Dudley Metropolitan Borough Council (22 002 107)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 23 Aug 2022

The Ombudsman's final decision:

Summary: Mrs X complains the Council failed to provide her child with the support in their Education, Health and Care Plan for three years. This meant they missed support and educational opportunities. The Ombudsman find fault with the Council for failing to provide the agreed support and for failing to consider the impact on Child Y and Mrs X. The Council has agreed to pay a financial remedy, immediate action plan and service improvements.

The complaint

  1. Mrs X complains the Council has failed to provide education EHCP support for her son for over three years.
  2. Mrs X complains this means her son has significantly missed learning, and that she has had to provide education for him.
  3. Mrs X also complains about the Councils handling of her complaint.

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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. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
  4. 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 Mrs X’s complaint and information she provided. I also considered information from the Council.
  2. I considered comments from Mrs X and the Council on a draft of my 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. Legislation and guidance

Provision of alternative education

  1. Section 19 of the Education Act 1996 (the Act) says each local authority will make arrangements for the provision of suitable education at 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 such arrangements are made for them. The Act goes on to say suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he or she may have.
  2. Government guidance makes clear that where a council knows a child is not receiving suitable full-time education, or not receiving the number of hours they could benefit from education, it should step in to arrange provision.
  3. We have issued guidance to councils on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time.
  4. Councils should:
  • 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;
  • choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education;
  • keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
  • adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
  • put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

Education, Health and Care Plans

  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.

What happened

  1. Mrs X has a child, Child Y, with several disabilities and special educational needs.
  2. The Council assessed Child Y for an EHCP in 2018. It issued an initial EHCP in August 2019. The initial EHCP set out provision that Child Y was to access in school. and Mrs X challenged the EHCP at tribunal in February 2020.
  3. Following the tribunal, the Council issued a final EHCP in August 2020. This EHCP set out the Council had not been able to find a school for Child Y. It also set out that Child Y’s provision should from then on be delivered through Education otherwise than at school programme (EOTAS). This included tuition, specialist groups, equipment, and support from several professional agencies.
  4. Mrs X complained to the Council in April 2021 that Child Y had not been receiving provision.
  5. The Council’s first complaint response to Mrs X upheld that Child Y had not been receiving suitable education or support since the tribunal in 2020. It accepted that it had not done enough to provide Child Y with the EHCP support. However, it did not propose how to progress the situation and how it would meet Child Y’s needs.
  6. The Council also said it would not consider Mrs X’s request for repayment of the education she had provided to Child Y under the complaints process. The Council referred it to the SEND team who had refused her request. It gave no clear rationale for this refusal.
  7. Mrs X remained unhappy with the Council’s response and bought her complaint to the Ombudsman.

Analysis

  1. In its complaint response, the Council accepted that it has not provided Child Y with the support set out in the EHCP. This means that Child Y has been without the provision agreed by the tribunal since February 2020.
  2. Child Y remains out of education and without Council arranged provision to this day. This is fault by the Council which has caused Child Y to miss out on significant learning and opportunities.
  3. It is unacceptable that the Council recognised it had not met its duty since the tribunal and has failed to provide the agreed provision. It then failed to consider the impact this is having on Child Y and his family, who are trying to meet his needs in the interim.
  4. Child Y should have been preparing to transition to secondary school, however, because of the Council’s failure to provide the agreed support, Child Y will not have received the opportunity to prepare for this. This has caused Child Y and his family further injustice.

Complaint handling

  1. The Council upheld Mrs X’s complaint that it had not provided Child Y with the agreed provision. However, it refused to consider her request for a financial remedy through the complaints procedure and referred it to the SEND team who declined the request without providing a clear rationale.
  2. The Ombudsman expects Council’s to consider suitable remedies when it identifies fault during the complaints process. The Ombudsman has published a guidance on remedies which it expects Council’s to refer to when considering suitable remedies.
  3. In this case, the Council refused to consider a suitable remedy for Child Y, and failed to set out how it would address the fault going forward.
  4. This was fault by the Council which has caused further distress to Mrs X. If the Council had addressed the impact, it is likely Child Y would now be receiving provision.

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Agreed action

  1. Within 4 weeks of my final decision the Council has agreed to
  • Write to Mrs X and apologise for the fault identified.
  • Pay Child Y £10,500. This is calculated as £500 per month for 21 months, which is the time Child Y has been without provision since August 2019. I have not included school holidays in my calculation as Child Y would not have been receiving provision then.
  • Pay Mrs X £1000 for the distress caused to her by having to arrange and provide education and provision for Child Y. This impacted her personal relationships and wellbeing.
  • Provide evidence it is taking action to meet the provision set out in Child Y’s EHCP. This should include a timeline for when it expects to be able to provide the full provision in Child Y’s EHCP, and any immediate support it will be putting in place.
  1. Within 12 weeks the Council has agreed to
  • Review how it will ensure that children who have an EHCP with EOTAS provision are receiving their provision. This should include a specific review of Child Y’s case. The learning from the review should be disseminated to front line staff and other professional agencies that may be working with these children.
  • The Council should also complete a full audit of any other children who have an EHCP where the provision includes EOTAS. The Council should provide the Ombudsman with evidence of how it has audited this, and a breakdown of any further action it will be taken if any are identified.

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Final decision

  1. I have now completed my investigation. I find fault with the Council for failing to provide Child Y with the provision in their EHCP. I also find fault with the Council for failing to remedy the impact on Child Y and his family.

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Parts of the complaint that I did not investigate

EHCP in 2019

  1. Child Y’s first EHCP set out the provision the Council felt he should be receiving. The Council decided that Child Y’s provision should be delivered in school. This was a decision the Council was entitled to make after assessing Child Y.
  2. Mrs X challenged the provision at tribunal. Part of the appeal was that Child Y could not access the type of provision as they could not access school. This was a challenge to the placement and provision the Council had decided Child Y should have. Part of Mrs X’s complaint is that Child Y did not receive provision between the first EHCP and the tribunal. As the provision and placement were challenged at tribunal, the Ombudsman cannot consider these matters. Therefore, this part of Mrs X’s complaint is out of jurisdiction.

Events in 2018

  1. Part of Mrs X’s complaint to the Council was about the period in 2018 where Child Y was out of school prior to having an EHCP.
  2. The Ombudsman does not usually consider issues which have not been raised within 12 months of them occurring. In this case, the Ombudsman has exercised discretion to consider issues dating back to the EHCP issued after the tribunal.
  3. The events between the first EHCP and the tribunal remain out of the Ombudsman’s jurisdiction for the reasons explained above. I have seen no good reason why Mrs X could not have complained to the Council and the Ombudsman sooner about the events in 2018.

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Investigator's decision on behalf of the Ombudsman

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