SEND Accountability, special needs

Ombudsman calls for wider powers to investigate SEND and exclusions in all schools

The Local Government Ombudsman has recommended extending its jurisdiction to cover how schools deliver provision to all children with SEND, whether or not they have a statutory support plan. 

The Ombudsman’s Triennial Review, published yesterday, sets out how it sees its role in local authority accountability and redress for next three years. For our purposes, we’re looking at its recommendations for education, as you would expect. 

If you aren't sure what the LGSCO is or what it can do, read their article on SNJ here

The Ombudsman and SEND

At present, parents can complain to the LGSCO if their local authority fails to appropriately deal with a complaint about an application, assessment or delivery of an Education, Health and Care Plan.

However, the LGSCO cannot investigate schools’ delivery of SEND provision, which leaves thousands of families with nowhere to turn, especially when a child doesn’t have an EHCP. 

The review’s recommendations have been created following consultation with representatives from central and local government, and the social care and education sectors. I checked who this included and was told Ofsted and the DfE’s SEND team were consulted and they also have ongoing engagement with the DfE, the SEND Tribunal and the ADCS.

The right to an LGSCO investigation of complaints not resolved by school 

The LGSCO previously had jurisdiction to investigate unresolved complaints about a school’s head teacher and its governing body under The Apprenticeships, Skills, Children and Learning Act 2009. This included off-rolling of pupils with SEND, and a DfE evaluation found this expansion of jurisdiction “helped to improve local education services by promoting good practice.”

This legislation was then repealed, but the Ombudsman says re-enacting these parts of it would “strengthen accountability, increase satisfaction, and drive improvement in schools… This would allow all complaints about the welfare and wellbeing of children and young people in schools, unofficial exclusions, and alternative provision to be considered.” 

Let the Ombudsman investigate a school’s actions over all SEND provision

“The reforms introduced by the Children and Families Act 2014 were intended to provide more integrated, person centred support for children and young people with SEND across education, health and social care. However, the complexity of the current system, combined with constraints on our existing jurisdiction, can make it difficult for parents and carers to access redress should something go wrong. In addition to it not being clear which bodies have responsibility for certain areas, there are definite gaps in redress. For example, we cannot look at the actions of the school in fulfilling an EHC plan or concerns around SEND provision for children without an EHC plan.”

LGSCO

The Ombudsman has long flagged up issues with local authority SEND provision. Every week publishes decisions on long-running complaints from families where children have been left with poor, or no education for sometimes years. Often, its decision is that it cannot investigate because the matter is out of its jurisdiction. 

In the last year, the LGSCO found fault in more than three-quarters (77%) of complaints it investigated about Education and Children’s Services. A high proportion of involved complaints from families of learners with SEND who either have or were applying for, an EHCP. 

“This is consistently a high area of concern for us, with families sometimes having no route for redress, and a large amount of confusion about who to go to and when.”

LGSCO

The LGSCO cited the findings of the 2019 SEND Inquiry report by the Education Select Committee that the DfE, “should, at the earliest opportunity, bring forward legislative proposals to allow the Ombudsman to consider what takes place within a school, rather than - in his words - only being able to look at “everything up to the school gate”. 

Parents of school-age children seek an EHC Needs Assessment because their child’s SEND needs aren’t being met by the school. The Ombudsman thinks if it had powers to investigate a lack of provision at the lower SEN Support level, it could cut the number of parents compelled to apply for an assessment in the first place.

In other words, increasing access to redress by allowing the Ombudsman to investigate and remedy all aspects of SEND provision that can’t be appealed at the SEND Tribunal, including children who don’t have an EHCP.

“…the legal protection afforded by a plan, and the lack of accountability and redress for those children and young people who fall below the threshold for a plan, makes it more likely parents and carers will ask for assessments and challenge any refusal. We could help address that pressure if we were given the ability to hold schools and academies to account when they fail to meet the needs of those children with SEND, but without an EHC plan.”

LGSCO

But I can see a few issues…

While extending the legislation is a good idea, I’m not convinced it will cut the number of EHCP assessments applied for. This is because by the time a complaint has meandered its way through the process stages all the way to the LGSCO and been investigated, over a year is likely to have gone by – and that’s a year without the right support, that could have been remedied faster by applying for an EHCNA to start off with. 

An EHC Needs Assessment (EHCNA) will discover what the needs are and it is something parents have the ability to get started straight away. A parent who has the capacity to take a complaint all the way to the Ombudsman is just as likely to realise this as I am and simply apply for an EHC needs assessment instead--or as well.

So, the Ombudsman should decide if a complaint about SEN Support (or lack thereof) can go forward while an EHCNA is underway. This is because if the child is refused an assessment or a plan, they will still need their SEND needs supported. Having to wait for the outcome before being able to complain to the LGSCO would be an even longer wait without the right provision.  

The other issue is, how do you know what SEND provision should or shouldn’t be put into place if you don’t know what their issues are and you don’t have any experience as a parent? Those who complain to the Ombudsman have endured years of stress and had to educate themselves about SEND and process before finally having enough.

However, that said, it would still be a very useful external tool with which to threaten a non-complaint school. IPSEA’s CEO, Ali Fiddy, thinks it's much needed: 

“There are numerous gaps in the SEND system where accountability mechanisms should be. The absence of a remedy for families whose children aren’t getting the support they need in school is a particularly acute example. Parents currently don’t have anyone to complain to, other than the school itself, if their child has been informally excluded, SEN Support isn’t being provided or the provision in an EHC plan isn’t being delivered in the way it should.
“IPSEA told the Education Select Committee back in 2018 that parents need a remedy at this level, and we were pleased that the committee recommended in their report that the Ombudsman’s jurisdiction should be extended to enable it to investigate complaints about schools. We are still no further forward, but it’s more vital now than ever.”

Ali Fiddy, CEO, IPSEA

Cut the inconsistency for admissions and exclusions with academies and free schools

The current inconsistency is that academies and free schools escape the censure maintained schools do when it comes to complaints over school admissions, admission appeals and exclusion appeals 

The Ombudsman can look into school admission complaints that have gone through the Admission Authority appeals system. But academies, free schools and trusts come under the authority of the Education and Skills Funding Agency (ESFA) and are out of scope of the LGSCO

“This has inadvertently created a needlessly fragmented and confusing situation for parents who wish to challenge an admissions decision.” 

LGSCO

So, even if an academy asks the LA to handle the appeal for it, if it is unsuccessful the parent cannot complain about how it was conducted in the same way they could if the school had been an LA-run school. They have to make a separate complaint to the ESFA which is:

  • not independent of government, 
  • can’t compel a school to cooperate with an investigation,
  • cannot issue public reports if there is a failure to comply with recommendations. 

This has “has left a fragmented system and gaps in redress…[that] can cause significant delays, leave parents confused as to which body to complain to, lead to double handling of complaints, as well as inconsistent outcomes.”

The LGSCO now wants its powers to be expanded to include academies and free schools and says it would have the added benefit that the complaints information could also “help to improve the school admissions and exclusions system as a whole”. 

The review isn’t just about schools, so take a look at the whole thing in detail here

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Tania Tirraoro
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