Summary: Mr X complained about the way the Council considered his son, Y’s special educational needs. He said Y missed out on support as a result. The Council was at fault for amending Mr X’s address without checking with him and for not sending sensitive information securely. There is no evidence of fault in the process leading to decisions about Y’s special educational needs.

The complaint

1. Mr X complained the Council:
1. Failed to carry an Education, Health and Care (EHC) needs assessment for Y when he requested this in January 2017;
2. Failed to support Y despite being aware of his special educational needs;
3. Allowed Y’s school to remove him from its roll;
4. Did not properly consider his second request for an EHC assessment in January 2019;
5. Did not support Y when he was out of school in June and July 2019;
6. Did not consult him properly when it carried out the EHC needs assessment in 2019; and
7. Sent sensitive information to the wrong address in October 2019.
2. He says his child has missed out on support and he has been put to avoidable time and trouble of pursuing the Council.

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The Ombudsman’s role and powers

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. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. I have exercised my discretion to investigate Mr X’s complaint because he has been dealing with this and related matters throughout the period 2017 to 2019.
7. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
8. 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)
9. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
10. Mr X has lodged an appeal to SEND following the Council’s decision not to issue an Education and Health Care (EHC) plan. This is the appropriate way to challenge the Council’s decision. I have not investigated how the Council reached this decision because it is too closely linked to the appeal.
11. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
12. 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)
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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How I considered this complaint

14. I spoke to Mr X and considered the information he provided.
15. I considered the Council’s replies to my enquiries.
16. I considered relevant law and guidance, as set out below.
17. Mr X and the Council had an opportunity to comment on my draft decision and I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Special educational needs

18. Where a child may have special educational needs their parents or school can ask the council to carry out an Education, Health and Care (EHC) needs assessment. The council should consider the request and decide whether to carry out an assessment within 6 weeks. If the council refuses to carry out an assessment the parents can appeal to the SEND tribunal.
19. The Council’s policy says it will request information from the parents and the child’s school. It will also ask professionals within social care, its education inclusion service and health services for any information they hold. The decision about whether to carry out an assessment is made by its Special Educational Needs and Disability (SEND) panel. Where the panel agrees to assess, the Council will seek further information from professionals, including an educational psychologist.
20. After carrying out an assessment, including consulting with relevant professionals, the council will decide whether or not to issue an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. If the council refuses to issue an EHC plan the parents can appeal to the SEND tribunal.
21. Where there is a right of appeal to the SEND tribunal we would usually expect parents to exercise that right. Where there is an appeal we cannot consider any complaints that are closely related to the subject of the appeal.

School roll

22. Schools keep a record of children attending called the roll. When a child moves to another school or is permanently excluded the school will remove their name from the roll. Schools must tell the council when they remove a child’s name from the roll.

Child out of school

23. The law says councils must make suitable full-time educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision must be suitable for the child’s age, ability and aptitude, including any special needs. The provision may be part-time where the child’s physical or mental health means full-time education would not be in their best interests. (Section 19 of the Education Act 1996, as amended).
24. Statutory guidance says education should be provided as soon as it is clear the child will be away from school for 15 days or more, and should address the needs of the individual child. (Statutory guidance: Ensuring a good education for children who cannot attend school because of health needs, 2013).
25. Where a child is not attending school, the council may serve a notice requiring parents to satisfy them that their child is receiving suitable education. If the council is not satisfied, it may issue a School Attendance Order. Councils can prosecute parents who do not comply with a School Attendance Order.

What happened

(a) First request for an EHC assessment (2017)

26. Mr X asked the Council to carry out an EHC assessment in January 2017. The Council acknowledged the request in 2017. It did not carry out an assessment nor did it issue a decision refusing to do so. Mr X said he asked for an update in April 2017 but the Council did not reply. He says Mrs X sent a further email in May 2017. I have seen no record of any further contact by Mr or Mrs X about this until early 2019.
27. The Council said it had no record of the original request and the person who was dealing with it at the time no longer works for the Council. It accepted this was overlooked and has apologised. It said it was not aware of the oversight until Mr X made a second request in early 2019.

Finding

28. The Council should have issued a decision notice to Mr X within six weeks of the request for an EHC assessment. It did not do so and this was fault. This fault meant Mr X was denied the right to appeal to the SEND tribunal in 2017.
29. The Council apologised for its oversight, which did not come to light until early 2019. This was an appropriate remedy given that Mr X did not contact it again about this between April 2017 and early 2019.

(b) Failure to support Y in 2017

30. Mrs X said the Council was aware of Y's special educational needs (SEN) because the Council was involved in investigating a complaint he made to school 1 and to Ofsted in February 2017. The Council’s report to Ofsted in May 2017 shows it considered the concerns about Y in some detail but did not identify any special educational needs (SEN). The Council’s vulnerable learners’ team worked with the class teacher to address behavioural issues within the class and how they could be better managed. The focus of that work was on the class as a whole, and on supporting the teacher with appropriate strategies.

Finding

31. Council records show the school had not identified Y had SEN and no SEN were identified when the Council was working with the school. The Council did not therefore have any duty to provide additional support for Y. It was not at fault.

(c) Removal from the school roll

32. Mr X said he removed Y from school 1, in February 2017 because of bullying. His intention was that this would be temporary and Y would return to the school in September 2017. In the meantime, Y attended school 2, an independent school. He said by September 2017 school 1 had removed Y from its roll and his place had been allocated to another child.
33. School 1 told the Council Mr X had removed Y from the school. The Council contacted school 2 to check he was receiving a full-time education there. It asked school 2 about Y being dual registered, which means being on the roll for both schools. School 2 refused to do this. It said Y was fully registered and would not be returning to school 1. It said it would ask Y’s parents to confirm this. In addition, school 1 wrote to them also asking for confirmation of their intentions. As they did not reply, school 1 removed Y from its roll on 3 March 2017. School 1’s letter was later returned by the post office because it had not been able to deliver it (as a signature was required) and the addressee did not collect it as requested.

Finding

34. The Council assured itself Y was in full-time education and was on the roll at school 2. There is no record that either school 1 or the Council was aware Mr X wanted Y to return to school 1 in September 2017. It is not clear whether school 1 could have kept the place open in any event. The Council was not at fault.

Move to school 3

35. Mr X says school 2 could not meet Y’s needs and Y moved to school 3 in April 2018. At school 3’s suggestion Mr X requested occupational therapy (OT) and paediatrician assessments through his doctor in November 2018. The request was declined.
36. Mr X paid for a private educational psychologist assessment in January 2019. He paid for a private OT assessment in February 2019 and a dyslexia assessment in March 2019.

(d) Second request for an EHC assessment

37. Mr X contacted the Council about the EHC assessment in January 2019. The Council said it had no record of the original request. It asked him to submit a new request form, which he did.
38. The Council consulted with school 3, social care, its vulnerable learners’ service and health, in accordance with its usual policy. It says its vulnerable learners’ service did not have information on Y because the work the team did with school 1 was not focussed on him specifically. It said Y was not known to the education psychology service.
39. Although it had not received the information requested from school 3, the Council’s panel considered the matter in February 2019 and decided Y did not meet the criteria for an EHC assessment. It wrote to Mr X to confirm its decision.
40. In response to my enquiries the Council confirmed it had considered the responses of all consultees and the information provided by Y's parents, including the private educational psychologist’s report.
41. School 3 sent the information requested, which the Council considered at a later panel. It wrote to Mr X in early March to confirm its decision not to carry out an assessment. It said Y’s skills were broadly within the average range for his age and he could be supported effectively within school resources.

Findings

42. The Council asked Y’s parents to complete a consultation form. It confirmed it considered the information they provided, including the private educational psychologist’s report. Therefore, I am satisfied the Council did consult Mr X.
43. The Council consulted with school 3 and with relevant professionals specified within the Code. It did not chase the school 3 for a response. That was fault. That meant when its panel considered the case, it did not have all relevant information.
44. There is no significant injustice because the panel reviewed the case when the school information was available. It sent a fresh decision letter to Mr X. This was 7 weeks after the application was made. Although the Council should have sent its decision within 6 weeks, I do not consider this delay is sufficient to warrant a finding of fault.

(e) Child out of school

45. Mr X was unhappy with the decision not to assess and appealed to the SEND tribunal. During this process it became clear there were difficulties with school 3. Mr X says school 3 could not meet Y’s needs and he agreed to withdraw Y in June 2019. Y was out of education during June and July 2019.
46. The Council said it was not aware Y was out of school. It said the tribunal papers suggested Y would not return to school 3 in September. However, neither Mr X nor the school informed the Council he was out of school. The Council said it was not aware of this until school 4 contacted it to request information prior to Y starting there in September 2019.

Findings

47. I have seen no record to show the Council was aware Y was out of school in June and July 2019. Therefore it was not in a position to provide alternative education or offer advice about alternative placements. The Council was not at fault.

(f) EHC assessment

48. The tribunal ordered the Council to carry out an EHC needs assessment in August 2019. Immediately following the tribunal hearing the Council wrote to Mr X to confirm it would carry out an EHC needs assessment. It sent him a form to send it relevant information.
49. Mr X says he did not hear from the Council and made various attempts to contact the Council about the needs assessment during August. He got a number of “out of office” replies before speaking to an officer on 15 August, who said a further letter would be sent.
50. School 4 confirmed the Council had consulted with it but Mr X said he did not have any input into the school’s response nor have sight of it until early October 2019. He then provided an updated statement to the Council setting out how he disagreed with the school’s assessment and pointing out that Y had only been at school 4 for three weeks when it was consulted.
51. The Council also requested reports from the community paediatrics service, an educational psychologist and from speech and language therapy. It considered this information at its panel in October 2019. It also considered information provided by Mr X, which included the private assessment reports he had obtained between January and March 2019.
52. The panel decided not to issue an EHC plan. It said Y’s needs could be met from resources available within school 4. Mr X was unhappy with this decision and appealed to the SEND tribunal. He was also unhappy with the way the Council handled the assessment and its lack of consultation with him.

Findings

53. The Council consulted with school 4 and requested reports from relevant professionals as specified in the Code and in accordance with its policy.
54. The Council gave Mr X an opportunity to share information with it, which it considered. Mr X did have sight of school 4’s report and was able to comment on it before the case was considered by the panel. The Council confirmed it did not share other reports with Mr X before they were considered by its panel, which would be good practice. It says it is currently exploring whether it can do this in future as part of a new online system it is developing.
55. The Council considered the information at its panel and wrote to Mr X with its decision, setting out its reasons. There is no evidence of fault in the decision-making process.
56. Mr X was unhappy with the decision not to issue an EHC plan. He appealed the decision, which was the appropriate way to challenge it. The Council has now agreed to issue an EHC plan.

(g) Sensitive information sent to the wrong address

57. The Council sent the decision letter, together with all the information its panel had considered, to an incorrect address. It said the address was stated as the “correspondence address” on the consultation form school 4 sent it so it had amended its records. Mr X discovered the error when he contacted the Council to report he had not received the decision letter.
58. Mr X said he did not give that address to the school. He thinks the Council put that information on the form. The address related to a flat his wife had lived at, which had recently been sold.
59. The Council accepted it should have sent sensitive information more securely and said it will do so in future. It says Mr X has not confirmed to it that the family no longer owns the property.

Findings

60. I cannot say who wrote the incorrect address on the form, but I do consider the Council should have checked with Mr X before amending its records of his address. The failure to do so was fault. It Council accepts it should have sent sensitive information more securely and that was further fault. That fault caused distress to Mr X who was worried about sensitive information about his son falling into the wrong hands.
61. There is no evidence that a third party has received sensitive information about Y but if Mr X is still concerned he should refer the matter to the Information Commissioner.

Agreed action

62. The Council will, within one month of the date of the final decision, apologise for amending his address without checking with him first and for not sending sensitive information securely.
63. The Council will, within three months of the date of the final decision, remind relevant staff to check with parents before amending their address based on information sent to it by a third party, such as a school.
64. The Council has already said it will send sensitive information more securely in future so no further recommendation was needed it relation to that.

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Final decision

65. I have competed my investigation. I found fault leading to personal injustice. I recommended action to remedy that injustice and prevent recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman