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Kent County Council (21 006 802)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 27 Mar 2022

The Ombudsman's final decision:

Summary: Mrs K complains about a lack of suitable education being provided to her son (Child X) who has special educational needs. Mrs K also complains the Council failed to identify a suitable school placement for Child X and has not updated his Education and Health Care Plan (EHCP). We found the Council used reasonable endeavours to find an alternative school placement for Child X. However, for some of the period Child X was out of school, the Council failed to provide him with suitable education, as required by law. For other periods, we have no jurisdiction to investigate because Mrs K could have reasonably appealed the issue of Child X’s school placement to a Tribunal. We do consider both Mrs K and Child X have suffered an injustice by reason of the Council’s failings and the Council has agreed to remedy this.

The complaint

  1. The complainant, who I refer to as Mrs K, is making a complainant on behalf of her son (Child X) who has special educational needs (SEN). The Council maintains an EHCP for Child X and Mrs K says the Council has delayed in reviewing and amending this. Further, Mrs K alleges the Council has failed to identify a suitable school placement for Child X which can meet his SEN needs. She also says the Council has failed to maintain effective communication with her and has ignored her correspondence.
  2. Mrs K says the impact of the Council’s failings have meant Child X has not been receiving suitable education since September 2020 to present day. She says this has negatively impacted Child X’s wellbeing and educational development.

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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 late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended).
  3. 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).
  4. 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).

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How I considered this complaint

  1. I have reviewed Mrs K’s complaint to the Ombudsman and Council. I have also had regard responses of the Council, supporting documents and applicable legislation and policy. I invited both Mrs K and the Council to comment on a draft of my decision. All comments received 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.

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 EHCP 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.

Chronology of events

  1. In March 2018, the Council issued a final EHCP for Child X, but did not name an educational placement for him to attend. Following this EHCP being issued, the Council undertook a consultation process to identify a suitable school for Child X.
  2. In October 2018, the Council named a specialist school placement in Child X’s EHCP for him to attend. He started attending full-time in December 2018.
  3. In September 2019, the Council held an annual review of Child X’s EHCP and decided it remained appropriate. The Council subsequently issued an amendment notice to Mrs K in November 2019 and sent her a copy of the amended final EHCP in December 2019.
  4. In March 2020, Mrs K requested a change of school placement for Child X as she felt there was a breakdown with his school. She therefore asked the Council to consult other schools in the area which Child X could attend.
  5. Between July and November 2020, the Council consulted approximately 20 different schools. None of the schools consulted felt able to meet Child X’s needs.
  6. In September 2020, Child X was involved in an incident at school which subsequently resulted in his school offering him off-site education. The Council says the school has offered to continue to send work to Child X and collect this until a new school placement could be identified.
  7. From September 2020, Child X was receiving four hours of one to one tutoring a week at home. This was later increased to 10 hours a week.
  8. In December 2020, the Council sent Mrs K all the responses from the schools contacted during its consultation process to find Child X an alternative placement.
  9. In March 2021, Child X received an educational psychologist assessment which informed a professional report. Mrs K says the Council failed to update Child X’s EHCP (issued in October 2021) with the report.
  10. In June 2021, Child X’s tutoring ended because his tutor relocated to another part of the country. The Council did offer Child X alternative tutor arrangements, but this was declined by Mrs K. This is because she considered Child X needed to be in school as opposed to being at home isolated from his peers.
  11. In October 2021, the Council issued a further final EHCP for Child X which named the same school for him to attend. This decision carried a right of appeal to the SEND Tribunal should Mrs K disagree with the placement.

My assessment

Time limitations

  1. Importantly, I cannot by law investigate a complaint made more than 12 months of the complainant becoming aware of the problem, unless there are good reasons to exercise discretion in this regard. In her complaint to the Council, Mrs K has raised issues relating to the Council identifying a school placement for Child X from May 2018 to October 2018. She also complained about the suitability of education Child X was receiving when he started attending his school placement in October 2018. These complaints are late and I consider there would now be practical challenges in ascertaining evidence and drawing accurate conclusions as to what happened which can be relied upon. I see no good reasons to exercise discretion and I will not therefore investigate these parts of the complaint.

Loss of suitable education

  1. The central issue to Mrs K’s complaint is that when Child X’s placement at school broke down in September 2020, the Council failed to find an alternative placement for him. In turn, Mrs K says this resulted in Child X not receiving suitable education. On this issue, the Council fully acknowledge a delay in identifying an alternative school placement for Child X. Further, it has apologised to Mrs K in this regard. That said, I note the Council engaged in a heavy consultation process to identify Child X an alternative school placement. Further, a delay does not necessarily constitute fault, nor does it mean Child X has not received a suitable education. I must consider the following:
      1. whether the Council used “reasonable endeavors” to secure an alternative school placement for Child X and;
      2. whether it provided Child X suitable alternative education provision while he was out of school, and which satisfied the provision requirements of his EHCP.
  2. Importantly, the Council issued an amended final EHCP in October 2021 following a review and advised Mrs K of her right of appeal to the SEND Tribunal. The outcome of the review was to maintain Child X’s school placement. As I understand, Mrs K did not exercise her right of appeal and I have not been provided any reasonable explanation for this. I cannot by law investigate a loss of education in circumstances where the complainant had a right of appeal in relation to the contents of an EHCP (including education placement). Mrs K has drawn a direct correlation in her complaint between Child X’s unsatisfactory school placement and a loss of education. I consider it would have been reasonable for Mrs K to exercise her right of appeal in relation to Child X’s school placement. I cannot therefore remedy a loss of education beyond the date Mrs K could have appealed, this being October 2021.
  3. I can however investigate whether Child X was provided suitable education when out of school from September 2020 to September 2021. Such education must be suitable to Child X’s needs and continue to give effect to the provision identified in his EHCP which was maintained by the Council for this period. The Council told me that when Child X was not attending school, his school continued to offer and send work to his home. It also says tutoring was provided to Child X until June 2021 when his tutor relocated. The Council said Mrs K rejected an alternative tutor on the grounds (s)he would be unable to meet Child X’s SEN needs. The Council add that Mrs K had not seen the tutors’ credentials. The Council therefore says it has provided suitable education to Child X while he was out of school.
  4. The relevant EHCP governing Child X’s needs and provision for the period between September 2020 and September 2021 is the first amended final EHCP issued by the Council in December 2019. On review of the EHCP, all of Child X’s identified provision at this time should have been met in a school environment and overseen by a qualified teacher. Further, the EHCP made provision for communication sessions to support Child X’s development. It also contained provision to aid Child X’s transition into secondary school. The Council has provided no evidence that this specific support was provided to Child X while he was out of school by reason of his SEN. I therefore find fault by the Council.
  5. However, Child X received four hours of one to one tutoring at home which was increased to 10 hours a week from January 2020 to June 2021. This ended because the tutor relocated to another part of the country. The Council did offer to make alternative tutoring arrangements, but this was declined by Mrs K because she considered Child X needed to be in school as opposed to being at home isolated from his peers. Mrs K adds that it was unfair on Child X to be receiving only a third of normal teaching hours when his needs required full-time education. Moreover, the Council said Child X’s school placement continued to send work to Mrs K’s home for him to complete. In response, Mrs K said the work provided to Child X was not suitable for his needs and was more geared towards a child without SEN and with normal cognitive ability. Mrs K therefore rejects the work provided to Child was suitable education.
  6. I must consider whether the alternative arrangements made for Child X were suitable for his needs. In summary, s19 of the Education Act 1996 places a duty on local authorities to make arrangements for the provision of suitable education at school, or otherwise. This applies for 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. Further, “suitable” education means efficient education which is suitable to the child’s age, ability and aptitude and to any special educational needs he may have. The education to be arranged should be on a full-time basis (unless, in the interests of the child, part-time education is considered more suitable for reasons relating to the child’s physical or mental health).
  7. In my view, I have seen no evidence Child X should not have been receiving full-time education for the period he was out of school. Mrs K said Child X was capable of receiving full-time education and this is supported by his placement at his school where he undertook full-time hours until it broke down. While it is positive Child X was provided tutoring, this was only initially for four hours which increased to 10 hours per week. This cannot be said to be full-time education and I therefore consider it was unsuitable for Child X’s needs. I also recognise that Child X’s school continued to send work for him to complete. However, this is only suitable in circumstances where Child X has a qualified teacher overseeing this work being completed at full-time hours.
  8. For the above reasons, I find the Council was at fault for not providing Child X with suitable education from September 2020 to September 2021. I also consider, given the lack of evidence presented by the Council, that it failed to meet the specific provision identified in Child X’s EHCP, namely around communication and transition arrangements. The Council is able to comment on this preliminary view and provide further evidence should it disagree with the findings identified.

Alternative school placement

  1. In summary, Child X has been out of school since September 2020 and the Council has been unable to find an alternative placement for him. He has remained at home from September 2020 to present. This is deeply regrettable, but as explained, I cannot investigate the period from October 2021 because Mrs K could have reasonably appealed against the named placement in Child X’s amended EHCP. I can however consider whether the Council used “reasonable endeavours” to secure an alternative school placement for Child X between September 2020 to September 2021.
  2. I have reviewed the Council’s consultation process and I am satisfied it has sought to find an alternative placement for Child X. In particular, the Council consulted approximately 20 different schools between July and November 2020. Further, the evidence suggests it has worked with Mrs K on this issue and made additional consultations with schools recommended by her. The Council acknowledge the process has been delayed, but this has been due to a lack of schools advising they are in a position to meet Child X’s needs. I have not identified any fault by the Council in securing an alternative school placement.

Review of EHCP

  1. In its responses to my enquiries, the Council has explained that Child X’s first amended EHCP (issued December 2019), should have been updated by March 2021. However, it says Child X’s school made numerous attempts to contact Mrs K in 2021 to arrange an annual review but no response from her was forthcoming. The Council says it therefore updated and issued Child X’s second amended EHCP in May 2021 using the psychologist report produced in March 2021.
  2. In my view, there is some inconsistency in the dates provided by the Council with respect to Child X’s EHCPs and reviews. According to the Council’s own chronology of events, it held an annual review of Child X’s first EHCP in September 2019 and subsequently issued an amendment notice to Mrs K in November 2019 before issuing the first amended EHCP in December 2019. This EHCP stated the next review should be undertaken by no later than May 2020.
  3. The Code says that an annual review should take place within 12 months of any previous review. Further, it states the Council’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 EHCP or previous review). I see no evidence the Council undertook an annual review in May 2020. Further, it would appear the Council has failed to carry out the review in accordance with the Code’s timetable. This is fault by the Council.
  4. Turning to Child X’s most recent amended EHCP, the Council says this should have been updated by March 2021. However, if the last review took place in September 2019, the review should have taken place in September 2020. On the face of it therefore, the Council’s annual review was delayed by six months. This was fault by the Council. Further, the Council says Child X’s most recent amended EHCP was actually amended and issued in May 2021. However, its own records state it was not issued until October 2021. While this delay may have led the Council to identifying changes in Child X’s needs and provision earlier, the reality is that he was not receiving suitable education anyway. I have therefore factored this failing into a recommended remedy when considering a loss of education and support more generally.
  5. In addition, Mrs K has complained about a failure by the Council to update Child X’s EHCP with an educational psychologist assessment report completed in March 2021. For the reasons stated above, Child X’s EHCP annual review was delayed and therefore there was a delay by the Council in factoring in the assessment report. The Council has accepted a delay for this and has apologised to Mrs K. I therefore find fault by the Council.
  6. I cannot consider whether the contents of the Child X’s most recent EHCP (issued October 2021) is appropriate. This is because the contents of an EHCP, following a review, can be appealed to the SEND Tribunal. I have commented elsewhere that I consider Mrs K could reasonably have appealed. I therefore have no jurisdiction to investigate this issue further beyond the date the amended EHCP was issued, or provide a remedy in respect of any adverse impact on Child X.

Delays in communication

  1. During the process of attempting to gain suitable education for her son, Mrs K says the Council has failed to communicate with her promptly and reliably. The Council acknowledge the process has been protracted at times for various reasons, but it was not always possible to always respond to Mrs K due to it not having an update for her. The Council also acknowledge less than satisfactory communication with Mrs K during inadequate periods of staff cover during absence. The Council has apologised for this matter, and has said this is being reviewed at a strategic level by the Senior Management team as part of a review of the service. I do therefore find fault by the Council for communicating with Mrs K in a way which demonstrates good administrative practice.

Injustice to the complainant

  1. Having identified fault by the Council, I must now consider whether Child X has suffered serious loss, harm or distress. In my view, Child X was provided some education while he was out of school, but because this was not suitable for his needs, this has harmed his learning development. He has also not benefited from key support relating to communication and transition arrangements which has exacerbated his ability to progress. I do therefore find that Child X has suffered a serious and personal injustice because of the Council’s failings.
  2. On the subject of the annual review failings, because there was a delay in undertaking these, this meant Child X may have obtained earlier support. However, as mentioned earlier, Child X was not receiving suitable education or provision by the Council anyway. So when considering injustice, I can only factor this into a loss of education more generally.
  3. I do take the point that the Council did offer to make alternative tutoring arrangements for Child X when his normal tutor relocated in June 2021. Mrs K rejected an alternative tutor and while I do have sympathy with her reasons, I cannot say the Council failed to provide some education after June 2021. That said, I believe any tutoring offered would have been for the same insufficient number of hours Child X was provided prior. Therefore, I do not consider the education would have been suitable for Child X’s needs even had Mrs K accepted the offer of a different tutor. I have taken these facts into consideration when recommending a remedy for a loss of education.
  4. Separately, I also consider Mrs K has suffered an injustice by reason of the Council’s failings. In particular, Mrs Z has suffered distress by reason of the Council not providing suitable education to her child. This was made worse by failings in the manner in which the Council communicated with Mrs K.

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Agreed action

  1. To remedy the fault and injustice identified in this statement, the Council has agreed to take the following actions by 1 May 2022:
      1. Provide Mrs K a written apology which acknowledges the fault and injustice identified, particularly with respect to a lack of suitable education.
      2. Pay Mrs K £3,000 (£300 for each month of unsuitable education provided) to be spent on Child X’s educational development.
      3. Pay Mrs K £400 to acknowledge the distress she has suffered and for her time and trouble spent pursuing her complaint.
  2. By 1 July 2022, the Council will undertake a detailed review of Child X’s to understand why he was not provided with full-time education between September 2020 to September 2021. It should also review its practices with respect to conducting annual reviews in accordance with the provisions of the Code. The purpose of the review is to inform a number of measures to adopt to inform service improvements for the future. The Council will provide evidence of the review to the Ombudsman by the date set out above.

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Final decision

  1. The complaint is partially upheld. The Council failed to provide suitable education to Child X between September 2020 and September 2021. It also failed to communicate with Mrs K both promptly and reliably and update Child X’s EHCPs in accordance with the Code. I have no jurisdiction however to investigate or remedy a loss of education post September 2021. I also have no jurisdiction to question the contents of the EHCP issued in October 2021. This is because Mrs K could have reasonably appealed to the SEND Tribunal in both circumstances. I have no identified any other fault by the Council.

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Investigator's decision on behalf of the Ombudsman

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