Thurrock Council (18 005 048)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 01 May 2019

The Ombudsman's final decision:

Summary: Ms X complains that the Council delayed finalising her child’s Education, Health and Care plan, failed to make sure that speech and language therapy and hydrotherapy were provided, and handled her complaint poorly. She says this has had a significant impact on her child’s development, has caused her stress, and has cost her time and trouble. The Ombudsman finds fault with the Council that has caused Ms X and her child injustice. The Council has agreed to apologise to Ms X, make a payment to recognise the injustice caused by the faults, and review its procedures about when it becomes aware that a child or young person is not getting the provision they should be getting.

The complaint

  1. The complainant, who I refer to here as Ms X, complains that the Council:
      1. delayed finalising her child’s Education, Health and Care plan;
      2. failed in its duty to make sure the provision identified in the plan is provided; and,
      3. handled her complaint poorly.
  2. Ms X says this has had a significant impact on her child’s development. She says this has caused her stress and has cost her time and trouble.

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What I have investigated

  1. As I have said in paragraph eight, we cannot investigate complaints when someone has taken more than 12 months to complain to us, unless we decide there are good reasons to do so. In this case, Ms X could have complained to the Ombudsman earlier because the Council should have issued the final EHC plan by the end of October 2016.
  2. I have decided to exercise my discretion to investigate this complaint because the situation has not been resolved: at the time of complaining to the Ombudsman, the Council still had not issued the final EHC plan.

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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 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)
  2. 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)
  3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  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. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
  6. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
  7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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How I considered this complaint

  1. I considered the information and documents provided by Ms X and the Council. I spoke to Ms X about her complaint. Ms X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments before I reached a final decision.
  2. I have considered the relevant legislation, statutory guidance and policies, set out below.

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What I found

  1. Under the Children and Families Act 2014, when an Education, Health and Care assessment is completed by a local authority and it shows a need for special educational provision, the local authority must prepare and maintain an Education, Health and Care (EHC) plan.
  2. The Special Educational Needs and Disability Code of Practice (‘the Code’) issued in January 2015 says, “the purpose of an EHC plan is to make special educational provision to meet the special educational needs of the child or young person” (section 9). The plan sets out the child’s needs and what arrangements should be made to meet them. EHC plans are for children and young people up to the age of 25.
  3. Councils had to transfer pupils with special educational needs statements onto EHC plans following the introduction of the new scheme in 2014. This involves carrying out an EHC assessment. 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).
  4. Local authorities had a duty to arrange the special educational provision specified in a statement of special educational needs (Education Act 1996, section 324). Councils now have an equivalent duty under the new legislation to make sure the child or young person gets the special educational provision set out in an EHC plan (Children and Families Act 2014, section 42).

Draft EHC plans

  1. Local authorities must consult the child’s parent or the young person about the content of the plan during the preparation of a draft plan. When a parent or young person suggests changes to a draft EHC plan, and the local authority agrees to those changes, the Code of Practice says the draft plan should be amended and a final EHC plan issued “as quickly as possible” (paragraph 9.125).
  2. The Code of Practice says that the final EHC plan can only differ from the draft plan because of representations the parent or young person made. The local authority must not make any other changes. If a local authority wants to make any changes to a plan, it must re-issue the draft plan to the parent or young person.
  3. When a parent or young person suggests changes to a draft EHC plan that a local authority does not agree to, the local authority may still issue the final EHC plan. In this case, the local authority must tell the parent or young person about their right to appeal to the tribunal and the time limit to appeal, that they must consider mediation before appealing, and about information and disagreement resolution services.

Time limits

  1. The Code says the process of EHC needs assessments and EHC plan development must be carried out in a timely manner. The time limits set out below are the maximum time allowed. However, steps must be completed as soon as practicable. Local authorities should ensure that they have planned sufficient time for each step of the process, so that wherever possible, any issues or disagreements can be resolved within the statutory timescales (paragraph 9.39).
  2. The Code says the whole process - from the point an assessment is requested (or a child or young person is brought to the local authority’s attention) until the final EHC plan is issued - must take no more than 20 weeks (paragraph 9.40).

Appeals

  1. A child’s parent, or the young person named in the plan, can appeal to the first-tier tribunal to challenge the content of an EHC plan. This includes appealing against the school or other institution named in the plan.

Complaints procedure

  1. The Council has a three-stage corporate complaints procedure. It says a complaint will be investigated within seven working days, and the complaints team will track the complaint.
  2. It says if the complainant is not happy with the response, they can ask to escalate the complaint to the second stage of the complaints procedure. A senior member of staff will investigate within 15 working days. Again, the complaints team will track the complaint.
  3. It says if the complainant is still not happy, they can ask to escalate the complaint to the third stage. A senior officer in the complaints team will review the complaint and investigate, if needed, within 15 working days. If the Council decides nothing further can be gained from a stage three investigation, it will notify the complainant and tell them about the next options available to them.
  4. If the complainant remains dissatisfied, they will be signposted to the Ombudsman.

What happened

  1. Ms X’s daughter, who I will refer to here as C, has autism, learning difficulties, and reduced mobility. She is now 19 years old. She had a special educational needs (SEN) statement since she was very young. From the age of 11, she attended a special school.
  2. In June 2016, the Council began the process of converting C’s SEN statement to an Education, Health and Care (EHC) plan.
  3. In December 2017, Ms X complained to the Council that it was not providing the speech and language therapy set out in C’s SEN statement. She also complained that the conversion from SEN statement to EHC plan should have been completed at the end of October 2016, but it had still not been done.
  4. The Council acknowledged Ms X’s complaint the next day. It said it aimed to respond in seven working days.
  5. The Council sent Ms X its response to her complaint eight working days later. The Council said it understood that the school was providing speech and language therapy in some form, but recognised that this did not fulfil the wording of C’s statement.
  6. The Council said the school had difficulties providing the additional therapy for C. The Council said it had tried to find a private therapist but had not been successful. It said the school had then been able to provide the therapy, but it “appears to have stopped since this time”.
  7. About the delay converting to an EHC plan, the Council said there had been significant delays due to administrative difficulties. The Council said it fully recognised that this was not acceptable.
  8. The Council said it had taken steps to address this with new staff and a new process to ensure all plans were completed by the end of March 2018. The Council apologised for the delay.
  9. The Council said this was now a priority, and a draft EHC plan would be sent to Ms X by the end of December 2017.
  10. The Council upheld Ms X’s complaint.
  11. Five days later, Ms X asked the Council to escalate her complaint to the next stage of the complaints process because she was not happy with the Council’s response.
  12. On the same day, the Council issued the first draft EHC plan.
  13. In January 2018, Ms X sent the Council her response to the draft EHC plan.
  14. At the end of January, the Council apologised to Ms X for the delay in responding to her complaint. It said it needed to get more information. It said it would respond to her complaint after a meeting which was planned for a few days’ time to discuss C’s SEN provision.
  15. Ms X replied, saying she did not agree to extending the Council’s deadline to respond to her complaint. She said she did not want time in the meeting to be taken up discussing her complaint.
  16. The meeting went ahead at the end of January.
  17. In mid-February, Ms X asked the Council to escalate her complaint to stage three of the complaints procedure, because she still had not received the stage two response.
  18. The annual review meeting for C’s SEN statement was held at the end of March.
  19. In May, the Council issued the second draft of the EHC plan.
  20. In July, Ms X complained to the Ombudsman.
  21. At the end of July, the Council told the Ombudsman that it needed to respond to Ms X’s complaint at stage three of its complaints procedure. The Council said it would inform Ms X.
  22. Also at this time, Ms X chased the Council for a response to her complaint. She says she received an acknowledgement that her email had been received, but got no response from the Council.
  23. A few days later, the Council told the Ombudsman that a ‘previous post holder’ had been dealing with Ms X’s complaint. It said it would review her complaint, and would aim to do this by mid-August.
  24. The Council emailed the Ombudsman at the end of September. It said there had been a delay in dealing with Ms X’s complaint due to complaints team staff taking leave. It said it would deal with Ms X’s complaint as a priority.
  25. In mid-October, the Council emailed the Ombudsman. It apologised for the delay. It said it had investigated Ms X’s complaint. The Council said Ms X had taken her complaint to judicial review and this is why Ms X’s complaint had not been dealt with at stage three.
  26. The Council apologised for failing to update Ms X about this.
  27. At the end of October, Ms X told the Ombudsman that there had been no judicial review proceedings. The Ombudsman asked the Council to clarify its position about this, given what Ms X had said.
  28. At the end of November, different Council departments discussed how some of the speech and language therapy for C, specifically sign language, would be funded. The outcome was that the Council’s health department said it would fund this.
  29. Shortly after this, the Council issued the third draft EHC plan.
  30. Ms X responded to this in December. She still disagreed with some parts of the plan.
  31. In mid-January 2019, the Council prepared a final EHC plan. It said there was ongoing communication with Ms X to reach an agreement so the final plan could be issued in time for C’s annual review at the end of January.
  32. C’s annual review was held at the end of January.
  33. In February, Ms X emailed the Council asking for an update on the speech and language therapy, sign language, and hydrotherapy for C’s mobility. She says she did not get a reply.

Analysis

Delay finalising the EHC plan

  1. Ms X complains that the Council has delayed finalising C’s EHC plan (part a of the complaint). She says the Council still has not issued the final EHC plan.
  2. The Council says the initial delay was due to the volume of SEN statements that needed to be converted to EHC plans.
  3. There have been three drafts of C’s EHC plan: December 2017, May 2018 and November 2018. The Council has not issued the final EHC plan.
  4. The Code says councils must complete the assessment and finalise an EHC plan within 20 weeks. The 20-week period for the Council to have issued the final plan ended at the end of October 2016. The Council has failed to do this. This is fault.
  5. The Code also says when a parent suggests changes to a draft EHC plan, and the local authority agrees to those changes, the draft plan should be amended and a final EHC plan issued “as quickly as possible”. The Council has failed to do this. This is fault.
  6. These faults have caused injustice to C because she still does not have a final EHC plan. The faults have also caused injustice to Ms X because she has spent a long time waiting for the plan which has caused uncertainty, and has spent time and trouble chasing the Council.
  7. Failing to issue C’s final EHC plan means the Council is denying Ms X the right to appeal the plan at a tribunal. Only a final EHC plan can be challenged at a tribunal. The Council has denied Ms X her right to appeal a final EHC plan at a tribunal for over two years. This is injustice.
  8. The Code says local authorities should plan for sufficient time for each step of the process, so that any issues can be resolved within statutory timescales. The Council has failed to do this.
  9. Ms X says that the hydrotherapy provision that had been in the earlier draft EHC plans was not in the third draft of the plan. The Council says this was an oversight, and has apologised to Ms X for this.
  10. I find the Council at fault for this oversight. This caused Ms X injustice because she had to chase the Council to rectify its mistake. Had she not done that, the error may not have been identified and this could have led to the final EHC plan not including the hydrotherapy C needs.

Failure to deliver the provision set out in the plan

  1. Ms X complains that the Council has failed in its duty to make sure the provision identified in the plan is provided (part b of the complaint). Ms X says that C’s SEN statement has had the same provision since she was very young: speech and language therapy and hydrotherapy, neither of which are currently being provided.
  2. Ms X says she found out in a meeting in 2016 that C was not getting speech and language therapy. She says she threatened the Council with judicial review, and after this the therapy was put in place for a short time (April to September 2017). She says she was not told that this stopped in September 2017.
  3. The Council says it expects the school to communicate any issues about delivery of provision with parents in the first instance. The Council says if this had been raised in annual reviews, the Council would have become involved to make sure the SEN statement was being properly implemented.
  4. Ms X could not have known that C was not getting speech and language therapy because C is not able to communicate this to Ms X. The Ombudsman cannot look at what happens in schools. However, it is ultimately the Council’s responsibility to make sure that the provision set out in SEN statements and EHC plans is being provided.
  5. If it is the case that the school did not inform the Council (at annual reviews or otherwise) about failures to provide SEN provision in line with SEN statements and EHC plans, this for the Council to raise with the school. The ultimate responsibility lies with the Council.
  6. Ms X told the Council in December 2017 in her complaint that speech and language therapy was not being provided. In its response to Ms X of December 2017, the Council recognised that the speech and language therapy “appears to have stopped”.
  7. The Council says it provided this therapy between April and September 2017 because the school had limited resources. It says the school did not immediately tell the Council the provision had ended. The Council says when it found out, the school had recruited speech and language therapy staff.
  8. I have seen no evidence that the Council has got involved since December 2017 to make sure the SEN statement was being properly implemented. This is fault.
  9. Ms X says C has not been provided with hydrotherapy since September 2018. She says before this, hydrotherapy had been provided at a local school’s swimming pool. However, she says due to a change in ownership of that pool, C’s hydrotherapy has stopped.
  10. I have seen no evidence that C has been provided with hydrotherapy since September 2018. This is fault.
  11. The Council says it has met C’s needs through the annual review process. I do not agree. I have seen no evidence that C’s needs are being met in line with the SEN statement or the draft EHC plans. This is fault.
  12. These faults have caused C injustice because she has not been getting the speech and language therapy or the hydrotherapy she needs and should be getting. The faults have also caused Ms X injustice, because she has repeatedly asked the Council to take action and make sure the SEN statement is implemented. This has caused avoidable and unnecessary distress to Ms X, as well as uncertainty and distrust of the Council’s SEN services.

Complaint handling

  1. Ms X complains that the Council has handled her complaint poorly (part c of the complaint).
  2. Ms X complained in December 2017. The Council acknowledged her complaint the next day, saying it would aim to respond in seven working days. The Council responded on the eighth working day. While this is not strictly speaking within the Council’s timeframes as set out in its policy, I do not consider this is significant enough to constitute fault.
  3. The Council told Ms X it would issue its stage two response in January 2018. It failed to do this. It also failed to respond to Ms X’s request for a stage three review. The Council did not keep Ms X informed of the decisions it made about her complaint. This is fault.
  4. The Council’s complaints procedure says complaints will be ‘tracked’ by the complaints team. I have seen no evidence that this happened. This is fault.
  5. The Council told the Ombudsman in September 2018 that the delay in dealing with Ms X’s complaint was due to staff leave in the complaints department. This is not a good reason for delays, particularly significant delays such as this case. This is fault.
  6. These faults caused Ms X injustice because of the uncertainty it caused, the time and trouble she spent chasing the Council for a response, because the Council did not deal with her complaint in line with its policy, and because the Council failed to respond to her complaint.
  7. The Council said it stopped dealing with Ms X’s complaint because it said Ms X had taken her complaint to judicial review. Ms X says she threatened to take the Council to judicial review but it never went further than this.
  8. There is no evidence that Ms X took her complaint to judicial review. The Council was wrong to say that this had happened. This is fault, and caused Ms X injustice because the Council failed to deal with her complaint. This is an example of poor complaint handling making a situation worse.

Agreed action

  1. Within four weeks of this decision, the Council has agreed to apologise to Ms X in writing for delays in issuing the final EHC plan, failing to provide C speech and language therapy and hydrotherapy in line with her SEN statement, failing to get involved to make sure the provision was being provided, and for failing to deal with her complaint as outlined above.
  2. The Ombudsman has published guidance on remedies which suggests a payment of between £200 to £600 for each month of lost provision. In reaching an appropriate amount I have considered the significance of the provision that should have been provided, the impact the loss of that provision is likely to have had on C, and other factors including the number of hours of therapy that should have been provided per week, and number of weeks per term.
  3. Taking all those factors into account, it is my view that a figure of £250 per month for the loss of speech and language therapy is appropriate. I consider that £200 per month is an appropriate figure for loss of hydrotherapy.
  4. The school provides details of its term dates on its website. The autumn term is 13 weeks long, the spring term is 12 weeks, and the summer term is 12 weeks.
  5. The loss of speech and language therapy was from autumn term 2017 to the end of spring term 2019. This is 62 weeks, which is approximately 15 and a half months.
  6. The loss of hydrotherapy was from autumn term 2018 to the end of spring term 2019, which is 25 weeks. This amounts to approximately six and a quarter months.
  7. Within four weeks of this decision, the Council has agreed to make a payment to Ms X of £5675. This is made up of the following:
    • £3875 for failing to provide speech and language therapy (15 and a half months multiplied by £250 per month);
    • £1250 for failing to provide hydrotherapy (six and a quarter months multiplied by £200 per month);
    • £300 to recognise the uncertainty this has caused Ms X, the time and trouble she has spent, and the avoidable distress this has caused; and,
    • £250 to recognise the failure in dealing with Ms X’s complaint for over a year.
  8. Within four weeks of this decision, the Council has agreed it will aim to issue a final EHC plan. Any further changes to the plan can be addressed through the annual review process or an appeal to the tribunal.
  9. Within four weeks of this decision, the Council has agreed it will decide how it is going to make sure C is provided with speech and language therapy and hydrotherapy, and make arrangements to start these as soon as possible. It should keep Ms X informed of its decision, and when the therapies will begin.
  10. Within three months of this decision, the Council has agreed to review its procedures for cases like this, when the Council is told that a child or young person is not receiving the provisions they should be getting in line with their SEN statements and EHC plans.
  11. Further to this, within three months of this decision, the Council has agreed to share this complaint, my findings, and the lessons it has learned with relevant staff and heads of service.
  12. The Ombudsman will need to see evidence that these actions have been completed.
  13. The Council has already apologised to Ms X for failing to include hydrotherapy in the third draft of the EHC plan.

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Final decision

  1. I have completed my investigation and uphold Ms X’s complaint. Ms X and C have been caused injustice by the Council’s actions and it has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman

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