Disabled children “increasingly failed” as nearly 9 in 10 EHCP Ombudsman complaints upheld

Disabled children “increasingly failed” as nearly 9 in 10 EHCP complaints upheld

The Local Government and Social Care Ombudsman, says 87%, or 9 in 10, of complaints about the Education, Health and Care plan process are found in favour of parents, describing it as “exceptional and unprecedented.”

In a new report, Not going to plan? - Education, Health and Care plans two years on, the Ombudsman, Michael King, says children with special educational needs and disabilities are, “increasingly being failed by the system designed to support them.”

The LGSCO describes the rate as “a startling figure”, when it’s set against the uphold rate of 57% across the other categories of public service complaints cases it looks at. The report looks at the common problems the Ombudsman is finding when investigating parents’ concerns.

Serious issues include:

  • Severe delays of up to 90 weeks —that’s almost two years—-and regularly of more than a year
  • Poor planning and anticipation of needs – such as council areas simply without any specialist provision available to them
  • Poor communication and preparation for meetings – including regular stories of non- attendance and no, or insufficient, paperwork submitted
  • Inadequate partnership working – with EHC plans regularly issued without advice from health or social care services
  • Lack of oversight from senior managers – cases ‘drifting’ needlessly and attempts to farm out responsibilities to parents
  • One particularly concerning development over the last two years has been examples seen of councils putting up additional barriers to services in efforts to ration scarce resources.

In 2018-19, the Ombudsman received 45% more complaints than in 2016-17 (315 cases up from 217) and carried out 80% more detailed investigations (126 up from 70).

Mr King says, “...while we’re sympathetic to the severe financial constraints councils tell us they are working under, we can never accept this as an excuse for failing to meet the statutory rights of children.”

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Shocking but not a surprise

Sadly, this does not come as a surprise to us, as virtually every week we share on our social media the latest selection of failings published by the Ombudsman. And let’s not forget, at the heart of every one is a child with SEND not getting the same quality of education as their non-disabled peers—or any education at all.

“The knock-on effect is that many children, often the most vulnerable in society, are not getting the right support at the right time, and this is having a significant impact on their education and attainment.”

Michael King

Indeed, Mr King notes that always the receiving end of these problems are children missing out on the support to which they are entitled, and families left to pick up the pieces. He says distressed parents having to fight the system established to support them often describe it as “a battleground.”

Of course this hasn’t changed since before the reforms but now, as schools struggle under the constraints of austerity, more children are not getting the support they need and many desperate parents are not prepared to accept it.

What’s more worrying is that it’s only a small percentage of parents who feel able to fight the system. We know that of children refused an EHC needs assessment for example, only a small number appeal- even though those who do win 89% of the time. So it stands to reason that of all the potential complaints that parents could make, only a fraction make their way to the LGSCO. Many parents don’t know their rights, don’t feel empowered enough to complain or simply don’t have the energy left after caring for their child and putting food on the table.

Problems across the system

The report contains numerous examples of complaints and the remedies ordered. As well as delays, the range of complaints span the breadth of the system including:

  • The incorrect legal test applied for an EHC needs assessment (indeed one LA in particular turns down 40% of initial requests)
  • Assessments that are not legally compliant
  • Lack of involvement of health and social care - despite social care being part of the same local authority that conducts the plan.
  • Refusal to consider or offer a personal budget as part of a plan
  • Annual reviews of EHCPs being delayed or not happening
  • LAs trying to discontinue or amend plans that were still needed and without involving the family.
  • Lack of involvement of the young person themselves
  • Lack of planning or action to make arrangements to support a young person transitioning to adulthood

This is yet another piece of evidence that the Department of Education can consider in its SEND Review. One more sign that the SEND system is on life support. And yet more clarity that it’s not just money, but culture and leadership that is lacking in LAs up and down the land. What will it take to get it right? There are more reports to come from various quarters, but what else is there to say?

Ask the DfE to answer your questions

In case you missed it yesterday, you can put these questions and more to the Department for Education in our new DfE Q and A we’re running. Read how here.

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What actions does the Ombudsman recommend?

Council failings damage the lives of vulnerable children and their families. Ombudsman rulings order local authorities to take action to remedy their mistakes and make financial reparations to families. But while remedies are good, the damage has been done in lost education for the child or young person and emotional wounds for the whole family whose implications can have an exponential effect.

So the aim of the LGSCO is to make recommendations so that public bodies learn and don’t repeat mistakes. LAs should take the time to read every single report from the Ombudsman and ask - are we guilty of this too?

The report offers a good practice guide for councillors who have a democratic mandate to scrutinise the way councils carry out their functions, should be asking. I’m going to add them here in the hope that parents will forward them to their local councillor wherever they are.

Does the council:

  • have resources and systems in place to meet statutory timescales for EHC assessments and annual reviews?
  • have strong partnerships at a senior level in health, education and social care to jointly commission services for EHC assessments and provision, and to address problems and complaints when they arise?
  • have processes in place to consider joint funding between services and resolve funding disagreements between health, care and education?
  • provide clear guidance to professionals who provide evidence for EHC assessments as to the level of detail and specificity required in their reports to enable SEN officers to draft thorough and legally compliant EHC plans
  • embed complaint systems into any new delivery arrangements and provide clear advice and signposting to families who need to make a complaint?
  • obtain the consent of young people with capacity, when a complaint is raised on their behalf – or empower them to speak up in their own right?
  • provide all relevant officers with training on the law for children and young people with SEN and disabilities?
  • have systems in place to check that provision in an EHC plan has been secured and is being provided to the child or young person?
  • ensure any changes to policies or eligibility criteria are checked by legal advisers to ensure the new service standard is lawful? The LGSCO advises councils to keep to the wording in law and guidance as much as possible to avoid misunderstanding of the legal tests to be applied.
  • ensure Panel decisions are transparent and properly take into account the needs and evidence presented, with clear reasoning recorded? Parents and young people should be able to understand how a decision has been reached.
  • learn lessons from complaints received, including identifying any systemic issues which may affect others?

What else would you suggest? You can download and read the report in full here

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Tania Tirraoro

Founder, CEO at Special Needs Jungle
Founder of Special Needs Jungle. Parent of two young adults with autism. Tania is a member of the Whole School SEND Expert Reference Group for SEND Leadership, the Ofsted SEND Inspections Stakeholders Group, and sits on the Advisory Board of the Royal Holloway, University of London Centre of Gene and Cell Therapy.
She is also an experienced broadcast and print journalist & author. Tania also runs a PR, web & social media consultancy, SocialOro Media. She is a Rare Disease & chronic pain patient advocate with Ehlers Danlos syndrome.
Tania Tirraoro
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