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Thurrock Council (17 008 944)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 29 Mar 2018

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.

The complaint

  1. Mr and Mrs X complained that the Council:
      1. delayed in transferring their son from his statement of special educational needs to an Education Health and Care Plan (EHC Plan);
      2. failed to deal properly with their request for a Personal Budget as part of the EHC Plan;
      3. failed to ensure the provision in the statement was made in the meantime; and
      4. 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.
  2. As a result they say their son has missed out on support he should have received.

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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 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)
  2. 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)
  3. 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)
  4. 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)
  5. 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. 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.
  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. 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.
  2. 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).
  3. 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)
  4. They have an equivalent duty to secure the special educational provision set out in an EHC Plan. (Children and Families Act 2014 section 42)

Personal Budgets

  1. 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.
  2. The Council has a policy on Personal Budgets for children and young people with special educational needs and disabilities. This sets out an appeal process for when the Council refuses a request for a personal budget as follows:
    • 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.
  3. This applies where the Council has refused a personal budget for part of the provision set out in the EHC Plan, where it has not offered a personal budget, or where the appellant considers the amount of money offered is not sufficient to meet the child’s needs.

Mediation and appeals

  1. 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.

What happened

  1. 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.
  2. Mrs X became concerned that Y was not making enough academic progress despite the statement being in place. She felt the School was not putting adequate targets in place. She contacted the Council in March 2016 to ask it to start the process of converting her son’s statement to an EHC Plan with better targets.
  3. The transition review meeting took place in early March 2016. The Council issued the draft EHC Plan on 2 June 2016. Mrs X attended a meeting with the Council to discuss it on 6 July 2016. She was not happy with the proposed Plan as she felt it relied too heavily on support from a LSA and she said her son did not like having support this way. She sent an email to the Council the same day saying she felt this approach would not work, as evidenced by a deterioration in her son’s behaviour. She said she wanted to ask for a Personal Budget to use for an alternative approach aimed at overcoming his difficulties with organisation and homework linked to his aspiration to have a career in sport. She said:

“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.”

  1. 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.
  2. The Council told Mrs X in early August 2016 that it would need to discuss the request with the School and would not be able to do so until after the start of term in September.
  3. Mrs X chased up the Council for a response during September and October 2016 without success. On 1 November 2016 she sent an email to the Council expressing her concern that her son did not have an EHC Plan in place. She also said it seemed that “during this time the previous provision in the statement has stopped, for example the support of the mentor.”
  4. She followed this up with further emails asking about the decision on the Personal Budget. The Council replied on 21 November 2016, agreeing to part of her request and refusing other parts. It agreed to fund the following:
    • 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.
  5. The Council did not agree to provide a Personal Budget for an academic tutor as it said it was concerned about how Y could fit the extra time into his schedule. It did not agree to fund support from the ADHD support group with homework and organisational skills. It explained that it would provide funding to the school so Y could attend homework club. It said the support group did not have the resources to provide the other help she was looking for.
  6. The letter did not explain to Mr and Mrs X what to do if they disagreed with the decision. However Mr and Mrs X replied to the letter the same day, asking the Council to reconsider its decision. They explained why they still wanted a budget for the academic tutor. They asked the Council to increase the hours for the coach/mentor to six per month if the ADHD support group could not provide the extra support.
  7. In December 2016 Mr and Mrs X wrote to the Council with a formal complaint about delay in issuing the EHC Plan. The Council replied in January 2017. It said it had been meeting timescales up to when it issued the draft EHC Plan. It said delay since then had arisen because of the parents’ request not to finalise the Plan yet and for a Personal Budget. It said it had now taken account of their views and would issue the final Plan within the next three weeks.
  8. Mrs X contacted the Council several times during January and February 2017 asking for a decision on the Personal Budget. She said Y was not working well with the LSA and was refusing to go to the homework club at school.
  9. When Mrs X had still not received the final EHC Plan she made a further complaint in March 2017 about the delay.
  10. I have not seen any evidence that the Council responded specifically to the request to reconsider the decision on the Personal Budget. But on 17 March 2017 it issued the final EHC Plan. The Plan set out the approaches to teaching staff were to take. It also included the following provision:
    • 1:1 support from a mentor to review work
    • six sessions with the ADHD support group
    • LSA support for 20 hours a week.
  11. Section J of the EHC Plan included a Personal Budget to fund the following:
    • 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’.
  12. In April 2017 the Council responded to Mrs X’s complaint at stage 2. It apologised for the delay in issuing the final EHC Plan. It said this was caused partly by an oversight by the Council and partly by the need to have further discussions around the request for changes to the Personal Budget.
  13. Mrs X was not satisfied with the response and asked to take the complaint to stage 3. She complained that the Council should have allowed enough time to deal with any dispute about the Personal Budget within statutory timescales. She complained about the content of the EHC Plan saying it was muddled and did not take account of the parents’ views. She complained that the Council had failed to follow its Personal Budget policy as it had not explained why it was refusing their request. She said these failures had had a detrimental effect on her son’s education as he had not had the support he needed. She wanted an “impartial review of the final EHC Plan and the Council’s processes”.
  14. Mr and Mrs X were not happy with the EHC Plan because they did not agree with the provision in the Personal Budget offered. They asked to go to mediation. The mediation meeting took place in Aril 2017. I have not seen any record of the meeting. Mr and Mrs X say the Council agreed they could provide further information to support their request for the Personal Budget, for consideration by the Access to Resources Panel, which they did in May 2017.
  15. Mrs X contacted the Council during June 217 asking for a response to the Personal Budget request but the Council did not reply.
  16. Mrs X had a meeting with the SEN Monitoring and Support Officer in late June 2017 to discuss the special educational provision Y was receiving. Mrs X was not happy with the progress he was making at school. She sent an email to the Council asking for a change of placement from September 2017 and repeating her request for the Personal Budget as originally set out.
  17. In mid-July 2017 the Council replied saying it would not reconsider the Personal Budget at that point as she had asked for a change of placement. It said it would bring the Annual Review forward to the end of the summer term 2017 so Mrs X could formalise her request for a change of placement. The Annual Review meeting took place in September 2017.
  18. The Council replied to Mrs X’s complaint at stage 3 in July 2017. It accepted that took a total of 53 weeks to issue the final EHCP rather than 20 weeks as required. It did not agree the delay had resulted in any loss of education for Y as it said he was receiving the support under his statement of special educational needs. However it recognised the distress caused by the delay and offered a payment of £150.

Analysis – was there fault causing injustice?

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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.

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Agreed action

  1. 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.
  2. Within three months the Council will also review the information to be provided to young people and parents/carers about arrangements for accessing funds agreed in a Personal Budget under an EHC Plan. It will provide details to the Ombudsman.

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Final decision

  1. 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

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Investigator's decision on behalf of the Ombudsman

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