On analysis of Ombudsman investigations in December 2021 three themes emerge:
1. Local Authorities (LAs) should have ‘proper checking mechanisms’ in place to ensure the delivery of provisions set out in an EHC Plan;
2. the LA has a statutory duty to inform parents of their right of appeal to the SENDIST;
3. the injustice caused by delay extends beyond the child not accessing provision.
1. LAs should have ‘proper checking mechanisms’ in place to ensure the delivery of provisions set out in an EHC Plan
There were five complaints to the Ombudsman in December 2021 that included an alleged failure on the part of the LA to ensure EHC Plan provision was in place. Three were upheld, with the Ombudsman finding no fault in two. In complaints against both Buckinghamshire LA and Brighton and Hove LA the Ombudsman stressed that although an LA can ask another organisation to make the provisions specified in an EHC Plan, if that organisation then fails to do so, it is the LA that is responsible. The LA must, therefore, have proper oversight mechanisms in place to satisfy themselves that provision is being delivered in accordance with Section F of an EHC Plan.
In an upheld complaint against Brighton and Hove City Council, Mrs X’s son was entitled under section F of his EHC Plan to a daily sensory circuits programme as recommended by a physiotherapist. The day-to-day provision of these sensory circuits rested with the school. Through the standard Annual Review process, the LA was aware that there were issues with the child’s engagement with the sensory circuits and that the school was trying different methods of delivery. However, the LA was not aware that the provision subsequently stopped altogether and no or insufficient mechanisms were in place to ensure that any interruption in the provision would be remedied promptly. The Ombudsman commented that had the LA had proper oversight mechanisms in place, they would have known earlier that the provision was not being delivered. Consequently, as part of the agreed action with the Ombudsman, the LA paid £300 to “recognise the uncertainty and anxiety of not knowing when the sensory circuits would have resumed if the Council had had proper checking mechanisms in place.” In addition, it awarded £300 to recognise the time and effort in arranging the provision privately, and it ordered the LA to cover the loss of earning caused to the parent when she had to drive the child to private physiotherapy. Importantly, in this case the LA agreed that to avoid future lapses in provision, LA senior officers would attend frequent review meetings, including with NHS services, and that provision maps would be provided to schools when funding is allocated and linked to Section F.
In relation to the necessary mechanisms of oversight, in a complaint against Buckinghamshire Council the Ombudsman stated that it is for the LA to decide how best to check that provision is being secured. They acknowledged that it is impractical to keep a ‘watching brief’ on the provision of every school for every pupil with an EHC Plan. They suggested, however, that an LA’s legal duty could be discharged by having systems to check provision when: there is a change of placement; an updated EHC Plan is issued; Annual Reviews are conducted; or a complaint or concern about provision is made. For Brighton and Hove LA, in light of the Ombudsman’s decision, they have taken action for the SEN team to work much more closely in partnership with schools, BHISS, and parent forums to improve communication and oversight of these issues. New procedures include senior officers attending frequent and regular case review meetings, provision maps being provided to schools when funding is allocated to be linked specifically to the provision in section F of the EHC Plans, and regular senior officer meetings with the heads of SALT and OT services.
2. The LA has a statutory duty to inform parents of their right of appeal to the SENDIST
The Children and Families Act 2014, the SEND Regulations 2014, and the SEND Code of Practice (CoP) place an obligation on LAs to inform parents of their right to appeal to the SENDIST, the time limit for doing so, and of the requirement for them to consider mediation should they wish to appeal, and the availability of information, advice and support and disagreement resolution services. This obligation arises both at the time of making a decision not to conduct an EHC needs assessment (para. 9.57, CoP) and at the time of issuing the final EHC Plan (para. 9.126, CoP).
There were two complaints to the Ombudsman in December 2021 in which LAs were found not to be at fault, because they had accurately complied with this duty; in a complaint against the City of Bradford Council, their refusal to assess a child’s EHC needs was held to be outside the jurisdiction of the Ombudsman as the mother had not previously appealed to the SENDIST, despite having been given information on how to do so. It was found reasonable to expect her to have used this alternative remedy of appeal.
Similarly, in a complaint against Surrey County Council, the parent had been informed about their right to appeal the type of school specified in Section I, and had not chosen to do so. The LA was, however, found to be at fault for not keeping records of communication with the parent, with other elements of the complaint found in the parent’s favour for lack of LA evidence, resulting in a compensatory payment of £300 and a letter of apology. The LA was also ordered by the Ombudsman to identify why it could not provide records of contact and, if appropriate, take action to prevent recurrence.
3. The injustice caused by delay extends beyond the child not accessing provision
The most prominent cause for complaint to the Ombudsman in December 2021 was delay on the part of the LA. The statutory time limits in the ECH Plan process are laid out in the CoP.
Accordingly, as part of the Ombudsman’s decision, Surrey County Council had to pay £750 each to a parent and child for the prolonged distress and uncertainty of a delay of around 18 weeks in the EHC assessment and around 55 weeks for the review and assessment. Kent County Council agreed to pay £250 as a symbolic payment to recognise the frustration caused by their delay of two months to respond to a complaint, in breach of their own published procedure, and delay of 12 weeks in issuing a final EHC Plan. Similarly, Cheshire East Council agreed to pay £300 for the stress and anxiety caused by a delay in issuing the final amended EHC Plan. In addition, it ordered a letter of apology and additional compensation of £2,050 for the loss of SALT, independent life skills provision and support from a specialist ASD college one-day per week.
Bethany Hutchison is a Paralegal at LASEN Ltd. LASEN host regular online training for local authority SEND and EHCP officers. For more information, local authority employees will need to become members of LASEN at https://www.lasen.co.uk . LASEN membership is free of charge but only open to local authority employees.
This article is written for general information purposes. It does not constitute legal advice and should not be relied on as such.