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London Borough of Merton (19 011 001)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 21 Sep 2020

The Ombudsman's final decision:

Summary: Mrs X says the Council took too long to issue an EHC Plan for her son, A, and left him without education for several months, costing the family money and damaging its health. There was fault by the Council causing loss of education for A and unnecessary time and trouble for Mrs X. It will apologise, pay Mrs X £2550, and remind its staff that the Council cannot devolve its alternative education duty to a school.

The complaint

  1. The complainant, whom I shall call Mrs X, complains the Council:
      1. Took too long to issue her son, A’s Education Health and Care (EHC) Plan, and delayed consulting with schools;
      2. Did not arrange a speech and language therapy assessment, which meant Mrs X had to do it;
      3. Did not name a school on the EHC Plan;
      4. Did not provide any education for A from 18 October 2018 to 1 May 2019; and
      5. Did not communicate with Mrs X properly (she says the Council lied about reasons and did not translate the EHC Plan into another language like it agreed).
  2. Mrs X says this damaged the family’s health and cost her money.

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What I have investigated

  1. I have investigated complaints a), b), d) and e). I give my reason for not investigating Complaint c) at the end of this statement.

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The Ombudsman’s role and powers

  1. 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)
  2. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
  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. 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 read Mrs X’s complaint and attempted to speak to her on the telephone. I made written enquiries of the Council and considered the information it sent me in response. I considered information Mrs X sent me. I considered the Council’s duties in accordance with the SEN Code of Practice 2015 (the Code), the Education Act 1996 and the Equality Act 2010. I also considered the Ombudsman’s Guidance on Remedies.
  2. I shared a draft of this decision with both parties and invited their comments. I received none.

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What I found

  1. A’s family’s first language is not English. A also has a significant hearing loss.
  2. A had difficulties at school. These worsened and he received sanctions for poor behaviour.
  3. In October 2018, A’s school said it could not meet his needs. He was out of education from 18 October 2018 and the Council accepted he needed an EHC Plan. The complaints below concern what happened next.

Complaint a): The time the Council took to issue an EHC Plan and consult with schools

  1. The Code says councils that agree to issue an EHC Plan must do so within 20 weeks of getting the request.
  2. The Council accepts it issued the EHC Plan 10 weeks late, on 17 May 2019 rather than 7 March 2019. The Council says it started contacting potential schools from 19 March 2019.This was once the deadline to complete A’s EHC Plan had already passed. The delay of 10 weeks by the Council was fault. The Council apologised to Mrs X when she complained about this. I will deal with the injustice caused later in this statement.

Complaint b): Arranging a speech and language assessment

  1. The Code says councils that issue EHC Plans must carry out the assessments they decide a child needs.
  2. The Council says it accepted on 1 November 2018 that A needed a speech and language assessment, but that it got delayed. It says Mrs X offered to arrange a speech and language assessment for A, but that she did not arrange one. The documents Mrs X sent me suggest the same, that she offered, but that in the end she did not have to do it. I do not therefore find Mrs X had to supply her own speech and language assessment.

Complaint d): Not providing education for A from 18 October 2018 to 1 May 2019.

  1. S.19 of the Education Act 1996 creates a duty for councils with education responsibilities to make alternative educational provision for children who are out of education by reason of “illness, exclusion from school or otherwise”. The only exception is where the child is a truant and should be attending the school. The duty under s.19 is for full-time education unless full-time is not suitable for the child’s needs. Councils cannot rely on the fact that a child remains on a school roll if he or she is not able to attend the school. And they cannot devolve their duty to the school. It is a matter of logic that a council’s duty only starts after it becomes aware of the child being out of school.
  2. The Ombudsman takes the view that a period of three school weeks is sufficient to make alternative educational provision. This is because government guidance on children who are unable to attend school for health reasons specifies 15 school days as the time after which education should start. And children who are permanently excluded from school are entitled to full-time education arranged by the Council from the sixth day of absence. We see no reason why the period without education for a child whose absence is “otherwise” should be longer than the greater of these two times.
  3. As the records suggest A was also not in full-time education before 18 October 2018, I asked the Council and Mrs X about this. The Council says it was not aware of A being out of education until 18 October 2018, by which time his placement had broken down and Mrs X had asked the Council for an EHC Plan. The emails Mrs X provided asking the Council to find a school place for A dated from after 18 October 2018. I am therefore satisfied the Council’s duty to make alternative educational provision for him started three school weeks after 18 October 2018. Allowing for the half-term holidays, this was 15 November 2018.
  4. The Council says A was not in education until 17 January 2019, when he attended a new school for a week before the placement broke down on 25 January 2019. It says he could have had one-to-one tuition his old school, but that Mrs X rejected this because it would have meant a long bus ride as the family had moved. The Council says it offered home tuition in April 2019, but that A was on roll at his old school until 17 May 2019. It confirms it did not take action to enforce attendance at the old school.
  5. As the Council took no action to enforce attendance, A’s time out of education was not truancy. I have seen no evidence of an offer by the Council of one-to-one tuition at A’s old school, whether full or part-time. The emails Mrs X sent me show she and her husband asked the Council several times to find a school place for A. I do not accept that A’s old school was responsible for his education after 18 October 2018.
  6. I therefore find the Council failed to make alternative educational provision for A from 15 November 2018 to 17 January 2019. Allowing for the Christmas holidays, this was a period of about seven school weeks.
  7. The Council found a school place and A attended from 17 to 25 January 2019. It was not the Council’s fault that the placement broke down. I note that while A was responsible for disciplinary breaches, his first language is not English, and he has significant hearing loss. Adjusting to a new school would not therefore have been easy for him. However, where a child has had two failed school placements, it is harder for a council to find another placement because schools are often reluctant to admit such children. Sometimes, it is only by naming a school on an EHC Plan that a council can secure a place. However, councils still have a duty to make alternative educational provision, whether via home tuition or a pupil referral unit (PRU). Three weeks after 25 January 2019 was 15 February 2019.
  8. I note that the emails for Mrs X and her husband asked the Council to provide a school place rather than a PRU, but I have seen no evidence the Council made any offer of full-time education in any form before that which secured a new school place for A on 1 May 2019. Had it done so, that would have discharged its duty, regardless of whether Mrs X had accepted it.
  9. In the absence of any evidence of an offer of full-time education for A, I therefore find the Council failed again to make alternative educational provision for A from 15 February to 1 May 2019. Three weeks of this period were school holidays, so the education missed was about 11 weeks.
  10. Taken with the earlier period, the Council failed to make alternative educational provision for A for a total of about 18 weeks, which is about one and a half school terms.

Complaint e): Communicating with Mrs X

  1. Public bodies have a duty under the Equality Act 2010 to consider making adjustments to their usual practice to meet someone’s need. They must make the adjustment if they find it is reasonable to do so.
  2. Mrs X asked the Council to translate the EHC Plan into another language. As it agreed to do so, I assume it decided this was a reasonable adjustment. But the Council did not translate the EHC Plan as agreed for when Mrs X came to a meeting. The Council accepted this was fault and apologised.
  3. Mrs X says the Council lied to her in its correspondence. I do not find it did so. Instead, I can see there was some confusion in its correspondence. While that confusion is the Council’s fault, it is not the same as lying, which would be a deliberate attempt to mislead someone.

Injustice caused by fault

  1. The Council was responsible for A’s education from 15 November 2018 until 17 January 2019, not including the Christmas holidays. It was responsible again from 15 February to 1 May 2019, not including the February half-term and Easter holidays. A therefore had no education because of fault for a total of about 18 school weeks, or about one and a half school terms. This loss of education was injustice.
  2. The late EHC Plan would have delayed SEN provision for A by 10 weeks, eight weeks of which was school time. But A was not in education at all, so there was no additional injustice to him from this.
  3. Mrs X says she incurred legal costs in dealing with the Council. However, the SEND Tribunal service and the Ombudsman are both free for members of the public. All the issues she complains of can be resolved by them. I do not therefore find fault by the Council obliged Mrs X to incur legal costs. It is not possible to establish any direct link between the Council’s actions and the health of family members. But I acknowledge having a child out of education is not likely to improve matters.
  4. The Council’s poor communications and the failure to translate the EHC Plan caused Mrs X unnecessary time and trouble in chasing the Council. This was injustice.

Remedy

  1. I note the Council has already apologised for the late EHC Plan and communication issues. I welcome that. I also note it has offered £300 for Mrs X’s time and trouble. I would have recommended a similar sum had it not done so.
  2. The Council has offered £400 for missed SEN provision for A in March and April 2019. However, in view of my findings, I recommend it should go further, making a payment for lost education rather than lost SEN provision.
  3. Where a child loses education, it is not possible to regain the time lost. We usually recommend a financial remedy based on an amount per school month lost of between £200 and £600. That is between £600 and £1800 per school term. The amount we recommend depends on several things. A child who would not normally attend school full-time has lost fewer hours of education than one who would, for example. Children with SEN are at a disadvantage compared to other children, and so worse affected by the loss of education. And those children nearing public examinations have little time to make up lost ground, sometimes having to re-take a year to gain the qualifications they need, or risk getting worse grades. Where a parent has declined offers of education during the period out of education, the injustice is likely to be less.
  4. A has SEN, and he was in Year 10 when he was out of education. He was studying GCSE courses full-time that are taught over five school terms. He missed one and half of those terms. He has some responsibility because of his age and understanding and the way the school placement arranged by the Council failed. However, his responsibility is not large and does not greatly affect the remedy I agreed below.

Agreed action

  1. The Council will, within one month of the date of the final decision:
  • Apologise to Mrs X for failing to make educational provision for A for 18 weeks, or one and half school terms during the academic year 2028-19; and
  • Pay Mrs X £300 for her time and trouble in having to chase the Council, and £2250 for A’s lost education, at a rate of £500 per month, or £1500 per school term, making a total payment of £2550.
  1. To prevent a repeat, the Council will, within one month of the date of the final decision:
  • Remind relevant staff that the Council cannot devolve its duty under s.19 of the Education Act 1996 to a school.

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Final decision

  1. I have upheld the complaint and closed the case as the Council has agreed to provide a suitable remedy for the injustice caused by fault.

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Parts of the complaint that I did not investigate

  1. I did not investigate Complaint c). It is for the SEND Tribunal, not the Ombudsman to decide what the content of an EHC Plan should be.

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Investigator's decision on behalf of the Ombudsman

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