Dorset Council (21 015 318)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 23 Jun 2022

The Ombudsman's final decision:

Summary: The Council was at fault for delaying both the production of a child’s education, health and care plan, and also the arrangement of alternative provision while she could not attend school. Although the Council has already recognised both points of fault, it should now offer a financial remedy for the injustice this created.

The complaint

  1. I will refer to the complainant as Ms F.
  2. Ms F complains the Council delayed producing a new education, health and care (EHC) plan for her daughter, after Ms F requested her needs be re-assessed in May 2021. Ms F also complains the Council failed to arrange alternative provision for her daughter after she stopped attending school in November, which also meant she was not receiving the additional elements set out in her EHC plan.
  3. Ms F also complains the Council did not review the existing EHC plan when this became due in September 2021.

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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 question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  3. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (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. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)

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How I considered this complaint

  1. I reviewed chronologies of the key events, compiled by both the Council and Ms F, along with W’s current and previous EHC plans, Ms F’s correspondence with the Council, and comments the Council made in response to my enquiries.
  2. I also shared a draft copy of this decision with each party for their comments.

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What I found

  1. The following chronology will give a summary of the key events relevant to this complaint, but it is not intended to provide every detail of what happened. In particular, I will omit references to elements of Ms F’s complaint which are outside the Ombudsman’s jurisdiction (and which I will discuss in more detail later).
  2. I will refer to Ms F’s daughter as W. W has been diagnosed with autistic spectrum disorder, which causes significant developmental and behavioural problems.
  3. On 1 June 2021, at Ms F’s request, the Council agreed to undertake a re-assessment of W’s existing EHC plan. At this point, the EHC plan named a mainstream school as W's educational placement.
  4. The Council issued a draft revised EHC plan on either 16 or 19 August (the information I have received from the Council refers variously to both dates). The plan did not, at this point, name an educational placement for W. In sending it to Ms F, the Council explained it intended they should “work on [it] together”.
  5. Ms F then submitted a complaint to the Council. She said the draft plan was incoherent, unclear, and did not follow the format set out by the Special Educational Need and Disability (SEND) Code of Practice. Ms F also complained the plan was informed by a report from an educational psychologist (EP) which included inappropriate comments.
  6. On 26 August, Ms F says she commissioned a private EP to produce a report on W, because of the inadequacy of the Council’s report. The Council says she sought an extension to comment on the draft EHC plan on 27 August.
  7. On 2 September, a Council officer suggested W may need a placement in a specialist school. The following day, W was diagnosed with autistic spectrum disorder.
  8. The Council responded to Ms F’s complaint on 15 September. It accepted the draft EHC plan lacked specificity and said it would take steps to address this.
  9. On 2 November, Ms F informed the Council that W was now refusing to attend school because of anxiety. On the same date, the Council sent out consultations to various schools in the area, including several specialist SEN and autism establishments.
  10. On 25 November the Council received responses to its consultations from two schools. School A said it could not offer a placement now, and invited the Council to send a new consultation for a September 2022 start. School B offered to carry out an assessment.
  11. Then, on 14 December, School A said it could offer W a place from April 2022.
  12. On 20 December, the Council referred W to its brokerage service to arrange alternative educational provision.
  13. On 23 December, following another complaint from Ms F, the Council sent a further response.
  14. The Council acknowledged W had not been attending school “since October”. It said it understood the school felt it could meet W’s needs, and that Ms F’s disagreement on this point had contributed to the delay in finalising the EHC plan. However, the Council said it agreed W needed a specialist placement, and noted one had now been agreed at School A.
  15. The Council acknowledged this meant it needed to make arrangements for alternative provision for W, while she was waiting to start at School A, and confirmed this was now underway.
  16. The Council also accepted Ms F’s reiterated criticism that W’s EHC plan was overlong and unspecific. It criticised itself for attempting to rely on a ‘working document’, causing delay, and acknowledged Ms F would have been able to appeal the plan had the Council completed it on time. The Council also accepted its EHC plan template was poor, and confirmed it was currently reviewing the template.
  17. On 19 January, Ms F made a complaint to the Ombudsman.
  18. On 20 January 2022, the Council agreed to fund a particular alternative provider.
  19. The Council sent Ms F a third response to her complaint on 28 January.
  20. The Council confirmed it accepted it was at fault for the quality of the EHC plan, saying “[its] work was not to standard” it expected. It acknowledged its handling had allowed the matter to drift and become delayed, including both in the securing of a specialist placement for W and in arranging her alternative provision.
  21. The Council said it intended to learn lessons from Ms F’s complaint, and provided her with a copy of its action plan for making improvements. It also said Ms F could approach the Ombudsman if she wished to pursue her complaint further.
  22. On 31 January, the Council issued W’s final revised EHC plan, naming School B as her placement, to start in April. The Council asked School B to carry out a further review of the plan during the summer term, to consider how W was getting on there, and to seek to rationalise the outcomes set out in the plan.
  23. W started at School B on 25 April.

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Legislative background

Education, health and care plans

  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. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
  2. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
  3. 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.
  4. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply).

Children out of school because of medical needs

  1. Section 19 of the Education Act 1996 (‘s19’) says “councils must make arrangements for the provision of suitable education at a 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 arrangements are made for them”.
  2. Councils should provide suitable full-time education (or as much education as the child’s health condition allows) as soon as it is clear the child will be away from school for 15 days or more and make every effort to minimise the disruption to a child’s education.
  3. The Children, Schools and Families Act 2010 clarified that this should be full-time or part-time education if considered in the child’s best interests.
  4. Government statutory guidance of January 2013 ‘Ensuring a good education for children who cannot attend school because of health needs’ states that councils are responsible for arranging suitable full-time education for children who because of illness would not receive education. This applies whether the child is on the roll of a school and whatever the type of school the child attends.
  5. The 2013 Guidance says that 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.

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Analysis

  1. There are two broad elements to Ms F’s complaint: that the Council delayed completing W’s re-assessed EHC plan, and that it failed to arrange suitable alternative provision during the period she was not attending school. I will address each point in turn.
  2. First, however, I must explain several important points about the Ombudsman’s role and jurisdiction.
  3. The Ombudsman’s role is to review how councils have made decision. We may criticise a council if, for example, it has not followed an appropriate procedure, not taken account of relevant information, or failed to explain why it has made a decision. We may also criticise a council for general administrative failures, such as unnecessary delay.
  4. However, we do not provide a right of appeal against council decisions: we cannot reconsider or overturn them, or substitute council officers’ judgement for our own. If a council has made a decision properly, then we cannot criticise it, no matter how strongly someone disagrees with that decision. We do not uphold complaints simply because someone feels a council should have done something differently.
  5. Further to this, the law says we should generally not investigate complaints, where the complainant has or had a right of appeal against the decision in question. This can include a right of appeal to a court, or to a statutory tribunal.
  6. In this case, Ms F has raised a range of points she disagrees with about the content of W’s EHC plan; in particular, that the educational outcomes are unclear and non-specific. However, there is a right of appeal to the SEND Tribunal on precisely this. This is, therefore, something we should not investigate – although I am conscious Ms F’s right of appeal to the Tribunal was delayed here, which is a point I will consider presently.
  7. The law also directs the Ombudsman not to investigate any matter which is closely linked to a matter which either has been, or could be, put to Tribunal. Ms F has also complained about the educational psychologist (EP) report the Council obtained in drafting the EHC plan. However, the Council used this report to inform the educational content of the plan, and so, again, I cannot investigate this due to Ms F’s right of appeal.
  8. At several points in her complaint, Ms F also raises issues about W’s (mainstream) school’s. The law excludes from investigating any complaint about schools (except, in some cases, admissions and exclusions), and so this is not a point we can consider.
  9. I will now turn to Ms F’s eligible points of complaint.

The Council delayed completing W’s revised EHC plan

  1. The SEND Code of Practice sets out a series of deadlines for completion of the different phases of producing an EHC plan, but with an overall deadline of 20 weeks.
  2. EHC plans should also be subject to annual review, with another set of deadlines for completing this process. However, in this case the Council was not reviewing the plan, but re-assessing W. And so, as I understand it, although W already had an EHC plan, the ‘full’ timescale applied here, rather than the ‘review’ timescale.
  3. The Council agreed to re-assess W on 1 June 2021. By my calculation, this meant it had until 19 October 2021 to issue the final plan. Instead, it issued the plan on 31 January 2022, which was just short of 15 weeks late. This, evidently, represents a significant delay.
  4. The Council has accepted it was at fault here, acknowledging it allowed the matter to drift and become delayed. In particular, it has criticised itself for attempting to rely on a ‘working document’ – by this, I understand it means it issued a draft plan it knew was unfinished, with the intention of working with Ms F and other relevant parties to complete it. The Council has said it did this with the intention of meeting the statutory deadline.
  5. I share the Council’s criticism of this practice. While I appreciate the Council’s desire to meet the deadline, this in fact appears to have been counter-productive, leading to the deadline being missed by a substantial margin, while discussions and consultations continued to take place.
  6. It is more difficult to decide what injustice this may have caused to Ms F and to W.
  7. For our purposes, the critical issue here is that, when a final EHC plan is issued, it triggers a right of appeal to the Tribunal about its content. Therefore, in delaying the issue of the plan, the Council also delayed Ms F’s right of appeal.
  8. But I cannot see that this, in itself, made a significant difference to the situation here. For example, by the time the plan was issued, the Council had obtained a special school placement for W – and so any appeal Ms F may have earlier wished to make on this point was now academic anyway.
  9. And I am particularly conscious that Ms F did not make an appeal about any other aspect of the plan either, even once she had that right. So I am not persuaded the delay in her appeal right was of any particular consequence here.
  10. This being the case, I am left only with the fact that W was not formally subject to an active, up-to-date EHC plan for some time longer than she should have been. But, again, I have no means to judge the suitability of the plan’s contents – if Ms F’s felt it was unsuitable or inappropriate, this was something she had the right of appeal about.
  11. Taking this together, therefore, I consider the injustice here is limited to the frustration Ms F felt because of the delay. She has clearly expressed this and so I am satisfied it is appropriate for the Council to provide a modest remedy for it. I will consider this further later in this statement.
  12. As a separate point, Ms F also complains the Council failed to undertake a review of W’s pre-existing EHC plan, when this was due in September 2021.
  13. I do not consider there is any significance to this though. Even if the Council should, technically, have reviewed the existing plan, as far as I can see this would have been an entirely redundant exercise, given it was in the process of drawing up a new plan which would have superseded the existing one anyway. I do not see what possible benefit reviewing the old plan could have brought; in fact, it seems more likely it would simply have caused further delay to the new plan. As there is no reason to think this caused any injustice, I will therefore not consider it any further.
  14. I find fault causing injustice in the element of Miss F’s complaint concerning the delay in the new EHC plan. I have discontinued my investigation of her complaint that the Council did not review the pre-existing plan, as there is no injustice arising from this.

The Council’s failure to arrange suitable alternative provision

  1. The law says that, where a child is unable to attend their normal place of education, councils have a duty to arrange alternative provision, beginning no later than the 15th day of absence.
  2. W stopped attending school on 2 November 2021 (and I note the Council was aware of this at the time). By my calculation, therefore, it should have arranged alternative provision to begin by 22 November at the latest. However, the Council’s records show it did not begin to make arrangements until 20 December, and did not secure a provider until 20 January, at which point it agreed to fund 15 hours of provision per week for W. Ms F’s records show W’s first visit to the provider was on 4 February.
  3. Taking account of the intervening Christmas holiday, this means W was without any education at all for approximately 10 (school) weeks, with the Council having had a duty to arrange alternative provision for at least seven of those weeks.
  4. This is fault, and I consider this caused an obvious injustice both to W, in her missed education, and to Ms F, in the added time and distress it imposed on her. The Council should offer a further remedy for this, which I will again consider further later in this statement.
  5. Ms F also says that, even once the alternative provision started, W did not receive the full set of hours the Council was funding. She also complains that the elements of W’s EHC plan – such as speech and language therapy (SALT) – were not provided during this period.
  6. Having now reviewed the full series of complaint responses from the Council, it has become clear to me Ms F did not raise this issue in her complaint to the Council, and in fact I note her complaint to the Ombudsman predated the beginning of the alternative provision placement. This means this element of Ms F’s complaint is premature, and I cannot currently investigate it. Ms F will need to make a new complaint to the Council first, if she wishes to pursue this issue.
  7. I find fault causing injustice in the element of Ms F’s complaint concerning the Council’s failure to arrange alternative provision. I have discontinued my investigation of her complaint about the quantity and quality of the provision once it began, because it is premature.

Conclusions and remedy

  1. The Council did not issue W’s re-assessed EHC plan on time, which is fault. I cannot say this caused any substantive consequence, but I accept it caused Ms F frustration, which is an injustice. I consider the Council should offer her £200 to reflect this.
  2. The Council also missed the statutory deadline to arrange alternative provision for W, with it only beginning seven school weeks later.
  3. The Ombudsman’s Guidance on Remedies says:

“Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £200 and £600 a month to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as … the child’s SEN [and] whether additional provision now can remedy some or all of the loss.”

  1. There is an aggravating feature here, in that W has well-documented SEN. However, she is also now attending a specialist school full-time, and so I consider this presents less of a practical opportunity to arrange additional provision for her, the purchase of which is partly the reason we recommend financial remedy in this situation.
  2. Taking these points together, I consider the Council offer Ms F £700 to account for W’s period of missed education. This is £400 per month for 1¾ months (approximately seven weeks).
  3. I also consider the Council should offer Ms F a further £300 to reflect her own distress and frustration arising from this failure.
  4. This makes a total of £1200 in remedy.
  5. Ms F also considers the Council should reimburse her for the costs of the private EP, and of the SEN advocate, she commissioned to help her, and for leave she took from work during this time.
  6. I do not consider I can investigate the matter of the private EP. This is because it is too closely linked to quality of the Council’s EP report; that is, in order to determine whether Council fault meant Ms F had to hire a private EP, I would first have to make a judgement on the quality of the Council report. I cannot do this because the Council used the report to inform the contents of the EHC plan, which is a matter for the Tribunal.
  7. I also do not consider I have grounds to recommend the Council reimburse Ms F for the cost of the advocate. We frequently receive very similar complaints to that Ms F has raised, and we do not normally find that complainants feel the need to hire a private advocate to help them navigate the process.
  8. This is not to say I do not appreciate why Ms F wished to use a private advocate, which of course was her prerogative. But I do not consider it reasonable to require the Council to pay for this service.
  9. And, last, I do not consider I can recommend the Council offer any form of remedy for the fact Ms F took leave from work. This is because we can only recommend the Council remedy injustice which is the direct result of its administrative fault. I could not make an objective finding that Ms F took leave from work only because of the Council’s failings.

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Agreed action

  1. Within one month of the date of my final decision, the Council has agreed to offer Ms F £1200 to reflect W’s loss of education, and Ms F’s distress and frustration at the delay in producing her EHC plan and in arranging alternative provision.

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Final decision

  1. I have completed my investigation with a finding of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman

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