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Somerset County Council (20 002 308)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 12 Mar 2021

The Ombudsman's final decision:

Summary: Mr D complained the Council delayed issuing an Education, Health and Care plan for his son and it failed to provide the provision set out in the plan. As a result, Mr D said his son was educationally disadvantaged and experienced distress. He said he also experienced distress, time and trouble in providing some of the support himself. The Council was at fault for the delay in completing the plan and for failing to provide some of the provision set out in the plan. It agreed to make a payment to acknowledge the loss of special educational needs provision for his son. It also agreed to review its procedures and ensure its staff are aware of its special educational needs’ responsibilities.

The complaint

  1. The complainant, whom I shall refer to as Mr D, complains the Council:
  • was at fault in the way it dealt with his son’s (Y) Education Health and Care (EHC) Plan, including delays in completing the Plan and failed to consider his comments on its draft plan; and
  • has failed to put in place some of the provision set out in Y’s EHC Plan.
  1. As a result, Mr D says Y had a loss of Special Educational Needs (SEN) provision and experienced distress. In addition, Mr D says he also experienced distress and he had costs to arrange some of the EHC provision for Y.

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What I have investigated

  1. I have investigated the complaint that the Council:
      1. was at fault in the way it dealt with his son's Education Health and Care (EHC) Plan, including delaying issuing a final Plan; and
      2. has failed to put in place all the therapy and teaching support set out in the EHC Plan.
  2. I explain at the end of this statement why I have not investigated Mr D’s complaint about the Council’s failure to consider his comments on its draft EHC plan for Y.

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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 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. (Local Government Act 1974, sections 26(1), 26A(1) and 34(3), as amended)
  2. 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)
  4. 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)
  5. 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. Where a person has appealed we have no discretion and cannot investigate. (Local Government Act 1974, section 26(6)(a), as amended)
  6. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
  7. Caselaw has established that if someone has lodged an appeal to a SEND Tribunal the Ombudsman cannot investigate any matter which is inextricably linked to the matters under appeal. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407)
  8. 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. As part of my investigation, I have:
    • discussed the complaint with Mr D and considered the information he provided.
    • considered the information the Council provided in response to my enquiries.
    • reviewed relevant law and guidance on special educational needs.
  2. I also gave Mr D and the Council the opportunity to comment on a draft version of this decision and I have considered the comments received.

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What I found

Education Health and Care assessments and Plans

  1. A child with special educational needs (SEN) 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. Section B sets out the child’s special educational needs. Section F sets out the educational provision that has to be made to meet the needs. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
  2. Statutory guidance 'Special educational needs and disability code of practice: 0 to 25 years' (‘the Code’) says:
    • Where a local authority receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment.
    • The process of assessing needs and developing EHC Plans "must be carried out in a timely manner". Steps must be completed as soon as practicable.
    • The whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply).
    • Councils must give the child's parent or the young person 15 days to comment on a draft EHC Plan, “beginning with the day on which the draft plan was served”. (Special Educational Needs and Disability Regulations 2014, regulation 13)
  3. Local authorities have a duty to secure the special educational provision set out in an EHC Plan. (Children and Families Act 2014 section 42)
  4. From March 2020, statutory guidance was updated in response to COVID-19. This relaxed the duties on Council’s to use reasonable endeavours to provide support to children with EHC plans. It said Council’s should consider the needs of children with EHC plans and carry out risk assessments. Such assessment should include the parents and other relevant individuals.
  5. From May to July 2020, the Coronavirus Act 2020 set out temporary measures for children with EHC plans. It said Council’s should use reasonable endeavours to secure and arrange the specified SEN provision within EHC plans.

Background

  1. Mr D has a son, Y, who has a lifelong condition that affect movement and coordination. He also has paralysis and a hearing impairment. Y attended mainstream schools in 2018 having had one-to-one keyworker support for five years. The support stopped when Y moved schools and so Mr D applied to the Council for an EHC Plan for Y.
  2. The Council agreed that a EHC plan was needed for Y and started the process for assessing Y’s needs. It issued a draft EHC plan and shared this with Mr D.
  3. Mr D was not happy with the draft plan and so he made comments on the draft EHC plan. He also complained to the Council for its delays in completing Y’s EHC plan.
  4. The Council issued Y’s final EHC plan in April 2019, 25 weeks after Mr D asked an EHC plan for Y. It acknowledged it had provided the plan late. The plan identified Y needed support with cognition & learning, communication and interaction, social, emotional and wellbeing, sensory and physical. It said the Council would pay for the support and it would be delivered via a combination of 1:1 support, small group and whole class teaching. The plan also included support for:
    • a registered Occupational Therapist (OT) to provide three one-hour sessions at school, which should be attended by the adult supporting Y in school;
    • half termly reviews by the OT with the adult supporting Y to be present;
    • the adult supporting Y to practice the OT programme with Y daily;
    • adapted equipment to help promote independence in Y’s activities at school as advised by the OT;
    • physiotherapy four times a week for 20 minutes per day by a trained member of staff in the school who will receive training from Y’s physiotherapist; and
    • weekly physiotherapy sessions with Y’s physiotherapist.
  5. Mr D said the Council did not consider his comments and the plan did not give enough support to meet Y’s needs. And so, Mr D appealed against the Council’s EHC plan for Y to a tribunal.
  6. Mr D also said he arranged and transported Y to private physiotherapy sessions and paid for this until December 2019 and no OT support was put in place by the Council.
  7. Mr D and the Council tried to agree on Y’s special educational needs before the tribunal hearing. The Council agreed to increase the provision and include more detail about Y’s needs in the EHC plan, but Mr D said some of his comments were still not included.
  8. In September 2019, the Council agreed Y should receive 1:1 support for 27.5 hours per week. It told Mr D it would inform the school to arrange for this.
  9. Mr D said this 1:1 support was not put in place until January 2020. He said this support was therefore not available at key moments for Y such at during toilet needs, meals and the school play.
  10. In November 2019, the Tribunal made its decision. It set out what the EHC plan should cover in relation to Y’s needs and the support he should be provided. This included:
    • a modified curriculum adapted to meet Y’s needs;
    • 1:1 support for 27.5 hours on a weekly basis should be provided by a Higher-Level Teaching Assistant (HLTA) with the relevant qualifications and experience to meet Y’s complex needs;
    • 1:1 support for Y to get into school, move around school and to leave school;
    • weekly 30 minutes sessions with an Emotional Literacy Support Assistant (ELSA);
    • direct 1:1 physiotherapy for one hour per week by an experience paediatric physiotherapist throughout the year in school, clinic or Y’s home;
    • during term time an indirect physiotherapy programme lasting 20 minutes four times per week delivered by the HLTA;
    • support from a suitably experienced OT who will provide a direct OT programme and reviews;
    • indirect OT support by the HLTA who also should attend all the direct OT sessions.
  11. The Council drafted Y’s final EHC plan following the Tribunals decision. However, Mr D said it had not included a report in the appendix as agreed by the Tribunal. The council agreed to include this and it provided the final version of Y’s EHC plan in December 2019 to Mr D and the School.
  12. The School told the Council the funding provided was not enough to meet Y’s needs.
  13. In January 2020, the school allocated a teaching assistant to provide 1:1 support to Y. He received training from Y’s physiotherapist to provide this support in school. However, Mr D said most of the provision in Y’s EHC plan was not provided and so he complained to the Council.
  14. In response, the Council apologised for the delay in providing the EHC provision. It said arranging the funding with Y’s School.
  15. A week later, the Council told Mr D it had approved the funding for the School to provide Y’s EHC provision. And so, the School started recruitment for a HLTA to support Y.
  16. In February 2020, Mr D said the Council had still not arranged for Y’s OT support. So, he asked the NHS if it could provide the provision. He was told the NHS could not provide the provision needed for Y. It said this had to be found privately. Mr D found an OT who could provide the support for Y, but the support did not start until September 2020 due to COVID-19.
  17. Mr D also met with the School. He said the teaching assistant provided some 1:1 support but did not meet the provision set out in Y’s EHC plan. He said the teaching assistant had a good relationship with Y, but he was also looking after other children and Y therefore did not receive the amount of 1:1 support needed. He also said Y’s physiotherapist had raised concerns about a lack of indirect physiotherapy in the school. The School told Mr D the indirect physiotherapy would be provided by the teaching assistant and who would provide the ELSA support for Y.
  18. In March 2020, Y’s ELSA support started in the School. However, the School was not successful in recruiting a HLTA. Shortly after, the School closed temporarily due to the COVID-19 outbreak. Mr D said the School told him to keep Y home due to COVID-19.
  19. Mr D said he gave Y indirect physiotherapy during the lockdown, but Y did not receive 1:1 support with a HLTA and no learning programme tailored to Y’s needs. He also said the OT programme was not delivered.
  20. In May 2020, Mr D said Y had posture issues and neck pain from studying at home without OT support. Y’s corrective foot surgery was postponed due to COVID-19 and his condition has worsened since. Mr D was told by the School it was re-advertising the HLTA role to support Y.
  21. Mr D remained unhappy about Council’s response to his complaint and the EHC provision provided to Y. And so, he escalated his complaint about Y’s EHC provision to the Council.
  22. In response, the Council:
    • apologised for its five-week delay in providing Y’s EHC plan in 2019;
    • accepted it had failed to respond to Mr D’s request for changes to the draft EHC plan in 2019 and apologised;
    • said it could not locate a complaint Mr D had made in July 2019;
    • partially accepted it had not provided some of the provision in Y’s EHC plan after the Tribunal decision.
  23. Mr D was unhappy with the Council’s findings. He provided it with a copy of his complaint from July 2019. He also provided it with a letter that the Council did not respond to in early 2019. He said these showed his comments on its draft EHC plan for Y and should have been considered by the Council.
  24. In response, the Council apologised for some errors in the stage two review and provided a revised stage two complaint response. It acknowledged it had received Mr D’s complaint in July 2019 and had apologised that a meeting had not taken place. It also apologised for not sharing a complaint by Mr D in early 2019 with its special education needs and disability team (SEND).
  25. In June 2020, the School told Mr D that Y could return to school with some other vulnerable children. Y went twice a week and his sister was allowed to join him to help with his social communications and emotions. Mr D said Y’s ELSA support started again in school. He also said Y’s physiotherapist started her sessions again but observed significant regression issues for Y.
  26. In July 2020, the School confirmed it had recruited a HLTA to start in September 2020. It arranged Y’s timetable and support, including physiotherapy, OT and ELSA support to start in September 2020.
  27. Mr D is satisfied with Y’s EHC support from September 2020. However, he remains unhappy about the Council’s handling of Y’s EHC plan and the provision in place between April 2019 to July 2020 and so, Mr D complained to the Ombudsman.
  28. In response to our enquiries, the Council provided a statement about the provision the school and it had provided to meet Y’s EHC plan. It said:
    • it provided all provision between April-November 2019, except for adult support to develop a healthy understanding of Y’s capabilities;
    • it provided all provision between December 2019 – March 2020.
    • It expected the provision of Y’s health needs should have been delivered by the School.
    • reasonable endeavours had been made to provide the EHC provision during the COVID-19 outbreak from March to July 2020.

Analysis

Completion of Y’s April 2019 EHC plan

  1. Mr D complained the Council failed to complete Y’s EHC plan within 20 weeks as required by the Statutory Guidance. The Council accepted it was at fault and apologised for the delay. I am satisfied the Council’s failure to complete Y’s EHC plan caused a five-week delay in Y receiving the EHC provision as set out in his April 2019 plan. Although, the Council apologised for this, I am not satisfied this is enough to remedy the injustice caused.
  2. Mr D also complained the Council failed to consider his comments on its draft EHC plan for Y. While I understand Mr D may not have been aware of this until April 2019 when he received the plan, we expect complainants to bring such matters to our attention within 12 months of becoming aware of the issue. Mr D did not do so. In addition, I cannot say that if the Council had considered Mr D’s comments that it would have changed the Final EHC plan. For these reasons, I do not find it appropriate to exercise discretion to consider this matter further.

EHC provision from April to November 2019

  1. Mr D was unhappy about the amount of support set out in Y’s EHC plan. He also said the Council failed to provide some of the provision set out in the plan during this period.
  2. I cannot consider the suitability of Y’s EHC plan as this has already been considered by the Tribunal. However, I can consider whether the provision set out in the plan was provided by the Council.
  3. Based on the evidence provided, the Council paid the School to deliver the provision in Y’s EHC plan. The School delivered the provision it was responsible for. However, I have not seen any evidence the Council arranged for the physiotherapy programme, nor an OT programme as set out in the EHC plan. In addition, Y was not provided the 1:1 support for 27.5 hours as agreed by the Council in September 2019. This is fault, I am satisfied this caused injustice for Y due to the impact of:
    • not receiving any direct or indirect OT provision;
    • not receiving indirect physiotherapy in the school;
    • having to travel to direct physiotherapy sessions at lunchtime and after school; and
    • not receiving amount of 1:1 provision agreed for his wellbeing and educational benefit.
  4. Y did not experience an injustice for the Council’s failure to provide direct physiotherapy, because Mr D arranged and paid for this. However, this did cause an injustice to Mr D for the costs to provide this.

EHC provision from November 2019 to March 2020

  1. Mr D said the Council caused a delay in providing the support set out in the November 2019 EHC plan for Y. He also said it failed to provide some of the provision agreed.
  2. We would normally expect the Council to take no more than 4 weeks to put in place straightforward provision. Complex provision should be available within no more than half a term from when a final EHC plan is issued or amended.
  3. Based on the information available, the Council agreed in September 2019 that Y needed fulltime 1:1 support and said it would inform the School. I have seen no evidence it informed the school and provided the required funds to the school to the School to meet this need, nor that any recruitment was attempted at this stage. This is fault.
  4. In addition, it took the Council two months to arrange the funding to meet Y’s EHC plan as decided by the Tribunal. While I understand the Council had to agree to funding with the school and allocate the funds, it was the Council’s responsibility to ensure it met Y’s EHC plan without causing delays. The Council had agreed most of the provision with Mr D prior to the tribunal hearing, I therefore see no good reason for this delay. This caused a further delay to start the School’s recruitment process for a HLTA to support Y as set out in his EHC plan. This is fault which caused uncertainty and distress for Mr D. However, because the School was unsuccessful in its first recruitment attempt, I cannot therefore say that a HLTA would have been recruited if no delay had happened.
  5. I acknowledge the challenges of recruiting a HLTA with the skills and experience needed to support Y as set out in his EHC plan. The School was not successful in recruiting a HLTA until July 2020, but it did provide a teaching assistant to support Y from January 2020. I cannot fault the Council for the School’s challenges to recruit a suitable HLTA.
  6. Mr D was happy with the teaching assistant and the direct physiotherapy support provided in this period. However, there is a disagreement about the support provided:
    • Mr D said Y did not receive support for 27.5 hours each week and did not have enough 1:1 support as his EHC plan required.
    • the School said it provided the support set out in Y’s EHC plan.
    • the Council said it gave the School the funds to provide the support.
  7. Without evidence, I cannot say whether the support was provided to Y during this period in the School. In addition, I cannot fault the Council as it provided the funds to deliver the support. However, the Council remains responsible for Y’s EHC provision and so, when Mr D complained about the lack of provision, the Council should have considered and addressed any shortfalls without delay. I have seen no evidence the Council considered the matter then. This is fault, but because I cannot say what provision was delivered, I can only find that this caused an injustice for the uncertainty to Mr D.
  8. The physiotherapist Mr D arranged for continued to provide direct physiotherapy for Y in January 2020. The Council paid the physiotherapist through the School for this period. In addition, the physiotherapist provided training to the School’s temporary teaching assistant, who was supporting Y until a HLTA could be recruited. There is therefore no fault by the Council on this matter.
  9. Y’s EHC plan said he should have a suitably experienced OT to deliver his occupational therapy programme. The support should also be attended by the adult supporting Y in School. The Council said it expected the School to deliver this provision. This is fault because the support is listed under section F of Y’s EHC plan and it therefore remains the Council’s responsibility. Mr D had to find the support himself and it took him two weeks to arrange for a suitable OT privately. On balance, I am therefore satisfied that if the Council had recognised its responsibility to provide the OT support, Y would have received the support from January 2020. This caused Y a loss of OT provision for almost three months. In addition, Mr D also experienced an injustice for the time and trouble in arranging the support.
  10. Y’s EHC plan also set out the ELSA support he needed weekly. This support did not start until March 2020, three months after Y’s EHC plan had been completed. This is fault. I would expect such support to be set up by the Council without delay and I am satisfied this caused Y some injustice for loss of EHC provision.

EHC provision from March to July 2020 (COVID-19 period)

  1. Mr D also said Y did not receive the support set out in his EHC plan during this period.
  2. It is acknowledged that this period was particularly challenging for the Council due to the severe impact on the Council’s ability to plan and respond to needs from its local community, including children such as Y with EHC plans.
  3. However, the statutory guidance required the Council to ensure it completed a risk assessment for Y and involve Mr D and other relevant individuals in the assessment. This would help to decide what provision could be provided to Y during the COVID-19 lockdown and afterwards. The Council has said it has no record of a risk assessment being done. This is fault.
  4. I cannot say what provision was available and could have been given for Y if the Council had completed a risk assessment. However, I am satisfied the fault caused uncertainty and distress to both Y and Mr D. In considering this part of Mr D’s complaint I acknowledge some support was available when the COVID-19 lockdown was relaxed.

Agreed action

  1. To remedy the injustice the Council caused to Mr D and Y, the Council has agreed to, within one month of the final decision:
      1. Write to Mr D and apologise for the failure to provide all of Y’s SEN provision and the delays caused;
      2. Pay Mr D £850 to acknowledge the avoidable distress and uncertainty this caused him and Y.
      3. Repay Mr D for his cost of physiotherapy in line with Y’s EHC plans from five weeks before the start date of Y’s April 2019 EHC plan until December 2019.
      4. Pay Mr D a further £3500, to use as he sees fit, in recognition of the loss of SEN provision for Y, which includes OT support.
      5. Pay Mr D a further £300 to acknowledge time and trouble in trying to get the Council to comply with the law and statutory guidance.

In total the Council should pay Mr D £4,650 plus the physiotherapy costs.

  1. Within three months of the final decision the Council should also:
      1. review its procedures to ensure all SEN identified in EHC plans are actioned, including Health needs set out in Section F of EHC plans;
      1. Remind its staff of the statutory guidance for competing EHC plans and putting in place provision without delay.

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Final decision

  1. There was fault leading to injustice. The Council has agreed to my recommendations. Therefore, I have completed my investigation.

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Parts of the complaint that I did not investigate

  1. I have not investigated Mr D’s complaint that the Council failed to consider his comments on Y’s draft EHC plan in early 2019. This is because this part of Mr D’s complaint is late. I have seen no good reasons to exercise discretion on this matter.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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