The Ombudsman's final decision:
Summary: The Council failed to ensure an OT assessment was carried out on time and that respite care was provided. This caused injustice to Mr and Mrs D and their son. The Council has agreed to pay monies to be used for F's educational benefit. There is no fault by the Council in refusing to reimburse driving costs or in the provision of social care. Other parts of the complaint are out of the Ombudsman’s jurisdiction.
- The complainants, whom I will call Mr and Mrs D, complain through their legal advisor (Mrs M) that the Council has not met their son’s needs. In particular they complain the Council:
- delayed in seeking appropriate Occupational Therapy advice.
- failed to provide the agreed package of social care.
- failed to appropriately assess and acknowledge the extent of their son’s special educational needs.
- failed to follow the correct procedure when issuing their son’s statement of special educational needs.
- has not reimbursed driving costs between 23 July 2014 and 15 August 2016.
- wrongly wanted their son to be considered a Looked After Child under Section 20 of the Children Act 1989.
- failed to comply with a Subject Access Request within the prescribed time.
- failed to implement Occupational Therapy recommendations.
- failed overall to meet their son’s needs.
What I have investigated
- I have investigated Mr and Mrs D’s complaints a), b), d), e), and f) above. I explain at the end of this statement why I have not investigated the rest of the complaint.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
- We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
- SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Chamber of the First Tier Tribunal (‘SEND’))
- We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
- We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
- We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
How I considered this complaint
- During my investigation I have:
- Spoken with Mrs M about Mr and Mrs D’s complaint and considered the supporting evidence they provided.
- Sent enquiries to the Council and considered its responses including information about F.
- Considered legislation and guidance as referenced below.
- Given all parties the opportunity to comment on my draft decision, and issued a second draft decision.
What I found
- A child with special educational needs (SEN) may have a statement. The statement sets out the child’s needs and what arrangements should be made to meet them. The law and guidance governing statements is the Education Act 1996, the 2001 SEN Code of Practice and the SEN Toolkit. The Children and Families Act 2014 replaced statements with Education Health and Care (EHC) Plans. Everyone receiving support will have transferred from the old system to the new by 2018.
- Parents may appeal to SEND against the provision specified in a statement or EHC Plan, including the named placement, or the failure to name a placement.
- The Council is responsible for making sure that all the arrangements specified in the statement are put in place. The Ombudsman cannot look at complaints about what is in the statement but can look at other matters, such as where support set out in a statement has not been provided or where there have been delays in the process. The Ombudsman cannot change a statement; only SEND can do that.
- The correspondence about this case is detailed and extensive. It is not possible (or necessary) for me to set out everything which has happened. I have set out below the key events.
- Mr and Mrs D’s son, F, was born in 2009. He has been diagnosed with Autistic Spectrum Disorder (ASD). F has significant difficulties due to his ASD including low cognitive function, hyperactivity, high levels of anxiety, and no communication skills. He often demonstrates extreme behaviour including banging his head on walls.
- In 2013 Mr and Mrs D returned to the UK from overseas. The consultant paediatrician referred F to the NHS Paediatric Occupational Therapy (OT) Service. Following an initial assessment the OT recommended 6 sessions of OT, which F received from early 2014. The Council agreed a package of short breaks to provide respite to the family from November 2013. This was provided by a befriending service using a direct payment.
- In December 2013 Mr and Mrs D asked the Council to carry out a statutory assessment of F with a view to issuing him with a statement / EHC plan. In April 2014 the short breaks hours were increased.
- The Council issued F’s final statement in April 2014 naming Mr and Mrs D’s preferred school (School B). This is a local authority special school for children and young people with ASD. An OT assessment had not been completed but the statement said “F requires urgent assessment by an OT, both functional and sensory” on admission to School B. The covering letter for the statement advised Mr and Mrs D of their right to appeal to SEND. F started at School B in September 2014.
- Mr and Mrs D told the Council they were struggling to cope. They found the only way to calm F was to drive him around. The Council carried out an initial assessment of F as a child in need. It then increased the hours of short breaks, recommended referral to local support groups for autistic children, a sensory learning and play centre and to purchase a sofa bed and bouncing chair to meet F’s sensory needs. Mr and Mrs D disagreed with this and contacted a solicitor (Mrs M).
- The NHS OT was working with the family and completed a sensory assessment by March 2015. This said F needed “access to linear (forward and backward) movement to help calm him i.e. using a supportive swing or being driven in a car”. The consultant wrote to the Council recommending F receive 1 to 1 support. She said F had had little input from the OT service because “the NHS OT only provides for activities of daily living rather than sensory package of care.”
- Mrs M asked the Council to confirm whether F was a child in need. The Council carried out a core assessment in spring 2015. This referred to Mr and Mrs D spending “hours during the day and night, driving for hundreds of miles trying to calm F and get him to sleep”, which Mrs M said they had to do as the Council was not meeting F’s sensory needs.
- The Council responded to Mrs M in June 2015. It said that the NHS OT’s assessment “had not been commissioned or agreed by Children’s Social Care and therefore Social Care does not have an obligation to fund the costs its recommendations entail. Our assessment is that this practice on a regular basis is dangerous and places both parents and F at risk and therefore the cost of petrol it incurs will not be refunded.” The Council proposed alternatives including:
- A review of the current support to see if some of the support offered by the sensory play centre could be moved to the family home.
- Parents to be supported to look at alternative accommodation or to make temporary changes to enable an intensive sleep pattern for F.
- I have considered each of Mr and Mrs D’s complaints in turn.
a) The Council delayed in seeking appropriate Occupational Therapy advice.
- Mrs M complains that F’s April 2014 statement said an Occupational Therapy assessment would take place on admission to School B in September 2014, but it was not completed until August 2015.
- The Council says when F was referred to the NHS OT in 2013 there was a waiting list. The OT’s sensory assessment was therefore not completed until spring 2015.
- The Council did not have any control over the waiting time for an NHS OT assessment. However, it had a duty to ensure the provision in the statement (a sensory and functional OT assessment from September 2014) was delivered and it failed to do this. This is fault.
- A sensory OT assessment was completed by March 2015. In my first draft decision I found that the delay from September 2014 to March 2015 had not caused significant injustice to F or Mr and Mrs D. This was because the NHS OT was working closely with the family during 2014 and OT sessions were provided. F was attending School B from September 2014 and the Council says at no point did School B advise it could not meet F’s needs. The April 2014 statement sets out a variety of provisions to meet F’s sensory needs and there is no evidence these were not being provided. In addition I cannot say that the outcome of the sensory assessment would have been any different if it had been completed in September 2014.
- In response to my draft decision, Mrs M said significant injustice had been caused by the delay because the March 2015 assessment was not sufficient to meet the requirements of the April 2014 statement. I have considered this again. The April 2014 statement required a functional OT assessment as well as a sensory one. The functional element was not completed until August 2015, after the Council had commissioned an updated assessment by the sensory OT service in spring 2015. There was therefore a longer delay of 11 months in meeting the requirement for a functional OT assessment.
- I have looked at how this affected F and Mrs and Mrs D. I realise Mr and Mrs D say School B was not meeting F’s sensory needs. It is not my role to determine whether F’s needs were being met. However, I consider the delay in completing the functional OT assessment would have caused uncertainty about whether F was receiving appropriate support between September 2014 and September 2015.
- The second assessment recommended a minimum of 30 weekly OT session of 45 minutes. This is an increase on what was set out in the April 2014 statement, which required support from an OT. F therefore lost the opportunity of this extra provision.
b) The Council failed to provide the agreed package of social care.
- F’s April 2014 and September 2014 statements say the family should be provided with respite opportunities and that advice should be sought from social services, to determine whether their service has a role supporting the family.
- The Council then agreed a package of care to meet F’s assessed social care needs. This included support from a befriender, which was provided by the sensory play centre. However, this support ended in August 2015 following a dispute about payments. In April 2016 the Council’s in-house sitting and befriending team took on the care.
- I have considered the Council’s actions. Between September 2015 and January 2016 it contacted nine possible providers but they did not have capacity or were unable to provide the service required. The Council tried to use its own befriending service, but staff were not available. It provided personal budgets for horse-riding and hydrotherapy sessions.
- Mrs M says the Council also agreed a personal budget for horse riding therapy for 1 hour per week and an additional hour during school holidays. Mrs M says despite numerous requests, no funds were provided between 20 August 2015 and 1 November 2015. The Council says “numerous attempts” were made to obtain horse-riding sessions but only one could be found before the centres stopped over the winter.
- The Council assessed and reviewed F’s needs, developed a care plan and made efforts to find suitable providers. When the support provided by the sensory play centre broke down F was left without the full package of care. My initial view was that this did not amount to fault because of the efforts the Council had made to secure provision. Mrs M disagreed. She said the Council had a legal duty to ensure services are provided. I have considered this again. The failure to provide respite care from a befriender service from August 2015 to April 2016 was fault. This caused injustice to Mr and Mrs D as they were without support whilst they were struggling to cope with F’s needs.
d) The Council failed to follow the correct procedure when issuing their son’s statement of special educational needs.
- Mrs M says Mr and Mrs D’s appeal to SEND was registered on 11 November 2015. But in response to comments from Mr and Mrs D the Council issued a proposed amended statement on 11 November 2015. Mrs M says any amendments should have been made through SEND.
- In response to my enquiries the Council said Mrs M did not tell it about the appeal until 23 November 2015. SEND told the Council about the appeal on 3 December 2015. There is no evidence of fault.
- In response to my first draft decision, Mrs M said the Council had delayed issuing the final statement. She said the annual review had been held in March 2015; the final statement was issued on 28 September 2015.
- The government advice on managing the 2014 changes to the SEN system says councils must give regard to the 2001 SEN Code of Practice for those with statements. The Code does not set timescales for issuing a proposed amended statement following an annual review. It says councils “must make that amendment within eight weeks of sending the amendment notice to the parents.”
- Following the March 2015 annual review the Council sent Mr and Mrs D a proposed amended statement on 22 July 2015. This was not fault. It then issued the final statement on 28 September. This was nine weeks later which is a delay of one week. I do not consider this caused significant injustice.
e) The Council has not reimbursed driving costs between 23 July 2014 and 15 August 2016.
- Mrs M says F’s sensory needs were not being met. She says because of a lack of space in the family home for a swing, the only way to calm him was for his parents to drive him for long distances, approximately 820 miles per week. Mrs M complains the Council has refused to reimburse the costs of this.
- F’s statements identify his sensory needs and say that until these “are addressed, he will not be able to learn.”
- I asked the Council how it ensured F’s sensory needs were being met. It said F was attending School B, which is the “recognised specialist school in Nottinghamshire with a specialist knowledge and integral sensory based curriculum for children and young people with ASD and sensory needs.” It said at no point did School B say it could not meet F’s needs. The Council said it provided Mr and Mrs D with a Personal Budget to access a specialist sensory short break provider. It had also offered to support Mr and Mrs D with a move to a different property so F could access “space and sensory equipment outside of school”.
- The Ombudsman cannot say what F’s needs are or how they should be met. The role of the Ombudsman is to consider if the Council delivered the content of F’s statement.
- Although the OT’s sensory assessment in March 2015 had acknowledged driving calmed F, the Council had said it disagreed with this as a suitable way to meet F’s needs. F’s statement does not say he needs to be driven. The statement instead contains a number of general provisions to meet his sensory needs and the Council has explained how these were met. There was therefore no duty on the Council to provide for F to be driven or to fund this. I do not find fault with the Council for refusing to reimburse Mr and Mrs D’s driving costs.
- I realise Mr and Mrs D disagreed with the content of the statement, but this is not something I can consider. This is because the content of statement could be (and was) appealed to SEND.
f) The Council wanted their son (F) to be considered a Looked After Child under Section 20 of the Children Act 1989.
- On 12 August 2016 (the Friday before F was due to start at School C) the Council emailed Mrs M. The email said “it is the local authority’s position that F must, upon commencing the placement at School C, become a looked after child...[because]… But for this placement the local authority would be providing high levels of social care support via other channels, so it cannot be said that the decision has been reached purely on educational grounds.”
- Mrs M responded on the same day. She referred the Council to case law and SEND’s decision in order to argue against the Council’s claim. The Council replied on the Monday and said it would not pursue making F a looked after child.
- Mrs M says this shows a misunderstanding of the law and caused unnecessary stress to Mr and Mrs D.
- The case notes from the Council show that on 11 August 2016 a manager had reviewed the case and decided F should be made a looked after child. The manager recorded that “F is a child who clearly has social care needs....It is highly unlikely that parents would have ever been able to manage his care without ongoing support.” The Council received legal advice the following evening which said F should not be made a looked after child. This was because the tribunal’s decision for F to attend a residential school was based only on F’s education needs.
- The role of the Ombudsman is to identify fault leading to significant personal injustice. There was fault by the Council in initially appearing to misunderstand the tribunal’s decision. I appreciate the Council’s email may have caused some distress to Mr and Mrs D, but the Council quickly amended its decision. I consider that to be an appropriate response and that no significant injustice was caused.
- I have found fault causing injustice as set out in paragraphs 33-36 and 41.
- The Council should apologise to Mr and Mrs D:
- for the delays in completing the functional OT assessment, which meant that F missed out on six months of OT provision during the 2014/15 academic year.
- for the failure to secure respite care from a befriender service from August 2015 to April 2016
- The Council failed to ensure an OT assessment was carried out on time and that respite care was provided. This caused injustice to Mr and Mrs D and their son.
- I have not found fault causing injustice in the rest of the complaint. Some parts of the complaint are out of the Ombudsman's jurisdiction.
- The Council has agreed to my recommended actions and I have completed my investigation.
c) The Council failed to appropriately assess and acknowledge the extent of their son’s special educational needs.
- Mr and Mrs D complain the Council did not assess F’s SEN needs properly. The issue of whether the Council had met F’s sensory needs formed a key part of the appeal to SEND. This means the Ombudsman cannot consider this matter. Where a complainant has exercised their right of appeal in any court of law the Ombudsman has no discretion to investigate (Local Government Act 1974, section 26(6)(a)). This is the case even if the appeal may not provide or have provided a complete remedy for all the injustice claimed. (See R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916.)
g) The Council failed to comply with a Subject Access Request within the prescribed time.
- This is not a matter for the Ombudsman. It is instead a matter for the Information Commissioner’s Office (ICO). The ICO deals with complaints from members of the public who believe that an authority has failed to respond correctly to a request for information. I can see no reason why Mr and Mrs D could not refer the matter to the ICO.
h) The Council failed to implement Occupational Therapy recommendations.
- Mrs M complains the recommendations in the August 2015 OT report were not acted on. She says that the Council failed to confirm until the SEND hearing that it agreed with the recommendations or that it had found an OT to work with F during the school day. She also complains the Council refused to confirm whether the OT would attend the hearing.
- These are not issues the Ombudsman can consider. If Mr and Mrs D felt the OT’s report should be included in the statement, they had the right to appeal to SEND. They did this in November 2015. As I explain above this prevents me from considering this matter.
- Mrs M has asked the Ombudsman to consider reimbursing costs incurred by Mr and Mrs D as a result of their appeal to SEND. But this is not a matter the Ombudsman can consider. This is because the issue of costs has already been considered by SEND in July 2016.
i) There was an overall failure to meet their son’s needs.
- Mrs M says “There was overwhelming evidence available to the Local Authority as to the extent of F’s needs and the provision / type of school placement that he required to meet these needs. However, the failure of the Local Authorty to acknowledge these and to name School C in Part 4 of F’s Statement of SEN, meant they failed to meet his needs.”
- Mr and Mrs D appealed the school named in F’s statement to SEND. So this is not a matter the Ombudsman can consider.
Investigator's decision on behalf of the Ombudsman