Staffordshire County Council (21 001 380)

Category : Education > COVID-19

Decision : Upheld

Decision date : 27 Mar 2022

The Ombudsman's final decision:

Summary: Mrs B complained the Council failed to secure the provision in her daughter’s Education, Health and Care plan since April 2020. Mrs B says her daughter lost provision and this affected her daughter’s health. The Council was at fault for failing to secure provision and this caused Mrs B and her daughter injustice. The Council will make a financial payment to Mrs B to remedy this injustice.

The complaint

  1. Mrs B complained the Council failed to secure the provision in her daughter’s Education, Health and Care (EHC) plan since April 2020. Mrs B said her daughter lost provision and this affected her daughter’s health.
  2. Mrs B also complained the Council did not communicate with her effectively and did not properly consider her complaint. Mrs B said this caused her stress and inconvenience as she had to chase the Council to fulfil its statutory duties.
  3. I considered the complaint from April 2020 to August 2021.

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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. If we are satisfied with a council’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)
  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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How I considered this complaint

  1. I considered:
    • Mrs B’s complaint and the information she provided;
    • documents supplied by the Council;
    • relevant legislation and guidelines; and
    • the Council’s policies and procedures.
  2. Mrs B and the Council had an opportunity to comment on a draft decision.

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What I found

Legislation and Guidance

Special educational needs and disabilities (SEND)

  1. A child with special educational needs may have an EHC plan. This sets out the child’s needs and what arrangements should be made to meet them. Part 3 of the Children and Families Act 2014, the Special Educational Needs and Disability Regulations 2014 and the SEND code of practice: 0 to 25 years give council’s information about its duties.
  2. The council has a duty to secure the specified special educational provision in an EHC plan 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).
  3. EHC plans should be used to actively monitor children and young people’s progress towards their outcomes and longer-term aspirations. They must be reviewed by the council as a minimum every 12 months. The first review must be held within 12 months of the date when the EHC plan was issued, and then within 12 months of any previous review. In cases, where it is proposed that a young person is to transfer between one post-16 institution and another within the following 12 months, the council must review the young person’s EHC plan at least five months before the transfer takes place.
  4. 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.

Covid-19

  1. On 1 May 2020 the Secretary of State issued a notice under the Coronavirus Act to give councils more flexibility in dealing with EHC plans and provision. This changed councils’ absolute duty to ‘secure’ the education provision in an EHC plan to one of using ‘reasonable endeavours’ to do so. This was a temporary change from 1 May to 31 July 2020. At the end of this period, councils’ usual duties returned.
  2. The Government also issued guidance, ‘Education, health and care needs assessments and plans: guidance on temporary legislative changes relating to coronavirus (COVID-19)’. The guidance noted it may be difficult to provide all elements of support in an EHC plan, for example where the child is not attending their education placement or services are reduced through illness or other COVID-19 related restrictions.
  3. In deciding what provision could be made councils had to consider:
    • specific local circumstances and workforce capacity.
    • the needs and specific circumstances of the child or young person.
    • the views of the child, young person and their parents about what may be appropriate.
  4. If it was not possible to arrange or secure full provision detailed in an EHC plan, factors to be considered included the availability of those who should deliver what was needed and whether anything could be done differently to deliver provision.
  5. The council should have kept a record of the provision it decided it had to secure or arrange. It should then have:
    • confirmed to the parents or young person what it decided to do and explained why the provision differed from what was set out in the EHC plan.
    • kept decisions under review, with an early review if necessary if the child or young person’s needs changed.

What happened

  1. Mrs B’s daughter, C, has a disorder that affects brain development, resulting in severe mental and physical disability. In the academic year 2019/20 C was in year 13 and attending a specialist secondary school, School 1.
  2. The Council issued a final EHC plan for C in April 2020. The EHC plan included:
    • Direct individual physiotherapy treatment three blocks of four 45-minute sessions: nine hours in total.
    • Occupational therapy to be delivered by therapists with experience of working with young people of C’s age, with complex physical needs, as follows:
        • one hour each week direct therapy, delivered flexibly in either one-to-one or small group sessions: and,
        • one hour of training each half-term for her support worker. 20-minute daily occupational therapy programme delivered by her support worker, trained and monitored by the occupational therapist.
    • Monthly speech and language intervention for a maximum of 30-minutes delivered by a speech and language therapist. A written therapy programme to ensure indirect therapy is given alongside direct therapy from the speech and language therapist. This will be modelled to school staff, parents and other adults working with her to maximise her response to therapy.
    • Joint treatment sessions with occupational therapy and speech and language therapy, one hour each term.
    • Direct, individual aquatic physiotherapy provided by a qualified aquatic trained physiotherapist: one hour a week for six weeks in three blocks: 18 hours in total.
  3. The Council says it arranged for School 1 to deliver this provision.
  4. From March to May 2020, England was in the first of three national lockdowns. Mrs B decided to keep C at home. School 1 sent Mrs B activities C could do at home.
  5. In May 2020, C’s speech and language therapist contacted Mrs B. She offered C therapy over the phone and Mrs B an opportunity to discuss strategies she could use at home with C. Mrs B declined this support because she felt C worked better face-to-face. The Council commissioned an occupational therapist to support C’s needs. The occupational therapist also contacted Mrs B in May 2020. They told her about the support they could offer C during the lockdown. Mrs B did not respond. The therapist contacted School 1 to ensure the school told her when C returned. The Council told Mrs B physiotherapy support was in place via a physiotherapist from the NHS.
  6. In May 2020, Mrs B told the Council meeting C’s care and support needs at home had become unsustainable. She said School 1 could not meet C’s needs and she did not want C to return. She asked the Council to arrange a residential placement for C. An internal email noted the Council that School 1 was going to hold a transition meeting for C because it would not extend her placement beyond the 2019/20 academic year. The Council considered whether this meeting should be a review. An internal email stated:

“As it stands [C] should be returning to [School 1].  If they wish to request for a different placement to be named in the EHCP the only mechanism to do this is via an annual review of the plan (which would be due to be completed within 12 months of the Amended EHCP issued following the tribunal).  The LA is under no conditional duty to agree to an early review and as such we will request the school to carry out the next review during the autumn term in line with our phase transfer process.  As [C] is in Y14 the LA will look to issue an amended final EHCP by 31.03.21 to reflect her next school or college placement.”

  1. The Council did not provide minutes of the meeting.
  2. C moved into residential care in September 2020. This was in a different local authority area. C received seven hours of one-to-one support a day which involved maintaining or developing skills around mobility, eating, and personal care.
  3. The Council consulted with College 2 in November 2020 about an education placement for C. College 2 said it did not have any spaces for the current academic year. It said it had places on a two and a half-day per week personal progress course that would start in September 2021. It told the Council it was getting other enquiries for this course, and it was important for it to confirm if it wanted it to consider C for a place. In December 2020, the Council agreed to fund six hours of private tuition each week for C.
  4. The speech and language service discharged C because she had moved into a new area. It referred her to the Adult Learning Disability Speech and Language Therapy team in the Council area where she was living. Her physiotherapy support was transferred to the new service area and it reassessed her needs. The Council contacted the NHS trust where C was living to see if it could offer support to secure the provision in her EHC plan.
  5. A third national lockdown was in place from January to March 2021.
  6. In January 2021, the Council told Mrs B it could not arrange private tuition for C because of Covid-19. It acknowledged that online education did not work for C. It told Mrs B it would look at what could be put in place for C. It advised it had consulted with College 2 about C starting in September 2021.
  7. Mrs B told the Council she had arranged for C’s physiotherapist to start working with her from mid-January 2021. C’s physiotherapist told the Council there were no facilities for aqua therapy because of the national lockdown. She advised as an alternative she had given C a functional daily exercise plan to maintain her current level of fitness and mobility.
  8. Mrs B told the Council it had still not secured speech and language therapy, occupational therapy, aquatic physiotherapy, and behaviour support. Mrs B told the Council it was not fulfilling its statutory duty to secure the provision in C’s EHC plan.
  9. The Council asked C’s residential placement to confirm what it was providing and whether it could facilitate aqua therapy.
  10. In February 2021, the Council asked College 2 if C could start immediately one day each week. College 2 told the Council she could not, and its personal progress course was now full for September 2021. The Council consulted College 3.
  11. Mrs B complained to the Council in February 2021 that it had not secured the provision in C’s EHC plan. Mrs B also complained about poor communication from the Council.
  12. The Council consulted College 4 in March 2021. It also referred C to the NHS Children’s Speech and Language Therapy Service. The service advised it had passed the referral to the Adult Learning Disability Speech and Language Therapy service. 
  13. The Council responded to her complaint at stage one of its procedure in March 2021. It found:
    • The occupational therapist contacted Mrs B in May 2020 with an offer of support adjusted to the COVID-19 pandemic. The therapist did not receive a response from Mrs B so she liaised with School 1 to ensure she knew when C returned to school so that support could be provided.
    • C did not return to School 1 for the Summer Term 2020 because Mrs B was worried about her safety. As the therapeutic provision was planned to be delivered at C’s education setting, her absence from school during this time hindered the delivery of this provision
    • It had not been able to secure a place for C at an education setting since her move into residential care in September 2020.
    • Health provision had not been secured since September 2020. Physiotherapy was reinstated but because of COVID-19 there was no access to water therapy.
  14. It apologised for not securing educational provision for C since she moved into residential care in September 2020. Mrs B asked the Council to escalate her complaint to stage two of its complaint procedure. The Council decided not to consider Mrs B’s complaint at stage two because she had not provided any supporting evidence to support a review and it could not achieve her desired outcomes. Mrs B brought her complaint to the Ombudsman.
  15. In April 2021, Mrs B asked C’s physiotherapist for an update about aqua therapy. The physiotherapist told her it was the Council’s responsibility to secure this provision and gave her details of a private pool it could hire. The physiotherapist suggested C’s keyworker, or a private physiotherapist could support C to access the pool. Mrs B passed this information on to the Council. The Council said it would discuss this with the residential care provider but would not pay for a private physiotherapist. Mrs B reminded the Council in C’s EHC plan it said the sessions had to be delivered by a qualified aquatic trained physiotherapist. The Council said it had addressed this matter in its complaint response.
  16. Mrs B booked the pool for aqua therapy sessions. In May 2021, she asked the Council how it would pay for these. The Council did not get back to her. Mrs B had to pay for the first session herself. When Mrs B asked the Council to reimburse her, it said it could not pay her direct and would see if C’s residential provider could.
  17. The Council did not provided evidence it held an EHC plan review or issued an amended EHC plan during this period.

Enquiry response

  1. There was significant delay in the Council responding to my enquiries. It could not provide all the information I asked for, for example, minutes of meetings that were held or a copy of C’s residential care plan.

Analysis

  1. From May 2020 to July 2020, the Council had to make “reasonable endeavours” to secure the provision in C’s plan. The speech and language and occupational therapy services contacted Mrs B to offer alternative provision during lockdown. This demonstrates the Council made “reasonable endeavours” to secure the provision in C’s EHC plan. However, there was no evidence it kept a record of the provision it decided it had to secure for C or told Mrs B, this was fault.
  2. In May 2020, Mrs B asked for a new placement for C and School 1 confirmed it could not offer C a placement for the academic year 2021/22. In cases, where it is proposed that a young person is to transfer between one post-16 institution and another within the following 12 months, the council must review the young person’s EHC plan at least five months before the transfer takes place. Given Mrs B’s request and the notice School 1 gave of C’s placement ending, the Council should have asked School 1 to hold a review meeting, not doing so was fault. The Council did not provide any evidence that an EHC review was undertaken between April 2020 and August 2021, this was fault.
  3. In August 2020, the Council’s absolute duty to secure the provision in C’s EHC plan resumed. Between August 2020 and 2021 the Council failed to secure the provision in C’s EHC plan, this was fault. It told Mrs B it would not pay for a qualified aquatic trained physiotherapist to provide aqua therapy, despite this being in C’s EHC plan, this was fault. In addition, it failed to respond to College 2 promptly and the delay resulted in C losing a place on a course for September 2021.
  4. The Council’s faults caused C and Mrs B significant injustice. C did not receive the provision in her EHC plan between August 2020 and 2021. Mrs B reports this led to a regression in C’s health and abilities. Mrs B had to chase the Council throughout this period to try to get it to fulfil its statutory responsibilities. She could not appeal to the SEND tribunal because the Council did not hold an EHC review in this period. After considerable Council delay, Mrs B secured aqua therapy for C at a cost and some inconvenience to her. If the Council had fulfilled its duties, she would not have needed to do this.
  5. I was concerned about the Council’s record keeping in this case. It did not provide key documents in response to my enquiries, and it did not have a copy of C’s care plan for her residential placement. Failure to keep full and accurate records was fault. Without these documents, the Council could not effectively review C’s case or the provision it had secured. This contributed to C’s injustice.

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Agreed action

  1. Within one month of the final decision, the Council will:
    • Pay Mrs B £300 for distress, including time and trouble and inconvenience.
    • Pay Mrs B £200 for frustrating her right of appeal to the SEND tribunal.
    • Pay Mrs B £3600 for a year of missed EHC provision. This is to be used for the benefit of C.
    • Reimburse Mrs B any outstanding money for aqua therapy.
  2. Within two months of the final decision, the Council will:
    • Remind SEND staff of the circumstances when an EHC plan should be reviewed as identified in the SEND code of practice: 0 to 25 years.
    • Remind SEND staff of the need to act promptly to secure EHC provision.
    • Review its procedures for record keeping and remind SEND staff of this.
    • Review its procedures for arranging out-of-area EHC provision.
    • Review its internal procedure for providing evidence to the Ombudsman.
  3. The Council should provide the Ombudsman with evidence it has completed these actions.

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Final decision

  1. I have completed my investigation and uphold Mrs B’s complaint. Mrs B and C were caused injustice by the actions of the Council. The Council will take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman

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