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Trauma, expense and delays – a SEND system in ‘crisis’

The problems suffered by families of SEND children due to councils’ failures to set up EHCPs can be revealed after an analysis of soaring local government ombudsman complaints.

Schools Week investigates…

SEND complaints to the Local Government and Social Care Ombudsman have nearly tripled over the past five years, from 509 in 2018-19 to 1,435 so far this financial year.

Of the complaints that have been investigated, 94 per cent were upheld – up from 85 per cent five years ago.

The independent ombudsman (LGSCO) investigates complaints from parents about councils’ administrative actions and can set recommendations and request that councils pay compensation.

Schools Week analysis of 350 upheld SEND complaints between July and January reveals widespread distress and trauma felt by families over council failures. 

In one case, the whole family needed counselling as a “direct result” of the council’s delay to assess their daughter for an education, health and care plan (EHCP).

Other pupils have been left without education for up to two years, while parents have spent thousands of pounds on tutoring to prevent their child from falling behind.

In total, councils had to pay more than £716,000 to families over the failures in just six months – meaning they are likely to have paid out millions in recent years.

Sharon Chappell, the assistant ombudsman, told Schools Week that SEND now makes up 40 per cent of cases investigated across their brief, which is much wider and also includes housing and highways.

As a result, they have had to increase thresholds, meaning only the more severe cases are investigated.

“It’s all symptomatic of a system that is in complete crisis,” Chappell warned.

‘Injustice’ of education plan delays

The delay in issuing EHCPs was the leading issue, with council failures found in two-thirds of the cases we analysed.

National data shows that just 47.7 per cent of plans were issued within the 20-week legal limit last year. At some councils the figure was as low as 3 per cent.

In August, the ombudsman found Bromley council took 13 months to issue a final EHCP which led to the child missing out on education. The child’s mother said she was signed off work with stress.

The ombudsman said this was a “significant injustice” and told the council to pay the family £4,000.

Geoff Barton

In another case, the ombudsman ruled that if Devon council had issued an EHCP for a child with autism on time, rather than six months late, “it may have helped reintegrate” the pupil back into school earlier.

In a third case, Cambridgeshire apologised and paid out £5,500 after it was nearly 20 months late issuing new plans as part of annual reviews for one child.

Wandsworth council was criticised for not supporting a mother to transfer over an EHCP into a new council area, meaning they had to make a two-hour journey to and from her child’s primary school.

The failure put the boy at increased risk of seizures because of how tired he was. 

Geoff Barton, general secretary of ASCL school leaders’ union, said families were left “waiting for far too long” for support and schools “often do not have the funding or staff to be able to fill these gaps in the meantime”.

He added: “By the time provision is in place, we have often missed the opportunity to deal with these needs at an early stage.”

‘Significant’ shortage of psychologists

A key reason for the delays in nearly 20 cases was down to a shortage of educational psychologists (EP), who must provide input into a child’s needs assessment.

The LGSCO sounded the alarm over this last month, warning that a national EP shortage was having a “significant impact”.

One family in Surrey needed counselling amid a nine-month delay to produce an EP report.

Since July, the ombudsman has upheld 28 complaints against Surrey on the issue – labelling it a “service failure”. The council apologised and said it “regrets” delays.

It has brought in a temporary policy to allow parents to commission private EP reports. But councils will only reimburse the costs, up to £925, if they “meet the expected requirements” and no further council professional advice is required.

Councils with shortages told the ombudsman that they were commissioning private organisations for EP assessments.

Research by the Association of Educational Psychologists estimates that councils expect to spend an estimated £40 million on it this year.

 “This is not a solution that is working now or for the long term,” the organisation added. It called for more government funding for training.

The lost school years

Nearly three in 10 cases since July involved a child going without education in some form.

Investigators found that a primary school-aged child in Gloucestershire suffered “significant loss” of education provision, with “virtually no teaching in class” for nearly two years.

The child’s mother said she spent £4,000 on alternative provision and a tutor, as well as paying for private assessments. The council had to pay her £8,000 after a ruling in September.

The biggest payout of £14,700 was from North Northamptonshire council after a teenage girl was left without education for two years, causing all family members “distress and frustration”.

Several councils were also criticised for not complying with section 19 of the Education Act which requires them to “make arrangements” for “suitable education” for school-age children who are ill, have been excluded or “otherwise”.

The provision must be full time, unless it is considered not in the child’s best interests.

‘Flawed’ legal understanding

A 2022 report from the ombudsman reminded councils that it was their duty to make this provision, as opposed to the duty of schools.

But Bromley was criticised for its “flawed” legal understanding of its responsibilities in two separate cases, which were described as a “systemic issue”.

Southwark incorrectly thought that the school was responsible for a child’s education. The council has since apologised and made changes.

Elizabeth Fortin, associate solicitor at Stone King, said more schools were having to notify councils that they had an obligation to intervene and make education arrangements.

This is mainly where schools “simply don’t feel they can keep that pupil or other pupils safe” on site. Reasons include self-harming behaviours or a pupil threatening suicide, she said.

But some councils have been wrongly “pushing back”, claiming it is an informal exclusion, Fortin added.

Chappell said the ombudsman also sees issues with schools misusing “temporary exclusions and part-time timetables”, but they have no power to investigate.

‘Difficult decisions’

The ombudsman’s budget has been cut by nearly 40 per cent. This means cases must now meet a higher threshold to warrant investigation, Chappell said. This is happening across all areas, not just SEND.

“It’s not something we necessarily feel comfortable with, and it doesn’t sit well in terms of our values. But we have to make difficult decisions on the resources we have available… we are sending people away on cases we historically probably would have investigated.”

An LGSCO spokesperson added they are “increasingly focusing on complaints that affect more people than just those complaining, or where there is a long-term impact and the most serious injustice.

“This means what might be called ‘borderline’ cases, with limited injustice, may now not be investigated. But with the greater severity of the failings we are finding with SEND cases, we are still investigating a large proportion of these.”

The government’s SEND and AP improvement plan pledged to “look at what the role of the LGSCO should be in a reformed SEND system”. The ombudsman has called for greater powers to investigate complaints about schools.

Chappell said that councils were “really struggling” amid the surge in requests for EHCPs, appeals and complaints.

A report by the Local Government Information Unit this week found that over half of sampled councils were likely to declare effective bankruptcy within the next five years.

Nearly three-quarters of councils said children’s services and education, including SEND, were the greatest short-term pressure.

The government is reforming some elements of the SEND system, but most changes are unlikely to be rolled out until at least 2026.

“The government – of whichever political complexion that is given the likely proximity of a general election – must step up to the plate with a greater sense of urgency,” Barton said.

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