Buckinghamshire Council (20 008 958)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 22 Dec 2021

The Ombudsman's final decision:

Summary: Mr B complained that the Council failed to secure the provision set out in his son’s education, health and care plan. The Ombudsman finds that the Council failed to provide counselling for Mr B’s son as required by the plan. The Council has agreed to make a payment to Mr and Mrs B in recognition of the time and trouble they were put to in arranging counselling themselves.

The complaint

  1. Mr B complains that, since September 2018, the Council has failed to ensure the provision set out in his son’s education, health and care plan (EHCP) has been delivered. As a result, he has lost out on much of his educational provision for three school years. Mr B says this has also caused himself and his wife distress and anxiety and they were put to time and trouble in pursuing the matter.

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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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate:
    • We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
    • We cannot investigate a complaint if someone has appealed to a tribunal even if the tribunal has not provided a complete remedy for all the injustice claimed. (Local Government Act 1974, section 26(6)(a), as amended. R v the Commissioner for Local Administration ex parte PH, 1999)
  3. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
  4. 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)
  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.

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How I considered this complaint

  1. I have considered all the information provided by Mr B, made enquiries of the Council and considered its comments and the documents it provided.
  2. Mr 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

Legal and administrative background

Education, health and care plans

  1. A child with special educational needs (SEN) may have an Education, Health and Care plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP 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. Councils are responsible for writing EHCPs and ensuring they are reviewed on an annual basis. They are also responsible for ensuring the provision detailed in the plan is delivered.
  3. The Ombudsman expects councils to have systems in place to check that provision in an EHCP has been secured and is being provided. (‘Not going to plan? Education, Health and Care plans two years on’)

The NatSIP Eligibility Framework.

  1. This is a tool that assists local authority sensory services in the decision-making process when allocating levels of support to children and young people with visual impairment. The Eligibility Framework states that the nature of the support offered is dependent upon assessed need but activities would typically include: assessment, direct teaching, provision of specialist equipment when needed, training and advice for school staff, meetings and reviews.

Key facts

  1. In November 2017 the Council issued an EHCP for Mr and Mrs B’s son, C, who was in year two at primary school. He has a severe sight impairment, learning difficulties and a diagnosis of autism.
  2. An annual review was held in May 2018 and a new EHCP was issued. The plan stated, “A Specialist Teacher from the Visual Impairment Team (‘QTVI’) will provide 38 hours of support per year according to the NatSIP Eligibility Framework”.
  3. In September 2018 C moved to a new school with agreement from the council to provide additional funding for a teaching assistant for full-time support.
  4. During the school year September 2018 to July 2019 QTVI provided 38 hours support which was in accordance with C’s EHCP. This included: planning typing lessons; observing C during maths and English lessons and at playtime and assembly; liaising with school staff and parents; and attending meetings with other professionals.
  5. A revised EHCP was issued in August 2019 prior to C’s transfer to a special school in September 2019. The plan stated, “a Specialist Teacher from the Visual Impairment Team will provide 38 hours of support per year… This time will be used flexibly at the discretion of the Specialist Teacher for classroom observations, discussions with school staff and other professionals, report writing, attendance at meetings and 1:1 sessions with [C]”.
  6. The Council says that, between September 2019 and March 2020 QTVI provided a total of 117 hours support. This included: pre-braille lessons; braille lessons; touch typing lessons; observation of C reading modified books and during a cookery lesson; liaison with school staff, liaison with parents; and attending meetings.
  7. When COVID-19 restrictions were put in place in March 2020, QTVI prepared lesson plans and resources for home teaching by Mr and Mrs B together with advice and support regarding touch typing and braille. The Specialist Teachers later provided weekly virtual lessons in braille.
  8. Following an annual review, a new EHCP was issued in June 2020. It stated, “A Specialist Teacher from the Vision Impairment team will provide up to 76 hours of support per year… This time will be used flexibly at the discretion of the Specialist Teacher for classroom observations, discussions with school staff and other professionals, report writing, attendance at meetings and 1:1 sessions with [C]”. The increase from 38 hours to 76 hours was because C was being introduced to braille from spring 2020.
  9. The plan also stated that C would require 30 hours Special Support Assistant (SSA) support for “modification of all visual materials, this will include producing:
    • modified large print copies of all books, worksheets, PowerPoints, etc
    • support during lessons
    • verbal descriptions of images, objects and videos during lessons
    • organisation of modified resources
    • use of specialist equipment and IT equipment as provided by Specialist Teaching Service
    • 1:1 support for health and safety”.
  10. The Council says that, during the school year September 2020 to July 2021, QTVI provided 150 hours support for C. The support included: weekly braille lessons; weekly typing lessons; providing feedback to Mr and Mrs B; providing braille plans to the school for the Learning Support Assistant (LSA) to follow; providing braille and typing activities for Mrs B to support C during lockdown; observations of C reading using the iPad and during science, maths and food technology lessons; liaison with school staff; attending meetings; training and advising school staff; and providing support with C’s transition to his new school.
  11. In September 2020 Mr and Mrs B complained to the Council about the lack of SEN provision. There was a meeting on 1 October 2020 to discuss the way forward.
  12. A revised EHCP was issued on 6 April 2021 prior to C’s move to a specialist school for visually impaired pupils. The plan stated, “A Specialist Teacher from the Vision Impairment team will provide support from Tier 4 until July 2021”.

Analysis

  1. Mr B says that, since September 2018, the Council has failed to ensure the provision set out in his son’s EHCP has been delivered including: suitable reading material in the correct font size; specialist PE equipment; a counsellor; low vision aids; and support with using the iPad and different technologies.
  2. An EHCP is a legal document and the Council has a duty to secure the special educational provision in Section F of the plan. Although the Council can ask another organisation to make the provision, if that organisation fails to do so, the Council remains responsible.
  3. It is for the Council to decide how it will check that provision is secured. The Ombudsman recognises it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHCP. However, we consider that, to discharge the legal duty, councils must have systems in place to:
    • check the provision is in place when a new or substantially different EHCP is issued or where there is a change in placement;
    • check the provision at least annually as part of the review process;
    • investigate complaints or concerns that provision is not in place at any time.

Suitable reading material

  1. Mr B says suitable reading material has not been made available for C since September 2018.
  2. The EHCPs issued in 2018 and 2019 made no specific provision with regard to reading materials. The EHCP issued in June 2020 set out that C “should read books with pictures in strong colours and with good contrast, free of unnecessary visual clutter. This will require books to be independently typed up, scanned or downloaded/ordered through a large print provider in clear, bold N48 on a yellow background”. The plan stated that the school was responsible for this “with advice from QTVI”.
  3. The EHCP makes provision for 30 hours Special Support Assistant (SSA) support for modification of all visual materials including producing modified large print copies of all books, worksheets and PowerPoints. So, it was the school’s responsibility to modify visual materials and provide text in the correct font size. QTVI’s role was to provide advice and support to ensure the school knows where to obtain appropriate books and how to produce/format reading books and teaching materials.
  4. I am satisfied from the evidence that the Council’s Specialist Teachers provided advice to the school on where to obtain books in an appropriate font size and training and support on modification of text. They also provided text for school use.
  5. There was an issue when C started back at school in September 2020 because the material produced by the school was not suitable as the text was overlapping the pictures. The Council says it was unaware the materials had become unsuitable until the school contacted the Specialist Teacher on 9 September. She advised the school the same day on short and long-term options to ensure C could access suitable reading material.
  6. The minutes of the meeting held on 1 October 2020 between the school and the two Specialist Teachers show they stressed it was important that the school advise them when C is due to change reading levels and/or when there is an increase in the amount of text on a page in the reading books so they can provide support and guidance should a change be required on how the books are modified.
  7. I find no fault by the Council in this regard.

Specialist PE equipment

  1. It is the school’s responsibility to adapt lessons to meet the needs of all pupils. Specialist Teachers advise school staff on how to adapt lessons for pupils with a vision impairment which may include informing them where to obtain specialist equipment.
  2. Section E of C’s EHCP from June 2020 states C “will continue to develop his PE skills using adapted equipment to support his visual impairment”. However, section F does not specify any specialist PE equipment and states only that he “will need access to specialised sports so that he can access the social benefits from playing sports and games with peers”. It also states “where possible, activities in PE and games lessons should be adapted to enable C to take part in the same activities as his peers. Where this is not practicable or safe an alternative physical activity should be offered”. The EHCP states that school staff have responsibility for this. Section F also states that the Occupational Therapist has responsibility for “teaching C how to use specific aids to enable independence and participation in PE activities”.
  3. The Council says it is satisfied the PE equipment in the school was suitable for C, PE lessons were adapted for him and he participated in them.
  4. Section F of the EHCP does not specify that specialist PE equipment should be provided, so I find no fault in this regard. I am satisfied that the Specialist Teachers advised the school at the outset how to adapt PE lessons. C’s class teacher later asked the Specialist Teachers for further advice and ideas for suitable PE lessons. QTVI sent information about how best to support C in PE lessons and advised the teacher to ask for further help if necessary.

Counsellor

  1. In March 2020 the Specialist Teacher contacted a college for the blind about vision impairment (VI) counselling support. But it was unable to provide specialist VI counselling. Mr and Mrs B arranged counselling for C.
  2. There is no reference to counselling in the EHCPs issued in 2018 and 2019. Section F of the EHCP issued in June 2020 states that C requires “support from a trained counsellor … to help him come to terms with his vision impairment, manage anxieties and raise his self-esteem and confidence”. It also states that “support to help [C] develop his social and emotional understanding” is to be provided by “counsellor with support from QTVI”.
  3. The Council says it was unable to provide specialist VI counselling because there are no specialist VI counsellors in the UK. But it made a referral to the Child and Adolescent Mental Health Service (CAMHS) which can provide counselling support although there is often a lengthy waiting list.
  4. There was no requirement for the Council to provide a specialist VI counsellor. The EHCP does not require this. It simply states that C requires “a trained counsellor… to help him come to terms with his vision impairment”. I appreciate the Council made efforts to obtain a counsellor. But this is not enough. It was under a legal duty to secure the provision set out in C’s EHCP and failure to do so was fault. Fortunately, Mr and Mrs B were able to find a counsellor so C did not miss out on the provision. However, Mr and Mrs B were put to time and trouble in having to source a counsellor themselves.

Vision aids

  1. The Council has explained that low vision aids such as magnifiers and binoculars are provided by Low Vision Clinics at hospital. The school is responsible for purchasing other items up to a cost of £50 and the Council is responsible for providing more expensive items.
  2. The Council has provided equipment for C including: a laptop, a brailler and other braille resources; an iPad for taking photographs and reading electronic books and PowerPoints; and a tactile image enhancer for preparing tactile images. It is satisfied that it has provided all necessary visual aids. I have seen no evidence to suggest this is not the case.

Support with using the iPad and different technologies

  1. The EHCPs issued in 2018 and 2019 provide that the school is responsible for providing sessions for C to learn how to use specialist tools, materials and equipment safely. There is no specific reference to technology.
  2. The EHCP issued in June 2020 states that C requires “Adult support when using the iPad to help him develop confidence using different technology to support curriculum access”. It states this will be provided by “school with advice from QTVI”.
  3. Between September 2018 and July 2019 the Specialist Teachers discussed with the school the use of the laptop and iPad. Between September 2019 and July 2020 the Specialist Teachers gave advice to C’s class teacher about touch typing and liaised with her regarding software. They also liaised with the LSA who provided touch typing practice sessions to C under the Specialist Teachers’ direction. The Specialist Teachers also provided training to the LSA in how to use a Zyfuse machine to make tactile diagrams and pictures.
  4. During the COVID-19 restrictions when C had to be home educated the Specialist Teachers provided support to the family on the touch-typing software.
  5. Between September 2020 and July 2021 the Specialist Teachers continued to liaise with C’s class teacher and LSA regarding IT issues.
  6. I am therefore satisfied the Council provided support and advice as required by the EHCP.

Specialist teaching when C’s allocated Specialist Teacher was on long-term sick leave during 2019

  1. C’s Specialist Teacher had several periods of planned sick leave between April and June 2019. Mr B says C missed out on support during this period as no replacement Specialist Teacher was provided.
  2. This period was covered by the EHCP dated 30 May 2018 which stated, “A Specialist Teacher from the Visual Impairment Team will provide 38 hours of support per year according to the NatSIP Eligibility Framework”. It is clear from this that the 38 hours support could include any of the activities set out in the Eligibility Framework (as set out in paragraph 12 above). The EHCP does not specifically provide for direct teaching from a Specialist Teacher. So, the fact that C did not receive 1:1 teaching from a Specialist Teacher during this period was not fault.
  3. The Council says that, although the Specialist Teacher was signed off as ‘not fit to work’ she continued to liaise with C’s class teacher and with other professionals involved with C. In addition, the school was informed that the Specialist Teacher’s manager and senior specialist VI teacher was available for support if required.
  4. There was no requirement for QTVI to provide direct teaching and it continued to provide support to those working directly with C during this period. I am therefore satisfied that C did not miss out on any support.

Communication

  1. Mr B says QTVI stopped communication with him and his wife in September 2020.
  2. The Council says it received an excessive volume of emails and telephone calls from Mr and Mrs B so it was agreed at a meeting on 8 July 2020 that all communication would be via a home-school liaison book from September 2020.
  3. Between September 2020 and the end of November 2020 the Specialist Teacher completed an entry in the communication folder after each braille and touch-typing session with C. Notes of these lessons were also written in the record of visit.
  4. The Council says communications from Mr and Mrs B heightened around September 2020. These communications were sent to multiple contacts within the Council, often several times a day, and it became increasingly difficult for officers to keep on top of who was responding. As a result, the SEND Resolution Team wrote to Mr B on 17 September 2020 asking them to direct any further queries to the team and advising them how to make a complaint.
  5. Mr and Mrs B made a complaint in September 2020. The head of service responded in October 2020 and explained it would be best if the SEND Resolutions Team acted as a single point of contact and coordinated all communications with them.
  6. The direction given previously by the Service Director changed after the Head of Service met with Mr and Mrs B in November 2020. The Head of Service agreed that, with regard to communications with the QTVI, the Specialist Teacher would provide bullet points in an email to the parents every Friday evaluating C’s learning during the week together with a 30-minute video call each term to discuss his progress. Following this, emails were sent to Mr and Mrs B weekly until the end of term. During spring term C was learning at home because of the COVID-19 restrictions and the Specialist Teachers met with Mrs B weekly at the end of each lesson to provide feedback and advice.
  7. I have seen no evidence to suggest QTVI failed to communicate with Mr and Mrs B. The evidence shows they were in regular communication. The Council is entitled to impose a single point of contact to manage communications more effectively.

Two Specialist Teachers attending lessons and meetings and using hours for administration

  1. Mr B says C did not receive his allocated support hours because Specialist Teachers were using the hours to attend meetings and complete administrative tasks rather than providing direct tuition to C.
  2. There is no requirement for C to receive a specific number of hours 1:1 tuition. The hours of support set out in the EHCPs include all aspects of his support, including tuition, attending meetings, providing support to school staff and administrative tasks.
  3. It is a matter for the Specialist Teachers’ discretion how the hours should be used. However their role is mainly to support the school who provide most of the direct teaching to C.
  4. C is supported by two Specialist Teachers. They were entitled to decide that both of them should attend meetings and provide input. This is a matter for their discretion.
  5. Prior to January 2021 C had three touch typing sessions a week and three braille sessions a week at school. Both the school and QTVI were responsible for delivering the sessions. During the period C was learning at home the specialist teachers delivered weekly 30 minute sessions and provided resources for Mrs B to support C at home instead of school staff. They also provided support and advice to Mrs B with regard to touch-typing. The specialist teachers also spent time planning, preparing resources, liaising with school staff and other professionals, report writing and attending the annual review and child in need meeting.
  6. The EHCP issued in June 2020 states that C should have regular practice in touch typing and that this should be provided by “school with advice from QTVI”. It also states “QTVI to advise and monitor support for the development of touch-typing skills”. It is therefore clear that the school is responsible for delivering the provision and the role of QTVI is mainly to provide advice.
  7. Between January and March 2021 when C was required to learn from home because of COVID-19, QTVI provided virtual lessons to C.
  8. Mr B says that both of C’s Specialist Teachers attended the virtual lessons which was unnecessary and meant C was only receiving half of his allotted hours 1:1 tuition.
  9. The Council has explained that neither of the Specialist Teachers wished to teach C virtually alone or to have the lessons recorded because of previous criticism and complaints made about them by Mr and Mrs B. So, both teachers attended the virtual lessons together.
  10. The minutes of a meeting on 11 January 2021 show it was explained to Mr and Mrs B that virtual lessons would be provided by QTVI but both teachers would need to attend “for safeguarding reasons”.
  11. The notes of the meeting on 1 February 2021 between the area team manager and the Specialist Teachers to discuss braille lessons show the specialist teachers stated they were not comfortable with being recorded and they found it helpful to have two teachers present at the lessons: one of them taught C and the other served and made notes. Then, after the lesson, they were both present to speak with Mr and Mrs B.
  12. This was an exceptional circumstance and, it was a matter for the Specialist Teachers to decide how to provide the virtual lessons. I have seen no evidence to suggest C lost out on support hours as a result. As explained above, the EHCP in place at the time stated Specialist Teachers would provide “up to 76 hours of support per year…. this time will be used flexibly at the discretion of the Specialist Teacher”. There is no requirement for C to receive a specific number of hours 1:1 tuition. The 76 hours of support encompasses all aspects of supporting him including both tuition and administrative tasks. Notes of the meeting with parents on 11 January 2021 state “[C] has 76 hours of QTVI support per year starting from the last annual review 25-06-21. This has almost been used already”.

Conclusions

  1. The Council’s duty is to secure the provision set out in the EHCP. But it is for the school to deliver it on a daily basis. It is clear from C’s EHCP’s that QTVI’s role is mainly to advise and support school staff in delivering the SEN provision.
  2. With the exception of counselling, I am satisfied that the Council has secured the provision required by C’s EHCPs. It has monitored the provision, provided support and training to school staff, provided some direct tuition to C, particularly in braille, and taken action when Mr and Mrs B have raised concerns about provision not being made.

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Agreed action

  1. The Council has agreed that, within one month, it will apologise to Mr and Mrs B for failing to provide a counsellor for C and pay them £250 in recognition of the time and trouble they were put to in sourcing a counsellor themselves.

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Final decision

  1. I find the Council was at fault in failing to secure counselling for C.
  2. I do not uphold the remainder of Mr B’s complaint.
  3. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

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Investigator's decision on behalf of the Ombudsman

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