Leicestershire County Council (19 007 543)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 21 Feb 2020

The Ombudsman's final decision:

Summary: Mrs B complains the Council did not provide support identified for her daughter in an Education, Health and Care Plan and then failed to amend that plan in good time. We uphold both parts of the complaint. We find these faults caused injustice to Mrs B, mainly as distress as she faced added demands supporting her daughter. Mrs B’s daughter also suffered her own distress as a result of missing education. The Council has accepted these findings. At the end of this statement we explain action the Council has agreed to remedy the injustice caused.

The complaint

  1. I have called the complainant Mrs B. Her complaint concerns education provision for her daughter ‘C’ who has an Education, Health and Care Plan (EHCP). Mrs B complains the Council:
  • Did not ensure C received emotional regulation therapy in accord with her EHCP plan dated July 2018.
  • Did not amend C’s EHCP in draft form until October 2019. Mrs B says this took too long as told the Council C’s needs had changed in February 2019. An annual review in April 2019 also found the EHCP needed amending.
  1. Mrs B says C’s education has suffered as a result. C’s access to full time education fell during 2019. Mrs B considers the lack of emotional regulation therapy and delays in amending the EHCP contributed to this. The lack of suitable provision also resulted in C suffering unnecessary anxiety.
  2. Mrs B also says her and her husband suffered distress through C’s absences from school and need to take leave from work. They had to provide support for C at home. They suffered further distress when the Council opened a child safeguarding investigation in July 2019 which partly considered why C was not in full time education.

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The Ombudsman’s role and powers

  1. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended) SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
  2. 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)
  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)

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How I considered this complaint

  1. Before issuing this decision statement I considered:
  • Mrs B’s written complaint to the Ombudsman and supporting information she provided. This included information I gathered in a telephone conversation with her.
  • Information provided by the Council in response to my written enquiries.
  • Relevant law and guidance where referred to below.
  1. I also sent both Mrs B and the Council a copy of a draft decision statement setting out my proposed findings. I invited their comments and took account of any comments received before issuing this final decision statement.
  2. 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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What I found

Relevant Law and guidance

Education, Health & Care Plans (EHCPs) & Ombudsman jurisdiction

  1. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and arrangements for meeting those needs. The Council is responsible for making sure that arrangements in the EHC plan are in place. We can look at complaints about an alleged failure to provide support set out in an EHC plan or where there have been delays in the process. This is because the SEND cannot consider such matters and so the complainant has no alternative remedy of appeal to a tribunal.

EHCP reviews

  1. Statutory Government Guidance in the Special educational needs and disability code of practice: 0 to 25 years sets out the procedure for reviewing an existing EHCP. I note that relevant to this complaint it says:
  • Local authorities must review EHCPs as a minimum every 12 months (paragraph 9.166).
  • Reviews should consider if the EHCP remains appropriate given the child or young person’s progress over the previous 12 months. A review must consider if an EHCP needs changing (paragraph 9.167).
  • The local authority must notify its decision following a review within four weeks of the review meeting and within 12 months of the EHCP starting or the previous review (paragraph 9.169).
  • Local authorities can require the child’s school to convene and hold the review on its behalf (paragraph 9.173).
  • Where a local authority proposes amending an EHCP following a review it must send a copy of that to the child's parents for comment (paragraph 9.195).
  • The local authority must issue an amended EHCP as quickly as possible and within eight weeks of the original amendment notice (paragraph 9.196).
  • Parents have the right to appeal the content of an amended EHCP (paragraph 9.198).

Children not in school because of illness

  1. Section 19 of the Education Act 1996 states that education authorities must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special needs.
  2. The Children, Schools and Families Act 2010 (Section 3), made the duty full-time from 1 September 2011. The only exception to this is under subsection 3AA of the 1996 Act, where the physical or mental health of the child means full-time education would not be in his or her best interests.
  3. The Government publishes statutory guidance in support of this legislation in the Department for Education publication ‘Ensuring a good education for children who cannot attend school because of health needs’ (January 2013). The guidance says the local authority is “responsible for arranging suitable full-time education for children of compulsory school age who because of illness, would not receive suitable education without such provision”. It says, “this applies whether or not the child is on the roll of a school and whatever type of school they attend” including “independent schools”.
  4. The guidance says that where schools provide suitable home tuition the local authority may not need to intervene. But it “should be ready to take responsibility”. Provision should start once it becomes clear a child will be absent for 15 days or more “whether consecutive or cumulative”. The authority should “liaise with appropriate medical professionals to ensure minimal delay”.

Children’s Act 1989

  1. The Children’s Act 1989 sets out the circumstances where a local authority may become involved in family life because of concerns for a child’s welfare. The law places an overarching duty on the Council to act in the best interests of the child.
  2. The Council may receive referrals from third parties expressing concerns about a child’s welfare. It may refer to these as ‘safeguarding’ enquiries. This term refers to those policies and procedures a local authority will follow when it receives reports which concern a child’s welfare.
  3. Some referrals engage Section 47 of the Children’s Act. This provides for the Council to respond to concerns a child may be at risk of ‘significant harm’. In turn, this covers the risk of physical, sexual, emotional abuse or neglect.
  4. Section 47 of the Children’s Act allows the Council broad scope to make enquiries with all agencies who work with a child and the family. Social workers should also see the child as soon as possible. Once the Council completes this initial assessment it can take various actions. At one end of the spectrum it can close a case where it finds no grounds to substantiate concerns and no reason to take any other action. At the opposite end of the spectrum it could act to place a child into its care. Between, it has choices including carrying out a detailed assessment of children’s needs. This assessment may consider if it should offer services under Section 17 of the Children’s Act.
  5. Section 17 refers to services children’s services must provide to ‘children in need’. A ‘child in need’ is one who “is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority”. This is because their “health or development is likely to be significantly impaired, or further impaired, without the provision […] of such services” or if they are disabled.

The key facts

  1. C has a diagnosis of autism and a medical condition which causes her fatigue, meaning she uses a wheelchair at times. C has special educational needs in the areas of communication and interaction; social emotional and mental health and sensory and/or physical. C has had an EHCP since July 2018. She is in the secondary phase of her education and attends an independent school.
  2. The July 2018 EHCP noted C had anxiety related to her special educational needs. Subsequently she received a diagnosis of having a generalised anxiety disorder. The EHCP set out desired outcomes for C and how her special education provision would look to meet those. It included a provision that C would have a “CBT [cognitive behavioural therapy] programme to be developed in collaboration with relevant qualified CBT practitioner. Programme to be supported by school staff daily”.
  3. In September 2018 Mrs B exchanged emails with the Council about C receiving therapeutic support including emotional regulation therapy. A consultant provided a quote to undertake this work along with speech and language therapy. While the Council agreed the speech and language therapy it did not commission the consultant for any other support at that time.
  4. In early February 2019 Mrs B contacted the Council saying she wanted a review of C’s EHCP brought forward. Mrs B asked for this because:
  • An occupational therapist assessment had diagnosed C having a sensory modulation disorder. The therapist identified needs relating to this disorder not included in C’s EHCP. Mrs B considered C’s EHCP needed amendment to reflect this.
  • A community paediatrician had provided a full list of C’s medical diagnoses which her EHCP did not currently include.
  • C was struggling with her anxiety which “affected her attendance at school”. An educational psychologist recommended C now needed one-to-one support from a teaching assistant with autism training for all lessons and lunchtimes. C’s EHCP did not currently provide for this. They also recommended some changes to current teaching arrangements for C to meet her needs.
  • The community paediatrician also recommended some therapy to support C around phobias. They also recommended some changes in teaching for C to take account of this.
  1. At the time Mrs B wrote this request C was not attending school full-time and her attendance was at 57%.
  2. The Council acknowledged Mrs B’s request within three working days. It asked C’s school to arrange a review. It told Mrs B about this and promised to attend.
  3. In March and April 2019 Mrs B sent emails to the Council wanting it to agree funding for extra support for C. Both emails referred to C missing time from school because of her anxiety.
  4. The School went on to arrange the review for the end of April 2019. Documents describe this as an annual review. The school invited and received reports from professionals supporting C. This included teaching staff at the school, a clinical psychologist, an occupational therapist and a specialist speech and language therapist. Some of this information duplicated that sent by Mrs B in February 2019, but some was new.
  5. Mrs B and her husband, the clinical psychologist, speech and language therapist, occupational therapist and representatives of the school all attended the review. The Council failed to attend.
  6. The minutes of the review show that all present agreed C’s statement needed amending. They agreed that C needed one-to-one tuition. The School commented it did not have teaching staff to deliver that and so would need to recruit support. This would depend on the Council agreeing funding.
  7. The School sent a copy of the review minutes and documents to the Council in mid-May 2019. However, the Council failed to properly record receipt of these. Consequently, it did not act straight away on the information provided.
  8. The Council has provided an email exchange it between Mrs B and the School at the end of May 2019, that Mrs B copied it into. This said the School had agreed to a request that C have a three-day school week as C did not yet have one-to-one support. Although the School also commented that it considered C could “manage the full week and it is in [C’s] best interests to try to access the full curriculum”.
  9. When the Council failed to respond to the annual review in four weeks, Mrs B complained. The Council responded to that complaint in late June 2019. It said it had received the annual review paperwork. It said it was still within the timescale to respond. But that in any event it had now agreed to fund full-time one-to-one support for C. It said that before that went into place Mrs B should continue to send C to school as there were arrangements in place to support her. Mrs B provides a letter from July 2019 from a consultant paediatrician supporting C which says C needed a reduced timetable until she had one-to-one support in place.
  10. The Council agreed the detail of the extra support it would provide for C by the second week of July 2019.
  11. By this time the Council had also begun an assessment into C’s needs (and that of a sibling) under the Children’s Act. The Council received an anonymous report that Mrs B and her husband sometimes took C out in her wheelchair in the evening. But the assessment also considered C’s absences from school. In an email sent to Mrs B in August 2019 the Council social worker assigned the case, said they had made enquiries under Section 47 of the Act. However, as concerns were ‘not substantiated’ the Council was completing assessments under Section 17 of the Act, considering C a ‘child in need’.
  12. The assessment provides Mrs B’s account for any evenings where she or her husband took C out in her wheelchair. The Council considered the explanation reasonable. The assessment also explains C was absent from school because she was waiting for the extra provision she needed, identified at the April 2019 review. The assessment found no need for the Council to provide any further service and it closed the case after giving Mrs B chance to comment on the assessment and suggest amendments.
  13. When C returned to school in September 2019 following the summer break, she returned on a reduced timetable. This is because she did not have one-to-one support yet in place. Mrs B again chased the Council to provide a draft of the amendments it proposed to C’s EHCP.
  14. During late September 2019 the Council told Mrs B it had agreed to provide C also with extra occupational therapy, speech and language therapy and emotional regulation therapy. It sent a draft amended EHCP to her in early October 2019. This included extra provision agreed at the annual review including:
  • A full-time teaching assistant to support C on a one-to-one basis.
  • Fortnightly support from a child specialist psychologist to provide anxiety focused intervention.
  • Various additional support for C’s learning based on occupational therapy and speech and language therapy advice.

Council comments

  1. When invited to comment on this complaint the Council has said:
  • That it considers the provision which identified C needing CBT was “somewhat vague”. It did not think the wording reflected best practice.
  • The officer assigned to C’s case was absent from work for much of the time after July 2018. An officer recruited via an agency covered their post but left at short notice in April 2019.
  • This factor, combined with wider staffing shortages in the service, meant the Council could not attend C’s annual review. It has since addressed these shortages and has recruited to fully staff the service from September 2019. It is also undertaking a review of existing procedures to ensure better coverage for staff absence in the future.
  • It is reviewing procedures to ensure that it does not miss annual review paperwork as happened on this occasion.
  • It accepts took too long to agree the support plan that would enable C to attend school full time in July 2019.
  • Part of the delay in issuing an amended EHCP in this case resulted from its Children and Family Services carrying out its assessment of C’s needs.
  • Since September 2019 it has provided ‘significantly enhanced’ emotional regulation therapy to C. It has further offered to provide an extra £500 to C’s school to spend on extra support for C as it considers appropriate.
  1. When asked to comment on a draft of this report the Council said that it accepted the findings set out below.

My findings

  1. I consider there is evidence of fault in the Council’s management of this case as follows:
      1. First, it failed to ensure that C received CBT therapy in line with her EHCP agreed in July 2018. It rejected the opportunity to agree emotional regulation therapy in September 2018 (something which would encompass CBT). It is not clear it took any alternative action then, or later, to see if C received CBT. The expectation is that where an EHCP sets out an education provision, the pupil will receive it. The Council is responsible for ensuring that. So, it is still a fault that C went without that therapeutic support.
      2. Second, it failed to send a representative to C’s EHCP review in April 2019. I recognise the staffing issues faced by the Council at the time. But it still knew of the review and the circumstances in which Mrs B asked for it, which suggested a significant change in C’s needs. While its agency worker left at short notice this was not a case where an officer was unavailable at the last minute because of an unexpected event. The Council still had some time to consider C’s case and prioritise sending someone to the review.
      3. Third, it then failed to properly record and action receipt of the review paperwork sent by the school in good time.
      4. Fourth, a further delay then resulted in the Council confirming its intentions following the annual review. It failed to meet the four-week timescale for this. It also failed to meet the timescale for issuing an amended statement for Mrs B to comment. She should have received that in July 2019 at the latest.
      5. Fifth, I find the Council failed to consider if C needed more support as a child absent from school through illness. It knew from Mrs B’s submission in February 2019 that C was missing time from school, although I recognise Mrs B was not specific about how much. But it received emails between March and May 2019 which stated C was missing time from school. The Council did not find out the extent of her absence. Nor did it find out if C’s absence was supported by a medical professional (I am satisfied from the July 2019 letter from C’s consultant it would have been). Nor did it find out if the school provided any support to C with her education when at home. It relied on the school’s assertion C could attend full-time. But the review paperwork and the July 2019 letter call that into question. The Council has recognised it could have acted sooner to ensure a plan was in place for C to access full-time education. But the plan when agreed, still needed a teaching assistant being recruited to support C. So, even if the Council had acted quicker here, it should have considered these matters also.
      6. Sixth, I do not consider it was necessary for the Council to begin Section 47 enquiries into C’s absence from school. Its special education service should have asked the questions highlighted above when it learnt that C was not attending full time. It had information suggesting C’s absence related to unmet needs in her EHCP. It could reasonably have asked for more information from Mrs B about that. But it was premature to highlight concerns about C’s school absence to social work staff without making these enquiries.
  2. I do not find fault in the timing of the review. I consider the Council could reasonably leave C’s school to arrange this. I consider the school did so in reasonable time taking account of the need to consult professionals, co-ordinate attendance and the Easter holiday period.
  3. I have gone on to consider the injustice caused to Mrs B and C from the faults set out in paragraph 40. My findings are as follows:
      1. I am satisfied the failure to provide C with CBT will have had some negative impact on her. The records show she suffers anxiety. This worsened between the EHCP agreed in July 2018 and the review in April 2019. CBT may have helped lessen some of that anxiety. However, I also note that C has complex needs. In February 2019 Mrs B expressed the view C needed emotional regulation therapy. This can encompass CBT but sometimes also goes beyond it. I consider it closer to the detailed therapeutic support set out in C’s current EHCP. Further by April 2019 other therapists – occupational and speech and language – were also recommending further interventions to support C's education, going beyond the July 2018 EHCP. Taking account of these factors I do not consider I could say that all the disruption to C’s education arose from the failure to provide CBT. Although it contributed to it, which will be a source of distress to both C and Mrs B.
      2. I consider the second to fourth faults listed above led to an avoidable delay in the Council amending C’s EHCP. The Council should have let Mrs B know its intention by the end of May 2019. It should have completed its amendment of the statement by the end of July 2019. But it did not do the former until the end of June and the latter until the beginning of October 2019. I find it does not follow from this the Council failed to consider C’s need for increased provision until October 2019. The chronology of events shows the Council acted to put extra provision in place from June 2019. It then provided further assurances in September 2019. I accept this did not translate straight away into delivery of extra provision. But there would be unavoidable delay recruiting a new teaching assistant for C and in the time taken to train them. This limits some of injustice arising from the delay. But Mrs B still experienced some uncertainty while the Council confirmed its advice. She also had avoidable time and trouble in pursuing matters. She also could not appeal any remaining dissatisfaction with the amended EHCP until having had chance to comment and the Council issuing its final amended EHCP.
      3. I consider on balance that if the Council had properly considered if C was absent from school because of illness that it would have found she was. This would have therefore obliged it to try and arrange some additional provision in line with government guidance. I do not consider it would find that straightforward given C’s complex needs. Her absence from school was therefore always likely to have some impact on Mrs B and her husband also. But I do not rule out the Council may have provided some support to help plug the gaps in C’s education provision such as home tuition or encouraging the school to provide more resources. This is turn would have lessened some of the distress caused to Mrs B in supporting her daughter when she was not at school.
      4. I consider the decision to include consideration of C’s school absence as part of the Section 47 enquiries caused unnecessary distress to Mrs B. I accept the Council may still have made enquiries given the anonymous report it received about another matter. But the experience would have been less stressful and time consuming for Mrs B had the Council had a better understanding about C’s absences before July 2019. As I have explained above, I consider the Council had opportunity to gain such understanding.

Agreed action

  1. To remedy the injustice set out in paragraph 42 the Council has agreed that within 20 working days of this decision it will provide the following to Mrs B:
      1. An apology accepting the findings of this investigation.
      2. A financial remedy of £750 to Mrs B to reflect her distress and time and trouble.
      3. A financial remedy of £1000 For C’s distress, lost education provision and failure to consider support for time missed from school between February and October 2019. Mrs B will use this as she considers appropriate towards meeting C’s needs.
  2. I consider these actions consistent with the Ombudsman’s published guidance on remedies to complaints.
  3. I do not consider the Council also needs to review its services. I am satisfied it has made efforts to learn from this complaint and now provides a full complement of staff in its special education service which should improve that. I also welcome the service improvements it has committed to.

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Final decision

  1. For reasons set out above I have upheld this complaint finding fault by the Council causing injustice to Mrs B and C. The Council has agreed a remedy to this complaint that I consider will provide a fair outcome. Consequently, I can complete my investigation satisfied with its response.

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Investigator's decision on behalf of the Ombudsman

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