Today's parent story is a classic case of a local authority's disregard of the SEND reforms: poor communication and lack of cooperative working across services, resulting in a failure to comply with the law. But what can a parent do when an LA has failed in its legal responsibilities?
Most local authorities get away with delays, bad behaviour and illegal practice because the parent is either too exhausted to follow it up or doesn't know the law or their right to redress in the first place.
One parent wasn't about to take her local authority's unacceptable delay in conducting an assessment for an Education, Health and Care Plan go without challenge. The parent, who would prefer to remain anonymous, has written for SNJ in the hope that more parents will be equipped with the knowledge to hold their own LAs to account for their shortcomings.
My letter of complaint got results
Like every other parent of a child with special educational needs, I have been forced to change from someone who once never used to bother complaining, to a person who cannot and will not put up with being ignored and bullied. A local authority (LA) officer once accused me of “always complaining” only to admit soon afterwards that actually I was right.
My LA, Hampshire, was a pathfinder (pilot) for the current legislation, which was promised to represent a new dawn for children with SEN. However, they don’t seem to have got the memo. They took 38 weeks (instead of 14- this limit has now been changed to 20 weeks) to complete an Education, Health and Care plan needs assessment for my child. They blamed the delay on “Health” not supplying reports when asked, despite the fact that they hadn’t made it clear what reports were needed.
I made a formal complaint, and the LA apologised, but did not admit any responsibility and the delay continued. I contacted Eleanor Wright, solicitor and Co-ordinator of SOS!SEN, a charity which offers help for families of children with SEN. Eleanor assisted with a pre-action letter threatening judicial review proceedings to enforce my child’s rights. This finally spurred the LA into (some) action including obtaining speech and language therapy (SaLT) advice from an expert I nominated, and they finalised the plan at last.
Our troubles were not at an end, as this did not result in them actually supplying the majority of the support set out in section F of the plan. It turned out that the NHS SALT service didn’t approve of my expert’s recommendations and therefore would not comply with them despite the fact that they had been incorporated into the plan. Occupational Therapy and clinical psychology services were not forthcoming either. Again, the County Council's response was simply to keep asking Health and to tell me it wasn’t their fault. So back I went to SOS!SEN for another Judicial Review letter, which finally resulted in the LA agreeing to commission the necessary support from the private sector and remedy their other failures.
Whilst this sorted matters out for the future, my child had been deprived of vitally needed SEN support for several months and I decided to pursue my complaint.
The LGO
I am no stranger to the Local Government Ombudsman (LGO), having unfortunately had to escalate complaints to them on several occasions. I made a two-part complaint:
- Breach of statutory timeframes in finalising the EHCP, resulting in delay in delivering provision to my child; and
- Failure to arrange the provision in Section F of the EHCP
The local authority response to both was essentially that delay was due to failures by Health and they couldn’t do anything about that.
1. Breach of statutory timeframes
The LGO pointed to Regulation 8 of the SEND Regulations 2014, which requires outside bodies to provide information requested by LAs within six weeks and the LA to finalise an EHCP within 20 weeks. He stated:
In my view, this overarching responsibility means that when a body … exceeds the six week time frame, and there is doubt that the body will send the information in the immediate future, the SEN department should commission its own assessment from a private provider and seek to recoup the cost from the CCG.
Therefore, as Health had failed to comply with two deadlines at the beginning and end of December, the LA should have commissioned advice from private providers at the beginning of January to prevent further delay.
2. Failure to make provision in Part F of the EHC Plan
The LGO referred to paragraph 9.76 of the Code:
In cases where health care provision or social care provision is to be treated as special educational provision, ultimate responsibility for ensuring that the provision is made rests with the local authority.
He said that, if there is significant delay or obstruction in sourcing this through the local health Clinical Commissioning Group (CCG) commissioning from the NHS, then:
the Council will have no alternative but to commission from the private sector to ensure provisions specified in section F are in place. It may then ask the CCG to recoup its costs.
3. LGO Recommendations
The LGO calculated the entire period of delay as around nine months, and ordered that the LA:
- Pay compensation;
- Notify the CCG, NHS Trust and other relevant bodies about their concern about health’s failure to fulfil statutory co-operation duties;
- Review arrangements for resolving disagreements between the LA and those bodies;
- Apologise in writing.
This decision will be shared with Ofsted: Hampshire has yet to undergo an Ofsted inspection.
UPDATE: June 2017
The full decision has now been published on the LGO website and you can find it here. I hope parents will find it useful to cite this to LAs, since the excuses produced by HCC in my case are, I understand from SOS!SEN, only too common. I would suggest that as soon as there is any possibility of delay in obtaining reports or services from other services, parents point out this decision to their LA and ask them to commission services privately without delay. And tell them that, if they refuse to do so, you will be following me to the LGO.
Tania is an experienced broadcast and print journalist & author. She also runs a PR, web & social media consultancy, SocialOro Media.
Tania is a rare disease & chronic pain patient advocate with Ehlers Danlos syndrome.
- Ombudsman report says councils are “standing in the way of support” by failing to offer personal budgets during the EHCP process - November 24, 2023
- 10 reasons the Change Programme might fail, by experts from across the SEND sector - October 27, 2023
- For children with SEND and their parents, a compassionate teacher is key - October 20, 2023
Funny how the LGO supports some people but not others. Our experience was vastly different. The law had just changed and the LGO officer simply stated she had ‘referred to the relevant legislation’. Put another way she didn’t know what she was doing. The complaint related to the LA’s failure to implement part 3 of the SSEN (absolute duty) but she said she agreed with the LA’s Investigating Officer that it was unusual for post 16 support to be provided. There was bias in the initial report because she mentioned that the LA were trying to appeal the SENDIST decision for an EHCP to be issued following a Transfer Review. The legal Aid Agency refused to finance a Judicial Review of the LGO decision. So, unless parents have very deep pockets nobody holds LA’s to account. And LA’s like ours have no problem lying through their teeth and creating false paper trails.
I’ve heard mixed reviews of LGOs as well (not specifically to SEN).
Hope you challenged it because for the last almost 3 years, support has been for up to age 25.
https://www.gov.uk/government/publications/send-code-of-practice-0-to-25
Yes, thanks, I did challenge it but got nowhere. Also raised the matter with the solicitor dealing with the YP defence of the LA appeal to the UT as Legal Aid had been granted but (and I know they are busy) the solicitor went very quiet and then we were outside the 3 month JD challenge period. Funny part is that technically our complaint is recorded as Upheld by the LGO – even though the most significant part (failure to arrange SSEN part 3 support) clearly wasn’t. We have long believed (I.e. since 2013) that our LA has a blanket policy of not supporting YP with SEN once they are over 16 in practice but at least this was firmly knocked on the head by the UT Judge who recently dismissed the LA’s appeal.
I am pleased that the OP has had success through the LGO and hope this will reverberate elsewhere. Something really has got to change and people do need to keep challenging poor practice.
I’m sorry to hear your experience with the LGO was not positive. There is a element of luck in which investigator you are allocated, but It may help to look at the role of the Ombudsman in complaints about SEN. The Ombudsman is concerned with process, not with the merits of council decisions taken properly. Investigators have been at pains to explain to me they are ‘not my advocate’. This factsheet may be helpful http://www.lgo.org.uk/make-a-complaint/fact-sheets/education/special-educational-needs
Thanks for your reply – the link is interesting. I don’t think I ever expected the LGO to advocate for me but I did expect them to be impartial and to ensure due process was followed. They weren’t and they didn’t. The investigator
had far more conversations with the LA than with me, accepted at face value
what the LA said, and seemed to think the fact that the LA was trying to
register an appeal with the UT automatically meant they were in the right. The LA appeal was eventually registered but I am pleased to say that the UT Judge dismissed it and he explicitly stated that the ‘…local authorities argument that councils have no duty to educate young people over compulsory school age misunderstands the purpose of the CFA 2014 and its extension of SEN-related rights to young people (as compared with the SEN provisions of the EA 1996)’.
I don’t think the LGO investigator we had actually understood the distinction between a school having a ‘best endeavours’ responsibility to arrange SSEN support (C&F Act section 66) and the LA having an absolute duty to do so (C&F Act section 42, CoP Ch 9 131-132). My complaint was about the LA not about the school and I even drew the LGO’s attention to important and long established SEN case law in this area i.e. R –v- Oxfordshire (1996) and R-v- Hillingdon (1997).
My daughter’s experience has been immensely distressing, a fact made worse by the role of the LA. But at the end of the day we can only try our best, use the procedures in place to challenge poor practice, and hope even when we know deep down it is too late for our own children, that our efforts will at least help other children/young people/parents in the future.
Thanks again for taking the time to respond.
Very, very helpful. I have failed to hold my LA to account for a terrible performance over the last 5 years. It has just had its first combined OFSTED/CQC Inspection and the report is dismal.
Hi there ,
I have been through similar a very similar case , my son missed OT and SLT , but mainly OT for about a year , in addition the LA didn’t finalize my son’s EHCP on time .
There was a ground of dispute for yourcase for you to explore, which is the delay in finalizing the EHCP had prevented you from using your right of appeal on time(1)if you disagreed with the finalized EHCP in sections related to needs and provision there is another ground for argument that your child had been at disadvantage with his education(2). if the you chose to go SEN tribunal and “WON” your case you(based on the delayed EHCP) , the LA would be also liable for the missed session 12 weeks from the date you could use your right of appeal if the EHCP was finalized on time.
excuse the grammar English not my first language I hope its clear though.:-)
This bothers me so much .. I have battling with LA for years .. the unanswered emails and lack support has made me not … bothered at all .. the borough has re address why there still a huge gap between parents and professional .. my borough has changed and my daughther 20..
What I can’t understand is how 3 years after the code of practice and C&F Act were implemented is how things are still so bad. LA’s are clearly not following the law which means the families that do know it and have the energy to can challenge it, while those that don’t understand the law get taken in by these blanket policies LA’s are using. Maybe I feel a bit bitter today as I am in the process of submitting tribunal paperwork for my second child – we were successful with the first one 5 years ago! We then need to look to do it all again for our youngest – where they think we get the time, money and energy to do this as well as working and dealing with 3 children’s very different needs is beyond me!
I think the priciples of the SEND reforms are great, however as all Serious Case Reviews into child deaths highlight, the problem is always around a lack of multi agency working.
In the case of EHCPs it seems health are rarely actively involved whilst social care appear to be occasionally getting involved.
The training and therefore understanding of the reforms for professionals in all EHC areas is poor.
If education are the lead professionals who are being given pots of funding to support implementation of the SEND reforms how much of this is being shared with health and social care colleagues to aid the knowledge of the reforms?
Why is it such continuous, horrendous fighting to simply access education for our children