Summary
The two-week delay in issuing Y’s final Education, Health and Care Plan did not cause injustice. There was a failure to secure some of Y’s provision. This had a negative impact on his attainment. The Council will apologise to Y and make a payment to him and to his mother Ms X for her avoidable time and trouble.
The complaint
Ms X complained North East Lincolnshire Council (the Council) delayed finalising her son Y’s Education, Health and Care Plan (EHC Plan) which was due by 15 February 2021. She also complained the Council offered an inadequate remedy for the following provision on the plan that it failed to secure: Some teaching hours cognitive behavioural therapy filial therapy training for teaching staff social groups occupational therapy termly reviews by the professionals working with Y Ms X said the Council’s fault caused Y a loss of provision, affecting his attainment and progress and also caused a delay in appeal rights.
The Ombudsman’s role and powers
We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended) Complaints about events before March 2021 are late, but I have exercised discretion to investigate them because the Council accepted in its complaint response and other correspondence that Y had not received some teaching hours in November 2020. And, Ms X pursued matters through the Council’s complaints procedure and through legal correspondence without any significant gaps. These are good reasons to extend our usual 12-month guideline. My investigation stops at the end of the previous school year (23 July 2021) when Y changed placement and started secondary school in September 2021.
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 unremedied injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) 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) In line with our information sharing agreement, I will share a copy of the final decision with Ofsted.
How I considered this complaint
I considered Ms X’s complaint to us, the Council’s responses to her complaint and documents described in this statement.
Ms X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
What I found
Relevant law and guidance A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them.
The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act 2014). 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) An EHC plan must be reviewed and amended in sufficient time before a child or young person moves between key phases of education, to allow for planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year of the transfer at the latest for transfers into or between schools, including the transfer from primary to secondary school.
What happened Y has special educational needs and has an EHC plan. He has been at secondary school since September 2021. Before September, Y received Education Otherwise than at School (EOTAS).
Correspondence between the parties’ lawyers indicates the Council accepts Y missed out on 66 teaching hours between November 2020 and April 2021.The Council said in one letter that in November 2020, this was because of staff sickness. The Council offered to make up five lost hours of teaching in the school holidays. Ms X did not take up this offer.
The Council issued Y’s final EHC plan on 25 February 2021. The plan said Y’s placement was EOTAS. Section F of the plan described the special educational provision as follows: Five hours a day of individual teaching with a qualified teacher and a teaching assistant. (Teaching sessions took place at a centre arranged by the Council) Training for teaching staff in how to meet Y’s needs and the development of an educational programme by an educational psychologist (EP) for one day The teacher must have additional training in anxiety disorders, delivered by an experienced child mental health psychologist or psychotherapist of no less than one day in length before the teacher starts working with Y Six direct occupational therapy (OT) sessions At least one OT visit to assess the teacher’s competence in delivering interventions recommended by the OT, within the first week A termly review by all professionals working with Y Social groups as part of his curriculum.
Cognitive Behavioural Therapy as clinically indicated to reinforce and embed skills he previously learned Filial Therapy (a type of play therapy) Ms X complained to the Council in April 2021 about the same matters she raised with us. The Council’s first response in May apologised and acknowledged the delay in issuing the final EHC plan saying it was because Ms X asked for amendments close to the deadline. In relation to educational provision, the Council said: A company had been engaged to help Y meet other children, but social groups were not in place Training teaching staff by the EP had not happened No OT sessions had happened since the final plan was issued There was no termly review by the OT in Spring 2021 and Ms X paid £720 for a review The latest teaching staff did not have training in anxiety disorders before starting work with Y. They have had sessions since and the teacher has some training in anxiety disorders through a university course A termly professionals’ review had not yet happened The Council apologised and said it had tried its best to arrange all Y’s provision and was endeavouring to do so.
In May 2021, the parties’ lawyers exchanged letters about missed teaching sessions in 2020. Ms X said she wanted Y to have a payment to cover the cost of the lost hours. The Council said it accepted 66 hours were lost up to April 2021, mainly due to staff sickness or training. It went on to say it was willing to provide an additional hour of teaching a day which it felt was the most appropriate way to try and put Y back where he would have been. The Council also said it was willing to attend mediation.
The OT’s records show she saw Y for six sessions in the Summer term of 2021.
In December 2021, Ms X escalated her complaint with the Council to the second stage of its complaints’ procedure and the Council commissioned an independent investigation. The report in March 2022 said: The Council failed to finalise the transition EHC Plan and name the provision for Y by 15 February 2021. It also failed to secure all the provision on the plan Social groups did not take place partly because of COVID-19 restrictions and partly because they had not been developed Members of teaching staff left and this impacted staff training. Staff did not receive training before they started working with Y. The teacher received training in anxiety disorders after starting work with Y.
The Council had reimbursed the private OT review at £720 that Ms X already arranged Multi-disciplinary meetings had not taken place because Council officers were not available. These were now happening.
I asked the Council to say why it had not secured all the special educational provision on the plan. It said: It had arranged for teaching staff to be available for an extra hour a day at the centre, but Ms X withdrew and refused to send Y to the centre.
Y was now at school and had extended provision beyond the school day to offer extra hours.
Y currently had opportunities for socialisation at school and was making good progress Ms X did not consent to an Educational Psychologist (EP) attending school in order to observe and assess Y and this requirement was removed from the working document as part of the tribunal. The Council’s view is it would be hard for an EP to deliver tailored training if they had not met the child.
The Council provided me with a record of one of Y’s teacher’s training. The teacher had sessions with an EP which covered specific social educational provision on Y’s EHC plan. The Council did not evidence delivery of any filial therapy or cognitive behavioural therapy.
Was there fault and if so, did this cause injustice requiring a remedy?
Delay in issuing the transfer EHC plan The Council accepted it was two weeks late issuing Y’s transfer plan. This was a breach of the timescales in the SEN Code of Practice which is fault, but a two-week delay in appeal rights is not significant injustice.
Failure to secure the provision on the EHC plan The Council is responsible for ensuring arrangements specified in Section F of an EHC plan are put in place as this is a non-delegable duty.
The Council is at fault in not securing all the provision on Y’s EHC plan. I set out findings on fault and injustice in paragraphs 25 to 39.
The 66 lost teaching hours The Council accepts Y lost 66 teaching hours.
This is fault because of the duty to secure provision in an EHC plan. In Y’s case, I do not consider just over two weeks of missed teaching in a previous academic year has any significant continuing impact on Y.
Teaching staff training and multi-disciplinary reviews I note the Council’s position that Ms X refused to allow an EP to assess Y at school. There is no evidence to support this. In any event, the Council has not suggested Ms X refused to allow the EP to see Y at the centre where he was receiving EOTAS. This is fault because of the non-delegable duty to secure provision.
The Council accepted staff had not received the specified training on the plan at the right time and that reviews did not take place when they were due. This is fault. It meant the provision on Y’s EHC plan was not delivered in a way that met his needs.
Social groups The Council accepts it did not provide the social groups specified in Y’s EHC plan. I note there were national restrictions on socialising in 2021 due to COVID-19 which meant many general groups that may have been suitable for Y did not run. This was not within the Council’s control. However, some smaller group activities may have been possible within the restrictions. There is no evidence showing the Council explored whether any limited social provision may have been possible within the limits of what was available in the first half of 2021. This is fault causing a loss of social provision for Y or uncertainty around whether social provision may have been arranged had the Council made more effort to investigate provision. All this may have affected Y’s attainment and progress.
Filial therapy and cognitive behavioural therapy This was not secured and the Council has provided no evidence of attempts to put it in place. This is fault because of the duty on the Council to secure provision on Y’s EHC plan. This likely affected Y’s educational attainment and progress and achievement towards the outcome on his plan.
Occupational therapy I do not uphold this complaint. The records indicate Y received the six sessions set out on his EHC plan. There is no fault.
Agreed action
Where fault has resulted in a loss of educational provision, we usually recommend a payment of £200 to £600 a month (subtracting time for school holidays) to reflect the impact of the loss, depending on the severity of that impact. In this case my view is most of the teaching provision on the plan was delivered. To reflect the lack of specific provision I have identified in paragraphs 22 to 29, the Council has accepted my recommendation for a payment of £200 a month, minus school holidays for the period 15 February to 23 July 2021. This is about four and a half months minus school holidays, so £900.
The Council will also, within one month of this statement: Apologise in writing to Y for the fault I have identified and the likely adverse impact on his attainment, particularly in the area of social skills development. The Council has already apologised to Ms X so there is no need for a further apology to her.
Pay Y £900 to reflect the impact of loss of specified provision.
Pay Ms X £150 to reflect her avoidable time and trouble complaining.
Final decision
The two-week delay in issuing Y’s final Education, Health and Care Plan did not cause injustice. There was a failure to secure some of Y’s provision. This likely had a negative impact on his attainment. The Council will apologise to Y and make a payment to him and to his mother Ms X for her avoidable time and trouble.
I completed the investigation.
Investigator's decision on behalf of the Ombudsman