Cheshire East Council (19 003 604)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 05 Dec 2019

The Ombudsman's final decision:

Summary: Mrs X complained the Council failed to ensure delivery of the special educational provision required by her daughter, Z’s Education, Health and Care Plan. We find the Council did not ensure delivery of provision required by the Plan. This led to Z not starting at primary school in the timescale set out by the plan. The Council has agreed to apologise, pay Mrs X £2,400 to remedy injustice caused by this fault and continue to pay her £400 per month until the therapist is in place.

The complaint

  1. Mrs X complained the Council failed to ensure delivery of the special educational provision required by her daughter Z’s Education, Health and Care (EHC) Plan.
  2. Mrs X says that after amending the plan after Tribunal, it has not provided funding required by the school for this. It has failed to have adequate contact with the school and so Z was not able to start school in September. So Z has continues to miss out on educational provision required by her EHC plan.

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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. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
  3. 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)
  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 our final decision with Ofsted.

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How I considered this complaint

  1. I spoke to Mrs X about her complaint.
  2. I asked the Council questions and considered records it provided.
  3. I considered the Ombudsman’s guidance on remedies.
  4. I gave the Council and Mrs X the opportunity to comment on my draft decision.

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What I found

Education, Health and Care plans

  1. Councils assess children who may have special educational needs. An assessment may decide the child needs an Education, Health and Care (EHC) plan. The council must then develop and issue the plan, ensure it is reviewed annually and implement any changes from each review.
  2. Where parents or the young person disagrees with the contents of the plan they can appeal to the Tribunal.
  3. The council has a legal duty to ensure a child receives the special educational provision specified in their EHC plan. The council cannot delegate this duty to a school or other body. If a school does not have the financial resources or the expertise to meet the provision outlined in the plan, the council must provide it.
  4. Councils must review an EHC plan every twelve months. Reviews must focus on the child’s progress towards targets in the plan and on what changes might need to be made to any support to help the child meet the outcomes.

Background

  1. Z has a number of special educational needs and has an Education, Health and Care (EHC) plan. Following an Annual Review, the Council issued an unchanged plan in 2018 which Mrs X appealed to the SEND Tribunal. In January 2019, the Council conceded at Tribunal and agreed a revised EHC plan for Z.
  2. Section F required detailed planning to support Z’s start at primary school. It required one to one support and monitoring with speech and language therapy when she started at school, and to support home-based learning. The plan required a suitably qualified therapist to provide intensive support as part of this.
  3. The plan said Miss would be educated part-time at the primary school and part-time at home. The therapist would need to support Z at school and home. The plan was for Z to start part-time at primary school in April 2019, complemented by a bespoke part-time educational programme at home.
  4. The Council did not send Z’s intended primary school the amended plan. It discussed the plan with the school and thought Z would be able to start there as planned in April or soon after. It understood the school was leading, with Mrs X, recruitment of the therapist. The Council thought its role was to help with procurement and recruitment.
  5. In March 2019, Mrs X complained to the Council that it had not ensured the school was ready to take Z as planned. It replied, upholding the complaint and apologising for delay sending her the revised EHC plan. It said the delay was because staff had left. It would send the plan shortly. It said the delay should not delay Miss Z’s planned start date at school. It issued the plan to Mrs X in April.
  6. In April 2019 Mrs X told the Council the school was still not ready for Z’s start. The school now had no time to recruit staff to support transition.
  7. In June 2019, after several requests from Mrs X for updates and a formal complaint, the Council responded. It said once the school and Mrs X had identified a suitable therapist it would pay for this. It understood no suitable candidates had applied. It apologised for uncertainty and confusion.
  8. In June the Council funded a specialist to work with Z until a therapist could be appointed. Later in June the school, Mrs X and the specialist agreed a recruitment plan for a suitable therapist. The Council paid for the specialist to keep working with Z until a therapist was found. It says that since June Z has had some education at home but, apart from one visit in September, has not been educated at school.
  9. The Council says a potential therapist was found in October. It continues to pay for the specialist to work with Z until a handover can occur.
  10. Also in October 2019, the school told the Council it had concerns about whether it was suitable for Z’s education. The Council is arranging a multi-agency annual review meeting of the EHC plan to consider whether it remains appropriate. This will provide the opportunity to review the suitability of provision, giving Mrs X the opportunity to appeal to Tribunal.
  11. The Council said that in response to its recent inspection by Ofsted it is addressing weaknesses in the timeliness, process and quality of EHC plans, and improving customer service with parents. It has appointed new managers, key workers and business support staff.

Findings

  1. The Council did not formally consult with the school about the amended EHC plan issued in March 2019. It did not ensure, by checking with the school, that the detailed planning and provision set out in the plan would be in place to allow Z to start school part-time in April 2019. This was fault. It probably meant the school was less able to prepare for Z to start on time, as required by her EHC plan.
  2. The Council had a non-delegable duty to ensure the provision specified in Z’s EHC plan was in place. The EHC plan required detailed preparation and therapist support so Z could start school part-time alongside getting home education, also with support from the therapist, in April 2019. Instead it took until October 2019 until a therapist was recruited, but not yet started in post. Z had still not started school with this support in place by November 2019.
  3. The Council has taken some steps to address the injustice caused by this fault by paying, since June, for a specialist to work with Miss Z at home until a therapist could be appointed. However, this is not sufficient to remedy the injustice its actions have caused Mrs X and Z. The Council should also apologise and pay Mrs X a financial remedy to help address the remaining and continuing injustice caused to her and, most importantly to Z, by its faults.
  4. The educational provision lost by Z as a result of the Council’s fault happened at the point her school education should have started. This is a particularly critical point. We have recommended a remedy for six months loss of provision to cover the period April to November 2019, taking into account two months of school holidays.
  5. A financial remedy of £2,400 is therefore justified with reference to our guidance on remedies. The Council should continue to pay Mrs X a remedy for Z’s benefit of £400 per month until the therapist is in place and supporting Z. This remedy takes into account that the Council has provided some support with the specialist since June. This could be used to provide additional therapy and support to help Miss Z catch up.
  6. The Council did not complete Miss Z’s EHC plan Annual Review by July 2019 as it should have. It plans to hold the review by November 2019. This delay of at least four months was further fault. This meant it has avoidably delayed the opportunity to review, with the school and Mrs X, whether the plan remained appropriate. This was a particularly significant delay in light of the difficulties ensuring its delivery. The recommended apology and financial remedy are sufficient to also remedy injustice caused by this fault.
  7. The Council is in discussion with Mrs X about ongoing matters. It should promptly complete its annual review, and make its decision regarding Z’s EHC plan, giving Mrs X appeal rights as required.

Agreed action

  1. Within one month of my final decision the Council agrees to:
    • Apologise to Mrs X for not ensuring delivery of special educational provision as required by Z’s EHC plan.
    • Pay Mrs X £2,400 to be used as Mrs X thinks best to benefit Z
    • Pay Mrs X an additional £400 per month until the therapist required by Z’s plan is in place and supporting her.

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Final decision

  1. I have completed my investigation finding fault causing injustice. The Council has agreed remedies for injustice including ongoing injustice caused.

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Investigator's decision on behalf of the Ombudsman

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