LGO issues new SEN guidance

The Local Government Ombudsman (LGO) has issued new guidance about what it can, and cannot investigate. This follows the Children and Families Act 2014 special educational needs (SEN) amendments taking effect from 1 September 2014.

Timing of the guidance

Whilst this guidance comes in some two months after the new law, it may be just in time given ‘new’ Education, Health and Care Plans (EHCPs) may only just be being finalised.

From the outset of the new guidance, and the host web-page, the LGO reiterates that it will look into the process that the local authority has followed in reaching a decision. It will not look into the merits of any decision taken by a local authority.

Support in Schools

The LGO is only concerned about acts by ‘local government’, meaning local authorities.

As such, the LGO cannot directly look into issues of Additional SEN Support (previously School Action or School Action Plus). The guidance is somewhat unhelpful on this point as it suggests that if you complain to the local authority first, the LGO can become involved if you are unhappy with the response of the local authority. However, the guidance also indicates that the LGO is very unlikely to consider the core issue, being what the school is actually making available.

The LGO will consider complaints about the content of an EHCP not being complied with.

LGO or Tribunal appeal?

It is also worth bearing in mind that if there is a possible appeal to the Special Educational Needs and Disability Tribunal (the Tribunal) about your concerns, the LGO cannot investigate. That will also be true if there was a right of appeal, but it was not explored and you are now out of time to appeal. This was recently reiterated within a Court of Appeal Case which I wrote about.

The lesson is that is there is a right of appeal, and you are unhappy about the content of a Statement, the appeal should be started as quickly as possible. You may need to take advice on the issues of preparing an appeal and whether there is a right of appeal.

Personal Budgets

The LGO will look into Personal Budgets. It has always been presumed that it would, however, the formal acknowledgment is useful. Personal Budgets, which essentially give a monetary figure to the support detailed within the EHCP, are difficult because there are very few options to challenge them.

What the Personal Budget will look like will vary between local authorities. This is because the law and the guidance have left it to local authorities to determine how they will approach personal budgets and make their own policies on it. The policy must, however, contain;

1. A description of the education, health and social care provision which could be included within the Personal Budget.

2. The options of controlling the Personal Budget:

• Direct payments – where the young person/parents buy and arrange the services themselves;
• An arrangement – where the local authority, school or college hold the funds and arranges the services (this is sometimes called notional budgets);
• Third party arrangements – where the funding is paid to a person or organisation who acts on behalf of the parents or the young person;
• A combination of the above.

3. A clear explanation of how someone would be eligible for personal budgets and the various options for control the budget

Whilst the LGO is willing to consider a complaint about a Personal Budget, it is very doubtful that the actual amount afforded by that budget is something the LGO will consider, unless it can be shown that the local authority has failed to provide the above information.

Given that there is very little law, or guidance, about the Personal Budgets, it is unclear just how far the LGO will be able to take any complaint it receives.

Outcomes

Another crucial element of the EHCP is the ‘Outcome’ section. Like Personal Budgets, the Tribunal cannot consider an appeal against this section of the EHCP.

Again, there is very little guidance about the content of the Outcomes section. What is known is that the local authority should write the EHCP with a view to enabling the child or young person to achieving the ‘best possible’ outcomes, educational and otherwise.

It is very likely that there will be disputes between parents and local authorities about the content of the Outcomes of the EHCP. To what extent the LGO will be able to investigate complaints about the Outcomes of an EHCP, in light of the very vague guidance and law, remains to be seen.

Conclusion

Whilst it is helpful to know that the LGO is preparing itself to consider complaints surrounding the ‘new’ system, it may be that the LGO struggles with complaints for the same reason that local authorities may face complaints; there is a lack of clear and concise guidance and very little time has been given for all to become accustomed to the new rules and guidance.