Summary: Mr V complained the Council failed to issue a revised Education, Health and Care Plan for his son, W, at the correct time. He said this meant W was not sufficiently supported while he attended his then school. There is evidence of fault in the delay before W’s revised EHCP was issued and in the way the Council checked whether the school had put in place the specified support.

The complaint

1. The complainant, whom I call Mr V, complained the Council:
1. delayed issuing an amended final Education, Health and Care Plan (EHCP) following a reassessment;
2. failed to ensure appropriate special educational needs (SEN) provision was made before and after the amended final EHCP was issued; and,
3. failed to address his complaints appropriately.
2. Mr V was unhappy with the way the Council investigated his complaint and asked the Ombudsman to investigate.

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The Ombudsman’s role and powers

3. 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) I have investigated Mr V’s complaints given he was signposted to the school and the Department for Education, rather than us. He received advice later that we were able to investigate issues that the school and Department for Education could not. I exercised discretion to investigate.
4. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
5. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
6. 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)
7. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
8. 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

9. I considered the information provided by Mr V with his complaint. I made enquiries to the Council and assessed its response. I have referred to relevant guidance. I sent Mr V and the Council a draft version of this decision and took the comments they made into account before issuing this final decision.

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What I found

Background

10. At the time of the first matters complained of, W was 8 years old. He has a diagnosis of Autistic Spectrum Disorder (ASD) from June 2013 and associated language delay and behavioural challenges. W attended a mainstream primary school but moved to specialist provision on 1 September 2018.
11. I will consider each of Mr V’s complaints in turn.

Delay issuing an amended final Education, Health and Care Plan

12. Timescales for issuing EHCPs are set out in the Special Educational Needs and Disability Regulations 2014.
13. Mr V’s son W’s annual review was held at the school on 26 September 2017. The Council received information from the annual review on 27 October 2017.
14. The Council had four weeks from the date of the annual review to decide whether to amend the EHCP or not. Because it was not informed of the findings until 27 October, it was a week late sending out the proposed amended EHCP. This delay is fault. The Council says it reminds schools of the importance of keeping to statutory timescales and chases them if documentation is not received when expected. This is appropriate. A delay of one week is not so significant to have caused injustice to Mr V or W.
15. The final EHCP, following the amendment notice, should be sent in eight weeks. This means W’s amended final EHCP should have been sent out at the end of December or first week of January.
16. The Council issued W’s final EHCP on 1 June 2018 naming the school W would attend from 1 September 2018.
17. This delay is fault. Mr V was unhappy with how W’s then school was supporting him. The family would have benefitted from a final EHCP given W’s needs had changed since his previous EHCP. I consider the Council’s failure to issue the EHCP on time has caused the family distress. They do not know how much more progress W might have made had he been able to take advantage of the new initiatives in the EHCP earlier (such as the specific maths and literacy programmes that were put in place in June). The Council should make a payment of £300 to Mr V to reflect this.

The Council failed to ensure appropriate special educational provision was made before and after the amended final EHCP was issued

Provision before the EHCP was issued

18. It is a legal requirement on the Council to ensure EHCP provision is delivered. Case law has established that this is an absolute duty and cannot be devolved.
19. Even when provision between EHCPs is very different, and it might be considered good practice to begin to work to the new version as soon as possible, we would not expect Councils to check this was being done by schools as a matter of course. The legal requirement to ensure the provision is implemented is only in place once the EHCP is issued. The SEND Code of Practice is also clear on this point.
20. Mr V says the process of developing the EHCP was difficult because the officer who was the single point of contact was often not available and messages could not be left as her mailbox was full. Moreover, her line manager was also off over this time. The Council says Mr V was given contact details of others in the team, and that automated emails were sent directing people elsewhere. Arguably, if Mr V had not received a response from emails to the Council he might have decided to write letters or contact senior managers or go to the Council’s offices in person. On balance, there is no evidence of Council fault although I accept Mr V must have found the lack of response to emails extremely frustrating.
21. Mr V sent me copies of two emails to show he had informed the Council about exclusions prior to the EHCP being issued. The first, on 5 November 2017, acknowledges ‘the level of provocation in the incident (leading to exclusion) could enable us to consider appealing this’, which is what would be expected if there were concerns of its proportionality or legitimacy. The Council acknowledged a visit would be made to the school, which was appropriate. The second, from December 18 2017, said he wanted a place at the school W now attends for September 2018 ‘particularly given (W’s) recent exclusion’, which is what was arranged. There is no evidence of fault as appropriate action was taken in response to both emails.

Provision after the EHCP was issued

22. Mr V complained the school failed to put in place the provision specified in the EHCP at the time the EHCP was issued. He could have chosen to go to the SEND tribunal in order to have a different school named at the time. Mr V says that because W was subject to fixed term exclusions (see above), there should have been an early annual or emergency review. Professionals were involved with the school and it did not consider an early review was appropriate. The relevant statutory guidance on exclusions says schools ‘should consider’ holding such reviews; not that they must hold one under these circumstances. This is outside of the Ombudsman’s jurisdiction.
23. Mr V also told me the Council would have been aware of the school potentially failing to meet W’s needs because of these fixed-term exclusions and emails from the school acknowledging it was finding W difficult to manage (from November 2017, although this was before the EHCP was issued). As I said above, Mr V could have challenged the exclusions through the governing body if he felt they were unfair. If he felt the school had acted in a discriminatory manner, he could also have challenged the school through SEND or the court. Exclusions do not necessarily suggest a lack of provision and are a school matter. I am not finding fault.
24. The Council has told me the SEND team are only formally notified of permanent exclusions; it might consider whether the team should also be informed of fixed term exclusions so any patterns (with a particular child or with a school) could be identified at an early stage.
1. The checklist
25. In order to identify that the provision had been delivered by the school, the Council told me a senior SEND officer personally took in a ‘checklist’. As the provision was checked after W left the school, no remedial actions could be taken. I do not have grounds to criticise the Council for carrying out the assessment when it did. There is no evidence it had information to suggest this was necessary earlier.
26. The checklist focuses on when provision was put in place but it contains no details about ‘what’ the provision looked like or ‘how’ it was delivered. One of the items to be checked is; ‘…Adults…will encourage and provide purposeful activities for W to join other children at the table and support him accordingly’. The comment is ‘26 September 2017 implemented in September Annual Review meeting’. There is no accompanying detail about how this worked in practice or how W was ‘support(ed)…accordingly’. Given there was evidence the school was finding W difficult to manage prior to the latest EHCP (emails from the school to the Council in November 2017 and February 2018 show this) this provision would have changed from September 2017 to make it more appropriate. The Council had an opportunity to ask the school how support had changed.
27. Going through a checklist also meant that some of the issues, that Mr V was particularly concerned about, were missed. The Council was not aware, for example, W was having, at the most, limited opportunities to be with peers in a classroom environment. From the details Mr V has supplied to me, W was rarely (if ever) in a conventional classroom, at least by the end of his time at school, and teaching was delivered 1:1 by a teaching assistant in a separate ‘pod’. It is not clear what overview there was by other staff and so there was also potential for significant safeguarding issues (which Mr V has also alleged although I cannot consider them). I have an email from the headteacher in May 2018 saying W was ‘not able to cope’ in a classroom, which at least raises the question as to whether this requirement of W being around peers was implemented at that point although there is no evidence the Council knew isolation would form part of the school’s solution to managing W.
28. Mr V says W was punished on one occasion because he lashed out when he couldn’t cope with being asked to remove his coat. He had just come inside from the cold and wasn’t able to wear the school sweatshirt because of sensory problems. The checklist comments the behaviour plan had been in place since January 2015 and did not have the scope to explore concerns. Because the checklist was conducted in isolation, governor feedback in relation to exclusions, or a note from a teacher saying she was acting against the behaviour plan, could not be considered at the same time.
29. The checklist also details that certain provisions would be made by September 2018. This is fault and would have been over eleven months from the annual review as well as in place after W had left the school in July. Provision should be put in place as soon as possible from the day the EHCP is issued. Otherwise children risk missing out on services that the Council has a legal duty to provide.
30. Although there is a space in the form for ‘follow up’ on this occasion it is blank. On the balance of probabilities, this would only be useful if the data provided was qualitative and explained what was being done and how. It might also have been used where Mr V raised concerns, which went against what the Council had been told by the school. Although Mr V raised his specific concerns, when he received the completed checklist, the Council did not go back to the school for clarification. I do not find it at fault for this given no remedial actions could have been taken in W’s case. However, although W had left the school, as the Council decided to carry out a review by using the checklist, it would likely want to assure itself these concerns would not be brought by other parents.

b) Outcome of the checklist process

31. In W’s case there is no evidence he had the speech and language therapy interventions that were specified in his EHCP. As he was meant to have eight visits a year I consider he missed one visit from a qualified speech and language therapist. This is fault. The Council should provide an additional session in order to put W back in the position he would have been in but for this fault.
32. On balance, considering it decided to check the school had been implementing the EHCP although no actions could have been taken to remedy this, I do not consider the checklist provided enough information to allow the Council to say with any certainty that the school had implemented the requirements of W’s EHCP. It should apologise to Mr V, on behalf of W, for this. No further action would be appropriate given W had left school at the time. W’s current school has acknowledged W suffers from ‘acute anxiety and possible trauma’ as a result of his experiences at the previous school. Following the school’s recommendation, W’s parents are funding specialist occupational therapy to help him recover. Mr V should present this information to the Council at annual review. If the Council does not amend the EHCP to reflect this as an educational need then Mr V is able to go to the SEND tribunal.
33. Mr V criticised the Council for using the staff member who manages EHCPs for the school to help it complete the checklist. Arguably, this person would know the school best, which could be a positive as much as a negative. It is also important to emphasise, again, that the Council could not have taken remedial action to support W. However, the Council should consider how it might supplement the checklist with qualitative information when appropriate. It should inform me, within four months of the date of my decision, what action it intends to take to do this. It should also consider whether contacting, or meeting with, parents would be appropriate as part of the process. This way it would be aware of parental concerns at the outset and allow it to make a decision, at that point, about what evidence it would look for.

The Council failed to address Mr V’s complaints appropriately.

34. This is closely linked to my findings above.
35. Mr V was not signposted to the Local Government and Social Care Ombudsman even though, as well as criticising the school’s actions, he was also criticising the Council’s failure to ensure the requirements of W’s EHCP had been properly implemented. The Council confirmed Mr V was not upset with the service he had received from it but we would not expect complainants to identify fault and injustice. Our guidance acknowledges; ‘if your child has an EHCP, the Council has to work with the school to ensure your child gets the provision set out in the plan. The Ombudsman can look at…how the Council ensured the school provided the support as set out in the EHCP’.
36. On that basis, the Council should have ensured it signposted Mr V appropriately to us in addition to the Department for Education. The Council’s failure to do this is fault and it should apologise to Mr V for the distress it caused. Mr V was concerned we would refuse to investigate his complaint given he had waited a long time for the school’s complaints process to be completed and, by the time he came to us, it was a little over a year since he had been aware of the complaints.
37. The Council should ensure it properly signposts complainants to us when they may be criticising Council actions. It should tell me what action it will take to do this within four months of the date of my decision.

Agreed action

38. For the Council to apologise to Mr V in relation to the fault I have highlighted here.
39. For the Council to make a payment of £300 to Mr V given his and his family’s distress at the Council’s delay in issuing a final EHCP.
40. For the Council to arrange a further session for W with a speech and language therapist to make up for the missed provision at his previous school.
41. Actions set out at paragraphs 38 – 40 should be carried out within four weeks from the date of my decision.
42. For the Council to consider how the ‘provision checklist’ might be supplemented given it cannot be used to check the adequacy of the qualitative measures taken to support a child. It should inform me, within four months of the date of my decision, what action it intends to take to do this.
43. For the Council to ensure it signposts complainants to us when they wish, or may wish, to criticise Council actions. It should tell me what action it will take to do this within four months of the date of my decision

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Final decision

44. The Ombudsman has found fault because there was delay before W’s revised EHCP was issued and in the way the Council checked whether the school had put in place the specified support.

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Investigator's decision on behalf of the Ombudsman