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Kent County Council (21 004 335)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 22 Nov 2021

The Ombudsman's final decision:

Summary: Mrs G complains the Council delayed in completing an Education and Health Care Plan annual review for her daughter (Child X) who has special educational needs. Mrs G says the failure meant Child X did not receive suitable educational support for an extended period of time. We found the Council was at fault for delays in completing an annual review of Child X’s EHCP. These failings delayed Child X receiving specialist educational provision which was appropriate for her needs. Further, the failings caused Mrs G serious distress and uncertainty. We have therefore recommended a remedy.

The complaint

  1. The complainant, who I refer to as Mrs G, is making a complaint for her daughter (Child X) who has special educational needs (SEN). Mrs G alleges the Council delayed in commencing and finalising an annual review for Child X’s Education and Health Care Plan (EHCP). She also says the Council’s complaint process was also delayed which frustrated the process.
  2. In summary, Mrs G explains had the Council not delayed in completing the annual review, Child X would have had access to her specialist educational support sooner. The Council has accepted fault and apologised to Mrs G for its failings in this respect. However, Mrs G believes the Council should provide compensation for the injustice Child X has suffered, as well as for time and trouble.

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What I have investigated

  1. I have investigated all of the outcomes identified in Mrs G’s complaint. However, I cannot investigate or remedy any matter, including a loss of education, for the period after Mrs G appealed to the First-tier Tribunal (Special Educational Needs and Disability). This is because we do not have jurisdiction to investigate for the reasons given in this statement.

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The Ombudsman’s role and powers

  1. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  2. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended).
  3. 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.
  4. 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).

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How I considered this complaint

  1. I have reviewed Mrs G’s complaint to the Council and Ombudsman. I have also had regard to the responses of the Council, supporting documents and applicable legislation and statutory guidance. I invited both Mrs G and the Council to comment on a draft of my decision. Each of their comments were fully considered before a final decision was made.

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My findings

Background and legislative framework

Council’s duty to provide alternative education

  1. The Council has a legal duty to make arrangements and to provide full-time and suitable education at school or otherwise than at school, as specified by Section 19 of the Education Act 1996. This states:

“Each local authority shall make arrangements for the provision of suitable education at school or otherwise than at school. This applies to children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.”

  1. The provision should generally be full time unless it is not in the child’s best interests because of their physical or mental health.

Education and health care plan (EHCP)

  1. An EHCP is for children and young people aged up to 25 who need more support than is available through special educational needs support. An EHCP identifies educational and health needs and sets out the support to meet those needs (including, but not limited to, providing a specialist educational setting).
  2. Councils are not required to provide exactly what parents request, but they should be able to explain clearly why they consider a suggested provision meets the assessed needs of a child. They must also take steps to ensure the view of the child is properly recorded and considered when planning provision for them. In cases where a council has been unable to find a suitable school placement within the time frame, they have a duty to provide appropriate alternative education. We can look at delay in issuing an EHCP, including whether the Council has failed to make purposeful efforts to identify a school place.
  3. When an EHCP is maintained for a child or young person the local authority must secure the special educational provision specified in the plan. If a local authority names an independent school or independent college in the plan as special educational provision it must also meet the costs of the fees, including any boarding and lodging where relevant.
  4. Local authorities must ensure that children, young people and parents are provided with the information, advice and support necessary to enable them to participate in discussions and decisions about their support.
  5. The First-tier Tribunal (Special Educational Needs and Disability) (the SEND Tribunal) is responsible for handling appeals against local authority decisions about special educational needs. This includes a refusal to assess a child’s educational, health and care needs and create an EHCP.
  6. The Court of Appeal case of R (on the application of ER) v Commissioner for Local Administration restricts what we can investigate. It found that if someone has made an appeal to the SEND Tribunal, we cannot investigate any matter which is connected to the matters under appeal. This means that if a person disagrees with an EHCP annual review outcome, we cannot seek a remedy for a loss of education or any other consequences after the date the appeal was made.

EHCP annual review

  1. The Annual Review of an EHCP considers whether the provision remains appropriate and whether progress is being made towards the targets in the Plan.
  2. The ‘Special Educational Needs and Disability Code of Practice: 0 to 25 years’ (the Code) is statutory guidance. This means local authorities must follow the Code when making decisions about children with EHCPs. The Code says: “9.169 The first review must be held within 12 months of the date when the EHC plan was issued, and then within 12 months of any previous review, and the local authority’s decision following the review meeting must be notified to the child’s parent or the young person within four weeks of the review meeting (and within 12 months of the date of issue of the EHC plan or previous review”.
  3. In practice the review covers not just the annual review meeting, but the Council’s decision (to maintain, cease or amend the Plan) following the meeting. Each of these three decisions carries a right of appeal to the SEND Tribunal.

Personal budgets and direct payments

  1. A special educational needs (SEN) personal budget is an amount of money identified by the local authority to deliver provision set out in an EHC Plan. The Council can identify elements of the provision which can be made via a direct payment. Councils must ensure that children and young people with EHC Plans receive a level of support which will help them “achieve the best possible educational and other outcomes”.

Education otherwise than at school (EOTAS)

  1. If school or college is not appropriate for the child or young person with an EHCP (for either all or part of their education), councils can arrange for any special educational provision which the child or young person requires to be delivered somewhere other than in a school or college. This is often known as ‘education otherwise than at school’ (EOTAS). The Council is responsible for securing and funding this provision. EOTAS will be named in the EHCP in Part F (s61 of the Children & Families Act). There is a right of appeal to the Tribunal about any decision to name (or not name) EOTAS in the EHCP.

Chronology of events

  1. The Council maintains an EHCP for Child X to support her SEN.
  2. The EHCP supported Child X to attend a specialist educational placement. However, Child X stopped attending this placement in September 2018 due to difficulties with her SEN.
  3. In March 2020, a review meeting was scheduled to assess whether Child X’s EHCP was fit for purpose or was in need of amending. However, this did not take place and the Council acknowledge this frustrated the process.
  4. In early June 2020, the annual review meeting took place. The Council was under a legal duty to make a decision on whether to amend Child X’s EHCP within four weeks of the review meeting (the end of June 2020).
  5. In mid-September 2020, the Council concluded Child X’s annual review and did not propose to make amendments to the EHCP. The same month, Mrs G appealed the decision to SEND Tribunal.
  6. In January 2021, the Council responded to Mrs G’s formal complaint. It acknowledged that it failed to meet its statutory duty to give notice within four weeks of the review meeting whether to amend Child X’s EHCP.
  7. In February 2021, the SEND Tribunal ordered the Council to issue an amended EHCP for Child X. The next month, the Council issued Child X’s final amended EHCP. This named Child X’s placement as EOTAS.
  8. In April 2021, a personal budget with direct payments was agreed for Child X by the Council for approximately £33,000 per year.

My assessment

  1. The Council has accepted fault in that the annual review meeting scheduled in March 2020 did not take place until June 2020. Further, it accepts it did not adhere to its statutory duty to decide whether to amend Child X’s EHCP within four weeks of the annual review meeting. These failings meant the Council delayed in deciding an outcome about Child X’s EHCP for 23 weeks. The Council was at fault in respect of these matters and this delayed Mrs G being able to exercise her right of appeal to the SEND Tribunal to force an outcome. Further, the delays caused Mrs G serious distress and uncertainty as she was unable to progress matters in the best interests of Child X.
  2. In addition, the failings also delayed Child X being able to access her specialist provision. Child X’s EHCP at the time named a placement which was not suited to her SEN and so she was, in effect, out of education. In addition, the provision identified in the EHCP was for support at the placement which she did not attend. The amended EHCP for Child X provides provision in the form of a personal budget and direct payments to support her SEN. This means the injustice to Child X was that she was denied receiving this specialist provision by reason of the Council’s delays. Further, during the time of the Council’s delay, Child X was not receiving education or the provision in her EHCP which should have been remedied much sooner.
  3. Importantly, I cannot by law remedy a lack educational support or any other consequence of the Council’s failings beyond the date Mrs G appealed to the Send Tribunal (see paragraph 16). Mrs G appealed to the SEND Tribunal in September 2020 and so I have no jurisdiction to remedy a loss of education beyond that date. However, I can assess and provide a remedy in respect of delay by the Council which contributed to a loss of education before Mrs G appealed to the SEND Tribunal. This delay has been calculated at 23 weeks.

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Agreed action

  1. To remedy the faults and injustice identified in this statement, the Council will, within one month of this final decision, perform the following actions:
      1. Provide a written apology to both Mrs G and Child X which acknowledges the faults identified and individual injustices each have suffered.
      2. Pay £2,400 (£400 each month) to Mrs G for loss of education to be spent on the educational development of Child X.
      3. Pay £600 to Mrs G to acknowledge the serious distress and uncertainty she suffered over an extended period, as well as for time and trouble.
  2. In addition, the Council will, within three months of a final decision, review its handling of holding annual reviews within the timeframes set out in the Code. The Council will also conduct a review of Child X’s case and identify service improvements to be implemented for the benefit of service users in the future.
  3. The Council is required to provide evidence to the Ombudsman it has satisfied the above agreed actions.

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Final decision

  1. The Council was at fault for delays in completing an annual review of Child X’s EHCP. These failings delayed Child X receiving specialist educational provision which was appropriate for her SEN. Further, the failings caused Mrs G serious distress and uncertainty. The Council has agreed to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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