Brighton & Hove City Council (17 009 277)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 08 Jan 2019

The Ombudsman's final decision:

Summary: Mrs X complained about the Council’s failure to ensure support in her son’s Education Health and Care Plan was put in place. The Council was at fault in failing to ensure some of the provision was in place. The Council has agreed to make a payment to recognise the loss of support. This is a suitable remedy.

The complaint

  1. Mrs X complained that from September 2016 the Council failed to ensure that the support in her son’s Education Health and Care Plan was put in place.

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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. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. We cannot investigate once the person has appealed. (Local Government Act 1974, section 26(6)(a), as amended)
  4. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))

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How I considered this complaint

  1. I discussed the complaint with Mrs X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I shared my draft decision with the Council and the complainant and considered their responses.
  2. 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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What I found

  1. 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.
     
  2. Councils have a duty to ensure the special educational provision set out in an EHC Plan is arranged. (Children and Families Act 2014 section 42)

What happened

  1. Mrs X has a son, S, now aged 18. From the age of ten S received support under a statement of special educational needs and then an Education Health and Care Plan with dyslexia, handwriting, Occupational Therapy (OT) and Speech and Language Therapy (SALT). He had a history of different school placements.
  2. In September 2016 S was boarding at an independent residential specialist school (‘the School’) for part of the week. He also attended a further education college (‘College 1’) during the day, five days a week. He had an EHC Plan which included a SALT programme to be devised and monitored by an onsite SALT therapist to include:
    • support from a trained teaching assistant or teacher in the classroom
    • weekly one-hour social communication skills group delivered by a qualified SALT therapist and/or an appropriately trained TA or teacher
    • specified hours per term to provide training, advice and support to staff and parents on implementing the SALT programme and to review and monitor S’s progress.
  3. It also included OT support as follows:
    • weekly direct sessions with a qualified OT therapist
    • a sensory diet programme developed by a qualified OT
    • a structured handwriting programme, a touch typing programme and equipment to record information such as a laptop and voice recording technology
    • support with social and independence skills.
  4. The EHC Plan also included five hours a week support from a scribe to help S in independent study sessions.
  5. S was not happy attending the School. The School arranged an emergency Annual Review meeting of his EHC Plan in January 2017. S said he wanted to leave the School and attend the College only.
  6. In February 2017 Mrs X raised concerns with the Council that S was not receiving the SALT or OT required under his EHC Plan. The Council confirms he was not receiving these therapies. It says he was not attending OT sessions at the School and the OT service removed him from its caseload. It says the SALT provided at College 1 was in groups at a lower level of ability than S’s and so the provision was not suitable for him. The Council noted that it would have to arrange the therapies privately.
  7. In March 2017 the Council consulted College 1 about being the sole named placement on S’s EHC Plan. College 1 confirmed it would be able to offer SALT from its onsite therapist but said this was provided in small groups and it might not be suitable as the students were at a lower level of ability than S.
  8. The Council issued a draft EHC Plan in April 2017 with all provision for SALT and OT removed and replaced with a requirement to re-refer S for assessments for both therapies. It asked College 1 to carry out a SALT assessment and commissioned an independent OT assessment.
  9. After considering Mrs X’s representations, the Council issued the final EHC Plan in May 2017. It included the following provision:
    • 13 hours a week 1:1 support from a Learning Support Assistant experienced in dyslexia to help S work in class and organise his work and to act as a scribe
    • a handwriting programme to be devised by an OT
    • weekly support sessions with a tutor to support him with organising his work and independent learning.
  10. Apart from the referrals for assessment, the final EHC Plan contained no other OT or SALT support.
  11. Mrs X appealed to the SEND Tribunal in June 2017.
  12. In July S decided to leave College 1. Mrs X asked the Council for alternative placements.
  13. In early October 2017 Mrs X made a formal complaint to the Council. Part of her complaint was that the Council had:
    • removed OT and SALT provision without consulting the family or professionals, and
    • failed to provide the handwriting programme.
  14. In the Council’s response it said it needed to amend S’s EHC Plan to take account of his move from the specialist School to the sole placement at College 1. It said it felt it was in S’s best interests to refer him for new OT and SALT assessments to get an up to date picture of his needs. It said the OT report it received in July 2017 said S did not need direct OT support but would benefit from a Learning Support Assistant to take notes in lessons. However this could not now be provided as S had left the College.
  15. The Council said it was not aware the handwriting support had not been provided. It said it had contacted College 1 who had advised that S was receiving 1:1 ‘discreet note taking support’ in all lessons for about 11 hours a week and that he was happy with this.
  16. Mrs X was not happy with the response and wrote back to the Council on 25 October 2017. She said the Council had not addressed her complaint properly. She wanted to know why her son had never received the handwriting programme, had not had the touch typing programme for several years, and why the therapies were removed from the EHC Plan.
  17. The Council treated this as a further stage 1 complaint and its response was similar to the previous one.
  18. Mrs X pursued the complaint further. After clarifying the issues with her, the Council responded at stage 2 of its complaints procedure at the end of January 2018. It said removing all OT and SALT provision from the EHC Plan before new assessments had been carried out was a ‘clerical error’. It apologised for the mistake. It confirmed that the plans should have remained unchanged until new assessments had established whether any changes were needed.
  19. Regarding the handwriting practice and touch typing programme, the Council said there was a difference in view between the OT report it had commissioned and one Mrs X had obtained about whether S needed this support. It said this was a matter for the Tribunal to decide. Also it said that previously, when S was at the School, as far was the Council was aware S had received the support he wanted. He did not want to have handwriting practice and preferred to use the support worker as a scribe.
  20. After consultations with colleges, the Council agreed to name Mrs X’s preferred placement, a specialist residential college, College 2. The Council issued an amended final EHCP in April 2018 naming College 2. It was agreed that S could repeat a year. Mrs X says the EHC Plan includes six sessions of SALT a year with additional time for follow-up assessments and liaison with staff. It also includes OT provided by a member of staff monitored by a qualified therapist.

Analysis – was there fault causing injustice?

  1. The Council had a duty to ensure the support set out in S’s EHC Plan was arranged. It may wish to amend an EHC Plan but until it issues an amended final EHC Plan it has an obligation to ensure the provision in an existing Plan is put in place. It is not for the Ombudsman to say what provision is suitable. If a parent or young person disagrees with the support set out in a final EHC Plan they have a right of appeal. The Ombudsman cannot investigate a complaint about a matter that is under appeal. However in this case the Council has said it removed the OT and SALT provision from the draft EHC Plan in April 2017 ‘in error’. The provision was also missing from the final Plan issued in May 2017, which Mrs X appealed against. But until she submitted her appeal in June 2017 the Ombudsman has discretion to investigate if there is good reason to do so.
  2. I consider in this case I can make findings and recommend a remedy in relation to the provision missing from the EHC Plan up to the point when Mrs X submitted her appeal. S did not receive any OT or SALT during the period when it was removed from the Plan. If these therapies had remained in the Plan the Council would have had a duty to arrange the support. The Council has accepted it was at fault in removing the therapies from the Plan before the assessments were completed. It has put this down to a clerical error. It has confirmed that as a result, S missed out on SALT between February and July 2017. As the Council has said the OT was also removed in error, I consider he missed out on this therapy as well for the same period.
  3. My understanding is that the Council has also accepted S did not receive the appropriate therapies from before February 2017 because the OT service removed him from its caseload, and the SALT sessions at College 1 were not suitable for him. The Council said it should have arranged alternative OT and SALT sessions privately, but did not do so. My understanding is that S did not receive suitable SALT sessions from September 2016. I am not clear when the OT service stopped. If the Council had arranged and offered it but S did not attend, the lack of support would not be the result of fault by the Council up to the point when the service was removed.
  4. Mrs X says that from September 2016 her son did not receive the touch typing practice required in the EHC Plan. I have not seen any evidence that he did. Regardless of the Council’s view based on an OT report, about whether he still needed this programme, it should have been provided up to May 2017 while it remained in the EHC Plan. However it is not clear when the Council first became aware S was not receiving it. The first reference to this I have seen is in Mrs X’s complaint in 25 October 2017, by which time S had already left the School and College 1. The Council could not be held responsible for failing to secure this provision if it was not aware it was not being made.
  5. Based on the information the Council says it received from the School and College 1, I do not consider S missed out on handwriting practice as a result of fault by the Council. This indicates that the support was offered to S but he chose not to take it up.
  6. I find that S missed out on special educational support that should have been provided under his EHC Plan as a result of fault by the Council, as follows:
    • from September 2016 to January 2017 he did not receive suitable SALT provision, and for part of the period he did not receive any OT support;
    • from February to June 2017 he did not receive OT or SALT.
  7. Mrs X has also had to put time and energy into pursuing her complaint. It was not until her second complaint that the Council confirmed it had removed provision from S’s EHC Plan in error. It did not confirm he had missed out on any support as a result until it responded to the Ombudsman’s enquiries.

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Agreed action

  1. The Council agreed to make a payment to recognise the support S missed, based on the Ombudsman’s guidelines. It has agreed that within one month of the final decision on this complaint it will pay Mrs X £1,200, made up as follows:
    • £100 per month for the period September 2016 to January 2017 (a period of four months excluding holidays)
    • £200 per month for the period February to early June 2017 (a period of four months up to when Mrs X appealed).
  2. The payment is to be used for S’s educational benefit for example to obtain specialist equipment or extra support needed.
  3. The Council has also agreed to apologise to Mrs X and her son for the faults and injustice identified.

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Final decision

  1. I have found that there was fault by the Council causing an injustice to Mrs X and her son. The Council failed to ensure all the support required under S’s EHC Plan was provided. It has now agreed a suitable remedy and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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