Summary: There is evidence of fault in how the Council dealt with matters relating to Ms C’ son’s Special Educational Needs (SEN). The Council has agreed to implement actions in order to remedy the injustice these faults caused.

The complaint

1. The complainant, whom I shall refer to as Ms C, complains that the Council has failed to meet the provisions detailed in her son’s EHC plan. I shall refer to Ms C’s son as D. Ms C complains:
• The Council delayed signing off a school placement, meaning there was a delay in D receiving the therapeutic provisions detailed in D’s EHC plan.
• dance movement psychotherapy sessions have not been increased in accordance with the EHC plan.
• School transport was not provided in accordance with the EHC plan.
• The Council unnecessarily proceeded with Public Law Outline (PLO) measures and failed to review and cease the proceedings within statutory timeframes.

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The Ombudsman’s role and powers

2. 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)
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.

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How I considered this complaint

5. As part of the investigation, I have:
• considered the complaint; and
• reviewed and considered information received from the Council; and
• considered the relevant legislation; and
• spoke with Ms C about her complaint.
6. I have also sent a draft version of this decision to both parties, invited their comments and considered what they said.

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What I found

EHC assessments and plans

7. Children with complex needs might need an EHC plan. Councils are the lead agency for carrying out assessments for EHC plans and the statutory duty to ensure special educational provisions in the EHC plan is made available.
8. Section F of the EHC plan details the special educational provision that is required for the child’s needs. The Council has a statutory duty to provide provisions detailed in Section F, and to provide a suitable placement to meet those provisions.
9. If a parent or young person disagrees with the contents of an EHC plan, they can appeal to the Special Educational Needs and Disability Tribunal (SEND). But only about:
• The child or young person’s special educational needs (Section B)
• The provision specified in the Plan (Section F)
• The school or other setting named in the plan or the type of school or setting (Section I)
• If no school or other setting is named, that fact. (Section I)

Public Law Outline (PLO)

10. Under the Children Act 1989, statutory guidance on the Act, statutory guidance ‘Court orders and pre-proceedings for local authorities’, and the Government’s ‘Public Law Outline’ (PLO), where a council considers a child may not be able to remain safely with their family, it should consider whether the wider family can look after the child before deciding to start care proceedings. The guidance advises that wider family meetings, such as family group conferences, are an important means of involving the family early to look at alternative options.
11. Under the PLO process the Council holds a legal planning meeting to decide whether to start a formal pre-proceedings process. If the meeting decides to do so the Council sends a ‘letter before proceedings’ to the parents inviting them to a meeting. The aim of the meeting is to consider what support can be provided to the family to avoid legal proceedings and to agree a plan. Parents are entitled to free legal advice and representation for the meeting.
12. The PLO states that all care proceedings should be completed within 26 weeks.

Background

13. Ms C’s son, D, is a child with SEN. He has a diagnosis of ADHD, has moderate to severe learning difficulties, a communication disorder, sensory difficulties, and high levels of anxiety. He has therefore been subject to an EHC plan, since 2010.
14. In October 2019, the Ombudsman investigated a complaint from Ms C. He found that the Council had failed to ensure the provision in D’s EHC was in place.
15. The Council agreed to pay a total of £97.50 per week until the provisions are put in place.

What happened

16. Ms C wanted D to attend a residential school. In December 2019, prior to a tribunal hearing, the Council agreed that it was in his best interests for D to attend a residential school placement.
17. Records show the Council took legal advice on the matter and considered the implications of arranging the placement using powers under Section 20 of the Children’s Act 1989 and the potential of seeking a deprivation of liberty order through the courts.
18. Records show the Council held a legal planning meeting, where it made the decision to enter a short period of pre proceedings known as a Public Law Outline (PLO). It concluded that this would allow Ms C to be given legal advice in respect of the placement.
19. The Council wrote to Ms C to ask her to agree to the placement and inform her that if this could not be agreed, it may refer the matter to court to make a deprivation of liberty order.
20. The Council told Ms C that it was entering into a PLO and invited Ms C to attend a meeting to discuss the case. Ms C subsequently obtained legal advice before attending the meeting.
21. The Council also carried out a review of D’s EHCP. Ms C disagreed with some of the contents and appealed to the SEND.
22. Prior to the tribunal hearing, both the Council and Ms C agreed to a placement for D. Other amendments to D’s EHC Plan during the hearing, and a new draft document was created. A residential school was named on the plan.
23. Also named on the plan was the provision for direct payments to be used for school transport via a named taxi company. It was also agreed that respite dance movement psychotherapy would increase from one session fortnightly, to one session weekly.
24. The judge issued an order on 8 October 2019, stating that the Council must issue an amended EHC Plan within 14 days, based on the agreed draft.
25. There was a delay issuing with the Council issuing D’s final EHC Plan. The Council say the delay was caused because the order was sent to a member of staff who was absent from work.
26. On 5 December, the Council wrote to Ms C to inform her that, it was ceasing its PLO work, because plans had been made for D to start a residential school placement in January.
27. Because D was not receiving the therapeutic provision, as detailed in his EHC plan, the Council made payments to Ms C. These payments covered the period from the Ombudsman’s previous decision up the 13 January when D was due to start his residential placement.
28. On 20 January, D started his placement at the residential school named on his EHC Plan.

Analysis

29. There was a delay in issuing the final EHC Plan, due to it being sent by email to a member of staff who was absent. This is fault, which the Council apologised for.
30. To avoid similar delays happening again, the Council changed its procedures, so tribunal orders are emailed to a generic email address, rather than one named member of staff. I consider these steps to be appropriate, and therefore do not propose to make any further recommendations relating to this part of Ms C’s complaint.
31. Ms C says the Council failed to meet the provision detailed in D’s EHC plan. She says the Council failed to comply with agreed actions from the previous Ombudsman’s investigation, as it had not made payments covering the whole period when D was not receiving his therapeutic provision. She also says the Council failed to increase D’s dance movement psychotherapy, meaning she had to arrange and pay for them herself.
32. The Council has provided the Ombudsman evidence that it made payments to Ms M, in accordance with the agreed action from the previous Ombudsman’s investigation, up to the 13 January, when D was due to start at his residential school.
33. However, the Council accept that D did not start his placement until the 20 January. The Council has therefore agreed to make an additional payment of £97.50 to Ms C.
34. The Council accept that it initially failed to implement the increased number of dance movement psychotherapy for D. The failure to put in place this provision was fault which meant that Ms C had to arrange and pay for the extra sessions herself.
35. The Council told the Ombudsman that it will review any sessions that were procured through Ms C’s direct payments and reimburse her accordingly. We consider this to be a suitable remedy.
36. Ms C says the Council failed to comply with the tribunals order, when it decided not to use the taxi company named on D’s EHC Plan. The Council say that it should not have named a specific company to provide this service, as this was not in accordance with its open procurement rules.
37. The Council say it ran a procurement exercise, but the company named on D’s EHC Plan were not successful and an alternative provider was commissioned.
38. Ms C says she wants the taxi named on D’s EHC Plan to provide transport, as there is a continuity with the drivers, which puts D at ease.
39. I do not agree that the Council failed to follow the tribunals order, by not allowing the named service provider to be used. SEND do not have jurisdiction over school transport when they are lone issues. I also note that the provider was named under the personal budget section of the plan (Section J), for which there is no right of appeal.
40. When Council’s acquire goods or services, they must follow a legal framework which encourages free and open competition and value for money, in line with internationally and nationally agreed obligations and regulations.
41. By naming a taxi company on D’s EHC Plan it did not take into consideration these obligations. Once the Council became aware of this it held a tendering exercise and another company was successful.
42. Whilst I am unable to challenge the Councils decision to follow guidance when putting the contract for D’s transport out to tender. I do find fault that a specific provider was named on D’s EHC Plan. I find this fault led to raised expectations that Ms C’s preferred company would be providing transport. I therefore consider a payment of £250 to remedy this distress to be appropriate.
43. Finally, Ms C says the Council unnecessarily proceeded with Public Law Outline (PLO) measures and failed to review and cease the proceedings within statutory timeframes.
44. It is not for the Ombudsman to decide whether or not the Council should have proceeded with PLO measures or not. This is a decision for the Council to make.
45. Prior to commencing with the PLO, the Council took legal advice and held a legal planning meeting. It subsequently wrote to Ms C to inform her of the PLO and inviting her to a meeting.
46. While Ms C may consider the Council should have taken an alternative approach, it was a matter for the professional judgment of those involved in D’s case to decide what was necessary. Taking account of all the above, including the supporting evidence I have seen, I am satisfied that the Council’s actions were not affected by fault.
47. Ms C has said that the decision to proceed with PLO measures was unlawful. She cites legislation and case law which she says contradicts the Council’s legal argument for proceeding with the PLO. However, any further dispute over the legality of the decision made by the Council is a matter for the courts.
48. Whilst the PLO was concluded within the 26-week timeframe, the Council accept that it should have ceased its PLO work sooner, as the issue of D attending residential school had been resolved in October when a working document had been agreed at tribunal. However, the Council view is that it did not believe this had a negative impact on Ms C, as there was no further intervention after June.
49. However, Ms C says its delay in ceasing the PLO work sooner led to distress due to the uncertainty caused by the prospect of legal action.
50. Having considered this point, I do consider that the Council should have reviewed and ceased it is PLO sooner and that on balance the prospect of potential legal action would have caused Ms C distress.
51. However, I do also note that there was no further correspondence from the Council during this period to suggest any action was imminent. For this reason, I consider a payment of £100 to acknowledge any distress to be a suitable remedy.

Agreed action

52. Within 1 month of the date of my final decision, the Council has agreed to:
• Apologise to Ms C for the faults identified in this decision.
• Review any dance movement psychotherapy that were procured through Ms C’s direct payments and reimburse her accordingly.
• Offer to pay Ms C a total of £350 to acknowledge to distress caused by the faults identified above.
• Arrange to pay Ms C an additional £97.50 to cover therapeutic provision missed due to the delay in D starting his residential school placement.

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Final decision

53. I have concluded my investigation on the basis that there was fault leading to an injustice.

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Investigator's decision on behalf of the Ombudsman