Surrey County Council (21 001 768)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 05 Jan 2022

The Ombudsman's final decision:

Summary: Mrs X complained the Council failed to offer her son Y, a suitable education for over two years. She also complained the Council provided a tutor who behaved inappropriately. She said this caused her stress and negatively impacted Y’s development. The Council was at fault when it delayed holding an annual review and issuing a finalised EHC Plan for Y. There is no evidence this caused an injustice to Y and the Council has already remedied this fault.

The complaint

  1. Mrs X complained the Council has failed to provide her son Y with a suitable secondary school education for over two years. She also complained the Council provided a tutor who behaved inappropriately and did not meet Y’s needs.
  2. She said this situation has caused her stress and negatively impacted Y’s educational development.

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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. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
  3. 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)
  4. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

  1. I made enquiries of the Council and considered the information it provided. This included Y’s EHC Plans, the Council’s chronology and complaint correspondence shared between Mrs X and the Council.
  2. I wrote to the Council and Mrs X with the draft decision. I considered Mrs X’s comments before I made the final decision.

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What I found

Law

Special educational needs

  1. A child with special educational needs (SEND) 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. The EHC plan is set out in sections. We cannot direct changes to the sections about education. Only the tribunal can do this.
  2. Councils must review EHC Plans at least yearly. They should decide whether to maintain, amend or discontinue the plan within four weeks of an annual review. If the Council decides an amendment is necessary, it must issue a final amended plan within eight weeks of the decision.
  3. The Special Educational Needs and Disability Code (the SEND Code) states if a council decides to amend the Plan, it should start the process of amendment “without delay,” so there are no set timescales here but we would consider whether actions were ‘without delay.’
  4. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC Plan as soon as practicable and within eight weeks of the date it sent the EHC Plan and proposed amendments to the parents.
  5. If the council decides not to make the amendments, it must notify the child’s parent or the young person, explaining why, within the same time limit. Councils must ensure a child’s parent or the young person is fully included in the assessment from the start and made aware of opportunities to offer views and information.

Statutory Duty

  1. Section 19 of the Education Act 1996 says that if a child of compulsory school age cannot attend school for reasons of illness, exclusion from school or otherwise, the local authority must make arrangements to provide “suitable education” either at school or elsewhere - at home, for example. The education to be arranged by the local authority should be on a full-time basis, unless, in the interests of the child, part-time education is considered to be more suitable.
  2. This would be for reasons relating to the child’s physical or mental health.
  3. Full-time is not defined in law but should equate to what a pupil would receive in school. If they receive one to one tutoring for example, the hours of face to face provision could be fewer as the provision is more concentrated

LADO

  1. Working Together to Safeguard Children says local authorities should have a designated offer (also known as a LADO) to manage and oversee allegations made against people who work with children.

What happened

  1. Y is currently secondary school aged and has various learning needs. The Council issued a final EHC Plan for Y on 15 February 2019 as he was just about to join secondary school. The Plan said Y required 1:1 support with his maths and literacy.
  2. Mrs X was unhappy with the school named in Y’s Plan and appealed the Plan at Tribunal. The Tribunal hearing was initially scheduled for June 2019 but after several delays it was held on 22 October 2019. It was decided that Y should attend Mrs X’s preferred school, School A, with full time 1:1 support.
  3. However, Mrs X visited School A with Y following the Tribunal and decided she was not satisfied the school could meet Y’s needs. Mrs X says a teacher at the school told her it could not meet Y’s needs. She told the Council she wanted Y to attend another mainstream school, School B. The Council spoke to School B over several weeks but on 8 November 2019, the school told the Council it could not meet Y’s level of need. The Council offered to provide additional funding but School B was still unwilling to accept Y.
  4. The Council put 15 hours per week tutoring in place in November 2019 for Y as an interim measure whilst it began looking for an alternative placement for Y.
  5. On 18 November 2019 the Council sent Mrs X a list of potential schools for Y and began contacting schools to discuss whether they would be willing to offer Y a placement.
  6. In January 2020 Y began having issues with his tutor and Mrs X contacted the Council several times saying the tutor either hadn’t attended a scheduled lesson or was not behaving appropriately. The Council contacted the tutor and established there had been miscommunication between the tutor and Mrs X, lessons then resumed.
  7. In February 2020, Mrs X told the Council she no longer wanted Y to work with the tutor. She said the tutor had argued with Y and threatened to hurt him. Mrs X said she caught the tutor falling asleep during lessons and giving Y fizzy drinks. She was also unhappy Y still did not have a permanent school place.
  8. The Council made a safeguarding referral to the LADO after receiving this information and began looking for a different tutor to work with Y.
  9. The Council continued to contact schools in the area whilst Y received online tuition. Several schools confirmed they either did not have availability or could not meet Y’s needs. Mrs X told the Council in May 2020 that Y was reluctant to use online resources and would prefer work to be sent to him via hard copy. The Council arranged for Y to receive is work via the post. At this time, several other schools confirmed they could not meet Y’s needs in answer to the Council’s enquiries.
  10. In June 2020, several tutors told the Council they had contacted Y on a weekly basis to provide tuition, but Mrs X had repeatedly cancelled the sessions, sometimes on the same day. They said Y had not been present at online tutoring sessions for reasons of illness, family matters or poor engagement.
  11. Mrs X contacted the Council in July 2020 asking for an update on the issues she had raised about Y’s tutor and requesting a school place for Y. The Council confirmed it had referred the concerns to the LADO and assigned a different tutor to Y. Mrs X asked the Council to use a different tutoring company as she was dissatisfied with Y’s progress. The Council appointed a different tutor company to Y on 11 August 2020.
  12. Y was not willing to attend an initial meeting with the new tutor and was not available for the following session. The tutor told the Council they were struggling to find a suitable place to hold tuition sessions as Mrs X was not willing for the sessions to take place at her home and wanted them to take place at a local garden centre, which the tutor did not find appropriate.
  13. At this time, the Council contacted Mrs X and offered a place for Y at a local school. Mrs X declined this offer as she was not satisfied with the level of support the school was offering. The tutor continued to struggle to find a space for the lessons to take place as Mrs X confirmed her mother was unable to host the them.
  14. In October 2020, the LADO finished their investigation into the concerns Mrs X had raised about Y’s former tutor and found the allegation was substantiated. The Council relayed this to Mrs X, who raised a further complaint about the tutor.
  15. The Council issued Y’s finalised EHC Plan on 8 December 2020. The Council also confirmed it had found a space at a local youth centre for the lessons to take place. Mrs X declined this offer as she was not comfortable visiting the area the youth centre was in.
  16. Mrs X complained to the Council again as she remained unhappy that Y was not in full time schooling and felt the content of Y’s EHC Plan was the reason schools were unwilling to meet Y’s needs. She said Y was not fully engaging with the tutoring.
  17. The Council replied to Mrs X at Stage 1 of its complaints process on 7 January 2021. The Council acknowledged the delay in finding Y a suitable placement but confirmed it was actively searching. The Council said it had approached School B numerous times due to Mrs X’s strong preference for the school but it had repeatedly declined. The Council said it was struggling to implement Y’s interim tuition due to the impact of the COVID-19 pandemic and Mrs X’s refusal to allow the tuition sessions to take place at her home. The Council said it would continue to explore alternative venues.
  18. The Council wrote to Mrs X at Stage 2 of its complaints process on 1 March 2021. The Council acknowledged it did not amend and finalise Y’s Plan until 8 December 2020 and apologised for the significant delay. The Council said it arranged for a tutor to provide 15 hours per week tuition between November 2019 and July 2020 after Mrs X told the Council she did not want Y to attend the school the Council had arranged a full-time place for Y. The Council said it was difficult to find provision for Y due to the COVID-19 pandemic but it had worked with Mrs X to find suitable alternative education but she had declined its offer of three sessions a week at a children’s centre due to an issue she had with a member of staff.
  19. The Council concluded the letter stating that education provision had been available for Y since September 2019 but Mrs X had not been cooperative. The Council said it would arrange an annual review and contact Mrs X within 14 days to discuss this further. The Council also said it would provide its case officers with training to ensure that EHC Plans were updated in a timely manner following a Tribunal decision.
  20. In the following months the Council engaged with a local school in the area and confirmed it was willing to offer Y a full-time place. However, the school was slow to respond to the Council’s attempts to arrange for Y to join the school. After a visit to view the school was cancelled by Mrs X due to Y being in poor health, the Council began approaching other schools and young people support centres in the area.
  21. Mrs X referred her complaint to the Ombudsman as she was unhappy Y remained out of school.
  22. In response to the Ombudsman’s enquiries the Council said it provided tuition for Y whilst it was trying to find a suitable alternative placement for him but neither Y or his family were willing to engage with the alternative provision they proposed. The Council acknowledged Y did not engage well with the tutoring and it has liaised with Y’s family and the tutoring company but this has not been successful.

Findings

  1. The crux of Mrs X’s complaint is her belief the Council has not done enough to secure a secondary school placement for Y. The Council is required by law to ensure that a school aged child receives an education. The evidence I have seen so far shows that following the Tribunal and Mrs X’s decision not accept the placement she originally requested, the Council has made consistent efforts to find a permanent placement for Y. It also arranged interim tuition for Y and changed to a different tutoring company at Mrs X’s request. There is no evidence the amount of tuition Y is receiving is unsuitable. The Council has re-initiated contact with Mrs X’s school of choice and discussed alternative arrangements to provide Y with a placement Mrs X will accept. The evidence shows the schools the Council has approached have either lacked availability or the ability to meet Y’s needs. I can also see Mrs X has refused several of the placements the Council has offered. She is entitled to make this decision and I do not criticise her for it. However, I cannot hold the Council responsible for this. There is no fault in the Council’s actions.
  2. Mrs X has complained the Council provided a tutor that was behaving inappropriately when tutoring Y. I can see that once the Council became aware of this, it stopped the tutor from working with Y and referred the matter to the LADO. The LADO began an investigation, and the Council relayed the outcome of the investigation to Mrs X. The Council has behaved promptly and in the manner I would expect. There is no fault in the Council’s actions.
  3. The law requires the Council to review and provide a finalised EHC Plan on an annual basis. The Council significantly delayed issuing Y’s 2020 Plan. This is fault. There is no evidence that issuing the Plan earlier would have made a difference to Y. I can also see the Council has taken action to ensure it does not delay issuing EHC Plans in future by providing its case officers with additional training. This is a satisfactory action for the Council to take. I do not consider the Council should take further action regarding this part of the complaint.

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Final decision

  1. There was fault when the Council failed to issue Y’s EHC Plan within the required timescales. There is no evidence this has caused an injustice to Y and the Council has already taken action to address the fault. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman

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