Kent County Council (21 009 839)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 25 Aug 2022

The Ombudsman's final decision:

Summary: Miss D complained the Council failed to provide her son with the education and specialist provision in his Education, Health and Care plan. She also says the Council’s communication with her was poor and it failed to properly deal with her complaints. We find the Council was at fault for failing to provide Miss D’s son with education and specialist provision when he was not attending school. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

  1. Miss D complained the Council failed to provide her son with the provision and education in his Education, Health and Care (EHC) plan. She says her son’s school could not meet his needs, but the Council failed to provide any education or specialist provision. She also says the Council failed to abide by the law and statutory guidance.
  2. Miss D also says the Council’s communication with her was poor and it failed to properly deal with her complaints.
  3. Miss D says it has been extremely stressful. She also says it has caused immeasurable upset and distress to her and her son.

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What I have investigated

  1. I have looked at the Council’s actions from October 2020 onwards. I have not looked at events before October 2020 for the reasons explained at the end of this statement.
  2. I have also not investigated what specialist provision and education the Council provided to Miss D’s son from 4 June 2021 to 4 January 2022 for the reasons explained at the end of this statement.

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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 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  3. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
  4. 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.
  5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
  6. 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 considered information from Miss D. I made written enquiries of the Council and considered information it sent in response.
  2. Miss D 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

Relevant law and statutory guidance

  1. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. Section F sets out the special educational provision needed by the child or young person. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
  2. The Children and Families Act 2014 says local authorities are responsible for making sure that arrangements specified in EHC plans are put in place and reviewed each year. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out in an EHC plan has not been provided or where there have been delays in the process.
  3. Section 19 of the Education Act 1996 says local authorities are responsible for the provision or suitable education for children of compulsory age who, ‘by reason of illness, exclusion or otherwise’ may not for any period receive suitable education unless such arrangements are made for them. The provision must be suitable for the child’s age, ability and aptitude, including any special needs. The provision may be part-time where the child’s physical or mental health means full-time education would not be in their best interests.
  4. Statutory guidance issued by the government called “Alternative Provision” says while there is no legal requirement as to when full-time education should begin for children placed in alternative provision for reasons other than exclusion, local authorities should ensure children are placed as quickly as possible.
  5. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC Plan (or the decision not to name a placement) we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).

Personal budget

  1. A personal budget is an amount of money identified by the council to deliver provision set out in an EHC plan. Parents and young people can request a personal budget when the draft EHC plan is being prepared, reviewed or re-assessed.
  2. Mechanisms for delivering personal budgets can be:
  • Notional budget. This is where a council, school or college holds funds and commissions support.
  • Direct payments. This is where a young person/parent is given money to contract, purchase and manage the services themselves.
  • Third party arrangements. This is where direct payments are paid to and managed by an individual or organisation on behalf of the parent or young person.
  • Combination of the above.

The Council’s complaints procedure

  1. The Council aims to provide a full response to a complaint at stage one within 20 working days. If a complainant remains dissatisfied, they can have their case reviewed. The timescale for a formal response at stage two is 20 working days. For more complex cases it will be a maximum of 65 working days.

What happened

  1. This chronology provides an overview of key events and does not detail everything that happened.
  2. Miss D’s son (F) has complex needs and an EHC plan. He had been attending school on a part-time basis, but in March 2020 he stopped attending altogether. Miss D says F could not cope in the school environment because of his anxiety and mental health. She also said he was showing self-harming behaviours when he was at home.
  3. The school held an annual review of F’s EHC plan on 30 November. Miss D explained F’s mental health and anxieties were linked to going to school. She asked for F to stay on the school roll, but for him to have a bespoke education package. This included a request for a one-to-one mentor and sessions with a speech and language therapist and an occupational therapist.
  4. The school noted F had been progressing well before he stopped attending. However, it agreed for him to receive a bespoke learning package because his self-harming behaviours had stopped while he had been at home.
  5. The Council received the annual review report and decided to amend F’s EHC plan. It sent a draft EHC plan on 19 January 2021.
  6. Miss D responded and said F’s EHC plan was outdated. She said she wanted F to received Education Otherwise Than at School (EOTAS) if the Council could not arrange for him to be supported properly at school.
  7. The Council sent two draft amended EHC plans on 19 and 29 January. Miss D disagreed with the amended plans and provided further comments.
  8. The Council issued a final amended EHC plan. Miss D emailed the Council and asked for a reassessment of F’s EHC needs. The Council agreed to carry out a reassessment to clarify what support he needed.
  9. Miss D sent the Council various reports during the reassessment process. An educational psychologist also assessed F.
  10. The Council agreed to re-issue F’s EHC plan after it received the educational psychologist’s advice. It consulted with F’s school. The school said it could not offer F a placement and a home support package would be more effective.
  11. The Council sent Miss D a copy of F’s draft amended EHC plan. Miss D disagreed with the EHC plan and sent the Council her amendments. She said it did not accurately reflect the educational psychologist’s report.
  12. The Council decided to make no further amendments and it issued F’s final EHC plan on 4 June. The Council left the name of the placement blank but noted it would be a special school.
  13. Miss D appealed to the SEND Tribunal. She said she disagreed with the Council’s description of F’s special educational needs and with the provision set out in the EHC plan. She also requested for F to receive EOTAS.
  14. Miss D complained to the Council on 8 June about F’s EHC plan and its failure to accurately reflect the educational psychologist’s report in the plan. She also expressed concerns about its failure to understand F’s needs.
  15. Miss D chased for a response to her complaint on 27 July. She said the Council had failed to adhere to the law and has also failed to provide him with any alternative provision.
  16. Miss D sent the Council further emails throughout August and September. She said it actions meant F was not getting access to any specialist provision. She also said she was concerned F was attached to a school that could not meet his needs.
  17. The Council responded to Miss D’s complaint on 7 October. It apologised for the delay in responding. It said her concerns about the content of F’s EHC plan and the placement would be addressed during the Tribunal process.
  18. Miss D asked the Council to review her complaint. She said despite the Tribunal proceedings, F was not receiving the specialist provision he was entitled to.
  19. The Council responded on 11 October and said it had passed her concerns to stage two of its complaints procedure. It said any concerns not addressed through the Tribunal proceedings would be addressed through its stage two response.
  20. Miss D sent the Council several further chaser emails.
  21. The Council confirmed on 17 November it had provided additional funding to the school so it could provide F with a bespoke package.
  22. The Council emailed Miss D on 23 December and said it wrongly advised her that it could consider her complaint at stage two. It said it could not consider her complaint as the issues she raised were for the SEND Tribunal. It also said the school was putting some provision in place and she could contact it again at the end of the Tribunal proceedings.
  23. Miss D withdrew her Tribunal appeal on 4 January 2022 as she came to an agreement with the Council over the issues in dispute. The SEND Tribunal issued its withdrawal order and told the Council to issue an amended EHC plan in line with the working document.
  24. Miss D emailed the Council on 27 January and asked for its confirmation on the salary for F’s learning mentor. She said it had agreed to 15 hours of mentoring a week, but it was unclear who was going to provide it. She also said it had mentioned the possibility of her sourcing the mentor via a personal budget or the school providing one.
  25. The Council issued a final EHC plan on 15 February. This stated the school would provide F with a bespoke package, including a learning mentor. However, it did not specify the hours or the personal budget.
  26. Miss D emailed the Council and said it had failed to add the specific hours or salary for the mentor in F’s EHC plan. The Council responded and said it had agreed a mentor at grade six for 15 hours a week in the personal budget.
  27. Miss D sent a further email and said as the Council had agreed the hours there was no reason why it could not add them into F’s EHC plan. She sent a further email the following week and said the Council’s failure to add a personal budget into F’s EHC plan meant she could not start looking for a mentor.
  28. The Council issued F’s amended EHC plan on 23 March and included the 15 hours a week for the mentor in the personal budget section.
  29. Miss D emailed the Council and said the salary to cover the mentor was below the average salary for the role. She said it was unlikely she could find an experienced mentor on the salary listed in F’s EHC plan. The Council responded and said it had referred the matter to the senior management team.
  30. The Council emailed Miss D on 29 April and increased the salary for the mentor. Miss D responded and said the salary was still too low. She said she wanted the Council to source the mentor.
  31. F had been attending speech and language therapy (SALT), but one of the organisations that was providing it decided to stop after five sessions on 30 March. Miss D emailed the Council on 18 May and made it aware the SALT was outstanding. She also reminded it the mentor was still outstanding. The school also sent an email to the Council on the same day and asked for help to find another therapist.
  32. The school sent a further email on 17 June and asked for help sourcing a therapist. The Council responded and recommended for the school to make a referral through the NHS therapies team.

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Analysis

  1. The Council was aware from the annual review on 30 November 2020 F had not attended school for many months because of his anxiety and self-harm. When it responded to my enquiries, it said F had been making good progress at school and his absence was because of the COVID-19 pandemic and Miss D’s parental anxieties. It also said there was no professional evidence to suggest the school was not suitable.
  2. The school did say F was making progress before he stopped attending, but it also said he had been showing self-harming behaviours at home and in the classroom. It said it had witnessed videos of F’s self-harming behaviour, but these had stopped while he was at home. The law is clear councils must intervene and provide suitable educational provision for a child who is missing education through exclusion, illness or otherwise. The Council knew F was not receiving any education, and therefore it should have intervened and conducted its own assessments to determine what level of education he could cope with. Its failure to do so is fault, which means F was left without any specialist provision and education for a significant period.
  3. The Council took four months, rather than 20 working days to respond to Miss D’s complaint at stage one. This is a significant delay, which caused Miss D an injustice as she was put to time and trouble in chasing a response. The Council told Miss D on 11 October it would issue a stage two response to her complaint. It took until 23 December to confirm it would not do so, which is a further delay.
  4. I also find there were several occasions where the Council delayed responding to Miss D’s correspondence and she had to chase for responses.
  5. Miss D says SALT and the learning mentor are outstanding since she withdrew her appeal to the SEND Tribunal. F was receiving SALT, but this ended on 30 March. The Council only became aware of this in May, but it did not help the school find an alternative therapist when it asked. Miss D also made the Council aware of this issue, but it did nothing. This is fault, which means that F is missing out on the provision he is legally entitled to. The Council has only recently, after I made further enquiries, contacted the school to try and resolve this issue.
  6. With regards to the mentor, this provision was included in the EHC plan on 15 February, but the specific hours and Miss D’s request for a personal budget was not. The Council had some discussion with Miss D about this in January 2022, so it is fault for not including the specific information at the outset. Miss D cannot appeal to the SEND Tribunal about the personal budget, so this matter is within our jurisdiction.
  7. Although the Council eventually included the personal budget, there is a dispute between it and Miss D over the amount. The Council has explained the school has received the personal budget to deliver the provision. It also says the school has not contacted it to say the personal budget is not enough. The school says it did not agree to source the mentor and it has not received the extra funding. There clearly is some confusion over this matter. Miss D’s emails suggests she thought it was her responsibility to source the mentor, when the Council believes it is the school’s. The Council should have contacted the school to ensure the provision was in place, especially as Miss D has made it clear F is not receiving it. Its failure to do so means F continues to miss out on this provision.
  8. It is not for the Ombudsman to say the amount of education that would have been suitable for F. As it is very difficult to arrange catch up provision for missed education, we usually recommend a financial remedy instead. Our recommendations for financial remedy are usually a payment between £200 and £600 per month (£600 to £1800 per term) based on the child’s needs, whether any provision was in place and whether the period affected was a significant time in a child’s schooling.
  9. F did not receive any education and he missed his final year of primary school. I recommend a payment at the higher end of our scale, £500 per month, from 30 November 2020 to 4 June 2021. This is £2,500. This calculation takes into consideration the school holidays.
  10. The Council should liaise with F’s school to ensure he is allocated a learning mentor. It should also pay £400 (£100 per month since February 2022) for this missed provision.
  11. The Council should also find a speech and language therapist for F. When this is secured, it should arrange for the therapist to provide F with the extra sessions he has out missed out on since May 2022.
  12. Finally, the Council should make a separate payment to Miss D to reflect her distress, frustration and time and trouble.

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Agreed action

  1. To address the injustice caused by fault, by 23 September 2022 the Council has agreed to:
  • Apologise to Miss D.
  • Pay Miss D £2,900 to reflect the missed education and provision. We recommend Miss D uses this payment for F’s educational benefit.
  • Pay Miss D £250 to reflect her distress, frustration and time and trouble.
  1. By 21 October 2022:
  • Find a speech and language therapist for F. When this is secured, it should arrange for the therapist to provide F with the extra sessions he has missed out on since May 2022.
  • Liaise with F’s school to ensure he is allocated a learning mentor as per his EHC plan.

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Final decision

  1. There was fault by the Council, which caused Miss D and F an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

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Parts of the complaint that I did not investigate

  1. The Ombudsman cannot investigate late complaints unless there are good reasons to do so. Late complaints are when someone takes more than 12 months to complain to us about something has done. Miss D refers to events from 2019, but she did not refer her complaint to us until October 2021. I have seen no good reasons why Miss D did not the earlier events to us sooner, and so I have not exercised discretion to investigate them. My investigation focuses on events from October 2020 onwards.
  2. Miss D exercised her right to appeal to the SEND Tribunal about the content and the educational setting listed in F’s EHC plan. The courts have said where the period out of education coincides with an appeal about an EHC plan and there is a link between them, the period from the date on which the appeal right arises until the appeal is heard is outside the Ombudsman’s jurisdiction. Therefore, the Council’s actions regarding F’s education and specialist provision from 4 June 2021 to 4 January 2022 are outside of the Ombudsman’s jurisdiction.

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Investigator's decision on behalf of the Ombudsman

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