Summary: Mr and Mrs X complained the Council failed to make provision for their son, G, in line with his Education, Health and Care (EHC) Plan. The Council was at fault. The stage two independent investigation found considerable evidence the Council failed to ensure G received provision in line with his EHC Plan between November 2017 and March 2019. The Council agreed to pay G £4,200 to acknowledge the lost provision, and the significant impact it had on his health and social development. The Council also agreed to pay Mr and Mrs X £500 to acknowledge the distress, frustration and time and trouble caused by the faults and its delay in handling their complaint.
22 January 2020Complaint reference: 18 005 527Complaint against:Suffolk County CouncilThe Ombudsman’s final decisionSummary: Mr and Mrs X complained the Council failed to make provision for their son, G, in line with his Education, Health and Care (EHC) Plan. The Council was at fault. The stage two independent investigation found considerable evidence the Council failed to ensure G received provision in line with his EHC Plan between November 2017 and March 2019. The Council agreed to pay G £4,200 to acknowledge the lost provision, and the significant impact it had on his health and social development. The Council also agreed to pay Mr and Mrs X £500 to acknowledge the distress, frustration and time and trouble caused by the faults and its delay in handling their complaint. The complaint1. Mr and Mrs X complained the Council failed to make provision for their son, G, in line with his Education, Health and Care (EHC) Plan between November 2017 and March 2019. Mr and Mrs X said the Council upheld their complaint but has failed to offer an adequate remedy for failing to meet G’s Special Education Needs (SEN) or for the distress caused to the family during that period. The Ombudsman’s role and powers2. 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)3. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))4. 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)5. 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.
Final decision2How I considered this complaint6. I spoke to Mr X about the complaint.7. I considered the Council’s stage two investigation report and response letter. 8. I considered the Council’s response to my enquiries. 9. Mr and Mrs X and the Council had an opportunity to comment on my draft decision. Neither Mr X and Mrs X or the Council made any comments for me to consider. What I foundEducation, Health and Care Plan (EHC Plan)10. Children with complex needs may require an Education, Health and Care Plan EHC Plan), which details the support they must receive in school. 11. An EHC Plan is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care.12. Councils are responsible for making sure all the arrangements named in the EHC Plan are put in place. 13. Councils have a legal duty to ensure the special educational provision in section F of an EHC Plan is delivered from the date they issue a final EHC Plan. This duty is non-delegable.14. Once the Council completes the EHC Plan it has a legal duty to deliver the educational and social care provision set out in the EHC Plan. The local health care provider will have the duty to deliver the health care provision.15. The Ombudsman cannot investigate the Council’s decision whether to conduct an assessment, nor can it investigate the content of the EHC Plan. These are appealable to the Special Educational Needs and Disability Tribunal (SEND).16. Decisions to amend or cease a plan can be appealed to the Tribunal.What happened17. Mr and Mrs X have a son, G, who is now 11 years old. G has autistic spectrum disorder (ASD). In 2017, he was diagnosed with Sensory Processing Disorder which is a condition in which the brain has trouble receiving and responding to sensory information. 18. G attended a special school (the School) which catered for pupils with complex learning needs and had an EHC Plan. G’s EHC Plan included specific provisions to meet G’s SEN including: • Speech and Language Therapy (SALT) sessions;• Visual based learning schedule;• An individual programme devised by health professionals to develop G’s life skills and independence;• Occupational therapy (OT) sessions each term;• Daily implementation of a sensory diet.19. In November 2017, Mr and Mrs X complained to the Council. Mr and Mrs X said the School had not put important elements of G’s EHC Plan in place and there was a lack of consistent support. Mr and Mrs X said G’s provision for SALT and
Final decision3OT was not in place. They said this was having a significant detrimental effect on G’s behaviour. 20. The Council responded to Mr and Mrs X in December 2017. It said it would ensure G’s provision for SALT and OT was in place as soon as possible and apologised for the delay. 21. During 2018, Mr and Mrs X continued to complain that the School was not delivering the SEN provision set out in G’s EHC Plan. 22. In June, the Council reviewed and made amendments to G’s EHC Plan. However, it remained of the view that the School could meet G’s needs and continued to name it within the Plan. Mr and Mrs X were of the view that the School was unsuitable and could not meet G’s SEN needs. Mr and Mrs X appealed to the SEND tribunal against the naming of the School in the EHC Plan. 23. In August 2018, the Council agreed to carry out a stage two independent investigation into Mr and Mrs X’s complaint. The Council said it delayed carrying out the investigation due to Mr and Mrs X’s appeal to the tribunal. 24. The tribunal heard Mr and Mrs X’s case in January 2019. The tribunal concluded the School had not delivered the SEN provision in G’s EHC Plan with any consistency. It said there was clear evidence G had regressed academically and, in his ability to engage with the class. The tribunal found G struggled to recognise six common words. It said the School had not delivered many of the services included within his EHC Plan. It said this had resulted in frustration, unhappiness and a significant detrimental impact upon both G and Mr and Mrs X. The tribunal ordered the Council to change G’s EHC Plan to name an alternative school which could properly deliver the provision in line with the Plan. G started at his new school in March 2019.25. The Council started its stage two investigation in April 2019 and concluded it in June 2019. The investigation upheld Mr and Mrs X’s complaint. It found the Council failed on numerous counts to ensure G received the provision in line with his EHC Plan. It found:• the School delayed the implementation of both SALT and OT provision and referring G for his physiotherapy assessment;• the use of Picture Exchange Communication System (PECS) was included in the plan but never used;• G’s sensory diet was not provided;• G had no access to an iPad in line with the plan;• Mr and Mrs X had to complain multiple times, and the Council did not follow its complaints procedure within a reasonable timescale.26. The investigation said there was considerable evidence that the School did not follow G’s EHC Plan. The investigation found G spent most of his time disengaged with the class and teacher. It said G’s health had been adversely affected by the failings and he had developed callouses on his knees due to the time he spent lying on the floor at School. The investigation found it reasonable to assume that G would not have suffered to the extent he had, if the School had implemented the therapies included in G’s EHC Plan.27. The stage two investigation recommended the Council fully reimburse Mr and Mrs X for the cost of professional reports they commissioned to support their
Final decision4case at the tribunal. It also recommended the Council provide G with compensation to acknowledge the significant impact the failings have had on his development. 28. The Council sent its stage two response to Mr and Mrs X in June 2019 and accepted the findings of the stage two investigation. It said the investigation highlighted poor communication between it and the School and the Council had not clearly told the School what it should provide in line with the EHC Plan. The Council said it was Mr and Mrs X’s decision to commission their own reports for the tribunal and therefore would not compensate for these costs. It offered Mr and Mrs X a total of £1250 to acknowledge the time and trouble, distress and expenses incurred due to its failings. It also offered G additional SALT and OT sessions to use during school holidays over a 12-month period. 29. Mr and Mrs X were unhappy with the Council’s offer of compensation. They said the offer did not adequately remedy the loss of education which G suffered as a result of the fault. The Council said it did not offer a stage three review because most of Mr and Mrs X’s complaints were upheld at stage two. 30. Mr and Mrs X remained unhappy and complained to the Ombudsman.My findings31. Mr and Mrs X complained to the Council over a long period that the School was not delivering the provision identified in G’s EHC Plan. I have considered matters from November 2017 onwards because that is when Mr and Mrs X complained to the Council about the matters. The stage two investigation upheld most of Mr and Mrs X’s complaint. As the Council agreed with the stage two investigation findings and Mr and Mrs X have not complained about the stage two investigation itself, I have not re-investigated these matters. 32. The stage two investigation found the Council failed to ensure G received the SEN provision in his EHC Plan. Mr and Mrs X first complained to the Council in November 2017, and the records show G continued to miss out on provision until March 2019 when he moved to another school. This equates to four full school terms of lost provision. That was fault. 33. The Council agreed to carry out a stage two investigation in August 2018. The Council did not complete that investigation until June 2019. Although Mr and Mrs X appealed G’s EHC Plan to the SEND tribunal in January 2019, there was still an unnecessary delay in carrying out the investigation. That was fault. The delay caused Mr and Mrs X frustration and time and trouble. Injustice to G34. Both the stage two investigation and the tribunal found the Council’s failure to ensure G received the provision in his EHC Plan caused him significant injustice. G regressed socially, his health deteriorated, and he lost out on educational opportunity. G is already disadvantaged because of his medical conditions and has been further disadvantaged because of the Council’s faults.35. The Council has already accepted the findings of the stage two investigation and considered the recommendations from it. It said it would carry out an independent audit of the quality of information and advice it receives from practitioners for EHC needs assessments and annual reviews. It said it would review the accuracy of EHC Plans to ensure the required provision is clear.36. The Council offered Mr and Mrs X compensation, however, that offer was not in line with the Ombudsman’s guidance on remedies for lost educational
Final decision5provision. I have therefore made recommendations below in line with our guidance.Agreed action37. To remedy the injustice caused by fault, the Council agreed, within one month of the final decision to;• pay Mr and Mrs X £4200 to recognise the loss of education and SEN provision between November 2017 and March 2019. This amount should be used by Mr and Mrs X for the benefit of G’s education. • pay Mr and Mrs X £500 it originally offered them in its stage two response letter to recognise the distress, frustration and time and trouble caused by the Council’s faults and the delay in handling their complaint;• offer G the five SALT and five OT sessions for use over a 12-month period during the school holidays as originally offered in its stage two response;• provide the Ombudsman with a summary of the findings and actions which resulted from the independent audit of EHC assessments as outlined in its stage two response letter. Final decision38. I have completed my investigation. The Council was at fault and it agreed to my recommendation. Investigator’s decision on behalf of the Ombudsman