Devon County Council (20 001 224)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 30 Apr 2021

The Ombudsman's final decision:

Summary: Ms B complains the Council has not dealt properly with her son C’s Education, Health and Care Plan (EHCP). The Council is at fault because it didn’t follow statutory timescales when it amended C’s EHCP. Special Education Needs (SEN) provision for C was delayed. The Council should pay Ms B £900 in respect of C’s missed provision.

The complaint

  1. The complainant, who I shall refer to as Ms B, complains the Council has not dealt with her son, C’s, Education, Health and Care Plan (EHCP) properly because:
    • The original EHCP in 2017 was poor;
    • His EHCP was not updated for his year six transfer;
    • The EHCP annual review in November 2018 was not done properly; and
    • The EHCP annual review in November 2019 was not done properly.
  2. Ms B says this has meant C did not receive his EHCP properly, he has lost SEN provision and this has contributed towards the failure of his educational placement. She also says it has caused significant impact and stress to her family and taken a lot of her time dealing with the consequences.

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What I have investigated

  1. I have investigated that part of Ms B’s complaint concerning the EHCP annual review in 2019. The final section of this statement contains my reasons for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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. 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)
  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 this decision with Ofsted.

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How I considered this complaint

  1. I spoke to Ms B and considered the details of her complaint as well as the Council’s response. I reviewed documents sent by the Council and Ms B.
  2. Ms B 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

Special Educational Needs

  1. A child with SEN may have an EHCP. This sets out the child’s needs and what arrangements should be made to meet them. (SEND Code of Guidance)
  2. 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. Ms B’s son C had an EHCP. An annual review of the EHCP was held in November 2019.
  2. The Council wrote to Ms B to tell her it intended to amend C’s EHCP in March 2020. C’s EHCP was issued in June 2020.

Analysis

  1. I have seen an email from the Council to Ms B in December 2019, saying the Council intended to amend C’s EHCP. The Council agree that it notified Ms B of its intent to amend C’s EHCP in writing in March 2020. This formal letter notified Ms B of her right of appeal.
  2. The Council agree the process of actually amending the EHCP was not begun before March 2020 and that this was delayed due to staff shortages. This was fault by the Council. The process of amending C’s EHCP was delayed by approximately three months.
  3. Educational Psychologist (EP) records show two familiarity visits were conducted prior to the assessment date but a scheduled assessment was not carried out because C’s placement was terminated. The EP’s report was further delayed by a conflict of dates and then because of the impact of Covid 19. This was not fault by the Council.
  4. The process of producing C’s amended EHCP took nearly two months. Several drafts were completed, and the Council incorporated Ms B’s views into C’s final EHCP. C’s educational placement was able to begin before the final EHCP was issued. This was not fault by the Council.
  5. Records from the Council show there was a large volume of email communication between Ms B and the Council. This was not fault by the Council.
  6. The Council has already apologised for the delays to amending C’s EHCP. It says staff capacity in the SEN team was not at the level required to deal with EHCP reviews. It has confirmed that it has taken action to provide additional funding for new staff to add capacity to the SEN team and these staff are now recruited.

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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:
    • Pay Ms B £900 in respect of the missed SEN provision caused to C by the delay in producing his amended EHCP.

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Final decision

  1. I have found fault causing injustice to Ms B and C. I have now completed my investigation.

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Parts of the complaint that I did not investigate

  1. I have not investigated the parts of Ms B’s complaint prior to November 2019 as these are out of time and the outcome was appealable.

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Investigator's decision on behalf of the Ombudsman

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