The Ombudsman's final decision
Summary: Mrs B complains the Council did not ensure her son, Y, received the support outlined in his EHCP. She says the Council also cancelled a review meeting without notice and refused to obtain updated specialist reports. Mrs B says this caused distress and the lack of 1:1 led to incidents at school that were avoidable. We find fault in the lack of 1:1 provided and the delay in completing an annual review. However, we do not find fault in respect of its refusal to obtain specialist reports.
The complaint
The complainant, who I refer to as Mrs B, complains her son did not receive 1:1 support during unstructured times, as set out in his Education Health and Care Plan (“EHCP”). Mrs B says the Council did not acknowledge that it was a requirement of the EHCP. She says no 1:1 worker was allocated during break times, and this allowed incidents with other students that caused distress to Y.
Mrs B also complains the Council cancelled an annual review because it was too close to a tribunal decision. She says this was not a valid reason to cancel the annual review and the Council did not give proper notice. She says that as part of the subsequent review, the Council declined to obtain updated occupational therapy (“OT”) and educational psychology (“EP”) reports.
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 an injustice, 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 the decision making, 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)
How I considered this complaint
I considered the information Mrs B provided and spoke to her about the complaint, then made enquiries of the Council. I sent a copy of my draft decision to Mrs B and the Council for their comments before making a final decision.
What I found
Law and Guidance A child with special educational needs 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.
The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
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.
Background
Y is diagnosed with sensory processing difficulties and an autism spectrum disorder and has an EHCP in place.
In March 2020 the Council completed a review of the EHCP. Mrs B disagreed with the findings and appealed to the SEND tribunal. The tribunal heard the case in December 2020 and made an order requiring the Council to produce a new EHCP with certain provisions, by January 2021.
The Council completed the new EHCP and finalised this in February 2021. The EHCP included the following provision: ‘Y will receive support on a 1-1 basis throughout the school day including at unstructured times’ An annual review of the EHCP was set for March 2021. The Council cancelled this review. The Council says it cancelled this because it had not been provided with all evidence and information on which the review would be based at least two weeks before the date of the review. Mrs B says the Council did not have good reasons to cancel the review and only gave her 10 minutes notice of the cancellation.
In April 2021 Mrs B complained to the Council that Y was not receiving 1:1 support during lunchtimes. The Council responded that he was not with the 1:1 worker for 20 minutes during each lunch time. It said this was a time for Y to implement the social skills his 1:1 had been working on, following advice from the EP and school. It said this was during structured activities where he was supervised by a sports coach. But the 1:1 support should be available to Y if and when needed.
The Council rearranged the EHCP review. Mrs B asked the Council, as part of the review, to obtain updated OT and EP reports. The Council declined. It said it had OT and EP reports from late 2020 that were still relevant. Mrs B complained about this and arranged privately for OT and EP reports at a cost of around £1,600. Mrs B says the Council did not accept the findings of the OT and EP reports, or factor these into the reviewed EHCP.
The Council issued a new EHCP in mid-July 2021. It did not have the same statement set out at Paragraph 12. It said: ‘For Y to continue to be supported 1:1 in school by a consistent member of staff who is able to implement the recommendations as advised to meet his needs.’
Mrs B disagreed with the overall contents of the EHCP, and the Council’s decision not to rely on the privately arranged OT and EP reports. She therefore appealed the contents of the EHCP to the tribunal.
In February 2022, following the outcome of the tribunal, the Council issued a new EHCP. This said: ‘For Y to continue to be supported 1:1 in school by a consistent member of staff Mrs B complained to the Council about the lack of 1:1 provision at lunch times. In March 2022 the Council responded that Y did not need 1:1 support all the time during unstructured activities and that the 20 minutes he was not with the support worker were time for Y to implement the social skills Y had been working on. It therefore did not uphold Mrs B’s complaint.
Findings
I have separated my findings into the following elements of the complaint: 1:1 support not in place at lunchtimes Cancelled annual review Refused to obtain updated OT and EP reports as part of annual review 1:1 support not in place at lunchtimes I find fault in the lack of 1:1 support during lunchtimes between late April and mid-July 2021.
The EHCP dated February 2021, is very specific that Y should have 1:1 support throughout the day including at unstructured times. This consistently did not happen during lunchtimes.
The school’s response confirms lunchtime is split into two sections. 25 minutes for eating and 20 minutes for activities. Y did not have an allocated 1:1 worker throughout the whole of lunchtime. During the eating period Y’s normal 1:1 worker was responsible for the entire class, so was not 1:1 at those times. During the activity period the normal worker was often based in a different part of the playground to where Y was doing activities. I understand the 1:1 worker could not be on the sports pitch with Y. But they were not within eyesight and were responsible for other children. Therefore, cannot be said to be allocated as 1:1.
The Council was aware that 1:1 provision generally had been implemented by the school. It was in late April 2021 that Mrs B informed the Council this was not happening during lunchtimes. Therefore, I have considered any remedy from this point as that was the point at which the Council became aware and was able to respond. At that point the Council had a duty to arrange the provision set out in the EHCP.
The EHCP is a legal document and support needed to be provided as outlined in that document. If the Council considered 1:1 was not necessary at all times, then it could address this as part of any future review of the EHCP. However, until any new EHCP was in place, it was responsible for ensuring Y received the provision as set out in his existing EHCP. If the school did not have enough staff to provide 1:1 support throughout the day, including at unstructured times, the Council had a duty to arrange the provision set out in the EHCP.
I have not found fault from mid-July 2021 onwards. From that point on the EHCP did not specifically say Y needed 1:1 support throughout unstructured times. The Council has provided reasons for why it did not consider this was necessary, including that the normal 1:1 worker was available to respond during break times if needed. In line with the updated EHCP, this was a decision the Council could make. If Mrs B disagreed with the new EHCP, she had appeal rights against this.
Mrs B says the impact on Y was that he was subject to a lot of bullying from other children, which may not have happened had the 1:1 support worker been present.
Our Guidance on Remedies sets out that, where fault has resulted in a loss of educational provision, we will normally recommend a payment of between £200 and £600 per month to acknowledge the impact of the loss. On balance, I am of the view the remedy here should be at the lower end of the scale. This is because Y remained in school throughout the relevant time and the time without 1:1 support was limited to lunchtimes. I recommend the Council pay Mrs B £500, which reflects the two and a half months Y went without the support outlined in the original EHCP.
Cancelled annual review The Council’s complaint response says that before the review it became apparent the school did not follow the correct process as it did not share advice from SALT with the Council. Therefore, it decided to postpone the review meeting and hold a professionals meeting to consider identification of secondary education provision. However, officers misinterpreted this and cancelled the meeting, rather than postponing. Mrs B says, at the time, the Council told her it had cancelled the meeting because it was too close to the recent tribunal hearing.
There was a delay of around two months in the Council completing the review. This delay is fault. Annual reviews must take place within 12 months of the last review, or the date the ECHP was first issued. A new plan being issued after a tribunal does not restart the clock.
However, I do not find this caused significant injustice. A new EHCP was put in place in February 2021, so the annual review was due to take place a month after that plan was issued. It was completed within three months. Therefore, Y had a recent and up to date plan in place throughout that time.
One of the main concerns of the annual review was to identify secondary education. Y was in Year 5 and so would not start secondary school that September, but the following September. Therefore, there was time for an appeal to take place despite the two-month delay.
Refused to obtain updated OT and EP reports The Council has provided reasons for why it did not obtain updated OT and EP reports. It considered the reports from late 2020 were up to date and relevant. Its review took place only about six months after the reports and I cannot see evidence there was a dramatic change in needs during this time that would have meant those reports were completely irrelevant. This was the Council’s decision to make, and I would not be able to question the merits of its decision.
Mrs B also says the Council did not provide her with one of the reports during the annual review. The reports the Council considered informed the contents of the EHCP and Mrs B’s main concern is with the impact this had on the eventual contents. Mrs B had a right of appeal against the contents of the EHCP and did appeal to the tribunal.
Mrs B’s concerns about the information on which the Council based the contents of the EHCP were a fundamental part of the tribunal, and therefore not within our jurisdiction to investigate.
Therefore, I cannot recommend the Council reimburse Mrs B for the costs of obtaining reports privately.
Agreed action
The Council has agreed to, within a month of this decision: Apologise to Mrs B for not ensuring Y received 1:1 support at all times in line with his EHCP between April and July 2021 Pay Mrs B £500 to recognise the loss of support during that time
Draft decision The Council is at fault for the lack of 1:1 provided and the delay in completing an annual review. However, I do not find fault in respect of its refusal to obtain specialist reports and do not find the annual review delay caused significant injustice.
Investigator's decision on behalf of the Ombudsman