Summary: Ms V complained the Council failed to meet her son, W’s, needs when he was out of school and failed to consider her needs over the time she had to support him. She said this had caused her time, trouble and distress and that W had missed out on education that he should have received. We have found evidence of fault leading to injustice and the Council has been asked to make an apology, pay a financial remedy and consider its procedures going forward.

The complaint

1. The complainant, whom I shall call Ms V, complains the Council has failed to meet her son’s needs, including failing to provide him with appropriate full-time education. The Council has failed to remedy this through its complaints process. Ms V says she has been caused time and trouble and distress and W has missed out on services he should have received.

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The Ombudsman’s role and powers

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. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
4. 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)
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.
6. 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

7. I considered the information Ms V provided with her complaint and spoke to her on the telephone. I consulted a range of law and guidance and considered information found on the website of Independent Provider of Special Education Advice (known as IPSEA). I sent Ms V and the Council a copy of my draft decision in order to take comments they made into account before issuing a decision.

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What I found

Law and guidance

Special educational needs

8. The responsibility for providing support to children and young people with special educational needs and/or disabilities (SEN) is shared between Councils and education settings.
9. Most children and young people will have their SEN needs met within early years settings, schools or colleges without any need for involvement from the Council. This level of support is known as SEN Support.
10. Children with more complex needs might instead need an Education, Health and Care plan (EHCP). Prior to 2018 these were called Statements of SEN. Councils are the lead agency for carrying out assessments for EHCPs and have the statutory duty to ensure special educational provision in an EHCP is made available.
11. The responsibilities of the Council, settings and partner agencies (including health bodies) are set out in the Children and Families Act 2014 and associated Regulations and statutory guidance, The SEN Code of Practice 2015 (The Code).

The Needs Assessment process

12. SEN Reg 6(1) sets out the minimum information and advice the Council should seek in an education needs assessment, which takes place as part of the EHCP process.
13. This includes a wide range of people:
1. the child’s parent or the young person;
2. educational advice (usually from the head teacher or principal);
3. medical advice and information from a health care professional;
4. psychological advice and information from an educational psychologist;
5. advice and information in relation to social care;
6. advice and information from any other person the local authority thinks appropriate;
7. where the child or young person is in or beyond year 9, advice and information in relation to provision to assist the child or young person in preparation for adulthood and independent living; and
8. advice and information from any person the child’s parent or young person reasonably requests that the local authority seek advice from.
14. It is only acceptable to use existing advice where that advice is agreed as sufficient.

Education provision

15. The Education Act 1996 (Section 19) provides the basis for statutory guidance. This states that education authorities must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special needs.
16. This was amended by the Children, Schools and Families Act 2010 (Section 3), which made it the Council’s duty to provide full-time education from 1 September 2011.
17. The only exception to this is under subsection 3AA of the 1996 Act, where the physical or mental health of the child is such that full-time education would not be in his/her best interests.

Getting the best from complaints (2006) – remedying complaints

18. 6.3.1 Under Section 92 of the Local Government Act 2000, local authorities are empowered to remedy injustice arising from maladministration. Remedies will include, but are not restricted to, financial redress.
19. Each case should be considered on its own merits, and local authorities should develop their own policies to assure consistency across similar injustices. These should ensure that any remedies are implemented reasonably quickly or to take action within a defined framework.
20. Any application of remedies should:
1. be appropriate and proportionate to the injustice;
2. put the complainant in the position he would have been in except for the fault;
3. consider financial compensation, where the above is not possible;
4. take into account the complainant’s views and desired outcomes; and
5. take into account the effect of the complainant’s own actions (such as delay on (their) part).

Background

21. Ms V’s son, W, is a disabled child on the autistic spectrum. He has a range of needs set out in an Education, Health and Care Plan (EHCP).
22. Ms V made complaints about the way she and W were treated when W was out of school. The Council considered them through the statutory complaints procedure as set out in ‘Getting the best from complaints’ (2006).
23. Ms V remained unhappy. She felt the Council had not considered the full effect of its fault on her or on W. She asked the Ombudsman to look at this.
24. I am considering each of the complaints she made to the Council in turn. I consider the Stage Two investigation carried out by an independent investigating officer, engaged by the Council, is robust enough to enable me to rely on it. I have used its findings as a base for my own.

Ms V’s complaints to the Council

Why did the Council undertake a full reassessment of W’s EHCP in January 2019 given that his final EHCP had only been issued in February 2018 and there was a detailed annual review?

25. The Annual Review of January 2019 identified significant concerns about how W’s needs were set out in his first EHCP. It concluded that a full assessment was necessary. According to the Stage Two investigation, this was because W’s transition from a Statement of SEN to an EHCP had not been carried out in accordance with law and guidance. A key part of the process of developing an EHCP is a needs assessment where professionals are asked to provide their advice as to what services the child or young person needs and for this to be written into the EHCP.
26. Instead, the Council accepts it cut and pasted information from W’s Statement of SEN into an EHCP without conducting a needs assessment first. This meant the information used within W’s first EHCP, informing the school and Council of how W needed to be supported, was not up to date. The Stage Two investigation points out, for example, that W’s first EHCP refers to W needing ‘a quiet space’, which was incorrect. The amended EHCP acknowledged W needed his own space for ‘the majority or all of the day’.
27. The failure to carry out a needs assessment as part of the EHCP process is fault although Ms V could have gone to tribunal to ask the Council to reassess. W could not benefit from education that met his needs, or be properly supported at school, without an up-to-date EHCP. The Council is asked to provide assurance that it now carries out appropriate needs assessments and scrutinises Annual Reviews of children and young people with EHCPs to ensure their needs are being met. I will consider a remedy for missed education later.

Why did the Council take a further 5 months for a decision to allow funding to build W’s provision at (his school) after an already lengthy process of the 20 week plus re-assessment and the final draft in July /August?

28. According to the Stage Two report, Ms V thought the reassessment of W’s needs was ‘mainly started because of the need for the funding to allow W the bespoke environment he needs following the failure of his previous school setting’.
29. The chronology in the Stage Two report says on 6 August 2018; ‘Referral form for Exceptional Case panel detailing options for additional support in school with costs including bespoke space’. On that basis, I cannot say the reassessment was to support funding as the option had already been proposed.
30. The agreement to take this course of action did not, however, happen until September 2019. The length of time between proposing it and it being agreed (over twelve months) is fault. If a bespoke space was necessary for W, it should have been identified and decided upon much more quickly.
31. The Stage Two report is clear that part of the fault did not lie with the Council. But I have no evidence to show the Council told the school that changing the plans was delaying the process of getting a suitable space for W as well as increasing the price of the project. It would have been appropriate to get all parties around the table at an early stage so any objections were dealt with, and expectations managed, as soon as the need for a bespoke placement was highlighted. The failure to do this is fault and I consider that it caused delay to W being offered a service that met his needs. The Council should tell me what actions it will take going forward to work with schools if and when bespoke builds are necessary in the future.
32. Although the need for a bespoke space for W may have been decided upon in September 2019; this did not mean it would be achieved quickly. The entry on the Stage Two chronology for 12 September 2019 says there was a Team Around the Child meeting on that day, which included confirmation from an officer that ‘bespoke provision will be in place for W and will take 6 months’. At the time this had not been costed or agreed. The provision was not in place until November 2020. The delay is fault. It caused time and trouble for Ms V because the Council failed to manage her expectations (especially given the provision should have been in place before the first COVID-19 lockdown and enabled W to start school by September 2020).
33. Although it would not have been for one department to identify and provide what was necessary for W, it is clear the Council was not working together and the Stage Two comments on the problems with communications between departments. This is fault. The Council should tell me how it will ensure departments communicate on cases such as this in the future.

Why did the Council not increase W’s funding band from 5 to 7 when he went to his new school?

34. The emergency annual review held by the school in January 2019 is clear that W was not funded correctly by the Council when he transitioned to the school in 2018. It says this meant W did not have the services at the school that he needed (for example, 2:1 staffing at all times).
35. We cannot say what banding is appropriate for a child although the Stage Two investigator said that if a full needs assessment had been carried out, W’s needs would have been identified before he transitioned to the school. This may have resulted in his banding being increased and additional support put in place.
36. I agree with the investigator’s observation. I am finding fault in the way W did not have sufficient education.

The Council failed to consider that W was not receiving sufficient education from June 2018 to date.

37. I have evidence to show that when W left his previous school in the middle of the summer term 2018, he was expected to attend school for five hours per week in the afternoons and had a two hour session with a key worker on one morning. He was attending school for hardly any of that time. I can see no evidence of discussion about whether W could benefit from additional education or how it could be delivered. I have no evidence to show W received the amount of education he could have benefitted from in June and July 2018.
38. W stopped attending school in September 2018. The school was providing four one-hour sessions of education per week. Although I can see there were concerns about W being on the school site, and that visits from school staff to home had to stop because it was too dangerous, I cannot see evidence of discussions about how much education W could benefit from. The Annual Review of 2019 is clear that with the right provision, W could work up to a full-time timetable. On that basis, I have no evidence that W received the amount of education he could have benefitted from between September 2018 and July 2019, which is when the Council issued W’s new EHCP.
39. On 4 October 2019, an officer proposed direct payments for 2 hours per week for four weeks, increasing to three hours per week for four weeks until W was receiving six hours per week. This meant W would be receiving ten hours of education per week. Then on 8 December it was agreed to provide another ten hours so W had 20 hours of provision per week, which is broadly equivalent to full time education. It was appropriate to gradually increase his hours. Also – those hours had to be delivered by trusted adults because otherwise W was too anxious to benefit from education from people he did not know. This meant there were concerns about staff safety. The Council is not at fault for providing insufficient education to W after July 2019 because, with the issue of a new EHCP, Ms V had the opportunity to go to SEND if she wanted W to have other provision.

The Council failed to provide Ms V with support from Social Care.

40. This was not upheld by the Stage Two investigator because, from 12 March 2019, when the Children with Disabilities Team became involved in the case, they ‘worked with education as best as possible to move W and Ms V’s circumstances forward. They did reconsider direct payments and offered a proposed plan in September 2019 however events were overtaken by November 2019 as education direct payments were also offered by then; this seems to have been a more appropriate course of action’.
41. However, Ms V was caring for a child who was not going into school after September 2018. Ms V told the Council, even as late as April 2019, that she was ‘close to breaking point’. She was unable to take time to go to medical appointments or to see her family as she had to look after W. It was not fault for the Council to say; ‘direct payments to pay family members is not recommended’ and it was also not fault to suggest that once W transitioned back into education, Ms V would have time for herself. But this did not take account of what was happening at that time to that family. W could not tolerate care from a non-family member and was not in full time education. Having to ask the family to provide free care, for the time necessary, would have put more pressure on Ms V. At the time of the Council’s assessment in April 2019, although W’s teacher was visiting three or four times each week, W was only able to engage for around ten minutes each time. This would not have been sufficient time to allow Ms V to attend medical appointments. I can see no reference to a parent carers needs assessment, which may have concluded Ms V needed additional assistance.
42. The failure to assess Ms V’s needs (independent of W) and the failure to consider the family’s specific situation is fault. This caused Ms V distress because she did not feel she was being listened to and that she was ‘almost penalised for being resilient and strong’.

Resolving issues at Stage Two

43. Ms V asked for an apology and ‘to be assured that lessons have been learnt so that other children and families in similar circumstances receive the education they need and will be treated with more understanding’. The Council offered her this.
44. The Council did not consider any wider injustice to her, or W, beyond that. It did not consider whether it could put her back in the position she would have been but for the fault. Although Ms V was able to decide what outcomes would be meaningful to her, the Council should have considered whether other remedies would be appropriate. Its failure to do this is fault, and Ms V felt she needed to come to the Ombudsman for the wider learnings to be identified.
45. The Council should tell me what action it will take to consider remedies in the future in line with the relevant section of ‘Getting the best from complaints’ beyond just considering the desired outcomes of the complainant at the time.

Agreed action

46. For the Council to apologise to Ms V for the fault identified in this statement within a month of the date of my decision.
47. For the Council to confirm that it now carries out appropriate needs assessments and scrutinises Annual Reviews of children and young people with EHCPs to ensure their needs are being met. The Council has told me it carries out appropriate needs assessments and has shown me how it does that. It has not yet told me how it scrutinizes Annual Reviews of children with EHCPs and is asked to do so within three months of the date of my decision.
48. For the Council to tell me what actions it will take going forward if and when bespoke builds are necessary in order to communicate effectively internally and externally with schools within six months of the date of my decision.
49. For the Council to consider whether W missed any services he should have had because of its delay in issuing a complete EHCP and whether any of those services can be made up now. The Council is asked to do that within three months of the date of my decision.
50. For the Council to make a payment to Ms V of £300 for distress and £300 for time and trouble within three months of the date of my decision.
51. For the Council to make a payment for W’s educational benefit of £2,600 (£200 per month for thirteen months) within three months of the date of my decision.
52. For the Council to tell me what action it will take to consider remedies to complaints in the future in line with the relevant section of ‘Getting the best from complaints’ (as set out in paragraph 20) within three months of the date of my decision.

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Final decision

53. Fault leading to injustice and appropriate remedies to that injustice have been agreed.

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Investigator's decision on behalf of the Ombudsman