Cumbria County Council (19 018 931)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 07 May 2021

The Ombudsman's final decision:

Summary: Mrs X complains that the Council failed to monitor her son’s placement at an independent alternative provision. The Ombudsman finds the Council acted without fault. However, there was fault in the actions of the Council following an annual review of the EHCP in March 2019 which meant Mrs X was denied her right to appeal. The Council has agreed to apologise, make a financial payment and service improvements.

The complaint

  1. Mrs X complains the Council failed to monitor her son’s placement at an independent alternative provision and therefore failed to ensure the education specified in her son’s Education and Health Care Plan (EHCP) was provided.
  2. Because of this Mrs X said her son missed out on education and she had to pay for private tuition.

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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. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  3. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
  4. 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)
  5. 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 have considered the information provided by Mrs X and spoken to her about the complaint. I considered the Council’s comments on the complaint and the supporting documents it provided.
  2. I provided Mrs X and the Council with a copy of my final decision and invited their comments.

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What I found

Alternative educational provision

  1. The Department for Education has issued statutory guidance for local authorities on alternative provision. The guidance says the responsibility for the alternative provision rests with the commissioner. The commissioner should maintain on-going contact with the provider and pupil, with clear procedures in place to exchange information and monitor progress.

Special educational needs

  1. A child with special educational needs and disability (SEND) may have an EHCP. The EHCP sets out the child's educational needs and what arrangements should be made to meet them.
  2. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision, the school named in their child's plan, or the fact that no school or other provider is named.
  3. The annual review of an EHCP considers whether the provision remains appropriate and whether progress is being made towards the targets in the plan.
  4. Paragraph 9.169 of the SEND Code of Practice (the Code) says “The first review must be held within 12 months of the date when the EHC plan was issued, and then within 12 months of any previous review, and the local authority’s decision following the review meeting must be notified to the child’s parent or the young person within four weeks of the review meeting…”
  5. In practice the review covers not just the annual review meeting, but the Council’s decision to maintain, cease or amend the plan. Each of these decisions carries a right of appeal.
  6. Where a council decides to amend the plan, it must notify the parents of this decision within four weeks of the review meeting.
  7. If a council decides not to amend the plan or decides to cease to maintain it, they must notify the child’s parents or the young person of their right to appeal that decision and the time limits for doing so.

What happened

  1. I have set out below a chronology of key events. It is not meant to show everything that happened.
  2. Mrs X’s son (Y) has an EHCP. Y has autistic spectrum disorder and anxiety. The EHCP named an alternative education provider (the college). The Council considered this an appropriate placement for Y. It was also Y’s and his parents’ preference.
  3. The college produced an Individual Education Plan (IEP) setting out targets specific to the objectives identified in Y’s EHCP.
  4. In January 2019 it was identified that the support and provision put in place by the college was not helping Y. The college discussed various options with Mr and Mrs X and arranged for Y to attend an independent alternative provision setting (placement B). Mr and Mrs X agreed and in February 2019 Y started to attend placement B two days a week.
  5. As part of the annual review of Y’s EHCP plan in March 2019, Mrs X told the Council that the IEP was appropriate to Y’s needs. Mrs X said that they had a very positive relationship with placement B and requested that Y continue to attend. The college reported that the communication between staff at placement B and Y was excellent and Y was supported to participate in learning through vocational studies.
  6. An Early Help meeting took place in May 2019 and recorded that sessions at placement B had been increased to three days per week due to a successful placement. This was at the request of Y and his parents.
  7. A further Early Help meeting took place in June 2019 and recorded that the relationship with placement B had broken down due to an incident in May 2019. Mrs X said that in May 2019 Y was inappropriately physically handled by a member of staff. Mrs X says that she reported the incident to the Council at the time, but no action was taken.
  8. On 23 September 2019 Mrs X complained to the Council about placement B. Mrs X said that in May 2019 Y was inappropriately physically handled by a member of staff. Mrs X said the placement had failed to meet Y’s special educational needs and the Council had failed to monitor the placement.
  9. A complaint meeting was held at the college on 13 November 2019. The meeting was attended by Mr and Mrs X, a representative from the college and the Council. The Council says the role of its representative was to act as a mediator between the college and Mr and Mrs X.
  10. Following the meeting the college wrote to Mr and Mrs X. The letter confirmed that the Council would:
  • arrange an internal meeting to discuss the provision at placement B;
  • arrange a meeting with the owners of placement B to discuss concerns and put in place strategies going forward;
  • implement tighter monitoring of external provision, including placement B; and
  • provide feedback to Mr and Mrs X.

Analysis

  1. We cannot consider the role of the school/college as they are not within our jurisdiction. This investigation is limited to the role of the Council.
  2. The crux of Mrs X’s complaint is that the Council failed to monitor Y’s provision at placement B. I appreciate Mrs X’s concerns however I have found no fault by the Council. I agree with the Council’s view that placement B was not named in Y’s EHCP and therefore it had no direct duty to ensure the provision was made. The placement was commissioned by the college in agreement with Mr and Mrs X and Y and therefore it was responsible for monitoring the provision. The Council remained involved and aware of Y’s progress through the annual review process and Early Help meetings attended by Mr and Mrs X and the college. I find no fault by the Council.
  3. The Council decided not to amend the EHCP following the review in March 2019 on the basis that the placement at provision B had broken down. There is no evidence that the Council notified Mr and Mrs X of their right to appeal that decision. This is fault as Mr and Mrs X were denied the opportunity to appeal the Council’s decision.
  4. The safeguarding incident cannot be looked at by the Ombudsman as it relates to the conduct of staff at placement B. It was for Mrs X to use the college’s complaint process. Mrs X told me that she met with the college and was satisfied with its investigation and response to the incident. However, I am concerned that the Council failed to take any action in May 2019. The Council has a duty of care to all children in its area and given the serious nature of the concerns raised by Mrs X I would have expected to have seen evidence of a safeguarding referral. The failure to do so was fault. However, this did not cause Mrs X an injustice as she raised her concerns with the college and was satisfied with its response.
  5. In response to the Ombudsman’s enquires the Council confirmed the action it had taken following the complaint meeting in November 2019. For confidentiality reasons I cannot share the detail of the action taken and the outcome(s). However, I am satisfied with the revised approach taken by the Council with regards to monitoring of alternative provision. The Council has been working with schools and alternative provision providers in implementing a quality assurance framework toolkit. The toolkit promotes partnership working and compliance with quality standards. In its complaint response, the Council provided feedback to Mr and Mrs X and explained that it had visited placement B, checked policies and procedures, and carried out observations.

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Agreed action

  1. With regards to the fault and injustice identified in paragraph 28, within one month of this decision the Council will:
      1. Apologise in writing to Mr and Mrs X;
      2. Pay Mr and Mrs X £150 to acknowledge they were denied the opportunity to appeal the Council’s decision to not amend Y’s EHCP; and
      3. Ensure staff are made aware of complying with the SEND Code of Practice if it decides not to amend an EHCP following review.

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Final decision

  1. I have found fault by the Council causing injustice to Mr and Mrs X. The Council has agreed to my recommendations and I have competed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman

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