Hackney Council have been told by the Local Government & Social Care Ombudsman to pay out thousands of pounds to two families of children with special needs following failings in its duty of care.
Parents of a child with an autism spectrum disorder (ASD), forced to borrow money on credit cards and remortgage their property to fund their child’s support needs, are set to receive over £20,000.
Another family with a child with Down’s syndrome is also set to receive thousands of pounds in compensation, with the Town Hall accused by the ombudsman of operating a ‘waiting list’ for children with SEND, rationing services based on available resources instead of identified need.
A parent in one of the cases, referred to in the report as Mrs B, said: “It is not acceptable for children with significant and well-evidenced needs to have to wait for more than three times the maximum statutory time limit in order to access appropriate support.
“The Local Government Ombudman’s judgement is welcome and we hope it will make a difference to other families and lead to improvements in council processes.
“Sadly, it’s not just children with special educational needs and disabilities who are losing out as a result of these delays. Inclusive schools are also missing out on vital funding.
‘Although the council was found to be at fault, it is beyond the ombudsman’s remit to compensate the schools for the support they have funded during this unlawful delay.”
The ombudsman sharply criticises Hackney Council in its reports for the “strain and distress” caused to the families.
The Town Hall has argued to the ombudsman that the term ‘waiting list’ is misleading, and that the list was in fact ‘a list of names ordered according to the timing of the applications for funding, that allocations were based on need; and that needs were met within the setting until such a time as allocations were made’.
The ombudsman has said that the evidence in Mrs B’s case does not support the assertion that her child’s needs were being fully met while he awaited funding.
The ombudsman’s report details Mrs B’s fears that a lack of supervision had put her son at risk of choking, with a lack of training for staff in Makaton sign language disadvantaging her son since he relied on this method of communication.
Jon Williams, executive director of Healthwatch Hackney, said: “According to these reports, the council failed in their legal duties by operating waiting lists for two young disabled children, even after medical professionals said they would need support from an EHC plan.
“The children, one autistic, the other who has Down Syndrome, were denied timely access to statutory assessment and then faced further significant delays in receiving their final support plans.
“Parent-carers often tell Healthwatch Hackney that they have to constantly ‘fight’ to secure adequate support for their disabled children.
“These two cases highlight some of the problems they face. These families already live with the additional pressures of caring for a disabled child.
“It is vital council policies and processes do not add to their stress. We hope the council will now implement all the Ombudsman’s recommendations to improve the ECHP experience for other families going through this process.”
The parent of the child diagnosed with ASD, identified by the ombudsman as Mr X, was forced to wait 69 weeks for a completed Education, Health and Care (EHC) plan, well outside the mandated 20 weeks.
The Town Hall had argued that the 20 weeks it has to complete such a plan can continually restart from appeal points in the process, when decisions were made, for example, that there was not evidence that Mr X’s child had support needs which needed an EHC plan.
The ombudsman disagreed with the Town Hall arguments, pointing out: “This would potentially allow councils to benefit from their own errors in circumstances where a defective decision is made and subsequently overturned.”
The reports also find that the Town Hall sought to attribute blame to Mr X for the Town Hall’s own delays, despite it having sole responsibility for the management of the EHC assessment process and ensuring timeframes are met.
Mr X’s child, Child B, is said in the report to “have severe language and social communication difficulties… can be highly distractible and easily fixates on specific interests or sensory stimulation… can have restricted motivation towards engaging with learning materials, and…lacks the communication and interaction skills to make adequate progress in the absence of targeted and personalised support”.
The report adds that Mr X lost opportunities to work “because of the time and effort he has had to take in ensuring a reluctant council provide appropriately for his son”.
Michael King, Local Government and Social Care Ombudsman, said: “Some families have to go well beyond the call of duty to confirm the type of support their children should receive and I’m sorry to say this has happened in both these cases and in others we are investigating.
“We issued a special report about the problems faced by parents battling the SEN system in 2017. At the time, we said when councils get things wrong it places a disproportionate burden on families already struggling with caring and support.
“I now encourage the council to accept the recommendations in my report to review its services and provide reassurance to families across Hackney their cases will be dealt with swiftly and in accordance with law and guidance.”
A group of parents are taking a judicial review against the secretary of state for education to the High Court on 26 and 27 June, challenging inadequate government funding which has left councils unable to meet their legal responsibilities to disabled children.
Families and their supporters have also organised the SEND National Crisis March which will be taking place at locations throughout England and Wales on 30 May.
Cllr Chris Kennedy said: “Our staff work very hard to ensure the right support is in place for young people with SEND, and the wellbeing of young people is at the heart of everything our SEND team does.
“They do this amidst unprecedented workloads, in a sector that is under ever-increasing financial pressure. These were complex cases, and some things did not happen in the time frame they should and we apologise to the families involved for these issues.
“However, although we believe we have followed DfE guidance and that our practices are no different to those of most other local authorities, some of the conclusions in the reports raise significant issues which we will be discussing urgently with the Department for Education.”
A spokesperson added that the council chose to provide a discretionary supported childcare fund in 2015, which it was not legally required to provide, but that this funding was not available to students with SEN identified through an EHC plan as provision for this is provided through statutory funding.