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London Borough of Southwark (21 003 651)

Category : Education > Special educational needs

Decision : Not upheld

Decision date : 02 May 2022

The Ombudsman's final decision:

Summary: Ms X complains the Council failed to ensure her son is receiving the provision named in his Education Health and Care Plan so he has lost the support he needs in school causing distress. We have found no evidence of fault in the way the Council responded to Ms X’s concerns about the provision being made. So, we are completing our investigation.

The complaint

  1. I have called the complainant Ms X. She complains the Council and school have failed to implement the provision specified in Section F of her son Y’s Education Health and Care Plan (EHCP), so he has lost the support he needs in school. In addition, Ms X complains:
    • The Council and school ignored her concerns and evidence submitted as part of the EHCP annual review including her private medical reports.
    • The Council has not been transparent with information.
    • The Council and school fail to put any solutions in place unless she complains.
  2. Ms X wants the Council and school to recognise their mistakes, be more supportive and ensure Y catches up on any lessons he has missed. Ms X says the situation has caused distress to both her and Y. And she has spent time and trouble in pursuing her complaints with the Council and school.

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The Ombudsman’s role and powers

  1. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  2. 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. (Local Government Act 1974, section 26(6)(a), as amended)
  3. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
  4. 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.
  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)

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How I considered this complaint

  1. I have read the papers submitted by Ms X and spoken to her about the complaint. I considered the Council’s comments on the complaint and the supporting documents it provided.
  2. Ms X and the organisation 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

Education, Health and Care Plan (EHCP)

  1. A child with special educational needs (SEN) may have an 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 SEND Tribunal can do this.
  2. Parents have a right to appeal to the SEND Tribunal if a council refuses to carry out an assessment, or they disagree with the special education provision, or the school named in the child’s EHCP.

Annual Reviews

  1. Councils must review EHCP’s at least every 12 months.
  2. Councils must decide whether to maintain the EHCP in its current form, amend it, or cease to maintain it within four weeks of the review meeting. The Council should issue the final EHCP or decide not to amend the EHCP at all as soon as practicable and within eight weeks of the date it sent the plan to the parents/young person with the proposed amendments. Decisions to amend or cease a plan can be appealed to the Tribunal.

What happened in this case

  1. This section sets out the key events in this case and is not intended to be a detailed chronology
  2. Y has been diagnosed with Autistic Spectrum Disorder (ASD). He attends a mainstream primary school. In February 2020, when Y was seven years old, the SEND tribunal directed the Council to issue an EHCP for Y following an appeal by Ms X. The Council drafted the plan during April and May 2020 and discussed it with the school and Ms X. The Council reports Ms X and the school disagreed over the content of the plan and professional reports used. But it issued the final EHCP in May 2020 naming Y’s current school as his placement.
  3. In summary the EHCP outcomes in section E were to help Y to continue to make good academic progress across all areas, develop his social communication skills, understand, and express his emotions more effectively. It was to develop his self-help skills to become more independent.
  4. Section F of the EHCP set out who would provide the support, how often it took place and any other arrangements. This was to be provided mainly by the school teaching staff with strategies and approaches incorporated into all teaching and learning activities. Y would receive in-class support from a teaching assistant with other children being supported. Y was to receive speech and language therapy and support for areas of need/anxiety and occupational therapy advice to support Y in certain activities.
  5. In October 2020 Ms X complained to the Council the school was not implementing Y’s EHCP. An officer contacted the school to discuss Ms X’s concerns. The officer considered from the information received the school was making the provision. The officer told the school to carry out an early annual review. This would enable the school to show Ms X it had been carrying out the provision in the EHCP. And would be a good opportunity for all professionals involved to discuss Y’s provision with Ms X and the Council. The school agreed to arrange the annual review meeting and set it for 15 December 2020.
  6. Ms X complained to the Council about the meeting date as she considered it unsuitable being just before the school holidays and she had not received any paperwork. Ms X was unhappy it had taken time to arrange a meeting and felt it was to enable the school to put provision and planning in place before the review. Ms X said she was not unhappy with the EHCP just the school’s implementation of it.
  7. In January 2021 the school confirmed the early review meeting date of 4 February 2021. The school sent Ms X completed paperwork for the review which included information to support its provision for Y. Ms X contested the documents and sent them to the Council. Ms X provided her own paperwork for the review including a private education psychologist report on Y dated September 2020.
  8. The early review meeting took place remotely due to the national lockdown because of the Covid-19 pandemic. The Council considered the information received and issued a decision letter to Ms X on 17 March 2020. The Council said it decided it was not necessary to amend Y’s ECHP now and the setting at the school should continue. The school should follow the outcomes and provision set out in sections E and F of the ECHP from May 2020. The Council told Ms X of her right of appeal to the SEND tribunal if she did not agree with the decision.
  9. Ms X told the Council she was unhappy with the situation and its decision. Ms X felt the Council had not considered her views and disregarded the additional information she provided. An officer noted Ms X’s ‘ lack of trust’ with the school. The officer considered the school was implementing the EHCP, but Ms X disagreed. The officer hoped the annual review would resolve the concerns as the school provided lots of evidence about the provision.
  10. The Council advised Ms X to continue to work with the school and raise concerns at the relevant reviews. The Council said if the issues between her and the school continued it would recommend an officer from the specialist teaching team join the next review meeting. The Council gave the same advice to the school.
  11. Ms X contacted the Council in April 2021 as she considered neither her written reports or notes had been considered or responded to. Ms X said she intended to submit a complaint. The Council clarified she was referring to documents she submitted for the annual review, and they had been considered.
  12. The Council allocated a specialist teacher from the specialist teaching team to advise on the case. The teacher spoke to Ms X about her concerns. Ms X did not want to pursue her complaint further and agreed to see how the school did during the next school term. Ms X said she would come back to the Council if she felt the school was not meeting Y’s needs.
  13. In May 2021 Ms X formally complained to the Council it did not consider her information when carrying out the annual review and the school was failing to implement Y’s EHCP.

Stage 1 complaint

  1. The Council responded to Ms X’s complaint at stage 1 in June 2021. It explained it carefully considered evidence from the school, documents from Ms X, including her education psychologist report, and professional advice during the annual review. The Council concluded the school continued to be an appropriate setting for Y and it provided evidence how it was meeting Y’s needs as set out in the ECHP. The Council issued a ‘no amendment’ letter to her in March 2021. The letter explained Ms X’s appeal rights.
  2. The Council apologised Ms X felt the interim review process had not been as productive as she would have liked. But it was a process the Council and school carried out when a parent raised concerns about implementing an ECHP. The Council advised Ms X to seek a team around the family meeting with the school if she continued to have concerns.
  3. Ms X remained unhappy with the stage 1 response and raised concerns during June 2021 the school was not implementing Y’s EHCP. In summary Ms X said Y had missed some therapies he was due to receive, he did not have a personalised timetable, rest breaks, or sit at the front of the class. Ms X considered the latest EHCP had not changed anything.
  4. The Council contacted the school to respond to Ms X. The school said it was providing the provision in the EHCP. It explained the sessions that had taken place for Y. Y had missed one session because Ms X took him out of school for a dental appointment. Ms X replied that she did not agree about the provision being made and explained the reasons for the dental appointment.
  5. Ms X raised further concerns to the Council about the school’s preparation and handling of sports day for Y. Ms X complained the information from the school did not match with what Y told her. The Council asked the school to reply. The school responded and explained the interventions implemented at school for Y.
  6. The school contacted Ms X in July 2021 about the termly plan review, targets for Y for the next school year and his transition into that year. Ms X told the Council she did not wish to attend because the school took no account of her views. The Council advised Ms X to attend as the termly targets were taken from Y’s EHCP. The Council said Y’s EHCP provision was in place and being met by the school. Ms X submitted her views on the termly targets in writing.

Stage 2 complaint

  1. The Council responded to Ms X’s further complaints at stage 2 of its complaint procedure in July 2021. The Council said with Ms X’s stage 1 complaint an officer spoke to the school and reviewed information on file. The officer was satisfied the school was implementing the provision in section F of the EHCP. The Council recognised Ms X disputed this.
  2. The Council said its SEND team considered it appropriate to carry out additional actions to determine to what degree the school was delivering the provisions of section F. To do this the SEND team required the school to send clarification of Y’s weekly programme, information, and explanations for any times the provisions were not being delivered. The SEND team would also arrange for a specialist teacher to visit the school and address Ms Y’s concerns with the school’s SEN coordinator. The school agreed to the suggested action. The Council planned for it to start in the next school term (September 2021).
  3. The Council told Ms X the specialist teacher would contact her to start and send written updates to the SEND team. The Council accepted that although it made enquiries and sought reassurances at stage one it could have implemented the checks sooner. And so upheld this part of Ms X’s complaint. But it considered on the balance of probabilities the school was delivering the provisions of section F and would know more with the involvement of the specialist teacher.
  4. The Council said the school may be approaching the provision of support in a ‘fluid’ way and altering what was being provided according to progress. The Council said it would find out with the specialist teacher’s involvement. But in principle all provisions of the EHCP ought to be delivered until as the EHCP was reviewed and it would be part of the discussions facilitated by the specialist teacher.
  5. The Council told Ms X it was putting her complaint on hold until the specialist teacher concluded their work. But took learning from Ms X’s complaint. This was that if a parent and school were disputing as to whether the provisions of section F were being properly delivered the SEND team needed to consider what further actions are appropriate to determine the veracity of the concerns reported.

Events after September 2021

  1. The Council confirmed the specialist teacher tried to contact Ms X in September 2021, but Ms X did not respond to the messages. The specialist teacher visited the school and reported to the Council. The teacher found Y sat near the front of the class, was happy in a group and playing with other children and did not want a personalised timetable.
  2. The teacher found the school were supporting Y’s needs with evidence in his grades and carefully timetabled support. The teacher noted the school adapted the EHCP into action points that were not always in word for word sentences from the EHCP. This was causing Ms X concerns. But the teacher wanted to explain to Ms X that effective school/provision will adapt based on need. And as long as they are overarching targets then they do not always need to be the same wording providing the outcomes are met.
  3. The specialist teacher recommended an early annual review for Y if Ms X had continuing concerns. But the teacher considered the school was meeting Y’s needs and he was thriving.
  4. The Council says it is continuing to work with the school and Ms X to manage the concerns raised and work towards a resolution. The school has asked the Council to attend the annual review meeting to be held in March 2022. The Council will send a representative from the Inclusion and Monitoring team to provide an expert opinion on the situation. This will be on the school’s view it is making the provision and Ms X’s view it is not. The Council says it will ensure ongoing management oversight to so there is continued monitoring and intervention.
  5. The Council says it believes the school is delivering Y’s current EHCP and should continue until as both parties agree for the plan to be amended.

My assessment

  1. Ms X complains about the actions of the Council and school Y attends. As paragraph seven explains we cannot investigate what happens in schools so I cannot investigate any concerns Ms X has about the actions of the school. My investigation focuses on the actions of the Council.
  2. The evidence provided shows the Council responded and investigated Ms X’s concerns the school were not carrying out the provision set out in Y’s EHCP of May 2020. The first check came in October 2020 when Ms X complained to the Council. An officer contacted the school and was satisfied from the information provided the school was making the provision. The Council recommended holding an early annual review to check and review the provision being made. We would expect a council to carry out an early annual review because of any disputes on provision. And so, the Council responded as we would expect.
  3. The early annual review allowed Ms X to submit comments and information about Y’s provision and EHCP. The documents show the Council considered the information provided by Ms X before issuing decision in March 2020. Ms X also attended the annual review meeting. So, there is no evidence to show the Council did not take account of Ms X’s views as she has alleged.
  4. The Council’s decision in March 2020 was not to amend the EHCP with the setting at the school and provision remaining suitable for Y. The Council advised Ms X of her right to appeal to the SEND tribunal if she did not agree with the decision. As paragraph four explains 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. I consider it is reasonable to expect Ms X to use her appeal rights if she did not agree with the outcome. This is because the SEND Tribunal can consider any concerns Ms X has and direct changes to the EHCP if it considers it necessary. So, I will not investigate any concerns Ms X may have about the outcome of the annual review in March 2020.
  5. The Council remained aware Ms X was unhappy with the outcome of the annual review, and it allocated a specialist teacher to advise on the case. The teacher spoke to Ms X about her concerns, but Ms X decided not to pursue matters to see how the school term went.
  6. Ms X made a stage one complaint in June 2021. The documents show officers carried out a further investigation into Ms X’s concerns and contacted the school to respond to Ms X. The school explained the provision being made. The Council remained satisfied the school was implementing the provision in Y’s EHCP.
  7. The Council explained this further in the stage 2 response to Ms X. It explained officers reviewed the information from the school to show the provision being made. But the Council agreed to make further checks with the school providing the SEND team with clarification of Y’s weekly programmes and explain the times when provision was not being made. The Council arranged for the specialist teacher to contact Ms X and to visit the school to address her concerns. I consider this suitable action for the Council to take because of Ms X’s continued concerns.
  8. The Council apologised it had not been able to implement the checks sooner due to the end of the school term, but it would take place in September 2021 with the new academic term. The teacher visited the school and was satisfied it was making the provision with Y thriving and happy at school. It is unfortunate the teacher could not contact Ms X to discuss her concerns.
  9. The Council says it will continue to work with the school and Ms X to manage the concerns raised and work towards a resolution. There will be a further opportunity for this when the next annual review takes place. If Ms X is unhappy with the Council’s decision on the setting and provision, she can appeal to the SEND tribunal.

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Final decision

  1. I am completing my investigation. I have found no evidence of fault in the way the Council responded to Ms X’s concerns her son Y was not receiving the provision outlined in his EHCP.

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Investigator's decision on behalf of the Ombudsman

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