St Helens Metropolitan Borough Council (23 017 854)
The Ombudsman's final decision:
Summary: Mrs X complained the Council failed to arrange suitable full-time education for her child, W, after they stopped attending school, and that it took too long to find another school for W. The Council was at fault for failing to secure the special educational provision in W’s Education, Health and Care (EHC) Plan for over a year. It was also at fault for delay issuing an amended version of W’s EHC Plan and for delay seeking a new school place for W. This meant W missed out on education they were entitled to, and Mrs X experienced undue frustration, upset and stress. To remedy their injustice, the Council will apologise to Mrs X, pay her £7,825 and take action to prevent similar fault in the future.
The complaint
- Mrs X complained the Council took too long to find a new school for her child, W, after they stopped attending their current school in December 2022. Mrs X also complained the Council did not put alternative provision in place for W while he was not in school.
- Mrs X said the Council’s actions damaged W’s wellbeing and caused her significant stress and worry.
The Ombudsman’s role and powers
- 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
- 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)
- Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
How I considered this complaint
- I have considered:
- all the information Mrs X provided and discussed the complaint with her;
- the Council’s comments about the complaint and the supporting documents it provided; and
- the relevant law and guidance and the Ombudsman's guidance on remedies.
- Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Relevant law and guidance
Education, Health and Care Plans
- A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them.
- The EHC Plan is set out in sections which include:
- Section F: The special educational provision needed by the child or the young person.
- Section I: The name and/or type of educational placement
Annual reviews
- The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. Annual reviews are made up of two parts. The first stage is the review meeting, which is usually organised by the child or young person’s school or college on behalf of the council. Following the meeting, the school or college sends the council the review paperwork to the council. The second stage of the annual review is the council’s decision notice. Within four weeks of the meeting, the council must tell the child or young person’s parent (or the young person themselves) whether it has decided 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 (an amendment 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). It must do so ‘without delay’.
- 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 existing EHC Plan and amendment notice to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
- Caselaw has established that when councils are amending an EHC Plan, they should take no longer than 12 weeks from the date of the annual review meeting to the date it issues the final amended Plan.
Special educational provision
- The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)
- We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to:
- check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement;
- check the provision at least annually during the EHC review process; and
- quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.
What happened
- Mrs X’s child, W, has needs significantly impacting their mental health and emotional wellbeing. W experiences high levels of stress and anxiety in school settings. In September 2022, they began attending a mainstream secondary school (school A). The Council issued W an EHC Plan in late October 2022. The Plan included the following provision.
- a personalised maths curriculum including extra teaching daily;
- extra help in English and maths lessons;
- several strategies to help W manage their anxiety in school. This included support to improve their self confidence as a learner, to identify and address causes of stress in school and develop beneficial friendships;
- interventions to develop W’s emotional understanding; and
- one to one support twice a week for 45 minutes to help W de-stress and engage with others.
- W struggled to attend school daily during the autumn term.
- In November 2022, the Council began an Early Help assessment tool (EHAT). It asked school A to lead the assessment. Early Help assessments explore what support a family needs to help children succeed and results in a support plan being drawn up. As part of the assessment, school A asked Mrs X if she would agree to a Family Action Meeting (FAM) where all services involved with the family meet to agree what to do next. Mrs X refused the FAM.
- In January 2023, W refused to return to school.
- The Council held an early annual review in late February 2023. The meeting heard:
- school A had tried multiple strategies to engage W in education but had not been successful because of their distress at being in school.
- W was not attending school at all; and
- school A did not feel it could meet W’s needs and that W needed a smaller quieter school.
- The Council issued its decision to amend W’s EHC Plan in mid-April 2023 and consulted with one school to see if it could offer W a place.
- In late April, the Council told school A it could not see evidence it had provided support in line with the EHAT support plan. It asked school A to ask Mrs X to consent to a FAM again. After a further chase from the Council, school A sought and obtained Mrs X’s consent to a FAM.
- The Council consulted with five schools in early May. One of the schools said it may be able to accept W but after a visit in early June, Mrs X said she did not think it was suitable for W because they were terrified during the visit. Another told the Council it could not meet W’s needs after a visit in September.
- In July 2023, school A held the FAM. Minutes of the meeting note school A said the Council “have no suggestions” for W and that W’s needs had escalated to the point they were reliant on Mrs X and W’s father to carry out personal care.
- In December 2023, the Council contacted four more schools. It consulted two schools in January 2024 and two in February.
- One of the schools the Council consulted with in February (school B) said it had a space for W. Mrs X agreed the school was suitable and in late April 2024 the Council issued W’s amended EHC Plan. It named school B, which W is due to start attending in September 2024.
- I asked the Council why it had not issued W’s amended EHC Plan until late April 2024. It said it could not issue the Plan until it had found a new school for W.
- The Council told me the only education W received in the period I have investigated was homework from school A.
Findings
Special educational provision
- The Council owes W the duty to secure the special educational provision in their EHC Plan. It initially did this by naming school A in W’s Plan. By February 2023, the Council heard W had stopped attending entirely and was not receiving any education, even though school A had tried several strategies to help them attend. The Council reviewed W’s EHC Plan, which was the appropriate action to take and concluded it needed to find W a new school place. However, while that process was ongoing, it took little action to ensure W received the special educational provision in their EHC Plan.
- The Council could have reasonably asked school A to try further methods to help W return to schooling and therefore receive the special educational provision in their EHC Plan. However, it should have done this without delay and been prepared to act promptly if attempts failed. This did not happen. The Council did not contact school A to see if it had put the actions from the EHAT support plan in place until April 2023 and it took until July for school A to hold the FAM, five months after the Council first heard W was not attending school. In addition, that hearing heard the Council had no suggestions for W and that their needs had increased. Despite this, the Council did not act to secure W’s special educational provision itself and W continued without any education except for homework until the end of the period I have investigated. This was fault and meant that in total, W missed out on all the special educational provision in their EHC Plan from February 2023 to July 2024; four and a half terms total. The fault caused Mrs X significant upset and stress.
School consultations
- The Council decided to seek a new school placement for W in April 2023. It consulted with six schools total in April and May, but then did not do any more consultations until December 2023. This was fault; the Council should have sought consultations without delay and regularly until it found a suitable school place for W. The delay caused Mrs X frustration but I cannot say, even on balance, whether the Council would have found W a school place sooner had it not delayed consulting.
EHC Plan amendment
- When a council decides to amend a child or young person’s EHC Plan, it must do so within twelve weeks of the annual review meeting. For W, this would have been by mid-July 2023. The Council did not issue the final Plan until late April 2024. This was a delay of over ten months and was fault. It is concerning that the Council told me it did not issue the final Plan earlier because it could not do so without identifying a school place for W. That is not the case; the Council could have named a type of school such as mainstream or specialist. Without a final Plan, Mrs X had no way of appealing to the SEND Tribunal to have her preferred school named. This caused her avoidable frustration.
Agreed action
- Within one month of the date of my final decision, the Council will take the following actions.
- Apologise to Mrs X for the avoidable upset, frustration and stress she experienced because of its failure to issue W’s amended EHC Plan promptly, the delay in consulting for school places and its failure to secure the special educational provision in W’s EHC Plan. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
- Pay Mrs X £200 in recognition of her injustice.
- Pay Mrs X £7,625 to recognise the impact of the lost special educational provision on W. I have come to this amount with reference to the Ombudsman’s guidance on remedies, considering the provision in W’s EHC Plan, their age and their ability to engage with provision the Council would have put in place, but for the fault.
- Explain to relevant staff that they can issue a final EHC Plan naming a type of school instead of a particular school.
- Review why the Council failed to consult with any potential schools for W between May and December 2023 and what action it needs to take to prevent a similar fault in future. If the Council identifies actions to take, it should send the Ombudsman an action plan setting out how it will take those steps and when by.
- The Council should provide us with evidence it has complied with the above actions.
Final decision
- I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman