Royal Borough of Windsor and Maidenhead Council (19 013 134)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 07 Dec 2020

The Ombudsman's final decision:

Summary: The Council was at fault for delaying in providing an Education Health Care Plan for Mrs X’s son, causing him to miss education. The Council has agreed to apologise to Mrs X for the delay, make a payment to reflect the education her son missed and review its procedures.

The complaint

  1. The complainant, whom I refer to as Mrs X, complains:
    1. The Council delayed in providing her son with an Education, Health Care (EHC) plan causing him to miss education and not have a school place.
    2. The Council did not carry out the Special Educational Needs (SEND) Tribunal’s directions causing her son to miss the educational provision he needed from January 2019 – July 2019.

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What I have investigated

  1. I have investigated point a) above. I have not investigated point b) and have set out my reasons at the end of this statement. I have included information relating to point b) in the background below, for context.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  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)

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How I considered this complaint

  1. As part of this investigation I considered the complaints by Mrs X and the responses from the Council. I considered the information provided by Mrs X’s representative. I sent a draft of this decision to the Council and Mrs X for comments.
  2. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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What I found

Education, Health and Care Plan

  1. A child with special educational needs may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child’s needs and the arrangements needed to meet them. The Ombudsman cannot change an EHC plan. Only the Special Educational Needs (SEND) Tribunal can do that.
  2. The Council deals with making sure that all arrangements mentioned in the EHC plan are in place. The Ombudsman cannot investigate complaints about what is in the EHC plan. But can investigate whether there have been delays in completing the plan.
  3. The SEN Code of Practice (issued in 2015) (the Code) says the Council must complete an EHC plan within 20 weeks from when someone asks for an assessment.
  4. The Code says where a child moves between local authority areas during the assessment period for a plan the new authority should decide whether it needs to carry out an EHC needs assessment. The new authority should take account of the fact the old authority decided to carry out an EHC needs assessment. If the new authority decides to carry out an EHC assessment it should use the information already gathered by the previous authority to help complete its own EHC needs assessment. Depending on how far the assessment had progressed, this information should help the new authority complete the assessment quicker than it would otherwise have done.

Background

  1. Mrs X’s son, Y, has special educational needs. In 2017 the local authority where Y lived prepared a draft EHC plan for Y. At this time Y received an Applied Behavioural Analysis (ABA) programme at home, delivered by tutors and paid for by Mrs X.
  2. In June 2017 Mrs X and her family moved to a different local authority. Y continued to receive the ABA programme and the draft EHC plan transferred to the Council.
  3. Mrs X intended Y to start the Reception year at school in September 2017. Y did not have a school place in September 2017 and had not received his EHC plan from the Council.
  4. In October 2017 the Council and Mrs X were in contact about Y attending school A. Mrs X visited school A and thought it could meet Y’s needs. In November 2017 Mrs X contacted the Council as she had not heard anything further about Y’s placement at school A. The Council told Mrs X it was waiting to hear back from school A.
  5. As Y was not at school and Mrs X had not received an update about a potential placement for Y at school A, she visited school B who agreed to provide a place for Y. In December Mrs X contacted the Council to tell it school B would provide a place for Y and she was happy for Y to attend. The Council agreed to contact school B and ask for a formal place for Y.
  6. In January 2018 Mrs X contacted school B who told her they had not received communication from the Council about Y’s school place.
  7. On 19 January 2018 a representative for Mrs X complained to the Council as Mrs X had not received Y’s EHC plan and the Council had not provided Y with a school place. In late January 2019 the Council responded and apologised for not naming a school place for Y. The Council said it was consulting with four schools and hoped to provide a school place for Y soon. It was also transferring Y’s draft EHC plan from the previous local authority onto its format.
  8. Mrs X also raised a complaint with the Council, in late January 2018, about the delay in providing Y’s EHC plan and that he has no school place.
  9. In early February 2018 the Council offered a 12 week trial at school A. Mrs X’s representative contacted the Council asking whether it will fund Y’s ABA programme during the trial and asked when Mrs X can expect to receive Y’s EHC plan.
  10. On 12 February 2018 the Council sent Mrs X a draft EHC plan for Y. Mrs X did not agree with the content of the plan and sent back her comments to the Council. She was unhappy the Council had removed references to specialist staff and did not include some reports from professionals. Mrs X provided the Council with copies of the reports. Mrs X also told the Council she had not received a response to her complaint in January 2018.
  11. The Council provided Mrs X with a response to her complaint and said they had provided a draft EHC plan and were meeting with her to discuss the changes.
  12. The Council met with Mrs X on 16 February 2018 to discuss her concerns with the draft EHC plan. The Council told Mrs X it was working towards providing the final EHC plan by 23 February 2018.
  13. In late February and early March 2018 Mrs X contacted the Council three times as she had not received Y’s final EHC plan. The Council told Mrs X on 12 March 2018 it was still waiting for school A to respond before it could send the final plan.
  14. On 22 March 2018 Mrs X’s representative contacted the Council asking for the Council to issue the final EHC plan and for compensation for the delay and lack of education Y received.
  15. The Council issued the final EHC plan on 26 April 2018. Mrs X appealed to the SEND Tribunal in May 2018 as she was unhappy with the content of the plan and the school named.
  16. In June 2018 Y started attending school A in the mornings. Y stopped attending school A in November 2018 as he did not settle into his new setting or routines easily. There were concerns about Y’s behaviour towards staff and other pupils and the headteacher of school A told Mrs X and the Council he did not think school A could meet Y’s needs.
  17. The Tribunal issued a preliminary decision in January 2019. It adjourned the hearing so Mrs X and the Council could gather evidence on their choice of school. The Tribunal decided:
    1. The Council should issue an interim EHC plan so the Council could consult with other schools for Y.
    2. The Council should put in place an ABA programme with speech and language therapy and occupational therapy.
    3. Y should attend school A from January 2019.
  18. In February 2019 Y returned to school A. Mrs X said the Council did not make the effort to return him in January, however the Council said the delay was because of a disagreement between Mrs X and school A.
  19. Mrs X’s representative raised a series of complaints with the tribunal as the Council had not issued an interim EHC plan or put in place the provision stated at the Tribunal’s preliminary decision in January 2019.
  20. The Tribunal held a case management hearing in March 2019. It said the Council was in breach of the law as it had not issued a revised EHC plan. This meant none of the schools approached by the Council or Mrs X knew what provision Y needed. The Tribunal warned the Council if it continued not to cooperate the Tribunal may bar the Council from taking part in further proceedings. The Council issued an interim EHC plan in May 2019.
  21. The Tribunal provided its decision in late July 2019 and decided Y should attend an alternative school, school C. The Tribunal also decided to increase Y’s ABA programme.
  22. Mrs X complained to the Council in November 2019. She said the Council did not follow the Tribunal’s directions in January 2019 by providing Y with the provision the Tribunal directed. This included the ABA programme, speech and language therapy and occupational therapy. Mrs X also said the Council delayed in sending Y back to school in February 2018 and delayed in providing an interim EHC plan.
  23. The Council responded to say the delay in Y starting school after the Tribunal directions in January 2019 was due to issues between Mrs X and school A. It apologised for the delay in providing an interim EHC plan for Y. The Council said it could not find therapists who would work within the ABA programme and would pay Mrs X back for the part of the ABA programme she funded. It apologised that Y did not receive the necessary speech and language therapy and occupational therapy and said it had difficulty sourcing this.
  24. Mrs X remained dissatisfied and approached the Ombudsman.

Analysis

  1. The Council is at fault for delays in issuing Y’s EHC plan.
  2. The Code says a Council has 20 weeks to complete an EHC assessment and issue a EHC plan. When Mrs X and Y moved to the Council area, in June 2017, Y already had a draft EHC plan from the previous local authority. This would have provided the Council with the assessment part of the plan so it should have been able to complete the EHC plan quicker than it otherwise would have done.
  3. It took the Council a further 10 months to issue a final EHC plan for Y. Mrs X intended Y to start school in September 2017, however the Council had not found a school place for Y.
  4. The Council did contact several schools and told Mrs X in October 2017 it was waiting to hear from school A. But in the months that passed the Council did not keep Mrs X updated causing her to chase the Council for updates and eventually resulted in her making a complaint.
  5. In response to Mrs X’s complaint, in January 2018, the Council said it was transferring the draft EHC plan from the previous local authority onto its own format. This was six months after Y moved to the Council area.
  6. It took four months from when the Council contacted school A, for it to tell Mrs X a trial place was available for Y at school A. I have not seen evidence to justify such a long delay in consulting with school A.
  7. After issuing a draft plan in February 2018, it took the Council a further two and a half months to issue the final plan. This was despite the Council telling Mrs X it would issue the final plan by the end of February 2018. After February 2018 Ms X contacted the Council several times asking when the Council would issue the final plan.
  8. Overall, the Council was responsible for delays in issuing the EHC plan. This would have been distressing for Mrs X at having to wait such a long time to complete the EHC plan and having to chase the Council.
  9. The delay in completing the EHC plan also caused Y not to have a school placement. Mrs X wanted him to start school in September 2017, but she was reliant on the Council completing the EHC plan and naming a school which could meet his needs. If the Council issued the plan in line with statutory timescales, Y would have likely attended school in September 2017 and received the provision in his EHC plan much sooner.

Agreed action

  1. Within four weeks of the final decision the Council agreed to carry out the following and provide evidence to the Ombudsman it has done so:
        1. Apologise to Mrs X for the delays in issuing Y’s EHC plan after she moved to the Council area in June 2017.
        2. Pay Mrs X £250 to recognise the frustration, time and trouble she experienced in having to chase the Council for updates about the EHC plan.
        3. Pay Mrs X £3,600 to acknowledge the injustice arising from the delay in issuing the final EHC plan and the resulting loss of education and provision for Y. This covers the period from September 2017 to April 2018. When arriving at this figure I considered the Ombudsman’s own guidance and the circumstances of the case.
  2. Within eight weeks of the final decision, the Council agreed to carry out the following and provide evidence to the Ombudsman it has done so:
        1. Review its policy/procedure to ensure it finishes EHC plans in a timely manner, and within 20 weeks from when an assessment is requested.
        2. Ensures it has a plan to chase parties when they do not provide or delay in providing information for EHC plans in a timely manner.

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Final decision

  1. I have completed my investigation and found the Council was at fault for delaying in providing Y with an EHC plan. This caused injustice to Mrs X and Y. The Council has agreed to the above actions to remedy the injustice caused.

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Parts of the complaint that I did not investigate

  1. I did not investigate part b), that the Council did not carry out the SEND Tribunal’s directions in January 2019 causing Y to miss the educational provision he needed.
  2. Once the Council issued Y’s EHC plan in April 2018, Mrs X had appeal rights to the SEND Tribunal. The Ombudsman has no jurisdiction where a parent has appealed to the SEND Tribunal from the date the SEND appeal right arises until the appeal is completed. In this case Mrs X’s appeal rights arose at the end of April 2018 and the appeal was completed at the end of July 2019.
  3. Any loss of education or fault during this period which is a consequence of the decision being appealed (e.g. choice of placement or provision specified in the plan) is out of jurisdiction, even if this means the injustice will not be remedied.

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Investigator's decision on behalf of the Ombudsman

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