London Borough of Brent (19 012 360)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 07 May 2021

The Ombudsman's final decision:

Summary: Mr C says the Council is at fault for delay in carrying out annual reviews of his son’s education, health and care plan. He also says it delayed in informing him of the review results and in implementing the recommendations of those reviews. He says this caused him injustice in that it led his son to miss out on educational provision. The Council was at fault for a failure to inform Mr C of its decision following an annual review in 2018. This caused Mr C injustice. He was unable to pursue an appeal against the plan for a year. However, there is no evidence that his son missed out on education. The Council has agreed to pay Mr C a sum as a remedy.

The complaint

  1. The complainant, who I have called Mr C, says the Council was at fault for:
      1. Delay in holding an annual review of his son, X’s, education, health and care plan (‘EHCP’) in 2018;
      2. A failure to issue a decision following the annual review in March 2018 or inform him of his right of appeal of that decision;
      3. A failure to amend the EHCP as was agreed at that meeting;
      4. A failure to address his issues about the 2018 annual review in its responses to his complaint;
      5. Unreasonable delay in issuing a new EHCP in 2019;
      6. A failure to provide the necessary documentation in advance of the annual review meetings in July and October 2019;
      7. Providing incorrect and misleading information which led him to believe it took 13 months to implement an EHCP plan;
      8. A failure to include recognition in the most recent EHCP of his son’s need for 1- to-1 speech and language therapy;
      9. Reneging on an agreement to pay compensation for its failures to introduce promised provisions.
  2. Mr C says the Council’s failures have caused injustice to him and X. He says he has not received compensation promised to him by the Council and X has missed out on educational provision.

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The Ombudsman’s role and powers

  1. 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. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 34(3), 26(1) and 26A(1), as amended)
  2. We cannot investigate late complaints unless we decide there is good reason. A late complaint is one made more than 12 months after something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  3. 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)
  4. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
  5. 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.
  6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
  7. 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 C about his complaint. Using the information he provided, I drafted a letter to the Council asking for further information. Having received the Council’s response, I applied the relevant law and made my decision.
  2. Mr C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should happen

  1. The responsibility for providing support to children and young people with special educational needs (SEN) and/or a disability is shared between Councils and education settings.
  2. Most children and young people will have their SEN needs met within early years settings, schools or colleges without any need for involvement from the Council. This level of support is known as SEN Support.
  3. Children with more complex needs might need an educational health and care plan (‘EHCP’). Councils are the lead agency for carrying out assessments for EHCPs and have the statutory duty to ensure special educational provision in an EHCP is made available.
  4. The EHCP is split into sections lettered A to I. The educational provision the child must receive is set out in section F.
  5. If a child receives an EHCP, the Council must ensure the child receives the education specified in it.
  6. The responsibilities of the Council, settings and partner agencies (including health bodies) are set out in the Children and Families Act 2014 and associated Regulations and statutory guidance, The SEN Code of Practice 2015 (The Code). Agencies are expected to work in an integrated way, with the child and family fully included in decisions.

Annual review

  1. EHCPs should be reviewed annually. Also, where an educational placement has failed, a review should be held.
  2. A review meeting must be held. Within four weeks of the date of the meeting, the council must decide whether it proposes to amend the EHCP, keep it as it is or terminate it and notify the parents of the decision. If the plan needs amendment, the process should begin without delay. If it decides to amend or terminate the plan, it must inform the parents of their appeal rights.
  3. Councils must consider reviewing EHCPs for under-5s every three to six months. If significant changes in need have occurred, a re-assessment may be necessary.

What happened

EHCP

  1. Mr C’s son, X, was born in 2013. He was diagnosed with global development delay and an autism spectrum disorder in 2015. He attends a primary school in the Council’s area.
  2. In 2016, X’s parents requested X be assessed for an EHCP. The Council agreed and began an assessment. At the time, X was capable of very little speech. The EHCP was completed in March 2017. It said X must receive the following:
      1. Funding to ensure he met his learning objectives;
      2. At least eight 45-minute speech and language therapy sessions per academic year; and
      3. At least three occupational therapist contacts per academic year.
  3. No personal budget was requested or set in the first EHCP.
  4. The first annual review was completed in May 2018. After the review meeting, Mr C understood that changes would be made to the EHCP. The Council says it never committed to change the EHCP and that, after the review process was complete, it decided that no changes would be made.
  5. The Council accepts it did not inform Mr C of the decision to leave the EHCP unchanged or of his right of appeal against that decision.
  6. The second annual review meeting was held at the school in mid-June 2019. At the review, Mr C said he was dissatisfied with the review statement and complained to the Council in early July 2019. The Council sent a final complaint response in September 2019. It said:
      1. The Council may not have explained clearly the relationship between an annual review and an EHCP. Not every point discussed at a review would result in a change to the EHCP.
      2. Mr C said the Council should have held reviews twice yearly but the government guidance – The Special Educational Needs and Disability Code of Practice said councils did not have to do so for children of X’s age;
      3. Mr C had complained that there had been no review of X’s healthcare needs. The Council said a review would only be held if a parent or relevant professional requested it. No one had done so.
      4. It had delayed in informing Mr C of the results of the review. It said this was because the school had not sent a report to the Council in time. The Council had put systems in place to prevent similar errors in future.
      5. The Council said it would repeat the annual review for 2019 in October 2019. At this review.
  7. The second review meeting was held in October 2019. It was held in two parts, the first with X’s mother present and the second with Mr C present.
  8. Mr C says he had asked that all evidence to be used at the meeting should be sent to him two weeks in advance of the meeting. Some evidence was presented to him at the start of the meeting. The minutes say Mr C insisted it should not be considered during the meeting.
  9. He said the provision set out in section F of the EHCP was not sufficient. He said he had commissioned a private speech and language therapist report which said X needed 1-to-1 sessions. Mr C also said no educational psychologist’s report had been prepared by the Council.
  10. After the review meeting, the EHCP was revised. The Council made various changes to the EHCP. It sent the revised EHCP to Mr C in December 2019. He was not satisfied with it and complained to the Ombudsman.
  11. Mr C also appealed to the Tribunal. His appeal was heard in early 2021 and was partially upheld. At the hearing, Mr C told the court he worried that, if certain therapies and provision were not specified, X might not receive them.
  12. In her decision, the judge said X’s provision was already delivered appropriately. She ordered that X should receive a minimum of two hours one-to-one support to access learning activities but she said that he already received much more individual attention than that. She also ordered various other changes to the revised EHCP to clarify, rather than increase, provision.

Was there fault causing injustice?

Delay in holding first annual review

  1. The first annual review of X’s EHCP was due in March 2018. It was held in May 2018, which is fault. However, the delay was slight and it did not, therefore, cause significant injustice to X or Mr C.

Failure to issue decision or notice of right of appeal in 2018

  1. The Council had a statutory duty to inform Mr C of its decision not to change the EHCP and of his right to appeal that decision. It did not do so. This was fault. This fault caused injustice as Mr C was not able to appeal the decision.

A failure to amend the EHCP as agreed at the review in 2018

  1. Mr C says the school agreed to change the EHCP at the review meeting in 2018. I cannot find fault with the Council for anything agreed by the school. However, the Council says that, when it made its review decision, after the review meeting, it decided not to make any changes to the EHCP. This was a decision it was entitled to make but, as stated above, it should have informed Mr C.
  2. Mr C says the school told him that it would take over a year to implement the EHCP. The Council is not responsible for anything anyone at the school may have told Mr C about X’s EHCP. I therefore cannot find fault with the Council.

Failure to provide documents before 2019 review

  1. Mr C says he had asked for documents to be sent to him two weeks ahead of the review meeting. The Council says it did so. Mr C says he did not receive it. The Council posted the information to X’s mother who did receive it. This is evidence that the Council compiled the information and sent it out. I therefore find it more likely than not that it also sent it to Mr C. Therefore, I find that any failure to deliver it to Mr C was not the Council’s responsibility so I do not find it at fault.
  2. In any event, Mr C received the information before the meeting. There was not, therefore, any significant injustice to Mr C who could have requested an adjournment to read it.

Failure to include 1-to-1 speech and language therapy in recent EHCP

  1. This is a complaint about the contents of the EHCP. This is not a matter for the Ombudsman but for the tribunal.

Reneging on an agreement to pay compensation

  1. Mr C says the Council agreed to pay him compensation. The Council says it told Mr C it would pay him compensation only if it found that compensation was due. I have seen no evidence the Council agreed to pay Mr C compensation and on the balance of probabilities I therefore do not find fault.

Injustice

  1. The Council accepts that it did not inform Mr C of its decision not to alter the EHCP after the 2018 review. Nor did it inform him of his right of appeal. This was fault and caused Mr C injustice as he lost the chance to appeal in 2018. This was a loss of a chance to have changes made to the EHCP at an earlier stage.
  2. The Council also accepts that it failed to inform Mr C of the results of the first 2019 review in a timely fashion. This too was fault causing injustice. Mr C lost the chance to appeal the decision for a further four months.
  3. I have considered whether any injustice was caused to X by Council failures. The appeal judge said, when delivering her judgment that, although she ordered changes to the EHCP, X was already receiving greater provision than was set out in her order. Therefore, she did not order increased provision. She merely set down what was already provided in writing because Mr C was concerned that it might not be provided in future. I therefore consider that, even if Mr C had been able to appeal sooner, it is likely the Tribunal would not have made significant changes to X’s EHCP. There was therefore no injustice caused to X.

Remedy

  1. The Council says it has already introduced a new system for EHCP appeals which, it says, means that failures to hold reviews on time and inform all parties cannot occur in future. I accept that this has reduced the likelihood that this will happen to other parents and so I have not made any recommendation about the Council errors of 2019.
  2. However, I am asking the Council to remind all staff involved about the fact that parents must always be informed of a decision at an EHCP review not to change the EHCP and informed of their right of appeal against that decision.
  3. I am also recommending the Council should apologise to Mr C and pay him £200 in recognition of the injustice he suffered in the form of time and trouble and lost opportunity to appeal.

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Agreed remedy

  1. The Council has agreed to send a letter of apology and £200 to Mr C within two weeks of the date of this decision.
  2. The Council has also agreed to remind all staff in relevant positions within four weeks of the date of this decision that, when the Council decides not to amend an EHCP after an EHCP review, that is an appealable decision. and officers must inform of parents of the decision and of their right of appeal.

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Final decision

  1. I have decided the Council was at fault for the reasons set out above. The Council has agreed to my proposed remedy and I have closed my investigation.

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Investigator's decision on behalf of the Ombudsman

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