Summary: Ms B complained about the Council’s handling of her son’s (Child X) special education needs provision. She said it failed to assess his needs properly, failed to address the high number of tutors he had, and it caused delays in completing its reviews of his EHC Plans. As a result, she said Child X missed out on educational provision and she experienced distress. We did not find the Council at fault for the number of tutors Child X had, and how it assessed Child X’s needs. However, it was at fault for the delays it caused in completing Child X’s EHC Plan. This did not cause Child X an injustice, but Ms B experienced some distress due to the uncertainty.

The complaint

1. The complainant, whom I shall refer to as Ms B, complained about the Council’s handling of her son’s, Child X, special educational needs provision. She said it:
• wrongly placed Child X in his School because the Applied Behaviour Analysis (ABA) provision did not meet Child X’s needs;
• failed to consider her views and wrongly dismissed her consultant’s report about her son’s autism and needs in 2018;
• failed to assess Child X’s support needs properly;
• failed to respond and address the high number of ABA tutors the School provided to Child X; and
• caused delays in completing Child X’s Education, Health and Care Plan (EHC Plan) and included a wrong reference to a health condition.
2. As a result, Ms B said Child X had missed out on educational provision and opportunities. She also said she experienced distress and upset during a four-year period, and she had time and trouble to get the Council to address her concerns.

Back to top

What I have investigated

3. I have investigated Ms B’s complaint about the Council’s handling of Child X’s education and EHC Plan from 2020.
4. The final paragraph of this statement set out my reasons for not investigating other parts of Ms B’s complaint.

Back to top

The Ombudsman’s role and powers

5. 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)
6. 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)
7. We cannot investigate complaints about what happens in education settings. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
8. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
9. 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)

Back to top

How I considered this complaint

10. As part of my investigation, I have:
• considered Ms B’s complaint and the Council’s responses;
• discussed the complaint with Ms B and considered the information she provided;
• considered the information the Council provided in response to my enquiries;
• considered relevant law and guidance;
• given Ms B and the Council the opportunity to comment on my draft decision and consider the comments I received.

Back to top

What I found

Education Health and Care Plans (EHC Plans)

11. The EHC Plan is a document which sets out the education, healthcare and social care needs of a child or young person for whom extra support is needed in school or college, beyond that which the school or college can provide. It also sets out the provision the Council will make to meet these needs. Children and young people with an EHC Plan may be entitled to extra teaching support in school or college. Outside agencies may also provide support.
12. Section 19 of the Children and Families Act 2014 makes clear that local authorities in developing and reviewing Education, Health and Care (EHC) plans for disabled children and young people with special educational needs (SEN) must consider:
• the views, wishes and feelings of the child or young person and the child’s parents.
• the importance of the child or young person and the child’s parents participating as fully as possible in decisions and being provided with the information and support necessary to enable participation in those decisions.
• the need to support the child or young person and the child’s parents to facilitate the development of the child or young person and to help them achieve the best possible educational and other outcomes, preparing them effectively for adulthood.
13. Reviews of EHC Plans are governed by Government guidance known as the Special Educational Needs (SEN) Code of Practice. This states that councils must review EHC Plans a minimum of every 12 months (from the date of when the first EHC Plan was issued or from the date of the last annual review).
14. Within four weeks of the annual review meeting the council must send the young person, parents or carers a letter notifying them of the outcome of the review. If the decision is to amend the EHC Plan, a final amended plan must be issued within eight weeks of the notice of change.
15. The Council’s decisions on an EHC Plan may be appealed to the SEN and Disability Tribunal.

Applied Behaviour Analysis (ABA)

16. The Council has adopted a method called Applied Behaviour Analysis (ABA) to assess and provide support to children with SEN in its area. ABA is a method of studying and managing behaviour to bring about change.
17. The Council employs ABA consultants to review and assess the support children with SEN receives within schools in its area.

What happened

Background

18. Ms B has a son, Child X, who has a diagnosis of Autism Spectrum Disorder (ASD) and learning disabilities.
19. In 2014 the Council assessed Child X’s educational needs. It found he needed extra support within a school setting, and it set this out in his EHC plan. It also listed a school (the School) within the plan which it believed could meet Child X’s needs.
20. The School is a mainstream school but it also has a special unit which provides support to children with SEN needs. It uses the ABA methodology, and its tutors receives ABA training.
21. The Council reviewed Child X’s EHC Plan in each year, except for 2015, and its last review was in 2021 before Child X transitioned to secondary school.

Ms B’s concerns about Child X’s education

22. Ms B says Child X’s education started without issues. However, since 2017 the provision he received was poor and unsuitable for his needs. She said she paid for a consultant in 2018 to assess his needs but the School and the Council did not carry out the recommendations.
23. In 2019 she told the Council she was concerned his ABA tutors kept changing. She also said he had not been assessed by an Educational Psychologist (EP), as she requested two years earlier.
24. In response, the Council asked the School to arrange for an EP to assess Child X. This was because the School had a contract with its own EP service.
25. The School’s EP service assessed Child X in 2019. However, Ms B told the Council she was not happy with the assessment. This was because she thought:
• Child X should receive more support for his health conditions and learning disabilities;
• Child X still had undiagnosed conditions which was affecting his education;
• the EP’s assessment was a waste of time because she had already tried its suggested techniques to support Child X; and
• the School could not properly support Child X with his special educational needs.
26. She also asked the Council why it had not completed its review of Child X’s EHC Plan and responded to her concerns about the number of ABA tutors involved in his education.
27. The Council apologised for its delays in completing Child X’s EHC Plan. It explained the School was providing the identified support to Child X, but it could not say how many ABA tutors he had had. It told Ms B about its SEN support service (SENDIAS) and how it may be able to help. It also suggested for Child X to see his GP so he could be referred for further assessment of his possible conditions.
28. In early 2020 the Council reviewed Child X’s EHC Plan and told Ms B it would make the amendments and share the plan with her. It told her it did not agree with her view Child X should receive full time ABA provision. However, it explained she had the right to appeal its decision to a tribunal. It also said she could raise her concerns about the School to its Head Teacher.
29. Two months later, Child X’s Paediatrician told the Council about his medical conditions, this included reference to a condition which had not previously been reported to the Council and Ms B.
30. The Council completed Child X’s EHC Plan in Autumn 2020 and included reference to the new condition. It gave Ms B a copy of the Plan.
31. In late 2020 the Council did a transfer review of Child X’s EHC Plan in preparation for his move to secondary school. Ms B asked the Council to arrange for its EP to assess Child X’s needs, which it agreed to do.
32. The Council told Ms B about the amendments and issued the final EHC plan in early 2021, which named the school Ms B preferred.
33. Before Child X starting secondary school, the Council’s EP assessed him. The report set out how his ASD and learning disabilities impacted on his learning. It also made recommendations for how his education should be structured, but it did not suggest any additional provision. The report also said his literacy needs may suggest he has Dyslexia, but this would need further evidence.
34. The Council considered the EP assessment and found Child X EHC Plan was suitable, but it needed to make some amendments.

Ms B’s complaint to the Council

35. Ms B complained to the Council in early 2021. She said:
• it had wrongly refused her requests over two years for more support for Child X in the School. She said his attainment gap had widened as a result;
• she disagreed with its view Child X was working independently on the year 3 curriculum, as he needed much support and prompting;
• Child X had waited two years for an EP assessment, and when the School’s EP assessed him, it was not done properly. Also, she understood the School no longer used its EP service and asked the Council if it would do an EP assessment;
• Child X’s most recent plan wrongly included reference to an undiagnosed condition, and ABA provision was still not quantified;
• its ABA provision was a nightmare and Child X had 13 tutors and 3 consultants since 2017. She said the Council incorrectly placed him at the School and it only commissioned the ABA provision to prevent her and others to seek expensive out of area schools;
• the ABA provision was not quantified in Child X’s EHC Plans, but due to COVID-19 and the Council’s delays in completing the Plans she did not appeal to a tribunal;
• it had missed opportunities as her private consultant reports and recommendations were only now being carried out; and
• she was not told by the School or the Council about an Ofsted inspection. She believes parents were handpicked to give feedback.
36. In response the Council did not uphold Ms B’s complaint. It said:
• (EP assessment) It agreed Child X’s EP assessment should have happened sooner. It had asked the School to do so in 2019, but this had not been to the standard the Council would expect. It considered, at the time, whether a further assessment was needed and consulted its EP. However, it found this was not necessary. It also said the School now uses the Council’s EP service and it will assess Child X before his transfer to secondary school and review his EHC Plan again;
• (EHC Plans – ABA provision) It had facilitated Child X’s ABA programme with the School. This was set out in Child X’s EHC Plans. It had quantified the provision until 2019, after which it was agreed for the School and the ABA consultant to set timetables after each visit.
• (EHC Plans - delays) It accepted there were delays in amending and completing Child X’s EHC Plans. However, it found this did not impact on his education as the School was part of the reviews and the language used within the Plans were the same;
• (EHC Plan – new condition) It had included the previously undiagnosed condition in the EHC Plan because Child X’s Paediatrician had set this out in his report to the Council in 2020. It had asked Health to confirm how this was diagnosed. However, it could not remove this until Health confirmed it was an error;
• (The School) the School was responsible for delivering the agreed activities. It said the School had since confirmed Child X was getting additional one-to-one support, a weekly session for math, a language programme was being looked into, and ABA sessions were in place to manage behaviour at home. It also said it had asked the School to refer Child X for occupational therapy due to Ms B’s concerns about Child X’s handwriting
• (Number of ABA tutors) It had discussed the number of ABA tutors Child X had with the School. It found this was due to staffing issues within the School and steps were taken to ensure ABA support was provided. However, it said Ms B had not previously told it that it had wrongly placed Child X at the School.
• (School concerns) it had seen no other complaints from Ms B about its service, but she could bring her concerns about the School to the Head Teacher’s attention.
37. Ms B was not satisfied with the Council’s response, so she asked the Ombudsman to consider her concerns.

Analysis

38. Ms B’s complaint relates to matters which occurred more than 12 months before she bought these to our attention. Parts of her complaint is therefore late. I have seen no good reasons to exercise my discretion to consider these matters. This is because it would have been reasonable for Ms B to have brought these matters to our attention or appeal the EHC Plans at the time.

Assessment of Child X’s needs

39. The Council said it considered the School’s EP assessment of Child X’s needs, which was carried out in autumn 2019. It did so after Ms B told it she was not satisfied with the outcome of the assessment.
40. The Council consulted with its own EP service and told Ms B it disagreed with her. It found the assessment was not as detailed as it would have liked. However, it was satisfied the EP assessment set out his needs, and these were set out in his EHC Plan.
41. When the Council’s EP service assessed Child X in 2021 it found he may have Dyslexia, but it needed more evidence. It also recommended for the structure of his learning, which should be included in his EHC Plan. The Council also considered Ms B’s private consultant report, which led to some amendments within the EHC Plan.
42. I am not satisfied the Council failed to properly assess Child X from early 2020. This is because it considered the School’s EP assessment and consulted its own EP service for its view. It reached a view it was entitled to make, and I cannot therefore criticise its decision.
43. Also, I am conscious the Council’s own EP assessment in 2021 did not increase the support Child X should receive. It found the support it had provided was enough to meet his needs.
44. However, the Council’s EP assessment and Ms B’s private consultant report both made recommendations for the structure of the support Child X should receive. There is no evidence to suggest Child X conditions had become worse, which may mean Child X EHC Plans could have included these recommendations earlier. Ms B had the right to appeal such concerns to the tribunal at the time. I recognise she did not do so as she believed the Council’s reviews of Child X’s EHC plans would have changed this. However, I found it was reasonable for her to have used her right of appeal at the time.

EHC Plan reviews

45. The Council agreed it caused delays to notify Ms B of amendments to Child X’s EHC Plan within four weeks of its review, and to complete the Plan with the following eight weeks. This is fault, which caused a five-month delay.
46. I acknowledge the Council found its delay did not cause Child X an injustice. This was because the School was part of the review and the support was already in place. Also, the changes within the EHC Plans were limited and did not include additional provision of ABA.
47. I cannot therefore say Child X experienced an injustice because of the delays. However, I am satisfied Ms B experienced distress due to the uncertainty about whether the provision Child X received was suitable. She did not experience an injustice due to the delay in her right to appeal to a tribunal. This is because she did not make use of this right when she could do so.
48. The Council said it has since increased its capacity to do EHC assessments and reviews by recruiting and assigning staff. I am satisfied it is therefore only necessary for it to remind its staff of the importance to ensure it notifies and completes EHC plans as set out in the SEN Code of Practice.
49. In addition, I understand Ms B is unhappy the Council included Child X’s Paediatrician’s reference to a previously undiagnosed condition. However, it was not fault for the Council to do so. It included the information his Paediatrician had provided, and it is following its Policy to only remove incorrect medical information when this is confirmed by a medical professional.

Ms B’s concerns about the School and ABA tutors

50. Much of Ms B’s complaints relates to the actions of the School and the number of tutors it provided to Child X.
51. The Council told Ms B she should raise her concerns with the School. It also discussed her concerns about the number of ABA tutors with the School. It found the School had experienced staffing issues and had put suitable plans in place to limit the impact of this on children, including Child X.
52. I acknowledge teaching staff changes is particularly challenging for children with SEN, such as Child X. However, I cannot fault the Council for circumstances outside its control such as staffing issues within the School. Also, I am satisfied the Council considered Ms B’s concerns and ensured the School had plans in place to limit the impact of the issue.

Back to top

Agreed action

53. To remedy the injustice the Council caused to Ms B, the Council should, within one month of the final decision:
1. Apologise in writing and pay Ms B £150 to acknowledge the distress and uncertainty she experienced as a result of the Council’s delays to complete Child X’s EHC plan.
54. Within three months of the final decision the Council should also:
1. remind its staff, who are responsible for notifications of amendments and completions of EHC Plans, to ensure it acts within the timeframes set out in the SEN Code of Practice.

Back to top

Final decision

55. I have completed my investigation with a finding of fault for the delays the Council caused in completing Child X’s EHC plan. There was no fault on the other matters complained about.

Back to top

Parts of the complaint that I did not investigate

56. I have not investigated Ms B’s complaints about:
• Child X’s placement at the School;
• the Council’s handling of Child X’s EHC plans and Ms B’s concerns between 2017 and 2019; and
• the Council’s Policy to have an ABA programme and how this was set up.

This is because these parts of her complaint are late, and its decisions could be appealed to a tribunal at the time.

57. I have also not considered Ms B’s concerns about actions within the School. This is because such matters are outside our jurisdiction.

Back to top

Investigator's decision on behalf of the Ombudsman