Summary: Mrs B complained that the Council failed to ensure her daughter C received the provision outlined in her EHC Plan. This significantly affected C’s mental health and she was unable to attend school for a term. We find fault by the Council and it has agreed to pay £1000 for the educational benefit of C.

The complaint

1. Mrs B complains that Lincolnshire County Council (the Council) failed to ensure the provision detailed in her daughter’s (C’s) Education, Health and Care plan (EHC plan) was implemented. This caused a severe deterioration in her mental health and absence from school.

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What I have investigated

2. I have investigated the period up to 26 June 2019 when the Council issued the final EHC plan. The period from the date the right of appeal arose (26 June 2019) until the appeal ended (19 December 2019) is outside the Ombudsman’s jurisdiction.

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The Ombudsman’s role and powers

3. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
4. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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.
6. 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.
7. 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)
8. 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

9. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided.
10. 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

11. Mrs B’s daughter, C, has a number of health conditions, including sight and hearing impairments. She has had an EHC plan for many years and had been attending a local specialist school (School Z) since 2016. Her EHC plan stated that C should have access to a member of staff with intervenor training throughout the full school day and 1:1 support for all activities from staff who are experienced and who have an understanding of multi-sensory impairment and sensory integration disorder.
12. In May 2018 School Z changed C’s intervenor and she had to have a part-time timetable to adjust to the change.
13. In November 2018 an annual review of C’s EHC plan was held School Z to discuss C’s move to further education. Amendments to the EHC plan were requested. On 25 January 2019 the Council requested the Annual Review paperwork from School Z. The Council received the papers on 14 February 2019.
14. In February 2019 the class teacher became the intervenor, so could no longer give C full-time 1:1 support. C was given 24 hours’ notice of this change and it meant that C could not access any of the external trips. She again had a reduced timetable attending for two full and two half days only. She was also very distressed by the change
15. In March 2019 Mrs B attended a meeting with the school, and the Council to discuss the situation. They noted that the changes had affected C adversely and even with the reduced timetable she was getting worse. The Council reminded the school of the details of provision, the need to avoid changes and if unavoidable to discuss them first with Mrs B.
16. School Z told the Council that all the provision in C’s EHC plan was in place and the interim staffing arrangements would only last for six weeks. The Council emphasised that School Z needed to communicate changes with Mrs B and suggested a further meeting was needed.
17. In early April 2019 the Council formally proposed amendments to the EHC plan.
18. In April 2019 when C returned to school after the Easter holidays, her intervenor had been transferred to another class. C’s mental health deteriorated significantly and she was no longer able to attend school.
19. The Council sent the amended EHC plan to Mrs B on 2 May 2019. At this point it was proposing to continue to name the current school as the school considered it could still meet C’s needs. Mrs B disagreed and said C became very distressed at the suggestion she should return to that school.
20. Mrs B submitted a complaint in early May about the changes to C’s provision, the lack of Occupational Therapy (OT) sessions (should have been half-termly but C had only had one), and the failure of the Council to carry out a Habilitation and Mobility assessment for C in accordance with the law (which affected her ability to participate in external trips and activities involving public transport or unfamiliar places).
21. The Council replied on 20 May 2019. It said it had fully discussed with School Z at the annual review meeting in March 2019, the requirements of the EHC plan in respect of the intervenor and apologised for the fact this was not adhered to. It said it had reminded School Z again of the need to stick to the EHC plan provision. It said it would contact the school in respect of the OT provision. It said School Z was planning to undertake a Habilitation and Mobility assessment. It said School Z remained confident it could still meet C’s needs.
22. Mrs B escalated her complaint to stage two of the complaints procedure on 28 May 2019. She said the meeting in March 2019 was not an annual review meeting but to discuss the deterioration in C’s health and reintegrate her into school. Mrs B said School Z agreed it could not meet her needs and would say so on the relevant paperwork. Mrs B also reiterated the impact of the suddenness of the changes on C, disputed that School Z could meet C’s complex needs and repeated the statutory requirement to carry out a Habilitation and Mobility assessment.
23. The Council replied on 25 June 2019 after meeting with Mrs B to discuss her complaint. It said it would issue the final amended EHC plan and arrange a meeting with School Z for the beginning of July 2019 to discuss a suitable placement for C for September 2019. It apologised for referring to the meeting in March as an annual review. It gave a further explanation for the staffing changes which affected the provision of C’s intervenor and accepted C had not had 1:1 support throughout the periods highlighted by Mrs B (six weeks in February/March 2019 and three days in April 2019). The Council also said it would discuss the assessments and the need to fully prepare C if any further changes to staffing were planned.
24. The Council issued the final amended EHC plan on 26 June 2019 naming School Z as suitable provision.
25. On 31 July 2019 the Council wrote to Mrs B saying it now agreed that School Z could not meet C’s needs and it would consult with other places, including a school of Mrs B’s choice in a different part of the country. It apologised for the lack of notice of the staffing changes and the impact on C, the occasions when C did not have 1:1 intervenor support and the failure to ensure the mobility assessment was completed. It also acknowledged that C had only had one OT session this year because the provider had withdrawn their service. It apologised for not addressing the gap in service more quickly.
26. Mrs B appealed against the content of the EHC plan and the named school.
27. C started at a new school in September 2019.

Analysis

28. The Council accepts that C did not receive the correct support as detailed in her EHC plan:
• her 1:1 Intervenor was removed, without adequate notice, for six weeks in February 2019 and three days in April 2019. This meant C was reduced to a part-time timetable. It affected her mental health significantly and she was unable to attend school at all.
• She had only received one out of six OT sessions that academic year; and
• She had not received a mobility assessment which meant she had been unable to participate in all the external activities including a weekly visit to a local college.
29. I cannot identify any delay in the way the Council dealt with Mrs B’s concerns: it held meetings promptly and reminded the school of the need to adhere to the provision detailed in the EHC plan on several occasions. It also listened to Mrs B’s concerns about the ability of School Z to meet C’s needs and took action to find another school for the beginning of the new academic year.
30. Despite its efforts the problems continued, and C missed out on approximately a term of education. The Council accepts it was ultimately responsible for the lack of provision to meet C’s needs.

Agreed action

31. In recognition of the injustice caused to C, I asked the Council (within one month of my final decision) to pay Mrs B £1000 to be used for the educational benefit of C.
32. The Council has agreed to my recommendation.

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Final decision

33. I consider this is a proportionate way of putting right the injustice caused by the fault and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman