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West Sussex County Council (21 008 944)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 09 May 2022

The Ombudsman's final decision:

Summary: Ms C complained the Council failed to ensure her son, who has special educational needs, received an education in accord with his Education, Health and Care Plan (EHCP). We upheld the complaint finding the Council failed to adequately address Ms C’s repeated concerns on this point over several months. There was also unnecessary confusion and delay following a review of the EHCP. The faults caused injustice to Ms C in the form of distress, expenses and time and trouble and resulted in some loss of provision for her son. The Council accepts these findings and at the end of this statement we explain the action it has agreed to remedy this injustice.

The complaint

  1. I have called the complainant ‘Ms C’. She complains the Council:
  • failed to ensure that her son, D, received education during the 2020/21 academic year in accord with his Education, Health and Care Plan (EHCP);
  • did not follow a proper process after bringing forward a review of D’s EHCP in December 2020;
  • as a result delayed in issuing an amended EHCP.
  1. Ms C says because of these faults she has been caused unnecessary stress. This has caused health problems and contributed to the breakdown of her marriage. She has been put to considerable time and trouble and had to spend around £1500 on the services of a professional advocate. D was distressed at the prospect of having to move schools and relations between Ms C and the school became strained.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  2. 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. 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. Before issuing this decision statement I considered Ms C’s written complaint to the Ombudsman and spoke with her. I then considered a bundle of documents she sent in support of her complaint. I also took account of the law and Government guidance as referred to below and any relevant guidance published by the Ombudsman.
  2. I sent a draft decision statement to both Ms C and the Council for comment. I took account of the comments of both sides, and further information provided by the Council, before finalising this decision statement.
  3. Under an 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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What I found

EHCPs – relevant law and guidance

  1. The council has a duty to secure the specified special educational provision in an EHCP for a child or young person (see Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
  2. The Ombudsman recognises it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. However, the Ombudsman considers councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:
  • check the special educational provision is in place when a new or substantially different EHCP is issued or there is a change in placement;
  • check the provision at least annually via the review process; and
  • investigate complaints or concerns that provision is not in place at any time.
  1. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
  2. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
  3. The Special Educational Needs and Disability Code (‘the Code’) states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
  4. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
  5. There are also certain circumstances where a council can re-assess a child’s EHCP. This can be where it is requested by the parent, education institution or if the Council thinks it “necessary”. (see SEN Code paragraph 9.187)

Chronology of events

  1. I set out below what I consider to be the key events forming this complaint. This is a summary and not intended to be exhaustive. In the chronology below I have referred to ‘Ms C’ being in correspondence with the Council. I note that when Ms C sent that correspondence she did so on her own behalf and that of her spouse. But Ms C has subsequently separated from her spouse and so I have referred to her in the singular in the narrative below. This also takes account that it is only Ms C who has made the complaint to this office.
  2. The events of this complaint begin in September 2020. D was known to the Council as a child with special educational needs (SEN). He returned to his primary school for the Autumn term with a EHCP that had been issued in draft form in June 2020 and finalised at the beginning of September.
  3. The EHCP set out the education D could expect to receive at his primary school to meet his SEN. Of particular relevance to this complaint is a section which said he would have support from an appropriately trained teaching assistant “at all times”. This was to enable him to feel safe and secure at school, to help him regulate his behaviour, develop confidence and his learning skills. Another part of the EHCP said D would “access 1:1 and small group work with differentiated activities as required”.
  4. In mid-September, Ms C was in email exchanges with the Council saying that D was not receiving one-to-one support or the constant support envisaged. She asked the Council how it monitored the money paid to the school to support D’s EHCP. She said the only teaching assistant in D’s class worked with the whole class while another teaching assistant spent time working with another child in the school.
  5. In its emails the Council said the school must deliver D’s provision as set out in the EHCP and “we would expect this to consist of adult support in small groups and 1:1 basis”. It suggested that Ms C could ask the school to provide her with a “costed provision map” if she wanted to know more about how it was spending the money allocated for D’s education. Later it also added that Ms C could ask the school to provide her with a timetable showing how D would be supported.
  6. The Council says that around this time it also spoke to the School SENCO (Special Educational Needs Co-ordinator). It was told D was making progress and the school delivered his education in line with the EHCP. The Council considered this satisfactory.
  7. Ms C contacted the school setting out her concerns but got back in touch with the Council in mid-October. She said the school would not provide the information the Council told her to request. Ms C said D was still not receiving any one-to-one support from a teaching assistant, only doing group work with them. She asked the Council if it could support her in resolving this matter. To which the Council replied that it would take up her concerns with the school.
  8. In a subsequent reply to Ms C’s complaint the Council says in October 2020 it was told by the school that it had recruited a new teaching assistant. It has also told us that it was in late October 2020 it asked the school to provide an annotated version of D’s EHCP, to mark up the provision it had put in place for him.
  9. In mid-November 2020 Ms C asked the Council if there was any update. She expressed frustration about her dealings with the school and her concerns for D’s wellbeing saying he experienced daily anxiety. Her email said: “I feel we need to soon call for a review and look for a specialist placement”.
  10. In response the Council said it would arrange a review of D’s EHCP, which the school went on to convene in December 2020.
  11. In communications with the Council Ms C questioned this approach saying in a later email that she did not understand why an emergency review of D’s EHCP was needed. Ms C explained her view that D had an EHCP she considered suitable; her concern was it was not being followed. Later emails followed in which Ms C indicated she was not receiving useful information from the school on D’s education. That while she had queried if D needed a specialist placement this was “just a question”. Ms C explained she wanted D to get the support he needed at the current time.
  12. There was a short delay to the review with Ms C asking for a postponement late on a Thursday afternoon for a review scheduled Monday morning, as she had not at that time received the annotated copy of D’s EHCP. Shortly afterwards the school provided the annotated copy of D’s EHCP. Its comments indicated that D worked with a teaching assistant or the class teacher throughout the day. The school did not consider it was in D’s best interests that he should have an adult sitting with him all day as it said he could become over-reliant on one assistant. It also needed to ‘step back’ at times so that D could work on independence skills.
  13. The review meeting followed in December. A comment made on the paperwork from Ms C says “we had not requested annual review, we only wanted to ensure that his plan was delivered. This has caused some animosity. We wanted the Council to look into this. He shares the class 1:1. The class has at least four other children on SEN register, possibly more”.
  14. After the review Ms C sent an email to the Council with her notes of the meeting. She noted:
  • D’s EHCP needed updating to reflect a recent Occupational Therapy report;
  • that D was currently waiting for an assessment to see what social communication needs he might have;
  • that there was no recent educational psychology review;
  • that D needed a school suitable for him; Ms C named four specialist independent school providers.
  1. Around a week later the Council said it had sent information about D to the schools mentioned by Ms C and would liaise with the education psychology service.
  2. In mid-January 2021 Ms C asked for an update. She indicated less concern for D’s education than previous emails saying the school had been “great in challenging times” with D benefitting from the smaller class sizes introduced because of COVID-19 impacts. In its reply the Council said it would be seeking up to date reports from specialists and “carrying out a re-assessment for [D] so that all his needs can be reassessed”. The Council repeated it was carrying out a ‘reassessment’ in a separate email a few days later.
  3. In response Ms C expressed dissatisfaction with the Council’s actions saying it was using the review process to “try and silence our concerns”. Ms C felt D did not need the variety of assessments suggested by the Council saying he only needed an up to date educational psychology report. In a further email Ms C reiterated her concern at delays in the process and pointed out the Council had not put in writing whether it was planning to cease, maintain or amend D’s EHCP. Ms C also reiterated the Council should be seeking to ensure the school provided the education set out in D’s existing EHCP.
  4. In early February 2021, the Council agreed in the light of these communications that it would not continue with the proposed reassessment. It confirmed it would amend D’s EHCP. It indicated it would continue to consult with alternative schools.
  5. The Council initially issued a draft EHCP near the end of February 2021. However, further iterations of that document would follow for reasons set out below.
  6. The educational psychology assessment for D was arranged for early March. However, this was then rearranged for the end of the month at Ms C’s request as she wanted D assessed when the teaching arrangements at the school were more normal – as opposed to the reduced class sizes introduced because of COVID-19.
  7. In early March 2021, during further email exchanges with the Council, Ms C said she was not looking for a change of placement for D – it was her understanding the school could no longer meet his needs. Ms C also said she wanted the Council to ensure the school had the resources to meet D’s needs set out in his existing EHCP and was unhappy the school was not meeting those.
  8. Later that month Ms C’s advocate wrote to the Council. They raised three concerns:
  • that no further progress had been made on completing the assessment needed for an updated education psychology report;
  • that D was not getting the one-to-one support set out in his current EHCP;
  • that D was only receiving ‘patchy’ support from Occupational Therapy – not weekly sessions as set out in his current EHCP.
  1. In reply (sent around a week later) the Council said it would shortly send out a revised draft EHCP. It was looking to confirm soon a date for the education psychology assessment. It said the school confirmed D had support from two teaching assistants who each covered half the week. It said D was supported all day either in a ‘small group’ or with one-to-one support. The Council also queried the statements made about D’s occupational therapy support saying he received this on a regular basis.
  2. The advocate responded to say that one of the teaching assistants was used by the whole class and so could not give one-to-one support to D. While the other had to support other children with SEN in D’s class. The advocate also queried if the learning support assistants had the ‘knowledge and expertise’ required as specified in the D’s EHCP.
  3. The Council replied before the end of the month to say that during the Autumn term it had discussed Ms C’s concerns with the primary school and received assurances that D’s needs were met in line with his EHCP. The Council also confirmed the educational psychology assessment would take place in the next week. This was later changed again at Ms C’s request as she said the proposed date was again atypical of a normal school day.
  4. A few days after this reply the acting School Headteacher wrote to Ms C saying “we are working closely through the elements of [D’s] plan that we are currently not meeting”.
  5. In April 2021 Ms C’s advocate contacted the Council to advise D had now received a diagnosis that he had an autistic spectrum disorder (ASD). The Council confirmed this would lead to more changes to his proposed EHCP and that it would also make changes when it had received the educational psychology report.
  6. In early May 2021, further to liaison with D’s primary school, Ms C said she would no longer pursue an alternative placement for D. The Council said it would consult the school further on the “new draft amended” EHCP being drawn up.
  7. The Council issued the final version of D’s amended EHCP in mid-May 2021. However, it was amended again (to name D’s existing primary school) and reissued in June 2021.

Ms C’s complaint

  1. Ms C complained to the Council in July 2021. She complained D had not received the education provision set out in his EHCP and that he had been required to share a teaching assistant with the rest of his class.
  2. The Council replied around the middle of the month and explained funding was now in place for the school to recruit a teaching assistant to support D from September 2021. It explained the school had received training from its communication team and would arrange more with a private provider. It said D now received one-to-one support subject to some disruption caused by COVID-19 and was being taught with an appropriate peer group.
  3. Ms C escalated her complaint in July 2021. She continued to express dissatisfaction at the support D had received at school. She also raised a concern that a review of his EHCP had taken so long.
  4. In its final response the Council sought to offer further assurance that funding for D’s placement from September 2021 would be ringfenced and must be provided by his school. It defended its response to Ms C when she had raised concerns in Autumn 2020 about D’s provision – citing the communications it had with the school at the time and its decision to bring forward a review of D’s EHCP.

Findings

  1. I have considered each part of Ms C’s complaint in turn, beginning with that centred on whether the Council ensured D received education provision in line with his EHCP during the 2020/21 academic year.
  2. As I have explained above, we expect councils to show ‘due diligence’ when a parent raises an alert that a child’s education provision is not being made. In this case the Council knew of Ms C’s concerns from September 2020. It was reasonable for the Council to initially ask Ms C to try and resolve matters through dialogue with the school. But when Ms C made clear that she remained dissatisfied that is when the Council should have stepped in and explained to both Ms C and the school exactly what its expectations were of the former.
  3. Yet the Council did not do this. I recognise it made some checks with the school to ascertain what support D received. But I consider the record of those checks inadequate. The Council learnt the school had two teaching assistants. But I cannot see that it ascertained if D was getting the support set out in his EHCP. This was clear that he should have support from an appropriately trained teaching assistant “at all times”. It did not find out how the school used the teaching assistants and to what extent their time was spent helping D and to what extent other pupils, including others with SEN. Nor to what extent they were ‘appropriately trained’.
  4. Ms C went on to repeat to the Council her concern that D was not getting an education in line with his EHCP. She did so in December 2020 when the Council brought forward a review of D’s EHCP. She did so immediately after the review meeting took place. In emails in January and March 2021 Ms C again raised the issue and her advocate again repeated the concern thereafter.
  5. Yet despite this series of communications, I cannot see the Council resolved the flaw with its earlier response. It still did not set out what level of one-to-one support it expected the school to provide D in line with his existing EHCP. It did not press the school to explain in more detail what support it provided. I recognise that from the beginning of 2021 it was focused on amending D’s EHCP, but I do not think this provides mitigation. As the Council still needed to address the underlying complaint being made by Ms C – that the school was not delivering D’s education in line with his EHCP agreed in June 2020.
  6. The Council fell short therefore of the due diligence we expect and that was a fault.
  7. Turning to the injustice this caused, I find on balance the school was not meeting D’s education needs to the extent envisaged in his EHCP during the 2020/21 academic year. There is nothing I have seen that challenges the assertions made by Ms C about the extent to which any teaching assistant support D received was diluted by those assistants also having to attend to the needs of other pupils. Nor is there anything that demonstrates those teaching assistants had specific training to meet D’s needs. There is also the statement of the school in May 2021 which acknowledged it was not meeting all of D’s needs.
  8. I recognise D did not entirely go without support in this time. It also appears he benefitted from the small teaching group arrangements which resulted from the COVID-19 pandemic for a time. I also acknowledge the efforts taken by the Council through the review of D’s EHCP and subsequent amendment to make sure better provision was put in place for 2021/22. But these factors only provide partial mitigation for the injustice I have set out above.
  9. I also consider there was some additional injustice to Ms C. She was caused unnecessary frustration, time and trouble in repeatedly raising this concern with the Council and not receiving a satisfactory response, including when she complained. These events will also have caused some avoidable distress.
  10. I consider next the review of D’s EHCP brought forward in December 2020 and subsequent process of amending his EHCP. I do not find fault in the Council starting the process of review. Ms C’s statement in November 2020 suggested she wanted this, although best practice may have been to clarify her wishes first given that Ms C’s statement that she may ‘soon’ want a review was open to some interpretation.
  11. After the review, there was confusion about what action the Council would take. I understand the Council considered it could undertake a reassessment and I note the law and Code of Practice allow for a reassessment process to take place in some circumstances. However, I do not find any of those circumstances were met here. I have found no request for a reassessment from Ms C or the school. And I find insufficient evidence that any changes needed to D’s EHCP were likely to be so significant that this course of action was needed. I note here the Council suggested it needed to commission reports that were unnecessary (such as from D's Occupational Therapist who had reported for the December 2020 review).
  12. But even if I could be persuaded on this point, the Council still had the statutory duty to confirm within four weeks of the review if it was going to maintain, amend or discontinue the EHCP. It did not do this until Ms C pointed out this requirement. This was a fault.
  13. The amendment process then did not begin for several weeks. The Code states any amendment process should start without delay. So that too was a fault.
  14. Turning to the detail of the amendment process, I do not find fault in how long that took once the process had begun even though I appreciate the EHCP went through several iterations that took longer than eight weeks. I find it reasonable the Council wanted to wait on an educational psychologist report and for good reasons, connected with the unprecedented teaching of children in Spring 2021, that took longer. The Council also had to take account of D’s ASD diagnosis which was only confirmed in early 2021. And it is apparent Ms C developed an improved working relation with the school, which acknowledged its shortcomings and she decided not to pursue any alternative placement for D.
  15. I consider the injustice caused by the faults above is therefore confined to around three months between December 2020 and February 2021 when the Council should have been clear it was amending, not reassessing, D’s needs and beginning that process. During that time Ms C was caused unnecessary distress in the form of avoidable confusion and put to time and trouble in clarifying matters. When allied with the repeated non-answered question about delivery of D’s existing EHCP, I find it understandable she retained the services of an advocate. However overall, I am not persuaded the amendments could have completed much sooner.

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Agreed action

  1. The Council accepts the findings I have set out above. To remedy the injustice I have identified it has agreed that within 20 working days of this decision it will:
      1. apologise to Ms C accepting the findings of this investigation;
      2. pay Ms C £1250 to recognise the loss of education provision to D during the 2020/21 academic year;
      3. pay £750 to Ms C in recognition of her distress, time and trouble and as a contribution to her costs in retaining the services of an advocate.
  2. The sum agreed in paragraph 64b) takes account of the Ombudsman’s published guidance on remedies. This says that where “fault has resulted in a loss of education provision we will usually recommend a remedy payment of between £200 and £600 a month to acknowledge the impact of that loss”. The recommended payment will then take account of factors including a child’s SEN, what education provision they received in that time, the age of the child and so on. In this case I recognise D was never without education, so the award should be at the lower end of the scale. Also, that for a time in Spring 2021 he benefitted from smaller class sizes. I therefore consider the lower amount for nine months (a whole academic year less holidays) the correct starting point, which has then been reduced in what I consider is fair and proportionate way to take account of these factors.
  3. The sum agreed in paragraph 64c) takes account of what the same guidance says about payments towards payments of professional costs, such as retaining an advocate. I commented above that I thought it understandable Ms C retain the services of an advocate given the Council’s persistent failure to address her concern that D was not receiving education in line with his EHCP. However, I am not persuaded it was also necessary to use an advocate for some of the ongoing administration around the amendment to D’s EHCP, something Ms C also took full part in at times. So, I consider a contribution towards (rather than an award of) those costs reasonable.
  4. I also consider the Council should seek to learn wider lessons from this complaint. Within 40 working days of a decision on this complaint it has agreed it will issue a reminder to all staff on:
      1. the importance of due diligence in ensuring that it makes adequate checks where a parent says a child is not receiving education in line with their EHCP; the Council must be clear with the parent about its understanding of the requirements of the EHCP and must also be clear with the school about those requirements and ensuring they are met;
      2. clarifying within four weeks of a review whether the Council intends to maintain, amend or end an EHCP.
  5. This reminder can take the form of a written or in person staff briefing. But the Council must send us evidence of what it has done to improve performance in these areas.

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Final decision

  1. For reasons set out above I uphold this complaint finding fault by the Council causing injustice to Ms C and D. The Council accepts these findings and has agreed action that I consider will remedy that injustice. Consequently, I have completed my investigation satisfied with its response.

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Investigator's decision on behalf of the Ombudsman

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