The Ombudsman's final decision:
Summary: Mrs X complains of failings in the way the Council’s SEN department has dealt with her and her husband that have impacted on their family life. There was only minor fault that has caused insufficient injustice to warrant further remedy beyond the apologies already given by the Council.
- The complainant, whom I shall call Mrs X, complains the Council has:
- Failed to transfer her son, Y’s Statement of SEN to an EHC Plan since 2016;
- Failed to make reasonable adjustments to meet parental need arising from Mrs X autistic spectrum disorder (ASD) diagnosis, by insisting on face-to-face meetings, and not allowing their preferred advocate;
- Repeatedly ignored her requests that all communications be in writing; and
- Failed to deal with the complaint she made in 2016.
The Ombudsman’s role and powers
- 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)
- 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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
- it is unlikely we would find fault, or
- the fault has not caused injustice to the person who complained, or
- the injustice is not significant enough to justify our involvement, or
- it is unlikely further investigation will lead to a different outcome, or
- we cannot achieve the outcome someone wants.
(Local Government Act 1974, section 24A(6), as amended)
- 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
How I considered this complaint
- I read Mrs X’s complaint and spoke to her on the telephone. After that, I made all communication in writing. I considered the Council duties and made written enquiries of it. I considered the documents the Council provided in response to my enquiries. I shared a draft of this decision with both parties and invited their comments. I considered those I received. I considered the Council’s duties under the Equality Act 2010.
What I found
- Mrs X and her husband educate their son, Y, at home. He has special educational needs (SEN) and a Statement of SEN. In 2015, local councils began to transfer Statements to Education Health and Care (EHC) Plans to comply with changes in SEN practice introduced by the government. Mrs X’s complaint concerns the way the Council applied that process in her family’s case.
Transferring Y’s Statement to an EHC Plan
- The Council first wrote to Mrs X and her husband in September 2015, letting them know it was going to start the process. At April 2018, when she complained to us, the process was still not complete.
- To complete the transfer, the Council had to consider any necessary reports about Y. It is normal for councils to consider an educational psychologist’s (EP) report where a child has a diagnosis of a condition such as ASD, like Y. The timescale laid out by government for the transfer process was 18 weeks, with a final deadline of 31 March 2018 for all councils to complete the work. Any Statements of SEN still not converted by that date nonetheless remain valid.
- Mrs X did not want the EP the Council named to carry out the work and asked for an EP she chose. That was her right. It was more than six months until April 2016 before the Council confirmed it accepted her choice, though it said it would not commission or pay for the private EP. It confirmed this again in October 2016.
- The correspondence the Council provided shows it asked Mrs X repeatedly after that to provide the EP’s report, without success. This went on for about 18 months until at least April 2018. The situation reached impasse. Mrs X refused to proceed with the transfer process unless the Council also agreed to pay for an advocate she had chosen to represent her. The Council told her Y’s Statement of SEN would cease if the work was not done by 31 March 2018.
- The Council took too long to agree Mrs X’s choice of EP, which was fault. But it was not responsible for the further delay of about 18 months until at least April 2018, which was caused by waiting for the EP report. Although the Council was wrong to tell Mrs X her son’s Statement would cease to be valid after 31 March 2018, it was not at fault in trying to complete the transfer.
- Although there was some fault by the Council in taking too long to agree the EP, this was not the principal cause of the delay. Moreover, the delay caused no injustice. This is because Mrs X stated in correspondence with the Council she and her husband did not want the provision for Y to change. Therefore, there can have been no injustice to Y in the form of any lost SEN provision. And there can have been little or no injustice to Mrs X caused by the Council because she was responsible for more than half the delay.
Reasonable adjustments, communication in writing and an advocate
- Public bodies have a duty under the Equality Act 2010 to make reasonable adjustments for people with disabilities. But they do not need to make adjustments they do not consider reasonable.
- Mrs X has a diagnosis of ASD. She finds communication face-to-face or by telephone difficult and prefers written communication. It is reasonable to expect public bodies to communicate with Mrs X in writing wherever possible. It is also reasonable to expect public bodies to offer an advocate for Mrs X if she needs to attend a meeting.
- The correspondence between Mrs X and the Council shows it accepted the need to correspond in writing. It also shows most of the work was done in writing, though there was one example of an officer asking for a meeting. The Council accepted this was an error and wrote to apologise. I also saw apologies for any distress caused by matters such as, using a secure email system Mrs X found stressful. I find these apologies sufficient.
- In carrying out the EHC transfer process, the Council had to arrange a review meeting. As Mrs X and her husband were educating Y at home, the Council was justified in proposing a face-to-face meeting including them. I note that it offered them the opportunity to choose the place and time of the meeting, to chair it and to take minutes themselves. It also offered to combine two meetings into one to reduce the stress and told them they could present their views in writing rather than attending. Given they could have had the help of an advocate or avoided the meeting altogether, I do not find the Council at fault in the way it went about trying to arrange this meeting.
- Public bodies can refuse to accept a choice of advocate they find unreasonable. In this case, the correspondence shows the Council offered an independent advocate from a reputable body that represents children. But Mrs X preferred another person. The correspondence shows the Council agreed the preferred advocate, but declined to pay for her services. Contrary to Mrs X’s view, the Council had no duty under the Care Act 2014 to pay for the preferred advocate. It was not at fault by refusing to do so.
- Mrs X remains of the view that the draft EHC Plan produced in March 2018 is not a legal document as the planning meeting has not taken place. She remains of the view she has been excluded from the process.
Dealing with the 2016 complaint
- Mrs X complained in April 2016 about the way an SEN officer communicated with her and her husband. She wanted another officer assigned. The correspondence continued until October 2016, by which time the Council assigned another officer and agreed this officer would only communicate in writing. I do not find the Council at fault.
- I have upheld the complaint in that the Council took too long to confirm its acceptance of an educational psychologist. But I do not find fault in the remainder of the complaint and do not find the fault found caused any injustice that would justify remedy beyond the apologies the Council has offered at different points over the past two years.
Investigator's decision on behalf of the Ombudsman