Salford City Council (20 006 611)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 03 Sep 2021

The Ombudsman's final decision:

Summary: Mrs F complained the Council has not provided her son with the specialist provision required in his Education, Health and Care plan after a Tribunal order. We find the Council was at fault for not holding an annual review within 12 months. However, this did not cause Mrs F or her son an injustice.

The complaint

  1. Mrs F complained the Council has not provided her son with the specialist provision required in his Education, Health and Care (EHC) plan after a Tribunal order. She adds the Council failed to act when she reported her son was being excluded from school.
  2. Mrs F says it has had a massive impact on her mental health and daily life. She is frustrated her son has not received the specialist provision that he needs.

Back to top

What I have investigated

  1. I have investigated the Council’s actions from after the Tribunal order was issued (27 July 2020) to 8 December 2020. I have not investigated the Council’s actions after 8 December 2020 for the reasons set out at the end of this statement.

Back to top

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. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’)
  3. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), 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.

Back to top

How I considered this complaint

  1. I considered information Mrs F submitted with her complaint. I made written enquiries of the Council and considered information it sent in response.
  2. Mrs F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and statutory guidance

  1. A child with special educational needs may have an EHC plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
  2. The Children and Families Act 2014 says councils are responsible for making sure that arrangements specified in EHC plans are put in place and reviewed each year. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out in an EHC plan has not been provided or where there have been delays in the process.
  3. 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 educational setting is named.
  4. Section 19 of the Education Act 1996 says councils are responsible for the provision or suitable education for children of compulsory age who, ‘by reason of illness, exclusion or otherwise’ may not for any period receive suitable education unless such arrangements are made for them.
  5. Councils must arrange suitable, alternative education for children of school age who have been permanently excluded from school. The education must start on the sixth school day after a child is excluded.
  6. Statutory guidance on special educational needs provision (Special educational needs and disability code of practice: 0-25 years) confirms that annual reviews must take place within 12 months of the last review.

What happened

  1. Mrs F’s son (G) has learning difficulties and an EHC plan. Mrs F appealed to the Tribunal about the content of G’s EHC plan and the choice of school.
  2. The Tribunal heard Mrs F’s appeal on 13 July 2020 and issued an order on 27 July. This said the school (School A) named in G’s EHC plan should stay the same and it was suitable for him. However, the judge said the Council needed to amend G’s EHC plan to include 25 hours of 1:1 support per week. The judge also said G needed to be provided with a programme devised by a speech and language therapist (SLT). The Council issued the amended EHC plan on 5 August.
  3. Mrs F contacted the Council and said it had failed to include the 25 hours of 1:1 support per week in G’s EHC plan. The Council responded on 7 September. It made a slight amendment to the first paragraph of section E/F of G’s EHC plan to make it clear about the 25 hours of 1:1 support that had been arranged. The Council says even though it was satisfied G’s EHC plan was compliant with the Tribunal order, it was happy to add a further sentence to satisfy Mrs F that it had secured the provision.
  4. Mrs F met with a member of staff from School A on 7 September to prepare for G’s return after the summer holidays. School A agreed that G would receive 25 hours of 1:1 support per week when he returned on 9 September.
  5. G accessed some speech and language therapy (SALT) on 11 September, 21 September, and 22 September.
  6. Mrs F emailed the Council on 21 September and said G was not happy because he kept running away from School A. G’s behaviour began to deteriorate around this time. School A issued fixed term exclusions for him on 28 September (for one day), 5 October (for half a day) and 14 October (for two days).
  7. A SALT implementation meeting took place at School A on 6 October. School A agreed that G would need to be observed by the SLT so that it could provide further support. School A sent Mrs F a SALT consent form on 7 October.
  8. Mrs F complained to the Council on 14, 19 and 24 October. She said School A was regularly excluding G and therefore he was not accessing the provision in his EHC plan.
  9. The SLT observed G on 20 October. She devised a programme of further SALT input for him the following week.
  10. Mrs F stopped sending G to School A after 21 October. She emailed the Council on 22 October and said she was looking at other schools for G. She said School A could not meet G’s needs because he had been excluded three times. The Council responded and said it was happy to consult with a school of Mrs F’s choice.
  11. The Council responded to Mrs F’s complaint on 4 November. It said it had delegated top up funding to ensure G was receiving the support in his EHC plan. It also said School A had not said it could not meet G’s needs.
  12. The Council held a meeting with School A and other professionals on 5 November because of G’s absence. School A agreed to provide more support for G.
  13. The Council emailed Mrs F on 16 and 23 November. It questioned why G was not attending School A in line with the recent Tribunal order. It said G’s absence was unauthorised. It also said it would arrange a virtual meeting for G to return to School A. Mrs F responded and said G would not be returning to School A.
  14. Mrs F emailed the Council on 24 November and raised further concerns that it had failed to hold an annual review in September 2020. The Council responded and explained that as it issued G’s amended EHC plan in August 2020, it was important there was sufficient time for School A to implement the provision. Therefore, it was not appropriate to hold the annual review.
  15. The Council wrote to Mrs F on 26 November and said G could join her preferred choice of school (School B) within the next 14 days.
  16. Mrs F escalated her complaint to stage two of the Council’s complaints procedure on 27 November. She said the Council had failed to support G and meet its legal duties under Section 19 of the Education Act 1996.
  17. The Council issued a final amended EHC plan naming School B on 8 December. G started attending School B on the same day. Mrs F later appealed to the Tribunal about the provision in the final amended EHC plan.
  18. The Council issued its final response to Mrs F’s complaint on 18 December. It said it had continued to drive the implementation of G’s EHC plan while she explored other areas of support. It also said when she had decided on School B, it acted quickly to secure a place for G.
  19. Mrs F remained dissatisfied with the Council’s response and referred her complaint to the Ombudsman.

Back to top

Analysis

  1. The evidence shows the Council amended G’s EHC plan in line with the Tribunal order. The first time Mrs F alerted the Council that G was not receiving his specialist provision was in her complaints on 14,19 and 24 October 2020. By this time, G had been receiving 25 hours of weekly 1:1 support from 9 September 2020. School A had also taken steps to dealt with the SALT element of G’s EHC plan, by arranging for the SLT to observe him on 20 October 2020. The SLT devised a full programme of further SALT input on 28 October 2020. This was in accordance with G’s EHC plan.
  2. Mrs F chose to withdraw G from School A. When the Council became aware of this and that he had been temporarily excluded on a few occasions, it arranged a meeting with School A and other professionals. School A assured the Council that it could meet G’s needs. The Council explained this to Mrs F and encouraged her to send G to School A. However, Mrs F refused. Therefore, the reason that G did not receive his specialist provision after 21 October 2020 is because of Mrs F’s refusal to send him to School A. It is not because of any fault by the Council. The Council also went further than we would have expected it to and consulted with School B to resolve Mrs F’s concerns.
  3. Mrs F says the Council only allocated the 25 hours of 1:1 support when it amended G’s EHC plan on 7 September 2020. I have compared G’s EHC plan that was issued on 5 August 2020 with the slightly amended one of 7 September 2020. I am satisfied the plan issued on 5 August 2020 appropriately included the 25 hours of 1:1 support in section F. However, Mrs F wanted the Council to make the support even more explicit. The Council did this on 7 September 2020. In any event, this did not cause Mrs F or G an injustice because G received the support when he returned to School A on 9 September 2020.
  4. Mrs F says the Council failed to hold an annual review within 12 months. The annual review was due in September 2020 and the Council did not arrange this. This is fault. The statutory guidance says annual reviews must take place within 12 months of the last review. A new plan being issued following a Tribunal order does not re-start the clock.
  5. The Council has explained that it did not hold an annual review because the focus was to successfully implement the amended EHC plan. It says there was nothing to review because it issued the amended EHC plan during the summer holidays. It also says that it issued a further amended EHC plan on 8 December 2020, and Mrs F exercised her right to appeal to the Tribunal about the content of that plan.
  6. While I have found the Council was at fault for not meeting the timescales for the annual review set out in statutory guidance, I consider its reasons for not conducting one are reasonable. I also do not consider it caused Mrs F or G an injustice. This is because by December 2020, G was attending School B, which was Mrs F’s preferred choice. It is likely the outcome would have been the same if the annual review had taken place earlier.

Back to top

Final decision

  1. I have completed my investigation. There was fault by the Council, but this did not cause Mrs F or her son an injustice.

Back to top

Parts of the complaint that I did not investigate

  1. The courts have said where a loss of education coincides with an appeal about an EHC plan and there is a link between them, the period from the date on which the appeal right arises until the appeal is heard cannot be investigated by the Ombudsman. Therefore, I have investigated the Council’s actions from after the Tribunal order was issued (27 July 2020) to 8 December 2020. Mrs F appealed to the Tribunal about G’s EHC plan that was issued on 8 December 2020 and therefore I have not investigated the Council’s actions after this date.

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page

LGO logogram

Review your privacy settings

Required cookies

These cookies enable the website to function properly. You can only disable these by changing your browser preferences, but this will affect how the website performs.

View required cookies

Analytical cookies

Google Analytics cookies help us improve the performance of the website by understanding how visitors use the site.
We recommend you set these 'ON'.

View analytical cookies

In using Google Analytics, we do not collect or store personal information that could identify you (for example your name or address). We do not allow Google to use or share our analytics data. Google has developed a tool to help you opt out of Google Analytics cookies.

Privacy settings