A report by England's local government and social care ombudsman reveals that the number of children denied their legal right to special educational needs support has reached ‘unprecedented levels’.
That conclusion was hinted at in the report’s very title - ‘Not Going to Plan’ - which looked at the problems the ombudsman found when investigating parents' concerns, noting that there had been a spike in complaints with nine out of 10 upheld in 2018-19.
High Court Challenge
The report comes in the wake of families mounting a High Court challenge in June 2019 to the government's funding for special educational needs and disabilities, for which they await a ruling. At the heart of their High Court challenge is whether central government failed to adequately fund the, generally welcomed, reforms they introduced.
A National Audit Office (NAO) report in September this year also suggested that insufficient funding and severely stretched council budgets left pupils with special education needs and disabilities (SEND) without the support they need. Councils forced to use ringfenced school reserves (which fell from £1.07 billion in 2014-15 to £144 million at the start of 2018-19) to accommodate increased SEN expenditure have been warned by the NAO that this is not a ‘sustainable approach’
Local Authorities putting up barriers
The local government and social care ombudsman, Michael King, also warned that councils are putting up barriers to services in an effort to ration scarce resources, with some families in need of an education, health and care plan (EHCP) facing delays of up to 90 weeks. The ombudsman also cited poor planning and anticipation of needs, as well as poor communication and a lack of preparation ahead of meetings, plus insufficient oversight by senior staff.
Victoria Federico, head of Shoosmiths education law team, commented:
‘It is entirely possible to have sympathy with councils who face severe financial constraints, but it is a false economy as providing the funding to meet the special educational needs will reduce the greater costs of meeting these needs in the future.’
Statutory obligations to assess and produce EHCP
There are statutory deadlines for local authorities completing an assessment and for an EHCP to be produced. An assessment should be carried out within six weeks of the request being made and the overall time for an EHCP being issued should be no longer than 20 weeks. If no plan is issued, parents must be notified within 16 weeks.
Nonetheless Victoria’s experience is that delays and complaints are commonplace even when local authorities are sympathetic or aware of the issues involved. When parents face an obstructive or uncooperative local authority, as was the case with Claire Gerring and her son Oscar Gerring, getting the right SEN support for a child can be a lengthy and emotionally exhausting process.
The advantages of going to the ombudsman
Shoosmiths would always encourage parents to approach the ombudsman if they have a complaint and go through any Local Authority complaints procedure. Generally speaking, these are simple, if somewhat lengthy, processes and while the ombudsman may not be able address the root causes of the complaint itself (although the ombudsman can arrange payment of small amounts of financial compensation) the fact that parents have used these ‘official channels’ will at least add weight to any case that may go to a SEND Tribunal appeal.
‘Complaints through the ombudsman also have the effect of raising awareness of the issue. Putting these families' experiences and the battles they face in the spotlight may ultimately lead to pressure for the improvements to the special needs and disabilities system Mr King says are so obviously required. However, the ombudsman’s suggestion that parents now seem to have to fight the system that was established to support them means that it’s even more important for those parents to obtain expert legal advice and opinion to secure the correct SEN provision.’