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Portsmouth City Council (21 007 965)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 09 May 2022

The Ombudsman's final decision:

Summary: Mrs X complained about delay in the Council’s Education, Health and Care (EHC) Plan review process and that it did not deliver provision in her child’s EHC Plan. The Council was at fault as it took too long to issue an amended EHC Plan. The Council has agreed it will make a symbolic payment to Mrs X of £200 to recognise the frustration and uncertainty this caused her.

The complaint

  1. Mrs X complained about delay in the Council’s Education, Health and Care (EHC) Plan review process. She said the Council reviewed her child’s EHC Plan in July 2020 and decided to amend it. The Council then took 17 months to issue an amended EHC Plan which was in November 2021. She also said the Council did not deliver suitable provision to her child during this time. The delay meant her child missed out on provision and delayed her right of appeal to the SEND tribunal. She would like the Council to provide a financial remedy for the lost provision and delay.

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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. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
  3. 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)
  4. 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 spoke to Mrs X and considered the information she provided.
  2. I considered the information provided by the Council in response to my enquiry letter.
  3. Mrs X and the Council had the opportunity to comment on the draft version of this decision. I considered their comments before making a final decision.

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What I found

Education, Health and Care Plans

  1. Some children and young people with special educational needs and disabilities will have an Education, Health and Care Plan (EHC Plan). The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs.
  2. Councils are responsible for making sure that arrangements named in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.
  3. The Special Educational Needs and Disability Code of Practice is the statutory guidance which states:
    • councils must review EHC Plans at least every year. The review considers if the current EHC Plan is appropriate and whether any changes are needed, including any changes to the education placement.
    • within four weeks of the review meeting, a council must decide whether to keep, cease or amend the EHC Plan and must notify the parent. If amendments are needed, the council must start the amendment process without delay.
    • the council must send the current EHC Plan and a notice setting out proposed amendments and give the parent at least 15 calendar days to comment. It must issue an amended plan as quickly as possible and within eight weeks of the original amendment notice.
  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. Some of the decisions which are appealable and usually out of our jurisdiction include:
    • a council’s refusal to carry out an EHC assessment or refusal to reassess.
    • a council’s refusal to issue an EHC Plan.
    • complaints about the provision specified in section F of the EHC Plan.

Changes in legislation during the Covid-19 pandemic

  1. During the initial Covid-19 outbreak, the Secretary of State for Education issued a notice which temporarily changed the absolute duties of councils to secure or arrange the provision set out in an EHC plan. The change required councils to use their ‘reasonable endeavours’ to secure the provision instead. The notice came into effect on 1 May 2020 and expired on 31 July 2020.

What happened

  1. Mrs X’s child, Y, has special educational needs and an Education Health and Care Plan (EHC Plan). In February 2020, Y moved to a new school.
  2. In July 2020, Mrs X requested an early review of Y’s EHC Plan. Mrs X said the EHC Plan was out of date and did not accurately reflect Y’s needs.
  3. An annual review meeting took place in July 2020 with Mrs X, the Council, the School, the Special Educational Needs (SEN) Team and healthcare professionals. During the review meeting, Mrs X requested a Speech and Language Therapy (SALT) assessment to be conducted with Y but the record did not show whether the Council agreed to this. The annual review meeting concluded Y’s EHC Plan should be amended following input from an educational psychologist.
  4. The Council wrote to Mrs X in October 2020 to confirm it intended to amend Y’s EHC Plan. It also confirmed an educational psychologist assessment would take place. Following this, the Council said it would review the report along with the annual review report and other appropriate reports to amend and update Y’s EHC Plan. There was no reference to Mrs X’s request for a SALT assessment.
  5. In December 2020, the Educational Psychologist Team sent the Council the educational psychologist report.
  6. In February 2021, the Council issued Mrs X an amendment notice outlining the amendments it proposed to make to Y’s EHC Plan. However, Mrs X remained unhappy with the EHC Plan. She said the EHC Plan still did not accurately identify Y’s needs.
  7. Following this, in March 2021, the Council met with Mrs X, the SEN Team and other healthcare professionals to review the proposed amendments. During the meeting, it was agreed an occupational therapy sensory assessment would be completed with Y. The Educational Psychologist would then review the sensory assessment and amend and update the EHC Plan.
  8. The Council referred Y to an occupational therapist in March 2021. Between April 2021 and May 2021, the Occupational Therapist completed the sensory assessment with Y.
  9. In May 2021, Mrs X complained to the Council. She said so far it had taken almost a year to amend the EHC Plan. Mrs X said as there was no final EHC Plan, she was unable to appeal to the SEND Tribunal. She was also concerned the next annual review meeting was due in July 2021 and they had no final EHC Plan to review. As part of her complaint, Mrs X requested again for Y to have a SALT assessment.
  10. The Council responded to Mrs X and said the delay in amending the EHC Plan had been caused by changes in how Y had engaged in education and due to Mrs X’s requests for additional assessments. The Council referred to the meeting it had with Mrs X in March 2021 and said it had clarified during that meeting any further changes in relation to needs and provision would have to come from specialist reports which were not available at that time. The Council continued and said the delay updating the educational psychologist report was caused by COVID-19 as it had reduced service capacity. In addition, the Council said it had put back the annual review meeting until September 2021 and it understood Mrs X had agreed to this.
  11. The Council referred Y for a SALT assessment in May 2021. In addition to the sensory assessment and the SALT assessment, the Council agreed to complete an avoidant/restrictive food intake disorder (ARFID) assessment with Y to inform the EHC Plan.
  12. In July 2021, the SEN Team offered to finalise the Plan to give Mrs X a right of appeal to the SEND Tribunal. However, Mrs X told the Council she wanted to await the outcome of the specialist assessments and for it to amend the EHC Plan accordingly before it was made final.
  13. At the beginning of September 2021, the Council received the reports from the sensory, SALT and ARFID assessments. The Council said there was a detailed consideration of the recommendations in the reports and a meeting with Mrs X to address any concerns she had. The amendment notice was written and issued to Mrs X in mid-October 2021 and by November 2021, the Council issued Y’s final amended EHC Plan to Mrs X. The annual review of the EHC Plan was moved to February 2022.

Delivery of provision in the EHC Plan

  1. Y had a history of struggling to attend school full-time due to mental health needs. Y’s EHC Plan, which was issued in January 2020, stated Y would receive full-time one-to-one provision to support their return to the school site at a new school (the School). This level of support would be reviewed after one term. Y’s School was a special education school for pupils with social, emotional and mental health needs.
  2. Y started their new school in February 2020 and shortly after from March 2020, Y’s attendance was affected by COVID-19 and lockdown restrictions. During this time, the School provided Y with online learning. Mrs X said Y had struggled to engage with online learning.
  3. During the annual review meeting in July 2020, it was noted Y required more support in order to meet their sensory and social needs and this could only be met with one-to-one support at all times. The Council had previously funded this however, there was still a need for Y to receive this level of support. The School was not able to provide this level of support without increased funding. Therefore, a recommendation was made to increase the funding.
  4. Y returned to the School in September 2020 however struggled to attend classes.
  5. The Council explained to Mrs X in its letter in October 2020, it had agreed to fund Y’s one-to-one support whilst it waited for the updated educational psychologist report.
  6. In November 2020, Mrs X informed the Council the one-to-one support at the School was not working as the support was not consistent. Later that month, Mrs X asked the Council if it would consider providing Y with equine therapy as Y was struggling to engage with education online and at the School site. The Council said it would consider providing funding for equine therapy once it had received the educational psychologist report. It informed Mrs X it had agreed to provide Y with one-to-one support until it had received the report so that it could establish what provision was required. It also said it would liaise with the School to ensure the one-to one support was delivered consistently.
  7. In January 2021, the Council agreed to fund weekly sessions of equine therapy as a support mechanism to get Y back into school.
  8. In March 2021, the Educational Psychologist met with Mrs X to review Y’s position in returning to the School. It was agreed that a tutor from the School would visit Y in their garden and conduct tutoring sessions.
  9. In June 2021, Mrs X requested the Council fund an additional educational provision to support Y with re-engaging with their education. The Council responded to Mrs X in July 2021 and agreed to fund this.
  10. Following a meeting between Mrs X and the Council in September 2021, the Council agreed to fund both equine therapy and the additional provision for a year.

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Findings

  1. The annual review meeting took place in July 2020. The Council did not write to Mrs X until October 2020 to confirm it would amend the EHC Plan following an assessment from an educational psychologist. This delay was not in line with the timescales set out in the statutory guidance. The Council was at fault.
  2. During the annual review meeting, Mrs X had requested a SALT assessment. There is no evidence which shows the Council responded to Mrs X’s request during or after the annual review meeting. The Council did eventually agree to the request but only after Mrs X had complained in May 2021, which was ten months later. The uncertainty as to whether the Council agreed to refer Y for a SALT assessment and the delay in doing so was fault and contributed to the delay in finalising the EHC Plan which caused Mrs X frustration.
  3. The Council received the educational psychologist report in December 2020 which was five months after the annual review meeting. The Council said the educational psychologist assessment was delayed due to Covid-19. I considered this was reasonable on the balance of probabilities due to the strain Covid-19 had placed on health and social care services during that time.
  4. Mrs X was not happy with the proposed amendments in February 2021 and subsequently, the Council met with her in March 2021 to discuss it further. It agreed to complete further assessments and there was delay completing the assessments and the reports were not received until September 2021. I appreciate Mrs X had requested these assessments however, the Council should have had processes in place to ensure the assessments were conducted in a timely manner. The delay in completing these assessments caused further delay in amending Y’s EHC Plan. This was fault. This delay caused Mrs X frustration and uncertainty as by July 2021, it was a year since the annual review meeting and Y still did not have an amended EHC Plan.
  5. In July 2021, the SEN Team offered to finalise the EHC Plan however Mrs X wanted to wait until all assessments had been completed. The assessments were not completed until August 2021 and the Council did not receive the reports until September 2021. During this time, there was no fault by the Council as it was Mrs X’s choice to wait until all assessments had been completed.
  6. Between September 2021 and November 2021, the Council’s actions towards finalising the EHC Plan were reasonable. Upon receiving the reports of all assessments, it had further discussions with Mrs X, issued an amendment notice in October 2021 and the final EHC Plan in November 2021. There was no fault by the Council.
  7. In relation to Y’s provision, I considered the Council had taken reasonable actions from March 2020 onwards to ensure it was delivering the provision set out in Y’s EHC Plan at the time.
  8. Most of the provision in Y’s EHC Plan was related to support being provided during full-time attendance at the named school in their EHC Plan.
  9. During Covid-19 and lockdown restrictions, as Y was unable to attend the School, the Council provided outreach provision to Y. Between March and July 2020, I am satisfied the Council made ‘reasonable endeavours’ to provide Y with the provision in their EHC Plan, in line with its legal duties during that time.
  10. After lockdown restrictions ended, Y struggled to attend the School but the Council continued to provide online tuition. The Council also arranged for the School to deliver learning in Y’s home face-to-face. I am satisfied the Council made sufficient efforts to ensure Y received an education when they could not attend the School. In addition, the Council made arrangements to fund equine therapy and additional provision to support Y to return to the School. The Council was not at fault.

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Agreed actions

  1. Within one month of the final decision, the Council has agreed it will make a symbolic payment of £200 to Mrs X for the frustration and uncertainty caused by the delay issuing the amendment notification letter after the July 2020 annual review, the lack of clarity as to whether it would complete the SALT assessment and by delaying amending the EHC Plan between March and July 2021.
  2. Within three months of the final decision, the Council has agreed it will:
    • remind staff to ensure they notify parents within four weeks of an annual review meeting to explain whether it intends to maintain, amend or cease an EHC Plan.
    • review its procedures to ensure its arrangements for acquiring professional reports as part of its review process of EHC Plans are sufficient and do not cause unnecessary delay in amending an EHC Plan.
  3. The Council will then provide us with evidence it has completed the above actions.

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Final decision

  1. I have now completed my investigation. The Council was at fault which caused Mrs X injustice. The Council has agreed to remedy the injustice it caused to Mrs X.

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Investigator's decision on behalf of the Ombudsman

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