Solihull Metropolitan Borough Council (19 006 890)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 22 Nov 2019

The Ombudsman's final decision:

Summary: Mr and Mrs B complain that the Council failed to ensure it met their son, C’s, Special Education Needs (SEN). The Council was at fault because C missed provision specified in his EHCP and a review of C’s EHCP was delayed. C missed out on SEN support that should have been provided and there has been uncertainty about future provision. The Council should apologise to Mr and Mrs B and C, pay Mr and Mrs B £500 for the time and trouble and distress caused in making their complaint and £1200 for the support C missed, attempt to resolve the matter with the school one final time and if this is unsuccessful it should make a referral to the Education and Skills Funding Agency (EFSA).

The complaint

  1. Mr & Mrs B complain that the Council has failed to provide teaching assistant (TA) support to their son, C, as specified in section F of his Educational, Health and Care Plan (EHCP) between December 2018 and July 2019.
  2. Mr & Mrs B also complain that the Council has failed to provide sufficient funding to deliver the provision specified in C’s updated EHCP.

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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. 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)
  3. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), 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.

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How I considered this complaint

  1. I have spoken to Mrs B about her complaint and considered the information she has provided to the Ombudsman. I have also considered the Council’s response to her complaint and its response to my enquiries.
  2. I have written to Mr and Mrs B and the Council with my draft decision and considered their comments.

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What I found

  1. 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.
  2. 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.
  3. Where a local authority maintains an EHCP for a child or young person it must secure the specified special educational provision for the child or young person. (Section 42 (1 & 2) of the Children and Families Act 2014)
  4. A council must review an EHCP within 12 months of the plan being made. A council may reassess a child’s needs at any time if it thinks it is necessary. (Children and Families Act 2014 s44)
  5. Where an EHCP is reviewed, the local authority and school must cooperate to ensure a review meeting takes place. A child’s parents must be invited to attend and given two weeks notice of the meeting. All advice and information should be sent to attendees at least two weeks before the meeting. Within four weeks of a review meeting, the Council must decide what action it is going to take and inform those involved. If the EHCP needs to be amended the Council should start the amendment process without delay. (SEND Code of Guidance)

What happened

  1. Mr and Mrs B’s son, C, is nine years old. He attends a local mainstream academy primary school. C was diagnosed with autism spectrum disorder (ASD) and dyslexia. He has problems with social interaction and anxiety.
  2. An EHCP was created for C in December 2018. Mr and Mrs B raised concerns about C not receiving SEN provision as stated in his EHCP. There was a disagreement between the Council and Mr and Mrs B regarding the interpretation of the EHCP and whether interventions could be carried out as part of the TA support hours or not. The Council agreed the EHCP was not clear and partially upheld their concerns. It said it would review the EHCP. It did so in July 2019 and amended the EHCP to be more specific.
  3. The school disagrees with the Council about how SEN provision should be funded and says the Council is not providing sufficient funding for C.

Analysis

SEN provision

  1. The Council accepts the December 2018 EHCP is not clear about how the provision stated should be delivered. The Council said it would review the EHCP after Easter but did not do so until July 2019. This was unacceptable delay.
  2. Where there has been fault I have to consider what injustice that has caused and whether some remedy is due. The Council accepts that C has missed out on some SEN provision between December and July but due to their different interpretations of the December 2018 EHCP, Mr and Mrs B and the Council have different views as to the extent of missed provision.
  3. Mrs B says C received eight hours of teaching assistant support each week. The Council says C received between 15 ½ and 18 hours support each week, on the basis of provision mapping provided by the school.
  4. It is not possible for me to determine the precise level of missed provision but I consider that it has fallen short of the level intended in the EHCP. The Council should provide some remedy for this which I outline below.

Funding

  1. The Council initially provided band 2a funding for C’s SEN provision and quickly increased this to band 2b funding from December 2018. Before the review was carried out the Council agreed to backdate the band 2b funding to October 2018. Following the EHCP review which took place in July 2019 the Council provided band 2c funding for C’s SEN provision.
  2. The Council has provided funding under its agreed banding mechanism. The funding the Council is currently providing is the maximum mainstream funding band. The Council is following its policy in how it funds this provision so I do not consider there to be fault. But if the Council is aware in the future that the school is not making the specified provision it must take action to ensure that the provision is made.

What the Council has done

  1. The Council has already reviewed C’s EHCP and provided funding from July 2019 at band 2c.
  2. The Council has written to the school to offer a meeting to attempt to reach an agreement. I understand the school has agreed to meet and a date is now being arranged. If this meeting does not take place or an agreement is not reached, the Council says it will refer the matter to the Education and Skills Funding Agency (EFSA).
  3. The Council has proposed to apologise to Mr and Mrs B and C for the challenges they have faced and also to pay Mr and Mrs B £500 in recognition of the time trouble and distress suffered in making their complaint.
  4. The Council has proposed to pay C £400 to be utilised by Mr and Mrs B to enhance C’s wellbeing, in recognition of the missed SEN support.

Agreed action

  1. To remedy the injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this decision:
    • Apologise to Mr and Mrs B and C for the faults I have found.
    • Pay Mr and Mrs B £500 in recognition of the time trouble and distress suffered in making their complaint.
    • Pay Mr and Mrs B £1200 in recognition of missed SEN provision. This is based on a total delay of 6 months, accounting for school holidays. Given C’s difficulties, I consider £200 per month of delay for the period between December 2018 and July 2019 to be an appropriate remedy. This sum can be used for C’s educational benefit to ensure he catches up, as far as possible, on SEN provision he missed out on.
    • If the school fails to engage or agreement is not reached the Council should refer the matter to the EFSA without delay.

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Final decision

  1. I have found that there was fault by the Council in how it dealt with C’s SEN provision. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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