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East Sussex County Council (21 012 872)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 31 Mar 2022

The Ombudsman's final decision:

Summary: Mrs B complains the Council have not made education and special educational needs provision for her son. The Council is at fault because there were delays to C’s educational provision in his EHCP being made. The Council has agreed to apologise to Mrs B and pay Mrs B £900.

The complaint

  1. The complainant, whom, I shall refer to as Mrs B, complains that following a SENDIST tribunal decision the Council did not provide an updated Education Health and Care Plan (EHCP) for her son C in the correct time and has not provided education and special education needs provision for C.
  2. Mrs B says C is missing education provision as stated in his EHCP.

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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 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)
  4. 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 about her complaint and considered documents she provided. I made enquiries of the Council and considered its response and the supporting documents it provided.
  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, guidance and policies

  1. Where a Tribunal makes an order requiring a Council to take action to amend the special educational provision specified in an EHCP, the local authority shall issue the amended EHCP within five weeks of the order being made. Special Educational Needs and Disability Regulations 2014 s44(2)(e)
  2. The council has a duty to secure the specified special educational provision in an EHCP 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)

What happened?

  1. C has extremely complex learning and medical needs. He has a diagnosis of Glass Syndrome. Global Developmental Delay, Hypertonia, Epilepsy and significant Speech and Language delay. He also has severe sleep disturbance, severe daytime irritability and frequent self-harming behaviours, and delayed motor skills. He is PEG-fed and has a tumour that affects his eyesight, hearing, and mobility.
  2. The Council has issued an EHCP for C. Mrs B appealed to Tribunal about the content of C’s EHCP and his placement. The Tribunal decided that C should attend School A in October 2021.
  3. The Council produced C’s amended EHCP in December 2021, naming School A.
  4. School A were unable to immediately make the provision C needed and it would have to recruit and train staff in order to do this.
  5. A start date for C was agreed at the beginning of February. There were delays to this and C attended School A from the end of February 2022.

Analysis

Updated EHCP

  1. The Tribunal decision covered both the educational placement and the special educational needs provision. The Tribunal’s decision was issued on 12 November 2021. The Council issued C’s updated EHCP on 15 December 2021. The Council therefore took under five weeks to issue C’s amended EHCP. This is not fault by the Council.

Educational provision

  1. C should have received the education provision in his updated EHCP from 4 January 2022. C attended School A from 23 February 2022.
  2. The Council says it organised taster days and part-time transition sessions ahead of C’s planned start date, such that suitable alternative arrangements were in place. It also says it did not make alternative provision because by the time it started C would also be transitioning into the school. It did not consider this was in C’s interests to develop relationships with interim tuition staff as well as staff at the school.
  3. Taster days were unable to be delivered due to Mrs B having to self isolate as a result of COVID-19. There is no evidence of additional part-time transition sessions being delivered.
  4. The initial delay to C attending School A was due to School A not having trained staff available to deliver C’s provision.
  5. The further delay to C attending School A was due to School A being significantly impacted by COVID-19 staff related absence, including of the staff due to be trained to support C’s feeding via his PEG.
  6. The Council accepts there was a five week delay in C starting school. The delay to C was from 4 January 2022 to 23 February 2022, a total of six weeks, when taking account of school holidays.
  7. Although the Council had no control over the factors that caused the delays, C did not receive the education specified in his EHCP for a period of time. This is fault by the Council. C missed six weeks education.
  8. I have considered the impact of this on C according to the Ombudsman’s Guidance on Remedies.

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Agreed action

  1. To remedy the injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this decision:
    • Apologise to Mrs B; and
    • Pay Mrs B £900 in respect of C’s missed provision.

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Final decision

  1. I have found fault by the Council, which caused injustice to Mrs B. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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