London Borough of Bexley (19 014 045)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 30 Jun 2020

The Ombudsman's final decision:

Summary: Ms X complained the Council provided her with misleading information about the school it named on her son, Z’s, Education, Health and Care Plan and delayed in carrying out an assessment by an Educational Psychologist. Ms X says that as a result of this, Z spent a year at a school that could not meet his needs which had a detrimental effect on his progress. The Council has already admitted it gave Ms X misleading information. It should now increase the financial payment it previously offered Ms X.

The complaint

  1. Ms X complained the Council:
      1. provided her with misleading information about the school it named on her son, Z’s, Education, Health and Care (EHC) Plan; and
      2. delayed in carrying out an assessment by an Educational Psychologist (EP) in 2017.
  2. Ms X says that as a result of this, Z spent a year at a school that could not meet his needs. She says this has had a detrimental effect on his progress.

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The Ombudsman’s role and powers

  1. 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)
  2. In this case, I have investigated complaint 1a). I have not investigated complaint 1b). This is because Ms X was aware of the delay in 2017 and could have complained to us earlier. I can see no good reason at this stage to exercise my discretion and investigate this issue now.
  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. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
  5. 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)
  6. Z’s EHC Plan was finalised in August 2018. This meant Ms X could have appealed to the Tribunal about the school named on the Plan on this date. However, I consider it was not reasonable to expect her to do so at this time because she believed the school placement named in the Plan was temporary.
  7. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as academies. (Local Government Act 1974, sections 25 and 34A, as amended)
  8. 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)
  9. 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 spoke to Ms X and considered her view of her complaint.
  2. I made enquiries of the Council and considered the information it provided. This included copies of Z’s EHC Plans, details of when the Council requested assessments by an Educational Psychologist (EP), a copy of the assessments, and complaints correspondence.
  3. I considered the relevant statutory guidance, including the Special Education Needs Code of Practice 2015 and the Education Act 1996.
  4. I wrote to Ms X and the Council with my draft decision and considered their comments before I made my final decision.

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What I found

The law and statutory guidance

  1. 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 EHCP is set out in sections. The Ombudsman cannot direct changes to the sections about education or name a different school. Only the Tribunal can do this.
  2. The Council must respond to all requests for an EHCP. If the Council decides to proceed with an EHC Plan, it must gather advice from relevant professionals about the child’s education, health and care needs and any special educational provision that may be required. The Council must request psychological advice and information from an EP during the assessment.
  3. If a parent makes a request for a particular school, the council must comply with that preference and name the school in the EHC Plan unless:
    • it would be unsuitable for the age, ability, aptitude or SEN of the child; or
    • the attendance of the child would be incompatible with the efficient education of the other children, or the efficient use of resources.

What happened

  1. Z is of primary school age. He used to attend a mainstream primary school (School P). He has a diagnosis of Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder.
  2. In May 2018, the Council received an EHC Plan request for Z. The Council agreed to assess Z and consulted, amongst others, with an EP, medical specialists involved with Z, and School P. The EP responded with information in July 2018. The EP’s report stated Z was “finding it increasingly challenging to cope in school. He requires significant additional adult support to enable him to access the curriculum and develop socially and emotionally”. The report detailed areas where Z needed support to help him at school.
  3. The Council also consulted with Ms X’s preferred placement, Academy S, and other potentially suitable primary schools. All the schools turned down Z. Academy S’s reason was because Z would not have a peer group in the setting.
  4. A Council Panel met on 31 July 2018 to decide whether Z needed an EHC Plan. The Panel included a senior EP, the EP who had assessed Z, Council Special Educational Needs officers and a representative from the NHS’s Children and Adolescent Mental Health Services. The Panel agreed Z required a Plan.
  5. The Panel also considered the type of placement suitable for Z. It acknowledged Ms X wanted Z to attend Academy S but noted the school had refused Z a place because he would not have a peer group. Instead it recommended the Council consult with three other schools, including Z’s current school, School P.
  6. The Council finalised Z’s EHC Plan in August 2018. This named School P as Z’s educational placement.
  7. On 10 September 2018, School P wrote to the Council. It said it could no longer offer Z a place at the school. The school said “This we feel is because he is in need of a small group setting with a high level of adult support, where his needs can be fully met”. School P provided reasons for this decision including the fact Z was unable to focus, leading him to distract the other children, his refusal to eat and the fact he had few friends and was often isolated, lonely and sad.
  8. The Council challenged School P’s decision and directed it to keep Z on its school roll. It said its reasons for doing so were because Z now had an EHC Plan and the Council had awarded additional funding to help deliver the strategies and programmes recommended by the EP.
  9. Ms X was unhappy with Z remaining at School P because she felt it was failing to meet his needs but she said she agreed to it because the Council caseworker had told her it was a temporary measure so that the Plan could be finalised. Ms X said her advocate was present when the caseworker said this. She said the caseworker also told her he would identify a school that was suitable for Z’s needs and then the placement would be changed.
  10. The Council failed to identify a new school for Z. Therefore, Ms X identified an independent mixed junior and senior school (School D). She asked the Council to name School D and so an early annual review was held in June 2019 to consider this request.
  11. Following the review, Ms X’s request was passed to the Panel. The Panel meeting took place on 27 August 2019. The notes from the meeting said “Panel members could not agree to the change of placement to [School D] at this time… Parents would like their rights to appeal the LA decision if the LA is not in agreement with the place at [School D]... [School P] has also confirmed [Z] is unable to remain there”.
  12. The Panel decided to issue School P and Mrs X with a ‘no change’ letter stating Z should remain at School P. This gave Mrs X the right to appeal to the Tribunal.
  13. In August 2019 Ms X also complained to the Council. She said School P was unsuitable and Z’s mental health and education were suffering. She said Z was anxious every day about going to school and as a result had been referred to the Children and Adolescent Mental Health Services (CAMHS).
  14. She said she would have appealed Z’s EHC Plan if she had known the place at School P was permanent, but she had been misled by the caseworker.
  15. The Council responded in September 2019. It said the caseworker had left the Council. The Council officer said “I am unsure why you would have been informed that [School P] would only be a temporary arrangement. I can’t comment on what information [the caseworker] provided to you verbally but do apologise if you feel you were misinformed by him”.
  16. The Council apologised for any concern or upset caused by this to Ms X and confirmed the Panel had looked again at Z’s current placement. It said “[The] Panel felt [Z] required access to a mainstream setting and could be supported with some additional access to a resource provision but did not consider that an independent specialist school was appropriate”.
  17. Ms X asked for her complaint to be escalated to stage 2 of the complaints process. She submitted a statement from her independent advocate which confirmed the caseworker had said the placement at School P would be named temporarily on Z’s EHC Plan until an appropriate placement could be sourced.
  18. The Council responded in October 2019. It apologised for the “confusing and conflicting advice” the caseworker had provided her and said service improvements had been carried out around the consultation process and advice to parents. The Council offered Ms X £200 in recognition of the “negative experience” she had been through.
  19. On 15 October 2019, Ms X appealed to the Tribunal.
  20. In December 2019, the Council requested an updated assessment from the EP. This concluded Z had low academic self-esteem… the combination of his difficulties leads to avoidance of tasks linked to reading. This problem is severe and persistent despite learning opportunities… [Z] may meet the criteria for dyslexia”.
  21. Following this, the Council agreed to name School D on Z’s EHC Plan. Z started at School D in January 2020 shortly before Ms X’s case was due to be heard by the Tribunal.
  22. Ms X was unhappy and complained to the Ombudsman. She said that if the EP had identified Z’s learning difficulty sooner, he would have moved earlier to a school more suitable to meet his needs. She also said that if the Council had not misinformed her by saying School P was temporary, she would have appealed the placement a year earlier when Z’s EHC Plan was first finalised.

My findings

Delayed rights of appeal

  1. Ms X states she was misinformed by the caseworker when he told her the school named in Z’s EHC Plan was temporary. Ms X’s independent advocate confirms this is what the caseworker said. The Council admitted fault in the information provided by the caseworker and has apologised. It has also offered Ms X £200 to remedy the injustice this caused her.
  2. On balance, if Ms X had been told that School P was a permanent placement, she would have appealed to the Tribunal when Z’s EHC Plan was finalised in August 2018. This is evidenced by the fact that when Ms X discovered School P was permanent she identified a different school, requested an amendment to the placement named in Z’s EHC Plan and then appealed to the Tribunal when the Council refused the amendment.
  3. But for the misinformation by the Council, Ms X would have appealed 12 months earlier. I cannot say what the outcome of the Tribunal hearing would have been if Ms X had appealed earlier. I also do not know if the Council would have agreed to a placement at School D earlier than December 2019 if Ms X had been able to appeal earlier. However, School P maintained throughout the period of this complaint that it could not meet Z’s needs. Ms X also believed this to be the case. And in December 2019, the Council also came to that view. All of this has led to increased uncertainty for Ms X around whether Z would have been offered a placement at School D earlier if she had been able to appeal. And this is further compounded by uncertainty over whether the distress Z experienced whilst at School P could have been avoided by an earlier appeal.
  4. The Council has offered Ms X £200 to remedy the injustice its actions caused her. Under these particular circumstances, this is not sufficient.

Agreed action

  1. Within one month of the date of the final decision statement, the Council has agreed to pay Ms X £500 to remedy the injustice caused by the fault I have identified.

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Final decision

  1. The Council had already admitted fault but did not provide a sufficient remedy for the injustice Ms X experienced. The Council has agreed to my recommendation; therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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