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Surrey County Council (20 003 901)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 16 Jul 2021

The Ombudsman's final decision:

Summary: fault by the Council in securing a school place for Mrs X’s son, B, caused delay and uncertainty, and the special education provision B required was not in place when he started school. The Council has agreed a remedy.

The complaint

  1. Mrs X complains the Council withdrew her son B’s Education, Health and Care (EHC) Plan the day after it was issued. When the Council re-issued the Plan, it named a school she did not want B to attend. Mrs X says this caused uncertainty and distress.
  2. Mrs X complains B’s school did not recruit a teaching assistant to provide one-to-one support until 23 November, eleven weeks after B started school.

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What I have investigated

  1. I have investigated Mrs X’s complaint about the withdrawal and re-issue of B’s EHC Plan and the provision of one-to-one support. I cannot decide which school B should attend. This would be the Tribunal’s job.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
  2. 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. We cannot investigate a complaint about a matter someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
  4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
  5. 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

  1. I have considered:
    • information provided by Mrs X;
    • information provided by the Council.
  2. I invited Mrs X and the Council to comment on my draft decision.

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What I found

  1. Mrs X’s son, B, started primary school in September 2020. He has an Education, Health and Care (EHC) Plan maintained by the Council.

Education, Health and Care Plans: the law

  1. A child with special educational needs may have an Education, Health and Care (EHC) Plan. An EHC Plan describes the child’s special educational needs and the provision required to meet them.
  2. The procedure for assessing a child’s special educational needs and issuing an Education, Health and Care Plan is set out in legislation and Government guidance.
  3. A Plan should name the school, or type of school, the child will attend. Councils must consult schools before naming them in a child’s Plan.
  4. The law says that councils must name a parent’s preferred school in their child’s Plan, so long as the school is suitable and the child’s attendance would not be incompatible with the provision of efficient education for others or an inefficient use of resources. (Children and Families Act 2014, section 39)
  5. The Council must complete the process and issue a Plan within 20 weeks.
  6. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s Education, Health and Care Plan.
  7. Once the Council has issued a Plan, it must secure the special educational provision specified in the Plan for the child or young person. (Children and Families Act 2014, section 42)
  8. The Ombudsman’s role is to check the Council followed the relevant law, regulations and guidance when considering requests for, and issuing, Plans, and arranged for provision to be made. We cannot make decisions about a child’s special educational needs or the school they attend. Only the Tribunal can do this.

What happened

  1. The Council issued B’s final EHC Plan on 13 July 2020. The Plan said B would attend a local mainstream primary school, the school Mrs X wanted.
  2. The following day, the Council contacted Mrs X to say it had made a mistake. Due to an ‘oversight’, B had not been allocated a place and the school was now full. The Council said it would withdraw B’s EHC Plan, and re-issue the draft.
  3. The Council consulted another local primary school which offered B a place for the start of term in September. The Council issued a final Plan which said B would attend this school. Mrs X did not want B to attend this school.
  4. Mrs X complained to the Council. She said the withdrawal of B’s EHC Plan had caused the family uncertainty and distress ahead of B starting school, and she did not want the school the Council had named in the revised Plan.
  5. The Council apologised and offered Mrs X a payment of £250 to acknowledge her time and trouble in pursuing the complaint and the distress caused by the withdrawal of B's EHC Plan and school place.
  6. Mrs X is unhappy with the Council’s response and complained to the Ombudsman. Mrs X also appealed to the SEND Tribunal.

Consideration

Selecting B’s school

  1. The Council consulted Mrs X’s preferred school. The school responded to the consultation on 22 June 2020 to say it did not consider it could meet B’s needs. The Council issued B’s EHC Plan on 13 July 2020 naming the school. This was a mistake. The Council issued B’s EHC Plan before considering the school’s views. This created a legal obligation on the school to admit B.
  2. To make matters worse, the school had already admitted its full quota of pupils and was full. The Council should have ‘reserved’ a place for B when preparing his EHC Plan, but it did not because the procedures to coordinate the admissions processes had not worked.
  3. So, B was legally entitled to a place at the school, but the school said it could not meet his needs and was now full.
  4. The Council told Mrs X that B could not attend the school because the school was full. The Council explained that an ‘oversight’ meant it had not reserved a place for B. The Council explained the school could not admit any more pupils because of the legal limit on the size of infant classes. As a result, the Council said it had to look for a different school with places available.
  5. The Council’s explanation is not entirely correct. Different rules apply to school admissions for children with EHC Plans. A school named in a child’s EHC Plan must admit the child. The limit on infant class sizes does not apply. (Children and Families Act 2014, section 43(2) and 43(3))
  6. The fact the school was full was only one factor the Council had to consider, and the limit on infant class sizes was irrelevant.
  7. The Council also had to take account of the school’s view it could not meet B’s needs. This might involve considering whether the school would be able to meet B’s needs with additional support from the Council, and whether this would be an efficient use of resources.
  8. I have not seen evidence the Council properly considered whether B’s attendance at Mrs X’s preferred school would be an inefficient use of resources. Instead, the Council decided to look for another school.
  9. When the Council re-issued B’s draft EHC Plan, it should have invited Mrs X to say which school she wanted and considered her preference. I have not seen evidence that it did. Mrs X could have requested the same school again.

Securing B’s special educational provision

  1. B’s EHC Plan says he requires support from a teaching assistant.
  2. Mrs X says B’s school did not employ a teaching assistant until 23 November, eleven weeks after the start of term. Mrs X says this had a significant impact on B’s learning.
  3. The Council is responsible for securing the special educational provision specified in a child’s EHC Plan. Recent case law has confirmed there is no ‘best endeavours’ defence if provision is not made on time. (BA, R (on the application of) v Nottinghamshire County Council [2021] EWHC 1348 (Admin))
  4. The Council is at fault for not securing all the special educational provision required by B’s EHC Plan from the start of term.

Conclusion

  1. The Council accepts it made a mistake when it failed to reserve a place for B at Mrs X’s preferred school. This was fault.
  2. Once the mistake came to light, I consider there was fault in what the Council did next. Having issued a Plan which named the school, B was entitled to a place. The Council decided to amend B’s plan, but failed to properly consider whether B could attend Mrs X’s preferred school. This, too, was fault.
  3. Nevertheless, the Council secured a school place for the start of term. I understand B is now doing well at the school and Mrs X does not intend to move him to another school.
  4. The Council was also at fault for failing to secure the support required by B’s EHC Plan from the beginning of term.

Agreed action

  1. We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred. When this is not possible, as in the case of Mrs X and B, we may recommend the Council makes a symbolic payment to acknowledge what could have been avoidable delay, disruption, and distress.
  2. As a result of fault by the Council, B does not attend the school Mrs X wanted. Mrs X says the uncertainty about where B would start school caused distress. She says she did not receive confirmation of B’s new school in time to buy school uniform for the start of term, which made B stand out from the other pupils on his first day. She says the school did not receive B’s EHC Plan before the start of term, and was unable to recruit a teaching assistant until 23 November 2020. She says B’s education was disrupted as a result. B did not attend school full-time and, although this is not uncommon for young children starting primary school, he was entitled to attend full-time with the support in his EHC Plan.
  3. Taking all of these factors into account, to remedy the injustice caused by the Council’s faults, I recommended the Council:
      1. apologises for its mistakes, including the additional faults I have identified;
      2. pays Mrs X an additional £250 for the distress caused by the delay in finalising arrangements for B starting school and her time and trouble pursuing her complaint (making a total of £500);
      3. pays Mrs X £500 to recognise the disruption to B’s education caused by the delay in recruiting a teaching assistant.
  4. The Council accepted my recommendations.

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Draft decision

  1. I have completed my investigation as the Council accepted my recommendations.

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Investigator's decision on behalf of the Ombudsman

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