Calderdale Metropolitan Borough Council (21 018 935)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 20 Jan 2023

The Ombudsman's final decision:

Summary: Mrs X complained the Council failed to secure the provision in her child, B’s Education Health, and Care Plan. Mrs X said the Council also failed to adequately fund B’s nursery placements and investigate her concerns about B’s safety. It also failed to provide her with information, communicate properly and provide a satisfactory response to her concerns. We find the Council was at fault for failing to provide some provision, adhere to the timeframes to conduct a review, for failure to keep consistent records and for poor communication with Mrs X. This caused B to miss provision and caused Mrs X frustration, confusion, and put her to the time and trouble of complaining. The Council has agreed to our recommendations to remedy the injustice caused.

The complaint

  1. Mrs X complains the Council failed to:
  • Provide the provision as specified in her son, B’s, Education Health, and Care Plan (EHCP).
  • Adequately fund B’s provision.
  • Adequately investigate a safeguarding incident involving B.
  • Provide sufficient information about Special Educational Needs (SEN) funding and wrap around/added costs (for holidays and afterschool clubs).
  • Provide satisfactory record keeping.
  • Reply in a timely manner to her concerns and complaints.
  1. Mrs X says B lost provision because of these failings and has suffered from anxiety and trauma. She also says the family has suffered from distress, frustration, and confusion.

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What I have and have not investigated

  1. I have used my discretion to investigate this complaint from March 2020. This is because Mrs X complained consistently about matters arising from the issue and consideration of B’s first EHCP.
  2. I have not investigated Mrs X’s complaint about the content of the provision as set out in B’s EHCP as she had a right of appeal to the SEND tribunal.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
  3. 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)
  4. The law says we cannot normally investigate a complaint when someone can appeal 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 appeal. (Local Government Act 1974, section 26(6)(a), as amended)
  5. 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.
  6. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
  7. 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.

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How I considered this complaint

  1. I spoke to and have considered the documents submitted by Mrs X and made enquiries of the Council. I have read the information Mrs X and the Council provided about the complaint.
  2. I have considered Mrs X and the Council comments on the draft decision, before making this final decision.

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What I found

Education, Health, and Care Plan (EHCP)

  1. A child with special educational needs may have an EHCP. This sets out the child’s needs and arrangements for meeting them.
  2. The Council is responsible for securing the specified special educational provision for the child. This means making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the procedures.
  3. These duties are non-delegable. Other than for the period when the emergency measures under the Coronavirus Act 2020 were in place, a council cannot discharge its duty by showing it tried but failed to put the support in place.

0-25 SEND code of practice: Reviews of EHC plans for children aged 0 to 5

  1. Councils should consider reviewing an EHCP for a child under five at least every three to six months to ensure provision continues to be appropriate. Such reviews should complement the duty to carry out a review at least annually.

Coronavirus Act

  1. On 1 May 2020 the Secretary of State issued a notice under the Coronavirus Act to give councils more flexibility in dealing with EHC Plans and provision. It changed councils’ absolute duty to ‘secure’ the education provision in an EHC Plan to one of using ‘reasonable endeavours’ to do so. This was a temporary change applying from 1 May to 31 July 2020. At the end of this period, councils’ usual duties returned.

The Council’s Complaints Procedure

  1. A manager will consider the complaint within 10 working days. If more time is needed, the Council will contact the complainant and agree a timescale to complete the complaint.

What happened

  1. I have set out a summary of the key events below. It is not meant to show everything that happened.
  2. Mrs X’s son, B, has a diagnosis of autism spectrum condition (ASC) with significant delay to gross motor skills, development, and sensory aversion. B also has significant communication, cognitive and learning needs and is diagnosed with a hearing impairment.
  3. The Council issued B’s first final EHCP in March 2020. It specified the provision B was entitled to receive and said, ‘inclusion funding will continue while B is accessing his nursery year.’
  4. Mrs X raised concerns about the adequacy of B’s funding in May 2020. Mrs X wanted to know why B’s funding did not increase in line with his identified needs. Mrs X consistently complained the funded provision would not meet B’s needs as set out in his EHCP.
  5. In November 2020, Mrs X complained B had not received his speech and language therapy (SLT) provision as specified in his EHCP. She also said she was concerned the 1:1 support B was receiving was inadequate. Mrs X received a message from B’s SALT in late November 2020. The message apologised for failing to put SLT provision in place for B earlier in the year. However, it offered an assessment in early December, and said B would be high priority for intervention before the Christmas period.
  6. Mrs X followed up her concerns in January, February, and March 2021. She said she did not receive an adequate reply and had to contact B’s speech and language therapist (SALT) herself to access his provision.
  7. The Council issued B with his second final EHCP in February 2021. This explained B would attend two separate nursery placements on a split basis.
  8. The Council conducted B’s annual review in March 2021. Mrs X attended. Following this, the Council issued B with his third final EHCP in June 2021. This included B’s specific funding amounts, which were to be split between B’s two nursery placements.
  9. Mrs X continued to raise concerns about how the Council was funding B’s provision throughout 2021. She believed that B should receive 1:1 support and supervision all of the time while he was at nursery. She questioned why this was not happening, considering the 2020 Educational Psychologist’s report into B’s identified needs. She also said the Council:
  • Had not provided her with enough information to understand how B’s provision was being funded.
  • Had failed to provide sufficient and accessible information on funding.
  • Had not included additional funding in supporting B’s participation in afterschool clubs and attendance during school holiday periods.
  1. The Council told Mrs X it would not usually set out specific funding in the EHCP, and that it did not have any obligation to do so. However, it included specific funding amounts in B’s EHCPs at Mrs X’s request and did so for transparency. It told her it would look into her concerns about B’s funding.
  2. In July 2021, Mrs X also raised concerns with the Council about B’s safety following a series of incidents while he was at nursery. Mrs X said B must have been left unsupervised and had been left traumatised, distressed and extremely anxious following the incidents. Mrs X said she believed this was a safeguarding concern and reiterated that she believed B needed constant 1:1 support and supervision at all times while at nursery. Mrs X reiterated this was not being delivered due to inadequate funding.
  3. The Council said it spoke with B’s nursery who decided this was a welfare incident. The Council decided not to complete a safeguarding investigation into Mrs X’s concerns or refer the matter to its Local Authority Designated Officer (LADO) as it decided the incident did not meet the criteria. The Council accepts it did not update Mrs X of its actions when considering her concerns.
  4. The Council issued B with his fourth final EHCP in September 2021. This specified B would move to a single early years placement from November 2021. It also amended the funding to specify this.
  5. Mrs X formally complained to the Council in November 2021. She continued to raise her concerns that B’s needs were not being met due to insufficient funding. She also said:
  • She was concerned B had been set no new targets causing a possible deferment to advance to the next school year.
  • Staff were dismissive of her concerns.
  • The Council’s communication was poor, and it failed to provide updates on important issues.
  • The Council had not provided a response to her concerns about why it had included funding on his plan if there was no requirement to do so.
  1. The Council responded to Mrs X in late December 2021. It apologised and said Mrs X had received a less than adequate service. It also said it had failed to meet its statutory duties and recommended a payment of £750 in acknowledgement of this failure and for the confusion it had caused to her. It also said:
  • Mrs X had received conflicting and confusing advice about the allocation of funding to support B’s needs.
  • It had not provided Mrs X with sufficient funding information.
  • More could have been done to secure B’s provision while he was at nursery.
  • Mrs X should raise complaints about her safeguarding concerns directly with the nursery as the incident had happened there.
  • It apologised for the delay in dealing with her complaint and for poor communication.
  1. Mrs X remained dissatisfied with the Council’s response. In January 2022 she refused its offer of £750. She said this did not cover the impact of the Council’s failure on B’s health or development or the distress this had caused to her family.
  2. The Council issued B with his fifth final EHCP in February 2022. This updated B’s funding to show the specific amounts it would pay to B’s school.
  3. The Council reconsidered Mrs X’s complaint. It replied to her in March 2022 and apologised for the time it had taken to investigate. In response the Council:
  • Partially upheld Mrs X’s complaint about communication and recognised it had not kept her informed of the Council’s actions when she raised concerns about B’s safety while at nursery.
  • Upheld her complaint that it had not provided adequate information on early years funding. Following Mrs X’s concerns, it had set up a working group to make recommendations about how funding arrangements could be improved.
  • Partially upheld Mrs X’s complaint about additional costs. It recognised it could have taken a ‘broad spectrum’ approach to minimise additional costs to parents.
  • Said it was not within its remit to provide additional funding to support childcare beyond what was currently in place.
  • Partially upheld Mrs X’s complaint about communication with staff. However, it could not corroborate Mrs X’s complaint about specific conversations as these were not recorded.
  • Upheld Mrs X’s complaint its record keeping had been inconsistent and said it would review its systems.
  • Requested staff to review B’s current presentation in terms of his anxiety, speech and language and engagement within the school.
  • Arranged to speak with the managers about Mrs X’s experience to provide direct feedback to persons raising concerns.
  1. Mrs X remained dissatisfied and complained to the Ombudsman in March 2022.
  2. The Council completed B’s annual review in April 2022. Mrs X was also in attendance.
  3. The Council issued B with his sixth final and current EHCP in July 2022.
  4. The Council in its response to my enquiries said Mrs X was satisfied with B’s current placement and it was content B was making progress. It acknowledged it had apologised to Mrs X and recognised better communication may have helped Mrs X understand the issues surrounding funding were not directly linked to provision. It also said:
  • B’s funding had been in line with the Council’s inclusion funding offer.
  • Mrs X had been advised of additional funding for working families.
  • It was working to improve the service to better support parents.
  • It had reconsidered its first response to Mrs X and said upon reviewing its notes it could not find evidence it had failed in its statutory duties.
  • B’s provision had not been missed or delayed. His SALT provision had been delivered online.
  • It recognised it had not held B’s first review within the statutory time limits.
  • It was satisfied it had considered Mrs X’s concerns into B’s safety at nursery.
  • There had been no missed opportunities relating to the funding of B’s EHCPs.
  • Over the course of the current academic year, it would review the package of financial and specialist advice provided for each child and each setting.
  • A whole service training event focusing on communication had taken place.

Analysis

Funding

  1. I appreciate Mrs X believed the Council did not fund B’s provision correctly. However, it is my view that at the heart of this complaint is a difference of opinion between Mrs X and the Council about B’s required level of support and supervision. Mrs X said B required 1:1 support and supervision at all times. I have reviewed B’s EHCPs which all specify he required ‘frequent opportunities for 1:1 structured teaching.’ However, I have seen no evidence B’s provision was intended to include 1:1 supervision at all times. If Mrs X believed the provision in B’s EHCP was inadequate and not meeting his needs, she could have appealed to the SEND tribunal. I have not investigated this matter as any disagreement about the content of an EHCP is a matter for the SEND tribunal to decide.
  2. Mrs X consistently raised concerns the Council had failed to fund B’s provision correctly. The Council included B’s specific funding amounts in his plan to aid transparency. However, this caused Mrs X to question whether the Council was funding B’s provision correctly. It is my view Mrs B felt the funding was inadequate due to her belief B needed 1:1 support at all times. As stated above, B’s plan does not set out 1:1 at all times as part of section F. Therefore, I could not find fault with the Council for failing to fund or provide provision that is not contained in his plan.

Missed SLT Provision

  1. Mrs X has supplied evidence B did not have access to his entitled SLT provision between May 2020 and March 2021. The Council in its first complaint response accepted it could have done more to ensure B’s provision was delivered. However, it did not specify what provision B had missed. In its response to my questions, the Council said it had reinvestigated and found B had not missed provision, however, it accepted that his SLT had been delivered virtually rather than face to face. Mrs X disputes this.
  2. The Council’s responses are confusing and its records are unclear. Therefore, based on the evidence provided by Mrs X, I find the Council was at fault for failing to provide B’s SLT provision between May 2020 and March 2021. I am mindful this period encompasses the Coronavirus Act, and have seen no evidence of the Council making reasonable endeavours to provide B with provision between 1 May and 31 July 2020. Following this time period the Council had an absolute duty to provide B with his SLT, it did not do this until March 2021. This caused B to miss his entitled provision and caused Mrs X distress, frustration and put her to the time and trouble of complaining. I have made recommendations to address the injustice caused to Mrs X.

Failure to Conduct a Review

  1. The SEN Code of Practice says Councils should consider reviewing an EHCP for a child under five at least every three to six months to ensure provision continues to be appropriate. Such reviews should complement the duty to carry out a review at least annually.
  2. The Council acknowledged it should have completed a review within three to six months of issuing B’s first EHCP. It did not do this and gave no good reason for not doing so. This was fault. If the review had been conducted within the timeframe suggested in the Code, it would have given Mrs X the chance to raise her concerns that B was not receiving his SLT provision or 1:1 support. The failure to hold the review on time resulted in delay in addressing Mrs X’s concerns, causing her frustration, and put her to the time and trouble of pursuing her complaint.

Safeguarding Concerns

  1. I am satisfied the Council properly considered Mrs X’s concerns regarding the safety of B while he was at nursery. It spoke to the nursery, considered Mrs X’s concerns but decided this was a welfare issue rather than a safeguarding allegation. The Council has also shown it had reasons to believe Mrs X’s concerns did not meet the threshold for a formal safeguarding investigation or a referral to the LADO. Therefore, I do not find fault with how the Council considered and decided Mrs X’s concerns.
  2. However, the Council has acknowledged it did not inform Mrs X of the actions it had taken when looking into her concerns. This was fault. Mrs X had a reasonable expectation the Council would advise her of what actions it had taken to deal with her concerns. This caused Mrs X to lose confidence in the Council’s ability to safeguard her son and put her to the time and trouble of complaining to us. The Council has said it completed a whole service training event focusing on communication. This is something that I would have recommended.

The Council’s Responses

  1. The Council’s responses to Mrs X’s complaint and my enquiries are inconsistent. In its first two responses the Council apologised to Mrs X for a less than adequate standard of service, for failure to communicate effectively or provide updates regarding Mrs X’s concerns about B’s safety. It also apologised for failing to provide adequate information on funding, for failing to keep consistent records, and for delay in replying to her complaints. It offered Mrs X £750 for B’s missed provision and for failing to meet its statutory duties. However, in its response to my enquiries it said it had reconsidered its earlier offer and could not find records or notes to support its earlier position that it had failed to deliver provision or adhere to its statutory duties. However, we have found the Council failed to provide B with provision, and therefore applying our guidance on remedies the Council’s offer is not an adequate remedy to address the injustice caused and I have made further recommendations to address this.
  2. Upon reviewing all the material, I agree with the Council’s first findings that overall, it provided a less than adequate service to Mrs X. I find the Council was at fault for failing to adhere to the time frames suggested in the code when conducting its review of B’s EHCP. I also find fault with the Council for failure to provide consistent record keeping, poor information sharing and poor communication with Mrs X. This caused her confusion, frustration and put her to the time and trouble of complaining.

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Agreed action

  1. By the 20 February 2023 the Council will:
  • Pay Mrs X £250 for the period 1 May 2020 to 31 July 2020 for uncertainty.
  • Pay Mrs X the sum of £1600 (for the benefit of B’s education) for loss of provision for the period August 2020 to March 2021. (£200 a month in line with our guidance on remedies)
  • Pay Mrs X £200 for causing confusion, frustration and putting her to the time and trouble of complaining.
  • Share this decision with staff dealing with EHCPs and SEN to remind them of the need to keep detailed, accurate and up to date records.
  1. The Council should provide us with evidence it has complied with the above actions.

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Final decision

  1. I find the Council was at fault for failing to provide B with his entitled SLT provision. I also find fault with the Council for failing to adhere to timeframes as suggested in the code when reviewing B’s EHCP. The Council was also at fault for poor record keeping and for failure to properly communicate with Mrs X and keep her updated about its actions. This caused her to lose confidence in the Council, causing frustration, confusion and putting her to the time and trouble of complaining. I have not investigated Mrs X’s complaint about the provision as specified in B’s EHCP as she had the right to appeal to the SEND tribunal. I have not found fault with the Council for how it considered Mrs X’s concerns about the safeguarding of her son, B. The Council has agreed to my recommendations to remedy the injustice caused to Mrs X.

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Investigator's decision on behalf of the Ombudsman

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