Central Bedfordshire Council (22 000 872)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 21 Sep 2022

The Ombudsman's final decision:

Summary: Mr X complained there was delay in completing his son, Y’s, Education, Health and Care plan (EHCP) and in Y starting at a suitable school. Mr X also complained Y has missed out on Speech and Language Therapy (SALT), a personal budget request was delayed, the Council provided inaccurate information to his MP and there was poor communication from the Council. Y has missed out on full time education, therapy and this has caused distress to Mr X. The Council failed to adhere to the statutory timescales of the EHCP process, but this did not impact when Y started at a suitable school. The Council provided inaccurate information to the MP, delayed providing a personal budget, failed to ensure the SALT provision specified in Y’s plan was delivered, and the communication with the Council was difficult.

The complaint

  1. Mr X complained his son, Y’s, Education, Health and Care Plan (EHCP) was delayed. This resulted in a delay in Y starting at a suitable school. Mr X also complained Y has missed out on Speech and Language Therapy (SALT), a personal budget request was delayed, the Council provided inaccurate information to his MP and there has been poor communication from the Council. This has caused Y to miss out on full time education, therapy specified in his EHCP and caused distress to Mr X.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. 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.
  4. 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)
  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 read Mr X’s complaint and spoke to him about it on the phone.
  2. I considered information provided by Mr X and the Council.
  3. Mr X 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

Background information

  1. A child with special educational needs may have an Education, Health and Care plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections.
  2. We can consider the other sections of an EHCP. We do this by checking the Council followed the correct process, and took account of all relevant information, in deciding what to include. If we find fault affected the outcome, we may ask the Council to reconsider. We will not usually substitute our judgement for the judgement of professionals.
  3. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
  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 EHCPs. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:
    • where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;
    • the process of assessing needs and developing EHCPs “must be carried out in a timely manner”. Steps must be completed as soon as practicable;
    • the whole process from the point when an assessment is requested until the final EHCP is issued must take no more than 20 weeks (unless certain specific circumstances apply); and
    • councils must give the child’s parent or the young person 15 days to comment on a draft EHCP.
  5. 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)
  6. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
  7. 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)

What happened

  1. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
  2. Y started attending pre-school in January 2019. In March 2020 the pre-schools Special Educational Needs co-ordinator (SENco) referred Y to the Early Years SEND team requesting support with strategies for developing his communication, interaction and social skills. Y was also seen by the SALT. Y was due to start primary school in September 2021.
  3. The pre-school made a request for an EHCP needs assessment and it was delivered to the Council office by recorded delivery in December 2020. The delivery driver signed for this document as no one was available. The pre-school, followed up on the EHCP request, but the Council could not locate the documents.
  4. The nursery sent a further request in early January 2021. The Council found the original documents, shortly after it received the second request.
  5. The Council decided to proceed with an EHC needs assessment in February 2021. It requested advice from other professionals including education, health and social care. The Council also requested a report from educational psychology (EP). The Council gave the statutory deadline for responses as early April 2021.
  6. The Council missed the 20-week statutory deadline to complete the assessment. The draft plan was further delayed due to not receiving all reports needed to inform the EHCP.
  7. The Council issued the draft EHCP in July 2021. Mr X complained about the delay to the Council. Mr X stated this delay meant the Council did not discuss Y’s case at a panel meeting in July, meaning he would be unable to start school in September. Mr X was very anxious to confirm the arrangements for Y’s education from September.
  8. The Council responded to Mr X at the end of July 2021. The Council apologised for not being able to locate the original request sent in December 2020. The Council used January 2021 as the date it received the request for Y’s EHCP needs assessment. It confirmed although it met the six-week timescale to agree to assess Y, it did not meet the other statutory timescales. Mr X stated if the date used was December 2020, when the initial request was sent, the Council missed all timescales. The Council explained there was delay in receiving an educational psychology report which meant timescales were missed.
  9. The Council advised Mr X, it holds the Local Authority Special School Panel on a half termly basis. The Panel is to decide on educational placements for children and young people with an EHCP. The Panel requires all paperwork to be submitted 10 days before the meeting. A meeting took place in July 2021. The delay in the EHCP process resulted in Y’s case not being presented at this panel, so he could not be granted a place at a specialist school for September 2021. The Council apologised for its poor communication with Mr X.
  10. The Council responded to an email from Mr X’s MP in August 2021 and confirmed the delay in the EHCP was because the EP report was delayed. The response confirmed the consultation with specialist schools was being undertaken outside of the normal process to speed up the process. The last paragraph of the response stated the family had not engaged with the process for mainstream placement. Mr X said this was not true. Mr X explained it was not appropriate to consider mainstream options as Y needed a specialist placement.
  11. The Council issued a final EHCP in August 2021 stating the placement would be a special school but not naming a specific placement. Mr X had a right of appeal when this plan was issued if he wanted to challenge the failure to name a placement. It was reasonable for him not to exercise the right of appeal as a school place was actively being pursued for Y to attend for the upcoming academic year.
  12. The Council considered Y’s case outside the panel process and consulted with special schools. The Council provided evidence of emails with Mr X in September 2021. The emails confirmed a school placement for Y was available for him to start in April 2022. The placement was delayed due to building works at the school, rather than any delay in the application process. Mr X accepted the placement, and home tuition was agreed from September 2021 until April 2022.
  13. Mr X requested a personal budget for SALT and Autism specific support for Y in November 2021. In December Mr X complained the Council had not provided a specialist school as specified in Y’s EHCP, not providing support specified in the plan and failed to provide a suitably trained specialist tutor.
  14. The Council’s SEND resource panel met in January 2022 and did not agree to provide a personal budget. The Council confirmed it needed more information on what the proposed new support would entail.
  15. Mr X complained to the Council in early February there had been continuing problems with the tuition of Y and it had delayed agreeing the personal budget.
  16. The Council agreed to a personal budget in March 2022 to provide SALT for Y. The Council confirmed the personal budget was for one month until Y started at his new school. This totalled eight hours of support.
  17. The Council provided a final response to Mr X’s complaints in March 2022. It confirmed communication had been poor and there had been delays throughout Mr X’s dealings with the Council. It accepted there had been delays in the personal budget request and incorrect information had been passed to the MP about Mr X not engaging with the mainstream school admissions process. The Council did not uphold Mr X’s complaint about other elements. The Council offered its apologies for its failings in this case.
  18. The Council confirmed it had supported Y with the appropriate level of SALT as specified in his EHCP. The Council provided a copy of Y’s EHCP which confirmed termly SALT appointments with a therapist.
  19. Mr X is not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mr X would like the complaint investigating fully, the Council to apologise, make changes so this does not happen in the future and write to the MP to retract the inaccurate information.
  20. In response to my enquiries the Council acknowledged the delays in the EHCP process. It confirmed the initial delay was due to an administrative error in the post room. Due to capacity issues with the educational psychology service, the subsequent timescales were missed. The Council apologised for the delay.
  21. The Council confirmed it had taken steps to increase the capacity of the educational psychology team to try to avoid situations like this in the future.
  22. The Council confirmed it provided home tutors for Y. The Council provided eight hours of home tutoring per week at first with the intention to potentially increase the hours if Y could engage with more. The hours provided in the first term should have been 96 hours, but I have received documentation that confirmed Y only received 34 hours during this period.
  23. The Council provided a different tutor in January 2022 and the hours offered increased to 10 hours each week. The tutor did not provide the full 10 hours per week, but Y was accessing eight hours a week before moving to his new school in April.

My findings

  1. The Council missed statutory timescales in the EHCP process. This has resulted in delay, but this has not led to a delay in Y’s starting at the named placement as there were building works continuing at the school. Mr X accepted the school place on the understanding the placement for Y would start in April 2022 and appropriate support would be provided in the interim.
  2. The Council is responsible for deciding what education is suitable when a child is out of school. Education should be full-time, unless the physical or mental health of the child is such that full-time education would not be in his or her best interests. There is no fixed definition of full-time education, but it should be equivalent to the education they would receive in school. It is recognised that where a child receives one to one tuition, the hours of face-to-face provision could be fewer as the provision is more concentrated.
  3. There is no evidence how the level of tuition was decided, how it was reviewed or if Y could have engaged with more. The Council has clarified the level of tuition is offered on a case-by-case basis, working with the family and tuition providers in accordance with the young person’s needs. This response is appropriate but contradicts an email send to Mr X which state eight hours is a standard amount initially offered.
  4. The evidence the Council provided confirmed it had not provided the hours of tuition agreed from September 2021 to April 2022.
  5. I consider the failure to properly consider and record how it was decided Y should receive eight hours of tuition amounts to fault. As does the failure to review this provision. The Council should review the provision offered regularly to ensure it continues to be appropriate and it is providing a suitable education. Failure to do so amounts to fault and has caused Y an injustice as he may not have received appropriate education for two academic terms.
  6. The Council is correct when it stated the SALT provision in the EHCP provided termly appointments with a therapist. However, the EHCP goes on to specify educational staff support and specific learning environments and this was not provided. The Council delayed offering a personal budget, and when this was discussed, Mr X and Y experienced more delay as the initial request was denied. This is fault and Y did not receive the full SALT provision for two academic terms.
  7. The Council has provided information to a local MP which it now admits is inaccurate. The Council has apologised but should clarify the correct information with the MP. This caused Mr X additional distress.
  8. The Council’s communication with Mr X has been difficult and delayed. The Council admitted fault but offered no remedy. Mr X has been put to time and trouble pursing matters

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Agreed action

  1. To remedy the outstanding injustice caused by the fault I have identified, the Council should take the following action within 4 weeks of the decision:
    • Apologise to Mr X for delays in the EHCP process, providing incorrect information to the MP, not ensuring the SALT provision specified in the EHCP was provided, delayed when considering the request for a personal budget and not ensuring appropriate level of home tuition was provided.
    • Pay Mr X £250 as an acknowledgement of the time and trouble this has caused him in pursuing this complaint.
    • Pay Mr X £700 to acknowledge the impact on Y not receiving the SALT specified in his EHCP for two terms. The money should be used for Y’s benefit.
    • Pay Mr X £550 to acknowledge the impact on Y not receiving the specified hours of home tuition and not appropriately considering or reviewing the level of education offered. The money should be used for Y’s benefit.
    • Write to the MP to clarify the information the Council has acknowledged was incorrect.
    • Remind its staff about ensuring the best interests of a child are considered and met when the level of alternative provision is agreed and arranged.
  2. The Council should take the following actions within three months of my final decision:
    • Review its alternative provision policy to ensure decisions about the level of provision are clearly and accurately recorded. The record should confirm all relevant factors which have been taken into account and how the provision arranged meets the best interest of the child.
  3. The Council should provide evidence of the actions taken to satisfy the recommendations.

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Final decision

  1. I have completed my investigation. I have found fault by the Council, which caused injustice to Mr X and Y.

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Investigator's decision on behalf of the Ombudsman

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