Hampshire County Council (21 009 171)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 28 Jun 2022

The Ombudsman's final decision:

Summary: Ms X complained about the Council not following relevant law and guidance when is assessed her daughter for an Education, Health and Care plan. She also said it did not follow the annual review procedure and failed to secure the provision named in the plan as well as alternative educational provision. There was fault with how the Council produced S’s Education Health and Care plan, and how it arranged the support she needed. The Council agreed to pay a financial remedy to Ms X and reviews its procedures.

The complaint

  1. Ms X complained on behalf of her daughter, S. She says the Council failed to:
    • complete S’s Education, Health and Care (EHC) plan assessment in line with the statutory timescales;
    • properly review S’s EHC plan in January 2021;
    • secure the provision from S’s EHC plan since it was in place in September 2020;
    • communicate with her effectively about matters relating to S’s EHC plan and her provision after November 2021; and
    • secure alternative educational provision when S was not able to attend a mainstream school from September 2020.
  2. Ms X said these failings:
    • caused distress and inconvenience for her and her family;
    • contributed to S’s poor educational attainment;
    • negatively affected S’s mental wellbeing; and
    • affected S’s chances of attending college (Ms X is not sure S will be able to do this because of the education and support she missed).
  3. Ms X also said she had to cover the price increase in S’s riding lessons the Council agreed to fund, as it never replied to her when she told it the provider was increasing its prices.
  4. Ms X wanted the Council to secure the provision named in S’s EHC plan and provide her with suitable alternative education without further delay. Ms X also wanted the Council to revisit its commitment to funding riding lessons for S that is due to finish in March 2022, as currently this is having a positive impact on S and on Ms X’s life. She would also like the Council to consider suitable remedies for the parts of her complaint that it already upheld.

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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. 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. As part of the investigation, I have:
    • considered the complaint and Ms X's comments;
    • made enquiries of the Council and considered the comments and documents the Council provided.
  2. Ms X and the Council had an opportunity to comment on a draft of this decision. I considered their comments before making a final decision.
  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.

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What I found

  1. An EHC plan is a legal document which sets out a description of a child's special educational needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care.
  2. The Council must respond to all requests for an EHC plan. It must decide whether an assessment is needed within six weeks of receiving the request. The whole process from the point of request to the Council issuing the final EHCP must take no more than 20 weeks.
  3. Where there are exceptional circumstances, it may not be possible for the Council to meet the timescales. The Council should tell the child’s parent or the young person of the reasons for any delays.
  4. The Council can only issue an EHC plan after a child or young person has gone through the assessment. At the end of that process the Council must decide whether to issue a plan or not.
  5. If the Council decides to issue a plan it must first issue a draft for the parents or young person to consider. The Council does not have to provide exactly what the parents request but it should be able to explain why the EHC plan meets the needs of the child.
  6. We cannot investigate the Council’s decision whether to conduct an assessment, and the content of the EHC plan as these are appealable to SEND Tribunal.
  7. We can look at any delay in the assessment and creation of an EHC Plan as well as any failure by the Council to deliver the provision within an EHC Plan.
  8. Once the Council completes the EHC plan it has a legal duty to deliver the educational and social care provision set out in the plan.

Annual Reviews

  1. The Department for Education publishes statutory guidance, the SEND Code of Practice, which sets out the duties of councils.
  2. Councils must review an EHC plan at least every 12 months.
  3. Within two weeks of the review meeting the Council must prepare and send out a report setting out any amendments to the EHC plan it is recommending.
  4. Within four weeks of the review 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 of its decision.
  5. If the plan needs to be amended, the Council should start the process of amendment without delay.
  6. The Council must send the draft EHC plan to the child’s parent and give them at least 15 days to give views and make representations on the content.
  7. When changes are suggested to the draft EHC plan and agreed by the Council, it should amend the draft plan and issue the final EHC plan as quickly as possible, but within eight weeks of the date the Council sent the proposed amendments to the parents.
  8. Where the Council does not agree the changes suggested by the child’s parent it may still proceed to issue the final EHC plan.
  9. In any case the Council must notify the child’s parent of their right to appeal to the SEND Tribunal and the time limit for doing so.

Alternative provision

  1. Under Section 19 of the Education Act 1996, councils are responsible for arranging suitable education for permanently excluded pupils, and for other pupils who – because of illness or other reasons – would not receive suitable education without such arrangements being made.
  2. The Children, Schools and Families Act 2010 clarified that a suitable education meant a full-time education. The only exception to this is where the physical or mental health of the child means that full-time education would not be in their best interests. Full-time education is not defined but is commonly held to be equivalent to between 22 and 25 hours, depending on the child’s age.
  3. The Government’s statutory Guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ outlines councils’ responsibilities towards children with medical health needs. It states that Council’s must:
    • have a written, publicly accessible policy statement which explains how it will meet its legal duty towards children with additional health needs. This policy must make links with related services in the area, such as the Special Educational Needs and Disability Service (SEND), Children and adolescent Mental Health Service (CAMHS);
    • have a named officer responsible for the education of children with additional health needs, and parents should know who that person is; and
    • not “have processes or policies in place which prevent a child from getting the right type of provision and a good education” or “inflexible policies which result in children going without suitable full-time education”.
  4. Councils should provide education as soon as it is clear the child will be away from school for 15 days or more and where suitable education is not being provided by the school.
  5. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible. If the medical evidence is not quickly available, the guidance states “LA’s should consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
  6. The statutory guidance ‘Alternative Provision’ says the duty to provide a suitable education applies “to all children of compulsory school age resident in the local authority area, whether or not they are on the roll of a school, and whatever type of school they attend”
  7. The Ombudsman issued a focus report in September 2011 amended in June 2016, “Out of sight…. out of mind?”. This gives guidance for local authorities on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. The report made six recommendations for Local Authorities, including they:
    • consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (with the exception of minor issues that schools deal with on a day-to-day basis) even when a child is on a school roll;
    • consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
    • choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education;
    • put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.
  8. The report states local authorities should not assume that schools shoulder the entire responsibility for a child’s education.

What happened

  1. Ms X contacted the Council’s Special Educational Needs (SEN) department in May 2019 to ask for support for S, who was struggling emotionally and started to miss school.
  2. In July 2019, Ms X asked the Council to complete and Education Health and Care (EHC) assessment t for S, to which the Council agreed the following month.
  3. An educational psychologist assessed S in February 2020 and issued their report the following month.
  4. In July and August 2020 Ms X chased the Council for an update as she had not heard anything about whether S would have an EHC plan.
  5. The Council sent a draft EHC plan to Ms X for her comments in early August 2020 and, at the end of September 2020, issued S’s finalised EHC plan.
  6. In Dec 2020 the Council’s elective home education department contacted Ms X to ask for an update about S’s education. Ms X was not home educating S, so she contacted the Council’s SEN department and asked for clarification. She said the SEN department advised her to say that S had an EHC plan and the SEN department was exploring alternative provision packages.
  7. The Council reviewed S’s EHC plan in mid-January 2021. During the meeting, the Council and Ms X agreed that:
    • the SEN department would contact alternative education providers offering mentoring and individual provision to help build S’s confidence and support her educational needs; and
    • the Council would organise a mentor visit S at home and build her relationship and confidence so she could attend college in 2021.
  8. In March 2021 Ms X complained to the Council about her experience. She said S was only getting:
    • 30 minutes of horse-riding lesson per week; and
    • the SEN department said they would fund another lesson a week, but this had not been implemented.
  9. In May 2021 the Council responded to Ms X’s complaint and said it:
    • took longer than it should have to finalise S’s EHC plan, as the process took eight months;
    • had communicated with Ms X poorly S’s EHC plan;
    • apologised for the lack of update about the college consultation for S;
    • was addressing the staff shortages that should enable it to respond to communications more quickly;
    • would fund an hour of weekly horse-riding session at S’s stables;
    • contacted a college about tester sessions that were due to start in January 2022; and
    • would call Ms X in June to speak more about the provision that S needed.
  10. In June 2021 Ms X escalated her complaint to the Council. She said:
    • she didn’t get a call to speak more about S’s provision; and
    • S was not getting the additional riding lessons the Council said it would arrange.
  11. In July 2021 the Council send a stage two response to Ms X’ s complaint. The Council:
    • apologised for the missed call and said this was a human error;
    • confirmed it would contact S’s stables no later than last week of July 2021 to confirm the additional riding lessons. The Council also said that it would continue the lessons in summer holidays as good will gesture; and
    • said it would update Ms X at the end of July 2021.
  12. In September 2021 Ms X complained to the Ombudsman, but we asked her to finish the Council’s complaints process first.
  13. In November 2021 the Council issued its final response to Ms X’s complaint and said:
    • it would pay £300 to Ms X for the avoidable time and trouble in having to complain to Council about the problems with S’s EHC plan; and
    • it would use a personal budget to fund the riding lessons from May 2021 and Autumn term 2021. It confirmed that it would pay the next instalment in January 2022.
  14. In mid-November 2021 Ms X asked the Ombudsman to consider her complaint.
  15. In October 2021, S began to see a careers guidance mentor once every two weeks.

Analysis

EHC plan assessment process

  1. The Council accepted it was at fault when took longer to finalise S’s EHC plan after Ms X requested it in 2019. Ms X asked the Council to assess S in July 2019, which meant the Council should have finalised her EHC plan by around November 2019. The Council issued S’s final EHC plan at the end of September 2020. This was a significant delay which caused avoidable uncertainty for Ms X and delayed S getting the SEN provision she needed.
  2. The Council told us that the delays were caused by a high number of assessment requests and low number of staff within the SEN department. The Council said has already addressed this by recruiting more staff members.

Annual EHC plan review in January 2021

  1. The Council accepted it was at fault for not following the statutory process for an annual review after the meeting it held for S in January 2021. This is because it:
    • did not complete and sent to Ms X the required paperwork following the review;
    • did not issue a decision letter after the review, which frustrated Ms X’s right of appeal to the SEND Tribunal.
  2. We consider this caused Ms X further frustration and uncertainty about what support the Council would put in place for S and when.

SEN department’s communication with Ms X after November 2021

  1. The Council accepted it was at fault when its communications with Ms X about S’s EHC plan after November 2021 did not improve.
  2. We consider this caused Ms X further avoidable time and trouble, as even after the Council apologised and offered to put things right, she had to continue chasing it for action.

Alternative provision for S after September 2020

  1. The Council told us it did not have the duty to secure SEN provision for S because her EHC plan named a type of school placement and Ms X decided to educate S at home. This meant that as long as the Council was satisfied the arrangements Ms X had in place for S were suitable, it was not under obligation to provide the SEN provision for S.
  2. The draft EHC plan the Council issued to Ms X did not have any school placement named in section I. In response to the draft EHC plan Ms X named a placement she thought would be appropriate, but was open to the Council’s suggestions.
  3. In S’s final EHC plan, the Council did name a mainstream placement in section I but said that Ms X had chosen to educate S at home. Ms X told us this was the case back in 2018, but not after the requested the EHC plan assessment form the Council. This is supported by email Ms X sent to the Council asking about the progress of securing a school placement for S, and the fact that she was worried S was not accessing any education.
  4. The Council’s records show that in late September 2020 it was discussing alternative provision options with Ms X, and recognised that S would need support to reintegrate into full-time educational setting. During the discussions, SEN officer asked Ms X for an update of what S had been doing and Ms X told the Council that S had not received any education in the last year. This suggests that prior to the exchange the Council did not check what arraignments Ms X had in place for S, and therefore it is unlikely it satisfied itself that they were suitable.
  5. In any case, in September 2020 Ms X made it clear that both she and S wanted her to attend an educational setting. The Council agreed to contact alternative education providers to build S’s confidence with 1:1 support and mentoring. some of the mentoring began in October 2021, but further provision was not put in place until March 2022, when S started to attend a College course with support of an alternative education supplier. These delays were fault which caused meant that S went without the support she needed for longer than she could have done.
  6. I am satisfied that between September 2020 and October 2021 S missed out on essential SEN support as well as education. This was partially remedied from October 2021, but there is no evidence the Council properly considered whether one hour of mentoring every two weeks would be equivalent to a full- time education for S.
  7. The Council has accepted that it should have done more to identify a suitable placement for S when Ms X asked for this in September 2020.
  8. The Council issued three responses to Ms X about the EHC plan assessment process, the annual review and lack of provision. None of the responses told Ms X that the Council was under no obligation to secure the provision because she was electively home education S. The Council apologised for the delays in securing the placement for S, and for the little progress it had made since September 2020 and them after January 2021 annual review. Because of this, I consider the Council was under duty to provide the SEN provision from S’s EHC plan and consider alternative provision, like it said it would in September 2021.

Remedies

  1. There was a significant delay in finalising S’s EHC plan, confirming what support the Council would provide and then in arranging provision for S. This caused prolonged distress to Ms X and S. The Council should pay Ms X £600 to recognise the distress and frustration this delay caused.
  2. Where a child has not received a suitable education the Ombudsman’s guidance on remedies recommends a payment of between £200 to £600 a month to acknowledge the impact of that loss. We consider the impact on the child, the severity of their special educational needs and the amount of provision that they could have managed.
  3. From September 2020 Ms X she made it clear that she expected S to be integrated back into educational setting, and she was no longer electively home educating S. Considering S’s special educational needs, the education she was likely able to take part in and the stage of S’s education, I am satisfied a remedy of £500 per month is appropriate for the 12 months of education missed out on between September 2020 and October 2021 (excluding summer holidays).
  4. From November 2021, S was supported by a mentor, and in March 2022 she began a college course, so she was accessing some of the provision she needed and was entitled to. We consider a remedy of £200 per month is appropriate for this five-month period.

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Agreed action

  1. Within one month of my final decision, the Council will:
    • pay Ms X £600 to recognise the distress and frustration the delay between in finalising S’s EHC plan and arranging the later provision has caused;
    • pay Ms X £150 to recognise the avoidable time and trouble the Councils poor communication after November 2020 has caused her;
    • pay Ms X, on behalf of S, £7,000 to remedy injustice caused by the loss of SEN provision required by her EHC plan as well as access to education between September 2020 and March 2022.
  2. Within three months of my final decision, the Council will:
    • share this decision with the officers dealing with EHC plans to highlight the importance of following the statutory timescales when conducting an assessment or EHC plan annual review; and
    • review its alternative education policy and procedure to ensure these properly reflect the Council’s Section 19 duties to children who cease to be electively home educated, and are to be reintegrated into an educational placement.

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Final decision

  1. I have completed my investigation. The Council was at fault for how it handled S’s EHC plan assessment, annual review and alternative provision. The Council agreed to remedy the injustice this has caused to Ms X and S.

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Investigator's decision on behalf of the Ombudsman

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