Hampshire County Council (15 011 838)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 15 Feb 2017

The Ombudsman's final decision:

Summary: The Council failed to take appropriate action to ensure outstanding occupational therapy and speech and language assessments were completed. The Council also failed in its duty to secure the special educational provision identified in the Education, Health and Care Plan. The Council has agreed to apologise, pay £3000 to the family in recognition of the impact the failures had and to reimburse the fees paid for clinical psychology services.

The complaint

  1. Mrs C on behalf of her daughter (D) complains that:
    • The Council breached the statutory time frame for finalising an EHC Plan. This resulted in severe delay regarding the delivery of an appropriate education for D
    • Following finalisation of the EHC Plan the Council failed to promptly and comprehensively secure the provision recorded in the EHC Plan

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The Ombudsman’s role and powers

  1. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. If there has been fault, the Ombudsman considers whether it has caused an injustice and, if it has, she may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1))
  2. In line with a recent memorandum, the Ombudsman notifies Ofsted of the final decision where a complaint about children's services or education is upheld. 

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How I considered this complaint

  1. As part of my investigation I have:
    • Considered the written complaint made by Mrs C and the documents Mrs C provided
    • Spoken to Mrs C on the telephone about the complaint
    • Considered the documents the Council provided in response to Ombudsman enquiries
    • Considered relevant law and statutory guidance including Special educational needs and code of practice: 0 to 25 years (Code), the Special Educational Needs and Disability Regulations 2014 (SEND Regulations) and Part 3 of the Children and Families Act 2014 (CFA 2014)
    • Considered Mrs C’s and the Council’s response to the draft decision

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What I found

  1. When considered necessary, the Council will arrange education for a child or young person up to the age of 25 with special educational needs under an Education, Health and Care Plan (EHC Plan). This specifies the nature of the learning difficulty, provisions, outcomes and placement. The EHC Plan contains discrete sections on health and social care needs related to the child’s special education needs and health and social care provisions reasonably required by the child’s learning difficulties.
  2. If the Council is satisfied that a child or young person has special educational needs and that it may be necessary for provision to be made under an EHC Plan it must carry out an assessment known as an EHC needs assessment. The assessment process involves the local authority (the SEN department) asking for and securing advice and information from agencies on the young person’s needs, what provision may be required to meet those needs and outcomes. Paragraph 9.49 of the Code says what advice and information must be sought and who from. Agencies must respond within 6 weeks of the request. Following receipt of advice the Council then decides whether or not to issue an EHC plan.
  3. Paragraph 9.30 of the Code refers to the key duties of the local authority when coordinating assessment: ‘Local authorities are responsible for ensuring that there is effective co-ordination of the assessment and development process for an EHC plan. The co-ordination should include:
    • planning the process to meet the needs of children, parents and young people
    • timing meetings to minimise family disruption
    • keeping the child’s parent or young person informed through a single point of contact wherever possible and
    • ensuring relevant professionals have sufficient notice to be able to contribute to the process
  4. An EHC Plan must contain a section – known as section F – which specifies the special educational provision required by the child or the young person. Section F is equivalent to Part 3 of the statement of special educational needs under the former SEN system. Section 21(5) of the Children and Families Act 2014 says that ‘health care provision or social care provision which educates or trains a child or young person is to be treated as special educational provision (instead of health care provision or social care provision).’
  5. Under s42(2) of the CFA 2014 the council has an absolute legal duty to secure the special education provision specified in the EHC Plan. The duty to secure the provision is non-delegable.
  6. S42(3) of CFA says that ‘if the plan specifies health care provision, the responsible commissioning body must arrange the specified health care provision for the child or young person’.
  7. Paragraph 9.74 of the Code says that ‘decisions about whether health care provision or social care provision should be treated as special educational provision must be made on an individual basis. Speech and language therapy and other therapy provision can be regarded as either education or health care provision, or both. It could therefore be included in an EHC plan as either educational or health provision. However, since communication is so fundamental in education, addressing speech and language impairment should normally be recorded as special educational provision unless there are exceptional reasons for not doing so.’
  8. Paragraph 9.76 of the Code says that ‘in cases where health care provision or social care provision is to be treated as special educational provision, ultimate responsibility for ensuring that the provision is made rests with the local authority (unless the child’s parent has made suitable arrangements).’ It is therefore reasonable to infer that if the NHS trust fails to deliver the provision set out in the EHC plan, then the duty falls on the local authority. This means that if necessary the local authority must go out to private practice and buy in the provision for the child.
  9. Chapter 3 of the Code gives detailed guidance on establishing administrative frameworks (‘arrangements’) which ensure effective joint commissioning and co-working between the local authority and other partner agencies. The term ‘Partners’ refers to the local authority and its partner commissioning bodies across education, health and social care provision.
  10. S25(1) of CFA 2014 refers to a general duty placed on the local authority to ensure integration between education, health and social care when this would promote the welfare of a child with special educational needs. S28(1) of CFA refers to a duty falling on each partner to cooperate with the other: ‘A local authority in England must cooperate with each of its local partners, and each local partner must co-operate with the authority, in the exercise of the authority’s functions under this part’. Paragraph 3.13 of the Code says that ‘local authorities must work to integrate educational provision and training provision with health and social care provision where they think that this would promote the wellbeing of children and young people with SEN or disabilities, or improve the quality of special educational provision. Local partners must co-operate with the local authority in this. The NHS Mandate, NHS Act 2006 and Health and Social Care Act 2012 make clear that NHS England, CCGs and Health and Wellbeing Boards must promote the integration of services.’
  11. The Regulations and Code refer to mandatory timescales for the EHC Plan process and it component parts. Paragraph 9.40 of the Code says that ‘the whole process of EHC needs assessment and EHC plan development, from the point when an assessment is requested (or a child or young person is brought to the local authority’s attention) until the final EHC plan is issued, must take no more than 20 weeks.’ Paragraph 9.41 of the Code says that ‘when local authorities request information as part of the EHC needs assessment process, those supplying the information must respond in a timely manner and within a maximum of 6 weeks from the date of the request.’ Paragraph 9.42 of the Code states the exceptional circumstances when local authorities and their partners need not comply with time limits.
  12. Under s19(4) of the Education Act 1996 the Council has a discretionary power to provide interim education for young people over statutory school age but under 18: ‘A local authority may make arrangements for the provision of education otherwise than at school for those young persons who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.’
  13. The Ombudsman notes the potential relevance to the new SEN regime and section F of the EHC Plan of two judicial decisions regarding health provision in Part 3 of a statement of special educational needs. A judicial case (R. V Harrow LBC ex parte M [1997] ELR 62 (QBD)) says that once specified in Part 3 (‘Special Educational Provision’) of the statement the local authority must ensure that provision is made including health provision. If the Primary Care Trust or NHS fails to deliver the provision set out in Part 3 of the statement, the duty falls on the local authority. This means the Council must commission provision for the child from the private sector if necessary. This principle was upheld in a judgement by the Court of Appeal (R (N) v North Tyneside Borough Council [2010] EWCA Civ 135).

Background/What happened

  1. In March 2014 Mrs C asked the Council to carry out statutory assessment of her daughter’s special educational needs under the Education Act 1996. In a letter dated 1 April 2014 the Council refused to carry out assessment. Mrs C lodged an appeal with the SEND tribunal on 2 May 2014.
  2. Following two meetings between the SEN department, D and Mrs C in August 2014, the SEN department decided to carry out a needs assessment with a view to issuing an Education, Health and Care Plan under the Children and Families Act 2014. Mrs C’s daughter (D) was 17 at the beginning of September 2014.
  3. On 1 September 2014 the Council sent Mrs C a letter saying that it would carry out a needs assessment. The Council notified the SEND tribunal.
  4. On 3 September 2014 the tribunal sent the Council a letter saying the following. ‘The appeal to the Tribunal is now at an end. The LA must comply with the timescales set out in Regulation 26 of the Education (Special Educational Needs) (England) Consolidated Regulations 2001. The timescale for compliance shall begin on the day after the LA notified the Tribunal of its conceding the appeal.’ The SEND tribunal sent a letter dated 3 September 2014 with the same content to Mrs C.
  5. The Council sent Mrs C a letter dated 9 September asking Mrs C to submit information by 4 October ‘in order to help us decide whether or not an assessment is necessary’. The letter said that ‘as soon as I have received the additional information a decision will be made as to whether or not to go ahead with an assessment’. Copies of this letter were sent to health, educational psychology and social care.
  6. On 16 September 2014 the SEN department sent the Clinical Commissioning Group (CCG) an email saying that the Council planned to carry out an EHC needs assessment for D and that ‘we will be asking for reports from a wide range of agencies/specialists, including from health an OH (Occupational Health) report (to inform her sensory needs) and a Clinical Psychiatrist Report’.
  7. The Council and Mrs C asked for the tribunal’s view on whether assessment should be carried out under the Education Act 1996 with a view to issuing a statement or the Children and Families Act 2014 with a view to issuing an EHC Plan. In an order dated 6 October 2014 the tribunal said that Mrs C’s appeal under the Education Act 1996 would be deemed an appeal under the Children and Families Act 2014 if she were to agree to this. The tribunal ordered Mrs C to tell tribunal by 10 October whether or not she consented to the appeal being considered as an appeal under the Children and Families Act 2014. The Order referred to the SEND 2014 Regulations which had recently come into force including Regulation 13: ‘Under Regulation 13, if the LA decided that an EHC Plan is necessary the LA must send a finalised plan to the parent as soon as practicable and in any event in not more than 20 weeks.’
  8. In October Mrs C informed tribunal that she consented to the appeal being considered under the Children and Families Act 2014 i.e. the new SEN regime.
  9. In October Mrs C informed the Council that under Regulation 45(3) of the SEND Regulations 2014 the Council must complete the assessment within 4 weeks of making the order and suggested that time ran from early September when the tribunal instructed the parties that ‘the appeal to the Tribunal is now at an end’. The Council disagreed with Mrs C’s view of the start date and time frame for EHC needs assessment. Mrs C asked tribunal for guidance.
  10. The SEN department sent letters dated 21 October 2014 asking for advice and information to child social care, educational psychology and health (officer at the Royal Hampshire County Hospital). The letters asked the agencies to provide the SEN department with information within ‘a statutory time frame of six weeks’. ‘This means that additional information must be received by 2 December 2014’. The SEN department said it would forward to the agencies parental views.
  11. The SEN department sent Mrs C a letter dated 21 October informing her that it would carry out a needs assessment and asking her to send the department her views on D’s special education.
  12. Mrs C sent the SEN department her views and D’s views in October and November 2014. The SEN department forwarded the information to the agencies from which it was seeking advice.
  13. In November 2014 child social care issued a revised Children and Families assessment. The assessment concluded that no further action was required by child social care and that it would close the case. (Since carrying out an initial assessment in February 2014 child social care had monitored D’s welfare and that of her brother under Child in Need plans.) Child social care sent the assessment to the SEN department.
  14. The tribunal issued an order and consent order dated 4 November 2014. The order acknowledged Mrs C’s consent to the appeal being considered as an appeal under the CFA 2014. The order said that the ‘matter should now proceed under the provisions of section 45 of the CFA 2014’ (sic). The consent order said that ‘on 1 September 2014 the LA conceded the parent’s appeal against its decision not to assess D. A consent order is made on the following terms. The appeal is withdrawn. The LA will carry out an assessment of D under section 36 of the Children and Families Act 2014. There will be no order as to costs’.
  15. In late October the SEN department sent emails to the agencies saying that assessments should involve visiting the family home and talking to D in person.
  16. A post-16 education personal adviser discussed career planning with D on 2 November. The personal adviser issued a report on 7 November. A copy of the report was sent to the SEN department.
  17. In early November Mrs C sent an email to the Council to say that therapy services had not contacted the family to arrange a visit. On 13 November the SEN department sent CCG an email saying that the therapy services had not yet contacted Mrs C to arrange visits. The email said: ‘I understand the process to be that when a request is received Health will consider and carry out whichever reports you feel are appropriate and necessary. As below, we think in this case that will include: Clinical psychiatrist, Occupational Health – also consideration of Physiotherapy and SALT’.
  18. The CCG sent an email to the SEN department on 13 November saying that it was unaware of the need for assessment from therapists and a psychiatrist. The CCG said that the SEN department had not followed correct procedure when requesting information which was for the SEN department to identify a need for assessments by individual therapists and other professionals as opposed to sending a general letter. The SEN department disagreed with this view on procedure. The SEN department said that the established procedure was to send a general letter to ‘Health Front Door’ and for the health service to make a decision as to the need for individual therapist/clinician assessment following an interview with a Primary Care Trust officer. The SEN department also pointed out that it had alerted the CCG to the need for individual assessments by therapists in an email to the CCG sent on 16 September. On 13 November the CCG said that it had contacted a Primary Care Trust officer to arrange an appointment to discuss health needs relating to SEN with D and Mrs C.
  19. On 27 November the SEN department sent an email to the CCG enquiring about completion of OT and SALT reports. The CCG sent an email saying ‘we were never sent a list of professionals involved in this child’s case other than a letter to Hampshire Hospitals so were not aware that Therapies were to be contacted’. The SEN department sent a email to CCG on 27 November saying that ‘I understood the process to be that one request for All Health should be sent to the ‘Front Door’ email address and then whoever deals with it your end would look at the files and decided which Reports would be relevant and necessary’. The email repeated the need for OT and SALT reports and drew attention to the 2 December deadline.
  20. The SEN department sent a further email to CCG on 27 November saying that ‘we will re-look at these processes because having just checked, the general understanding does seem to be the One Front Door letter policy. We will know for future ones then that the requirement is for a list of Health/Therapy specialists to accompany the letter of request’. In a response to the email CCG said that the EHC needs assessment process was ‘new to everyone so we are all in the same situation’.
  21. On 27 November the CCG requested the integrated therapy service (NHS Primary Care Trust) to carry out an occupational therapy and speech and language therapy assessment of D. On 28 November CCG sent an email to the SEN department confirming that requests for SALT and OT reports had been sent to the therapy services and that a hospital appointment had been made.
  22. The SEN department sent letters dated 4 December 2014 to Education Psychology, social care and health. The letters said that ‘we are now facing serious delay in the assessment procedures as we do not appear to have received your report which was due by 2 December 2014’. The letters asked the departments to ‘send your report as a matter of urgency or advise me of the reason for the delay’.
  23. The SEN department set the agencies a new deadline of 30 December 2014.
  24. In early December the SEN department attempted to put in place a virtual classroom learning package as an interim education arrangement for D. Having considered the package Mrs C and D decided that it was unsuitable and could not meet D’s needs. Mrs C sent the SEN department an email on 19 December saying that the learning package was unsuitable.
  25. The SEN department received the educational psychology report and a child social care report in December 2014. On various dates in December the SEN department sent chaser mails to the CCG. The SEN officer with case responsibility met with Mrs C on 22 December to discuss D’s education.
  26. At the end of December the SEN department considered issuing a draft EHC Plan on the basis of reports received to date.
  27. On 2 January CCG sent an email to the SEN department saying ‘we are commissioning an urgent SLT and OT assessment’.
  28. The SEN department sent an email to the CCG on 5 January saying that ‘we think that the EHCP would be a more useful and comprehensive document if we delay in order to include these reports. I am writing to the Parent to explain and gain agreement for this’.
  29. Mrs C sent the SEN department an email on 5 January. Mrs C expressed strong concern about delay in the assessment process and finalising the EHC Plan. Mrs C requested a copy of a draft EHC Plan.
  30. The SEN department sent an email to Mrs C on 5 January asking for Mrs C’s ‘agreement that the draft EHCP be delayed for a short period in order to include these reports’. Mrs C asked the SEN department to estimate the date when the assessment would be carried out and the reports completed.
  31. By 15 January 2015 the SEN department had received the following reports:
    • A copy of a consultant psychologist’s report dated 23 October 2014.
    • An educational psychology report. The SEN department received this on 9 December.
    • Child social care re-assessment dated 28 November 2014 and information from adult social care suggesting that care needs were being met by the parent. (The SEN department says it received an adult social care report dated 26 November 2014 on 13 April 2015.)
    • Mrs C’s and D’s report and information.
    • Consultant paediatrician’s report. The SEN department received the report on 15 January.
  32. Mrs C sent the SEN department an email on 14 January saying: ‘I agree to delay issuing the draft EHCP to 3 February 2015, an extension of 5 weeks.’
  33. An OT assessment was carried out on 22 January. CCG funded the assessment. The SEN department received the assessment report on 2 February via the CCG.
  34. The SEN department sent chaser emails to the CCG about completion of the SALT assessment in late January.
  35. The SEN department sent an email to Mrs C on 30 January 2015 asking for her views on the following three options:
    • Issuing a draft EHC Plan on the basis of reports received
    • Commissioning a private sector SALT assessment and report
    • Agreeing to a further extension of the time frame for receiving the NHS SALT report
  36. Mrs C sent a formal complaint letter dated 5 February 2015 to the Council’s education Services Director. Mrs C complained about excessive delay in the EHC Plan process. Mrs C suggested the Council should commission a private sector SALT assessment and report. Mrs C asked for the Director’s ‘cooperation’.
  37. The SEN department sent emails on 2 and 6 February to the CCG asking for an estimated completion date for SALT assessment and report. The CCG asked the SEN department to liaise with the Children’s Therapy Services directly about the matter.
  38. The SEN department sent Mrs C an email on 9 February. The email said that the SEN department was chasing the CCG/therapy services for confirmation of an assessment visit and time frame for issue of a SALT report. The SEN department had not yet decided whether a report would be secured more quickly if the SEN department were to commission a private sector SALT report as opposed to waiting for NHS SALT to respond. The SEN case officer offered to explain the delay in person to D.
  39. Mrs C sent the SEN department an email on 9 February saying that D did not want the SEN case officer to visit to explain the delay. Mrs C said that she had identified a speech and language therapist who would be able to carry out a prompt assessment.
  40. On 10 Feb Mrs C sent an email to the SEN department saying she would contact a SALT and get her to send an invoice to the SEN department.
  41. Having contacted the CCG for information about the time frame for an NHS SALT assessment and report, the SEN department sent Mrs C an email on 19 February saying that it agreed that Mrs C should commission privately and that it would reimburse Mrs C.
  42. Following an assessment on 2 March the privately commissioned SALT sent a draft report on 13 March to the Council. The SALT sent a final report to the SEN department on 18 March.
  43. On 3 March an NHS SALT contacted Mrs C to arrange an assessment visit for 23 March. Mrs C said that a SALT assessment had already taken place and there was no need for the therapist to carry out the assessment.
  44. Mrs C sent the SEN department an email on 30 March complaining about delay and asking for estimated issue dates of a draft and final EHC plan.
  45. The Council issued a draft EHC Plan dated 13 April. The Council issued a second draft EHC plan on 7 May.
  46. In a letter dated 24 April 2015 the Council responded at stage 2 to Mrs C’s complaint submitted in February. The Council did not uphold the complaints.
  47. The Council issued a final EHC Plan on 22 May. The Council said that the CCG had not signed off section G. A further final EHC Plan would be sent once this had been done.
  48. Section E of the final EHC plan of 22 May 2015 referred to the following provisions. a) An academic tutor to deliver a programme for a minimum of 5 hours a week. The tutor’s objective for the academic year 2015-16 would be supporting D to achieve an iGCSE. The tutor would liaise with a Learning Mentor and have an understanding of the therapy programmes. b) A Learning Mentor to support academic tuition and deliver a programme focussing on building D’s social and independence skills. Learning Mentor would have contact with D for a minimum of 10 hours a week. The Learning Mentor would receive advice and guidance from the occupational therapist, speech and language therapist and clinical psychologist and help with implementing therapy programmes. c) A Speech and Language therapist to work directly with D one hour per week for the first half term and following review of provision 3 hours each term. The therapist would design a programme and give guidance to the Learning Mentor about programme delivery. The therapist would update the programme and produce an annual report. d) An occupational therapist to provide a one hour session every two weeks with the possibility of scaling down to one session a month depending on clinical judgement. The occupational therapist would liaise with the clinical psychologist. e) A clinical psychologist to provide 12 one hour counselling/therapy sessions during the year to enable D to manage anxiety. f) Equipment to support education – laptop. g) Occupational therapy equipment - support wrap and posture pack.
  49. Section I of the EHC plan referred to an education otherwise than at school placement i.e. home based education.
  50. On 9 June the CCG signed section G of the EHC Plan.
  51. On 9 June the Council asked the CCG to commission health provisions. The CCG contacted the therapy services/NHS primary care trust.
  52. The Council issued a final EHC Plan on 16 June with a section G signed off by the CCG.
  53. In a letter to the Council dated 21 June 2015 Mrs C expressed disagreement with the stage 2 response and asked for her complaint of February 2015 to be considered at a further stage. Mrs C also complained about the Council’s failure to put in place EHC Plan provisions within four weeks of the issue of the EHC Plan.
  54. On 26 June the Therapy Services Manager (NHS Trust) sent an email to the SEN department saying the following:

‘As you are aware we did not undertake the assessment of D’s communication skills. I believe that this was done privately. Based on the description of D’s strengths and needs in the EHCP our input would be to provide her with visual strategies to support her social understanding with advice and training to those people working directly with her. Our input would be largely indirect and time limited. With regard to OT input we would offer 3 visits every 2 weeks to set up and initiate a graded and paced programme, 1 visit a month later and then 2 visits on successive half terms for follow up. This would only be provided with support from a Clinical or Educational Psychologist. However, we now do not currently have a therapist with competency in CFS (Chronic Fatigue Syndrome). The posture pack would be provided by education and the lycra support can be purchased by her parents. I appreciate that this input differs from that put in the EHCP but am not quite sure what the high level of SLT proposed is aiming to achieve’.

  1. In July the SEN department commissioned a private tutor agency to identify and put in place a tutor and learning mentor for D. The agency planned to start tuition (preparation for an iGCSE in Sociology) in July. The plan fell through due to the tutor changing his mind on capacity to fulfil the commitment. In July the tutor agency was unable to identify a learning support assistant to carry out the Learning Mentor role specified in the EHC Plan.
  2. In late July and early August the SEN department asked the CCG and Mrs C to liaise with each other about outstanding health provision. The SEN department would continue to ask CCG for updates regarding commissioning of health provisions.
  3. The SEN department sent Mrs C an email on 4 August saying that the CCG would liaise with Mrs C about outstanding provision. Mrs C sent an email to the SEN department on 5 August commenting on the Council’s failure to put in place comprehensive provision as specified in the EHC plan.
  4. On 6 August Mrs C sent the SEN department an email saying: ‘I expect D’s special educational provision as specified in her EHC plan to be delivered. This is the LA’s responsibility.’ Mrs C sent the SEN department a further email on 6 August expressing concern that therapy provisions had not been arranged to date and that they must be in place by the beginning of the term.
  5. The Council issued a complaint response at stage 3 in a letter dated 5 August. The letter made the following points:
    • The Council accepted that delay had occurred in carrying out assessment and finalising the EHC plan. However this delay was attributable to circumstances outside the Council’s control. There was no evidence of administrative fault by the Council. The Council had fulfilled its coordination duties and taken reasonable steps to secure a timely EHC plan by constantly reminding the other agencies of their responsibilities. Delay was attributable to health and not the Council.
    • The Council lacked enforcement powers to expedite a response from partners in the EHC planning process.
    • The Council accepted that there was ongoing delay in arranging provision specified in the EHC Plan but attributed this to circumstances outside its control.

The letter apologised for the delay and inconvenience caused to Mrs C and D.

  1. Mrs C says that throughout 2015 she commissioned therapy and counselling from a consultant psychologist.
  2. The tutor agency identified a new tutor for D at the end of July. The tutor met D at the beginning of August and set work for the summer holiday. The tutor began delivering tuition at the beginning of September 2015. The plan was to prepare D for a GCSE qualification in Psychology.
  3. In late August the Council appointed a new SEN officer with case responsibility for D. (The SEN officer with case responsibility since September 2014 left the Council at the end of August.)
  4. CCG made enquires about the cost of a private sector clinical psychologist in August and September 2015.
  5. In late August the tutor agency identified a Learning Mentor. The Learning Mentor began work with D in September. Mrs C and D felt that the learning mentor was unsuitable and did not have the competency to meet D’s needs. Mrs C was also concerned that the Learning Mentor was unable to work with D in the community and that she was insufficiently flexible about session times. Mrs C asked the agency on 28 September to appoint another Learning Mentor.
  6. In September the SEN department sent emails to CCG asking for information about arrangements for health provision. The SEN department sent emails to Mrs C informing her that it was reminding health of a responsibility to commission and arrange health provision specified in the EHC Plan.
  7. Mrs C sent an email to the SEN department on 11 September complaining about failure to arrange provisions specified in the EHC Plan and suggesting that D should be financially compensated for the omission. During a meeting between an SEN officer and Mrs C on 22 September Mrs C said that it was the SEN department’s responsibility to ensure that provisions specified in section F of the EHC Plan were in place. The SEN department’s view was that responsibility for ensuring that health provision was in place – even when specified in section F - lay with health. The SEN department told Mrs C that health was uncertain as to whether children’s or adult’s therapy services should have responsibility for delivery.
  8. The SEN department made enquiries about purchase of the computer laptop and occupational therapy equipment in September and October 2015.
  9. In October the SEN department suggested that a personal assistant/carer employed by a care agency might be capable of delivering the learning mentor role. Mrs C said that a personal assistant could not provide the necessary academic input for the learning mentor role.
  10. In October the SEN department sent emails to the CCG asking for update on arranging health provision for D in line with the EHC plan. The SEN department says that health did not respond to the emails.
  11. In early October the tutor expressed concern to agency management about the difficulty of teaching D without support from health professionals. The tutor submitted a report to agency management which was forwarded to the SEN department on 22 October. The tutor said that she had the following concerns:
    • D did not have access to a laptop computer.
    • Advice and support from the consultant psychologist, therapists and the Learning Mentor was needed to make teaching fully effective.
    • There were shortcomings in the teaching/learning environment. The room used for teaching was poorly lit, poorly heated and cluttered. There was insufficient space to lay out teaching materials. The tutor lacked a suitable chair and table for teaching. Also teaching would be more effective if the tutor could work without Mrs C being present in the same room.
  12. The SEN department sent Mrs C an email on 13 October providing information about communication with the CCG. The email said that ‘as health have signed off and agreed the provision set out in the health provision section, we will be looking for them to provide this’.
  13. Mrs C sent a letter to the Council’s Chief Executive dated 15 October requesting investigation of her complaint about non-implementation of provision specified in the final EHC Plan. Mrs C said that ‘the lack of provision needs to be addressed urgently’ and that the Council was responsible for ensuring provision was in place. Mrs C said that if she did not receive a satisfactory response to the letter within 10 working days she would take legal advice with a view to a judicial review claim against the Council.
  14. The Council responded in a letter dated 19 October. The letter said that Mrs C was raising complaints which the Council had responded to at stage 3 and that the local complaints procedure was now exhausted. The Council signposted Mrs C to the Ombudsman.
  15. The SEN case officer on 19 October sent an email to her manager saying that health did not provide updates and the tutor agency was struggling to appoint a Learning Mentor. The email said ‘The health provision has been put under education and I know Mrs C is saying we should be providing it if health aren’t. (The SEN department) has said that we still look to health for this but as they aren’t coming back with any kind of plan, I don’t know what I should be saying to Mrs C’.
  16. On 20 October the SEN department sent the CCG an email asking for an update. The email said: ‘D has health provision in her EHCP which was signed off by health and there is a legal duty to provide this support which will be challenged by parent at the highest level. If it cannot be confirmed that this support will be provided by adult health services by Wednesday 28 October the SEN Service will have no option but to commission this provision and seek to recover these costs from health’.
  17. Mrs C’s legal representative sent a pre-action letter to the SEN department dated 21 October. The letter said that the Council was acting unlawfully when failing to ensure that provision specified in the EHC Plan was in place. The letter said that the Council must take ‘urgent steps to secure all the special educational provision set out in section F of D’s EHCP, if necessary by contacting independent providers, to ensure that the required therapists, psychologist and learning mentor are available to start work with D on or very shortly after 2 November. It is additionally required forthwith to arrange provision of a laptop computer, posture pack and lycra wrap for use in D’s educational programme’.
  18. In a letter dated 28 October 2015 the Council’s legal representative responded to Mrs C’s legal representative’s letter dated 21 October. The letter made the following points:
    • Health Services had signed off section F and ‘it is the Local Authority’s position that (health) provision be provided by Health’. The LA had contacted Health (i.e. CCG and NHS therapies) ‘on numerous occasions to request that they make arrangements to carry out the provision they agreed’.
    • The Council’s SEN department will commission ‘on an urgent basis’ private sector occupational therapy, speech and language therapy and clinical psychology support.
    • The Council will order occupational therapy equipment and the laptop as a matter of urgency.
    • ‘The Local authority acknowledge the obligation to provide and will continue to pursue the outstanding support as a matter of urgency.’
    • The Council had commissioned and put in place a Learning Mentor in September. This arrangement had fallen through as Mrs C considered the Learning Mentor unsuitable. The Council had instructed the agency to find an alternative learning mentor. The tutor agency had recently identified a potential person for the role. The Council did not consider there were other agencies in the area who could recruit to the role. The Council had offered Mrs C the opportunity to commission the service herself with the Council providing Mrs C with a Direct Payment budget
  19. Mrs C discontinued the legal action. Mrs C asked the Ombudsman to consider her complaint about delay in finalising the EHC plan and implementing provision.
  20. The SEN department consulted with Mrs C about preferred providers. The Council commissioned occupational therapy and speech and language therapy. The SEN department agreed to commission clinical psychology services from the provider Mrs C was using.
  21. The CCG agreed to reimburse the SEN department for expenditure on health provisions.
  22. The SEN officer met with Mrs C to discuss D’s education on 17 November 2015.
  23. In November the tutor was providing two 90 minute tuition sessions a week The agency identified a person willing and able to act as a Learning Mentor. The Learning Mentor began work on 20 November.
  24. From December 2015 the Council commissioned clinical psychology services
  25. Since December 2015 the following has happened:
    • The speech and language therapist started a programme at the beginning of January 2016.
    • The occupational therapist started work with D at the beginning of January 2016. (There was an assessment visit in December 2015.)
    • By the beginning of January occupational therapy equipment was available.
    • Mrs C bought a laptop computer with suitable software for D in January. The LA reimbursed Mrs C.
    • A professional’s meeting to discuss D’s education took place in February 2016
    • The Council reviewed the EHC Plan in May 2016
    • The tutor stepped up tuition hours.
    • A Learning Mentor has supported D. Mrs C was unhappy about the Learning Mentor’s inability to take D into the community on her own.
    • D received a GCSE qualification (grade B) in Psychology in August 2016

Analysis – Delay in finalising the EHC Plan

  1. Mrs C’s complaint raises the issue of where responsibility lies when a partner agency fails to meet a statutory duty to cooperate with the SEN department’s EHC needs assessment which jeopardises the Council’s ability to draft and finalise a comprehensive, properly evidenced EHC Plan in a timely way.
  2. Regulation 8 says that where a local authority requests cooperation of a body in securing an EHC needs assessment the body must comply with such a request within 6 weeks of the date on which they receive it. Paragraph 9.41 of the Code says that ‘when local authorities request information as part of the EHC needs assessment process, those supplying the information must respond in a timely manner and within a maximum of 6 weeks from the date of the request.’ Further, the Regulations and Code do not refer to a Council’s strict liability for the effects of a Partner agency’s failure to fulfil its EHC needs assessment cooperation duty.
  3. However, the SEN department has a statutory responsibility to meet a deadline for completing the process having decided to assess and make an EHC Plan. Paragraph 9.40 of the Code – reflecting Regulation 13(2) of the 2014 SEND Regulations - says that ‘the whole process of EHC needs assessment and EHC Plan development, from the point when an assessment is requested until the final EHC plan is issued, must take no more than 20 weeks’.
  4. While acknowledging that health has a statutory duty to respond to an EHC needs assessment request within 6 weeks of the request being made, the Regulations and Code point to the SEN department’s responsibility to ensure that the overall process of EHC assessment and plan development is timely and that when assessment evidences the need for an EHC Plan this is achieved within 20 weeks of the parent requesting EHC assessment. In my view this overarching responsibility means that when a body from whom the SEN department requests information for an EHC needs assessment exceeds the six week time frame, and there is doubt that the body will send the information in the near future, the SEN department should commission its own assessment from a private provider and seek to recoup the cost from the CCG.
  5. The Council began the EHC needs assessment on 21 October 2014. If the Council were to meet the overall process time frame, the Council had 14 weeks from 21 October to coordinate and complete the needs assessment, draft and finalise the EHC Plan. To meet the overall process time frame it was essential for the agencies to fulfil their duty to cooperate in the EHC needs assessment and give the Council the requested information within 6 weeks. The Council sent letters to health, social care and educational psychology on 4 December informing them that the 6 week assessment time frame had been exceeded and ‘that we are now facing a serious delay in the assessment procedures’. By 2 January 2015 the outstanding reports were occupational therapy and speech and language reports. The evidence was overwhelming that the absence of reports from the occupational and speech and language therapy services was jeopardising the Council’s ability to issue a complete and properly evidenced EHC Plan for D in a timely way.
  6. Given that health had failed to comply with two deadlines (the initial deadline of 2 December 2014 and a second extended deadline of 30 December 2014) the Council should have commissioned at the beginning of January outstanding OT and speech and language assessments from private providers to prevent further delay. If this had happened it is likely that the Council would have been in a position to issue a draft EHC plan by early February 2015 and a final EHC plan by the beginning of the half term holiday 16 – 22 February 2015. Comprehensive provision could have been in place by March 2015. As it turned out the Council issued an EHC Plan at the end of May 2015. There was approximately 3 months delay in the overall process of planning and formulating an EHC Plan for D.
  7. When assessing the extent of delay involved I have made several assumptions:
    • I have decided that time runs from 21 October 2014. This is when the Council sent information request letters to Health, social care, educational psychology and Mrs C initiating the assessment phase. I have taken into account lack of clarity about time scales in the SEND tribunal paperwork and the fact that the appeal before the SEND tribunal came to an end on 4 November 2014.
    • The Code suggests that the Council could face a time scale of as little as 14 weeks to finalise an EHC Plan following a decision to carry out an EHC needs assessment. (The Council would have more time to complete the process if it decides to carry out an EHC needs assessment before the end of the six week maximum period for making this type of decision.) I have therefore assumed that if the Council were to meet the statutory overall timescale, the Council had no more than 14 weeks from 21 October to coordinate and complete the needs assessment, draft and finalise the EHC Plan.
    • The appropriate time frame for coordinating and completing the EHC needs assessment stage was 6 weeks. The Council was right to set the partner agencies a response deadline of 2 December 2014.
  8. I note that the EHC planning process was a new process for the Council in 2014.

Analysis – Council’s failure to ensure that provisions specified in section F of the EHC Plan were in place

  1. The Council has an absolute non-delegable duty to secure provisions inserted in section F of the EHC Plan. Paragraph 9.76 of the Code says that ‘in cases where health care provision or social care provision is to be treated as special educational provision, ultimate responsibility for ensuring that the provision is made rests with the local authority (unless the child’s parent has made suitable arrangements).’
  2. Though the Council is entitled to arrange health provisions specified in section F through CCG commissioning of NHS Primary Care Trust services, if there is significant delay by the CCG or an obstructive approach by NHS health services the Council will have no alternative but to commission from the private sector to ensure provisions specified in section F are in place. It may then ask the CCG to recoup its costs.
  3. Given the children’s therapy service’s emphatic rejection in late June 2015 of SALT provision for D specified in section F and doubt as to whether it could provide a suitable occupational therapist, the Clinical Commissioning Group’s inability to change therapy’s view on the matter, and the Clinical Commissioning Group’s inaction in relation to commissioning a clinical psychology service for D, the SEN department should have commissioned therapy services, occupational therapy equipment specified in section F, and clinical psychologist services privately at the beginning of July and sought to reclaim costs from the Clinical Commissioning Group. Comprehensive education and health provision in line with the section F specification could have started in July 2015. As it turned out the Council delayed commissioning health provision until the end of October 2015 and therapy services were in place from January 2016. The effect of the Council’s inaction was to create further delay for D - a delay of approximately 6 months - in accessing a suitable education in line with her special educational needs.
  4. There is evidence of a partial implementation of provision in the period September - December 2015 in the sense that a tutor was in place and a Learning Mentor in place for a brief period in August and from late November 2015. However, the tutor’s ability to teach effectively was hampered because of lack of support from therapists. Tuition in the autumn term 2015 occurred without the professional advice and guidance of health professionals, and access to a computer laptop and occupational health equipment to support learning. In my view lack of support placed the arrangement at risk of breakdown in the autumn term 2015. Further, the tutor might have been able to provide more contact hours in the autumn term if supported by advice and guidance from therapists and the clinical psychologist.
  5. I accept that the Council had little choice but to source the tutor and Learning Mentor from a specific agency in the local area. I also acknowledge the agency’s difficulty sourcing an appropriate Learning Support Assistant to perform the Learning Mentor role. The role clearly requires an unusual and specialist skill set – ability to support an academic programme together with ability to deliver a programme to develop social and independent living skills for a young person with a complex learning disability and associated mental health difficulties. I also acknowledge practical difficulties when implementing a complex package of education and therapy provision – and one which involves a high degree of co-working on the part of the professionals involved and the parent - in the home based environment.

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Agreed action

  1. Given evidence that health failed to comply with two deadlines the Council should have commissioned at the beginning of January outstanding OT and speech and language assessments from private providers to prevent further delay. If this had happened it is likely that the Council would have been in a position to issue a draft EHC plan by early February 2015 and a final EHC plan by the beginning of the half term holiday 16 – 22 February 2015. Comprehensive provision could have been in place by March 2015.
  2. From July to late October 2015 the Council did not recognise a non-delegable duty to ensure that provisions specified in section F were in place. The Council delayed commissioning provisions specified in section F when there was compelling evidence of obstruction or inaction by the NHS therapy services and the CCG.
  3. To remedy fault causing injustice to D and Mrs C the Ombudsman recommended and the Council agreed to carry out the following action:
    • Pay D £2000 as acknowledgement payment for lost or diminished educational opportunity in the period March 2015 to the beginning of January 2016
    • Reimburse Mrs C for the cost of clinical psychology services for D from March 2015 to November 2015
    • Pay Mrs C £1000 for her time and trouble in pursuing the complaint and distress to feelings caused by the Council’s failure to acknowledge key responsibilities to D
    • Notify the clinical commissioning group, the NHS Trust and Designated Medical Officer (and relevant joint bodies including the Hampshire Health and Well Being Board) about the SEN department’s concern that health failed to fulfil statutory cooperation duties
    • Review arrangements for resolving disagreement between the Council, the clinical commissioning group and the NHS Trust.
    • Apologise in writing to D and Mrs C for fault identified by the Ombudsman
  4. The Council has told the Ombudsman that it plans to raise the issue of non-cooperation by health with the Department for Education. The Council has told the Ombudsman that it is considering legal enforcement as a method of ensuring that health complies with deadlines regarding the EHC assessment and planning process.
  5. The Council recently confirmed to the Ombudsman that it had carried out the agreed action except for reimbursement of clinical psychology services from March 2015 to November 2015. This is because Mrs C has confirmed to the Council that she did not incur costs for these services in this period.  

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Final decision

120.  The agreed action suitably remedies fault. The complaint is therefore closed.

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Investigator's decision on behalf of the Ombudsman

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