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Suffolk County Council (17 000 415)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 09 Oct 2017

The Ombudsman's final decision:

Summary: The Council was at fault when it delayed completing Y’s EHC Plan, delayed requesting Social Care information for the assessment, did not obtain health advice and gave Mrs X false hope that it would create a specialist sensory centre for Y’s transfer to high school. These faults led to confusion, frustration and distress for the family, and time and trouble for Mrs X. The Council has already apologised and offered Mrs X £500. The Council has agreed to review its processes. The Council was not at fault in how it provided interpreting for Y’s Educational Psychology assessment or in how it considered whether to provide a sensory centre.

The complaint

  1. Mrs X complained the Council:
    • delayed completing her son’s Education, Health and Care Plan (EHC Plan) and failed to gather the information needed for the plan;
    • failed to provide a qualified British Sign Language interpreter for an Educational Psychology assessment; and
    • gave her false hope it would provide a sensory centre and followed incorrect processes in considering whether to provide a unit.
  2. Mrs X also complained the Council drafted a plan that did not reflect her son’s needs.

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What I have investigated

  1. I have investigated the complaints in part one of the complaint above. I have not investigated part two for the reasons in “parts of the complaint that I did not investigate”.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. 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)
  4. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Chamber of the First Tier Tribunal (‘SEND’))

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How I considered this complaint

  1. As part of the investigation, I:
    • read the information sent by Mrs X and discussed the complaint with her;
    • made enquiries of the Council and considered the comments and documents it provided;
    • looked at the relevant law and guidance, including the Special Educational Needs and Disability Regulations 2014 and the SEN Code of Practice; and
    • wrote to Mrs X and the Council with my draft decision and considered their comments.

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What I found

  1. The Special Educational Needs Code of Practice 2014 sets out the law and guidance for councils to follow in assessing and providing for pupils with special educational needs. It says councils must consult with parents and consider the outcomes they wish to achieve, and the support they need to achieve them throughout the process (SEN Code of Practice, paragraph 9.21).
  2. The whole process of issuing a final Plan must take no longer than 20 weeks aside from in limited exceptional circumstances (Special Educational Needs and Disability Regulations 2014, Regulation 13(2)).
  3. Councils are responsible for ensuring there is effective coordination of the assessment and development process for an EHC Plan. Councils must carry out the process of EHC needs assessment and EHC Plan development in a timely manner.
  4. Parents do not have a right of appeal against the contents of an EHC Plan until a council issues a final EHC Plan, even if the process goes over 20 weeks.
  5. In seeking advice and information, councils should consider what advice they need which will cover all the relevant education, health and care needs of the child or young person. Councils must seek advice and information from a number of sources and this must include:
    • “Medical advice and information from health care professionals with a role in relation to the child’s or young person’s health”;
    • “Social care advice and information from or on behalf of the local authority, including, if appropriate, children in need or child protection assessments”; and
    • “Advice and information from any person requested by the child’s parent or young person, where the local authority considers it reasonable to do so”.

(SEN Code of Practice, paragraph 9.49)

  1. EHC Plans must be completed by 15 February at the latest in the calendar year of transfers into or between schools. This allows for planning for and, where necessary, commissioning of support and provision at the new institution.

What happened

  1. Mrs X’s son, Y, is deaf and has had a Statement of Special Educational Needs (a Statement) since he was three years old. On 7 April 2016 the Council agreed to transfer his Statement to an EHC Plan. The law says the Council has 20 weeks to issue a final EHC Plan, so the Council should have issued Y’s plan by 25 August 2016.
  2. Mrs X asked the Council to consult Health and Social Care three times, in April via an Independent Supporter, in June and then July.
  3. At the beginning of July Mrs X asked the Council specifically to consult Y’s GP. The Council sent a letter to Y’s GP asking for advice on 15 July and later sent another request on 25 August. However the Council did not receive advice from the GP.
  4. At the beginning of July the Council told Mrs X she would need to make a Social Care referral before it could request Social Care advice. Mrs X made the referral on 11 July. The Council then sent a letter to Social Care asking for advice on 20 July. The advice was completed on 12 August.
  5. The Council sent Mrs X working copies of the EHC Plan on 1 and 22 September and held co-production meetings on 14 September and 13 October.
  6. The Council issued a draft EHC Plan on 3 November 2016. On 29 November the Council chased Mrs X for her comments as she had not yet sent her response. Mrs X apologised for the delay and her Solicitor sent a response on her behalf at the beginning of December.
  7. The Council held another coproduction meeting on 22 December 2016 and issued a second draft EHC Plan the same day.
  8. On 9 January 2017 Mrs X’s Solicitor sent the response to draft two of the EHC Plan which requested amendments. It asked the Council to issue a final EHC Plan once it had considered the amendments.
  9. The Council issued the final EHC Plan on 22 February 2017, 46 weeks after it agreed to transfer Y’s statement to an EHCP. This is 26 weeks longer than the law allows. This is also one week later than the deadline for EHC Plans to be completed for transferring to a different phase of education.
  10. In response to Mrs X’s later complaint, the Council accepted it had not gathered enough information during the earlier stage of the EHC Planning Process and that it delayed issuing the final EHC Plan. The Council apologised and said “delays in the EHC Planning process were caused in part by attempts made by my SEN staff to positively refine the plan during several coproduction meetings”.
  11. As part of the process of planning for Y’s transfer to high school which would be in September 2017, the Council had also been considering developing a specialist sensory centre.
  12. The Council sent a letter to Mrs X on 30 January explaining developing a sensory centre was a much larger piece of work and would take time. It said this should not delay Y’s EHC Plan being completed.

Findings

  1. The Council was at fault because it delayed completing Y’s EHC Plan. It issued multiple draft EHC Plans and tried to agree on wording with Mr and Mrs X before it issued a final. While the law encourages Councils to consult with parents, the Council should have issued a final plan earlier allowing Mr and Mrs X to access their right to appeal via the Tribunal. The lack of clarity about what provision would be available for Y in September 2017 when he transferred to high school added to the delay.
  2. The Council was at fault because it delayed requesting advice from Health and Social Care, which is a statutory requirement, for three months. This added to the overall delay in completing Y’s EHC Plan. Mrs X had to ask it to request this advice on multiple occasions. Had the Council requested information from the GP earlier it may have had more opportunity to chase a response. The Council did not obtain health advice for the plan and this is fault. The Council says the inability to gather health information was because the GP surgery did not respond to its request. However it is the Council’s duty to gather the necessary information. This causes uncertainty about whether the plan properly addresses Y’s health needs. However Mrs X says she is happy with the plan’s contents.
  3. The delay caused stress for the family and Mrs X went to added time and trouble in having to prompt the Council to consult Health and Social Care. Y was worried due to the uncertainty about his future and he was anxious and tearful.
  4. Y had a statement of SEN in place before the EHC Plan was completed and the EHC Plan is in place now Y is at high school. Y did not miss out on provision because of the delay.

Providing an interpreter for the Educational Psychology assessment

  1. Communication and language professionals are not regulated by law. There is no legal requirement for an interpreter to be registered with the National Registers of Communication Professionals working with Deaf and Deafblind People (NRCPD) or the Association of Sign Language Interpreters (ASLI). Registration with these organisations does not mean that an interpreter is more qualified.

What happened

  1. In March 2016 those involved in Y’s transfer review agreed that Y needed an assessment by a British Sign Language (BSL)-using Educational Psychologist. Mrs X contacted the Council at the beginning of June and said Y needed to be assessed with a British Sign Language interpreter present.
  2. The Educational Psychologist completed their assessment on 15 August 2016.
  3. Mrs X and the Council disagree about whether the interpreter was NRCPD registered. Mrs X says the interpreter was not listed on the NRCPD register as a Registered Interpreter or trainee interpreter. The Council says the Educational Psychology service used a service that employs interpreters who are registered with ASLI and NRCPD. The Educational Psychology advice report confirms the Educational Psychologist saw Y with a BSL interpreter.
  4. Mrs X had concerns about the accuracy of the assessment. She says there were comments in the report that she did not think Y would say, and she says Y told her he did not understand some questions.

Findings

  1. The report shows the assessor accounted for Y’s communication needs, discussing with the interpreter how to alter the language of the tests to make them more BSL-friendly. There is no evidence the report was not accurate or that it did not provide the information the Council needed for Y’s EHC Plan.
  2. The Council said in its complaint response to Mrs X “The Investigating Officer has not upheld this complaint given his investigations that the BSL Interpreter attended the assessment. Given the evidence that was presented, I accept the Investigator's finding on this matter”.
  3. There is no legal requirement for interpreters to be registered with the NRCPD and ASLI. Registration does not change their level of qualification and in any event, there is no evidence the assessment was not correct. The Council is not at fault.

The provision of a sensory centre

  1. Councils are not required to have specific sensory centres for hearing-impaired children and are entitled to come to their own decisions about the provision within their areas. However they must ensure they enable maintained schools to provide for all children with Special Educational Needs and Disabilities (SEND). The government encourages councils to provide for additional needs within mainstream settings wherever possible, and this Council’s policy is for most pupils with SEND to be educated in mainstream settings.

What happened

  1. Y’s Statement of Special Educational Needs, which was in place before the EHC Plan, said he needed a sensory centre. He attended a sensory centre at a local primary school. However there was not a similar unit available at any of the local high schools within the Council’s area.
  2. In relation to Y’s needs, the Council considered three options:
    • a bespoke package in line with Y’s EHC Plan to support him in a mainstream high school;
    • Y to attend a specialist provision that would meet his needs outside of the Council’s area; or
    • to develop a sensory centre in a local secondary school that Y could attend.
  3. The Council started considering developing a sensory centre in March 2016. The working documents for the draft EHC Plan stated Y would have a placement in a specialist environment. In June 2016 the Head of the Council’s Sensory and Communication Service emailed Mrs X saying the “plan is very much towards developing provision”. In August 2016 the Council told Mrs X, in a complaint response, that Y was the only child with a need for specialist support who would be moving to high school in 2017. It said there was some evidence there would be more need from 2018. The Council later found in November that specialist provision would not be needed by another pupil until 2020.
  4. In considering whether to develop a sensory centre, the Council has so far:
    • considered how many other deaf pupils might benefit from a sensory centre, projected for eight academic years;
    • considered the needs of these learners and whether they required a specialist centre to be able to access the curriculum;
    • consulted with parents of children with sensory impairments and considered their views;
    • considered costs for setting up a sensory centre;
    • met with five high schools which expressed an interest in hosting a sensory centre; and
    • visited other Council areas with similar centres.
  5. The Council found there was no strong consensus among the group of parents it consulted. It found that a sensory centre would improve the students’ learning experience. However other pupils did not need a specialist placement and their needs could be met within mainstream schools. The Council found the interest in creating a specific unit was relatively low. It explained in its later complaint response to Mrs X that it needed to consider all children who could benefit, and not just Y. Mrs X disputes the assertion that there was low interest because there were 23 children that would benefit. She says at the consultation meetings there was a majority view with a preference to develop a sensory centre.

Findings

  1. The Council took steps to gather a range of views and considered these. The Council has explained that while various children might benefit from such a centre, they do not have a specific need for such provision.
  2. The Council considered the information it had gathered and decided there was not enough evidence to support the development of a sensory centre. This was a decision the Council was entitled to make and I cannot question it.
  3. The Council held a meeting with concerned parents in January 2017 and decided to continue considering a sensory centre. This process is still ongoing and the Council is considering parents’ views, pupils’ views and the best value. It has now carried out more detailed consultation than it did initially. The Council has carefully considered the relevant information, consulting parents and weighing up differing views. In Y’s case, the Council has carefully considered the impact on him of attending a mainstream setting as opposed to a specific unit and weighed this against other relevant matters. I cannot criticise a decision properly made and the Council is not at fault in how it has considered developing new provision. In any event, the Council has not made a final decision.
  4. However, the Council raised Mrs X’s expectations about developing a sensory centre and this was fault. This caused confusion for Mrs X and Y and contributed to the delays in the EHC assessment process. In its response to Mrs X’s later complaint, the Council said “I apologise that you were previously given misleading information around the potential for developing the Hearing-Impaired Unit in your locality. It was inappropriate for the member of staff to offer such assurances before a proper review of the proposal took place. As such, I accept the finding of the Investigating Officer on this matter.”
  5. The Council says it “is committed to making an evidence based decision about the future needs for specialist provision in north Suffolk and will continue to progress this work over the coming months.”

Summary

  1. The Council was at fault when it:
    • delayed issuing Y’s final EHC Plan;
    • delayed requesting Health and Social Care information for the assessment;
    • did not obtain health advice for the assessment; and
    • gave Mrs X false hope that it would create a specialist sensory centre for Y’s transfer to high school.
  2. This caused the injustice of:
    • confusion, frustration and distress for the family;
    • lack of clarity about whether Y’s health needs were included in the plan; and
    • time and trouble for Mrs X.
  3. The Council was not at fault in how it provided interpreting for Y’s Educational Psychology assessment or in how it considered whether to provide a sensory centre.
  4. In its complaint response of March 2017, the Council apologised to Mrs X and offered her £350 to acknowledge the distress and £150 for the time and trouble she went to in pursuing the complaint. This is a suitable remedy to acknowledge the confusion, frustration and distress, as well as the time and trouble Mrs X has gone to.
  5. Mrs X also highlighted the Council had not explained how it will avoid similar delays for others.

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Agreed action

  1. The Council has already apologised and paid Mrs X £500.
  2. I recommended, within three months of a final decision, the Council reviews its processes and explains how it will ensure:
      1. similar delays are not experienced by others in the future; and
      2. the relevant agencies are consulted early in the process.
  3. The Council has agreed to the above recommendations and says it has “begun a pilot this week in using a digital hub for EHCP development. This will provide better information for parents throughout the process, real time access to advice requested and received and ensure early requests for advice”. It has agreed to update the Ombudsman with further learning and action within three months.
  4. Under the information sharing agreement between the Local Government Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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Final decision

  1. I have found fault causing injustice for which I have recommended a remedy. The Council has accepted my recommendations and so I have completed my investigation.

Parts of the complaint that I did not investigate

  1. I did not investigate part two of Mrs X’s complaint as this element of Mrs X’s complaint is outside of the Ombudsman’s jurisdiction. Since contacting the Ombudsman, Mrs X has attended mediation to resolve disagreement about the plan’s contents. The Special Educational Needs and Disability Tribunal considers appeals about the content of EHC plans and would have been the appropriate body to consider this element of Mrs X’s complaint had she needed to take it further.

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Investigator's decision on behalf of the Ombudsman

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