The problems faced by families of SEND children as a result of the council's failure to set up EHCPs can be revealed in an analysis of a surge in complaints to local government ombudsmen.
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SEND complaints to local government and social care ombudsmen have almost tripled in the past five years, from 509 in 2018-19 to 1,435 so far this financial year.
94% of complaints investigated were upheld. This is an increase from 85% five years ago.
The Independent Ombudsman (LGSCO) investigates complaints from parents about the council's administrative actions, makes recommendations and can ask the council to pay compensation.
school week Analysis of 350 SEND complaints made between July and January revealed the widespread pain and trauma felt by families as a result of council failures.
In one case, the whole family needed counseling as a “direct result” of the council delaying the assessment of their daughter’s education, health and care plan (EHCP).
Other pupils have been left without education for up to two years, with parents spending thousands of pounds on tutoring to prevent their children falling behind.
In total, the council had to pay more than £716,000 to families over the failures in just six months. This means you've likely paid out millions of dollars in recent years.
Sharon Chappell, assistant ombudsman, told Schools Week that SEND now accounts for 40% of all investigated cases, which is much wider and also includes housing and highways.
As a result, the threshold had to be raised, meaning only more serious cases would be investigated.
“These are all symptoms of a system in complete crisis,” Chappell warned.
The ‘unfairness’ of delaying education plans
Delays in issuing EHCPs were the biggest problem, with council failures found in two-thirds of the cases we analyzed.
National data shows that only 47.7% of plans were issued last year within the legal 20-week limit. In some councils the figure was as low as 3%.
Last August, the Ombudsman found that it took Bromley Council 13 months to issue a final EHCP, which left the child out of education. The child's mother said she quit her job because of her stress.
The ombudsman said this was a “significant injustice” and told the council to pay the family £4,000.
In another case, the Ombudsman ruled that if Devon Council had issued an EHCP for an autistic child in time, rather than six months later, it “would have helped” the pupil return to school earlier.
In a third case, Cambridgeshire apologized and paid £5,500 almost 20 months after announcing new plans as part of its annual review of a child.
Wandsworth Council has come under fire for failing to support the mother moving EHCP to a new council area. This means they have to make the two-hour journey to and from their child's primary school.
The failure put the boy at increased risk of seizures because he was too tired.
Geoff Barton, general secretary of the ASCL School Leaders Association, said families were “waiting too long” for support and schools “often do not have the funding or staff to fill those gaps in the meantime”.
He added: “We have often missed the opportunity to address these needs at an early stage until supply is complete.”
‘Significant’ shortage of psychologists
The main reason for the delay in almost 20 cases was the lack of educational psychologists (EPs) who were required to provide input into the children's needs assessments.
LGSCO sounded the alarm last month, warning that the nationwide EP shortage was having a “significant impact.”
A Surrey family needed counseling amid a nine-month delay in completing their EP report.
Since July, the ombudsman has classified 28 complaints made against Surrey over the issue as 'service failures'. The council apologized and said it was “regrettable” for the delay.
We have introduced a temporary policy to allow parents to commission confidential EP reports. However, the council will reimburse costs up to £925 if it “meets the expected requirements” and no further council expert advice is required.
The understaffed commission told the ombudsman it was turning to private organizations to evaluate EPs.
Councils are expected to spend around £40 million on this this year, according to research by the Association of Educational Psychology.
“This is not a solution that works now or in the long term,” the organization added. They called for more government funding for training.
lost school days
Since July, almost three in 10 cases involved children missing out on some form of education.
Inspectors found that a primary school age child in Gloucestershire suffered a “significant loss” of educational provision, including being “practically out of class” for almost two years.
The boy's mother said she had spent £4,000 on alternative arrangements, tutoring and personal assessments. Her council had to pay her £8,000 after her September conviction.
The largest payout of £14,700 came from North Northamptonshire Council after a teenage girl was left without education for two years, causing “distress and frustration” for all family members.
Several councils have also been criticized for failing to comply with or “failing to comply” with Section 19 of the Education Act, which requires “arrangements” for “appropriate education” for sick or excluded school-age children.
The provision must be full-time unless it is deemed not to be in the best interests of the child.
‘False’ legal understanding
The Ombudsman's 2022 report reminded that it was the duty of parliament to make this provision, not the duty of schools.
But Bromley has been criticized for a “flawed” legal understanding of his responsibilities in two separate cases described as “systemic problems”.
Southwark mistakenly assumed that schools were responsible for educating children. The council subsequently apologized and made changes.
Stone King's attorney, Elizabeth Fortin, said more schools should step in and notify Congress that they have a duty to make educational arrangements.
This is often where the school “does not believe it can keep that student or other students safe” on site. Reasons include acts of self-harm or threats of suicide by students, she said.
But some councils are wrongly “opposing” what they claim is an informal exclusion, Fortin added.
Chappell said the ombudsman was also looking into issues with schools misusing “temporary exclusions and part-time timetables”, but did not have the power to investigate.
'Difficult decision'
The Ombudsman's budget has been cut by almost 40%. That means cases now have to meet a higher standard to warrant an investigation, Chappell said. This happens across all areas, not just SEND.
“This is not something we necessarily feel comfortable with, and it doesn’t fit with our values. But we must make difficult decisions about the resources available to us. “We’re sending people out on cases that we might have investigated historically.”
An LGSCO spokesperson added: “We are increasingly focusing on complaints that affect more people than simply the person making the complaint, or have long-term implications and the most serious injustices.”
“This means that ‘borderline’ cases of limited unfairness may now not be investigated. However, as the severity of the deficiencies found in SEND cases grows, we are still investigating a significant proportion of these.”
In the government's plan to improve SEND and AP, he pledged, “Let's look at LGSCO's role in reforming the SEND system.” The ombudsman has called for greater powers to investigate complaints against schools.
Chappell said the council was “really struggling” with a surge in requests, appeals and complaints about EHCPs.
A report this week from the Local Government Information Unit found that more than half of the councils sampled were likely to declare effective bankruptcy within the next five years.
Almost three quarters of councils said children's services and education, including SEND, were under the greatest pressure in the short term.
The government is reforming some elements of the SEND system, but most changes are unlikely to be rolled out until at least 2026.
“Whatever the political makeup is likely to be as we approach a general election, the government needs to step forward with a greater sense of urgency,” Barton said.