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Hertfordshire County Council (21 008 459)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 14 Jun 2022

The Ombudsman's final decision:

Summary: Miss X complained the Council failed to ensure her son, Y, received suitable education and special educational needs provision following his exclusion, causing distress and loss of earnings while she stayed home with Y. We find the Council at fault. We recommend the Council provide an apology; pay £300 for time and trouble; pay £1000 for distress and uncertainty; pay £4000 for loss of education; take action to provide Y with full time education and take action to prevent recurrence of the identified faults.

The complaint

  1. Miss X complains the Council has failed to ensure her son, Y, is in full time education and receiving the provision set out in his Education Health and Care Plan from March 2021 to date.
  2. Miss X says this has caused the family distress and affected Y’s mental health. She has suffered loss of earnings due to staying home with Y. Her partner also had to change job roles and hours. This has impacted the family’s resources and ability to finance other activities. She has had to support and teach Y, struggle to manage work and childcare and felt isolated.

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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 investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
  3. 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.
  4. If we are satisfied with an organisation’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 to Miss X and I reviewed documents provided by Miss X and the Council.
  2. I gave Miss X and the Council an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

SEN Code of Practice; Annual Reviews

  1. An Education Health and Care Plan sets out the educational provision a council must provide for a child with special educational needs.
  2. Councils must review an Education Health and Care Plan (“EHCP”) at least every 12 months.
  3. Where a young person is moving from primary to secondary school the council must complete the review by 15 February in the calendar year of the transfer at the latest.
  4. Within 2 weeks of the review meeting the school must provide a report to the council with any recommended amendments.
  5. Within four weeks of the meeting, the council must decide whether it will keep the EHCP as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school. If it needs to amend the plan, the council should start the process of amendment without delay.
  6. The council must send the draft EHCP to the child’s parent and give them at least 15 days to give views on the content.
  7. If a child’s parent asks for a particular school the council must name the school in the EHCP unless:
    • it would be unsuitable for the age, ability, aptitude or SEN of the child or young person, or
    • the attendance of the child or young person there would be incompatible with the efficient education of others, or the efficient use of resources
  8. When the parent suggests changes that the council agrees, it should amend the draft plan and issue the final EHCP as quickly as possible.
  9. Where the council does not agree the suggested changes it may still issue the final EHCP.
  10. In any event the Council should issue a final EHCP to the parent and any school named within 8 weeks of issuing the amendment notice. It must also notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so.

Early reviews

  1. A parent can ask for an early review of the EHCP but the council does not have to agree and there is no right to appeal its decision
  2. A parent can ask for a reassessment of the EHCP. The council does not have to agree but there is a right to appeal.

Exclusions

  1. Parents can ask for a review of a school’s decision to exclude. An independent appeal panel carries out the review.
  2. Where a school excludes a child for a fixed period longer than five days it is responsible for arranging alternative educational provision for that child. However, if it excludes a child permanently, the duty to make alternative educational provision falls on the local council.

Right to education

  1. Section 19 of the Education Act 1996 says councils must make suitable educational provision for children of compulsory school age who, because of illness, exclusion or otherwise, may not receive suitable education unless such arrangements are made for them.
  2. The provision can be at a school or otherwise, but it must be suitable for the child’s age, ability and aptitude, including any special needs. The only exception to this is where the physical or mental health of the child is such that full-time education would not be in his/her best interests.
  3. Full time education is usually between 22 and 25 hours per week unless it is clear a child cannot cope with full time education. The law allows councils to view 1:1 provision as worth more than provision delivered in groups.

Pupil referral unit (PRU)

  1. PRUs are a type of school specifically set up to provide education for children who are unable to attend school. PRUs do not teach the full curriculum. They are usually a short-term measure until the child can be returned to mainstream education.

Principles of Good Administrative Practice

  1. In 2018 the Ombudsman published a guidance document setting out the standards we expect from bodies in jurisdiction “Principles of Good Administrative Practice”. This includes:
    • Complying with service timescales with a statutory basis by planning and prioritising resources
    • Explaining and responding to any delays proactively
    • Operating an effective complaints procedure, which includes offering a fair and appropriate remedy when a complaint is upheld
    • Ensuring the organisation learns lessons from complaints and uses them to improve services and performance

Guidance on Remedies

  1. The Ombudsman publishes guidance for staff in in making recommendations to remedy injustice, available on its website. Councils can use this document to inform the remedies offered in their own complaint investigations.

What happened

EHCP process and school place

  1. In September 2020 Y attended a mainstream primary school, School A, in Year 5. He had an EHCP which set out support and strategies his school should use, but no specific therapy or specialist provision. Y has Attention Deficit Hyperactive Disorder, Autism and a sensory processing disorder.
  2. Miss X says she contacted the Council by email in January and February 2021 to request an early review of Y’s EHCP and to complain about School A but received no reply.
  3. Miss X has provided:
    • An email sent to the Council on 25 January 2021. Here she asked for a copy of Y’s EHCP and referred to him having difficulties in School A.
    • Two emails sent to the Council on 11 February. Miss X asked for a discussion with the Council and an early review of Y’s EHCP due to multiple exclusions and staff being unable to manage his behaviour.
  4. There is no evidence the Council replied.
  5. The Council held an annual review meeting on 17 March.
  6. On 15 April the Council received School A’s report. I note this was overdue, however there is no evidence the Council chased for this.
  7. An internal Council email of 16 April refers to School A’s intention to permanently exclude Y from 19 April. The Council was aware it had to find a new school place and that Miss X would like a specialist school. The Council referred to a list of nearby mainstream primaries with space available.
  8. On 26 April the Council told Miss X it would consult with two mainstream primaries.
  9. On 28 April the Council sent consultations to two schools. One refused a place, the other did not respond. There is no evidence the Council chased a response or consulted with any other schools at that time.
  10. On 4 June Miss X chased the Council for an update and it asked her to provide a statement to support her request for a special school.
  11. On 18 June the Council agreed to consult with a specialist setting and identified specialist primary School B to consult with. However, it took no action to do so.
  12. On 26 August the Council sent Miss X notice it would amend Y’s EHCP.
  13. The Council’s internal emails of 31 August show it knew Y remained out of school and it had not consulted with special School B. It said it would now consult and continue to seek a mainstream place if no space was available.
  14. The Council sent a consultation letter to School B on 10 September. The letter said School B was parental preference and the Council had to comply with this preference unless:
    • It would be unsuitable for Y’s age, ability, aptitude or needs
    • Y’s attendance would be incompatible with the efficient education of others, or the efficient use of resources.
  15. Further that the Council would take into account if School B had already reached its published admissions number. However, this was unlikely to be enough reason to say that Y’s attendance would affect the efficient education of others, or the efficient use of resources. If the Council did not hear from School B by 25 September it could name it in the EHCP without further contact.
  16. There is no evidence School B replied to the Council by 25 September or at all. Or that the Council chased a response.
  17. In response to the Ombudsman’s enquiries the Council said it did not receive a response from School B however there were no specialist places available in the area at the time.
  18. On 5 October 2021 the Council consulted with secondary School C for a secondary place in September 2022. School C accepted.
  19. On 26 October Miss X chased the Council for a draft EHCP.
  20. On 28 October the Council sent Miss X the draft EHCP.
  21. On 2 November Miss X contacted the Council unhappy it agreed a place at School C without consulting with her. She asked the Council to consult with three other schools for a place from September 2022. She also asked the Council to reassess Y.
  22. The Council then consulted with these three schools. The Council says it received no replies. I have also not seen any evidence it chased replies. Or any evidence it replied to the request for a reassessment.
  23. On 29 November Miss X told the Council she was happy for it to name School C in the EHCP.
  24. The Council issued Y’s final EHCP on 26 January 2021 naming School C for a September 2022 start in Year 7. I note the EHCP sets out support and strategies his school should use, but no specific therapy or specialist provision.
  25. There is no evidence the Council continued to seek a primary school place for Y after September 2021, which is when he should have entered Year 6.

Alternative provision

  1. The Council says it arranged for Y to attend a PRU on the sixth day of his exclusion. Miss X says this ended in June 2021.
  2. The Council says from 10 June 2021 it offered Y 10 hours per week online learning but as Y was unable to attend due to anxiety it continued to offer the PRU until the end of summer term. It emailed Miss X on 22 June 2021 to confirm this. The Council says it reoffered 10 hours per week online learning from 17 September. However, Miss X says this was only after she chased the Council again for provision.
  3. On 2 December Miss X told the Council Y could not access online learning. She identified a tuition service and asked the Council to fund this. The Council then considered face to face tuition and made referrals from 9 December. The Council says two providers lacked tutors and it delayed following up with another. By the time it did a tutor was no longer available.
  4. Emails exchanged between the PRU and the Council from January 2022 to April 2022 show the PRU reported Y was not attending or engaging and it considered the Council needed to find an alternative.
  5. Miss X chased the Council for an update on 1 March. She says the Council then told her the tuition was too expensive to provide.
  6. In its response to enquiries of April 2022 the Council said it continued seek face to face tuition for Y.
  7. When I spoke to Miss X she said the online learning was only in English, Maths and Science though Y did not engage with this.

Complaint correspondence

  1. In June 2021 Miss X complained to the Council that:
    • She asked for support in early 2021 but received no reply;
    • She had had little contact from the Council following Y’s exclusion;
    • Y had been out of school since March and excluded since 16 April;
    • School A said it did not have the funding due.
  2. In August the Council replied:
    • It apologised for the gap in communications to June 2021.
    • To prevent recurrence it set up duty lines for all the SEND teams and was carefully monitoring their use and that actions were taken following any calls. It also had ongoing recruitment to ensure the team was fully staffed.
    • It did make payments to School A but apologised that it did not support Y. It had developed a mechanism to check with schools regarding the implementation of provision as set out a child’s EHCP and this should take place where any concerns were raised.
    • School A excluded Y shortly after the review so there was no action it could have taken to prevent this. It consulted with mainstream primaries in April but there was evidence it did not progress these.
    • In June it agreed Y met guidance for a place at a special school but there were no spaces available locally or across the Eastern Region.
    • It would ensure an experienced SEND officer worked with Miss X, kept her up to date and put provision in place. It would also continue to consult with schools locally and within its neighbouring authorities.
  3. Miss X complained again. She said:
    • There was still a lack of contact.
    • The Council had not said if it recouped unused funding from School A.
    • It had still not arranged any alternative provision.
    • She was losing earnings while Y was out of school.
  4. In November the Council provided a final response:
    • It accepted communications had not improved;
    • There was a high demand for special school places and all schools were beyond safe capacity. The SEND Service had recently sent consultations to two more schools.
    • Online learning was in place.
    • It had told the SEND Team to keep her informed as soon as they heard back from the schools consulted with.
  5. In response to enquiries the Council confirmed School A has no unused funding. It also provided records referred above.
  6. In comments on a draft decision Miss X said the PRU had no education places available for Y. It provided behavioural support and arranged online learning of 3 hours per day although Y did not fully engage with this. She also provided further detail and supporting documents on what happened.
  7. In comments on a draft decision the Council said it had to ensure the efficient use of public resources. The quote for tuition was very high however a manager was due to contact the service to discuss and potentially negotiate on the fees as it was the preferred provider of Miss Y. However, the member of staff in question was taken ill and so as not to delay the matter, a referral was made to another provider.

Findings

EHCP process and school place

  1. The Council did not respond to Miss X’s concerns raised in early 2021, or her request for an early review of Y’s EHCP. This is fault. I cannot say with certainty the Council could have acted to keep Y in school, or that it would have granted the early review. However, this was a missed opportunity to offer support. This is injustice.
  2. The Council did not keep to the statutory timescales for completing the annual review of Y’s EHCP and it did not name any setting or alternative provision for the remainder of Year 5 and Year 6 as it should have done. This is fault.
  3. The Council knew Miss X wanted Y to attend a special school from April but did not progress its decision making on this until June. This is fault.
  4. The Council delayed consulting with schools, failed to follow up responses and did not apply the correct test in considering whether to name special School B as parental preference. It then stopped looking for a school place for Y altogether. This is fault.
  5. The Council did not respond to Miss X’s request for a reassessment or provide her a right to appeal. This is fault.
  6. Because of the Council’s further fault, there were missed opportunities to secure Y a school place from April 2021 to September 2022. Y and his family have suffered distress and uncertainty as a result. Miss X has also had to stay home to care for Y while he is out of school. I accept on balance that Miss X reduced her working hours and that this likely reduced her income. Further that her partner also had to change his work and reduce his hours. I cannot quantify the financial loss arising from this, given there are so many variables, but I accept on balance the family would have suffered financially, causing further distress. This is injustice.

Alternative provision

  1. The Council had to provide alternative provision for Y following his exclusion. The PRU may have met its duties in the short term but this was not equivalent to a school place. From September the Council provided online learning but this was also not full time education. And, from December, the Council was aware Y did not engage with the online learning, yet it did not provide suitable full time alternative provision. That the Council has not ensured Y has received suitable full time education, in school or otherwise to date is fault.
  2. Because of the Council’s fault Y has missed out on a suitable full time education for over a year. Y and his family have also suffered further distress and uncertainty. This is injustice.
  3. In calculating a remedy for loss of education I have taken account that some provision was available for a short period, Y’s age, Y’s SEN and that Y is now missing an important school year. Taking these points into account I consider £400 per month from April 2021 to December 2021 (term time only) and £600 per month from December 2021 to May 2022 (term time only) is in line with the Ombudsman’s guidance on remedies.

Communications

  1. The Council accepted a shortfall in communications with Miss X and outlined action to prevent recurrence however this persisted. This is fault. The Council also accepted it had not progressed with school consultations as it should have done. However, the Council did not offer a suitable remedy for the injustice arising from these upheld complaints. This is further fault. Miss X spent more time corresponding with and chasing the Council than should have been necessary and was put to avoidable time and trouble complaining to the Ombudsman.

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Agreed action

  1. To remedy the injustice set out above I recommend the Council carry out the following actions:
  2. Within one month:
    • Provide Miss X with a written apology;
    • Pay Miss X £300 for time and trouble;
    • Pay Miss X £1000 for the distress and uncertainty suffered by her and her family;
    • Pay Miss X £4000 for Y’s loss of education;
    • Arrange and provide suitable full time education for Y going forward, until his school placement starts in September 2022;
  3. Within three months:
    • Provide training or guidance to the Council’s SEN team to ensure they understand the Council’s duties under the SEND Code of Practice and Education Act 1996, including timescales for completing EHCP reviews, securing a school place and ensuring a child receives full time education if they are out of school.
    • Establish monitoring or oversight of the Council’s SEN team when handling EHCP reviews, school consultations and arranging alternative provision, so that required actions do not get overlooked.
    • Provide training or guidance to the Council’s complaints handling team on the Ombudsman’s Guidance on Remedies and Principles of Good Administrative Practice, to ensure they offer appropriate remedies when they uphold complaints.
  4. The Council has accepted my recommendations.

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Final decision

  1. I find the Council at fault because it delayed completing Y’s annual review and it did not ensure he had a school place or suitable full time education following his exclusion. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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