The Ombudsman's final decision:
Summary: The Council delayed in transferring Mrs X’s son onto an Education Health and Care Plan, delayed in responding to a request for a Personal Budget and failed to provide information about how to access the Budget. The Council has agreed a suitable remedy including backdating the Personal Budget and reviewing information provided to parents.
- Mr and Mrs X complained that the Council:
- delayed in transferring their son from his statement of special educational needs to an Education Health and Care Plan (EHC Plan);
- failed to deal properly with their request for a Personal Budget as part of the EHC Plan;
- failed to ensure the provision in the statement was made in the meantime; and
- has failed to put in place the part of the Personal Budget that was agreed or provide them with information about how to access it.
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 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, sections 26(1), 26A(1) and 34(3), as amended)
- 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)
- 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)
- 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)
- SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Chamber of the First Tier Tribunal (‘SEND’).)
How I considered this complaint
- I discussed the complaint with Mrs X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I considered relevant law, guidance and policy on special educational needs provision. I shared my draft decision with the Council and the complainants and considered their responses.
- 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.
What I found
- Children who have special educational needs may have a statement of special educational needs (SEN), or an Education Health and Care Plan (EHC Plan). This sets out the child’s special educational needs and the provision required to meet them. The EHC Plan is set out in sections, and only the SEND Tribunal can direct changes to the sections about special educational needs, or name a different school.
- Councils had to transfer pupils with statements onto EHC Plans following the introduction of the new scheme in 2014. This involves carrying out an Education Health and Care assessment. This starts with a transfer review meeting. Councils must complete the assessment and finalise an EHC Plan within 20 weeks of receiving a request for an assessment (unless certain specific circumstances apply).
- Local authorities have a duty to arrange for the special educational provision specified in a child’s statement of special educational needs to be made. (Education Act 1996, section 324)
- They have an equivalent duty to secure the special educational provision set out in an EHC Plan. (Children and Families Act 2014 section 42)
- Statutory Guidance ‘Special Educational Needs and Disability Code of Practice 0–25 years’ explains Personal Budgets as follows.
- A Personal Budget is an amount of money the council identifies to deliver provision set out in an EHC Plan where the parent or young person is involved in arranging the provision. The budget may be paid through direct payments to the individual or to the education placement.
- Details of the proposed Personal Budget are included in section J of the EHC Plan. Councils must also provide written notice of the conditions for receiving any direct payments for special educational provision. It may do this alongside the EHC Plan.
- If the local authority refuses a request for a direct payment for special educational provision it must set out its reasons in writing and inform the child’s parent or the young person of their right to request a formal review of the decision.
- The local authority must consider any subsequent representation made by the child’s parent or the young person and notify them of the outcome, in writing, setting out the reasons for their decision.
- Where the disagreement relates to the special educational provision to be secured through a Personal Budget the child’s parent or the young person can appeal to the SEND Tribunal.
- the Council will set out the reasons for the refusal in writing and inform the parent or the young person of their right to request a formal review of the decision
- it will consider any further representation through the Thurrock Access to Resources Panel and notify the parents of the outcome of this in writing.
Mediation and appeals
- Councils must arrange mediation services to deal with disagreements about EHC assessments and Plans. If parents or young people want it, mediation can take place after they receive a final EHC Plan or an amended Plan. They must contact the mediation service if they are considering an appeal.
- Mr and Mrs X have a son, Y, now aged 14. He has a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD). He attended a mainstream secondary school, School 1, and had a statement of special educational needs issued in 2015. The statement noted that Y had ADHD, difficulty focussing, low self esteem, and that he tended to give up easily if tasks were challenging. He has a talent for sports. The statement set out approaches to teaching that the School should use. It also provided for:
- support from an academic mentor; and
- a Learning Support Assistant (LSA) to provide support individually, in small groups or on a whole class basis, for 15 hours a week.
“I appreciate that this is a change from the original conversion meeting but hope that Thurrock Council will recognise that it would not be in the best interest of [Y] to finalise the EHCP at this stage and will agree to continue to work with his parents and the school to find a creative solution.”
- Mrs X sent in a written request for a Personal Budget on 11 July 2016. She asked for a budget to cover the following:
- an academic tutor for 2 hours a week for 48 weeks a year
- sessions with a support worker from a local ADHD support group after school for 3 x 1 hour sessions per week for 48 weeks a year, including in school holidays, to help develop his ability to do regular homework
- a session with the support worker one hour a week after school to help Y with managing his ADHD
- three residential sports training camps per year
- two hours a month with a coach/mentor to help with learning, planning and organisational skills in a sports context
- a mentor at school to provide support as and when needed.
- a contribution to the cost of three residential sports training camps a year
- a contribution to the cost of a sports coach/mentor for two hours per month.
- 1:1 support from a mentor to review work
- six sessions with the ADHD support group
- LSA support for 20 hours a week.
- additional support to enable Y to access homework club, (the funding to be given to the school)
- three residential sports training camps per year,
- a contribution to two hours a month with a coach/mentor ‘to support learning, planning and organisational skills in a sporting context’.
Analysis – was there fault causing injustice?
- It is clear there was delay in issuing the final EHCP following the transition meeting. To comply with statutory timescales it should have been issued within 20 weeks but in fact it took 53. This is not all a result of fault by the Council, as after considering the draft Plan in June 2016 Mr and Mrs X specifically asked the Council not to issue the final Plan but to consider a new request for a Personal Budget.
- Nevertheless in my view the Council then delayed in responding to the Personal Budget request. There is also evidence that it did not follow its own policy on how to deal with requests. It took four months to respond, from July to November 2016. Although there are no specific timescales for responding to a Personal Budget request, this delayed the issue of the final EHC Plan for which statutory timescales apply. The Council has not explained why it took so long to provide a response. When it replied Mrs X says it did not provide reasons for refusing part of the request. I do not agree. Its letter gave reasons but did not explain the process for challenging the decision. But this did not prevent Mrs X asking the Council to reconsider.
- There was then further delay by the Council. From the information I have seen the Council did not respond to this request despite several contacts from Mrs X asking for a reply. Instead it issued the final EHC Plan in March 2017. Without knowing what the Council was doing to consider the Personal Budget request it is difficult to say how much of the delay was avoidable. But even if I allow a period of four weeks to respond to the request when it was first made, and again on request for reconsideration, the delay resulting from fault by the Council would amount to around 25 weeks over the required timescale.
- During this time Mrs X had to chase up the Council many times to find out what was happening. The Council has recognised her unnecessary time and trouble in pursuing the matter by offering a payment of £150. In my view this is a suitable remedy for this aspect of complaint.
- The question for the Ombudsman is whether Y also suffered an injustice through the delay by missing out on support he should have had. The Council and Mrs X take opposing views on this point. The Council says the support in Y’s statement was in place throughout and so he did not miss out. Mrs X says the support provided under the statement was not adequate. She says her son also missed out because the school stopped providing a mentor. Also she says even once the final EHC Plan was issued the Council has not made any arrangements to offer the funding agreed under the Personal Budget so she can arrange the agreed support herself.
- To see if Y missed out on any support because of the delay I have looked at the difference in the provision in the statement of special educational needs and the final EHC Plan. If Y was refusing to work with the Learning Support Assistant at all, then he could not be said to have missed out on the additional five hours in the EHC Plan. Similarly with the extra support to attend homework club if he was refusing to attend. I am not clear whether Y missed out on any of the sessions with the ADHD support group. However if the final EHC Plan had been issued 25 weeks earlier he would have had the opportunity to access the Personal Budget funds to use for arranging the residential training camps and appointing a coach/mentor. Mrs X says she has not been able to access these funds at all since the Plan was issued as she not received any information about how to do so. In response to the Ombudsman’s enquiries the Council said it intended to discuss the arrangements through consultation with the parents. However it has not explained what it actually did to offer the funding. It should have set this out in accordance with the statutory guidance.
- Based on the information I have seen I find that Y missed out on 25 weeks access to the Personal Budget as a result of fault by the Council, and may have missed sessions with the ADHD support group.
- Mrs X says while she waiting for the final EHC Plan to be issued the school stopped providing a mentor. This should have been provided under the EHC Plan if had been issued earlier. It should also have been provided under the existing statement. The Council says it did not know the service had stopped until Mrs X reported it during the Annual Review meeting in September 2017. However the records show she told the Council in writing on 1 November 2016. The Council has a duty to ensure the provision in the statement is made. Once it was aware the school was no longer putting this in place it should have taken action to ensure the service was restored. I have not seen any evidence it did so. So I consider the Council was at fault in failing to ensure Y received this provision as required in the statement from November 2016. The lack of mentor was also affected by the delay in issuing the final EHCP.
- To remedy the injustice caused the Council has agreed to take the following action within one month of the final decision on this complaint:
- apologise to Mr and Mrs X for the delay in issuing the final EHC Plan resulting in delay in putting the Personal Budget in place;
- backdate the Personal Budget for 25 weeks and make arrangements for Mr and Mrs X to access the funds for the purposes set out in the EHC Plan;
- tell the Ombudsman whether Y missed out on any sessions with the ADHD support group as result of the delay in issuing the EHC Plan, and if so make up for the missing sessions or provide a suitable payment to recognise the loss of provision;
- pay the £150 previously offered for the complainants’ unnecessary time and trouble.
- I find that the Council was at fault in delaying issuing Y’s EHC Plan and failing to explain how it would pay the Personal Budget. The Council has agreed a suitable remedy to remedy the injustice caused and so I have completed my investigation.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman