The Ombudsman's final decision
Summary: Miss X complained the Council failed to ensure her son, C, received the provision outlined in his Education, Health and Care Plan. Further she says the Council delayed issuing an amended Plan. We find the Council was at fault for failing to provide some of the agreed provision and delaying issuing an amended Plan. The Council has agreed to make a financial payment to recognise the injustice caused.
The complaint
Miss X complained the Council failed to ensure her son, C, received the provision outlined in his Education, Health and Care Plan (EHCP). She says it has not provided the Speech and Language Therapy (SALT), other therapies, and socialisation activities. Further she says the Council delayed issuing a finalised amended EHCP.
She says this has caused her stress and has affected her son’s development as he has not received the support he needed
What I have investigated I have investigated the Council’s failure to provide provision outlined in the EHCP issued in June 2020 and the Council’s delay in issuing a final amended EHCP.
The Ombudsman’s role and powers
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) 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) 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 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.
How I considered this complaint
I spoke to Miss X about her complaint and considered the Council’s response to my enquiries.
Miss X and the Council have had an opportunity to comment on my draft decision.
What I found
Law and guidance 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. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
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) The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHCP. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to: check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement; check the provision at least annually via the review process; and investigate complaints or concerns that provision is not in place at any time.
The procedure for reviewing and amending EHCPs 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 EHCP. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) Where a council proposes to amend an EHCP, 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 EHCP as soon as practicable and within eight weeks of the date it sent the EHCP 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 EHCP. The right of appeal is only engaged when the final amended plan is issued.
What happened C has a diagnosis of autism, attention deficit hyperactivity disorder and sensory processing disorder.
C attended a mainstream primary school when he started school in September 2020. Miss X raised a tribunal appeal over the naming of a mainstream school. C began attending school A, an alternative provision school, part time in January 2020 and stopped attending his mainstream primary school.
C’s EHCP was amended following the tribunal in June 2020. C began attending school A full-time.
The EHCP issued in late June 2020 included the following provision: Language enrichment.
2:1 adult support throughout the day.
Small school with time in class, distraction free individual learning time and activities with peers in small groups.
Support for peer interaction, Weekly music therapy.
Weekly animal or farm sessions.
Support from an occupational therapist to design and monitor a sensory diet, requiring 1.5 hours of therapist input a week.
An annual review was held in June 2021 which determined that school A was not a suitable placement. The Council issued a draft EHCP in July 2021. Section I of this draft remained incomplete and no school was named.
The Council consulted with four schools in July 2021 and a further school which was due to open shortly in September 2021. The first four schools responded by early October 2021 saying they could not offer a place. The final school responded to say it might be able to offer a place once it opened.
In September 2021 a SALT assessment was carried out. The report made a number of recommendations for school staff for C, such as using short simple sentences or using Makaton signs. There was no specific recommendation for time with a speech and language therapist. The SALT training and reviewing of the curriculum recommended in the report began in late September.
C began 30-minute horse riding lessons in November 2021 at a local riding school.
In a meeting in February 2022 Miss X agreed the search may need to extend beyond day schools due to the difficulty finding a suitable placement.
In late April C began attending a leisure centre for trampolining sessions.
The Council consulted with School B, a residential primary school, in May 2022. Following this the Council updated the draft EHCP.
Weekly one hour one to one sessions at a therapy farm began in June 2022. C also started attending a local life skills centre for weekly sessions of sensory play.
In July 2022 the Council issued a final EHCP naming school B in section I.
Findings
C’s EHCP recommended social activities - including activities with peers in small groups - music therapy, animal sessions and sensory sessions. SALT provision was to be included within the learning provided by the school.
The Council’s notes show SALT monitoring of C’s curriculum began in September 2021. This was a year after the EHCP was issued. The Council should be arranging provision promptly. That the Council can only evidence this being drafted and reviewed in late 2021 is fault. However, it is clear from the termly reviews that C was receiving some of the SALT work through his school curriculum without the involvement of a specifically assigned SALT coordinator.
The notes from the music therapist shows that this was in place from January 2020. It is also referred to in C’s April 2021 term review and the annual review in June 2021. The notes only continue up to June 2021 despite music therapy remaining in C’s EHCP. It is not referred to in the termly review in January 2022 either. The Council failure to provide music therapy for C when it remained included in his EHCP is fault.
C’s EHCP stated that he should receive weekly animal sessions. C’s termly review records that C is enjoying visit from pets. In November 2021 the Council started weekly horse riding and in June 2022 C started attending an animal farm. The Council has therefore ensured C has received animal sessions. The plan did not specify that the provision needed to be a specific activity or that it need to be out of school. It is not fault the Council did not arrange activities out of school sooner.
C’s EHCP also included sensory play. His review in April 2022 refers to sensory experiences and what C has managed. In 2022 the Council arranged sensory activities at local facilities, including the leisure centre, in addition to this. The Council has taken steps to ensure C experienced sensory play in his timetable. Again, it is not fault the Council did not arrange the activities out of school sooner.
In terms of the school supporting peer interaction and activities in small groups I am satisfied this was provided. I appreciate C spent a lot of one-to-one time with adults during his school day. However, there is reference to how C was coping with peer interaction in all of his reviews. The Council also say that peer interaction is included in the out of school activities. The Council has ensured that C is receiving social interaction.
An annual review of C’s EHCP was carried out in June 2021. Following the review, the Council issued an amended draft accepting an alternative placement was required. It should have then allowed Miss X 15 days to comment and issued a final plan within eight weeks. The EHCP was not finalised until July 2022.
The Council say this was due to the issue of finding a suitable school for C’s needs. The Ombudsman does not consider a delay in finding a suitable school fault if the Council has taken reasonable steps to locate an appropriate school. The Council consulted with a number of schools, both Council run and independent. It also had offered a place at school B prior to June 2020 which Miss X had felt was not suitable because it was residential. This option remained available and became the named school when Miss X agreed to consider residential placements.
The Council acting in line with Miss X’s wishes not to send her son to a residential school also unfortunately impacted the range of schools it had to choose from. However, it still has a duty to issue an EHCP within the statutory timeframes. The Council placing significant weight on Miss X’s views meant that it took a year to finalise the EHCP.
Whilst there is evidence of the Council taking reasonable steps to identify a school for C, the timeframe it took to issue a final EHCP, when there was a suitable placement available at school B, is fault. I accept it was taking account of Miss X views but in doing so it has denied her of her right of appeal. Its actions also delayed finding the most suitable placement for C during this time.
The Council’s delay has caused Miss X anxiety and uncertainty about her son’s future and whether he is receiving the support that he needed. Following the annual review the Council did increase the level of support C was receiving including arrange offsite activities.
Agreed action
Within one month of this decision the Council has agreed to: Apologise to Miss X for the injustice caused by the faults identified above.
Pay Miss X, on behalf of C, £600 for the lost SALT supported provision and music therapy.
Pay Miss X £300 for the anxiety and uncertainty caused with regards to her son’s educational welfare and the delayed opportunity to resolve this through a tribunal appeal.
Final decision
I have completed my investigation. I found fault which has caused injustice. I have recommended action to remedy the injustice.
Parts of the complaint that I did not investigate I did not investigate Miss X’s complaints about the Council not provide the provision outlined in C’s EHCP prior to June 2020. This is because this happened more than 12 months ago. Miss X previously complained about these issues to the Council and could have brought these issues to the Ombudsman at that time.
Investigator’s final decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman