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Warwickshire County Council (17 003 581)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 27 Apr 2018

The Ombudsman's final decision:

Summary: Ms B complained the Council delayed completing her daughter’s education, health and care plan and failed to follow the set process. The evidence shows the Council delayed issuing the plan and delayed referring for a sensory assessment. Ms B had to go to time and trouble to pursue her complaint, is frustrated about the delay and is left not knowing if earlier referral would have resulted in an different outcome for her daughter. An apology, financial remedy and a reminder to officers is satisfactory remedy for the injustice caused.

The complaint

  1. The complainant, whom I shall refer to as Ms B, complained the Council delayed finalising her daughter’s education, health and care plan and failed to follow the process when setting up the plan.

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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. If we are satisfied with a Council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. As part of the investigation, I have:
    • considered the complaint and Ms B's comments;
    • made enquiries of the Council and considered the comments and documents the Council provided;
    • considered Ms B’s comments on my draft decision;
    • gave the Council an opportunity to comment on my draft decision.
  2. Under the information sharing agreement between the Local Government and Social Care 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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What I found

  1. The Special Educational Needs and Disability Code of Practice (SEN code of practice) issued in January 2015 provides timescales for completion of education, health and care plans. This says the whole process, from the point when an assessment is requested until the final plan is issued, must take no more than 20 weeks. That is subject to various exemptions which are set out in the SEN code of practice.
  2. The SEN code of practice says reviews taking place from Year 9 must include a focus on preparing for adulthood. This transition planning must be built into the plan. It is particularly important in these reviews to seek and to record the views, wishes and feelings of the child or young person. The review meeting organiser should invite representatives of post-16 institutions to these review meetings, particularly where the child or young person has expressed a desire to attend a particular institution. Review meetings taking place in Year 9 should have a particular focus on considering options and choices for the next phase of education.
  3. Section 19 of the Education Act 1996 (the Act) says each local education authority shall make arrangements to provide suitable education at school or otherwise than at school for those children who, due to illness may not for any period receive suitable education unless such arrangements are made for them. The Act goes on to say suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he or she may have.
  4. The Government issued statutory guidance to local authorities in January 2015. ‘Ensuring a good education for children who cannot attend school because of health needs’ says local authorities (LAs) must:
    • Arrange suitable, full-time education (or as much education as the child’s health condition allows) for children of compulsory school age who, because of illness, would otherwise not receive suitable education.
    • Where full-time education would not be in the best interests of a particular child because of reasons relating to their physical or mental health, LAs should provide part-time education on a basis they consider to be in the child's best interests.’

Background to the case

  1. Ms B’s daughter has special educational needs. Until 2014 Ms B’s daughter was attending school full-time. She has not attended school since October 2014. Ms B’s daughter began receiving one day a week support from a member of the ill health team at home in 2015.
  2. In March 2015 Ms B asked the Council to carry out an assessment for an education, health and care plan (EHC plan). The Council refused and Ms B appealed that decision. In October 2015 the Council told Ms B it would not oppose the appeal and would begin the assessment. The Council told Ms B it would seek advice from the community paediatrician, educational psychology service, social care, ill health team, family therapist at child and adolescent mental health (CAMHS) and the local psychiatrist at CAMHS.
  3. The Council received advice for the education, health and care plan from the educational psychologist, member of the ill health team, social care and NHS in November 2015.
  4. On 29 February 2016 the Council issued a draft EHC plan.
  5. In April 2016 a meeting took place to discuss the draft plan and the next steps. The meeting agreed to make a referral to Phoenix Psychology. The Council cancelled further meetings as Phoenix Psychology did not assess Ms B’s daughter until May and June 2016. In July 2016 Phoenix Psychology recommended a sensory assessment due to some sensory difficulties identified during its assessment of Ms B’s daughter. The referral did not take place at that point because the Council believed the school would make the referral while the school believed the Council would make the referral.
  6. A meeting took place to discuss the proposed EHC plan on 20 July. At the meeting Ms B expressed interest in Leamington Arts and Music Project (Lamp) as she was concerned about her daughter becoming isolated as she was not leaving the house. The special educational needs coordinator (SENCO) agreed to make a referral to the autism team as Ms B’s daughter had received a diagnosis of autism spectrum disorder. Ms B agreed to highlight any amendments to the plan so the Council could issue an amended plan.
  7. The Council’s flexible learning team began working with Ms B’s daughter in August 2016. That included taking Ms B’s daughter out to different locations to encourage her to leave the house.
  8. Ms B’s daughter began attending Lamp for one day a week in September 2016 which later increased to two days per week.
  9. On 13 January 2017 the Council issued an amended plan incorporating the report from Phoenix Psychology. The Council held a meeting to finalise the plan on 31 January. However, the Council required further information from Lamp about the outcomes and provision. That was later provided but was still not sufficient.
  10. The clinical psychologist began working with Ms B’s daughter on 9 February 2017.
  11. In August 2017 a member of the flexible learning team visited Ms B’s daughter to discuss the arrangements for increasing her timetable to include English. Ms B’s daughter was unhappy with that but agreed to attend English lessons.
  12. The Council held a meeting on 16 October to discuss the post 16 options for Ms B’s daughter.
  13. The Council issued the final education, health and care plan on 17 November 2017.

Analysis

  1. The SEN code of practice is clear the maximum time allowed from the point at which the Council agrees to produce an education, health and care plan to the point at which the final plan is issued is 20 weeks unless exceptional circumstances apply. I am not aware of any exceptional circumstances, as set out in the SEN code of practice, applying in this case. The Council began drawing up the plan in October 2015 but did not issue a final plan until November 2017. That is two years. Failure to follow the timescale set down in the SEN code of practice is fault.
  2. In reaching that view I am aware the Council says it could not complete the final plan because it was waiting for information. The Council has provided evidence to show some delay waiting for a report from Phoenix Psychology, waiting for Ms B’s comments on the draft plans and waiting for some information from Lamp. However, those delays do not account for the entire two-year period. Nor has the Council provided me with evidence to show it kept Ms B up to date with the reason for the delay and the information it was waiting for. In those circumstances I consider the Council’s failure to meet the 20 week time limit fault. I am particularly concerned about that because it affected the Council’s ability to carry out the year 9 review I refer to in paragraph 7.
  3. The issue is what injustice that caused Ms B and her daughter. In terms of the provision within the education, health and care plan I have considered the contents of the February 2016 draft plan, January 2017 draft plan and November 2017 final plan. I can see little difference in the provision between the three plans. So, I do not consider the delay producing the final education, health and care plan likely affected the provision received by Ms B’s daughter. Nevertheless, the delay caused Ms B frustration, denied her the opportunity to appeal and led to her having to go to time and trouble to pursue her complaint.
  4. There is, however, an issue with the referral for a sensory assessment. Ms B’s daughter was assessed as requiring a sensory assessment in July 2016. However, due to a miscommunication about whether the Council or the school would make the referral it was not made until April 2017. That delay of 10 months is fault. Ms B is left not knowing whether that delay has further entrenched her daughter’s view of what provision she will accept or contributed to her issues with dietary intake.
  5. I have criticised the Council for the delay completing the finalisation of the education, health and care plan. However, I have found no evidence to suggest it failed to consult the relevant parties. The education, health and care plan refers to information provided by Ms B, the educational psychologist, the community paediatrician, the ill health team, the social worker, the school and the psychologist. I therefore have no grounds to criticise the Council in terms of those contacted to have an input into the plan.
  6. Although the Council delayed producing the final education, health and care plan I am satisfied it put in place the following support:
    • home based curriculum support once a week from the ill health team;
    • support from a targeted youth worker;
    • provision from Lamp which it increased from one day per week to 2.5 days per week, with English lessons added; and
    • work with Phoenix Psychology.
  7. The Council also attempted to introduce maths as a topic for Ms B’s daughter but that has not been successful so far. So, I could not say delay producing the final education, health and care plan meant Ms B’s daughter failed to receive any provision.
  8. In reaching that view I am aware Ms B is concerned her daughter is not in receipt of full-time education. However, as I said in paragraph 9, Government guidance says when a child is educated outside of school the expectation is the Council will arrange suitable full-time education or as much education as the child's condition allows. Government guidance also says where it is not in the best interests of the child to provide full time education the Council should put in place part time education. I am therefore satisfied Government guidance is clear there are circumstances where full-time education is not appropriate. So, failure to put in place full-time education, of itself, is not necessarily evidence of fault.
  9. In this case it is clear the education provision put in place for Ms B’s daughter has been carefully structured to reflect the provision she was willing to accept. The documentary evidence also records the barriers Ms B’s daughter has put in place to taking part in further academic studies. The documentary evidence also shows Ms B’s daughter was interested only in learning life skills rather than studying particular subjects. In those circumstances I cannot criticise the Council for the provision in place. It is clear to me the Council has put in place provision it has been able to get Ms B’s daughter to accept. I therefore have no grounds to criticise it.

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Recommended action

  1. Within one month of my decision the Council should:
    • apologise to Ms B for the delay issuing the final EHC plan and in referring for a sensory assessment;
    • pay Ms B £500 to reflect her uncertainty about whether her daughter’s situation would be improved had the referral for a sensory assessment been made on time and to reflect her frustration at the delays providing a final EHC plan as well as the time and trouble she had to go to; and
    • remind officers dealing with education, health and care plans of the need to ensure they follow timescales set down in Government guidance. Officers should be reminded where the timescales cannot be met they should tell the parent the reasons for that and keep them up to date with progress.

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Final decision

  1. I have completed my investigation and found fault by the Council which caused an injustice to Ms B. I am satisfied the action the Council will take is sufficient to remedy her injustice.

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Investigator's decision on behalf of the Ombudsman

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