Royal Borough of Greenwich (19 002 603)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 11 Oct 2019

The Ombudsman's final decision:

Summary: Mr X complains the Council has not adequately remedied its failure to maintain his son’s Education and Health Care Plan, causing financial loss. The Ombudsman finds the Council at fault and recommends it refunds Mr X for provision he funded; pays an amount for loss of provision; pays £500 for time and trouble and takes steps to minimise the risk of recurrence.

The complaint

  1. Mr X complains the Council has not provided an adequate remedy for its failure to properly maintain his son’s Education and Health Care Plan (“EHCP”). He is unhappy the Council has not:
    • reimbursed the full costs of Occupational Therapy which Mr X arranged because the Council failed to do so;
    • agreed to reimburse the costs of an Educational Psychologist’s report, which Mr X commissioned;
    • paid the amounts set out in its final complaint response of 18 December 2018.
  2. Mr X says he has suffered financial loss.

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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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  3. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
  4. 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.
  5. 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 X and I reviewed the documents provided by Mr X and the Council. I gave Mr X and the Council the opportunity to comment on a draft of this decision and I considered the comments provided.

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What I found

  1. The Department for Education publishes statutory guidance, the SEND Code of Practice, which sets out the duties of councils.
  2. Councils must review an EHCP at least every 12 months.
  3. Within 2 weeks of the review meeting the school must provide a report setting out any recommended amendments to the EHCP.
  4. Within four weeks of the review meeting, the council must decide whether it will keep the EHCP as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school.
  5. If the plan needs to be amended, the council should start the process of amendment without delay.
  6. The council must send the draft EHCP to the child’s parent and give them at least 15 days to give views and make representations on the content.
  7. When changes are suggested to the draft EHCP and agreed by the council, it should amend the draft plan and issue the final EHCP as quickly as possible.
  8. Where the council does not agree the changes suggested by the child’s parent it may still proceed to issue the final EHCP.
  9. In either case the council must notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so.

What happened

  1. In November 2015 the Council signed a Tribunal settlement agreement and issued an EHCP for Mr X’s son, Y. Of relevance to the complaint this says:
    • The Council will fund Occupational Therapy (“OT”) for the year 2015/16 and then review the programme.
    • Y will take part in weekly activities under the supervision of a qualified Speech and Language Therapist to improve his memory, concentration and motor processing speed.
  2. The Council carried out annual reviews of Y’s EHCP in March 2016 and June 2017.
  3. In August 2017 Mr X complained to the Council about its failure to properly maintain Y’s EHCP and provide the support set out. He said OT had stopped in 2016 and he had arranged to pay this himself from September 2017. He also complained there was no SALT provision.
  4. The Council provided a stage one response on 12 April 2018. This says it:
    • did not amend Y’s EHCP following the March 2016 annual review;
    • has not yet amended Y’s EHCP following the June 2017 annual review;
    • overlooked these actions due to changes in staff;
    • did not review OT provision after 2015/16;
    • considers the reference in the 2015 EHCP to weekly SALT activities is incorrect as it is not supported by evidence;
    • has provided SALT since March 2018 following recommendations in the June 2017 annual review;
    • delayed informing Mr X and Y’s school of the new caseworker. Now all new staff introduce themselves to schools.
  5. The Council agreed to:
    • issue an amended EHCP shortly;
    • fund OT going forward;
    • reimburse Mr X for the OT he had paid to date (£840);
    • pay Mr X £500 for the time and trouble in pursuing his complaint;
    • pay £500 for the delay in providing support to Y.
  6. The Council explained it would have engaged an Education Psychologist (“EP”) if it considered this was necessary. It is not responsible for Mr X’s decision to engage his own EP and therefore it would not refund this cost.
  7. Mr X was unhappy with the Council’s response and in May he complained further.
  8. The Council provided its stage two response on 18 December 2018. This says:
    • It accepts it should have delivered SALT as it was in the 2015 EHCP;
    • It has now issued a final EHCP following the June 2018 annual review;
    • It will reimburse Mr X for the OT he has paid to date;
    • It will not reimburse the costs of an EP report as it is not responsible for this cost;
    • Although it did not provide a response following annual reviews, no concerns were raised about provision.
  9. Mr X contacted the Ombudsman. He said:
    • he had to engage an EP to assess how Y was progressing;
    • the Council had agreed to reimburse OT up to December 2018, but he continued to pay for OT until February 2019;
    • he had still not received any payments from the Council following its December 2018 response.
  10. In comments on my draft decision the Council explained it did not intend to withhold payment rather this was put on hold pending the Ombudsman’s investigation. This was because Mr X had declined its offer and said he would contact the Ombudsman.
  11. The Council has provided copies of correspondence in support. I note Mr X declined the Council’s offer, explained he would ask the Ombudsman to consider the costs of the EP, but said the Council could reimburse the costs of OT.

Findings

  1. Although Mr X complains about the Council’s actions from 2016, any injustice has been ongoing and his complaint to the Ombudsman is about the Council’s recent complaint response. I therefore consider the complaint is within the 12 month time limit for me to investigate.
  2. The Council failed to arrange and fund OT from 2016 to February 2019. This is significant fault. Y missed out on OT support initially and then Mr X paid for OT, causing him financial loss. I therefore consider the Council should pay Mr X an amount equivalent to the cost of the missed OT provision, for Mr X to spend on supporting Y. And, the Council should refund Mr X the sums he spent on OT.
  3. The Council failed to provide any SALT from November 2015 to March 2018. This is significant fault. Y missed out on over two years’ support as a result. I therefore consider the Council should pay Mr X an amount equivalent to the cost of the missed SALT provision, for Mr X to spend on supporting Y.
  4. The Council failed to notify Mr X whether it would maintain, amend or cease Y’s EHCP following the 2016 and 2017 reviews. This is fault. The Council says no concerns were raised about provision in the meantime. And, I have not seen any evidence to suggest the Council should have made significant changes following the reviews. I therefore find no evidence this fault caused Mr X or Y injustice, however I am mindful such failings in the Council’s process may affect others.
  5. I can only consider a remedy for injustice arising as a direct result of the Council’s fault. Mr X says he incurred costs on an EP report due to the Council’s failure to maintain Y’s EHCP. However, it was Mr X’s own decision to commission an EP. I have not seen any evidence Mr X first asked the Council to arrange an EP report or, that the Council refused such a request without following a proper decision making process. I therefore cannot say Mr X incurred the costs as a direct result of fault by the Council.
  6. The Council delayed responding to Mr X’s complaints. This is fault. I note the Council offered to pay Mr X £500 for the time and trouble in pursuing his complaint. I consider this is a suitable remedy.
  7. The Council did not make any payments to Mr X as agreed in December 2018. This is fault. Although I note Mr X had disputed the total amount offered, both sides agreed he should be reimbursed the costs incurred on OT. However, I find this fault did not cause Mr X significant injustice and I have now considered what remedies are appropriate.

Agreed action

  1. To remedy the injustice set out above I recommend the Council carry out the following actions within one month of the date of my decision:
    • Pay Mr X an amount equivalent to the cost of OT provision from the date OT stopped in 2016 up to September 2017, for him to use for the benefit of Y;
    • Refund Mr X the costs he incurred on OT, subject to his providing reasonable evidence of those costs to the Council;
    • Pay Mr X an amount equivalent to the cost of weekly SALT activities for the period November 2015 to March 2018, for him to use for the benefit of Y;
    • Pay Mr X £500 for the time and trouble in pursuing his complaint;
    • Put checks in place to ensure it has arranged the provision set out in any EHCP and actions have been taken in line with the SEND Code of practice following any annual review.
  2. The Council has accepted my recommendations.

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Final decision

  1. I find the Council failed to provide SEN provision to Y and failed to follow statutory guidance on annual reviews. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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