Suffolk County Council (21 005 081)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 11 Feb 2022

The Ombudsman's final decision:

Summary: Mrs X complains about the Council’s failure to name a secondary specialist school placement in her grandson’s education, health, and care plan. We find fault with the Council for delays in issuing a final amended EHC plan in 2020. We also find fault with the Council for not issuing a final amended EHC plan in 2021.

The complaint

  1. Mrs X complains about the Council’s failure to name a secondary specialist school placement in her grandson’s education, health, and care (EHC) plan. Mrs X says her grandson should have started in Year 7 in September 2020, but the Council failed to name a specialist secondary school placement in his plan. Mrs X says, to date, the Council has yet to name a specialist secondary school in her grandson’s EHC plan.

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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. 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)
  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)

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How I considered this complaint

  1. I spoke with Mrs X and considered the information she provided.
  2. I made enquiries with the Council and considered the information it provided.
  3. I sent two draft decisions to Mrs X and the Council and considered their comments.
  4. 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.

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What I found

Legislation and guidance

  1. A child or young person has Special Educational Needs (SEN) if they have a learning difficulty or disability which calls for special educational provision to be made for them. A child with SEN may have an EHC plan. This sets out the child’s needs and what arrangements should be made to meet them.
  2. There should always be an annual review of a child’s EHC plan before a transfer to a new phase of education, such as primary school to secondary school. Regulation 18 of the SEN Regulations requires that the EHC plan must be reviewed and amended before:
      1. 31 March if the transfer is from secondary school to a post-16 institution
      2. 15 February in any other case.
  3. The Special Educational Needs Code of Practice 2015 provides councils with information about its duties in relation to EHC plans. Paragraph 9.196 of the code notes that following representations from the child’s parent or the young person, if the local authority decides to continue to make amendments, it must issue the amended EHC plan as quickly as possible and within 8 weeks of the original amendment notice.

What happened

  1. Mrs X cares for her grandson, A, who has an EHC plan. A was due to start in Year 7 in September 2020.
  2. In October 2019, the Council issued a final education, health, and care (EHC) plan. The plan named School 1 as A’s educational placement. School 1 was run by a charitable company, Trust Y. Mrs X had the right to appeal A’s EHC plan at this point.
  3. In November 2019, following an annual review, the Council told Mrs X it intended to issue an amended EHC plan.
  4. In December 2019, the Council issued the amended EHC plan which again named School 1 as A’s educational placement.
  5. In February 2020, the Council said it was working to commission a new specialist social, emotional and mental health (SEMH) group with Trust Y.
  6. In September 2020, the specialist SEMH group was agreed and commissioned. The Council issued A’s final amended EHC plan, which named Trust Y as A’s educational placement.
  7. In November 2020, A’s annual review took place. In December 2020, following A’s annual review, the Council told Mrs X it would issue a draft amended EHC plan.
  8. In January 2021, the Council issued A’s draft amended EHC plan which named Trust Y as A’s educational placement. Mrs X responded and asked the Council to name a long term specialist placement for A. Mrs X also told the Council her preference was School 2.
  9. Between February and July 2021, the Council consulted with four different education placements, include School 2. Two of the education placements told the Council it could not meet A’s needs. School 2 told the Council it had no space and so could not offer A a place.
  10. In September 2021, Trust Y told the Council A could not return. The Council consulted with another four education placements.
  11. By October 2021, all four education placements told the Council they could not offer A a place as they were either full or could not meet his needs.
  12. The Council consulted with two more education placements at the end of October 2021. The Council said it also consulted with Mrs X at this point regarding putting in place alternative provision for A. The Council said Mrs X declined this option as she felt A would not engage.
  13. In November 2021, both education placements consulted declined to offer A a place as they could not meet his need.
  14. In December 2021, the Council said it continued to review possible placements and support for A.
  15. In response to our enquiries, the Council said after Trust Y had told it A could not longer return to the placement in September 2021, it had conversations with Mrs X about issuing a final EHC plan naming a type of school (specialist). The Council said at the time, Mrs X agreed it needed to secure a placement first before this. The Council did not provide any supporting evidence of these conversations.
  16. In response to our draft decision, Mrs X said the Council’s actions and A’s lack of education has had a significant impact on A. She said he now rarely leaves the house and will not engage with people. She said when he was in education, he would engage with his school and his classmates.

Analysis

  1. The Council issued a final EHC plan in October 2019, which named School 1 as A’s educational placement. Therefore, the Council did name a school placement in A’s EHC plan.
  2. At this point, Mrs X had the right to appeal A’s plan. If Mrs X was not happy with A’s named placement, she should have appealed A’s plan. There is no evidence to suggest she did. This therefore suggest she was happy with A’s named placement.
  3. The Council issued a draft amended EHC plan in December 2019. This again named School 1 as A’s educational placement. As this was only a draft amended plan, Mrs X did not have any appeal rights.
  4. As A was moving to a new phase of education, from primary school to secondary, the Council should have reviewed and amended A’s EHC plan by 15 February 2020. The Council did not issue the final amended plan until September 2020. This is fault.
  5. We consider the fault identified caused Mrs X distress and frustration as she was left not knowing what placement A would be attending in September 2020. The fault also delayed Mrs X’s right to appeal the plan.
  6. Following A’s November 2020 annual review, the Council decided to amend A’s EHC plan. The Council issued the draft amended plan in January 2021. The Council should have issued the final amended EHC plan within eight weeks of the date it issued the draft amended plan. Therefore, the Council should have issued the final plan by March 2021. The Council has yet to issue a final amended EHC plan. This is fault.
  7. We note the Council said Mrs X had asked it to name a placement before issuing a final amended plan. However, the Council has not provided any evidence of its conversations with Mrs X. Therefore, we cannot be satisfied, on balance, Mrs X had agreed this with the Council.
  8. Nevertheless, the Council had a duty to issue a final amended plan within the timescales set by the SEN code of practice. Therefore, even if Mrs X had agreed for the Council to secure a placement before issuing the final plan, the Council should still have issued a final amended EHC plan. The Council could have named a type of school, in this case a specialist school, as A’s educational placement.
  9. We consider the fault identified has caused Mrs X distress and frustration. This is because she was left not knowing what placement A would be attending. The fault also prevented Mrs X from getting her appeal rights. This meant she lost the opportunity to appeal A’s EHC plan.
  10. We also consider the faults identified has caused A some distress. This is because Mrs X has explained A now rarely leaves the house and struggles to engage with anyone. We also consider the fault identified has caused some uncertainty. This is because we cannot say exactly what impact the faults have had on A’s educational progress and development. However, we accept it is likely they have had some impact.
  11. We acknowledge Mrs X’s comments that the Council’s actions have led to A being out of education for a significant period. However, even on balance, I cannot say that if the Council had issued the final EHC plan in March 2021, this would have meant A would be attending a school now. This is especially given the Council had not managed to secure any school placement for A between September and December 2021.

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Agreed action

  1. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following:
    • Apologise to Mrs X for the injustice caused by the faults identified.
    • Pay Mrs X £300 to acknowledge the distress, frustration, and loss of opportunity caused to her by the faults identified.
    • Pay Mrs X £300 to acknowledge the distress and uncertainty caused for A by the faults identified.
    • Complete a reassessment of A’s education, health, and care needs. This is because Mrs X has indicated A’s needs may have significantly changed since the last draft amended EHC plan was issued in January 2021. The Council should ensure it completes the reassessment and issues the final EHC plan within the timescales set out in the SEN code of practice.
    • Remind relevant staff of the importance of issuing EHC plans within the timescales set out in the SEN code of practice, and in particular, for transfers to a new phase of education.
  2. The Council should complete the above within four weeks of the final decision.

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Agreed decision

  1. We find fault with the Council for the delays in issuing a final amended EHC plan in 2020. We also find fault with the Council for not issuing a final amended EHC plan within eight weeks of its draft amended EHC plan in 2021. The Council has accepted my recommendations. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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