Sheffield City Council (18 014 232)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 31 Jul 2019

The Ombudsman's final decision:

Summary: The Ombudsman upholds Mr X’s complaint about the delay in finalising an Education, Health and Care Plan for his son, C. The Council missed three opportunities to consider whether to assess C. Once it decided to asses, the Council took twice as long as it should have to issue the plan and this meant C missed out on provision. To remedy the injustice caused, the Council will apologise to Mr X and C and pay £1,600 to account for C’s lost provision. It will also make a payment to Mr X for the lost opportunity to appeal against the Council’s decision not to assess C, and for his time and trouble in making the complaint. Finally, the Council will ensure it keeps draft copies of plans issued to parents; reminds staff of the process of early referral for a needs assessment; and reminds schools about the correct process for excluding children from school. There was no fault by the Council in ensuring C received full-time education.

The complaint

  1. Mr X complains the Council delayed in finalising his son’s Education, Health and Care Plan. He also complains the Council failed to ensure his son received full-time education once he reached compulsory school age. Mr X says this delayed his son’s progress and caused the family avoidable distress.

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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. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’)
  3. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
  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. I have considered the complaint made by Mr X and the documents he provided.
  2. I considered the Council’s comments about the complaint and the documents it provided in response to my enquiries.
  3. I took account of the following Ombudsman’s focus reports:
    • ‘Out of school…out of mind? How councils can do more to give children out of school a good education’ published in September 2011.
    • ‘Education, Health and Care Plans: our first 100 investigations’ published in October 2017.
  4. I gave Mr X and the Council an opportunity to comment on my draft decision and I considered their responses.
  5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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What I found

Background

Education, Health and Care Plans

  1. The Children and Families Act 2014 sets out how support will be provided to children with special educational needs and disabilities (SEND). The ‘Special education needs and disability code of practice’ gives more details about how councils, schools and others should carry out their duties.
  2. Most children and young people will have their SEND needs met within early years settings, schools or colleges without any need for involvement from a council. The Council in this case calls this ‘SEN Support’.
  3. Children with more complex needs might instead need an Education, Health and Care plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. Before deciding a child may need an EHCP, councils must carry out a needs assessment.
  4. Parent and carers have a right to ask for a needs assessment at any time. Schools and others who think a needs assessment may be necessary can also bring a child or young person to the attention of a council.
  5. The code of practice says following a request for a needs assessment, “or the child or young person having otherwise been brought to its attention,” a council must decide whether one is necessary. In deciding, a council must consult the child’s parents and must tell them of its decision within a maximum of six weeks of receiving the request. Where it decides not to assess, a council must give its reasons and tell parents of their right to appeal the decision.
  6. The code of practice says the whole process from asking for a needs assessment to issuing the final EHCP must take no more than 20 weeks. It also says, “It is particularly important in the early years that there is no delay in making any necessary special educational provision. Delay at this stage can give rise to learning difficulty and subsequently to loss of self-esteem, frustration in learning and to behaviour difficulties. Early action to address identified needs is critical to the future progress and improved outcomes that are essential in helping the child to prepare for adult life.”
  7. The Council in this case expects schools to use a template called ‘My Plan’ to coordinate SEN support for children with additional learning needs. The Council usually expects the My Plan to be reviewed at least twice before a school sends a request for an Education, Health and Care needs assessment. However, its guidance also says sometimes children may have such significant difficulties that it would be inappropriate to wait, and an earlier request should be made.

Attendance at school

  1. The School Admissions Code says children should attend school full-time once they reach compulsory school age. This is the term after they turn five. Until then, children can attend part-time.
  2. There is no statutory definition of the number of hours which make up full-time education. The Ombudsman’s focus report on children out of school referred to in paragraph 8 says the number of hours of teaching should vary according to the age of the child. For children in reception class, full-time education would be 21 hours a week. The Council’s ‘Entry to Primary Guide’ says full-time education is 25 hours per week.
  3. The Education Act 1996 says councils must make arrangements for suitable education for children of compulsory school age who, because of illness, exclusion or otherwise, would not receive a suitable education without such provision. This should be full-time unless this would not be in the child’s best interests.
  4. The School Attendance guidance says for children of compulsory school age a part-time timetable may be necessary in exceptional circumstances. It should not be a long-term solution.
  5. The statutory guidance ‘Exclusion from maintained schools, academies and pupil referral units in England’ says “‘informal’ or ‘unofficial’ exclusions, such as sending a pupil home to ‘cool off’, are unlawful, regardless of whether they occur with the agreement of parents or carers. Any exclusion of a pupil, even for short periods of time, must be formally recorded.”
  6. The Council issued guidance to schools on the use of reduced timetables in February 2018 and updated it in September 2018. This says schools cannot use a reduced timetable without the agreement of parents. It should be time limited with clear dates for review. The school should tell the Council and send it a copy of the reduced timetable plan. A reduced timetable should usually last no longer than one half-term with a suggested maximum of eight weeks.

What happened?

Education, Health and Care Plan

  1. Mr X’s son, C, is six years old. C was diagnosed with autistic spectrum disorder and learning difficulties at the age of three. He attended a local mainstream nursery attached to a primary school.
  2. C had complex speech and language needs, as well as sensory and learning difficulties. He had difficulties with social interactions and communicating verbally. He showed some challenging behaviours at home and at nursery and needed constant adult supervision.
  3. In August 2016, following C’s diagnosis, his clinical psychologist, speech and language therapist and consultant paediatrician sent a summary of their assessment reports to the Council. There is no evidence the Council considered whether or not to carry out a needs assessment in response to this.
  4. The school began providing support to C through a My Plan in November 2016.
  5. A review of the My Plan took place in January 2017. C’s mother attended and said she would like C to attend a specialist provision in the future. The school’s Special Educational Needs Coordinator (SENCo) told her C would need an Education, Health and Care Plan for this to happen. C’s mother agreed this was what she wanted and the SENCo said she would look into what needed to happen. The SENCo documented that she spoke to the Council following the meeting and it told her the applying for an EHCP involved “reviews, application [and] panel.” The Council did not make a formal decision about carrying out a needs assessment.
  6. In April 2017 C’s mother attended another meeting at school with the SENCo and an Educational Psychologist from the Council. C’s mother expressed her concerns about C’s behaviour. The Educational Psychologist said C’s My Plan would be reviewed one more time to ensure the request for a needs assessment would be agreed.
  7. At the same meeting it was agreed that C, who should have been moving up to reception class with his peers in the new school year, would remain in the nursery setting. It was also agreed to increase his attendance to four afternoons a week in readiness for attending 15 hours a week from September 2017.
  8. The SENCo spoke to the Council in early May 2017 to ask if it agreed to C remaining in nursery and not moving up to the next stage with his peers. She told the Council C’s parents would like him to attend specialist provision soon. She said C struggled to access any provision and the nursery was appointing a third member of support staff as he needed constant watching. The Council agreed for C to be held back.
  9. I asked the Council why it did not consider the need for a needs assessment for C following this phone call. It said it believed there was not enough evidence that special educational provision was needed.
  10. In September 2017, Mr X wrote to the Council to ask for an Education, Health and Care needs assessment. A month later, the Council agreed to assess.
  11. Based on the date of the request, the Council should have issued the final EHCP by the beginning of February 2018.
  12. The Council sent a first draft to Mr X in April 2018 although it could not provide me with a copy. It said draft copies were overwritten. It issued the final EHCP at the end of June 2018, 40 weeks after the request.
  13. The Council said the delay was due to staffing difficulties and a high workload. It said when Mr X asked for a needs assessment for C, the Council was working on converting all existing statements of special educational need to EHCPs. The Council said it now carries out twice weekly monitoring to ensure plans do not exceed statutory timescales, and has increased and stabilised its workforce.
  14. The EHCP set out the provision for C. This included a high degree of staff input, speech and language intervention, and daily sessions focusing on building relationships, vocabulary, emotional regulation, cooperative play and self-care. The EHCP named a local special school.
  15. Mr X disagreed with the school named in the EHCP and some of the other content and appealed to the SEND tribunal. While waiting for the appeal, C took part in transition activities at his current school in readiness for joining the reception class from September 2018. However, before the new school year started C moved out of the area and started at a different school shortly after.

Attendance at school

  1. C started the school year in September 2017 by attending for afternoons only, increasing to some full days as the year went on.
  2. C became compulsory school age on 1 April 2018. Following this he remained on a reduced timetable of three full days and two afternoons. This equated to attendance totalling 24.5 hours.
  3. At the end of April 2018, the school documented that C was showing increasing distress especially on his full days. Records show C’s mother decided to reduce his attendance to two full days and three part-days, totalling 21 hours per week.
  4. The Council said C was known to its attendance and inclusion team. Its records show discussions took place between the team and the school four times between February 2017 and June 2018. The team gave advice to the school about reviewing and increasing C’s timetable and accurately recording this on the register.
  5. Mr X said the school was regularly contacting C’s mother to collect him early. The school acknowledges this in a response to a complaint made to it by Mr X. It said there were times when C was not coping despite the reduced timetable and could not be calmed and so his mother came to take him home. The school said this was not an exclusion. It said this often happened in nurseries and sometimes in infant schools when children are upset.

Analysis

Education, Heath and Care Plan

  1. Health professionals notified the Council in August 2016 that C had a special educational need or disability. There is no evidence the Council complied with its statutory duty to consider undertaking an assessment. It did not consult with C’s parents or tell them of its decision not to assess. This was fault.
  2. C’s mother asked for an assessment of C’s needs in January 2017, via the school’s SENCo. Again, the Council did not acknowledge the request, consult with C’s parents, or tell them of its decision not to assess. This was fault.
  3. The Council missed a third opportunity to consider carrying out a needs assessment in May 2017, when the SENCo set out the difficulties C was having despite the provision which was already in place.
  4. It is not possible for me to say whether the Council would have assessed C at these times. However, if it had decided not to assess, or had assessed but decided not to issue an EHCP, C’s parents would have had recourse to the SEND tribunal if they were unhappy with the decision. If the Council had decided to assess and issue an EHCP, C might have received the identified provision much sooner than he did.
  5. Once the Council received Mr X’s request for assessment, it took 40 weeks to issue the final EHCP. This was a delay of 20 weeks and this was fault. As a result, C missed out on the provision set out in his plan.
  6. The delay also meant decisions about where C would attend from September 2018 came very late, leaving little time to arrange for any transition before the school year finished.

Attendance at school

  1. The Council took the correct steps to discuss C’s reduced timetable with the school and provide advice on increasing this as time progressed. I cannot find fault with the Council for C’s mother’s decision to reduce his timetable once he became compulsory school age.
  2. The Ombudsman and the Council use different definitions of how many hours constitutes full-time education. In the period C was of compulsory school age, his timetable did not drop below the lower threshold of 21 hours. Therefore, I am satisfied there was no failure on the Council’s part to provide C with full-time education.
  3. As outlined in paragraph 4, I cannot comment on or investigate the actions of the school. As the school had not formally excluded C and he was not absent due to ongoing illness, there was no duty on the Council to provide alternative provision. So, I cannot find fault with the Council for not taking any action about this.

Agreed action

  1. Within one month of the final decision, to remedy the injustice caused the Council will:
    • apologise to Mr X and C for the faults identified in this investigation.
    • pay £1,600 to Mr X in recognition of C’s lost provision caused by the delay in finalising his EHCP. This is based on a total delay of four months, accounting for school holidays in that period. Given C’s difficulties and the fact it was his first year of compulsory schooling, I consider £400 for each month of delay to be an appropriate remedy. Mr X can use this for C’s educational benefit to ensure he catches up, as far as possible, on provision he missed out on.
    • pay £450 to Mr X in recognition of the three lost opportunities to exercise his appeal rights when the Council failed to consider carrying out an assessment of C’s needs.
    • pay a further £250 to Mr X in recognition of his time and trouble in pursuing a needs assessment and later a complaint with the Council.
  2. Within one month of the final decision the Council will:
    • review its procedures to ensure that when it receives a notification that a child in its area may have special educational needs, it consults parents and other professionals to reach a decision about assessing the child within six weeks;
    • amend its processes to ensure it retains copies of any draft EHCPs issued to parents. This will ensure there is a clear audit trail of any changes made as the plan progresses.
    • remind officers working with children of the Council’s own guidance as set out in paragraph 17 regarding early referrals for EHCP needs assessments where necessary.
  3. By the end of September 2019, the Council agreed to issue a reminder to schools in its area about the inappropriate use of ‘informal’ or ‘unofficial’ exclusions.

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Final decision

  1. I uphold the complaint about the delay in issuing C’s EHCP for the reasons set out in the Analysis section of this decision. I do not uphold Mr X’s complaint about C’s full-time education.

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Investigator's decision on behalf of the Ombudsman

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