A and the Council named this on Y’s EHCP. The Council sent Mrs X formal notice of the amended EHCP on 3 May 2019, confirming Y’s start at College A in September 2019.
37. In June 2019, there was an annual review meeting held by Y’s school, which included discussions around Y’s Child in Need Plan. Mrs X expressed concerns to the Council that the meeting did not sufficiently review Y’s EHCP and that proper preparations had not been made for Y’s smooth transition to College A. The Council responded in July 2019 to explain it had not received minutes of the review meeting from Y’s school and that it could not consider whether to maintain or amend Y’s EHCP until it had the minutes. The Council also asked Mrs X to provide information about Y’s ADHD diagnosis so this could be considered against his EHCP. The Council received the annual review papers from the school in mid-August 2019. On 19 August 2019, the Council sent Mrs X notification that it would be maintaining the EHCP it had issued for Y in early May 2019.
38. Y started his chosen course at College A on 1 September 2019. The Specialist Support Service involved with Y emailed Mrs X a few weeks later to check how Y was getting on. In mid-May 2020, College A completed an annual review meeting about Y’s progress since starting, which Mrs X and Y attended. The Council agreed to maintain the existing EHCP in place for Y so that he continued to receive the support needed to achieve the outcomes set out within the plan.

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Analysis

39. Y has clearly struggled at most of his school placements for a number of years. There is no doubt of the significant impact this and Y’s behaviour has had on the rest of his family, in particular Mrs X and her daughter Z.
40. The Council has extensively engaged with Mrs X, her husband, children social care and all of Y’s school placements in an effort to ensure Y received education appropriate to his needs. If Mrs X had concerns about the support described within Y’s EHCPs over the years or the choice of school placement, she had the ability to exercise her rights of appeal to challenge this at the SEND Tribunal. I cannot now act in place of the Tribunal and find fault with the Council in this respect if Mrs X chose not to exercise those appeal rights at the time.
41. Where there were issues with Y’s placements, the evidence shows the Council worked with placement providers and Mrs X (and her husband) to find ways of ensuring Y received alternative education appropriate to his needs at the time. These were clearly very difficult incidents for all involved, not least because of the significant impact on Mrs X and Z of Y’s violent outbursts while at home. The Council suggested Y might benefit from a fulltime 52-week residential school placement, but Mrs X and her husband’s chose not to pursue this option. I have no doubt this was an extremely difficult situation for Mrs X and her husband and it is not possible to now say whether this approach would have been any more successful than the alternative options. I am not however persuaded there is evidence of fault in the Council’s approach to be led by the preferences of Y’s parents in how and where his education needs were met.
42. Mrs X has complained that Y’s EHCPs over the years, especially in 2018, have been too vague to meet his needs. Where appropriate and requested, the Council has sought up to date assessments from SALT, OT and EP to help inform the content of Y’s EHCPs. If Mrs X was dissatisfied with any of this, she should have exercised her appeal rights with the SEND Tribunal at the time.
43. The Post-16 Review process was not completed by 31 March 2019, in line with the SEND Code of Practice. The Council did however start the review process in sufficient time with a view to completing by the end of March. It is unfortunate the process took a little over a further month to complete in early May 2019. In response to my enquiries the Council has accepted it should have named College A on Y’s Post-16 plan by 31 March 2019 as the college had confirmed Y’s place before this date. This would have given Mrs X and Y access to their SEND Tribunal appeal rights sooner. While this was fault by the Council, I am not persuaded the delay caused injustice to Mrs X or Y that would warrant recommending the Council takes action to remedy that fault. This is because Mrs X would not have needed to exercise appeal rights as Y is attending his preferred choice of college.

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Final decision

44. I have completed my investigation with a finding of fault by the Council which does not cause significant injustice to warrant a personal remedy.

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Investigator's decision on behalf of the Ombudsman