Ombudsman - SEN families face 'disproportionate burden'

The Local Government and Social Care Ombudsman (LGO) has released a report concerning its investigation into the first 100 complaints it has received about Education Health and Care Plans (EHCPs).

The Ombudsman’s covering article is entitled “disproportionate burden”. The title alone gives an indication of the findings that the Ombudsman has reached. It does not make for promising reading.

Disproportionate rate of complaints

Plainly, local authorities are not discharging their special educational needs functions properly.

The most telling, and crucial headline figure is that 80% of complaints that have been received by the Ombudsman are upheld in respect of EHCPs. The LGO upholds, on average, 53% of complaints. That indicates that the way in which local authorities are dealing with EHCPs is disproportionately flawed. This echoes the fact that around 85% of appeals to the Special Educational Needs and Disability tribunal (SENDIST) are successful. 

The Ombudsman can consider complaints regarding “maladministration”. This essentially means a complaint against a local authority for failing to comply with deadlines, or failing to follow the correct process in reaching a decision.

The Ombudsman cannot look into the merits of a particular decision. As such, it cannot look at complaints about the content of an EHCP, but it can consider complaints where the EHCP took too long to prepare, or the local authority failed to secure the correct advice in preparing the EHCP. An 80% ‘success’ rate for complaints is astoundingly bad.

As the Ombudsman does not typically engage in complaints which require ‘interpretation’ of legal duties, because that is really for the SENDIST, it means that local authorities are unequivocally failing to comply with clear duties.

Local authorities failing those who are already struggling

Following this report, Mr King, the Local Government and Social Care Ombudsman has said,

“When councils get things wrong it places a disproportionate burden on families already struggling with caring and support ...  We issued a report in March 2014, highlighting the shortcomings which needed to be addressed ... Regrettably, our first 100 investigations show this has not happened.”

This very critical verdict certainly reflects our experience, and the experience of all families we support with securing special educational needs support. The system is simply not working. The proliferation of myths, misinformation and poor practice seems to be increasing. Of further concern is the constant failure by local authorities to comply with deadlines. Alternatively, where local authorities do comply with deadlines, they do so by simply failing to properly complete their duties. For example, we have recently received a draft EHCP which is absent three crucial expert reports. The local authority recognised that they were not with the EHCP, but cited statutory deadlines as being the reason that the EHCP was written before all expert advice had been received. This is just one example of poor practice we have received this week.

Of further concern is that when the LGO first started looking into EHCPs, in 2015/2016, it received 109 complaints. In 2016/2017 it received 217 complaints. Whilst more learners would have been in receipt of an EHCP by this point, such a rapid increase is worrying.

Most common causes of complaint

The most common issues raised with the LGO have been:

• Delay
• Local authorities not undertaking proper (or any) EHC needs assessments
• Annual Reviews being used as a transition to EHCP, with no notice being given to families
• SEN Officers failing to attend transition to EHCP meetings
• Failure to comply with the statutory deadline to convert from Statement of Special Educational Needs to EHCP
• Leaving consideration of school placement to the last minute
• Failing to properly consider applications for Personal Budgets
• SEN ‘Panels’ causing delay

One of the most interesting points in the Report from the LGO is the issue relating to SEN Panels. Local Authorities typically use a ‘Panel’ to make all key decisions. This includes whether to make an EHCP, what provision to include in an EHCP and what school to name in an EHCP.

Parents can often be worried by the SEN Panel. They are very rarely accessible to parents and, most commonly, no one knows who sits on the SEN Panel. What can be of particular delay, and frustration, is that the SEN Panels may only sit once or twice a month. If the Panel fails to consider a particular child at one meeting, the case has to wait until the next Panel meeting, irrespective of whether it causes unlawful delay.

What does this mean?

It is concerning to see the LGO raise, so openly, significant criticism of the SEN reforms when the Department for Education seems to keep indicating that the reforms are working and that more time is needed for the reforms to ‘bed in’.

Bearing in mind the reforms were intended to create a holisitc system of support, increasing to the age of 25, and a system which encourage open communication between local authorities and familites, this report is very concerning. 

We have to wonder just how much time, money, distress to families and lack of provision needs to happen before any remedial action is properly taken.

The full report from the LGO can be found here.

If you are experiencing difficulties as set out above or otherwise in securing additional support for your child from the Local Authority, then please do not hesitate to contact our specialist education law solicitor team on 02920 291704.