Summary: Mr and Mrs X complained about matters relating to their son’s Education, Health and Care Plan. We found the Council failed to provide support required by the child’s plan and we also found fault with the Council’s record keeping. The Council has agreed to our recommendations to remedy the injustice caused.

The complaint

1. Mr and Mrs X complain about the Council’s provision for their son Y’s education and Special Educational Needs (SEN). Specifically, they say the Council failed to:
1. act on a request made by the school (in or around May 2020) for an assessment and report by an educational psychologist (or similar professional), to provide support for Y’s needs associated with his trauma / management of associated anxieties; and
2. ensure the provision specified in Y’s Education and Health Care Plan (EHCP) in terms of equipment being provided to him and without delay. Specifically, the complainants refer to a delay in providing a communication-based iPad with appropriate applications, a dark den, a chair and pencil/pen grips.

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The Ombudsman’s role and powers

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. A child with special educational needs may have an Education, Health and Care (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.

4. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.

5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
6. 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)
7. 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

8. I considered the complaint and the information provided by Mr and Mrs X. We made enquiries of the Council and I considered its comments and information it provided.
9. Mr and Mrs X and the Council were given the opportunity to comment on a draft of this decision. I considered the comments I received from both the Council and the complainants before making this final decision.

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What I found

Special Educational Needs

10. A child or young person with SEN may have an EHCP. This sets out their needs and what arrangements should be made to meet them. Councils are responsible for making sure these arrangements are put into place and the child’s needs are met.
11. The SEND Code or Practice issued by the Department of Education provides statutory guidance for councils.
12. The guidance says councils must review EHCPs at least every 12 months and sets out the process they must follow for these annual reviews.
13. Within four weeks of the review meeting, the council must decide whether it will keep the EHCP as it is, amend or cease to maintain the plan, and notify the child’s or young person’s parents. If it needs to amend the plan, the Council should start the process of amendment without delay.
14. The council must send the draft EHCP to the child’s or young person’s parent and give them at least 15 days to give their views and make representations about the content.
15. Following representations from the child’s or young person parents, the council must issue the amended EHCP as quickly as possible and within eight weeks of the issue of the draft amended plan. It must also notify the child’s or young person’s parents of their right to appeal to the Tribunal and the time limit for doing so. The Special Educational Needs and Disability Tribunal is responsible for handling appeals against local authority decisions about SEN.

What happened

16. Y is 13 years old has been diagnosed with autism and sensory processing disorder (SPD). He has a final EHCP, which was issued in November 2020.

Assessment and report by an educational psychologist

17. An annual review of Y’s EHCP was completed in January 2020. As part of the review Mr and Mrs X completed a ‘family view form’ and said the school had previously recognised the need for an educational psychologist to address the trauma Y had shown around windows. They said the school had requested funding through Y’s EHCP to facilitate this. There is no reference to this in the annual review.
18. On 23 May 2020 the school sent an email to the Council requesting funding within the EHCP for an educational psychologist to address the trauma Y had shown around windows. The school explained “[Y] becomes extremely distressed when a window in class is opened. He can become distressed and aggressive and potentially a danger to himself until the window is closed….We have tried a number of strategies to remediate the window situation but now feel that specialist advice should be sought”
19. The Council responded and explained that requests for funding needed to be detailed with exact costings before it could be referred to its Special Educational Needs Panel for consideration. The Council said, concerns around opening of windows had previously been explored as part of a sensory assessment and it was “unsure as to what further support could be offered from an Educational Psychologist as this appears to be a sensory need that has been assessed”.
20. On 26 November 2020 the school wrote to Mr and Mrs X setting out its views about opening of windows and how that would be managed in the future. The letter included a response to Mr and Mrs X’s concerns that an open window may cause distress or anxiety to Y and said there were no signs in Y’s behaviour that indicated this. The school also provided a copy of a classroom observation note regarding Y’s behaviour when a window was open.
21. The annual review report completed by the school in November 2020 said Y had shown increasing independence to maintain his own wants and needs and did not appear affected by lighting and open windows in class or other rooms. The school had provided blinds for all the windows in Y’s classroom.
22. On 1 December 2020, a senior manager sent an email to Y’s social worker and Mr and Mrs X which said “We can confirm that [the school] were looking to commission an Educational Psychologist report and this was mentioned again in the annual review held on [30 November 2020]. [The school] agreed within the annual review that they would revisit paperwork and add recommendations to the annual review report that will be completed”.
23. On 1 December 2020 Mr X sent the Council a copy of an email he received from the school on 6 July 2020 which said it was in the process of commissioning an educational psychologist. Mr X said Y had only been back at school a few weeks since the summer holidays, yet the schools’ view was that he no longer needed an educational psychologist report. Mr X felt that with no supporting evidence to suggest Y had received any intervention around windows being opened, questions needed to be asked of the school.
24. On the same day the Council responded to Mr X and explained that a provision relating to windows was not included in the EHCP and therefore it could not direct the school in this matter. It said the request for an educational psychologist was within the annual review held on 30 November 2020 and Council would review this request when the report was received.
25. On 15 December 2020 Mr and Mrs X sent the Council a completed ‘family view form’. Mr and Mrs X said they did not agree with the statement from the school that windows were not a problem, as they were everywhere else. They said the school was earlier supporting the need for an educational psychologist to address Y’s trauma around windows.
26. On 16 December 2020 the school sent an email to the Council and referred to a recent conversation with Mr and Mrs X. The school confirmed that an educational psychologist would visit after Christmas, and it would respond to the trauma assessment when received.
27. In response to the Ombudsman’s enquiries the Council said it was agreed at the annual review that the school would progress the request for a report. But that Mr and Mrs X said they would commission their own report.

Analysis

28. The evidence shows the Council was made aware of the request for an educational psychologist report in May 2020 when the school approached it for funding. The Council responded and asked the school to provide further information if it considered additional funding was required. The Council also asked for clarity about what support an educational psychologist could offer as the example the school had given related to windows and this had been explored already through a sensory assessment.
29. I appreciate that Mr and Mrs X may disagree with this but the question for the Ombudsman to address is whether there was fault in the actions of the Council. I do not consider there was fault by the Council in going back to the school seeking clarity on the reasons for an assessment request and submission for extra funding. It told the school this information would be required for the Special Educational Needs Panel.
30. The issue appears not to have come up again until December 2020 when Mr X contacted the Council. The evidence shows the request for an assessment and report was discussed at the annual review. Further communication shows that the school had agreed to progress this after Christmas.
31. It is Mr and Mrs X’s view the Council failed to act on a request made by the school in May 2020 for an assessment and report by an educational psychologist. Based on the evidence I have seen I do not find fault in the actions of the Council.
32. However, I am concerned about the quality of the Council’s record keeping and response to the Ombudsman’s enquiries. As stated in paragraph 27 the Council said Mr and Mrs X said they would commission their own report. The Council has failed to provide any written evidence to support this statement or notes of the annual review meeting where this was discussed.

Provision of equipment

33. The final EHCP issued in February 2019 set out that Y would have a specialist pencil grip to improve his grasp and to reduce fatigue when writing and a writing slope to position Y’s wrist in better alignment for writing.
34. On 17 January 2020 the school responded to an email from Mr and Mrs X confirming a discussion about an iPad, how Y’s preference was for spoken language and uncertainty around whether Y would benefit from an iPad as a communication tool only. The school said it would trial this.
35. On 5 March 2020 the school sent Mrs X an email stating an iPad and software had been ordered; a dark tent had arrived, and new pencil and pen grips had been ordered in line with advice from an occupational therapist.
36. Following three draft amendments of Y’s EHCP the Council held a meeting in early November 2020. The purpose of this meeting was to discuss Y’s needs and provision required. Mr and Mrs X attended this meeting.
37. The Council then issued the final EHCP on 10 November 2020 which set out the following provision:

• a rocker chair or equivalent
• dark den
• specialist pencil/pen grips and writing slope

38. The Council completed an annual review of Y’s EHCP at the end of November 2020. The review showed the pencil/pen grips; dark den and chair were in use.
39. Mr and Mrs X complained to the Council about the lack of provision. They said Y had not received a communication iPad or software for 18 months and it had taken over a year to get a dark den, a chair and pencil/pen grips. They said an iPad was referred to in an assessment completed in April 2019 and speech and language therapy assessment completed in September 2019.
40. In its complaint response the Council said the EHCP did not specify an iPad and software but referred to a picture-based communication system and this could be delivered in a variety of formats. The plan did not indicate an iPad was the only equipment that could be used.

Analysis

41. Councils have a duty to meet the special educational provisions set out in EHCPs. I have compared what was set out in Y’s final EHCP in February 2019 and November 2020.
42. Pencil/pen grips and a writing slope were recommended in February 2019 but not ordered by the school until March 2020. There was a significant delay of approximately thirteen months. This is fault.
43. An aid such as pencil/pen grips helps the child with their learning but if they didn’t have them, this would not result in a complete loss of education. The purpose of them was to improve Y’s grip and reduce fatigue while writing. The purpose of the writing slope was to position Y’s wrist in better alignment for writing. He would have used them frequently but not consistently or for long periods of time. I am satisfied the delay in provision would have had an impact on Y. I recommend a payment of £500 to remedy the injustice this caused to Y.
44. In its stage two complaint response, the Council said specific queries about provision had been raised. These had been followed up in writing with the school, with a date by which they must respond and that comprehensive responses had been received and carefully considered.
45. Again, I am concerned about the quality of the Council’s record keeping here. We asked the Council to show documentary evidence of the action it had taken with regards to the delay in providing the pencil/pen grips. The Council has not been able to provide this evidence despite referring to it in its complaint response. This must call into question whether such evidence ever existed or whether the matter was ever in fact followed up with the school as the Council claimed. This is fault and has caused Mr and Mrs X considerable uncertainty about what action the Council did or did not take.
46. The dark den and chair were recommended in the final EHCP issued in November 2020. At the annual review later that month, they were confirmed as being in use. I find no evidence of fault by the Council here.
47. The school communicated with Mr and Mrs X about the iPad and agreed to trial this in January 2020. This appears to be an arrangement made by the school as the iPad is not mentioned in either EHCPs and I have not seen any evidence to suggest the Council was aware of the discussions that took place. Mr and Mrs X argue that an iPad was recommended in two assessments completed in 2019, however these assessments were superseded by the final EHCP issued in November 2020. Therefore, I cannot say the Council was at fault for failing to provide this provision.

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Agreed action

48. Within four weeks of my final decision the Council, the Council has agreed to:
1. apologise to Mr and Mrs X for the faults identified in this statement;
2. pay Mr and Mrs X £500 for the delay in providing Y with appropriate educational provision in accordance with his EHC plan, to be used for the benefit of Y’s education; and
3. pay Mr and Mrs X £150 for their time and trouble in pursuing their complaint.

Within two months of my final decision the Council has agreed to:

4. identify what the issues are with its record-keeping and then draw up a plan to address them. It should write to the Ombudsman and set out what steps it has taken to improve its record keeping.

Final decision

49. I have found fault by the Council causing an injustice to Mr and Mrs X and Y. The Council has agreed to my recommendations to remedy the injustice caused. I have now completed my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman