Privacy settings

LGO logogram

Review your privacy settings

Required cookies

These cookies enable the website to function properly. You can only disable these by changing your browser preferences, but this will affect how the website performs.

View required cookies

Analytical cookies

Google Analytics cookies help us improve the performance of the website by understanding how visitors use the site.
We recommend you set these 'ON'.

View analytical cookies

In using Google Analytics, we do not collect or store personal information that could identify you (for example your name or address). We do not allow Google to use or share our analytics data. Google has developed a tool to help you opt out of Google Analytics cookies.

Surrey County Council (19 012 447)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 06 Dec 2021

The Ombudsman's final decision:

Summary: Mrs C complains about the Council’s delay in meeting her son’s special educational needs, including a delay in carrying out an EHC assessment. She also complains the Council delayed providing suitable education when her son was not medically fit to attend school. The Ombudsman view is that large parts of Mrs C’s complaint is outside our jurisdiction, partly because Mrs C has used her right of appeal. But the Ombudsman has found fault with some of the complaint we have considered – in particular a failure to provide Mrs C’s son with alternative education.

The complaint

  1. The complainant, whom I shall refer to as Mrs C, complains:
      1. that, despite an awareness that her son (whom I shall refer to as D), has complex needs, the Council delayed assessing his special educational needs;
      2. there have been issues with the information the Council considered during the Education Health and Care (EHC) plan assessment and appeal process. These include:
  • information in its educational psychologist’s report. This includes some uncertainty whether a panel saw a draft or final version of the report;
  • many of the recommendations in the educational psychologist’s report were not incorporated into the EHC plan;
  • that information Mrs C supplied from reports they commissioned were not adequately incorporated into the EHC plan;
  • information about Mrs C in the ‘family story’ part of the EHC plan;
  • an educational psychologist carried out a further assessment despite an agreement she would not do so;
      1. the EHC plan was changed and finalised without notifying her;
      2. the Council is saying their representative did not get back to it with information. In fact the poor communications were the other way around;
      3. delays, including with:
  • the speech and language assessment;
  • referrals;
  • the complaint responses;
      1. the Council did not provide any support for over a year;
      2. the Council has used a benchmark of four hours for what tutoring D should have been getting from January 2020. But that figure is based on what they paid for themselves. Mrs C’s view is D could have dealt with more hours. But they could only afford to commission four hours;
      3. the Council has appeared to base its decisions on the support D needs on costings calculations;
      4. she has not had the written apology about mishandling of information.

Back to top

The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. we 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)
  3. We cannot investigate a school’s special educational needs support in the time before a council issues an EHC plan. The Special educational needs and disability code of practice says:

“The LGO [Ombudsman] can investigate complaints that the special educational provision set out in EHC plans is not being delivered and, in doing so, can investigate what part the school may have played in the provision not being delivered. (The LGO cannot, otherwise, investigate complaints about schools’ SEN provision and has no powers to make recommendations to a school.)” (paragraph 11.90 of the Code)

  1. We also cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended) The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
  2. The courts have said that where someone has used their right of appeal, the Ombudsman has no jurisdiction to investigate any matter concerned with the issue under appeal. And:
    • the Ombudsman has no discretion in this, even if the appeal did not, or could not, provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999)
    • this includes the decision to name a school in the EHC plan. This is the case even if a SEND Tribunal later decided the school was clearly unsuitable. In one case, the court found the council’s alleged failure to provide alternative education for a child with special educational needs who was out of school, when the alleged failure was ‘inextricably linked’ to a placement which was the subject of appeal, was not within the Ombudsman’s jurisdiction. (EHCA Civ 916, EWHC Admin 754, R (on the application of ER) v CLA (LGO) [2014] EWCA civ 140)
  3. 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)
  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.

Back to top

How I considered this complaint

  1. As part of the investigation, I have:
    • considered the complaint and the documents provided by Mrs C;
    • made enquiries of the Council and considered its responses;
    • spoken to Mrs C and asked for her comments on specific issues;
    • sent my draft decision to Mrs C and the Council and invited their comments.

Back to top

What I found

Special educational needs and EHC plans

Legal and administrative background

  1. The Children and Families Act 2014 (the Act) sets out the framework for supporting special educational needs (SEN). The Act is supported by Special Educational Needs and Disabilities Regulations 2014 (the Regulations) and the Special Educational Needs Code of Practice 2015 (the Code). These contain detailed guidance to local authorities about how they provide support for children and young people with SEN.
  2. The majority of children with SEN have those needs met by schools and early years settings. Those bodies have a responsibility to identify children with SEN, sometimes with the help of outside specialists.
  3. The Act says local authorities must publish a Local Offer. This has information about support services available for children and young people with SEN. The purpose of the Local Offer is so that parents and education providers can find out the full range of available support services for children and young people with SEN.
  4. The Council’s Local Offer has details of its ‘graduated response’ to assessing SEN support needs. This largely follows the advice set out in Chapter 5 of the Code. That says, for most children and young people, their needs will be met through a school’s own notional SEN budget.
  5. If a school or parent has concerns that, despite a school’s SEN provision, a child is not developing, they can ask a local authority to consider whether it needs to carry out an assessment of EHC needs.
  6. The Code says an EHC needs assessment should not always the first consideration when a child or young person is facing difficulties accessing education. And:

“In considering whether an EHC needs assessment is necessary, the local authority should consider whether there is evidence that despite the early years provider, school or post-16 institution having taken relevant and purposeful action to identify, assess and meet the special educational needs of the child or young person, the child or young person has not made expected progress. To inform their decision the local authority will need to take into account a wide range of evidence, and should pay particular attention to:

  • evidence of the child or young person’s academic attainment (or developmental milestones in younger children) and rate of progress;
  • information about the nature, extent and context of the child or young person’s SEN;
  • evidence of the action already being taken by the early years provider, school or post-16 institution to meet the child or young person’s SEN;
  • evidence that where progress has been made, it has only been as the result of much additional intervention and support over and above that which is usually provided;
  • evidence of the child or young person’s physical, emotional and social development and health needs, drawing on relevant evidence from clinicians and other health professionals and what has been done to meet these by other agencies…”. (paragraph 9.14)
  1. The Regulations set out the minimum information and advice the Council should seek in an EHC assessment. A parent or young person can ask the Council to seek advice from anyone within health, education or social care and, provided it is a reasonable request, the Council must do so. It is more likely to be reasonable if that professional is already involved with the child.
  2. The Regulations say:
    • the advice should be provided within six weeks, which is also the timescale for a local authority deciding whether it needs to draw up a plan;
    • a local authority should complete an assessment within 20 weeks.
  3. The Code says a local authority:
    • must ensure the child’s parents are fully included from the start and consulted throughout the production of the plan;
    • should carry out timely, well informed assessments

What happened

Background

  1. D was born in April 2012. Over the years he has been assessed as having complex needs, including a range of developmental and cognitive disabilities. In his early years D had assessments from several professionals. His GP first referred him for a speech and language assessment in 2015. An educational psychologist from the Council also assessed D. Her view was D did not then meet the criteria for an EHC assessment.
  2. In 2017 D began a home school programme in preparation for him starting school. The Council says the school has been providing special educational needs support since he started school.

In April 2018 D’s paediatrician recommended his school consider asking an educational psychologist to assess D. He noted if D needed substantial extra support at school it would request a EHC assessment from the Council. In November Mrs C commissioned her own educational psychologist assessment.

The EHC assessment

  1. On 1 December 2018 Mrs C wrote to the Council advising her view was D had special education needs, due a range of disabilities. She requested it carry out an EHC assessment. She enclosed several reports in support of her request.
  2. The Council carried out the assessment, including seeking its own reports. This information gathering part of the assessment should have been completed by 21 February 2019. In its complaint response, the Council accepted the speech and language assessment was delayed – it did not send this to Mrs C until 7 March. It apologised.
  3. The Council also sought its own educational psychologist’s report as part of its assessment. Mrs C complains the Council’s decision making panel only saw a draft version of this plan. And that the draft version contained inaccurate information about D’s school attendance. In its complaint response, the Council explained the reference to a draft report was in a note completed by its case officer, when he made the submission to the decision making panel. The Council provided Mrs C with records to show the final version of the educational psychologist’s report was available to the panel before it sat. And as the panel’s records did not contain reference to a draft, it concluded it was likely the panel did see the final version. Included in the educational psychologist’s recommendations was that D needed access to a “mainstream curriculum within a small group setting”.
  4. On 26 March, the Council sent its draft EHC plan to Mrs C. The Council has a copy of a response to this document from Mrs C.
  5. Mrs C complains that within the ‘family story’ part of the draft EHC plan were comments about her own health issues, and that these are inaccurate. The Council’s complaint response cited an independent report that contained the information it recorded in the draft plan (it sent me a copy of the independent report). The comments were removed from the final version of the EHC plan.

The EHC plan and appeal

  1. The Council issued a final EHC plan on 7 May. This named the primary school D was attending as a suitable school. Mrs C’s view is the Council should have showed her the latest draft, with changes, before issuing the final plan.
  2. Mrs C lodged an appeal against the EHC plan on 4 July.
  3. As part of the appeals process, local authorities draw up a working document – a version of the EHC plan that is amendable by both parties in the run up to the hearing. As part of the process in Mrs C’s appeal, she, her solicitor and the Council submitted further evidence, including new reports.
  4. As a result of the working document process, Mrs C and the Council were able to agree an amended EHC plan. In June 2020 the SEND Tribunal agreed a consent order, signed by Mrs C and the Council. In August 2020 the Council finalised its EHC plan.
  5. The agreed EHC plan for D included:
    • weekly sessions at home with an experienced SaLT;
    • weekly sessions with an occupational therapist;
    • targeted literacy and numeracy training;
    • between four and 15 hours a week tutoring, depending on D’s ability to access it. This would be established through educational management plan review;
    • half-termly educational management plan reviews;
  6. The plan did not name an educational setting. D started the new school year with four hours a week of home tutoring.

School attendance and alternative provision

Legal and administrative background

  1. Section 19 of the Education Act 1996 says that if a child of compulsory school age cannot attend school for reasons of illness, exclusion from school or otherwise, the local authority must make arrangements to provide ‘suitable education’ either at school or elsewhere – at home, for example.
  2. The term ‘suitable education’ is defined as efficient education suitable to the child’s age, ability and aptitude and to any special educational needs he or she may have. The education to be arranged by the local authority should be on a full-time basis, unless, in the interests of the child, part-time education is considered to be more suitable. This would be for reasons relating to the child’s physical or mental health.
  3. “Ensuring a good education for children who cannot attend school because of health needs” is statutory guidance issued by the Department for Education. It says:
    • local authorities should provide the suitable education as soon as it is clear the child will be away from school for 15 or more days;
    • the local authority’s responsibility is irrespective of whether the child is on the roll of a school;
    • “…where specific medical evidence, such as that provided by a medical consultant, is not quickly available, LAs should consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.

What happened

  1. Mrs C says D started to refuse to go to school from April 2019, with a complete refusal from June.
  2. In July the school advised the Council it had seen no medical reasons for D’s non-attendance. So its view was his attendance was not authorised. The school asked Mrs C’s solicitor (who had instructed the school that all correspondence about D should be through him) for medical evidence for D’s absence (it suggested, for example, details of medical appointments).
  3. Mrs C asked a doctor (who had seen D before) to assess D’s fitness to attend school. The doctor saw D at the end of July. Her view was D had suffered a trauma and needed time to recover. And that he was medically unfit to attend school, for at least three months, and possibly longer.
  4. The Council accepted that, from the date of D’s appointment with the doctor, he was medically unfit to attend school (although it only received the report in mid-September).
  5. The Council’s records indicate that, from receipt of the medical report, the school was liaising with A2E (the Council’s short-term service for children/young people who through exceptional circumstances cannot attend school, including medical reasons) about it providing some alternative education for D. There was some confusion about whether the referral was for medical reasons (this was relevant to whether A2E accepted the referral). The school made the referral on 11 November. It also wrote to Mrs C’s solicitor, asking for an update on the professional opinion, as the three months stated in the report had passed. It says it did not receive a response.
  6. Mrs C’s complaint to the Council notes that, in November 2020, the Council was seeking permission for it to contact D’s GP and access his medical records. Mrs C’s view was this was unnecessary because of the independent evidence they had already provided.
  7. On 15 November 2019 the Council’s A2E service wrote to Mrs C’s solicitor asking about his discussions with Mrs C about a referral to that service. It noted it would normally ask for a multi-professional’s meeting, as partnership working was need. It noted the school had asked for up-to-date medical information and asked if there was there was anything else they could provide.
  8. The solicitor responded the same day stating:
  • “I have not yet discussed your involvement in …[the]… case with my clients, I will revert back to you next week”; and
  • there were several (named) independent experts working on D’s case.

The solicitor also asked A2E some questions about the service it provided.

  1. In January 2020, Mrs C’s solicitor responded to the Council as part of the appeals process. This dealt with the Council’s request for further medical evidence.
  2. Between January and July 2020 Mrs C commissioned a programme of home tuition for D – support of two hours per week. Mrs C says they limited the provision to two hours because it was what they could afford. But D could have managed more tuition.
  3. As already noted, D started the new school year with four hours a week of home tutoring, agreed as part of the EHC plan. Mrs C’s view is the reason D could only manage four hours a week in September 2020 was because of the impact of the period when he was not receiving any education. And, from January 2020, less tutoring than he could have managed.
  4. The Council, in its response to my enquiries says, if Mrs C thought D could have managed more hours, she should have raised that as part of the EHC plan appeal process.

Mrs C’s complaint

  1. Mrs C first contacted the Ombudsman in October 2019. The Council told us then it had put its consideration of the complaint on hold, pending the outcome of the appeal. We decided to treat the complaint from Mrs C as premature.
  2. In June 2020, after the tribunal agreed a consent order, Mrs C complained to the Council. In November 2020, the Council produced an extensive complaint response. The Council:
    • apologised for:
      1. delays in the complaint responses;
      2. not referring the case to its legal team when Mrs C’s solicitor did not respond to its request for information;
      3. not monitoring, from September 2019, what education D was receiving;
      4. exceeding the statutory time scales for the speech and language assessment (as part of its EHC assessment);
      5. missed education provision from September 2019;
    • offered a financial remedy. This comprised:
      1. a payment for two delayed complaint responses (£200);
      2. a remedy for the delay in providing alternative education for D from September to December 2019. It suggested different rates for different parts of this period, based on lower amounts for a period when it says Mrs C’s solicitor did not respond to requests for information (£450 per month for September and October and £300 a month for November and December);
      3. from January to July 2020, it agreed to refund the cost Mrs C had spent on tuition. And to fund tuition to provide support during the summer vacation;
      4. a payment for the extra tuition D should have received during the first part of 2020. It calculated this as two missed hours a week, based on the number of hours D received and what he started to receive after the ECH plan was reviewed (£200 a month);
      5. the total amount if offered for D’s missed education was £2700.
  3. After she received the complaint response, in November 2020, Mrs C escalated her complaint to the Ombudsman.

Mrs C has not had the written apology about mishandling of information.

  1. Mrs C complaint is that she sent her EHC assessment request to the Council in early December. But that it has no record of receiving it. In its response to my enquiries, the Council advised the Council accepts it received a parcel from Miss C in December 2018. But it has no way of knowing what was in it. It says, as a precaution, it reported the issue to Child Information Governance as a data breach.

Back to top

Jurisdictional issues

Timeliness of the complaint

  1. Mrs C made this complaint to the Ombudsman in June 2020. But she had first contacted us in October 2019. So I have treated the earlier date as the relevant one for considering whether her complaint is late. That makes her complaints from the time she asked the Council to consider an EHC assessment (December 2018) in time.

The 2015 Council educational psychologist assessment

  1. Mrs C also asks us to investigate matters back to 2015, when the Council’s educational psychologist decided D did not meet the criteria for an EHC assessment. That complaint is late. And I see no reason why Mrs C could not have come to us earlier about that decision. And any case, it would be difficult, given the passage for time, for us to now conduct a meaningful investigation into the psychologist’s view.

Whether the Council should have assessed D for EHC needs between 2016 and 2018

  1. Mrs C’s view is the Council should earlier have decided to conduct an EHC assessment. But the Code is clear the correct approach to SEN support is a ‘graduated response’.
  2. Paragraph 9.14 of the Code (see my paragraph 15) says, when deciding whether an assessment is needed, a local authority needs to see evidence of ‘relevant and purposeful action’ by a school. And that, despite this, the child has ‘…not made expected progress’. The Code also directs local authorities to consider a wide range of evidence, including in particular, evidence from the current educational provision. This is why it is reasonable (and, indeed, common practice on the part of local authorities) in most cases to require evidence of efforts made by a school/nursery to meet need before commencing the assessment process.
  3. The fact D had SEN was not in doubt. But a large majority of children with SEN needs do not progress to an EHC plan. So, in the absence of a request to do so, we would not expect the Council to carry out an EHC assessment.
  4. The SEN provision the school was providing (and whether it might have earlier asked the Council to carry out an assessment) is outside the Ombudsman’s jurisdiction. So I have not investigated this part of the complaint (which in any case are about events more than 12 months before Mrs C’s October 2019 first contact with the Ombudsman).

Absolute bar on investigating matters where a complainant has used an alternative remedy

  1. With the period I have investigated, the law says, after a parent has appealed, we have no discretion to investigate the issues the appeal considered until the outcome of the appeal process (paragraphs 5&6). The Council issued a decision letter in May 2019. Mrs C and her partner appealed the decision in July 2019.
  2. The restrictions on what we cannot investigate include all issues linked to the appeal: for example the evidence the appealed decision was based upon and further evidence obtained during the appeals process. This includes matters which an appeal did not (or could not) provide a remedy for. I am aware the appeal did not specifically look at some parts of Mrs C’s complaint (for example, the way the educational psychologist carried out her assessment). But caselaw has clarified this is not still something the Ombudsman can consider (see paragraph 6). We have no discretion in this.

Alternative education for the time after D stopped attending school

  1. Mrs C complains about the Council’s lack of alternative provision after D was absent from school. My view is we can consider part of this issue.
    • We cannot consider the period before Mrs C provided medical evidence about D’s medical unfitness to attend school. This is because, for that earlier period, (June and early July 2019), the issue of D’s attendance was tied up with the EHC appeal process, because the school was named in the EHC plan (see the second bullet point in paragraph 6 for the caselaw on this).
    • After the Council accepted D was medically unfit to attend the school, the relationship to the appeal changed. This is because, from that time, D was, more likely than not, medically unfit to attend any school. So the matter becomes sufficiently detached from the suitability of the school named in the EHC plan to allow the Ombudsman to consider this period.
  2. The Council accepted D was medically not able to attend school from, in effect, the beginning of the new school year in Autumn 2019. So I have investigated the complaint about alternative provision from then. That is slightly outside 12 months before Mrs C first contacted us. But given the Council has considered the matter in its own complaint response, it is reasonable for the Ombudsman to consider the whole period.

Analysis

  1. As noted, there are large parts of Mrs C’s complaint that the Ombudsman cannot investigate. In this section, I consider each of Mrs C’s complaints.

Despite an awareness that D has complex needs, the Council delayed assessing his special educational needs

  1. My view is it is now too long ago to look at the Council’s educational psychologist’s view in 2015.
  2. With the period between that decision and Mrs C’s application for an EHC assessment, this is a complaint about the school. It is usual for a young child (including a large majority of children with disabilities or developmental delays) to be taught in a mainstream setting, without the need for an EHC assessment. I have not investigated this part of the complaint, as the Council did not receive a request to carry out an assessment.

There have been issues with the information the Council considered during the EHC plan assessment and appeal process

The EHC plan assessment

  1. There are parts of the complaint, related to the EHC assessment, that are discrete from the matters considered by the appeals process. So these are matters the Ombudsman can consider:
    • the delay in the Council obtaining the advice about D’s speech and language needs. I agree with the Council that this was fault. But my view is the apology the Council has given for this fault is a suitable remedy;
    • the educational psychologist report prepared for the EHC assessment. The Council has given an explanation about why its view is the panel did see the final version of this report. Mrs C has her doubts about this. While I understand Mrs C’s concerns, my view is, on the information I have, I cannot reach a view of whether there was any fault. And I do not consider there is sufficient injustice flowing from any likely fault to warrant further investigation. This is because, whatever happened, the final version of the plan is one where Mrs C used her right of appeal to challenge the outcome. That led to considerable extra scrutiny, including new educational psychologist reports;
    • the information in the ‘family story’ part of the draft EHC plan. The Council has sent me the source for that information. I cannot fault it for including that information in the draft. In any case, it was removed from the final version;
    • it took the Council more than 20 weeks to complete the EHC plan. That was fault.

The EHC plan decision

  1. We have no discretion to consider any matters about the EHC plan from the date the appeal right arose.

The EHC plan was changed and finalised without notifying Mrs C

  1. Mrs C’s view is the Council should have first shared a change to the EHC plan before issuing a final version in May. I can see from the documents the Council has sent that Mrs C did provide comments. The Council did make changes to the first draft, following Mrs C’s comments. And Mrs C had a right of appeal against the finalised plan. The Code does not instruct local authorities to share every version of a plan with the parents. Sometimes it might be better to issue a final version, so the parents can appeal. I do not see that this was fault causing significant injustice. So I will not investigate this further.

The Council is saying the solicitor did not get back to A2E with information. In fact the poor communications were the other way around

  1. In the email exchange between A2E and Mrs C’s representative, the representative advised he would be responding to A2E’s request after liaising with Mrs C. The Council’s records suggest he did not do this until January 2020.
  2. However, the representative asks A2E some questions. I would have expected it to respond and/or to chase a response from the representative. I find fault it did not do so.
  3. The Council was seeking other ways to get information – it asked Mrs C if it could approach D’s GP. Mrs C’s view was that was unnecessary, as she had provided independent reports. But the question was not about whether D had SEN: that was not in dispute. Rather it was about whether D’s medical needs were a reason why his school was not a suitable place for him at that time. The most recent report Mrs C had submitted noted that D’s need for a break was a minimum of three months, and possibly longer. I cannot say the Council seeking an update on that advice was fault.

The Council did not provide D with any support for over a year

  1. I have investigated the provision from the time the Council accepted D was medically not able to attend school from, in effect, the beginning of the new school year in Autumn 2019.
  2. I find fault that the Council allowed the issue to drift. It appeared to rely too much on the school seeking to confirm that D’s absence continued to be for medical reasons. While that was a legitimate line of enquiry for the school to make, the Council should have been monitoring what provision was in place in tandem with that process. It should have considered what was in D’s best interests while awaiting the information. That was likely to have been to provide education until the further evidence was available. I find fault that the Council was overly focussed on a response from Mrs C’s representative.
  3. On that basis, I do not believe there are sufficient grounds in differentiating different periods in the faults between September and December 2020 (see paragraph 48).

The Council has used a benchmark of four hours for what tutoring D should have been getting from January 2020

  1. I do not accept the Council’s assertion that Mrs C could have argued for more hours as part of the EHC plan. That misunderstands the injustice. The agreed plan does have scope for more hours, when D could manage them.
  2. What Mrs C says is, if the Council had not delayed starting the alternative provision, D might have been in a position in September 2020 to manage more than four hours tutoring. I have some sympathy with the logic of that view. But we do not know if that would have been the case. It would be too speculative for the Ombudsman to make a finding on what D might have been able to receive in the period I have investigated.
  3. So the injustice to Mrs C and D is the uncertainty of not knowing if, but for the fault, D might have managed more than four hours’ tuition. I cannot fault the Council for using as a benchmark for a remedy the actual support D started off receiving. And it is outside the scope of this investigation to ascertain whether tuition for four hours was the correct starting point for D in September 2020.

The Council has appeared to base its decisions on the support D needs on costings calculations

  1. The provision set out in the EHC plan was considered as part of the appeal process, so is not something the Ombudsman can consider.

Mrs C has not had the written apology about mishandling of information.

  1. Mrs C could complain to the Information Commissioner about this issue. But as it is incidental to matters I have considered, I have decided to make a finding on this part of the complaint.
  2. The Council does accept it received communications from Mrs C in early December. But it says it cannot say if that was Mrs C’s EHC application. My view is, on the balance or probabilities, Mrs C did likely send the EHC assessment as she says. So I uphold this part of the complaint.

Back to top

Agreed action

  1. Our guidance on remedies explains that the financial remedies we recommend are symbolic payments (not compensation). The guidance also says, where we identify fault that resulted in a loss of educational provision, we will usually recommend a remedy payment of between £200 and £600 a month to acknowledge the impact of that loss. The figure should be based on the impact on the child.
  2. Looking at the examples in our guidance, the Council’s suggested payment of £450 a month for the first period when D was without any educational provision seems appropriate. But, following through my analysis of the fault I have found, the Council has agreed to make that payment for the whole of the Autumn Term – a payment of £1800.
  3. For January – July 2020 the situation was different, as D was receiving some tuition, albeit funded by Mrs and Mr C. But the Council has refunded them for those payments and agreed to fund the tuition through the summer vacation. So my view is the £200 per month (£1200 in total) remedy the Council has offered for that period is suitable.
  4. I do agree with Mrs C that the comparator of four hours per week tuition is not necessarily what D might have been able to manage, but for the fault. But my view is that to try to ascertain what D might have been able to manage is not something the Ombudsman can now do. However, the Council has agreed to make a further payment of £400 as a recognition of the uncertainty about what might have happened, but for the fault.
  5. My view is the Council’s offer for the faults with the complaint responses are satisfactory.
  6. So in total, the Council has agreed to make Mrs C a payment of £3600 in recognition of the faults I have identified (this is in addition to the payment of the fees, which I understand it has already made).
  7. The Council has also agreed to apologise for:
    • the mishandling of Mrs C’s data;
    • the delay in completing the EHC plan.
  8. The Council says it should have earlier referred the case to its legal team. As well as that insight, my view is another lesson from this complaint is the importance of always keeping in mind what is in the best interests of the child – my view is officers lost sight of this in their actions over alternative education for D. So the Council has agreed to send a reminder to all relevant staff of these learning points from this complaint.
  9. The Council has agreed to complete these remedies within one month of the date of this statement.

Back to top

Final decision

  1. I uphold this complaint. The Council has agreed to my recommendations. So I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page