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Kent County Council (21 008 621)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 12 Apr 2022

The Ombudsman's final decision:

Summary: Mrs B complained about delays in the education, health and care plan process for her child, C. She also complained the Council failed to provide C with the provision in the plan and suitable education when they were not attending school. We found fault with the Council. The Council agreed actions to remedy the injustice to Mrs B and C.

The complaint

  1. Mrs B complained about the delays in the Council’s education, health and care plan (EHCP) process for her child, C.
  2. Mrs B complained the Council:
  • missed the deadline for post-16 transfer.
  • failed to obtain relevant information and assessments for the EHC needs assessment.
  • failed to obtain up to date information and consulted with colleges on out of date information.
  • failed to put the provision in the EHCP in place.
  • delayed Mrs B’s right of appeal.
  • delayed its complaint handling.
  • failed to provide suitable alternative provision in place for C was they were not in school.
  1. Mrs B said this caused C an injustice because they missed out on provision. It also put their place at college at risk. The delays and complaint handling caused Mrs B frustration and time and trouble.

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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. 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.
  3. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
  4. 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)
  5. 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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How I considered this complaint

  1. I spoke to Mrs B and considered the information she provided with her complaint. I made enquiries with the Council and considered its response with relevant law and guidance.
  2. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and guidance

  1. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
  2. As part of the assessment councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes:
  • the child’s education placement;
  • medical advice and information from health care professionals involved with the child;
  • psychological advice and information from an Educational Psychologist (EP);
  • social care advice and information;
  • advice and information from any person requested by the parent or young person, where the council considers it reasonable; and
  • any other advice and information the council considers appropriate for a satisfactory assessment.
  1. Those consulted have a maximum of six weeks to provide the advice.
  2. The council should consider with the child’s parent and the parties listed the range of advice required to enable a full EHC needs assessment to take place. (The Code 9.47)
  3. Section 36(20) of the Children and Families Act 2014 defines an EHC assessment as including an assessment of the child/young person’s social care needs. Where a child/young person is not previously known to social care this will require a new assessment to identify if there are social care needs which need to be included in the EHC plan.
  4. The Council must notify a child’s parent or the young person whether or not it is necessary to reassess the child or young person within 15 days of receiving the request to re-assess. (Section 25(1) Special Educational Needs and Disability Regulations 2014 and SEN Code 9.190)
  5. The process for re-assessment is the same as the process for a first assessment (once the decision to carry out an assessment has been taken). Re-assessments must follow the same process as for the first EHC needs assessment.
  6. The overall maximum timescale for a re-assessment is 14 weeks from the decision to re-assess to the issuing of the final EHC plan. However, the Council must aim to complete the process as soon as practicable.
  7. The EHC plan is set out in sections which include:
  • Section B: The child or young person’s special educational needs.
  • Section F: The special educational provision needed by the child or the young person.
  • Section I: The name and/or type of school.
  1. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
  2. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:
  • check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;
  • check the provision at least annually via the review process; and
  • investigate complaints or concerns that provision is not in place at any time.
  1. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
  2. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
  3. Where a council proposes to amend an EHC plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
  4. The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
  5. 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. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
  6. For young people with an EHC plan, preparation for transition to adulthood must begin from year 9 (age 13 to 14). Transition planning must consider the young person’s needs as they move towards adulthood. It should plan to support their choices for further education, employment, career planning, financial support, accommodation, and personal budgets where appropriate.
  7. For young people moving from secondary school to a post-16 institution or apprenticeship, the review and any amendments to the EHC plan – including specifying the post-16 provision and naming the institution – must be completed by the 31 March in the calendar year of the transfer.

Alternative provision

  1. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
  2. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
  3. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
  4. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
  5. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
  6. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. (Out of school… out of mind? How councils can do more to give children out of school a good education, published in 2016)

What happened

  1. What follows is a brief chronology. It does not contain all the information I reviewed during my investigation.
  2. C stopped attending school A in February 2019. They were no longer able to attend because of bullying that caused anxiety.
  3. In March Mrs B asked the Council to assess C for an EHCP. She told the Council C was not attending school and was unlikely to return.
  4. In April the Council agreed to assess C. It agreed to issue an EHCP in June and issued the draft EHCP in July.
  5. The Council issued the final EHCP on 22 July 2019. It named school A in section I. Mrs B appealed to the SEND tribunal about section B, F and I. Mrs B also complained to the Council about the EHC assessment process.
  6. In January 2020 the Council contacted Mrs B to arrange home tuition for C. Mrs B declined the tutor because she said there was no long-term plan in place for C.
  7. Mrs B complained to the Council about a lack of provision and appropriate assessments but the Council said it would not investigate because Mrs B had appealed to the SEND tribunal.
  8. In May the Council issue an amended EHCP following the SEND tribunal decision. It named school B in section I.
  9. In June Mrs B complained C was not receiving the provision set out in their EHCP. C was still not attending school.
  10. C started home tuition (online) on 25 June.
  11. The Council responded to Mrs B’s complaint about a lack of provision between July 2019 and April 2020. It said it was aware C had not been attending school. It said that because C remained on roll at school A during this period the school was responsible for C’s education.
  12. In November Mrs B asked for her earlier complaint about provision to be escalated to stage two of the Council’s complaint process.
  13. In January 2021 school B called a meeting. It said C had been unable to access any of its outreach suggestions. It said it was unable to offer them a place at the sixth form college in September.
  14. The Council consulted college D and E. College D said it could not offer C a place as it could not meet their needs. College E offered C a place.
  15. On 11 February C’s EHC review took place. The review form from this meeting shows the following requests:
  • the EHCP be amended because the school (B) were finding it challenging to continue to meet the needs of C with the current level of provision; and
  • the EHCP be amended because the parent(s) would like to request the Council consider their request for a different placement.
  1. The review meeting notes also said the speech and language (SaLT) and occupational therapy (OT) assessments had not been completed. It said C would not engage because the offer was through the school (B). It said the Council would see if there were other options to commission the assessment through another team.
  2. On 23 April the Council told Mrs B it decided to reassess C following the review meeting. It asked for information and advice from social care, educational psychologist, SaLT and OT.
  3. Mrs B complained about the lack of response to her stage two complaint. The Council responded in late May. It did not uphold Mrs B’s complaints and said:

“It appears from the paperwork that C has not engaged with the school although she has engaged with the tutors in Maths and English, arranged by the school through X tutors”.

  1. In June the Council responded to Mrs B’s complaint about the delays in complaint handling. It apologised and offered her £100 in recognition of the time and trouble she experienced. Mrs B was not satisfied with the response and asked for it to be escalated to stage two. She also made a new complaint the Council:
  • failed to secure the provision in the EHCP.
  • failed to amend the plan for phased transfer (to post-16 provision)
  • failed to adhere to statutory timescales and decision about reassessments and amendments.
  • failed to seek advice and information for the reassessment.
  • delayed Mrs B’s right of appeal.
  1. Mrs B said the only provision C received was online tutoring for two hours per week from November 2020 to March 2021. This increased to three hours per week from March 2021.
  2. In June the Council told Mrs B it decided to issue an EHCP following its reassessment.
  3. Mrs B told the Council their preferred college was college E. College E told the Council it already responded in January and said it could offer C a place.
  4. In July Mrs B complained to the Council through a representative. She complained about
  • the EHCP process.
  • the format of the Council’s EHCP.
  • the Council’s failure to carry out the year 11 annual review in a timely manner and issue the phase transfer amended EHCP by the statutory deadline of 31 March 2021.
  1. The Council apologised for failing to issue an amended final EHCP to secure a post-16 placement for C. It said that as college E said it could accept C and it was the preferred option it would be named in the final plan.
  2. Mrs B replied. She said she did not agree with college E being named and asked for a specialist placement, F. She said she would appeal the EHCP.
  3. The Council issued the final EHCP on 19 July 2021. It named college E in section I.
  4. In August the Council gave its stage two complaint response. It said:
  • It would rectify sections C and G of the EHCP to comply with statutory guidance.
  • It can decide the format and structure of its EHC plans. It expects all EHC plans will be in accordance with the statutory framework.
  • It apologised for the standard of C’s EHCP.
  • It agreed that the plan was confusing and it was not clear what provision was needed for C.
  • It did not agree it failed to meet the statutory timeframes for the reassessment.
  • It first consulted college E in January 2021. It then reconsulted in July 2021 and the college was able to offer C a place from September 2021.
  • It apologised for delaying Mrs B’s right of appeal by failing to issue the decision letter following the annual review meeting in February 2021.
  1. C had a SaLT assessment in August 2021. The assessment said C had not received any speech and language intervention since her last assessment in May 2019.
  2. Mrs B appealed to the SEND tribunal in November 2021. She appealed about sections B, F and I.
  3. She made a further complaint to the Council in December. She said the Council continued to fail to put in place the provision set out in C’s EHCP.
  4. Mrs B remained unhappy with the Council’s response to her complaints. She complained to the Ombudsman.

My findings

  1. I have summarised my findings under the main headings of Mrs B’s complaint

The EHCP

  1. Mrs B’s representative complained about the format and layout of the Council’s EHCP. The Council amended C’s plan to put the provision in the correct sections. It also said it would rectify section C and G to ensure it complied with the statutory requirements.
  2. It apologised for the standard of C’s EHCP and said it was confusing and unclear what provision C needed. This was fault.
  3. It used the EHCP to consult with the colleges for C’s transfer to post-16 education. It also used an out-of-date EHCP in January 2021 and an incomplete EHCP in July 2021.
  4. The EHCP it used to consult in July 2021 did not include the findings and recommendations from the SaLT assessment. After the assessment in August 2021 the following provision was recommended:
  • Weekly sessions with a speech and language therapist - one hour per week.
  • Weekly sessions with a teaching assistant with appropriate training - 30 minutes.
  1. This provision was not added to C’s EHCP and Mrs B had to submit another appeal to the SEN tribunal.
  2. Failing to consult using a clear and complete EHCP calls into question whether the college were able to make a fully informed decision about whether it could meet all C’s needs.
  3. However, Mrs B had a right of appeal to Tribunal over the placement named in section I so I cannot comment on this further.

The EHCP process

  1. There were delays throughout the EHC process. This was fault.
  2. The Council failed to hold an annual review for C in May 2020. This was a key stage because it was an opportunity to discuss post-16 options. It was also a missed opportunity to address the issues connected with C not being in education.
  3. The Council said it was an administrative error because Mrs B had appealed to the SEN tribunal.
  4. This fault added to the issues that already existed and was a missed opportunity to address Mrs B’s concerns. Importantly it also let C down. As part of the review process they should have had the opportunity to express their views and discuss their thoughts on post-16 options. Mrs B using her right to appeal should not have a detrimental effect on C.
  5. The annual review was held in February 2021. This was nine months late. At this review the school said it could not meet C’s needs and would not offer her a place at sixth form. Mrs B also asked for C’s EHCP to be amended with a different school/college named in section I.
  6. Following the annual review the Council decided to reassess C. It should have told Mrs B of this decision by 26 February 2021. It did not tell her until 22 April 2021. There was no reason for this delay and it further compounded the other delays in this case.
  7. The Council also failed to tell Mrs B its decision to maintain, amend or discontinue the EHCP within four weeks of the review meeting.
  8. The Council failed to issue C’s final EHCP by 31 March 2021 which was the statutory deadline for post-16 transfer. This also delayed Mrs B’s right of appeal, which she used.

EHCP provision and alternative education

  1. The Council failed to put in place the provision set out in C’s EHCP. It also failed to provide C with suitable alternative provision when she was out of education. This was fault.
  2. C was out of education from February 2019. When Mrs B requested an EHC needs assessment she told the Council C was not attending school and was not likely to return. This turned out to be the case.
  3. The Council said because C was on roll at school A it was the school’s responsibility to provide C with education, either at school or home.
  4. The Council issued C’s final EHCP in July 2019. It accepts it had a duty to provide the provision set out in the plan.
  5. It says it failed to put in place the EHCP provision from July 2019 to May 2020, when the tutor started. It offered a financial remedy for this period.
  6. In my view it also failed to put the provision in place from June 2020 until September 2021. Some of the injustice to C was reduced by the tuition hours and this can be reflected in the proposed remedy. But the Council did not provide C with everything set out in their EHCP. Mrs B repeatedly complained to the Council about this since 2019 and the Council missed opportunities to both resolve and remedy this before it came to the Ombudsman.
  7. The Council had a duty make arrangements for the provision of suitable education at school or otherwise than at school for those 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. (Education Act 1996, section 19(1))
  8. The Council was aware C was not in education from February 2019. It had a duty to provide them with a suitable education. It failed to put anything in place for C and it failed to evidence how it assessed the suitability of the education when the tutor started in May 2020. It failed to take any responsibility and told Mrs B it was the school’s responsibility.
  9. The injustice to C is significant. They were left without their EHC provision and suitable alternative provision for a prolonged period. This happened at a key phase of C’s education when they were transferring to post-16 education. This can be a difficult time for any child, but C’s additional needs and personal circumstances meant that it was even more difficult. The Council’s delays and failures added to C’s anxiety.
  10. C started attending college E in September 2021. Some of the EHC provision started at this point. But C was still not receiving the SaLT or OT provision when our investigation ended.

Complaint handling

  1. There were significant delays in the complaint handling. This was fault.
  2. The poor complaint handling added to Mrs B’s frustration and cause her additional time and trouble. This is injustice.
  3. Mrs B made complaints about the complaint process. This should not have been necessary.
  4. The delays and lack of coordination led to multiple complaints which was confusing.
  5. The Council missed several opportunities to establish the fault and injustice and offer Mrs B a remedy. It did this once we became involved, but it could have done this earlier and possibly avoided Mrs B bringing her complaint to us.

The Council’s response

  1. We welcomed the Council’s response to our investigation. It accepted our findings and recommendations. It offered C a financial remedy of £5400.00 in recognition of the lost education from 19 July 2019 to 20 May 2020.
  2. The Council acknowledged the impact the faults had on both C and Mrs B.

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Recommended action

  1. Within one month of my final decision the Council agrees to:
  • Apologise to Mrs B and C for the faults identified in this statement.
  • Pay C £300 per month in recognition of their missed education from March to July 2019.
  • Pay C £500 per month in recognition of their missed education from June 2020 to August 2021. This is in addition to the Council’s financial remedy offered for the period July 2019 to May 2020.
  • Pay C £300 per month in recognition of their missing EHC provision from September 2021 to March 2022.
  • Continue to pay C £300 per month until they are receiving all the provision set out in their EHCP.
  1. The Council should deduct school holidays for the periods set out above when it is calculating the financial remedy.
  2. Pay Mrs B £600 in recognition of the distress, time and trouble it caused her.
  3. Within three months of my final decision the Council agrees to:
  • Remind officers of the council’s duties under S19 of the Education Act 1996 to provide alternative provision for children who cannot attend school due to illness, exclusion or other reasons.
  • Remind officers of the timescales and duties to notify parents of decisions to reassess and decisions following reviews- maintain, amend or cease.
  • Remind relevant staff of the importance of attempting to resolve complaints at the earliest opportunity. This case should be used an example.

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Final decision

  1. I found fault causing injustice. I completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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