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London Borough of Merton (17 009 698)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 03 May 2018

The Ombudsman's final decision:

Summary: Mr B complained the Council failed to put in place provision in his son’s statement of special educational needs, delayed issuing an education, health and care plan and delayed a school transfer. The Council failed to ensure an increase in speech and language provision was put into place between 2015 and 2017 and delayed issuing an education, health and care plan. There was no fault in how the Council dealt with the school transfer. Mr B’s son missed out on speech and language provision and Mr B had to go to time and trouble to pursue his complaint. An apology, financial payment and a reminder to officers is satisfactory remedy for the injustice caused.

The complaint

  1. The complainant, whom I shall refer to as Mr B, complained about the way the Council dealt with his son’s special educational needs. Mr B complained the Council:
    • failed to ensure his son received the provision set out in his statement;
    • delayed providing papers to School B, which led to the proposed year five transfer failing;
    • undermined his son’s transfer to School B by making false and disparaging remarks about him;
    • delayed issuing the final education, health and care plan;
    • delayed confirming the acceptance of a place at School C; and
    • failed to amend a report by the educational psychologist which includes misleading information and has formed part of the basis for his son’s education, health and care plan.

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What I have investigated

  1. I have investigated the first five points of the complaint in paragraph 1. The final section of this statement sets out my reasons for not investigating the last point.

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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. 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. (Local Government Act 1974, section 26(6)(a), as amended)
  3. 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.
  4. 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)

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How I considered this complaint

  1. As part of the investigation, I have:
    • considered the complaint and Mr B's comments;
    • made enquiries of the Council and considered the comments and documents the Council provided;
    • considered Mr B’s comments on my draft decision; and
    • gave the Council an opportunity to comment on my draft decision.
  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. The Special Educational Needs and Disability Code of Practice (SEN code of practice) issued in January 2015 provides timescales for completion of education, health and care plans. This says the whole process, from the point when an assessment is requested until the final plan is issued, must take no more than 20 weeks. That is subject to various exemptions which are set out in the SEN code of practice.
  2. In November 2014 Mr B’s son became subject to a statement of special educational needs. The statement provided 20 hours learning support assistant support each week as well as 3-4 sessions with the speech and language therapist per term. At that point Mr B’s son was attending School A.
  3. Following an annual review the Council issued a revised special educational needs statement in October 2015. That again provided for 20 hours learning support assistant support per week but increased the speech and language therapy to 5-6 sessions per term. The August 2016 revised special educational needs statement also provided for 5-6 sessions of speech and language therapy per term.
  4. In December 2016 the Council told Mr B about its intention to transfer his son to an education, health and care plan. The Council later issued a draft plan on 25 July 2017 and a final plan on 13 October 2017. I understand during that period Mr B began paying for private speech and language therapy sessions for his son, in addition to the ones provided as part of his statement.
  5. On 14 March Mr B requested an immediate move for his son to School C. The special educational needs panel considered Mr B’s son’s case on 21 March. The panel deferred a decision pending details from the interim review. Panel recommended the Council take advice from an educational psychologist.
  6. On 22 March Mr B contacted School C to arrange a visit to the school to see if it could meet his son’s needs. Mr B met with School C on 27 March. Mr B then asked the Council to transfer his son to School C and to increase his speech and language therapy sessions.
  7. On 24 April the Council told Mr B it had informally consulted with School C which had advised it could not offer a place for his son due to the needs of the children already in the school. The Council asked whether Mr B wanted it to send a formal consultation or arrange a meeting at the school to discuss the concerns.
  8. In May the Council consulted School C. School C responded to the consultation to say it considered placement of Mr B’s son at the school would impact on the efficient education of the other children as the year group was full and there were children with high-level special educational needs.
  9. On 15 June a Council officer met with Mr B. Following the meeting the officer emailed Mr B to say the Council would send the draft plan the following week for him to consider. The Council told Mr B once he and the child’s mother had provided any corrections the Council would send the amended draft plan to School B. The Council said it would investigate why the amount of speech and language therapy provided was different to that which was on the statement as Mr B had raised concerns.
  10. On 25 July the Council consulted School B.
  11. Mr B asked the Council to make some amendments to the proposed education, health and care plan on 26 July. The Council told Mr B it could not amend the plan before September 2017 due to the lack of availability of some professionals and schools during school holidays.
  12. The Council sent consultation to various schools on 7 August, including School C. School C responded on 25 August to say it had no spare teaching assistants and would therefore need to delay a start date. School C said the support it could provide would not look very different to the support at the current School A as Mr B’s son was well supported. School C highlighted the impact a change of school could have. The Council told School C it would be expected to go over its published admissions number to admit a child with an education, health and care plan and admission could not be delayed.
  13. On 13 September the Council told Mr B School C could offer a place. The Council asked Mr B to let the school know whether he wanted his son to take the place as the school was interviewing for teaching assistants. Mr B asked whether there was a place available at School B though as he was keen to progress that application.
  14. On 14 September Mr B told the Council he wanted his son to transfer to School C.
  15. The Council received a consultation response from School B on 15 September which said changing schools was unnecessary and not in the child’s best interests.
  16. On 20 September School C assessed Mr B’s son and confirmed it could meet his needs, although provision would be the same as at School A. The Council told Mr B about that on 10 October. The Council said it could name either School A or C and asked Mr B and the child’s mother to confirm the chosen school. On 11 October Mr B asked for his son to be transferred to School C. Mr B’s son started at School C on 30 October.

Analysis

  1. Mr B says the Council failed to ensure School A put in place the provision in his son’s statement. In particular, Mr B says his son’s class teacher told him in 2016 that she did not realise his son had a statement. He says he has seen documentary evidence which shows School A did not use the funding provided for his son to access the curriculum and instead used it for general school activities. Mr B says because of that his son is significantly below target in all subject areas and was not accessing the curriculum at School A.
  2. The documentary evidence I have seen satisfies me Mr B’s son’s statement provides for 20 hours of support per week from a learning support assistant. I am satisfied that not only did School A put that support in place it also provided an additional 10 hours of support for Mr B’s son over and above that. I am therefore satisfied the support was in place. None of the documentary evidence I have seen shows funding being diverted into general school activities. I therefore could not say the Council failed to put the 20 hours of support per week in place for Mr B’s son while he was at School A.
  3. There is, however, an issue about the amount of speech and language therapy Mr B’s son received. In 2014 Mr B son’s statement provided for 3-4 sessions with the speech and language therapist per term. The documentary records show that support was in place. School A has also confirmed 3-4 sessions with the speech and language therapist were in place per term. The school has also provided evidence to show the speech and language therapist worked with the teaching assistant and the teaching assistant then transferred that work into classroom lessons. However, in October 2015 the speech and language provision in Mr B’s son’s statement increased to 5-6 sessions per term. The Council has provided no evidence to show the increased provision was in place. School A has also confirmed that throughout Mr B’s son’s time at the school he received 3-4 sessions per term. Failure to increase the provision to 5-6 sessions per term, in accordance with the amended statement in October 2015, is fault. That meant Mr B’s son missed out on 1-2 sessions of speech and language therapy per term between October 2015 and July 2017. That is a serious injustice which was only mitigated by the fact Mr B funded speech and language therapy support for his son over and above what was provided in school. As remedy the Council has agreed to apologise to Mr B and pay him £750 to reflect the lost sessions and time and trouble Mr B had to go to pursuing his complaint.
  4. Mr B says the Council agreed to consult School B on 22 June 2017 and failed to do so until 25 July 2017. Mr B says this delay meant his son could not transfer to School B in September 2017. Having considered the documentary evidence I have found nothing to suggest the Council told Mr B it would contact School B on 22 June. Rather, the Council told Mr B it would send the draft plan to him by 22 June and once Mr B and the mother of the child had provided any corrections the Council would send a draft to the school. I recognise the Council did not meet the deadline of 22 June to issue the draft plan. However, given consideration of any corrections would have had to take place after the draft plan was issued, and therefore after 22 June, I could not say the Council had agreed to consult School B on 22 June. I am satisfied the Council issued the draft education, health and care plan on 25 July, which is when it consulted the school. I will comment on the delay issuing the education, health and care plan later. However, I cannot criticise the Council for not sending School B the consultation on 22 June as it had not committed to do that.
  5. In any event, School B subsequently refused to offer Mr B’s son a place. So, even if the Council had consulted earlier, the outcome would not have been different in terms of securing a place at School B. I recognise though this delayed Mr B considering School C. It is possible he could have done that earlier if he had been aware School B was not offering a place. However, given the proximity to the summer break, it is equally possible even if the Council had completed any consideration of corrections promptly it would still have been too late to send the consultation and confirm School B’s response before the school closed for the summer. I therefore cannot reach a safe conclusion about whether Mr B would have been further forward had the Council consulted School B a few weeks earlier.
  6. Mr B says School B’s response to the Council’s consultation showed a Council officer had made disparaging remarks about him which undermined the school’s willingness to accept his son. Having considered School B’s response to the Council’s consultation I have found nothing to support that allegation. Where the school response refers to Mr B’s attitude it is referring to Mr B’s own contact with School B’s staff, rather than a third party reporting any difficulties. There is reference in School B’s response to what the officer said about Mr B’s relationship with School A and the officer’s view about whether a change of placement was appropriate. However, none of that confirms any disparaging remarks were made. Rather, it instead confirms the officer provided his professional opinion. I cannot criticise the Council for that. While I recognise Mr B disputes the information School B included in the response about his communications with its staff, that is not a matter I can comment on. The actions of the school fall outside the Ombudsman’s jurisdiction.
  7. The Council concedes it delayed issuing the final education, health and care plan. The Council should have issued and finalised the plan within 20 weeks and failed to do so. Failure to do that is fault. The Council has apologised for the delay. I consider that a reasonable outcome for this part of the complaint given it did not affect the provision in place.
  8. Mr B says the Council delayed confirming his son’s place at School C. Mr B says the Council knew the school had a place available for his son on 20 September and did not tell him until 20 October. There is some confusion about why the Council delayed telling Mr B about the availability of a school place at school C until 20 October. The Council says it did that as it was waiting for a consultation response from School B. However, the documentary evidence suggests the Council had the response from School B by 15 September 2017. I therefore see no reason why the Council could not have told Mr B about the availability of a placement at School C shortly after 20 September. That is fault. I do not consider Mr B has suffered a significant injustice as a result of that delay though given his son started at School C after half term. The Ombudsman would generally not criticise the Council provided provision was in place within no more than half a term.

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Agreed action

  1. Within one month of my decision the Council should:
    • apologise to Mr B for the failure to ensure his son received speech and language therapy in accordance with his statement;
    • pay him £750 to reflect the lost provision and the time and trouble he has had to go to; and
    • send a memo to officers dealing with education, health and care plans reminding them of the need to ensure they follow timescales set down in Government guidance. Officers should be reminded where the timescales cannot be met they should tell the parent the reasons for that and keep them up to date with progress.
  2. The Council has also agreed to ensure when reviews of an education, health and care plan take place (or a statement) attention is paid to the hours of support identified in the plan and this is checked against provision in place as in this case the reviews recorded 3-4 sessions of speech and language therapy support when the statement provided for 5-6 sessions per term.

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Final decision

  1. I have completed my investigation and found fault by the Council in part of the complaint which caused Mr B an injustice. I am satisfied the action the Council will take is sufficient to remedy that injustice.

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Parts of the complaint that I did not investigate

  1. I have not considered Mr B’s concerns about the report prepared by an educational psychologist which Mr B says is inaccurate. That is because the Ombudsman cannot consider matters where there is an alternative route for remedy. If Mr B has concerns about the content of reports which have formed part of the education, health and care plan or details of his son’s special educational needs provision in the plan Mr B has a right of appeal to Tribunal about those matters. I therefore cannot comment on them.

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Investigator's decision on behalf of the Ombudsman

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