Sheffield City Council (18 007 951)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 30 Apr 2019

The Ombudsman's final decision:

Summary: Mr C says the Council did not provide the care specified in his child’s education, health and care plan for seven months after the plan was agreed. The Council did not do so and was at fault. It has agreed to apologise to Mr and Mrs C and to CC, pay a sum to them in consideration of their distress and lost educational provision and inform the Ombudsman of its progress in improving its system.

The complaint

  1. The complainant, who I have called Mr C, says:
      1. The Council delayed in producing an education, health and care plan (EHCP) for his child, CC; and
      2. The Council then failed to ensure the care set out in the EHCP was provided.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. 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)

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How I considered this complaint

  1. I spoke to Mr C. I wrote an enquiry letter to the Council. I considered the evidence and the relevant law and guidance.
  2. I sent a copy of my draft decision to Mr C and the Council and invited comments.

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What I found

  1. The parents of a child with special educational needs (SEN) can ask a council to assess the child to decide whether to provide an EHCP. EHCPs set out the child’s educational needs and the provision required to meet them.
  2. The Special Educational Needs and Disability (SEND) Code of Practice statutory guidance (‘the guidance’) sets out the rules for the EHCP process. The guidance says councils must carry out the process as quickly as possible. It sets out the following maximum time limits:
    • Councils must reach a decision on a request for an EHCP assessment within 6 weeks (42 days);
    • When councils request information for an EHCP assessment, those asked must respond within six weeks.
    • If, after assessment, a council decides not to issue an EHCP it must inform the parents within 16 weeks of the request.
    • The assessment must be completed and a draft EHCP issued within 20 weeks.
  3. The assessment must consider ‘a wide range of evidence’ including:
    • The child’s academic attainment and rate of progress;
    • The nature, extent and context of the child’s SEN;
    • The current provision in place for the child;
    • The child’s physical, emotional and social development and health needs.
  4. It should gather this evidence from the relevant care professionals who would include, teachers, paediatricians, therapists such as speech and language therapists and child psychologists.

Special Educational Needs and Disability Regulations 2014

  1. Where a council decides not to create an EHCP, the parents have the right to request a mediation. (Regulation 32)

Content of the EHCP

  1. Part F of an EHCP contains details of special educational provision. Once agreed, a Council is legally obliged to ensure the contents of Part F are provided.

The localities model

  1. In 2016, the Council introduced ‘the localities model’ for the distribution of SEN funding. A question and answer page on the local parent/carer forum dated 28 June 2018 stated, ‘The localities model has only recently been set up, and there is still a lot of confusion about how it should work’.
  2. The page contains the following statement: ‘There was insufficient guidance from the local authority when the model was first implemented which resulted in a lack of consistency. Efforts are now being made to address this’.

What happened

  1. Mr and Mrs C live in the Council’s area. They have a child, CC, who was born in 2005 and was 11 in January 2017. At that time, CC attended a primary school in the Council’s area.
  2. CC is of average cognitive ability or above. But he has difficulty in communicating and is dyslexic. He has been on the SEND register since 2013. He was diagnosed with an autism spectrum disorder (ASD) in October 2016.
  3. In late January 2017, Mr and Mrs C asked the Council to assess CC for an EHCP. The Council gathered information from professionals involved in CC’s education and care.
  4. On 10 March 2017, the Council wrote to Mr and Mrs C saying it proposed to carry out an EHC needs assessment. It wrote to the relevant health and care professionals asking for their input.
  5. In March, Mrs C says CC became more anxious about attending school. He became ‘more volatile’ and more stressed leading to meltdowns.
  6. A multi-agency meeting was held on 3 May 2017 after which the Council wrote to Mr and Mrs C to inform them that it had decided not to prepare an EHCP for CC.
  7. Mr and Mrs C asked for a mediation which took place in late June. After the mediation, held in late June 2017, the Council agreed to create an EHCP.

The assessment

  1. There was delay during the EHCP process caused by an injury to a key member of staff. The Council sent Mr and Mrs C a draft EHCP in mid-October 2017.
  2. On 23 October 2017, Mr and Mrs C agreed C should attend a local school also attended by his sibling. Mr and Mrs C made amendments to the draft.
  3. In January 2018, the school calculated it would cost £23,138 at least, to provide the provision stipulated in Part F. In February 2018, Mrs S of the school told the Council it could not provide everything in the EHCP without more funding.
  4. The Council issued a final agreed EHCP on 21 March 2018. The special educational provision set out in Part F was, as it had been in the draft, detailed. The report required the school to provide
        • Key people around him who understood his condition;
        • A full-time keyworker. To facilitate the relationship with the keyworker, 30 minutes fun activity together;
        • Sufficient teaching assistant (TA) support in all lessons involving writing to ensure that his attendance. 1:1 TA support in English (3hrspw), Spanish (1hrpw) 2:1 TA support in science and computer science (1hrpw each). 1:1 support for all tests. To sit next to the TA.
        • A coordinated anxiety plan;
        • Adequate staff ratios and one-to-one support in curriculum areas with significant written work;
        • Shortened writing tasks for class and homework;
        • Encouragement to use alternative ways of recording ideas or work (such as mind maps, laptops or voice recognition software);
        • Shortened writing tasks for all homework and school tests;
        • Weekly, specialist dyslexia support from a qualified teacher;
        • Access to a laptop for all classes where written work takes place;
        • To be taught to use dictation software;
        • Access to a TA in other lessons;
        • Membership of a group of other pupils with ASDs to discuss their abilities and disabilities at least once every ten weeks;
        • Involvement in small groups to facilitate social emotional aspects of learning;
        • Sensitive management to avoid causing anxiety. For example, no sanctions for homework.
  5. On receipt of the EHCP, Mrs S wrote to the Council’s head of special educational needs, Officer O, again saying that, without extra funding, it could not meet Part F and there was no process for the school to apply for more funding. She also said that, while this was called a final EHCP, the school had not signed it off.
  6. Officer O forwarded Mrs S’s email to a manager, Officer P, who said he would be happy to meet her to discuss the matter but that:
      1. There was no further funding available as this had already been ‘delegated to the localities for delegation to schools in locally agreed ways. If schools are dissatisfied with the way that funds are delegated within the locality, it is worth sharing your concerns directly with the other locality members to discuss whether the current model is the most effective model to meet the needs of complex pupils’.
      2. It was not usual for schools to sign off on EHCPs. The Council asked schools for input before issuing the EHCP. He offered to discuss the matter.
  7. Mr and Mrs C were pleased with the provision set out in Part F of the EHCP. The school invited them to discuss provision on 28 March but cancelled the meeting. It arranged another for 30 April but this was cancelled because the Council representative was ill.
  8. Mr C complained to the Council in May 2018. Officer O responded to Mr C’s complaint on 9 July 2018. He said the school had yet to apply for funding. He said funding was available and the school was being supported in applying for it. He said that, once funding was in place, if there was still a problem with provision, Mr C should contact the school directly.
  9. Officer P forwarded Officer O’s letter to Mr C. On receipt, Mr C replied saying he was dissatisfied with the response. He said the school had calculated the costs and it was the Council’s responsibility, not his, to ensure provision was in place.
  10. In August 2018, Officer O wrote to the school. He said the school must provide Part F provision and asked why it had not.
  11. The Council’s director of commissioning, inclusion and learning reviewed Officer O’s complaint response and wrote to Mr C in late September 2018. She said that Officer O’s response had been accurate and clear but, because of the stress the family was under, he could have provided clearer delivery times. She said the Council would introduce:
    • Formal notifications of schools and locality leads once an EHCP had been approved;
    • Improved relationship management and communication;
    • Introduction of locality-based parent and family drop-in sessions to improve opportunities for families to share experiences and influence service development;
    • increased training and awareness in schools to ensure everyone is aware of statutory responsibilities and can access resources appropriately.
  12. At about the same time, Officer O wrote to the school and asked whether provision was now in place. The deputy head wrote back saying that it was although CC had ceased one subject to avoid anxiety.
  13. Officer O then wrote to Mr C telling him what the deputy head had said and asking for his comments. In early October 2018, Mr C wrote back to him saying that the issue had now been resolved.
  14. Mr and Mrs C deny this was the case. They say, in fact, adequate provision was not in place until the spring term of 2019. Even now, there are days when it is not but the overall package is satisfactory and CC attends school regularly.

Was there fault causing injustice?

Delay

  1. Mr and Mrs C have not complained to the Ombudsman about delay. Nonetheless, there was delay. The Council initially refused to issue an EHCP but agreed to do so at the mediation meeting of 26 June 2017. It did not issue a final EHCP until 21 March 2018; more than 38 weeks later. This was fault.

Failure to provide educational provision in Part F

  1. The EHCP is a legal document and councils have the legal duty to provide whatever education is stipulated in Part F of any EHCP without delay. The Council signed off the final EHCP in March 2018 having been warned by the school that it would not be able to make the provision without additional funds.
  2. It is clear that, at the time, ‘the localities’ system was not working. The local parent carer forum said that it was not working in June, three months later and Mr and Mrs C say the EHCP provision was not provided to an adequate level until January 2019.
  3. The school had warned in February 2018 it would not be able to meet the requirements of Part F, though it later realised it had overestimated the costs involved. The Council agreed the EHCP regardless then blamed the school for the failure. The provision set out in Part F was not provided until January 2019. This was fault.
  4. The Council had set up a system in which those approving EHCPs did not need to have any regard to the school’s views as to whether Part F was deliverable. This was likely to lead to such instances.
  5. In the director of commissioning, inclusion and learning’s response to Mr C, she said the Council would, in future, formally notify schools of the contents of an EHCP. It is extraordinary, given that it expected the school to comply with it, that it did not do so already.
  6. Even when the teething troubles caused by the introduction of the localities system are solved, it is likely that similar problems will occur again. This will not be acceptable to the Ombudsman. The statutory responsibility will remain with the Council. It cannot offload it to the schools or localities.

The complaints process

  1. The Council did not address Mr C’s complaint. Mr C said ensuring provision was in place was the Council’s statutory responsibility. This was fault. The fault was the Council’s and it should have addressed his complaint and admitted its fault.

Agreed action

  1. The Council has agreed, within two weeks of the date of my final decision, to:
      1. Apologise to Mr and Mrs C and to CC;
      2. Pay Mr and Mrs C £300 for the time and trouble they were put to and the distress they were caused;
      3. Pay CC £1400 for educational provision lost and the distress caused by that (£200 for every month of inadequate provision);
  2. Within three months, the Council will write to the Ombudsman and explain:
      1. How many similar complaints it has had since introducing the localities system and how much higher or lower than the previous level, if applicable;
      2. Its assessment of the success of failure of the localities system;
      3. The steps it has taken to improve the system since its introduction; and
      4. Its view on whether it is sensible to approve provision of EHCPs when schools have stated they cannot provide the care set out in them.

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Final decision

  1. I have made my final decision and closed my investigation.

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Investigator's decision on behalf of the Ombudsman

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