Surrey County Council (22 004 034)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 31 Dec 2022

The Ombudsman's final decision:

Summary: Mrs L complains in respect of her daughter (Young Person X) who has special educational needs (SEN). The Council maintains an EHCP for Young Person X which identifies what support she needs to meet her SEN. Mrs L complains in respect of the contents of the EHCP, a failure to provide specific EHCP provision, as well as how this was handled internally as a complaint by the Council. We found the Council failed to maintain oversight over whether Young Person X’s EHCP provision was being delivered. This meant the Council failed to provide part of the EHCP provision. The Council also gave misleading and inaccurate information to Mrs L as regards to who was responsible for providing Young Person X’s EHCP provision. We have no jurisdiction to investigate the contents of Young Person X’s EHCP because Mrs L appealed to a tribunal in respect of these issues. Nevertheless, Young Person X and Mrs L suffered an injustice by reason of the failings identified. The Council has agreed to our recommendations to remedy this.

The complaint

  1. The complainant, who I refer to Mrs L, is making a complaint in relation to her daughter (Young Person X) who has special educational needs (SEN). The Council maintains an Education and Health Care Plan (EHCP) for Young Person X which sets out the support she should receive. Mrs L alleges the following:
      1. The Council named a school placement in Young Person X’s EHCP for her to attend which was not suited to meeting her needs. Mrs L adds that the Council misled her that the educational placement could meet Young Person X’s SEN.
      2. The Council required Young Person X to attend the educational placement until an alternative placement was agreed at a Tribunal hearing.
      3. Young Person X’s EHCP was poorly written and inaccurate.
      4. The Council failed to provide the identified educational provision identified in Young Person X’s EHCP.
      5. The Council’s handling of her complaint has been poor, and her emails and correspondence have not been responded to.
      6. The Council was responsible for a breach of the Data Protection Act 2018.
  2. In summary, Mrs L says Young Person X has been denied her EHCP provision and placed in a school which was detrimental to her wellbeing and educational development. She says not meeting Young Person X’s EHCP provision amounts to disability discrimination. In addition, Mrs L explains that the Council’s handling of her complaint has exacerbated the distress suffered by the family. As a desired outcome, Mrs L wants the Council to acknowledge its failings and provide compensation for discriminating against Young Person X and for incurring fees to appeal to the SEND Tribunal.

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The Ombudsman’s role and powers

  1. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  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. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended).
  4. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended).

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How I considered this complaint

  1. I have read Mrs L’s complaint to the Council and Ombudsman. I have also had regard to the responses of the Council, supporting documents and applicable legislation, policy and guidance. I Invited both Mrs L and the Council to comment on a draft of my decision before a final decision was made.

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What I found

Background and legislative framework

Education and Health Care Plan (EHCP)

  1. An EHCP is for children and young people aged up to 25 who need more support than is available through special educational needs support. An EHCP identifies educational and health needs and sets out the support to meet those needs (including, but not limited to, providing a specialist educational setting).
  2. Councils are not required to provide exactly what parents request, but they should be able to explain clearly why they consider a suggested provision meets the assessed needs of a child. They must also take steps to ensure the view of the child is properly recorded and considered when planning provision for them. In cases where a council has been unable to find a suitable school placement within the time frame, they have a duty to provide appropriate alternative education. We can look at delay in issuing an EHCP, including whether the Council has failed to make purposeful efforts to identify a school place.
  3. When an EHCP is maintained for a child or young person the local authority must secure the special educational provision specified in the plan. If a local authority names an independent school or independent college in the plan as special educational provision it must also meet the costs of the fees. Local authorities must ensure that children, young people and parents are provided with the information, advice and support necessary to enable them to participate in discussions and decisions about their support.
  4. The First-tier Tribunal (Special Educational Needs and Disability) (the SEND Tribunal) is responsible for handling appeals against local authority decisions about special educational needs. This includes a refusal to assess a child’s educational, health and care needs and create an EHCP.

EHCP provision

  1. A council has a duty to secure the specified special educational provision in an EHCP for the child or young person (Section 42 of the Children and Families Act 2014). The Courts have said this duty to arrange provision is owed personally to the young person 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).

Chronology of events

  1. In October 2020, the Council issued a final EHCP for Young Person X. This provision (which I refer to as the ‘safe haven’ provision) for when Young Person X requires space away from her learning peers. A week before the EHCP was issued, Mrs L emailed the Council with concerns about how this was being implemented by the educational placement. The EHCP states:

“Young Person X will have a ‘safe haven’ that she can access when required to have space, time and dignified privacy to compose herself before re-joining her peers. Young Person X will have a “comfy”/ safe space to do work in where others cannot see or disturb her, for example in the class book corner, and in the case of more challenging tasks, she will be offered a separate office / room which is minimalistic / bland with no environmental distractions like people walking past and looking at her, making her feel self-conscious for being in her own space.”

  1. In November 2020, the educational placement Young Person X attended looked at ways to implement the ‘safe haven’ provision. However, the educational placement said it did not have the facilities and resources to implement this in a way which was consistent with wording of Young Person X’s EHCP. Instead, the educational placement provided a table in the school corridor as a safe space.
  2. In January 2020, Mrs L appealed to the SEND Tribunal in respect of the contents of Young Person X’s EHCP. This included the Council’s assessment of her needs, the support provisions identified and the educational placement.
  3. In May 2021, the Council issued an amended EHCP (version 2) following the legal proceedings at the SEND Tribunal. This made provision for Young Person X to attend an independent specialist school from September 2021.
  4. In July 2021, Mrs L raised with the Council that she was unhappy with the ‘safe space’ provision being provided at the educational placement. This was very shortly before Young Person X left the school for the Summer break, following which, she would attend an independent specialist school.
  5. In November 2021, Mrs L complained to the Council about the missed EHCP provision, as well as other matters which related to the contents of the EHCP (version 1). The Council responded in accordance with its formal complaints policy and procedure. However, dissatisfied with the responses, Mrs L brought her complaint to the Ombudsman.

My assessment

EHCP contents

  1. Central to Mrs L’s complaint is what information is included in Young Person X’s EHCP, as well accuracy of this. She also complains in respect of the educational placement identified in Young Person X’s EHCP which she was required to attend, as well as the suitability of this. In January 2020 however, Mrs L appealed the contents of the EHCP to the SEND Tribunal, as well as the identified educational placement. The law says we cannot investigate a matter where the complainant has exercised their right of appeal to a tribunal. The restriction I describe at Paragraph 5 (above) therefore applies and I cannot investigate the complaint outcomes set out at Paragraph 1 (a) to (c).

EHCP provision

  1. In addition, Mrs L is dissatisfied that the ‘safe haven’ provision (see Paragraph 13 above) identified in Young Person X’s EHCP was not provided by the educational placement she attended. Mrs L explains this provision was necessary to meet Young Person X’s sensory and physical needs. It is Mrs L’s position that the educational placement only provided an area in the school corridor which was not isolated from her peers and therefore undermined the rationale behind the provision requirement. I have reviewed the educational placement’s records on this issue and found that Mrs L is correct that ‘safe haven’ provision was substituted for an adjustment which was inconsistent with the aims of the EHCP. I found Mrs L made the Council aware that the school’s approach to the ‘safe haven provision’ not being acceptable a week before the final EHCP was issued.
  2. Moreover, I found that Mrs L did complain to the Council in respect of this issue, though the action it took in this respect was limited to referring Mrs L to the educational placement to resolve the issue. In particular, the Council informed Mrs L it was the educational placement which had a duty to provide the level of provision outlined in an EHCP. The Council also advised Mrs L to make a formal complaint to the educational placement if she was dissatisfied. I found this information provided by the Council was inaccurate and misleading and I address this is my assessment of the Council’s complaint handling.
  3. By law, it is the Council, not the educational placement, which has the legal duty to meet EHCP provision and this duty is non-delegable. In my view, it is the Council’s misunderstanding in this area which meant it failed to properly investigate Mrs L’s concerns which has now resulted in limited evidence being made available me. To demonstrate good administrative practice, I would have expected the Council to have liaised with the educational placement to make enquiries on receipt of Mrs L’s provision concerns. The Council told me, that at this time, there were shortages of staff within the relevant service which impacted on its ability to investigate this issue. Further, it says that it was only provided notice of the issues just before Young Person X was due to leave the school in July 2021. The evidence does show Mrs L expressed her concerns to the Council in October 2020 while Young Person X’s EHCP was being finalised. This should have prompted the Council to monitor the issue once the final EHCP had been issued and provisions were formalised.
  4. The Council however acknowledges it did not fulfil its duty to make sure the provision in the EHCP was being delivered. Moreover, it accepts the adjustments made were not as it would have hoped, or expected. I therefore find fault by the Council for not having satisfactory oversight over Young Person X’s EHCP which resulted in a loss of the ‘safe haven’ provision. The Council was also at fault for not investigating this loss of provision. This caused a degree of upset and distress to Young Person X who required the provision to manage her sensory needs associated with her SEN. I am therefore recommending a remedy in respect of a loss of the ‘safe haven’ provision from November 2020 to July 2021.

Complaint handling

  1. The Council was responsible for providing inaccurate and misleading information in its complaint handling concerning its responsibility for meeting Young Person X’s EHCP provision. This meant a failure to investigate Mrs L’s concerns. While I accept that Young Person X was leaving the educational placement by the time Mrs L raised a formal complaint in respect of this matter, her concerns still raised an issue of fault and injustice which I would expect the Council to investigate. Had it done so, this may have negated any need by the Ombudsman to conduct an investigation. I am therefore finding fault by the Council in respect of these issues. The fault identified caused Mrs L avoidable stress, uncertainty, as well as time and trouble, beyond what was necessary. Mrs L therefore suffered an injustice.

Data protection

  1. We normally expect someone to complain to the Information Commissioner’s Office (ICO) if they have a complaint about data protection concerns. However, we may decide to investigate if we think there are good reasons. I have not seen any evidence to suggest it would be unreasonable for Mrs L to complain to the ICO as this is the most appropriate body to investigate data protection concerns and/or a breach of data protection legislation. The restriction I describe at Paragraph 6 applies and I will not therefore investigate this complaint outcome.

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Agreed actions

  1. To remedy the fault and injustice identified in this statement, the Council has agreed to perform the following actions within one month of a final decision:
      1. The Council will send Mrs L a formal written apology which addresses the fault and injustice identified in this statement.
      2. The Council will pay Mrs L £500 to acknowledge the loss of ‘safe haven’ provision identified in Young Person X’s EHCP. This amount of money will spent on the educational development of Young Person X.
      3. The Council will pay Mrs L £150 to acknowledge her distress, uncertainty and time and trouble on account of failings in its handling of her complaint.
      4. The Council will remind all relevant staff that it is the Council which has a duty to meet EHCP provision.
  2. In addition, the Council, within three months of a final decision, will also:
      1. Conduct a formal review its oversight practices with respect to ensuring EHCP provision is met in educational settings. The purpose of the review is for the Council to adopt measures so to prevent similar occurrences which result in a loss of EHCP provision. The review will also inform additional training and guidance to staff working in this area.
  3. The Council must provide the Ombudsman with evidence it has complied with the above recommended actions.

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Final decision

  1. The Council failed to maintain oversight over whether Young Person X’s EHCP provision was being delivered. This meant the also Council failed to provide part of the EHCP provision Young Person X was entitled to receive. The Council also gave misleading and inaccurate information to Mrs L as regards to who was responsible for providing Young Person X’s EHCP provision. I have no legal jurisdiction to investigate the contents of Young Person X’s EHCP because Mrs L appealed to the SEND Tribunal in respect of these issue. Nevertheless, Young Person X and Mrs L suffered an injustice by reason of the failings identified. The Council has accepted the above recommendations to remedy this.

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Investigator's decision on behalf of the Ombudsman

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