Summary: The Council failed to complete an education, health and care needs assessment for Ms B’s daughter started in 2017 and failed to issue a final education, health and care plan. It also failed to tell Ms B that her daughter had an SEN caseworker. In recognition of the injustice caused, the Council has agreed to make a payment to Ms B. The Ombudsman does not uphold Ms B’s complaint that the Council failed to make adjustments to enable her daughter to attend a sensory food group at her school.

The complaint

1. Ms B complains that the Council failed to:
• complete the education, health and care needs assessment for her daughter started in 2017 and issue a final education, health and care plan;
• inform her that her daughter had been allocated an SEN caseworker; and
• make adjustments to enable her daughter to attend the sensory food group at her school or make alternative arrangements which has delayed her progress in relation to acceptance of textures other than purée.
2. Ms B says these failings have caused her distress and put her daughter at a disadvantage.

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The Ombudsman’s role and powers

3. 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)
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. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
6. 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

7. I have considered all the information provided by Ms B, made enquiries of the Council and considered its comments and the documents it provided.
8. 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

Legal and administrative background

9. 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.

Key facts

10. Ms B’s daughter, C, is seven years old. She has a genetic condition which affects her mobility and ability to thrive. She is globally developmentally delayed and has limited sight. C has high levels of medical support from professionals including heart specialists and dieticians. She will only eat purées and is reluctant to try new textures.
11. In 2016 C was referred to the schools and community psychology service by her paediatrician. The educational psychologist (EP) requested an assessment placement at a special needs school, School X, as she believed it would meet C’s complex needs. C started the placement in September 2016. The Council began an EHC needs assessment shortly afterwards.
12. In May 2017 the Council finalised C’s EHCP naming School X. But it did not formally issue the plan and Ms B did not receive a copy.
13. During 2017 and 2018 C attended a sensory food group at school.
14. In October 2018 Ms B told the school’s speech and language therapist (SALT) she no longer wanted C to attend the food group because her food preference could not be met. She said the group encouraged food such as: breadsticks, liquorice sweets, yoghurts, Pringles, carrots and beef jerky. Ms B did not feel comfortable with C learning with these foods because she did not eat that type of food at home. She explained C ate an entirely plant-based diet because of the pain and discomfort caused by processed milk. So she felt the food offered in the food group would not benefit her.
15. The SALT agreed to discuss Ms B’s concerns with the occupational therapist (OT) who was leading the group.
16. In December 2018 the SALT sent an email to Ms B saying that, as discussed in the training and confirmed by the OT, the food group is a set programme (considering colour, texture and taste) and the children all needed to have the same food items so no-one was seen to be eating something different as this may increase aversions. She explained that everyone takes a turn to take a food item out of the same plastic bag reinforcing that the food is ‘safe’ and everyone is eating the same. For this reason, it would not be possible to offer children foods from different bags. However, she suggested Ms B could send some foods in to school and the OT would work with the class on how to offer these to her at snack time.
17. In June 2019, at a Team Around the Child meeting where concerns were raised about C’s weight, Ms B raised the issue concerning the food group.
18. In March 2020 an annual review was held. Ms B was unable to attend and so requested a copy of C’s up-to-date EHCP. As a result, it came to light that she had never received a copy of the draft EHCP prepared in 2017 and that it had never been finalised and no further EHCPs had been issued.
19. Ms B complained to the Council about the food group. She also complained that she had had no meetings or dealings with an SEN caseworker and had never received a copy of C’s EHCP. She also requested an updated EP report.
20. The interim senior case manager from the Special Needs Assessment Section (SNAS) wrote to Ms B explaining that the draft EHCP issued in 2017 had never been finalised. But the school had always been in possession of all documentation and reports relating to C and she had been fully supported and all her needs met. She said the school had confirmed that regular annual reviews had been carried out and any up-to-date reports had been incorporated into C’s education and care plans. She also said the school had sent SNAS all paperwork relating to the annual reviews over the last three years but SNAS had not processed this. She apologised for these failings but said there had been no negative impact on the support C received from School X.
21. The Council responded to Ms B’s complaint at stage 1 of its complaints procedure on 12 May 2020. It apologised for the fact that Ms B had not received a copy of C’s EHCP and agreed to send one as soon as possible. It also apologised that Ms B was not aware C had a caseworker in the Council. The Council explained that each school has a caseworker who works with the children and families for that school and details of each school’s SEN caseworker were on the Local Offer. It provided details of School X’s caseworker but explained that Ms B’s concerns about the SALT and food groups should be discussed with the school and its therapy team. If Ms B was dissatisfied with the way the school was working with her, she should address this through the school’s complaints procedure.
22. The Council sent a copy of the EHCP to Ms B on 29 May 2020. It explained it had asked the school to arrange a review of the EHCP and that, in view of the concerns raised by Ms B, it would obtain new evidence, reports and recommendations from all the professionals working with C.
23. On 26 August 2020 Ms B asked for her complaint to be escalated to stage 2 of the Council’s complaints procedure. The Council issued a stage 2 response on 29 September 2020. It apologised for the poor communication Ms B had received over the preceding three years. It accepted there was a lack of engagement by the SEN caseworker and apologised for the anxiety and stress this caused Ms B. It explained it was restructuring the team and increasing its capacity so this situation would be less likely to happen in future. It also confirmed the SEN case manager had asked the school to arrange a review of the EHCP which would involve input from all the professionals working with C and provide an opportunity to discuss Ms B’s concerns about the SALT and food group.
24. As regards the food group, the Council explained that, if Ms B had contacted the Council at the time, it would have deferred to the school and its therapy team on this matter. It confirmed it was satisfied C’s needs were being met by the school but, if Ms B remained unhappy, she would need to contact the school’s therapies service.
25. On 30 September 2020 the Head of SNAS sent an apology to Ms B.
26. On 25 November 2020 an annual review was held which discussed that C had been supported by the multi-disciplinary therapy team based at the school over the previous year. She was making excellent progress and had met all her outcomes. She continued to be on a ‘review on request’ package of care for her eating and drinking skills. Ms B advised that she wanted an updated EP assessment to be completed before the EHCP was updated.
27. On 31 December 2020 the Council advised Ms B that C had been placed on a waiting list for an EP assessment but this would not take place until after April 2021. It explained it would be best practice to update the EHCP now and further update it after the EP assessment was done. Ms B again requested that the EHCP was not updated until after the EP assessment had been completed.
28. The EP assessment was completed in February 2021. The resulting report has recently been completed and a meeting has been convened to update the EHCP.

Analysis

EHC assessment

29. I find the Council was at fault in failing to formally issue the EHCP prepared in 2017 and in failing to provide Ms B with a copy until May 2020.
30. I do not consider these failings caused C an injustice because the school has been providing the special educational provision set out in the EHCP and C has met her outcomes.
31. The recent EP assessment records that Ms B “does not have any concerns about [C’s] progress with learning and that [the school] has been tremendous in meeting [her] learning needs”. The report also stated, “it would appear that the approaches, support and provision that [C] currently receives are appropriate”.
32. However, I consider the failings did cause Ms B an injustice. Failure to send her a copy of the EHCP in 2017 meant she was unaware of its contents and the failure to issue a final EHCP meant she lost the opportunity to appeal against the provision set out in the plan. Although the provision appears to have met C’s needs over the last three years, this does not mean Ms B would not have appealed in 2017. We cannot say for certain now whether or not she would have done so given the opportunity.

Sensory food group

33. The EHCP stated “[C] will need to expand the repertoire of foods she will eat orally. She will need to be supported by a class team and her input should be recorded so this can be monitored. OT, SALT and dietician involvement will be necessary to regularly review and support this. [C] will benefit from attending a sensory food group, to encourage exploration of different texture and taste foods”
34. Section F of the EHCP (what provision/support is needed) states “weekly sensory food group to counter her avoidance behaviours”.
35. Ms B says the Council failed to make adjustments to enable C to attend the sensory food group or put in place alternative arrangements. She says the SALT/OT failed to consider C’s individual needs.
36. Ms B says this has caused her a great deal of anxiety because failure to thrive is part of C’s condition and it is important that her phobia around food is addressed and she learns to accept different textures. She says that, because of the failure to make changes to the food group, C is still eating only purée.
37. The Council was unaware of the issue until Ms B complained in March 2020. It acted appropriately by contacting the school about the matter but explained it could not intervene in the therapists’ professional judgement. It correctly informed Ms B that concerns about the SALT and food groups were matters for discussion with the school and its therapy team and could ultimately be addressed through the school’s complaints procedure.
38. The way in which the provision set out in the EHCP is delivered on a day-to-day basis is a matter for the school and the way the food group is run is a matter for the SALT/OT’s professional judgement. So, there are no grounds to criticise the Council for failing to intervene. The Ombudsman has no jurisdiction over schools so I cannot pursue this issue further.

SEN caseworker

39. Ms B was not aware C had an SEN caseworker. She says, if she had known this, she could have obtained support with the food group issues and C could now be in a much better position regarding textures.
40. The Council has explained that details of School X’s SEN caseworker were on the Local Offer. But it accepts Ms B was unaware of this. It also accepts there was a lack of engagement by the SEN caseworker. It has apologised for the distress and anxiety this caused Ms B. It has explained that, at the time, the SNAS was going through a period of turbulence with a reliance on agency workers and a lack of stability in the staff group which made it difficult to provide the level of service it aspires to. It has now invested in recruitment and training as part of a detailed review and improvement plan.
41. I find the Council was at fault in failing to give Ms B details of her SEN caseworker. It was also at fault in that the caseworker failed to engage with Ms B. The caseworker could not have intervened in relation to Ms B’s concerns about the food group, but he/she could have provided Ms B with advice and support about this issue and any other concerns she may have had. Ms B missed out on this support over a three-year period and suffered distress and anxiety as a result. This was a significant injustice. In addition, if the caseworker had engaged with Ms B this may have led to them identifying the faults relating to the EHCP much earlier, thus preventing the injustice caused by those failings.

Conclusion

42. The Council has apologised to Ms B and has offered to pay her £300 in recognition of the distress and time and trouble caused by its communication failures. While I consider this goes some way towards remedying Ms B’s injustice, I do not consider it goes far enough, particularly in light of my comments on paragraph 41 above. I have therefore made recommendations below.

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Agreed action

43. The Council has agreed that, within one month of the Ombudsman’s final decision, it will:
• pay Ms B £300 for the distress caused by its failure to issue a final EHCP in 2017 and the resulting loss of opportunity to appeal and for the distress caused by its failure to provide Ms B with a copy of the draft EHCP and process the annual reviews over a period of three years; and
• pay Ms B £200 for the distress caused by its failure to inform her that she had an SEN caseworker and the caseworker’s failure to engage with her over a period of three years.
44. As the Council has already apologised to Ms B for these failings, I do not propose to recommend a further apology.

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Final decision

45. I find the Council was at fault in that it failed to:
• complete the EHC assessment started in 2017 and issue a final EHCP;
• provide Ms B with a copy of the draft EHCP;
• process the annual reviews over a period of three years; and
• inform Mrs B that her daughter had an SEN caseworker.
46. I find no fault on the Council’s part in failing to make adjustments to enable C to attend the sensory food group.
47. 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