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Special educational needs post-lockdown

How can local council's prepare for the return to school?

Introduction

After the Government’s announcement (22 February 2021) on how children and young people are to return to school, it is important to consider how well prepared councils are to deal with the increased demand for urgent reviews and enhanced SEN provision that this is likely to create.

Similarly, whilst we are all aware of the extra demands that have been placed on the health bodies during this pandemic, where therapies form part of a child or young person’s EHCP, these should have continued remotely or otherwise during lockdown. How well prepared are health bodies to manage complaints where this has not happened and to review these children and young people’s needs as they transition back into school?

Background

The Local Government & Social Care Ombudsman (“LGSCO”) publishes a weekly report of its ‘children and education complaint decisions’, with many of these complaints relating to children with special educational needs. Almost all of these complaints are upheld against local authorities, with councils being required to apologise, pay compensation and review their service provision.

In October 2019, the LGSCO issued a report ‘Not going to plan? – Education, Health and Care plans two years on.' This was a follow up to their 2017 report, which identified that local authorities and health authorities were confused about their duties under the Children and Families Act 2014. Unfortunately, their 2019 report showed no sign of improvement. Complaints were shown to have increased by 45%, LGSCO investigations were up by 80% and the LGSCO was upholding almost nine out of 10 of those investigations (87%). The suggestion from the LGSCO was that the special educational needs system was in crisis.

The reasons identified for the failures were severe delays, poor planning, poor communication, poor partnership working and lack of oversight from senior managers and councils putting up additional barriers to services in efforts to ration scarce resources. The LGSCO also noted that they were increasingly seeing multi-faceted delivery arrangements, with council services or functions being outsourced to third parties, including healthcare trusts.

Only five months after the LGSCO produced this report, the country entered ‘lock-down’, children’s access to school was restricted and education began to be delivered remotely. The council’s statutory duties towards children with SEN were eased. Councils everywhere could have been forgiven for giving a collective sigh of relief at this easing as they were receiving criticism from all areas; Government, LGSCO and Ofsted. However, this ‘easing’ was not granted for long and ended on the 25 September 2020.

Post-lockdown requirements

The impact of the pandemic and of the provision of remote education on children with SEN has yet to be determined, so when these children and young people make the transition back into school (March 2021) councils and health bodies will have to be able to respond quickly and flexibly if they are to avoid conflict and complaints.

Preparation

The Children and Families Act 2014 places a duty on local authorities and ‘partner commissioning bodies’ to put in place joint commissioning arrangements, to plan and jointly commission education, health and care provision for disabled children and those with SEN; to enable partners to make best use of all the resources available in an area to improve outcomes for children and young people in the most efficient, effective, equitable and sustainable way possible. In addition, councils have an obligation to keep SEN provision under review. This applies to both SEN provision for individual children and SEN provision in their area. In carrying out its review of local services, the council must consider the extent to which the provision in its’ area is sufficient to meet the needs of all children and young people. This review process must then be integrated with the joint strategic needs assessment by the local health and wellbeing board.

With all of the changes that have been imposed upon the ‘local area’ and schools in particular during this pandemic, it may be time for councils to conduct such a review to see how demand for SEN provision has changed during this time and to respond accordingly.

Whilst the LSGCO does not have powers to look at what happens inside an educational setting, the LSGCO has reminded councils that if they contract out services, they remain responsible for the quality of any service those contractors provide and for addressing any complaints users of services may have. As the council is the lead authority for the ’local area’ this will cover SEN provision from any provider. This accountability remains irrespective of whether the provider is a private company, a third sector organisation or another publicly-funded body.

The cost of complaints

Complaints not only damage the council’s reputation, they can also be costly. The following are recent examples of the LGSCO investigation decisions:

LGSCO reference Finding Award
19 003 959 The council failed to provide a suitable education and failed to meet SEN as set out in the EHCP. The council also failed to amend the EHCP within statutory timescales The council agreed to pay a total of £6,900 to use for X’s benefit and £500 for distress and uncertainty
19 008 029 The council was at fault for delay in issuing an amended EHCP, delay in providing equipment, failure to ensure SLT provision delivered, failure to identify specialist dyslexia tutor The council agreed to pay £1,000

18 014 794

The council did not follow statutory timescales, did not obtain reports in time and did not deal with Mrs B’s safeguarding complaint properly. Mrs B incurred costs for independent reports, did not receive a response to her complaint. Her appeal was delayed and she missed support

£200 for time and trouble

£600 for delay

£1050 for missed provision and independent reports

19 010 683 The council was at fault for failing to review Y’s EHC plan, delaying arranging a new school place and in how it dealt with the complaint The council has agreed to pay a financial remedy and to issue an amended EHC plan without delay
19 018 395 The council was at fault in its handling of X’s post- 16 transfer. The council also failed to make SLT and OT provision for the autumn term 2019 The council agreed to take the action recommended by the LGSCO
19 012 432

The council delayed transferring Mr B’s daughter’s statement to an EHC plan, delayed carrying out assessments, delayed carrying out an annual review, failed to share the EHC plan or information about high needs funding with the college, delayed completing a social care assessment and delayed responding to a complaint. Mr B’s daughter missed out on provision from 2017-2019

The council has agreed to make an apology and provide financial payment

Conclusion

A year on from the start of the pandemic we will now start seeing LGSCO investigation decisions coming through that relate to concerns raised during ‘lockdown’ and these decisions will act as a barometer of how well services have responded. If the system was in crisis in 2019, it will be interesting to see how it has fared during this unprecedented time and if improvements have not been made, how the regulators and the Government will respond.

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