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Cheshire East Council (20 004 434)

Category : Education > Special educational needs

Decision : Not upheld

Decision date : 08 Jun 2021

The Ombudsman's final decision:

Summary: Ms X complained the Council did not ensure her child, Y, received provision in their Education, Health and Care Plan between November 2018 and December 2019. The Council was not at fault.

The complaint

  1. Ms X complained the Council did not ensure her child, Y, received provision set out in their Education, Health and Care Plan between November 2018 and December 2019. She says this impacted on their education and development and caused her and her child distress. She wants the Council to provide a financial remedy for the lost provision and as recognition of the distress caused.

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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 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)
  3. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
  4. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)

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How I considered this complaint

  1. I read Ms X’s complaint and spoke with her about it on the phone.
  2. I made enquiries of the Council and considered information it sent me. I also considered information provided by Ms X.
  3. Ms X and the Council had the opportunity to comment on the draft decision. I considered their comments before making a final decision.

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What I found

Education, Health and Care Plans

  1. Some children and young people with special educational needs and disabilities will have an Education, Health and Care Plan (EHC Plan). The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs.
  2. After an EHC Plan is finalised, councils have a duty to ensure the special educational provision set out in the plan is delivered. This duty is set out in the Children and Families Act 2014 and is non-delegable.
  3. If a person disagrees with the content of an EHC Plan or an amended EHC Plan, they have a right of appeal to the Special Educational Needs and Disability Tribunal (SEND).

What happened

  1. Ms X’s child, Y, has Special Educational Needs (SEN) and an EHC Plan. In November 2018, Y started at school A. School A is a specialist school for children with SEN. Following a SEND tribunal hearing, school A was named in Y’s EHC Plan in December 2018.
  2. In February 2019, Ms X was concerned Y was not receiving the Speech and Language Therapy provision in their plan. She sought advice from a solicitor and had email contact with school A and with NHS professionals. Ms X says the Council was aware of her concerns as she spoke to Council officers about them and also forwarded one of the email responses she received from the NHS to the Council.
  3. In June 2019, Ms X contacted the Council. She said the school had called an interim review of Y’s EHC Plan and she was concerned Y was not receiving the provision in the plan. The Council says this was the first time it became aware of Ms X’s concerns.
  4. Ms X’s solicitor wrote to the Council setting out in detail which parts of Y’s provision Ms X felt they were not receiving. The solicitor asked the Council for evidence the EHC Plan was being complied with within 7 days.
  5. The Council contacted school A and asked it to provide details of how it was delivering the provision in Y’s plan. The school arranged an EHC review meeting for early July. The Council told Ms X’s solicitor it would respond to their letter after the review meeting had taken place.
  6. Due to unforeseen circumstances, the Council officer was unable to attend the review meeting. It was rescheduled for 11 days later.
  7. School A held the EHC review meeting in mid-July. The Council, Ms X and a representative from children’s health attended. They discussed some of the points raised in the letter from Ms X’s solicitor. The Council notes from the meeting record that after discussion, Ms X agreed that a lot of the provision was in place, although there were some aspects which needed further work. The Council says it considered that, overall, the school was delivering the provision. Ms X said she remained dissatisfied with school A. School A said it could not hold a further meeting before the end of term, so the Council arranged a further meeting for September 2019 to discuss the remaining points of concern in the Council letter.
  8. The Council visited Ms X at home to further discuss her concerns.
  9. In September 2019, the Council met again with Ms X and school A. They discussed the remainder of Ms X’s points in the solicitor’s letter. The Council had concerns how school A was delivering one aspect of Y’s provision. School A said there was another part of the provision it was unable to deliver as its staff were not appropriately trained to do so. The Council decided some amendments were required to Y’s EHC Plan to reflect the current provision.
  10. The Council sent a formal response to Ms X’s solicitor. It responded to each of Ms X’s concerns, setting out how school A was delivering most parts of the plan. It said discussions were continuing with the school about how it could deliver the element the school said it could not provide and about their approach to one aspect of the provision.
  11. The Council drafted an amended EHC Plan, but Ms X told the Council she was not happy with the amendments.
  12. At the end of September, Ms X submitted a formal complaint to the Council. She complained that between December 2018 and September 2019, the Council had not ensured Y received provision in their EHC Plan.
  13. The Council responded to her complaint. It said since her solicitor raised her concerns in June 2019, the Council had held meetings with her and school A to try and make progress. The Council said Ms X had agreed some of the provision was in place during these meetings, but the Council accepted there was still some provision not being delivered and it needed ongoing work to get it in place. It said if she wanted to complain about historic non-provision prior to her raising her concerns with the Council, she should complain to the school. It said going forward, it would meet with school A to support it to put in place the outstanding provision. It said it would then arrange a further meeting with Ms X and school A to discuss progress. Ms X says these meetings did not take place.
  14. The Council issued a final amended EHC Plan at the end of October. The Plan amended some of Y’s provision. It named school A as Y’s educational setting.
  15. The Council continued to work with school A to try and get the missing provision in place. The records show that school A did not always agree with the Council’s viewpoint about what was needed. The Council considered whether it may need to source an external provider for part of the provision.
  16. At the end of October, school A told the Council it no longer felt it could meet Y’s needs.
  17. In November 2019, Ms X’s solicitor wrote again to the Council. The letter said Ms X was satisfied most of the provision was now in place. It set out three areas of Y’s provision that Ms X said were still not being delivered.
  18. Ms X requested the Council escalate her complaint to stage 2. She set out several issues which she said remained unresolved. She said the historic non-provision of interventions in Y’s EHC Plan was the Council’s responsibility, not school A’s.
  19. In December 2019, Ms X withdrew Y from school A. She said the school had not met Y’s needs since the start and Y was now too anxious to attend.
  20. Ms X was unhappy with the final amended EHC Plan and appealed to the SEND Tribunal in January 2020.
  21. The Council responded to her stage 2 complaint. It said it had responded to her concerns about delivery of Y’s EHC provision at school A in its stage 1 response. It said as Ms X had now appealed to the SEND Tribunal about the content of the EHC Plan, it was not appropriate to comment further.
  22. Ms X remained dissatisfied and brought her complaint to us.

Analysis

  1. Ms X says the Council was aware Y was not receiving provision in the plan in February 2019, but the evidence does not show this. I have considered the emails provided by Ms X between her and her solicitor and with NHS professionals, but these do not show the Council knew Y was not receiving provision. The evidence shows the Council first became aware of her concerns in June 2019. The Plan had been finalised through the SEND Tribunal process and school A was a special school which the Tribunal decided could meet their needs. Although the Council was responsible for ensuring the provision was delivered, it would usually do this by means of the Annual Review process. In between Annual Reviews, it was reasonable for the Council to assume that school A was delivering the provision, unless school A or Ms X told it otherwise. Therefore, the Council was not at fault for any non-delivery of Y’s provision before June 2019. The Ombudsman has no jurisdiction to investigate the actions of school A.
  2. Once Ms X told the Council of her concerns, the Council acted appropriately by contacting the school to request evidence of how it was delivering Y’s provision. It obtained the school’s evidence and attended the EHC review meetings with the school and Ms X in July and September 2019. It satisfied itself that most of the provision was in place. The notes show that after the July meeting, Ms X accepted that a lot of the provision was in place. The Council did identify some elements of provision which were not being delivered but agreed to work with Ms X and the school to achieve this. These were appropriate actions in response to Ms X’s concerns.
  3. Following the second annual review meeting in September 2019, the Council responded to Ms X’s solicitor addressing each point of Ms X’s concerns and setting out how school A was delivering most of the provision in the plan. It identified two aspects of provision that were either not being provided or needed further discussion with the school. It said discussions were continuing with school A to get the missing provision in place. This was an appropriate response.
  4. During the autumn term, the Council continued to try and address the outstanding issues with school A. School A did not always agree to the Council’s requests but this was not the Council’s fault. School A eventually told the Council it could no longer meet Y’s needs, but this was not the Council’s decision.
  5. The letter from Ms X’s solicitor in November 2019 said she was satisfied most of the provision was in place. Overall, the evidence shows the Council worked appropriately with Ms X and the school between June and December 2019 to try and ensure all of Y’s provision was in place. It agreed with Ms X that some aspects were still outstanding and was working to address these, up until the point the school told the Council it could no longer meet Y’s needs. This was school A’s decision to make. The Ombudsman has no jurisdiction to investigate the actions of schools. The Council was not at fault.
  6. The Council amended Y’s EHC Plan in October 2019, but Ms X disagreed with the content. The Ombudsman has no jurisdiction to consider the content of EHC Plans and Ms X has used her right of appeal to the SEND Tribunal about this.

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Final decision

  1. I have completed my investigation. The Council was not at fault.

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Investigator's decision on behalf of the Ombudsman

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