Summary: Mr X complained the Council failed to take his views into account or provide adequate support when drawing up his Education, Health and Care Plan and sourcing a suitable school placement for him. He said this negatively impacted his educational development and caused him stress and upset. There was no fault in the Council’s actions.

The complaint

1. Mr X complained the Council did not take his views into account when it drew up his Education, Health and Care Plan. He also said the Council failed to attend meetings or offer support when he needed it.
2. He said this situation has negatively affected his mental health and educational development.

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The Ombudsman’s role and powers

3. 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)
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)

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How I considered this complaint

5. I called Mr X and discussed his view of the complaint.
6. I made enquiries of the Council and considered the information it provided. This included, complaints correspondence shared between Mr X, Mr X’s EHC Plan and a chronology written by the Council.
7. I wrote to the Council and Mr X with the draft decision. I considered Mr X’s comments before I made the final decision.

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What I found

Law

8. An education, health and care plan (EHC) plan is for children and young people aged up to 25 who require additional support to meet their special educational, health and social needs.
9. Section 19 of the Children and Families Act 2014 makes clear that local authorities in developing and reviewing Education, Health and Care (EHC) plans for disabled children and young people with special educational needs (SEN) must consider:
• the views, wishes and feelings of the child or young person and the child’s parents.
• the importance of the child or young person and the child’s parents participating as fully as possible in decisions and being provided with the information and support necessary to enable participation in those decisions
• the need to support the child or young person and the child’s parents in order to facilitate the development of the child or young person and to help them achieve the best possible educational and other outcomes, preparing them effectively for adulthood.
10. The SEND Code of Practice January 2015 states local authorities must ensure children and young people are involved in discussions regarding their education and the local authority’s local offer.
11. Young people who have an EHC Plan have a right to ask for a particular educational institution to be named in the plan.

What happened

12. Mr X is approaching his late teens. He attended School A for several years. His school fees were initially paid by a different council before he moved in the Council’s area.
13. On 15 February 2018, School A contacted the Council and said, “We do not agree for School A to be named in Mr X’s final EHC Plan…Mr X struggles to access the content of lessons … he requires a large amount of resources to manage his behaviours which the school cannot sustain.”
14. The Council said it did not have enough information to support School A’s view and commissioned an educational psychologist to assess Mr X.
15. In March 2018 School A excluded Mr X and told the Council it could not be named in in Mr X’s final EHC Plan. The Council’s records state, “School A contacted the LA on 6 March 2018 and said Mr X had been excluded due to escalating behaviour … Mr X had used threatening behaviour and asked what he needed to do to gain an exclusion.”
16. Mr X believes School A did not want to be named in his EHC Plan because the Council failed to pay his funding on time after he moved into its area.
17. The Council issued Mr X’s final EHC Plan on 20 March 2018. Amongst other things the Plan said Mr X required:
• support with his motor skills development
• short sessions to develop his writing skills
• small classes to enable less noise and distraction
• 10 hours tuition whilst the Council worked to find him a permanent placement.
18. The EHC Plan included the views and observations of Mr X, his educational psychologist, speech therapist and his teachers. The plan also detailed Mr X’s hopes for his future and feelings about his education.
19. Notes taken from a meeting between Mr X, his parent and the Council on 10 April 2018 state, “Parent voiced concerns that School A withdrew placement because of late payment of fees…parent voices that Mr X would be unlikely to [progress in] a mainstream school due to his difficulties.”
20. Mr X received Council arranged 10 hours weekly home tuition between April 2018 and late July 2018. Throughout this time, Mr X and his parent continued to voice concerns that a mainstream school would not be appropriate for Mr X. Mr X asked the Council to allow him to return to School A.
21. The educational psychologist completed the assessment and noted that Mr X’s behaviour had caused his placement at School A to break down. Mr X was referred to the Council’s child and adolescent mental health (CAMHS) team for further support and assessment.
22. In August 2018, Mr X began attending School B. The Council assigned Mr X a keyworker, whose role was to liaise with the school and Mr X to ensure a smooth transition. Mr X says he experienced problems with the placement and his needs were not sufficiently supported.
23. Notes recorded by the Council on 15 January 2019 state, “Mr X contacted Key worker to express concerns about school placement. He has been placed on a fixed exclusion for a behaviour incident with another student. He voices that no one listens to his concerns. He was asked if he would like support in future meetings arranged at the school, which he accepted.”
24. Mr X continued to contact his keyworker over the following weeks. He told them he would not return to School B and would not consider a placement at a special school. On 18 February 2019 after discussing the matter with Mr X, the Council arranged for Mr X to receive alternate provision with 1:1 support provided by School B. The Council delivered Mr X’s amended EHC Plan on 19 February 2019. The Plan outlined many of the same needs stated in Mr X’s previous plan.
25. On 7 May 2019 School B contacted Mr X’s keyworker and said Mr X was behaving aggressively and asking to stop the placement.
26. Mr X complained to the Council on 16 September 2020, stating he was unhappy with the Council’s choice of placement and felt he was not given enough support or opportunities to give his views. Mr X’s MP also wrote to the Council reiterating these complaint points.
27. On 24 September 2020, Mr X’s keyworker contacted him to discuss placement options and referred him for career advice. Mr X received an offer of a placement for English and Maths on 30 September 2020.
28. The Council wrote to Mr X on 19 October 2020 after investigating his complaint at Stage 1 of its complaints procedure.
29. The Council acknowledged there was confusion over the funding owed to Mr X’s school but confirmed it made the required payment when this was cleared up. The Council said School A told the Council it could not meet Mr X’s needs and did not want to be named in Mr X’s final EHC Plan.
30. The Council said Mr X should refer his unhappiness with the treatment he received at School B directly to the school. The Council said it arranged a meeting between Mr X and School B to give Mr X the opportunity to discuss his unhappiness and put forward his views. The Council said it kept in touch with School B to arrange further alternative provision and regularly contacted Mr X to discuss his concerns.
31. The Council partially upheld Mr X’s complaint and concluded its letter stating it would amend Mr X’s EHC Plan to reflect his new placement.
32. Mr X was unhappy with the Council’s response and escalated the complaint to Stage 2. He said he still felt the Council had not done enough to support him in his educational placements and failed to take its responsibility to ensure schools were held accountable for meeting his needs seriously.
33. On 10 November 2020, Mr X was removed from his new placement register as he was not happy to accept it.
34. The Council issued its Stage 2 response on 30 November 2020. The Council said that when School A could not longer meet Mr X’s needs the Council arranged for him to receive tuition. The Council said, “it is regrettable the Council did not offer more support to School A in order to maintain your placement there however at that time this option did not seem feasible and the alternative arrangements made at that time were agreed with your parent…I understand that neither placement at School A and School B and your training providers have resulted in a positive outcome for you. It seems arguable therefore that different actions by the Council may have resulted in different outcomes and I am sorry if our level of support and involvement did not meet with your expectations.” The Council noted that neither Mr X nor his parents appealed the contents of the EHC Plan after it was finalised despite the Council offering them the opportunity to do so.
35. The Council acknowledged Mr X’s unhappiness with School B and said it increased funding to provide him with further support and it was regrettable that this was not successful. The Council sent a keyworker to the school to discuss how it could help Mr X and tried various options to help him remain at the school and so it did not uphold his complaint. The Council concluded the letter stating it had assigned an independent advocate to work with Mr X and its SEND keyworker would continue to work with him in the future.
36. Mr X remained unhappy with the Council’s response and brought his complaint to the Ombudsman.
37. Mr X wrote to the Council again on 8 December 2020 saying he was unhappy the Council had offered him an unsuitable placement. He maintained the Council did not properly consider his views and said School A told him the Council did not pay the fees for several months and this contributed towards its decision not to be named in his EHC Plan. He said the Council should have placed him in a private school as he was not suited to mainstream school.
38. The Council responded to Mr X on 11 December 2020. The Council advised Mr X to continue liaising with his keyworker to find a placement he was happy with. The Council reminded Mr X he could also use its advocacy service to ensure his views were heard.
39. The Council’s chief executive wrote to Mr X on 12 January 2021 advising that he was satisfied the Council had acted in Mr X’s best interests and referring Mr X to the Ombudsman.
40. In response to the Ombudsman’s enquiries, the Council provided further information. The Council again acknowledged there was confusion over the fees it was responsible for but said it contacted School A on 15 February 2018 to clarify this and received a response on 5 April 2018. The Council paid the fees at this time.
41. The Council maintains it has supported Mr X extensively and said he has made daily calls to his keyworker to discuss his education and support needs. The Council also said it took Mr X’s views on board and noted that Mr X refused to be placed in a special school and wanted a mainstream placement. The Council said it secured training provision for Mr X in March 2021, but this broke down after one day due to a disagreement between Mr X and one of his peers.
42. Mr X has told the Council as of April 2021 that he intends to start a business and no longer requires educational support.

Findings

43. Mr X’s overall complaint is that the Council has not taken his views into account when drafting his EHC Plan or choosing school placements. He also said the Council failed to attend meetings. Having reviewed the evidence, I cannot see that the Council has failed in its responsibility towards Mr X. The Council’s records show it has received consistent and intensive contact from Mr X over the past two years. It has included his views and opinions in his EHC Plans and held meetings with Mr X and his parent. Mr X has outlined his desire for a private placement and his unwillingness to be placed at a special or mainstream school many times. Mr X views the Council’s failure to place him in a private school as evidence it has not considered his views. I do not consider it fair to criticise the Council for this. The Council has assigned Mr X a keyworker and arranged alternative provision for the periods he has not been in full time school. The Council has also referred Mr X to its mental health team and given him careers advice. Mr X’s EHC Plan states Mr X requires small classes, but it does not state he must receive education at a private school. There is no fault in the Council’s actions.
44. Mr X has said the Council failed to adequately support him, causing his placements to break down. The Council is required by law to ensure Mr X is placed at a school that can meet his needs and provide the provision set out in his EHC Plan. Having reviewed the evidence, I cannot see that Mr X’s placements have been unsuccessful because they were unable to meet his needs. The evidence shows the placements have broken down due to Mr X’s behaviour. Once the Council has been notified by the school that the placement has broken down, the Council has pursued numerous options to ensure Mr X receives his provision. Mr X has advised he would not return to any of the placements offered and would not attend a special school despite the advice from School A and his educational psychologist. The Council has behaved as I would expect it to in this situation. I do not consider the Council at fault.

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Final decision

45. There was no fault on the Council’s part. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman