London Borough of Richmond upon Thames (19 002 602)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 11 Sep 2020

The Ombudsman's final decision:

Summary: Mr C says the Council delayed in reviewing his son X’s education, health and care plan. He says this caused injustice because his education suffered. The Council was at fault. The Council has agreed to apologise and pay a sum to X in recognition of his missed education and a sum to Mr C in recognition of the time he took and the trouble he went to.

The complaint

  1. The complainant, who I have called Mr C, says the Council delayed in reviewing the education, health and care plan (EHCP) it had issued for his son, who I have called X. He says this caused X injustice as he found his education at the school named in his EHCP stressful and he fell behind in his education. He also says it caused him injustice personally as he spent many hours attempting to make the Council change its position.

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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. We cannot investigate a late complaint unless we decide there are good reasons. A late complaint is one made more than 12 months after something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  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)
  5. 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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How I considered this complaint

  1. I spoke to Mr C. I wrote an enquiry letter to the Council. I considered the Council’s response alongside the relevant law and guidance.

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What I found

What should happen

Education Health and Care Plans

  1. The responsibility for providing support to children and young people with special educational needs (SEN) and/or a disability is shared between Councils and education settings.
  2. Most children and young people will have their SEN needs met within early years settings, schools or colleges without any need for involvement from the Council. This level of support is known as SEN Support.
  3. Children with more complex needs might need an educational health and care plan (‘EHCP’). Councils are the lead agency for carrying out assessments for EHCPs and have the statutory duty to ensure special educational provision in an EHCP is made available.
  4. The responsibilities of the Council, settings and partner agencies (including health bodies) are set out in the Children and Families Act 2014 and associated Regulations and statutory guidance, The SEN Code of Practice 2015 (The Code). Agencies are expected to work in an integrated way, with the child and family fully included in decisions.
  5. If a child receives an EHCP, the Council must ensure the child receives the education specified in it. The EHCP is split into sections. Educational provision listed in Section F must be provided. A school should be named in Section I. If it is, then the Council must ensure that the child attends that school.
  6. If a parent does not like the contents of an EHCP, they have a right of appeal to the Tribunal. They can only appeal once the EHCP is completed.

Annual review

  1. EHCPs should be reviewed annually. Also, where an educational placement has failed, a review should be held. Where the child’s needs have changed, a fresh EHCP should be prepared and issued within???

Emergency review

  1. Parents can ask for an early review of an EHCP if they have good reason to do so. Good reasons include:
    • where a placement has failed;
    • Where a child’s needs have changed; or
    • Where the child has been excluded or is at risk of exclusion.

Appeal

  1. Once a council has made a decision to alter an EHCP, it must inform the parents of the changes and of their right of appeal. The Ombudsman cannot find fault with a council for the contents of an EHCP. That is a matter for the Tribunal. However, the Ombudsman can investigate whether there has been undue delay. If the Council is responsible for delay in making a decision, we can find fault and propose a remedy.

Achieving for Children

  1. The Council has outsourced its children’s services to Achieving for Children (AfC) an independent provider which provides children’s services to three neighbouring councils including the Council.

What happened

Time

  1. Although certain events took place more than 12 months before Mr C complained to the Ombudsman, this was because he appealed a Council decision to the Tribunal. Therefore, I have used our discretion to investigate.

Background

  1. X was born in mid-2008. In 2012, he began to attend a local primary school, School 1. In 2016, he was diagnosed with an autism spectrum disorder and attention deficit hyperactivity disorder.
  2. The Council issued an EHCP in July 2016. This specified that X should have the following provision:
    • 13.5 hours per week of Teaching assistant support;
    • 6 speech and language therapist visits per year;
    • 1.5 hours per week specialist teacher time.
  3. Mr C did not believe that the EHCP provided adequate support for X. He believed the Council. He complained to the school and AfC frequently. Initially, he thought X would catch up with extra support. In fact, he says, X began to lag further behind his peers. He came to believe that X would never thrive in this school because of his particular needs.
  4. The first annual review of X’s EHCP was held in July 2017. Mr and Mrs C attended. The documents show that the parents were happy with some of the provision but were also concerned that X needed help with his anxiety.
  5. At the review meeting a range of changes to the EHCP, which AfC has described as ‘tweaks’, were suggested by the school pending the Council’s agreement.
  6. The Council accepts that it did not process the product of this meeting or incorporate suggested changes into the EHCP.
  7. Mr C continued to be dissatisfied with the provision. He says the school’s special educational needs coordinator left and the problems got worse. X’s attendance rate fell below 80%. The Council sent a written warning to Mr and Mrs C.
  8. In March 2018, there was an emergency review of X’s EHCP. The suggestion was that X’s 1:1 teaching assistant support should increase to 22 hours weekly. The Council felt it needed further Information before amending the EHCP and said it would gather it. For various reasons, this information was not gathered until November 2018.
  9. At the same time, Mr C, by now convinced that School 1 was not able to provide a suitable education for X, began to investigate alternatives including School 2, a private school in a neighbouring borough which specialised in teaching children with mild ASD. X attended a trial period there. Mr C wrote to the Council. An officer told him that X’s needs were not severe enough to justify this expense.
  10. In April 2018, Mr C complained to AfC that the Council had not yet issued a revised EHCP. AfC responded in mid-May 2018 upholding his complaint and saying it would provide a fresh EHCP by the end of May. It did not do so.
  11. In fact, Mr C did not receive the new EHCP until November 2018. Mr C was not happy with the revised EHCP. It named School 1 in Section I whereas Mr C wanted School 2 named.
  12. Mr C appealed to the Tribunal which heard the appeal in May 2019. It upheld Mr C’s appeal and recommended that X should attend School 2. He began attending School 2 in September 2018 and is, Mr C says, very happy there.

Was there fault causing injustice?

Educational provision

  1. Mr C says the majority of the fault lies with School 1 but that the school was ‘given the green light’ by the Council and AfC. The Ombudsman cannot comment on internal school matters. Nor can we look at the contents of the EHCP. We can only look at whether the Council ensured that the contents of the EHCP were in place and whether there was unacceptable delay in administrative matters.
  2. The Council did ensure that the contents of the unamended EHCP were in place but it was responsible for a lengthy delay in processing revisions to the EHCP. This was fault.

Delay

  1. Annual reviews should be held after a year. X’s first annual review was held in early July 2017; one week after this deadline. I do not intend to find the Council at fault for this. It cannot realistically be expected to hold all reviews a year to the day after the EHCP begins. Missing the deadline by a week was not fault.
  2. The Council accepts there was undue delay in issuing the revised EHCP. It did not issue a new EHCP after the July 2017 review. This was fault. Nor did it issue a revised EHCP after the March 2018 emergency review until November 2018. This too was fault.

Injustice

  1. While the Council was at fault for its failure to amend the EHCP in July 2017, I accept AfC’s argument that the changes were ‘tweaks’. I do not believe that I can find, on the evidence I have seen, that X’s anxiety increased after July 2017 because of the failure to amend the EHCP.
  2. However, by March 2018, X’s relationship with the school had deteriorated to such an extent that an emergency review was necessary. Again, there was delay in issuing an amended EHCP. It was not issued until November 2018.
  3. Mr C says the Council failed to include recommendations from the July review in the EHCP. I cannot find fault with the Council for the contents of the revised EHCP. I can only find fault for the delay.
  4. Had the Council issued the revised EHCP in April 2018 as it should have done, Mr C could have appealed this decision earlier. This was an injustice. However, Mr and Mrs C did not find out about School 2 until May 2018 so they could not have appealed on the ground that X should go there if AfC had processed the review more quickly.

Remedy

  1. The Ombudsman’s guidance on remedies says that, where council fault has led to a loss of educational provision, we will usually recommend a remedy payment of between £200 and £600 a month to acknowledge the impact of that loss. The level should depend on the amount of provision lost, the stage in the child’s career and so forth.
  2. X is, by his parents’ account, happy at School 2 which provides the education he needs. He was unhappy at School 1 to the extent that he was unable to attend much of the time. Therefore, I decided the loss of educational provision was towards the higher end and that a remedy of £400 a month is suitable.
  3. Mr and Mrs C sent X to an open day at School 2 in May 2018. They could not have requested the Council sent X to that school before then. The Council provided the new EHCP in early November 2018. In between, there were four school months. This makes a total of £1600.
  4. Mr C also spent a great deal of time writing to the Council about this matter. This was an injustice to him. I recommended that the Council pay him £300 in recognition of this.

Agreed action

  1. Within four weeks of the date of this decision, the Council will:
      1. Write and send letters of apology to X and Mr C;
      2. Pay X £1600 in recognition of the missed educational opportunity caused by the delay.
      3. Pay Mr X £300 in recognition of the time and trouble he took.

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Final decision

  1. I have found the Council at fault. The Council has accepted this finding and agreed a remedy. I have closed my investigation.

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Investigator's decision on behalf of the Ombudsman

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