London Borough of Bexley (18 002 932)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 21 Dec 2018

The Ombudsman's final decision:

Summary: The Council was at fault in delaying transferring Ms X’s son onto an Education Health and Care Plan and putting support in place for him. The Council has agreed a suitable remedy.

The complaint

  1. Ms X complained that the Council:
      1. delayed in transferring her son from his statement of special educational needs to an Education Health and Care (EHC) Plan and in issuing the final Plan;
      2. failed to arrange Annual Reviews for him as required; and
      3. has failed to ensure the support set out in his EHC Plan is put in place.
  2. As a result she says he has not received the support he needs.
  3. Ms X also complained about lack of extra support since 2014, lack of an educational placement since October 2015, decisions by the college her son attends to change his course, and lack of appropriate educational targets for him.

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What I have investigated

  1. I have investigated the complaint set out in paragraphs 1 and 2 above. I explain at the end of this statement why I have not investigated the rest of the raised.

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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. 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)
  5. We cannot investigate complaints about what happens in schools or colleges. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)

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How I considered this complaint

  1. I discussed the complaint with Ms X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I considered relevant law and guidance on special educational needs. I spoke to the Council’s Head of SEND and Inclusion over the telephone. I shared my draft decision with the Council and the complainant and considered their comments. I issued a second draft decision and considered the further responses I received.
  2. I decided to exercise discretion to investigate events dating back to 2016. This is because Ms X’s complaint to the Council was about delay from then until November 2017 and Ms X complained to the Ombudsman within 12 months of that date. Although Ms X withdrew her complaint to the Council before she came to the Ombudsman I find fault with the way the Council dealt with the matter.
  3. 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. A child with special educational needs (SEN) may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
     
  2. The Government issued statutory Guidance for local authorities on transitional arrangements for transferring children and young people from statements of SEN to EHC Plans. (‘Transition to the new 0 to 25 special educational needs and disability system Statutory guidance for local authorities and organisations providing services to children and young people with SEN’)
  3. The Guidance gave dates by which pupils in different year groups and phases of education had to and were expected to transfer to an EHC Plan. It also said all local authorities should develop their own local transition plans. It said local authorities should aim to transfer children with statements of SEN to EHC Plans “at points in their education at which a significant review of the statement of SEN would otherwise have taken place”.
  4. To transfer from a statement of SEN to an EHC Plan the local authority must arrange a transfer review meeting. When conducting the transfer review, the local authority must undertake a needs assessment. It must give two weeks notice of the meeting and then complete the EHC assessment and issue a final EHC Plan within 18 weeks.
  5. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. This says:
    • Councils must review EHC Plans at least every 12 months, but may hold an emergency review earlier.
    • When the child’s parents or the young person suggests changes to the draft EHC Plan and these are agreed by the council, it should amend the draft Plan and issue it as the final EHC Plan as quickly as possible. The final EHC Plan can differ from the draft Plan only as a result of representations made by the child’s parent or the young person, or a decision made about naming the placement. The council must not make any other changes. If it wishes to do so it must re-issue the draft EHC Plan. (Code of Practice paragraph 9.125)
  6. Councils have a duty to ensure that the special educational provision set out in an EHC Plan is arranged. (Children and Families Act 2014 section 42)

Background

  1. Ms X has two children, Y, who is now aged 18, and a younger child, Z. Y has a diagnosis of Autism Spectrum Disorder (ASD) and Attention Deficit Hyperactivity Disorder. He suffers from anxiety and has some difficulties with hypermobile joints. Y currently has an EHC Plan and has attended a college (‘the College’) since September 2016. Z also has special educational needs and has an EHC Plan.
  2. Before he started at the College Y had several school placements and periods out of school. He was out of school without a placement from October 2015.
  3. Y had a statement of special educational needs. The last amended statement was issued in June 2015. It included the following provision.
    • 1:1 support in core lessons
    • Advice to be available to school staff from the Advisory Teacher for ASD and the Speech and Language Therapy (SALT) Service
    • A sensory approach to the daily routine as advised by an Occupational Therapist (OT), with ‘bursts of sensory input’ throughout the school day.

Events concerning the EHC Plan from 2016

  1. Y was due to start at the College in September 2016. There is evidence that the Council started discussing Y’s transfer to an EHC Plan with Ms X in early 2016. It made referrals to the OT and SALT services for assessments as part of the EHC assessment process. The OT report was completed in June and the SALT report in August 2016.
  2. On 10 August 2016 the Council sent Ms X a letter headed ‘Notice of Conversion’ formally notifying her that the process of converting to the EHC Plan would begin on 10 August 2016. It advised that the whole process can take up to 20 weeks to complete. It invited her to complete section A of a proposed Plan which records the parent’s and young person’s views, and return it to the Council. The letter said the EHC Plan would be written following a needs assessment based on Y’s latest statement of SEN, the Annual Review documents from October 2014 and the OT and SALT reports.
  3. At the end of August 2016 the Council sent the paperwork for the proposed EHC Plan to Ms X and the College, saying the Council had ‘completed the conversion’ and wished to arrange a meeting to discuss it.
  4. In mid-December 2016 Ms X sent copies of the OT and SALT reports to the Council and asked it to include the information in Y’s EHC Plan.
  5. The Council says it had two meetings with Ms X after this to discuss the conversion to the EHC Plan. It has not provided the dates or any details of what was discussed.
  6. In preparation for Y’s move to the College Ms X had meetings with the College about transition arrangements, which Council SEN officers attended. Ms X became concerned about what the College could offer her son. He started on a part-time timetable in September 2016.
  7. In June 2017 Ms X told the College and the Council she wanted an emergency review. A meeting took place at the end of June 2017. The record of the meeting notes it was an Annual Review of Y’s EHC Plan. It does not show any proposed additional support for Y. It records that Ms X said she wanted the Council to complete the Plan.
  8. A month later Ms X wrote to the Council saying “please let me know urgently when [Y’s] EHC Plan will be issued”. When she had heard no more she sent another email in mid-August asking for the EHC Plan. She said it was a year overdue and the delay was having an impact on her son as he was not getting the right support. The Council’s response was that it was working on the Plan and would arrange a meeting with her to discuss it before finalising it.
  9. Ms X sent a further four emails to the Council chasing a response over the next six weeks stressing the urgency of the situation.
  10. In early October 2017 Ms X made a formal complaint to the Council about the delay in issuing the EHC Plan. She said it was due over a year ago.
  11. The Council sent Ms X a draft EHC Plan and offered dates for a conversion meeting with her. The draft Plan contained OT and SALT provision as recommended in the reports from 2016. Ms X asked for some further amendments.
  12. The Council also replied to Ms X’s complaint at stage 1 of its complaints procedure. It apologised for the delay in converting her son’s statement of SEN to the EHC Plan and “the review of outcomes which should have taken place some time ago”. It said it had now increased the team’s capacity to enable the Council to meet the increasing needs of children and young people with SEN and disabilities.
  13. The transfer review meeting took place on 20 October 2017 with Ms X and the SEN officer from the College. Ms X provided a copy of a report from the Child and Adolescent Mental Health Service and asked this to be included in the EHC Plan. The representative from the College said the College would not be able to provide some of the SALT support set out in the draft EHC Plan. She said she would discuss the matter with the College’s SALT therapist and ask for recommendations. The Council says Ms X agreed to wait for this further information before amending the draft EHC Plan.
  14. In mid-November there was an exchange of emails between Ms X, the Council and the College. Ms X said she was still waiting for the draft EHC Plan. The Council apologised for the delay but said it was still waiting for clarification from the College about the SALT provision. Ms X said she had made it clear at the meeting in October that seeking further information would delay issuing the final Plan. She said she had told the meeting she wanted the current recommendations for SALT to remain in place and any further assessments could take place after the Plan had been finalised.
  15. The Council then told Ms X that the SALT therapist at the College had not made any recommendations but had asked for a referral to the SALT service for another assessment. The Council agreed that to avoid further delay it would send her an amended draft EHC Plan.
  16. On 16 November 2017 Ms X wrote to the Council asking it to take her complaint to stage 2 of the complaints process. She said she had not agreed to a further delay in completing the EHC Plan in order to obtain further information from the College SALT therapist. She said she felt the reports from 2016 were thorough and detailed and reflected her son’s needs well. She said Y was missing out on the support set out in the Plan in the meantime.
  17. When Ms X received the amended draft EHC Plan she confirmed to the Council that she was happy with the contents. The Council issued the final EHC Plan on 21 November 2017.
  18. The final EHC Plan contained the same SALT and OT provision as in the draft Plan. It included the following SALT provision.
    • SALT sessions delivered by a qualified SALT therapist experienced in working with ASD of 30 minutes a week in terms 1 and 2, to be reviewed at the start of term 3
    • Extra time in terms 1 and 2 for observations, liaising with staff and parents, group work and staff training as required
    • Social skills/communication groups facilitated by suitably experienced staff (if by a SALT, this is in addition to the above provision)
    • 1:1 support
    • Small group work.
  19. It also included OT as follows:
    • Sensory circuit daily
    • 1:1 support to help with tasks involving visual perceptual skills and concentration in a busy environment
    • Teaching staff and college staff to have appropriate training to implement advice and recommendations of the OT.
    • Termly visits to the College to review the sensory circuit and monitor Y's fine and gross motor skills and activities of daily living
    • 1:1 sessions from an OT once a term.
  20. The Council looked into Ms X’s complaint. The Service Manager felt as the SEN team was resolving the issue there was no need to progress the complaint to the next stage. The Complaints Officer advised that if the complaint had been resolved, a member of the SEN team should check with Ms X whether she was happy for the complaint to be closed or whether she would still like a formal stage 2 response.
  21. The SEN team then wrote to Ms X to say that as the Council had now issued the final EHC Plan they “needed to inform the Complaints Officer that we have resolved your complaint”. The letter then said “can you please confirm that you are withdrawing your stage 2 complaint so that I can inform the officer.”
  22. Ms X replied that now that she had the final EHC Plan she would withdraw the stage 2 complaint.
  23. Y started receiving the 1:1 support in lessons. But in December 2017 Ms X was concerned about lack of some of the other provision and also about a decision the College had taken about Y’s courses. She asked for a meeting with the Council SEN service and the College. A meeting took place on 11 December 2017 and is recorded as an Annual Review meeting. The minutes say the SALT and social skills group work would start in January 2018. Also the Council needed to provide the College with the OT and SALT reports to enable the college to implement the support in the EHC Plan.
  24. In early January 2018 Ms X wrote to the Council to say the College had not put the provision in the EHC Plan in place. She said the College was now asking for a new SALT assessment but it should be putting the provision in the Plan in place. She said she did not agree to a new assessment. She said the meeting should have been recorded as an emergency review rather than an Annual Review as the last Annual Review had taken place in July 2017.
  25. There was a meeting to discuss the provision at the College on 5 January 2018. Regarding SALT, the notes of meeting show “a referral has now been made by the college” and the SALT therapist at the College was “happy to implement the strategies from the EHCP”. The SEN caseworker said the case had been closed to the OT service in 2014 but she would make another referral. The Council then contacted the OT service setting out the provision required under the EHC Plan and asking for a visit to see Y at the College.
  26. In early March 2018 Ms X made formal complaint to the Council. She said she had withdrawn her previous complaint as she felt her son would finally receive the support in his EHC Plan. She said the further delays had increased his anxiety. She said he had still not had any OT and although he had seen the SALT therapist, he was not receiving the support as set out in the EHC Plan.
  27. In its response to the complaint on 22 March 2018 the Council set out the OT and SALT provision required under the EHC Plan. It said it understood Y was discharged from the OT service in 2016 as the College was a specialist college which provides OT for students with SEN. The letter asked Ms X whether this was correct and said the Council would ask the College whether it had put the required provision in place. The Council said it understood that Y was receiving SALT at the College through its own specialist therapist but that Y did not always tell Ms X when he had received it. The letter said the Council would progress the issues unless it received further contact form Ms X.
  28. There were further meetings at the College about the support that could be provided. The College would ask the SALT therapist about offering Y a 1:1 session about managing social communication. By mid-April the records show there were still discussions taking place about arranging a visit to the College by the OT.
  29. At the end of April Ms X wrote to the Council asking to take her complaint to stage 2 as she had not had the response she was waiting for. She said her son was still not receiving the OT support outlined in the EHC Plan. She explained some of the difficulties there had been in the arrangements with the SALT therapist but said she had now met the therapist herself and she would be seeing Y once a week. She raised other difficulties with the social skills support and the courses offered at the College.
  30. At a meeting at the College in mid-May 2018 questions were raised about whether Y could receive OT at the College and about the role of the SALT therapist at the College and what she could provide.
  31. On 18 May 2018 the Council sent a stage 2 complaint response to Ms X. it referred to her complaint of 22 March, rather than the further complaint of 30 April. It said it had arranged for an OT to visit Y and would send a further response ‘in due course’ about other issues raised at the most recent meeting. It said nothing about the SALT provision.
  32. Ms X complained to the Ombudsman as she was not happy with the response, and the Council said she had come to the end of its complaints procedure. Among the issues she raised were the delay in issuing the EHC Plan she had complained about in the withdrawn complaint and delay in putting in place the support set out in the Plan.

Analysis – was there fault causing injustice?

Complaint a) - delay in transfer to EHC Plan and in issuing the final Plan

  1. The process of transferring a child or young person from a statement of SEN to an EHC Plan should take a maximum of 20 weeks. The Council did not provide the Ombudsman with the date of the start of the process. However Ms X has provided a copy of the ‘Notice of Conversion’ letter she received and so I am satisfied that the Council intended the process to start on 10 August 2016. To comply with the statutory timescale the Council should have completed the EHC assessment and issued the final Plan by 28 December 2016. It did not do so until 21 November 2017, almost a year later.
  2. In response to the Ombudsman’s enquiries about the history of events and the alleged delay, the Council gave the reasons for the delay as follows.
    • It took time to amend the draft EHC Plan in order to include elements of the ‘private reports’ Ms X had provided.
    • The delay between December 2016 and September 2017 occurred because the SEN Case Officer needed to focus on working with Ms X on transferring her younger son, Z, to his EHC Plan, and on the difficulties he was having before and during his transfer to secondary school.
    • Ms X agreed with this approach. She agreed that once Z had settled in to his new school the Council would finalise Y’s EHC Plan.
    • In October 2017 Ms X agreed that the Council would proceed to complete Y’s transfer to the EHC Plan. The Council then arranged a conversion meeting.
    • The one month delay after this was because of the need to obtain clarification from the College about the SALT and OT ‘recommendations’ in the EHC Plan and see if the SALT therapist had any recommendations to add to the Plan before it was finalised.
  3. Ms X denies that she agreed to put the process on hold to prioritise Z’s transfer to his EHC Plan and secondary school. She says Z started secondary school in September 2016, which is before the period when the Council said she agreed to the delay. The Council has not provided any supporting evidence in the form of case records or correspondence, as requested, to confirm Ms X agreed to its approach. The Case Officer involved is adamant that Ms X agreed to delay the process as Z had a difficult start at his secondary school. The Council accepts there is no written record of her agreement. The conflict of evidence makes it difficult to assess how long a delay the Council was responsible for. There is evidence that by at least June 2017 Ms X was pressing the Council to issue Y’s EHC Plan and continued to do so over the following three months. This conflicts with the Council’s statement that she did not agree to proceed with the conversion until October. Even if Ms X agreed to some delay, in my view the process should have resumed earlier. There is a statutory deadline which was exceeded by 11 months. The Council should have done more to ensure the delay was kept to a minimum.
  4. The OT and SALT reports produced in July and August 2016 and the accompanying emails provided by Ms X confirm that these were not ‘private’ reports. Rather, they were the result of assessments following referrals made by the Council as part of the EHC assessment process. The Council has now accepted that this is the case. So considering these reports and including the recommended provision in the draft EHC Plan should not have contributed to any delay.
  5. The SALT and OT support in the draft EHC Plan issued in October 2017 was based on the recommendations made in the 2016 reports. In my view the Council was at fault in further delaying issuing the final EHC Plan on the basis that the College thought it might not be able to provide the full range of support described. If the Council considered the provision necessary it would have to ensure it was delivered, whether through the College or externally. If it did not consider it appropriate it would have had to issue a further draft EHC Plan allowing Ms X an opportunity to make further representations. It could not change the draft EHC Plan otherwise, except in response to representations from Ms X or her son.
  6. Again the Council says Ms X agreed to this further delay, while she denies this. I have not seen evidence that she did agree. In her complaint to the Council she says she wanted the EHC Plan to be finalised without further delay.
  7. For these reasons I consider that the Council was at fault in unreasonably delaying completion of the EHC Plan conversion process and issuing the final Plan. I have not been able to establish exactly how much of the delay was attributable to fault by the Council.
  8. There is a significant difference between Y’s last statement of SEN and the final EHC Plan. The final Plan provides for extra OT and SALT support. So any delay in issuing the Plan meant Y missed out on entitlement to the additional provision.

Complaint b) - failure to arrange Annual Reviews

  1. Councils are responsible for ensuring SEN statements and EHC Plans are reviewed every year. The Council says there was an emergency Annual Review in September 2015 and an Annual Review was due to take place in September 2016 when Y started at the College. It says it was felt that the Annual Review should be postponed to allow time for Y to settle in and for the College to gain a clearer picture of his needs and measure his progress.
  2. I have not seen evidence that this delay was a result of a conscious decision. But even if it was, there is no evidence that the Council reviewed the matter and decided to arrange an Annual Review when it considered it appropriate. The meeting did not take place until June 2017, almost an entire school year later, and it was Ms X who asked for it to be arranged. By this time there had been no Annual Review for nearly two years, contrary to the requirements of the Code. I consider that the Council was at fault in failing to ensure an Annual Review was held in a timely way.

Complaint c) - failure to ensure the support set out in the EHC Plan was put in place

  1. I have considered the effect of the delay in completing the EHC process on the support provided to Y in relation to complaint a) above. This part of the complaint is about whether the provision in the final EHC Plan was implemented from November 2017.
  2. Ms X complains that the OT and SALT support was not provided as required in Y’s EHC Plan. The Council says neither it nor the College shares this view. It says its officers have attended several meetings at the College with Ms X about the provision. It also says the College confirms it is meeting Y’s needs and it has told the College it must ensure the support in the Plan is delivered.
  3. However the Council has not provided sufficient evidence to confirm whether the specific provision in the EHC Plan for OT and SALT is in place. In its complaint response on 22 March 2018 the Council said it would check the position with the College but it did not come back to Ms X with the answers. Records show that as late as May 2018 the Council was still in the process of arranging the OT visit and it was not clear what SALT the College was providing, including in relation to the social skills work.
  4. The Council says it is the process of reviewing Y’s EHC Plan as Ms X has asked for amendments. If any provision is removed, Ms X and her son will have the right of appeal. However until any new final EHC Plan is issued the Council has a duty to ensure the provision in the current Plan is arranged. It is not clear on the basis of the information provided that Y has received it. The Council says it has had difficulty obtaining confirmation from the College. It recognises that it should have better systems for monitoring how support in an EHC Plan is put in place.

Complaint handling

  1. Although not part of the complaint Ms X raised with the Ombudsman, I have concerns about the way the Council dealt with her complaint. Ms X agreed to withdraw her first complaint after the Council issued the final EHC Plan. In my view, however, it did not present the option of withdrawing the complaint fairly or appropriately. The Complaints Officer advised that the SEN service should check with her whether she was happy for the Council to close the complaint or whether she still wished to have a formal response to her stage 2 request. Instead of this the Council told her it needed to inform the Complaints Officer that the complaint was resolved. So it asked her to confirm she was withdrawing it.
  2. This left the question of any impact of the delay in producing the EHC Plan unresolved. When Ms X then complained again, she says she understood the Council would revive the previous complaint as it did not advise her it would not do so.
  3. I also consider that the Council failed to deal adequately with the second complaint. In the stage 1 response it said it would follow up several issues, but as far as I am aware it did not provide a further response to her. This meant she made a stage 2 complaint. The stage 2 response did not refer to the further complaint letter and did not address all the issues she had raised.

Agreed action

  1. To remedy the injustice caused the Council has agreed that within six weeks of the final decision on this complaint it will take the following steps.
    • Apologise to Ms X and to Y for the delay in dealing with the EHC process and holding the Annual Review, and for the faults identified in the way it dealt with the complaint.
    • Provide extra support to Y to make up for provision he has missed. It is important to ensure that the support offered takes full account of Y’s wishes. This will be done by having a meeting with him, Ms X if he wishes, and appropriate staff to explore what support he would find most beneficial to help him progress his studies. The Council will produce an action plan setting out the package it will offer Y and send a copy to the Ombudsman.
    • Pay Ms X £250 to recognise the frustration, anxiety and time and trouble involved in pursuing the provision for her son and her complaint about the matter.
  2. The Council has also agreed that within three months of the decision it will tell the Ombudsman what it intends to do to ensure it is better able to monitor how schools and colleges put in place the support set out in an EHC Plan.

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Final decision

  1. I have found that the Council was at fault in the way it dealt with transferring Y to his EHC Plan and in dealing with Ms X’s complaint. I am satisfied with the action the Council has agreed to take to remedy the injustice to Ms X and her son. I have therefore completed my investigation.

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Parts of the complaint that I did not investigate

  1. I did not investigate the complaint about Y being out of school as this was the subject of a previous complaint to the Ombudsman and because the period out of school after this is out of time. Issues Ms X raised about lack of SEN support in 2014-2015 are out of time. I have no power to investigate the actions of the College in dealing with Y’s courses or curriculum.

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Investigator's decision on behalf of the Ombudsman

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