London Borough of Hillingdon (23 009 405)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 28 Mar 2024

The Ombudsman's final decision:

Summary: X complained the Council failed to provide the OT provision specified in their child’s EHC plan or reimburse the transport costs for their child attending school between September 2022 and July 2023. X also complained the Council has failed to properly assess their child’s care needs or their own needs as a carer and has not provided adequate support. The Council’s failure to ensure Y received the full OT provision set out in their EHC Plan is fault. As is the Council’s delay and error in completing the annual review in 2023 and in issuing a final EHC Plan. This fault has caused X and Y an injustice.

The complaint

  1. The Complainant, whom I shall refer to as X complained the Council failed to provide the OT provision specified in their child’s EHC plan between September 2022 and July 2023. X says without this provision their child was unable to engage in education and did not learn anything for the whole academic year.
  2. X also complained the Council has not reimbursed the transport costs for their child attending school between September 2022 and July 2023. X says they were happy to pay the transport costs while their child was in the Reception class, but that this should have been reviewed for Year 1. They are unhappy they have incurred costs in taking their child to school where they did not learn anything and made no progress.
  3. In addition, X complained the Council has failed to properly assess their child’s care needs or their own needs as a carer and has not provided adequate support.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
  3. 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.
  4. If we are satisfied with an organisation’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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

  1. X has also complained about failings in the EHC Plan review process which mean the final EHC Plan does not include the necessary expert advice or reflect Y’s needs and the provision they require. As X has a right of appeal in relation the content of the final Plan and the named placement we are unable to consider these issues.

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How I considered this complaint

  1. As part of the investigation, I have:
    • considered the complaint and the documents provided by X;
    • made enquiries of the Council and considered the comments and documents the Council provided;
    • discussed the issues with X;
    • X 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

Education, Health and Care Plans

  1. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or council can do this.
  2. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)
  3. We accept it is not practical for councils to keep a 'watching brief' on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to:
    • check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement;
    • check the provision at least annually during the EHC review process; and
    • quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.

Annual reviews

  1. The annual review of an EHC plan considers whether the provision is still appropriate and whether the child is making progress towards the targets in the plan. Councils must review the plan every 12 months as a minimum. They must then notify the child’s parent within four weeks of the meeting whether they intend to keep the EHC plan as it is, amend, or cease to maintain the plan.
  2. If the plan needs to be amended, the council should start the process without delay. It must send the child's parent a copy of the existing (non-amended) plan and an accompanying notice with details of the proposed amendments. This should include copies of any evidence to support the proposed changes. The parent must be given at least 15 calendar days to comment on the proposed changes.
  3. 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)
  4. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.

What happened here

  1. X’s child, Y has had an EHC Plan since October 2021. Y attends School 1, a mainstream school. The Plan notes School 1 was X’s parental preference and that as it is not the nearest mainstream primary school X is responsible for getting Y to and from school.
  2. X did not apply to the Council for assistance with transport and the records show they were happy to transport Y to school each day.
  3. The EHC Plan provides for eight sessions of Occupational Therapy (OT) support per year. This will be a combination of direct and indirect therapy and sessions will typically last 30 to 45 minutes.
  4. X appealed to the SEND Tribunal in February 2022 and a hearing date was listed for June 2022. The Council says the tribunal did not agree to X’s requested amendments to Y’s EHC Plan. The Council held an annual review of Y’s EHC Plan in September 2022 and issued a final EHC Plan in December 2022. Y’s EHC Plan still names School 1 and includes the OT provision.
  5. The Council says it received no correspondence from X between September 2022 and April 2023.
  6. In April 2023 X contacted the NHS and copied in the Council as Y had not receive the OT provision specified in their EHC Plan since September 2022. X said the Plan specified Y should receive OT provision at school, but they had received a letter from the NHS in December 2022 offering clinic-based appointments. This was due to a shortage of OTs. X was unable to take their child to the clinics and expected the OT provision to be provided at School 1. X asked the Council to confirm how Y would receive the OT specified in their EHC plan. They confirmed they would be able to take Y to sessions on a Saturday morning. I have not received a record of the Council’s response.
  7. X contacted the Council in relation to the OT provision again in May 2023 and was advised to look for a private OT. X submitted a quote and the Council considered X’s request in June 2023. It did not agree to fund personal budget for tuition and an additional OT assessment. The Council considered the OT recommendations from September 2022 were appropriate and there was no evidence for a reassessment. It also noted there was no evidence Y had not received the OT provision. The Council suggested the provision would be discussed at the annual review.
  8. In May 2023 X complained about the lack of provision of care and support for Y. X asserted Y needed 24 hour one to one care.
  9. The Council’s response noted it had agreed a package of support for when X underwent a medical procedure. It also noted a senior social worker had completed an assessment using the Resource Allocation System (RAS). This tool was used as indicative guidance to determine the level of need. The RAS tool calculated Y needed four and a half hours support each week. The Access to Resources panel subsequently decided Y should receive 10 hours support per week.
  10. X contacted the Ombudsman in June 2023 for assistance with their concerns. As they had not been through the Council’s own complaints process in relation to all of their concerns we referred the matter back to the Council to consider.
  11. They complained that school would soon finish for the year and Y had not received the eight OT sessions specified in their EHC Plan. X asserted the lack of OT support had had a significant detrimental impact on Y’s ability to learn. They asked the Council to make up for the missed OT sessions with the private OT who could go into Y’s school to provide the sessions and support the teaching assistants and X to assist Y.
  12. X also asked the Council for a personal budget to arrange tuition to enable Y to catch up on the education they had not been able to engage in without the OT provision. They also asked the Council for compensation for the stress and anxiety they had experienced.
  13. X met with officers to discuss their concerns but was not satisfied by the subsequent action. X understood the private OT sessions they had identified were to make up those missed between September 2022 and July 2023 and wanted sessions to take place in August 2023. They were unhappy the Council was instead focused on OT provision for the next academic year.
  14. X asked for their complaint to be considered further. X’s summary of their complaint noted:
    • The Council had failed in its duty to inform them about or to provide transport to school in the academic year September 2022 to July 2023. They asked the Council to refund their costs in transporting Y to school.
    • The Council had failed to provide Y with sufficient education or the required OT provision between September 2022 to July 2023. X asked the Council to agree to a placement at a School 2, specialist school, that would enable Y to make up for the lost educational provision, and to make up the missed OT provision.
  15. They also requested compensation for the impact the Council’s failings had had on Y and X.
  16. The Council’s response noted X had never made a request for transport or queried this with the Council prior to their complaint. The Council confirmed its transport policy is clear that if a parent decides on a school that is not the nearest school, the parents will be liable to pay for transport. It said this would have been explained to X at the point the initial EHC Plan was finalised and it is clearly detailed in Y’s EHC Plan that X would be responsible for getting Y to school.
  17. The Council advised X that if they was no longer able to transport Y to School 1 Y would be expected to go to another, closer school.
  18. In relation the OT provision, the Council apologised that Y did not receive the full contacts. It noted that while it was the Council’s duty to ensure the provision is fulfilled, it was not aware the provision was not being implemented. When X raised this the Council questioned it with the school and arranged an annual review. The Council confirmed a new OT provider had been arranged and they would be paid directly by the Council.
  19. The Council also noted concerns about School 1 struggling to meet Y’s needs were only raised during the review in July 2023. It noted that X’s preference was for a place at School 2 and confirmed that once the school was Ofsted registered it had consulted with them. Although School 2 said they could meet Y’s needs, the Council did not agree a placement and wanted further consultations with local/ maintained mainstream and specialist provision.
  20. The Council says the next EHC Plan review was due in December 2023, but this was brought forward to June 2023. A review meeting was held in late June 2023 and the Council issued a draft amended Plan in July 2023. X provided their comments on the draft Plan in August 2023 and asked for a personal budget for the SALT provision. The Council issued a final EHC Plan in September 2023.
  21. X has asked the Ombudsman to investigate their concerns. They have confirmed they were aware it was their responsibility to transport Y to School 1 and were happy to do that when Y started there in September 2021. However they dispute that an annual review took place in September 2022 and says they were not given the opportunity to discuss the terms of Y’s education for the next academic year. X says School 1 continued to be named in Y’s EHC Plan by default. They contend that as Y made little or no progress at School 1 between September 2022 and July 2023 they should be reimbursed the transport costs.
  22. X says the OT provision is central to Y’s education, so no education can take place while the OT is absent. While X is happy with the OT provision going forward, they want compensation for the impact of the missed provision.
  23. In response to my enquiries the Council notes the annual review report in June 2023 stated School 1 had been implementing the OT provision outlined in the OT report of September 2022. This included daily discrete one to one OT interventions with the teaching assistant based on the OTs recommendations. They also used a multi-sensory approach to learning and activities and the recommended equipment. The Council said that with this support in place Y made progress.
  24. The Council also said School 1 had tried to find out about Y’s direct sessions and had been repeatedly told Y would be seen at the contingency clinic and this would be arranged directly with X.
  25. The Council acknowledges Y did not receive the eight direct therapy sessions but reiterates it was unaware of this until the annual review in June 2023. It states this should have been raised by School 1 or X sooner so that the Council could rectify it. The Council has agreed to X’s request for a personal budget and has put in place private OT from September 2023. It considers this resolves the eight missed sessions.
  26. In relation to X’s request for a refund of the transport costs the Council says it was never mentioned, even in the September 2022 annual review that X was now unable to transport Y. It has reiterated that the transport policy is very clear in that if a parent decides on a school that is not the nearest school, the parents are liable to pay for transport. The Council says X now receives a personal transport budget to allow them to take Y to and from school each day. They also receive support from Social Care to support with this.
  27. The Council says it has agreed to fund 10 hours of childcare a week via direct payments.
  28. Since complaining to the Ombudsman X has appealed to the SEND tribunal. They are unhappy that their appeal was initially refused as the EHC Plan was still marked ‘Draft’ rather than ‘Final’. The Council issued an amended final Plan in November 2023. X has submitted their appeal to the tribunal and a hearing is listed for next year.
  29. X complains the Council’s failure to comply with the statutory timeframes for annual reviews of EHC Plans has frustrated their ability to appeal and means their case will not be heard before the end of the current academic year.

Analysis

  1. There is no dispute that Y did not receive the eight OT session provided for in their EHC Plan between September 2022 and July 2023. The Council has a duty to ensure Y receives the special educational provision set out in section F of their EHC Plan, and the failure to do so is fault.
  2. The Council has made new arrangements to ensure the provision is provided going forward, but it has not provided additional sessions to make up for the missed OT provision or sought to address the impact of this.
  3. Not receiving these OT sessions will have had an impact on both Y and X. X does not consider providing the missed eight session now, so that Y receives 16 sessions in the current academic year, will benefit Y. Nor do they consider it would remedy the impact on Y. In the circumstances I consider the Council should make a symbolic payment to acknowledge the impact of the missed OT provision on Y between September 2022 and July 2023.
  4. The Council should also make a symbolic payment to recognise the distress and difficulties this caused X.
  5. X would like the Council to reimburse their costs in taking Y to school between September 2022 and July 2023. I do not consider this appropriate in this instance.
  6. It is clear X was aware they were responsible for getting Y to School 2. They did not request assistance with the transport costs or dispute their responsibility for getting Y to school. There is no evidence X requested a change of school or a change to the transport arrangements at the start of the academic year in September 2022. In the circumstances we would not criticise the Council for not providing transport assistance.
  7. X’s claim for reimbursement of their travel costs is based on their belief Y made little or no progress at School 1 between September 2022 and July 2023.
  8. X asserts that without the OT sessions Y was unable to engage in any education for the whole academic year. However the Council says School 1 implemented the strategies and interventions recommended by the OT report of September 2022 on a daily basis and that Y made progress.
  9. While I recognise that not receiving these OT sessions will have had an impact on Y, I do not consider it appropriate to retrospectively speculate on the progress Y could have made if the eight sessions had been provided. The EHC Plan was not prescriptive in what the sessions should involve. They could be used for direct therapy through individual or group sessions with Y working on her OT targets or support sessions for teaching staff, and parent workshops. Alternatively they could be used for indirect therapy in the form of meetings with X or school staff and attendance at or the provision of a report for the EHC Plan annual review. This would clearly have benefitted Y but I do not consider it possible to conclude, on the balance of probabilities, that not receiving these sessions meant Y made no educational progress.
  10. X would also like a greater level of support for Y outside of school. They considers Y needs 24-hour care and that the 10 hours support the Council provides each week is nowhere near sufficient. It is not the Ombudsman’s role to determine the level of support Y and X should receive, this is the Council’s job. We can only consider whether the Council has considered X’s request for support correctly.
  11. The Council has assessed Y’s care and support needs and funded 10 hours of support each week. X is unhappy the Council relied on the RAS tool to determine the level of support it would provide. They assert the support should be based on Y’s needs, not what a budgeting tool calculates. However it is clear the Council has not solely relied on the RAS tool, it has provided more than double the support the RAS tool calculated Y needed.
  12. Based on the documentation available there is no evidence of fault in the way the Council considered X’s request for support.
  13. Legislation and Government guidance set out a clear procedure and timeframe for carrying out an annual review of an EHC plan. The documentation provided shows the Council did not meet this timeframe. The annual review process started on 27 June 2023 this means the Council should have sent X the final amended EHC Plan by 19 September 2023. The Plan is dated 20 September 2023 but was not sent to X until 25 September 2023. In either event this is slightly outside the maximum 12-week timeframe.
  14. I do not consider this in itself caused X an injustice. However, as the heading of final Plan issued in September 2023 had not been updated and still described the plan as draft, the SEND tribunal would not accept X’s appeal. The Council amended the heading and reissued the final EHC Plan in November 2023. This means the total time taken to issue an amended final EHC Plan which afforded X a right of review was over 21 weeks. This is significantly outside the statutory timeframe.
  15. X asserts the Council’s delay in issuing a final EHC Plan means their appeal will not be heard before the end of the current academic year. I am not persuaded this is the case. X’s right of appeal was delayed by two months as a result of the Council’s error. Even if the hearing was brought forward two months to account for this, it would not take place before the end of the academic year. I recognise however it will have caused X frustration and uncertainty.
  16. The Council’s error and failure to meet the required timeframes is fault and will have caused X an injustice.

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Agreed action

  1. The Council has agreed to:
    • apologise to X and Y for the failure to ensure Y received the full OT provision set out in their EHC Plan and for the delay and error in completing the annual review and issuing a final EHC Plan;
    • pay X £450 in recognition of the frustration, stress, and uncertainty the failure to ensure Y received the full OT provision, and the delay and error in reviewing and issuing Y’s Final EHC Plan have caused;
    • pay X £1000 to acknowledge the impact of the loss of OT provision on Y between September 2022 and July 2023. X should use this money for Y’s benefit as they see fit.
  2. The Council should take this action within one month of the final decision on this complaint and provide us with evidence it has complied with the above actions.

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Final decision

  1. The Council's failure to ensure Y received the full OT provision set out in her EHC Plan is fault. As is the Council's delay and error in completing the annual review in 2023 and in issuing a final EHC Plan. This fault has caused X and Y an injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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