Surrey County Council (17 020 457)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 09 Jan 2019

The Ombudsman's final decision:

Summary: The Council took eleven weeks too long to assess X’s needs following an order by the Tribunal. This caused transferred delay as X’s education, health and care plan was issued later than it should have been. The Council funded some part-time alternative provision in the meantime, at a level which professionals felt was suitable for X’s needs. However, it did not consider whether X was able to access full-time provision when it received confirmation that he was again out of school in December 2017. The Council will remedy the injustice this caused with the actions outlined at the end of this statement.

The complaint

  1. The complainant, whom I will call Mrs Y, complains in respect of her son, whom I will call X, that:
      1. the Council has delayed significantly throughout the EHCP process; and
      2. the Council has failed to provide suitable education for X since October 2016

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The Ombudsman’s role and powers

  1. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  2. 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 Tribunal (‘SEND’))
  3. 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)
  4. 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. During my investigation, I have:
    • Discussed the complaint with Mrs Y and considered any information she has submitted;
    • Made enquiries of the Council and considered its response;
    • Consulted the relevant law and guidance around special education needs and education health care plans (EHCPs), referenced where necessary in this statement;
    • Considered the Ombudsman’s guidance on jurisdiction. We have decided to use our discretion to investigate matters from October 2016 onwards; and
    • Issued draft decisions and considered the comments received before making a final 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. X is a twelve-year-old boy with special educational needs (SEN). Until October 2016 X attended mainstream school on a full-time basis. X did not have an EHCP at that point.
  2. In May 2016, X’s school contacted the Council to request a formal assessment of X’s needs. The Council acknowledged the request in a letter to X’s parents, and explained it would liaise with X’s school before deciding whether to proceed with an assessment.
  3. The Council met with X’s school on 27 May 2016. The notes of this meeting show the Council decided that X did not have a significant level of need. The Council discussed X’s case again on 2 June 2016. The notes of the case management show the Council’s decision not to assess X. This is because it felt that X’s needs could be met within his current school, and that there was no evidence of special needs which required additional provision.
  4. The Council wrote to Mrs Y on 6 June 2016 to confirm its decision not to assess X. Mrs Y had the right to appeal this decision via SEND.
  5. Shortly after receiving the Council’s decision, Mrs Y sought mediation before pursuing an appeal. Later that month the Council emailed Mrs Y to propose a ‘way forward’ meeting to discuss the Council’s decision. Following this meeting, Mrs Y proceeded with an appeal to SEND which she submitted on 2 August 2016.
  6. In the meantime, X’s placement at mainstream school broke down. X stopped attending school altogether, but remained on roll. Mrs Y says X refused to attend due to school phobia bought on by the school’s inability to meet his needs.
  7. On 4 November 2016, the Council reconsidered its position. After reviewing the available evidence, it conceded the appeal. SEND ordered the Council to assess X. The Council wrote to Mrs Y confirming that it needed to obtain evidence from an Educational Psychologist, social services and health services as part of X’s assessment. The Council said the deadline for the return of information from those third parties was 19 December 2016.
  8. In the meantime, the Council received a letter from a Psychiatrist working for the Children and Adolescents Mental Health Services (CAMHS). The letter dated 18 November 2016 confirmed CAMHS’ view that X was medically unfit to attend school, and that he required support before reintegrating back into school.
  9. The Council says this is the first time it became aware that X was not attending school. On 9 December, the Council referred X to its Education Welfare Service. The Council also made a referral for alternative provision. As a result of that referral X received two hours of home tuition each week. The Council also funded one hour per week of animal therapy. Due to X’s anxiety, Mrs Y says it took seven weeks for X to trust and engage with the home tutor.
  10. The Council then received evidence from the Educational Psychologist and social services in relation to X’s EHC needs assessment. It was still awaiting a response from health services, but the Council considered it had enough supporting evidence to proceed to panel on 22 February 2017 to discuss X’s needs.
  11. On 23 February 2017 the Council completed its assessment and wrote to X’s parents to confirm the outcome. It refused to issue an EHCP for X because it felt that arrangements to meet his needs could be provided without an EHCP. The Council provided a copy of the panel minutes. Mrs Y had the right to appeal this decision through the SEND tribunal.
  12. In the meantime, Mrs Y privately arranged and funded some coaching for X.
  13. Mrs Y sought mediation in March 2017 regarding the Council’s refusal to issue an EHCP. The Council met with X’s parents, the home tuition service and the Educational Psychologist to discuss its decision. Two days after that meeting, the Council reconsidered its position and proceeded with an EHCP. The Council confirmed the purpose of the plan was, primarily, to support X’s reintegration into mainstream school, and that it would continue to provide part-time alternative provision in the meantime.
  14. The Council issued a draft EHCP on 16 March naming a mainstream school.
  15. X’s parents responded. They requested several amendments to the draft plan. The Council said the amendments were considerable, and that it would take some time to go through them in full.
  16. In the meantime, X’s parents emailed the Council to request funding for a placement at an alternative education provider for 17 hours per week. This is because X’s parents did not consider the placement named in the EHCP was suitable, however this was appealable. The Council refused the request on the basis that the provider was not OFSTED registered, but later decided to fund 17 hours of weekly provision from October 2017.
  17. After considering the proposed amendments, further information from CAHMS and a report from the Speech and Language Therapist (SALT), the Council issued a redrafted EHCP on 12 May 2017.
  18. The Council issued a final EHCP on 26 May 2017 naming a mainstream placement in Section I. Mrs Y did not use her right of appeal to SEND.
  19. Mrs Y emailed the Council to request a personal budget for X to receive transport and additional provision in October 2017. The Council said it understood that X could not access full-time education, but that if his needs had changed it could move towards full-time provision.
  20. Mr and Mrs Y requested an emergency annual review of X’s needs in December 2017. They emailed the Council ahead of the meeting to provide a summary of recent events and an overview of X’s needs. The alternative provider also wrote to the Council to confirm its view that X’s gradual reintegration into mainstream school had failed, and that X may benefit from further psychological assessment. The provider suggested that the Council may wish to consider a specialist placement or funding via a personal budget for X.
  21. At this point the Council was aware that X was not attending the school named in his EHCP. His access to education was therefore on a part-time basis only.
  22. The emergency annual review went ahead on 13 December. One week later, the panel met to discuss X’s case. The notes of the panel meeting show the Council agreed that mainstream school was not suitable for X. The panel recommended that X’s EHCP should be amended.
  23. On 10 February 2018 Mrs Y wrote to the Council. She queried the timescales of the process, pointing out that the Council’s response to the annual review was overdue. The Council apologised for the delay in an email on 16 February 2018.
  24. On 1 March the Council wrote to Mrs Y. It attached a copy of X’s current plan, alongside the proposed amendments. The Council asked Mrs Y to consider the amendments and provide any comments by 16 March. The Council also confirmed that it had not arranged the personal budget requested in October, but that it agreed to the request in principle.
  25. The Council issued the updated final EHCP on 16 March 2018. The plan outlined an alternative programme of support, which included the provider which X had accessed privately for five hours per week since February 2017. The plan also outlined provision for tuition and activities to be funded through a personal budget. The Council agreed to provide X’s personal budget from 19 March 2018. This was to fund:
    • A specialist tutor for English and Maths for two hours per week;
    • Specialist personal empowerment services for one and a half hours per week;
    • An animal care course for one morning each week;
    • Personal training/sports sessions for one and a half hours per week; and
    • Transport for the additional activities, to be based on mileage and receipts
  26. When the personal budget was not implemented as planned in March, Mrs Y contacted the Council. The Council said there had been delay in receiving Disclosure and Barring Service (DBS) checks for one of the tutors.
  27. The Council advises that since Mrs Y’s approach to the Ombudsman, X’s personal budget has been approved and provided in full, except for the personal training sessions. The Council said this is because the trainer had not produced the appropriate documentation. The Council confirms it is in discussions with Mrs Y about alternative options.

Was there delays in EHC process causing injustice to Mrs Y and X?

Completing the assessment

  1. The Council’s refusal to assess X came three weeks and five days after the school’s request for an assessment. The timeliness of this decision is in line with the regulations and Code of Practice. It is not fault. After Mrs Y sought mediation and applied to SEND to formally appeal the Council’s refusal, the Council reviewed the evidence and conceded the appeal. It agreed to assess X.
  2. SEND directed the Council to comply with regulation 45 of the ‘Special Educational Needs and Disability (SEND) Regulations’ (2014) which applies “…where the child’s parent or young person has appealed to the First-tier Tribunal and the local authority notifies the First-tier Tribunal that it will not oppose the appeal before it submits a response”. Regulation 45(3) states that “Where the appeal concerned a request for a local authority to make an assessment under section 36 or a review or reassessment under section 44, the local authority shall carry out that assessment, review or reassessment within 4 weeks of the local authority’s notification to the First-tier Tribunal”
  3. The Council disagrees with SEND. It days that the regulation which applies in this case is 44, not 45. Regulation 44 would allow the Council an additional six weeks to complete the assessment. In which case, the Council accepts it would be responsible for five weeks of delay.
  4. However SEND specifically ordered the Council to comply with regulation 45, and so in my view this is the what should have happened. If the Council disagreed with SEND’s interpretation of the legislation, it was open to it to formally challenge SEND. It did not. In the absence of any challenge, my view is that the timescales outlined in regulation 45 are applicable as per SEND’s order.
  5. Regulation 45 allowed the Council four weeks to complete the assessment, the deadline in this case being 5 December 2017. The assessment completed on 23 February, which is 15 weeks and three days after SEND’s order. The Council is therefore responsible for delay amounting to 11 weeks and 3 days. This is fault.
  6. X was not receiving SEN provision at that time because the assessment initially concluded that specialist provision was not required. However, the Council quickly overturned that decision and agreed to issue an EHCP in early March. The fault therefore caused injustice in the form of transferred delay. On balance, had the Council assessed X sooner, I find it is likely that the decision to make the EHCP would have been made much sooner. X would therefore have received the provision he was entitled to earlier than he did. The Council has agreed to remedy the effects of that transferred delay with a payment of £250.

Issuing and reviewing the plan

  1. Once the Council assessed X in February and decided to issue the plan in March following mediation, it promptly issued the draft EHCP six days later. The final EHCP then followed on 26 May 2017.
  2. There is no fault in the issuing of X’s plan. Regulation 42 states that councils should comply with the timescales in regulation 44 when the parties reach an agreement during mediation. Regulation 44 says that the final plan should be issued within 11 weeks of the mediation agreement. The Council complied with those timescales because it issued X’s final EHCP exactly 11 weeks later.
  3. The Council then reviewed X’s plan in December 2017. Regulation 20(1) states that councils must produce a written report setting out recommendations for any amendments to the plan within two weeks of the meeting. This should be sent to the parents. Then, within four weeks of the meeting, the regulations state that councils must confirm to the parents whether they intend to maintain, amend or cease the plan.
  4. In this case, the Council notified Mrs Y of its intentions eight weeks after the review. The Council has already acknowledged and apologised for this delay. I do not consider any further remedy is due for this part of the complaint because the injustice arising from a failure to notify Mrs Y sooner is not, in my opinion, significant.
  5. When a council decides to amend the plan following review, regulation 22(3) says that it must issue the amended final plan “as soon as is practicable, and in any event within 8 weeks of the local authority sending a copy of the EHC plan..”. This means councils have a maximum of 14 weeks to issue the final plan from the annual review. In this case, the final plan followed 13 weeks later. This is not fault.

Did the Council fail in its duty to provide suitable provision for X?

  1. Councils have a duty under Section 19 of the Education Act (1996) to make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or other authorised reason. The only exception to this is where the physical or mental health of the child is such that full-time education is not in their best interests.
  2. Mrs Y complains that the Council has failed in this duty since October 2016 when X stopped attending mainstream school. Mrs Y seeks financial remedy for this period. This includes claimed quantifiable losses, such as the cost of private tuition, as well as lost earnings. Mrs Y also seeks remedy for the distress to her and X during this period.
  3. The Council says it first became aware that X was not attending school in November 2016. This was following a letter from CAHMS seeking a referral to an alternative education provider for home tuition. After considering the information received, the Council decided on 9 December that X was “medically unfit to attend school”. The Council awaited the outcome of the referral to the home tuition provider, and agreed to fund animal therapy for one morning per week, for a period of six weeks. Mrs Y says that X was not able to attend the animal therapy due to his anxiety, and that he did not engage with the home tutor initially. While X’s initial lack of engagement is unfortunate, I cannot say this is through any fault of the Council.
  4. The Council then funded two hours of weekly tuition for X from January to June 2017, and withdrew the provision after it issued the final EHCP in May 2017 which named a mainstream school.
  5. Based on the information available to me, I do not find the Council failed in its Section 19 duty between November 2016 and May 2017. The Council considered the opinions of professionals and decided that a heavily reduced timetable was in the best interests of X, based on his needs at the time. This was a matter of professional judgement. The Council then named full-time provision in the May 2017 EHCP. Mrs Y was not satisfied with the school named, but this was appealable and is therefore outside of the Ombudsman’s jurisdiction.
  6. Following issue of the EHCP, the Council’s aim was for X to gradually re-integrate into mainstream school. The Council funded 17 weekly hours of alternative provision from October 2017 to supplement X’s attendance at the school named on his EHCP, however the planned re-integration failed. The Council received confirmation of this on 7 December 2017, when Mrs Y wrote: “[X] is not attending and cannot attend the school named in his EHCP”. The alternative provider wrote to the Council ahead of the annual review and recommended: “That he [X] comes off roll at [school name] and Education Otherwise is temporarily put into section I of his EHCP until a suitable specialist placement is found.”
  7. The Emergency Annual Review held for X shortly after noted: “[X’s] needs can no longer be met by [the school] and parents are dedicated to remain fully involved in securing appropriate full-time provision for [X].” and “[X] is not currently attending school as parents report he is now too anxious. He does attend and enjoy [alternative provider] but as noted above he still finds that transition tricky”.
  8. At this point the Council’s duty was engaged because it received confirmation that X out of school and accessing alternative education on a part-time basis only. As it had done in the previous November, the Council should have assessed how much provision was suitable and in the best interests of X. The Ombudsman would usually expect this to be done as soon as possible and within a maximum of three weeks.
  9. If the Council felt that X was unable to access full-time provision due to his physical or mental health, this should have been clearly recorded. There is no evidence of this on the files. Instead, the Council focussed on the EHC process. It named full-time education to be provided by the existing alternative provider, with an additional personal budget, in March 2018. In the meantime, the Council funded only part-time provision for X between October 2017 and March 2018.
  10. The Ombudsman’s guidance on remedies suggests a payment in the region of £200-600 per month of full-time education, depending on the circumstances of the case. The figures quoted are on the basis of total loss of provision, i.e. zero hours per week.
  11. As well as the 17 hours per week funded by the Council from October 2017, X was able to access the provision funded by Mrs Y. This cost Mrs Y £890. This included an additional day per week at the alternative provider (for a four-week period in February), some personal tuition and personal empowerment sessions. It is therefore evident that X was able and willing to access provision over and above the 17 hours funded by the Council, as long as it was planned carefully.
  12. There was a duty on the Council to provide education at a level which was suitable for X’s needs once it became aware that he was out of school. It is not for me to say what level of education was suitable for X at the time. However the Council should have reviewed whether 17 hours was enough for X once it became aware that he was not attending the school named on his EHCP. While in 2016 X had only been able to access education on a part-time basis, the information from 2017 and 2018 shows that X successfully accessed the privately funded tuition. The notes of the emergency annual review also convey X’s wish to attend the alternative provider for five days a week.
  13. It is clear that X’s transition would need to be carefully planned, but there is no evidence of any such planning by the Council between December and March. As the provider pointed out, it was open to the Council to supplement X’s part-time education via a personal budget until such time the amended plan was issued. Had the Council put this into place as an interim measure, Mrs Y would not have needed to fund all the top-up provision as she did.
  14. The Ombudsman appreciates that planning and arranging provision for X was a challenge, however this does not take away from the Council’s duty to provide full-time education amounting to 24 hours a week, unless the Council decided this was not in with the best interests of X. In the absence of any assessment around X’s capability, the Council’s offer of 17 hours of provision was 30% short of what X was entitled to. Taking this into account, I recommended that the Council reimburse £600 for the period in question. This is at the lowest end of the recommended scale as the lost provision was partial, rather than total. I also recommended an apology and a payment of £100 to Mrs Y for the avoidable time and trouble she went to in securing provision privately, and without any assistance from the Council. The Council agreed with the recommendations.

Personal budget

  1. The Council agreed in early March to fund a personal budget to ‘top up’ X’s provision with tuition, personal empowerment, personal training and transport. This amounts to five hours per week. As part of the personal budget agreement, Mrs Y selected her chosen tutors for X. The Council agreed to pay those tutors directly, rather than to Mrs Y as a direct payment.
  2. Mrs Y emailed the Council on 15 March to provide the details of her chosen tutors. This included a personal trainer. The Council subsequently contacted the trainer on 17 April. However, due to issues with the trainer’s DBS status, the Council was unable to approve him for payment.
  3. The Council says it spoke with Mrs Y on 24 May 2018, at which point it emerged that the Council had been provided with a wrong email address. The Council says it rectified the error as soon as it became aware, and immediately re-sent correspondence to the personal trainer. The trainer then failed to attend the first appointment, and arrived at the re-scheduled appointment on 11 June without the necessary documentation. The Council relayed this to Mrs Y on 3 July 2018.
  4. As the person responsible for commissioning the trainer, Mrs Y could have chosen a new trainer once she became aware of the lack of DBS clearance in July. This period of delay is not the result of the Council’s inaction.
  5. However I consider the Council was responsible for some of the initial delay. Mrs Y has provided evidence to the Ombudsman that she passed the correct email address to the Council on 15 March. The Council then took four weeks to make initial contact with the trainer, and an additional five weeks to write to him again. While I cannot say that delay in securing provision for X is solely attributable to the Council, it is clear that its inaction in the initial stages caused avoidable time and trouble which it should provide a remedy for.
  6. Mrs Y tells me that she is in discussions with the Council about appointing a personal assistant for X, in place of the personal tutor. This is a recent development, and the process of selecting and arranging the funding for the personal assistant is ongoing, so I have not considered this as part of my investigation.

Other claimed losses

  1. In addition to the above losses, Mrs Y also claims for the following:
    • Coaching for X’s pathological demand avoidance (£325)
    • Occupational therapy for X (£360)
    • Speech and language therapy for X (£275)
    • Psychological assessment of X (£953 + £202.50)
    • Loss of earning between 2015 and 2018 (£31,351.74)
  2. I have considered these claims. Based on the evidence available to me, I do not find that these costs arose from Council fault. In line with the law and guidance, the Council sought the views of relevant professionals when assessing X and drawing up the EHCPs. I do not consider that it was necessary for Mrs Y to privately arrange and fund the services of additional professionals. It was her choice to do so. Furthermore, if Mrs Y felt the plan was inaccurate and did not accurately reflect X’s needs, she had the option to appeal to SEND.
  3. I recognise that Mrs Y has been unable to sustain full time employment, despite her wish to do so. Mrs Y says this is a direct result of the Council’s failures. I disagree. It is clear from the evidence I have seen – both from X’s schools and the professionals involved with his case – that X struggled to fully participate with school due to his needs. It therefore follows that Mrs Y will always likely have needed to be on hand, should X be unable to attend school at any given time. This is supported by CAHMS, who confirmed that X was medically unfit for school. He was then unable to access even a very small amount of alternative provision. This would naturally impact on Mrs Y’s ability to work full-time, but I consider this is due to X’s needs, rather than a direct consequence of Council fault.

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Agreed action

  1. To remedy the injustice caused by fault identified in this statement, the Council will undertake the following actions within four weeks of my final decision:
    • Pay £250 for the injustice caused by the eleven-week delay in assessing X, and the transferred delay this created for X’s first EHCP;
    • Pay £600 in recognition of the provision X missed between December 2017 and March 2018;
    • Apologise and pay £100 to Mrs Y for avoidable time and trouble she experienced in arranging the top-up provision; and
    • Pay £150 for the time and trouble caused by the initial delay in writing to the chosen personal trainer in March 2018.

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Final decision

  1. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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