Summary: Ms B complained the Council failed to meet her reasonable adjustments when it corresponded with her about her son’s special educational needs. She said the failure to do so meant she was unable to appeal against a decision not to issue an Education, Health and Care (EHC) Plan. She said the faults in the assessment of her son meant he attended a school that did not meet his needs and there was no means of requiring the school to do so as there was no EHCP in place. She also complained about the way the Council responded to her concerns. She said the Council’s failings meant she had to educate her son at home and it caused her and him distress. There was fault by the Council but it did not cause significant injustice to Ms B.

The complaint

1. I refer to the complainant as Ms B. She complained the Council failed to meet her reasonable adjustments when it corresponded with her about her son’s special educational needs. She said the failure to do so meant she was unable to appeal against a decision not to issue an Education, Health and Care (EHC) Plan. She said the faults in the assessment of her son meant he attended a school that did not meet his needs and there was no means of requiring the school to do so as there was no EHCP in place. She also complained about the way the Council responded to her concerns. She said the Council’s failings meant she had to educate her son at home and it caused her and him distress.

Back to top

The Ombudsman’s role and powers

2. 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.
3. 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)
4. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
5. 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)
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)

Back to top

How I considered this complaint

7. I considered the complaint and documents provided by Ms B and spoke to her. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Ms B and the Council and considered their comments.
8. 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

What I found

Summary of the relevant legal framework and guidance

9. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them.
10. Parents can appeal to the Special Educational Needs and Disability Tribunal (SEND Tribunal) when a council refuses to carry out an EHC needs assessment, when it refuses to issue an EHC Plan or a parent is dissatisfied with the final Plan, and the school named on the Plan.
11. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body that carries out a public function. Its aim is that, as far as reasonably possible, people who have disabilities should have the same standard of service as non-disabled people.
12. Service providers have to consider removing or preventing obstacles to people with disabilities accessing their service. If the adjustments are reasonable, they must make them.

What happened

13. I call Ms B’s son X. He has special educational needs. He was attending a mainstream primary school and was due to move to secondary school in September 2020. In September 2019 Ms B asked for a formal assessment of his needs. The Council refused to assess him so Ms B appealed. As part of the mediation process before the appeal the Council conceded and agreed to assess.
14. Following the assessment the Council decided not to issue an EHCP and told Ms B of that decision in early February 2020. Ms B went to the Council’s appointed mediator immediately who contacted the Council asking for mediation to be arranged. This the Council did and it took place in early April. At that meeting the decision not to issue an EHCP was agreed. It was also agreed that the summative assessment of X the Council had prepared would be shared with the school X would be attending.
15. The Council did that later in April. Ms B contacted the Council in June as she had not received a plan from the school of how X’s transition would be managed. There were two meetings with the school at the end of that month which also involved the primary school.
16. In September X started at school. After about 11 days Ms B reported to the school that he was unwell and he stopped attending. At the end of September education welfare contacted Ms B. In early October Ms B notified the school and the Council that she had decided to home educate X. There was contact between Ms B and the Council about plans for X.
17. At the end of November Mrs B complained to us but as the Council had not considered the complaint we referred it back to the Council to consider. When the Council had completed its consideration of the complaint in February Mrs B renewed her complaint with us.

Analysis

Events following the Council’s decision not to issue an EHCP

18. Ms B considered the assessment the Council did when it decided not to issue an EHCP was flawed and did not reflect X’s needs or what was needed to meet them.
19. The way to challenge this was by an appeal to the SEND tribunal. Ms B said she had not been able to do that because the Council had not met her agreed communication needs when it corresponded with her.
20. The background to this is that in late 2019 the Council agreed it would meet Ms B’s needs by sending all documents on green paper. The Council says it met that request.
21. The Council wrote to Ms B in February with its decision not to issue an EHC Plan. The Council’s records show a phone call between an officer and Ms B shortly afterwards. The officer then emailed Ms B a copy of the summative assessment as a word document. It is unlikely that was on green paper as it was an electronic document. Ms B responded to the email saying there were a lot of errors in the information from X’s school but she thought they would be sorted out a meeting. On the same day the Council received the request for mediation. This said that Ms B had requested to go to mediation over the decision not to issue the EHC Plan.
22. The mediation meeting was at the beginning of April. The notes of the meeting made by the mediator show it was agreed to uphold the decision not to issue an EHC plan and for transition planning to start the following week with the inclusion officer. The Council said that the family were advised of their right of appeal but it has not produced any evidence in support of that. But there is no indication that Ms B wanted to pursue the matter. She contacted the inclusion officer later in April who then sent the summative assessment to the school. At no point is there any indication from Ms B that the Council had not met her necessary adjustments. But Ms B has provided copies of correspondence with the Council, some of which are from the period after I am considering here, which shows the Council was not consistently sending documents to her on green paper. And that is fault. Also there is no record of the Council following up after the mediation meeting. But I do not consider Ms B was disadvantaged. She had agreed to the outcome of mediation and knew that meant there was no EHCP in place.

The move to secondary school

23. Ms B considered the school did not meet X’s needs. There is some conflicting information about the reasons why X did not stay at school. But that is not significant for my investigation.
24. As there was no EHC Plan the Council did not have any direct role in the provision being made in school and the actions of the school do not come within our jurisdiction. But I can consider the action by the Council before X started there. The Council sent the summative assessment to the school and it arranged contact between Ms B and the school and meetings including the primary school. This was appropriate and there was no fault here.

Contact with the Council

25. Ms B considered the Council did not respond appropriately when problems developed with X attending the school. As I say above the Council’s role here was limited and its action must be considered on that basis.
26. Education welfare were involved as was right with an initially unauthorised absence from school. There was correspondence between Ms B and various officers at the Council. The Council accepted that an officer did not return a call to Ms B. That is fault but it is not significant. There was no other action the Council should have taken.

Back to top

Agreed action

27. The Council will ensure it makes any agreed reasonable adjustments and that an adequate record is kept. It should tell us of the action taken within two months.

Back to top

Final decision

28. There was fault but it did not cause significant injustice to Ms B.

Back to top

Investigator's decision on behalf of the Ombudsman