Written evidence submitted by LGSCO
We welcome the opportunity to respond to the Committee’s call for evidence and provide our insight into the issues facing the SEND system, as illustrated by the significantly increasing complaints we have received following the introduction of EHC Plans.
Our focus in this response will be to highlight the vital role the Ombudsman plays in providing redress for people affected by poor administration and wider service failures. We will also show how we use the lessons from individual complaints to promote wider learning in the sector.
We also want to take the opportunity to explain the limits of our role, our relationship with the SEND Tribunal, and how our powers should be extended to improve accountability and redress in a new SEND system.
The LGSCO is the statutory and independent body for complaints about councils in England. We consider at a broad range of complaints relating to children’s and education services, including complaints about councils’ roles in assessing and supporting children with special educational needs; the support provided for children unable to access education due to medical or other reasons; home-to-school transport provision for children with additional needs; and social care support for children with disabilities.
Where we identify a council has acted with fault, and this led to an injustice, we make recommendations with the dual aim of remedying the injustice caused to the individuals involved and trying to prevent reoccurrence for others.
The remedies we recommend for individual injustice aim, where possible, to put the individual back in the position they would have been in had the fault not occurred. Financial remedies are recommended when it is not possible for lost provision to be made up in alternative ways. These are based on a termly tariff, that takes account of aggravating and mitigating factors.
Where we identify systemic issues, potentially affecting others, we can also make service improvement recommendations. We do so in a proportionate and pragmatic manner. Where we are aware a council already has an action plan in place as a result oversight from elsewhere (such as DfE, or Ofsted), we will consider if the issues we have identified are already in the process of being addressed by way of those plans. If so, we would not expect a council to duplicate action being taken. We may instead ask for an update on progress against the objectives in the plan, or request progress reports are provided to a relevant committee of the council to ensure democratic oversight and accountability.
We track compliance with all the recommendations we make. Although we do not have the power to make binding recommendations, we will take further action is there is a failure to comply. However, we see compliance with our recommendations in the overwhelming majority of cases, with satisfactory evidence of compliance provided in over 99% of all our recommendations.
We publish data about every council on our website, in the form of an interactive map on our website. This provides information about the number of cases we have upheld, any landmark public-interest reports, details of our recommendations for service improvements remedies, and copies of our annual letters to councils about their complaints performance.
Our casework is currently dominated by complaints about special educational needs provision and the actions of schools. These complaints made up 26% of the complaints received by the Ombudsman in 2023-24 and were 42% of all the cases we upheld.
In the area of special educational needs and disabilities, we find fault in 92% of the cases we investigate and the numbers are increasing rapidly. A situation where we are upholding nearly 100% of complaints cannot be one that is working for children and their families. We know that serious difficulties are faced by families and young people with special educational needs and disabilities in navigating the system and that too often they are being failed by it.
The key issues we see are failures by councils to carry out Education, Health and Care (EHC) Plan assessments and reviews in good time and the failure to provide the support stated in an EHC Plan once a child has one. In 2023-24 only 50.3% of new EHC plans were issued within 20 weeks. These issues are often compounded by parents not receiving adequate information about what was happening to provide for their child’s needs, as well as workforce pressures on the availability of educational psychologists.
We regularly present these statistics and our findings with the DfE. We also share all upheld Education and Children’s Services decisions with Ofsted, who use the intelligence from our decisions help inform inspection decisions and priorities. Our work provides important insights into the lived-experience of people accessing the SEN system, that is distinct from the inspectorate process, and which helps inform and support system regulators.
Cases investigated by our joint working team (staffed by investigators from LGSCO and PHSO) which deals with cases where health, education and/or social care issues are not separable. We regularly liaise with NHS England to discuss and share the learning from those cases.
Over the last five years we have also carried out a significantly increasing number of detailed investigations into complaints relating to alternative educational provision.
Typically, these are complaints relating to children who are unable to access mainstream education, and where the local council has failed to put suitable alternative provision in place. In many of these cases, the complaints relate to children with Education, Health, and Care Plans, or children awaiting outcomes of statutory assessments of special educational needs.
The data also track a notable rise in the volume of investigations we uphold in this area. By this, it means we have found evidence of fault or service failure in the actions of the local authority, which has caused injustice to the child and/or wider family unit.
Reporting year | Number of detailed investigations completed about alternative education | Number of investigations upheld | Upheld investigations as % of total investigations |
19/20 | 53 | 49 | 89% |
20/21 | 52 | 46 | 85% |
21/22 | 40 | 37 | 92.5% |
22/23 | 107 | 99 | 92% |
23/24 | 292 | 273 | 93% |
Our current role is to look at the actions of a local authority in producing and monitoring the delivery of an EHC Plan but there are thousands of children and young people who do not meet the threshold for such a plan but would otherwise benefit from the additional support to reach their potential which schools are required to provide. We cannot currently consider the actions of a school in this regard for which the only remedy after a complaint to the school, and the council if the school is maintained, is to complain to the Department for Education. Giving LGSCO the ability to look at the actions of all state funded schools to identify and provide additional support where it is needed, as well as fulfilling EHC Plan requirements and key decisions around admissions and exclusions, would simplify the system for parents, schools and local authorities. It would bring accountability and also provide a more comprehensive overview of what is and is not working in respect of the provision of education services. This recommendation for policy change is set out in our 2024 Triennial Review, which has been shared with the Department for Education and our sponsor department MHCLG.
We consider there is a clear and evidenced need to provide LGSCO with the ability to investigate specific issues within state-funded schools, including actions of a school to fulfil Education, Health and Care (EHC) Plan requirements. This would be focused not on the day-to-day operational running of schools, but would focus the actions of a school to fulfil EHC Plan requirements or provide support to those children and young people with additional learning needs who do not meet the threshold for a plan. We also see an important role in us looking at the key decisions around admissions and exclusions, which disproportionately affect children with SEN.
Current complaints mechanisms in relation to state schools are piecemeal, convoluted, complex, and lack any effective independent complaint mechanisms. This leads to a lack of access to redress and problems going unsolved. We could take on jurisdiction to investigate complaints of injustice arising from an act of the governing body of any state school or an exercise of, or failure to exercise, a prescribed function of the headteacher of a school in relation to EHC Plans, additional needs support, admissions and exclusions.
These reforms would strengthen accountability, increase satisfaction, and drive improvement in schools and in the Special Educational Needs and Disabilities system.
We have long held the view that our jurisdiction should be extended to enable us to consider the actions of schools and academies in SEND cases (to include SEND support as well as those with an EHC Plan). This would allow a holistic approach to be taken and the actions of all involved to be examined and investigated. This proposal has been endorsed and supported by previous Select Committee reports including Special educational needs and disabilities - Education Committee - House of Commons.
This approach has previously been trialled as a pilot involving the extension of our jurisdiction to enable us to consider complaints about schools in 2010-2012. An independent evaluation of the pilot by Ecorys confirmed our effectiveness, although any expansion to our jurisdiction would require commensurate resources. While we recognise the pressures on schools around the inspection system, it is an omission there is currently no independent redress mechanism for parents to access. Addressing this gap would ensure that concerns can be pursued in real-time, with redress provided for individuals, and relevant issues fed-back to the inspectorate to help inform future intervention.
Our jurisdiction is complementary and distinct from the SEND Tribunal. In simple terms, the Ombudsman looks at complaints about administrative faults that have caused injustice. In contrast, parents may approach the Tribunal with disputes about councils’ decisions on whether their child is eligible for SEN support and – if so – what form that support should take.
When a member of the public has a statutory right of appeal, it means the Ombudsman’s jurisdiction is restricted. The law expects the appeal right to be used if there is a challenge to the content or placement named in an EHC Plan as the Tribunal is best placed to resolve those matters. In such circumstances, the Ombudsman cannot proceed with an investigation when someone has used their appeal right.
This often means there can be periods of significant injustice which go unremedied – for example if there is an appeal involving Section I (educational placement) and the parent chooses not to send their child to the named placement while the appeal is pending, even with good reason, we cannot consider if a council should offer alternative provision during that period.
The Ombudsman is not seeking reform of the appeals systems. However, we consider it is important to highlight the tension caused by this jurisdictional conflict, particularly where the Tribunal is unable to process appeals within the expected timeframes, due to its own systemic pressures. This means a child could be out of school, or not in receipt of provision for a lengthy period. While the parent might ultimately be successful at appeal, they cannot seek a retrospective remedy from the Ombudsman for the period they went without education, due to the legal restrictions on our powers, nor can the Tribunal provide a remedy for the period of lost education.
We recognise and understand the frustration this causes many parents. But recent caselaw has confirmed this approach is a legal requirement ( R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207). This highlights the importance of a properly resourced appeals and complaints processes, to avoid delays that leave children without proper support, or the ability to seek redress with the Ombudsman.
We ensure learning from our casework is shared as widely as possible through publication of Focus reports and practitioner guidance etc. All publications are rooted in the real-life experiences of the complainants who come to us. We use their experiences and case studies to demonstrate the impact on families and individuals when things go wrong but include advice and suggestions to help avoid similar failings re-occurring.
Since the introduction of the Children and Families Act 2014 we have issued several thematic reports that are relevant in highlighting the pressures on the SEN system.
Special Educational Needs: preparing for the future - March 2014 was published in advance of legislative change to try to encourage councils not to replicate the faults we had all too regularly seen in the previous process.
We subsequently issued two further Focus reports Education, Health and Care Plans: our first 100 investigations - October 2017 and Not going to plan? Education, Health and Care Plans two years on - October 2019 to highlight our significant concerns about failings in the new arrangements. All three publications included examples of the emerging issues and themes we were seeing through our case work.
We have also published a further two reports that touch on specific issues around personal budgets in EHC Plans, and around the provision of alternative educational provision for children who are unable to attend school for medical or other reasons:
We provide the following case studies to highlight the most common themes we see in our casework. We recognise these issues are all likely to be familiar to the Committee. Nonetheless, they help in illustrate the importance of the Ombudsman’s role, both in terms of remedying injustice to individuals, and in terms of driving learning and improved practice in the organisations we investigate:
Annual reviews – significant delays or not completed
Delays or failures in implementing Tribunal decisions
Issues relating to education other than at school (EOTAS)
Failure to secure SEN provision
The Council's multiple failings impacted the child's emotional health and well being. They caused significant and prolonged distress to his kinship foster carer.
Recognising significant and multiple failings the Council agreed to a substantial symbolic payment. We recognised the Council had been working with the Department for Education and NHS England to improve its SEND services resulting in the development of a SEND Improvement Plan. The Council received an 18-month progress review against that plan in November 2023 from the Department for Education. It recorded staff attended training from an external provider to ensure they understood the law relevant to their role. Following our investigation the Council agreed to review its training to ensure it covers the areas of failing identified when investigating this complaint.
Personal Budgets
Alternative educational provision
Transport
Joint working cases involving health, social care and education
We hope the information we have provided will be of use to the Committee and this inquiry. The cases above help to illustrate the value our work provides in this area and the common issues we see with the SEND system.
We have also set out the limits of our jurisdiction, the complexities within the redress system and our aspirations for policy change. We believe that by implementing the recommendation in our Triennial Review the Government could help to improve accountability within the SEND system, and therefore improve access to, and quality of services for all.
If you have any questions about this response or would like to discuss it in more detail please let me know. I would also be happy to appear before the Committee at an oral evidence session if the Committee thinks it would be of use.
January 2025