Kirklees Metropolitan Borough Council (22 003 031)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 27 Mar 2023

The Ombudsman's final decision:

Summary: Miss X complained about a lack of support for her son, Mr Y’s, special educational needs. There was fault in how the Council reviewed Mr Y’s Education Health and Care plan and failed to arrange suitable alternative education after he was permanently excluded from school. The Council agreed to pay an improved financial remedy, review its practices and share learning from this complaint.

The complaint

  1. Miss X complains about a lack of support for her son, Mr Y’s, special educational needs since 2001, including that the Council:
    • failed to provide a suitable education when Mr Y was excluded from school in May 2021;
    • took too long to review Mr Y’s Education Health and Care plan after his school placement broke down;
    • gave her wrong advice about how much Mr Y could work while still of school age; and
    • failed to reimburse her for travel costs when it did provide some part-time education for Mr Y.
  2. Miss X says this resulted in Mr Y missing out on education, a serious impact on his wellbeing and significant distress for Mr Y and his parents. She wants the Council to properly recognise the impact on Mr Y and his family, improve its practices and make changes to its staff.

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What I have and have not investigated

  1. I have investigated what the Council did after a review of Mr Y’s Education Health and Care plan in November 2020.
  2. I have not considered what the Council did before this. The law says 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. For events before September 2020, I am satisfied Miss X could have complained to the Ombudsman sooner and there are no good reasons to consider earlier events now.
  4. I have also not investigated the actions of other agencies, such as the police or Mr Y’s former school. We cannot investigate a complaint if it is about action taken by or on behalf of any local policing body in connection with the investigation or prevention of crime and we cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraphs 2 and 5(2), as amended)

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
  3. We may investigate a complaint on behalf of someone who cannot authorise someone to act for them. The complaint may be made by someone we consider to be suitable. (Local Government Act 1974, section 26A(2), as amended)
  4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  5. 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)
  6. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply (Local Government Act 1974, section 26(5))
  7. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. 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)
  8. 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.
  9. We cannot investigate a complaint if it is about action taken by or on behalf of any local policing body in connection with the investigation or prevention of crime. (Local Government Act 1974, Schedule 5, Section 26, paragraph 2 as amended)
  10. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
  11. 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:
    • the information Miss X provided in her complaint;
    • the Council’s comments on the complaint and the supporting information it provided; and
    • relevant law and guidance.
  2. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final 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

Education health and care plans

  1. A child with special educational needs (SEN) 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. 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. As part of an assessment for an EHC plan councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes:
    • the child’s education placement;
    • medical advice and information from health care professionals involved with the child;
    • psychological advice and information from an Educational Psychologist (EP);
    • social care advice and information;
    • advice and information from any person requested by the parent or young person, where the council considers it reasonable; and
    • any other advice and information the council considers appropriate for a satisfactory assessment.
  3. The council should consider with the child’s parent and the parties listed the range of advice required to enable a full EHC needs assessment to take place. (The Code 9.47)
  4. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
    • Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
    • Where a council proposes to amend an EHC plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
    • The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
    • Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
    • Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.
  5. In addition to reviewing an EHC plan, the law also provides for re-assessments of a child or young person’s special educational needs. A re-assessment is very similar to the assessment councils carry out when producing an EHC plan for the first time, and the same rules apply to the information councils must seek. Councils must arrange a re-assessment if a child’s parent or the young person asks it to. A council can also arrange a re-assessment if it decides this is necessary.
  6. 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.

Alternative education provision

  1. 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.
  2. 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)
  3. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. (Out of school… out of mind? How councils can do more to give children out of school a good education, published in 2016)
  4. We made six recommendations. Councils should:
    • consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
    • consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
    • decide, based on all the evidence, whether to require attendance at school 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.

School age working

  1. If a child turns 16 before the start of the next school year, they can leave school on the last Friday in June of the year they turn 16. This is referred to as their school leaving age.
  2. Before reaching school leaving age, a child or young person is not allowed to work:
    • during school hours;
    • for more than one hour before school;
    • more than 12 hours a week during term time;
    • more than two hours on school days or Sundays; and
    • more than eight hours on Saturdays (if over 15 years old).
      (Children and Young Persons Act 1933, section 18)
  3. Between reaching school leaving age and turning 18 years old, young people must:
    • stay in full-time education;
    • start an apprenticeship or traineeship;
    • work or volunteer while in part-time education or training.
      (Education and Skills Act 2008, section 2)

What happened

  1. Miss X’s son, Mr Y, has special educational needs related to his self-esteem as a learner, emotions, social interaction and behaviour. Mr Y has had an EHC plan from the Council since 2017. Before this Mr Y had a statement of special educational needs.
  2. School A, the mainstream secondary school Mr Y attended, reviewed his EHC plan in November 2020. A member of the Council’s SEN team attended the meeting. At the meeting, Miss X asked for more support for Mr Y, since his behaviour at school had resulted in him having several fixed-term exclusions. After the meeting Miss X provided further comments, including asking for an assessment by an educational psychologist and other diagnostic assessments.
  3. The Council sent Miss X a draft amended EHC plan in mid-April 2021 and suggested that Mr Y continued to attend School A. However, the school contacted the Council to say that the draft amended plan did not set out all the support Mr Y needed and that it did not believe it could meet Mr Y’s needs.
  4. Around a month later, School A permanently excluded Mr Y due to an incident which happened at school.
  5. A few days later, during a meeting between the School, Council and Mr Y’s parents, the School agreed to rescind the exclusion on the basis that the Council would find alternative education for Mr Y. According to notes from the meeting, Mr Y did not want to attend the Council’s usual alternative education provider (School B) but Miss X agreed to alternative provision while the Council sought a longer-term placement for Mr Y.
  6. Around two weeks later, the Council referred Mr Y to School B and also sent a referral to an outdoor education provider to run alongside that provided by School B.
  7. At the end of June 2021, the Council reviewed Mr Y’s alternative education. School B reported that Mr Y was refusing to attend. Miss X says this was because the Council had promised a different placement at the meeting in May and that the current placement said it could not meet Mr Y’s needs. The Council arranged an alternative timetable for Mr Y but this was only for around 4 hours a week.
  8. In September 2021, the Council consulted School B about whether it could offer Mr Y a permanent placement. However, School B said it did not have capacity and could not meet Mr Y’s needs. Miss X says the Council should have consulted School B much earlier and, if it had, Mr Y would have been given a place.
  9. Over the next several months, the Council consulted with other education and training providers. Mr Y wanted to start work as soon as possible, rather than continuing in education. The Council said it tried to co-ordinate a work placement alongside ongoing tuition. However, it said options were limited because Miss X said Mr Y could not travel unless accompanied by a member of his family.
  10. Between February and July 2022, Mr Y received four hours a week tuition at home. This ended in early July 2022 due to an incident at Mr Y’s home. The Council said it suspended tuition while it carried out a risk assessment.
  11. The Council issued a final amended EHC plan at the end of March 2022. This plan specified that Mr Y would receive education otherwise than at school from a personal tutor. However, it did not include specific details about how much education Mr Y would receive.

Miss X’s complaint to the Council

  1. Miss X sent a formal complaint to the Council in September 2021. Following this the Council exchanged emailed with Miss X before it sent a detailed response to her complaint in March 2022.
  2. In its response the Council accepted that:
    • there had been delays in completing the review of Mr Y’s EHC plan;
    • the education it had provided for Mr Y during that time had been unsuitable;
    • it had failed to follow through with some of the actions it agreed to;
    • communication with Miss X had been poor;
    • it had caused distress to Mr Y, Miss X and her family; and
    • it had affected Mr Y’s educational opportunities.
  3. The Council apologised for the failures it accepted and the effect this had, apologised to Miss X and Mr Y. It also offered to pay £1,800 to recognise the education Mr Y missed and £600 for the time and trouble caused to Miss X and Mr Y.
  4. Miss X told the Council she was not satisfied with its response or the proposed remedy. The Council offered to meet Miss X to discuss areas where she felt the Council had not fully understood the impact on Mr Y and his family. It explained to Miss X that it could only discuss and consider matters which it was responsible for, rather than wider issues with Mr Y’s former school. Miss X agreed to the meeting the Council offered.
  5. A few days before the meeting was due to take place, the Council told Miss X it would need to reconsider holding the meeting. It said it was concerned that, based on a recent email from Miss X, she wished the meeting to cover wider issues beyond those the Council was responsible for and might, therefore, be counterproductive.
  6. Following further email exchanges with Miss X, the Council decided in mid-May 2022 that the meeting it agreed to would not likely meet Miss X’s desired outcomes so it cancelled the meeting and suggested Miss X bring her complaint to the Ombudsman, which she did in June 2022.
  7. Since Miss X’s complaint to the Ombudsman, the Council says it has reimbursed her for the travel costs it agreed.

My findings

  1. Based on the explanations Miss X provided and Mr Y’s special educational needs, I am satisfied that Mr Y cannot authorise Miss X to bring a complaint on his behalf. However, I am satisfied that Miss X is a suitable person to make the complaint for Mr Y.

Reviews of Mr Y’s EHC plan

  1. The Council accepted, in its response to Miss X’s complaint, that there were delays in updating and amending Mr Y’s EHC plan following the review in November 2020.
  2. Based on the evidence I am satisfied there were further fault in how the Council reviewed and amended Mr Y’s EHC plan. The Council:
    • failed to begin the amendment process ‘without delay’. It issued the first draft plan following the review meeting after several months and only issued the final plan in March 2022;
    • took too long to consult other permanent education placements for Mr Y. It first did this several months after the review and then took several more months to consult other placements; and
    • failed to consider whether it should have held another review after Mr Y was permanently excluded or whether it should have arranged a more detailed reassessment. Based on the information Miss X shared at the review meeting and the change of circumstances, I am satisfied that the Council had reasons to consider a reassessment.
  3. Mr Y and Miss X experienced very difficult circumstances for a significant period of time, including problems at Mr Y’s school and with other third parties. I can only suggest remedies for any fault caused by the Council’s actions during the period I have investigated; from late 2020 onwards.
  4. Given Mr Y’s longstanding difficulties and behaviour at school, I cannot say that amending Mr Y’s EHC plan sooner would have prevented him being excluded. However, the Council later agreed that Mr Y needed further support so I am satisfied that there is an remaining uncertainty about this and that this justifies a financial remedy.
  5. Similarly, although Miss X believed Mr Y missed out on a permanent place at School B, I cannot say that if the Council had consulted sooner Mr Y would have got a place or that School B would have been able to meet his needs. However, I am satisfied this is a further remaining uncertainty.
  6. I cannot say Mr Y would have returned to a different education provider had the Council properly consulted other placements or done this sooner. The evidence from both Miss X and the Council shows that My Y was reluctant to engage in education and wanted to work instead. However, before August 2022, Mr Y was below school leaving age his ability to work was tightly limited by the law. Mr Y’s reluctance to travel without a member of his family would also have severely limited his education options. That was outside the Council’s control.

Alternative education for Mr Y

  1. After Mr Y was excluded in May 2021, the Council had a duty to provide him with an alternative education from the sixth day following the exclusion.
  2. The evidence shows that, although the Council did take steps to arrange alternative education, it took too long to do this. However, the evidence suggests that Mr Y did not want to attend the placement the Council originally suggested. The minutes of the meeting state that Miss X told the Council this at meeting a few days after his exclusion. In response, the Council reviewed its plans and arranged a different schedule. However, this was only for a small number of hours each week.
  3. While the Council was trying to find a long-term placement for Mr Y, there is no evidence it regularly reviewed the interim education it had arranged or took steps to try to increase this. The Council did not formally decide that full-time education was not in Mr Y’s interests, so it had a duty to provide him with a full-time education. I am satisfied the Council missed opportunities to do this or to explore alternative options while I was finding a longer-term placement. That led to Mr Y missing out on the opportunity to take in part in full-time education for a significant period.
  4. The Council issued a final amended EHC plan at the end of March 2022. That plan said Mr Y should receive Education Otherwise than at School (EOTAS), from a personal tutor. However, the plan did not say how much education Y would receive.
  5. We cannot normally investigate complaints about which something which can be appealed to a tribunal. This includes the content of EHC plans. However, we can do so if we consider there are good reasons why someone did not appeal.
  6. Miss X said March 2022 was the first time EOTAS had been named in Mr Y’s EHC plan. Because of this, she said she did not understand how EOTAS should be described in the plan, or that section F should contain specifics such as how much and what type of education the Council should provide. Having considered why Miss X said she did not appeal the March 2022, I am satisfied there are good reasons for me to consider the education the Council provided after it issued that plan.
  7. The presumption is that all children will receive a full-time education, unless a council decides this is not in their interests. Since the March 2022 did not specify that Mr Y should receive a specific number of hours, the Council had a duty to arrange full-time education or as much education for Mr Y as he could take part in.
  8. However, the evidence shows Mr Y received very little education between when he was excluded in mid-May 2021 and when the tuition the Council had arranged ended in early July 2022. I am satisfied that the missed education during this time was largely caused by failures on the part of the Council.
  9. The Council offered Miss X £1,800 to recognise the education Mr Y missed. I am not satisfied this was a suitable remedy.
  10. 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. Taking into account Mr Y’s age at the time, his special educational needs set out in his EHC plan, the education he did receive and his reluctance to engage in education at the time, I am satisfied a remedy of £300 a month is suitable for the 13 months between June 2021 and June 2022 (inclusive).
  11. I am also satisfied that the failure to provide Mr Y with suitable education during that time caused both Mr Y and Miss X significant avoidable distress, frustration and upset. That justifies a further financial remedy.
  12. Miss X said the Council withdrew this tuition in early July 2022 and did not arrange adequate replacement education after this. These were new events which happened after Miss X complained to the Ombudsman in June 2022. I have not investigated these new events as the law requires the Council have an opportunity to respond to any complaint about this first. I consider it would be reasonable for Miss X to complain to the Council about any issues from July 2022 onwards first.

Communication and complaint handling

  1. The Council has already accepted that its communication with Miss X over the period I have investigated was, at times, poor. This included failing to take actions it agreed to do.
  2. Miss X formally complained to the Council in September 2021 and the Council provided its final response in March 2022. While I recognise that Miss X’s complaint was complex and detailed, I am not satisfied this alone justified the time the Council took to provide Miss X with a final response. Some of the delay was avoidable and this caused Miss X avoidable time and trouble pursing her complaint.
  3. I do not consider the Council was a fault for cancelling the meeting it had arranged with Miss X. While Miss X clearly found this upsetting and frustrating, I am satisfied with the Council’s explanation that it became apparent the meeting it could hold would not meet Miss X’s expectations or wishes. The Council explained to Miss X that it wanted to avoid greater upset if the meeting could not provide the outcomes she or Mr Y wanted.

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Agreed action

  1. Within one month of my final decision the Council will:
    • pay Mr Y £3,900 to recognise the education he missed due to the fault on the part of the Council, intended for his future educational benefit;
    • pay Mr Y and Miss X £500 each to recognise the distress, frustration and uncertainty caused by the delays in reviewing Mr Y’s EHC plan, failure to provide a suitable education and its poor communication with Miss X; and
    • pay Miss X £200 to recognise the avoidable time and trouble caused by delays in the Council’s handling of her complaint.
  2. Within three months of my final decision the Council will:
    • remind its special educational needs staff of the importance of ensuring children and young people receive a suitable education while consulting with longer-term placements;
    • review its approach to reviewing EHC plans following the breakdown of school places to ensure it properly considers whether to conduct an early review or whether to arrange a reassessment;
    • review how it monitors compliance with the statutory timescales for reviewing and issuing EHC plans follow to ensure it identifies and takes appropriate action where cases are taking longer than allowed under the rules;
    • share this decision with all staff in its special educational needs team; and
    • share this decision with the appropriate senior officer and Council member responsible for the Council’s education services.
  3. The Council should provide us with evidence it has complied with the above actions.

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Final decision

  1. I have completed my investigation. There was fault in how the Council reviewed Mr Y’s Education Health and Care plan and failed to arrange suitable alternative education after he was expelled. The Council agree to pay an improved financial remedy, review its practices and share learning from this complaint.

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Investigator's decision on behalf of the Ombudsman

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