London Borough of Croydon (20 001 050)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 02 Feb 2021

The Ombudsman's final decision:

Summary: the complainants complained the Council told them they had a right of appeal against an EHC Plan issued on the directions of the SEND Tribunal. This led them to spend avoidable time and experience inconvenience in preparing for an appeal on which the Tribunal judge cast doubt. The Council says it acted in line with its understanding of the law which it says is not clear. We found the Council at fault and it has agreed to the remedy recommended.

The complaint

  1. The complainants, whom I shall refer to as Mr and Mrs X, complain that when the Council issued an EHC Plan as directed by the SEND Tribunal the Council told them they had a right to appeal this decision. Mr and Mrs X says this led them to spend time and commission a report for an appeal at which the Tribunal judge cast doubt on whether they could appeal.
  2. Mr and Mrs X want the Council to amend its procedures to prevent this happening again and to refund them for their avoidable time, expense, and inconvenience in pursing an appeal which they believe could not succeed.

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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. If 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. In considering this complaint I have:
    • Contacted Mr and Mrs X and reviewed the Tribunal’s ruling and Council action;
    • Reviewed the Council’s response to our invitation to comment on the view the Council put Mr and Mrs X to avoidable time, inconvenience, and expense.
  2. I shared with Mr and Mrs X and the Council my draft decision and considered any comments received before reaching this my final decision.
  3. 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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What I found

  1. Mr and Mrs X appealed an EHC Plan issued by the Council to the SEND Tribunal. The Tribunal directed the Council to issue the EHC Plan in line with its ruling. The Council then issued an EHC Plan following the Tribunal’s directions. The Council advised Mr and Mrs X they had the right to appeal this EHC Plan to the Tribunal.
  2. Mr and Mrs X appealed believing some parts of the EHC Plan needed amendment. In preparation for the Tribunal hearing Mr and Mrs X spent £300 on a specialist report. The Tribunal arranged a virtual hearing in July 2020. The Tribunal judge adjourned the hearing inviting the parties to agree to amendments to the EHC Plan during that adjournment. The Tribunal Judge then gave a ruling commenting:

“The Tribunal raised as a preliminary observation its doubts as to whether the Tribunal had jurisdiction to consider this appeal, given that the amended Plan appealed was amended by order of the Tribunal and was not a decision by the local authority. However, it is not necessary to make a decision, or hear submissions, on whether this obliged the Tribunal to strike out the appeal…as the parties indicated a willingness to work together to agree amendments…”

  1. The Tribunal then issued a Consent Order confirming the agreement between Mr and Mrs X and the Council on the amended contents of the EHC Plan.
  2. We invited the Council to consider whether it had acted in error in giving Mr and Mrs X the right to appeal the EHC Plan. We also asked the Council to agree to paying Mr and Mrs X £250 in recognition of the avoidable time, inconvenience, and confusion caused to them.
  3. The Council says the appeal resulted in a negotiated settlement and so Mr and Mrs X achieved at least part of what they wanted. The Council says it considered the right to appeal as set out in Section 51(2) (c) of the Children and Families Act 2014; the Special Educational Needs and Disability Regulations 2014; and the SEN Code of Practice. The Council says the law, regulations and guidance do not say that appeal rights do not apply where the Council issues an EHC Plan after a Tribunal ruling. The Council cited in support of its view its application in a similar case to have another appeal struck out (on other grounds). The Council says a different Tribunal judge ruling on that application did not raise the issue of whether the Council had acted correctly in providing appeal rights.
  4. Therefore, the Council says it is not clear whether a parent can appeal an EHC Plan issued on the instructions of the Tribunal. Following the Tribunal’s decision however, the Council recognised the doubts the Tribunal expressed and amended its procedure. It no longer issues letters setting out appeal rights when issuing EHC Plans following directions from the Tribunal.

Analysis – was there fault leading to injustice?

  1. My role is to consider if the Council acted with or without fault, not to decide if Mr and Mrs X had a right of appeal. If fault occurred, I must consider what impact that fault had and decide what the Council should do to correct it.
  2. The Council says when it issued the EHC Plan it acted in line with its normal procedure by including the right to appeal the EHC Plan. The Tribunal did not give a direct ruling on its jurisdiction but following the doubts it expressed the Council has amended its procedures. We would expect the Council to do this.
  3. It is not part of our role to decide if an appeal right exists. This is a matter of law for the courts to decide. However, it cannot be the first time a council has issued an EHC Plan on the directions of the Tribunal. Therefore, there should be evidence available to the Council on whether such a right of appeal exists.
  4. We do not expect the public to know the intricacies of the law, regulations, or guidance. They rely on information supplied by the Council when the Council issues a decision. Therefore, I must consider if the Council acted with fault in issuing information confirming a right of appeal that resulted in the Tribunal judge expressing doubts about those appeal rights.
  5. The Council should know whether a parent has a right of appeal. Mr and Mrs X acted in good faith in believing they had a right of appeal and prepared for that. Councils often issue EHC Plans on the direction of a Tribunal. I am concerned the Council has not previously researched what appeal rights parents have in these circumstances. Earlier research and consultation with other councils may have saved Mr and Mrs X the time and inconvenience of an appeal and the confusion surrounding it.
  6. Therefore, I find the Council at fault for its lack of research into and awareness of any limits on the rights of appeal when advising Mr and Mrs X they had the right to appeal.
  7. In considering whether Mr and Mrs X should receive a remedy in recognition of the time and inconvenience caused I have noted the Tribunal did not make a direct ruling on jurisdiction. Instead, it granted a consent order reflecting some changes the Council and Mr and Mrs X agreed. Therefore, Mr and Mrs X did benefit from the procedure which is why my recommendation is not for a payment at the top of the remedy scale. I have set it in the upper part of our scale. This reflects the fact the Council put Mr and Mrs X to avoidable time and inconvenience which they would not have experienced had the Council properly understood their appeal rights and the Tribunal’s jurisdiction.
  8. With the Tribunal judge having expressed doubts on jurisdiction but not making a direct ruling I am also recommending the Council seeks further expert advice and consults other councils on their procedures. This will secure clarity on when parents should be told they have a right of appeal.

Recommended and agreed action

  1. To remedy the injustice arising from the fault I have identified the Council has agreed to my recommendation that within four weeks of this my final decision the Council will apologise to Mr and Mrs X and pay them £250. The Council further agrees that within three months of my final decision the Council will research and review the rights of appeal so it can better advise parents when issuing EHC Plans.

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Final decision

  1. In completing my investigation, I find the Council acted with fault causing injustice.

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Investigator's decision on behalf of the Ombudsman

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