Summary: The Ombudsmen finds fault by the two Councils, NELFT and the CCG in that they have failed to make appropriate educational and health provision for the complainants’ two children, who have special educational and mental health needs. The Ombudsmen have recommended steps to put things right for the children and parents. Issues about health provision for the children are now being considered by a Special Educational Needs and Disability Tribunal, which can make recommendations to NELFT about what clinical support it should provide to the children.

The complaint

1. The complainants, who I refer to as Mr and Mrs X, allege that West Sussex County Council, Sussex Partnership NHS Foundation Trust (Sussex Trust), Kent County Council, North East London Foundation NHS Trust (NELFT) and West Kent Clinical Commissioning Group (the CCG) have failed their two children, Child B and Child C, in managing and treating their health needs, and in providing education and support for their special educational needs.
2. Specifically, the complaints are:
1. that West Sussex County Council failed to take action after May 2017 to ensure the boys received appropriate education, delayed in undertaking and finalising the Education, Care and Health Plans (EHC Plans) for both children and changed its mind to undertake an independent investigation of the complaints regarding a lack of appropriate education under section 19 of the Education Act 1996;
2. that Sussex Trust failed to provide appropriate support to the boys, when they were living in its area, and delayed in transferring the relevant paperwork when the family moved to Kent which also did not include all the assessments, reports and other medical details;
3. that Kent County Council failed to make appropriate educational provision for the boys, despite the Council being aware of their needs as set out in the final EHC Plans from West Sussex County Council and it failed to work collaboratively with NEFLT to support the boys;
4. that NELFT and the CCG failed to provide support for the boys, with the aim of treating their mental health difficulties (primarily autism with associated anxiety) and getting them back into school, and there was a breakdown in communication between the two Trusts.
3. These failures are on-going and the parents allege that Kent County Council, NELFT and the CCG continue to fail to provide appropriate provision for the boys.
4. Since May 2017, both children have been out of full-time school. In June 2018, when the family moved, Kent County Council arranged home tuition for both boys until it placed Child C at a special maintained school at the end of January 2019. However, this school placement ended in May 2019 after a safeguarding concern. Kent County Council have not arranged further home tuition for Child C because it considers the school is suitable to meet his needs.
5. Child B has been without a school placement since May 2017. Kent County Council has provided limited home tuition for him since June 2018.
6. Mr X works fulltime. Mrs X says she has had to reduce and eventually give up her paid work, except for Sundays, to care for the children. Both parents have their own health difficulties.

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The Ombudsmen’s role and powers

7. The Local Government and Social Care Ombudsman and Parliamentary and Health Service Ombudsman have introduced a process for investigating complaints about both health and social care services. These complaints are now investigated by a single team acting on behalf of both Ombudsmen.
8. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, we 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. We 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)
9. The Special Educational Needs and Disability (SEND)Tribunal deals with disputes about assessments and provision for special educational needs. The Tribunal is now able to consider the health and social care matters but can only make recommendations rather than order health or social care provision.
10. The Court of Appeal confirmed in R v Commission for Local Administration, ex parte Field [1999] EWHC 754 (Admin) that the Ombudsmen cannot consider a complaint when the complainant has pursued an alternative remedy, for example by appeal to the SEND Tribunal.
11. If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How we considered this complaint

12. We issued a draft decision statement in November 2018 to Kent County Council, finding fault and injustice in its delay in making appropriate educational provision to the boys in line with their EHC Plans. We recommended it arrange an urgent joint meeting with NELFT, carry out a review of the home tuition and make a referral for both boys to the Council’s Health Needs Team.
13. We subsequently decided that the investigation should involve the Trusts and West Kent CCG as partner agencies. Therefore, the complaint investigation fell under our joint working arrangements with the Parliamentary and Health Service Ombudsman.
14. We have obtained written information from both West Sussex and Kent County Councils, the two Trusts and the CCG and from Mr and Mrs X. We have spoken on the telephone to the Associate Director of NEFLT Children and Young People’s Mental Health Services (CYPMHS) and to a Special Educational Needs Manager from Kent County Council.
15. We have obtained clinical advice.
16. We have issued draft decision statements to all the bodies in jurisdiction and to the complainants and we have taken into account their further comments.
17. In accordance with our normal practice, the final statement will be sent to the Care Quality Commission (CQC) and Ofsted.

What should have happened

Special educational needs

18. Councils and Clinical Commissioning Groups (CCGs) must have arrangements in place to plan and provide education, health and social care services for children and young people with special educational needs. They must agree how they will work together to achieve this.
19. Once an assessment determines that special educational needs provision is required for a child, the council must issue an Education, Health and Care Plan (EHC Plan). The council has a duty to ensure it is in place and is maintained.
20. Councils should issue an EHC Plan within 20 weeks of the request for a statutory needs assessment unless certain exemptions apply.
21. EHC Plans should be reviewed annually, so they remain relevant. But there may be occasions when a reassessment is appropriate particularly when a child’s needs change significantly. A council can carry out an early review or an emergency reassessment at any time if it considered appropriate. But it must conduct a reassessment if a request is made by the parent (unless it is less than 6 months since the last needs assessment) or a reassessment is requested by the CCG (when a council must comply). Councils should tell the parents their decision within 15 days of their request. Parents can appeal to the Tribunal if the request for a reassessment is refused.
22. The reassessment process is the same as if a first assessment. A council has 14 weeks from the decision to reassess to the issuing of the final Plan.

Provision and Appeals

23. Parents can appeal to the Special Educational Needs and Disability Tribunal (SEND Tribunal) when a council refuses to carry out an EHC needs assessment, refuses to issue an EHC Plan or a parent is dissatisfied with the final Plan, and the school named on the Plan. Appeals must be made within two months of the disputed decision.

Transfer to another council area

24. When a child or young person moves into a different council area, the Special Educational Needs and Disability Regulations 2014 says that the old council should transfer an EHC Plan to the new council on the day of the move, or within 15 days on which it became aware of the move.
25. From the date of the transfer, the EHC Plan is to be treated as if made by the new council on the date on which it was made by the old council. The new council should start making the provision set out in the Plan and should ensure the child receives all of the special educational provision specified in the Plan.
26. The new authority must, within 6 weeks of the date of the transfer, inform the child’s parent or the young person of the following;
1. that the EHC Plan has been transferred;
2. whether it proposes to make an EHC needs assessment; and
3. when it proposes to review the Plan in accordance with paragraph (5) of the Regulations, which states that the new authority must review before the expiry of the later of “(a) the period of 12 months beginning with the date of the making of the EHC Plan, or as the case may be, with the previous review; or (b) the period of 3 months beginning with the date of the transfer”.
27. A move may mean that there is a new commissioning body for health services (a clinical commissioning group). If it is not practicable for the new commissioning body to arrange the health care, it must, within 15 working days since it became aware of the move, request that the council makes an EHC needs assessment or reviews the EHC Plan. The council must comply with such a request.

Guidance for health services for children with special educational needs

28. The Children and Families Act 2014 and the SEN Code of Practice introduced new duties on local CCGs which requires councils and their partner commissioning bodies to develop joint services to improve outcomes for 0-25 year old children and young people with SEN. Services will include specialist support and therapies, including delivery of Speech and Language Therapy (SALT) and Occupational Therapy (OT).
29. Joint commissioning must also include arrangements for securing EHC needs assessment, securing the education, health or care provision specified and agreeing personal budgets.
30. The Code of Practice says that partners must agree how they will work together. To make best use of resources, it recommends an integrated approach should look at how to prevent the need for specialist services, how to identify needs early, how to support the resilience of families and better access to services.
31. The Designated Medical Officer (or Designated Clinical Officer) is a key statutory role, supporting joined-up working between health services and local authorities

Mental Health

32. In January 2017, the Care Quality Commission, which inspects and regulates mental health provision, issued a guide about waiting times, stating that no child or young person should wait longer than 18 weeks for treatment. We have taken this into account.
33. We have also taken into account the following National Institute for Health and Care Excellence (NICE) guidance on;

• Attention Deficiency Hyperactivity Disorder (ADHD) which recommends that those with ADHD have a comprehensive and holistic assessment to include discussion about behaviour and symptoms in different domains. Advice should be offered to parents about parenting strategies. Health providers should consider offering individual parent-training for parents/carers for children with ADHD and oppositional defiant disorder when there are difficulties for families in attending group sessions or a family’s needs are too complex for a group setting. Medication can reduce symptoms of ADHD in some children but requires careful monitoring;
• Autism Spectrum Disorder (ASD) is a neurodevelopment disorder. NICE recommends personalised plans, coordinated care, the treatment of the core features of autism and the assessment of the triggers for challenging behaviours. Where there is a diagnosis of autism, health and social care professionals working with children with autism should receive training in autism awareness and skills in managing, which should include a range of factors. There should be a case manager to co-ordinate treatment, care and support. Professionals should consider whether children and young people may have a coexisting condition like ADHD, anxiety disorders and phobias, or mood disorders. Those with ASD or ADHD are more likely to have problems with anxiety;
• Conduct Disorders: These are characterized by repetitive and persistent patterns of anti-social or defiant behaviours that violate age appropriate social expectations. Children with a suspected conduct disorder should have a comprehensive assessment, including an assessment of the parents. As treatment, interventions should be considered which have an explicit and supportive family focus.

Children out of school because of medical needs

34. Section 19 of the Education Act 1996 says “councils must make arrangements for the provision of suitable education at a school, or otherwise than at school, for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless arrangements are made for them”.
35. Government statutory guidance of January 2013 ‘Ensuring a good education for children who cannot attend school because of health needs’ states that councils are responsible for arranging suitable full-time education for children who, because of illness, would not receive education.
36. The guidance states that:

“In order to better understand the needs of the child, and therefore choose the most appropriate provision, LAs should work closely with medical professionals and the child’s family and consider the medical evidence.”

37. Kent County Council issued a document, Autism Pathway for Children and Young People 0-17, in April 2017. This document explains that Kent’s Health Needs Team, which provides education in separate medical ‘hubs’, is not intended for young people with autism and ADHD, unless there is a secondary Anxiety Disorder caused by their autism.
38. There is a detailed Service Specification for Emotional Wellbeing and Mental Health Services drawn up in January 2017 by West Kent CCG with its partner CCGs. The service specification states that the provider is required to meet the advice in the autism guidance and there is reference to ensuring a clear pathway for children with ‘challenging behaviours’ where mental health is an issue. NELFT developed the Neurodevelopment and Learning Disability Team to manage the increasing demand for assessment and treatment for ADHD and ASD.

The Local Government Ombudsman’s Focus Reports

39. We issued a Focus Report in September 2011 amended in June 2016, ‘Out of school….out of mind?’. This gives guidance for local authorities on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Of relevance to this complaint, the report recommends councils:

• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

What happened when Child B and Child C lived in West Sussex

40. In May 2017 Child B was enrolled at a mainstream secondary school and Child C at a mainstream primary school. The children had both stopped attending school, and West Sussex County Council made an urgent referral to Sussex Trust to assess their mental health needs.
41. In July 2017, Mr and Mrs X asked West Sussex County Council to carry out a statutory assessment of both Child B and Child C’s special educational needs. The Council agreed to do so.
42. The Council began providing home tuition for Child C at the end of September 2017 and for Child B in December 2017, on the basis they were unable to access school education due to their mental health needs. In doing so, it took account of advice from Sussex Trust about how much education the boys should receive.
43. In December, West Sussex County Council issued a draft EHC Plan for Child C and it said it would start to look for appropriate schools. However, there were none which could offer him a place.
44. In January 2018, West Sussex County Council agreed to place Child B at an independent special school which supported children with autism, but the Council did not pursue the offer of a placement following a safeguarding incident at the school.
45. West Sussex County Council issued a further draft EHC Plan in respect of Child B. It concluded that he spent most of his time in his bedroom and was unable to leave the house. It noted that, apart from one member of staff from the local autism society, he was not prepared to communicate with other professionals.
46. West Sussex County Council issued a final EHC Plan in May 2018 for Child B. The Plan stated Child B required a school for pupils with complex emotional difficulties, including those with autism.
47. West Sussex County Council also issued the final EHC Plan for Child C in May 2018. The Plan listed certain strategies to reduce Child C’s anxiety. It stated Child C required a school for pupils with complex emotional difficulties, including those with autism.
48. Both EHC Plans recommended the children received a range of therapeutic and pharmacological support for their mental health needs. The Plans recommended a review within two months.
49. Mr and Mrs X moved to Kent in May 2018 before West Sussex County Council had found suitable school places for the boys. West Sussex County Council sent a detailed referral to Kent County Council’s Children Services in June 2018.

Was there fault in the actions of West Sussex County Council and Sussex Trust?

50. In respect of the joint working between education, health and social care, we are satisfied that West Sussex County Council worked closely with Sussex Trust and together they shared responsibility, deciding early on that Sussex Trust should act as the lead agency, given the complexity of the boys’ mental health difficulties. They communicated well together and held joint meetings on a regular basis. Sussex Trust carried out timely assessments and observed the children were at risk of deterioration without appropriate clinical treatment. They sought to work with the parents, and the children, and offered them support.
51. West Sussex County Council was appropriately guided by Sussex Trust as to what might work best for the boys in terms of alternative educational provision. Sussex Trust and West Sussex County Council made efforts to get to know Child B, appealing to any special interests he might have. It also agreed funding in January 2018 for a special independent school for Child B, which the parents felt would have been appropriate for him and for Child C.
52. West Sussex County Council made a detailed referral to Kent County Council’s Children Services some two weeks after the family had left its area. It promptly sent the final EHC Plans, with the appendices, to Kent County Council’s SEN department and asked for Kent County Council to acknowledge its letter and to accept responsibility for the final Plans and recommended provision. We find that there was no fault with how West Sussex County Council handled the boys’ transfer to Kent.
53. Sussex Trust did not send NELFT the detailed clinical patient records initially, and there was some delay in it doing so, although, even if it had, it is unlikely this would have made a difference to NELFT’s approach because it wished to carry out its own assessments. Moreover, Sussex Trust thought Kent County Council had the relevant information in the EHC Plans and appendices. It also needed the parents’ consent to send the clinical records. We recognise there was a delay in transferring the clinical files, but Sussex Trust has agreed to devise ways of sharing clinical records more promptly in future, by seeking parents’ consent to do so when a move is imminent. We welcome this positive approach to learning from complaints without prompt by the Ombudsmen.
54. In July 2018, Sussex Trust agreed to contact NELFT, at Mr X’s request, and it provided more detailed medical information along with its recommendations for treatment for both boys. We consider that Sussex Trust responded appropriately to Mr X’s concerns about the boys not receiving mental health support following their move to Kent.
55. Therefore, in respect of the joint working, we find no fault with West Sussex County Council or Sussex Trust.
56. However, there was a significant delay of about 20 weeks (over the statutory requirement to complete EHC Plans within 20 weeks of referral) by West Sussex County Council between it issuing the boys’ draft EHC Plans and a final Plan. Some of the delay was due to redrafting of the Plans. However, West Sussex County Council had responsibility for the EHC planning process and, while important to work with parents, this cannot be at the cost of ensuring parents can pursue timely Tribunal appeals against the proposed school placements, and the provision offered.
57. West Sussex County Council’s lack of action to finalise the Plans, secure suitable school based educational provision and make transitional arrangements to reintegrate the children back into school, allowed drift. In addition, once Mr and Mrs X indicated that they would be moving, it is likely that this too stalled the process.
58. This should not have happened. We find therefore that West Sussex County Council has been at fault. In consequence, Mr and Mrs X were denied the opportunity to appeal the boys’ EHC Plans sooner.
59. In respect of the alternative educational provision, Mr and Mrs X recognise that Sussex Trust and West Sussex County Council worked together but they have concerns about the limited education provided. However, we have found the reduced timetable was based on advice from Sussex Trust about how the boys’ mental health problems affected their ability to learn. We therefore consider West Sussex County Council made an informed decision about the reduction to their educational provision, and we do not find it was at fault.

The events after the family moved to Kent

60. After the family moved home, Kent County Council arranged three hours of home tuition a week for the children from June 2018, spread over three days, while it looked for suitable school places. Child C has been willing to engage with the home tutors although his behaviours have been challenging. Child B has often refused to leave his bedroom, so Kent County Council subsequently arranged for two tutors to attend.
61. Kent County Council recommended a school placement for both boys at a nearby maintained specialist school. Mr and Mrs X said Child C would like to attend school, but his anxieties prevented this and he was too fearful that other children would pick on him. Subsequently the school said it could not meet Child C’s needs.
62. In July 2018, the parents told Kent County Council they wanted to appeal against the EHC Plans. Kent County Council told the parents that, because West Sussex County Council had issued the final Plans, the right of appeal would be against West Sussex County Council. Subsequently, Kent County Council told Mr and Mrs X it had adopted the Plans sent by West Sussex County Council but that it was now too late for them to appeal against the content.
63. NELFT says that Child B and Child C were both referred to it in July 2018. Following a risk assessment at clinical triage, it was decided the assessment should be undertaken on a planned basis (within 12 weeks) as opposed to an urgent assessment (2 weeks), or a crisis intervention (4 hours).
64. Sussex Trust made recommendations to NEFLT about the services it had assessed should be provided for the boys. In respect of Child B, Sussex Trust recommended the following treatment:

• A specific social- communication intervention to increase engagement, including strategies to increase parents’ understanding of, and responsiveness, to Child B’s patterns of communication;
• Therapist modelling with or without video interaction feedback;
• Techniques to expand his communication, interactive play and social routines;
• Psychological and pharmacological interventions for the management of co‑existing depression in line with NICE guidance on moderate to severe depression in children;
• Further assessment to identify if there is a physical illness or discomfort which prevents Child B’s sleeping, along with consideration of individual factors which might enhance or disturb sleep;
• If medication was to be used to aid sleep, this should only be used following consultation with a specialist Paediatrician with expertise in managing autism or Paediatric sleep medication.

65. In respect of Child C, Sussex Trust stated: “he exhibited functionally impairing anxiety and his needs are complex…I am concerned that, as a consequence of this complexity, [the parents] are finding it difficult to meet Child C’s basic needs”. The report stated:” the parents may be struggling to apply insights gained from discussions with professionals around potential strategies for helping.”
66. On 19 July, Sussex Trust recommended that Child C be offered a Cognitive Behavioural Therapy (CBT) programme (a therapeutic approach that aims to solve problems with dysfunctional emotions and behaviours through goal-oriented procedures) for the treatment of co-existing anxiety in children on the autistic spectrum. CBT is a recognised NHS treatment for anxiety.
67. Sussex Trust recommended a specialist therapist should deliver this to include:

• Emotion recognition training
• Greater use of written and visual information
• A more cognitively concrete and structured response
• Multi choice worksheets
• Involving a parent/carer to support the implementation of the intervention
• Incorporating the child’s special interests.

68. NELFT says that previous assessments and care plans would be taken into account when it undertook fresh assessments. It follows the NICE guidance (BS3) which recommends treatment plans be based on the current presentation.
69. Mr and Mrs X visited NELFT’s office in August for an assessment. NELFT says that, shortly before the appointment, the Clinical Psychologist became unwell so no assessment could take place. Only Child C attended the appointment, as Child B refused to come out of his bedroom.
70. On 3 October, two Psychotherapists from NELFT, visited Mr and Mrs X at home. NELFT’s notes record that the parents’ concerns were focused on the lack of action by Kent County Council, but they also raised a concern about Child B being so sick, yet no professional from NELFT had seen him. Even though it is a mental health provider, NELFT says it arranged a visit by a community nurse to assess Child B’s physical health, but no concerns were noted. The parents were advised to approach their General Practitioner (GP) to ask for a home visit if they continued to have concerns about Child B’s physical health.
71. To address anxiety in ASD, NELFT recommended psychological therapy by a highly skilled therapist for Child B. However, NELFT says that the parents said he could not be brought to the office and therefore it recommended that Kent County Council’s Early Help Services should become involved, and it made a referral. It also agreed to expedite assessments by a Consultant Psychiatrist.
72. NELFT placed Child C on a waiting list for Cognitive Behavioural Therapy (CBT), although it later decided this was not appropriate therapy for him.
73. The therapists explained to the parents that occupational and speech and language assessments should be arranged through the family GP. NELFT says that the parents did not approach their GP although the parents say they did and were told it was ‘complicated’.
74. On 17 October 2018 Kent County Council decided it would only review the EHC Plans once the boys were in a school placement. Kent County Council explained that it had not received any information from NEFLT to help it understand the boys’ mental health difficulties.
75. On 19 October, Mr and Mrs X made a formal complaint to NELFT about the lack of clinical treatment for both boys. Following the complaint, NEFLT alerted the CCG to the boys’ circumstances.
76. NELFT says that, from late October to November, engagement with the family became increasingly difficult due to Mr X’s ‘verbally abusive, aggressive, threatening and intimidating behaviour’. This was noted at a home visit of 28 October (arranged because Mr X had taken Child C to hospital, as an emergency, because the child was very distressed, thinking worms were crawling over his body) and an office visit of 2 November, where Mr X shouted at staff, in the presence of other vulnerable children in the waiting area. NELFT says that this difficulty in engagement resulted in a safeguarding referral being raised within NELFT. It considers that it was Mr X’s behaviour which prevented the assessment taking place.
77. Mr X says he became cross when he was told that his children were at the back of the queue and shouted in the reception area because he was trying to find a manager in charge. He apologised afterwards.
78. On 7 November 2018, NELFT cancelled an appointment to see the boys at home, planned for 9 November, it says ‘due to the high risk to staff by Mr X’s behaviours’. The Director of Operations wrote to Mr X telling him that he should not attend its offices or be available during home visits. Staff agreed to liaise with Mrs X.
79. The Director of Operations from NELFT met Mr X on 27 November: the Associate Director of the CCG joined the meeting. NELFT says the following was agreed:

• the completion of an urgent clinical assessment for the boys;
• clinical records to be transferred urgently to NELFT from Sussex Trust;
• a multi-agency meeting to be arranged for December 2018;
• that the ban on Mr X to be lifted (although Mr X says the ban was not lifted, just that he agreed not to attend the forthcoming home visit by the Consultant Psychiatrist planned for December). Mr X says it was agreed the ban would be lifted if he did not attend this appointment.

80. On 13 December a NELFT Consultant Psychiatrist assessed both Child B and Child C at their home. Mr X says that the Consultant completely changed the diagnosis for Child C, based on a 45 minute visit, stating he had an Oppositional Deviance Disorder, with attachment difficulties.
81. NELFT advised the parents to attend a Non-Violent Resistant (NVR) parenting programme for Child B and to contact a local autism support charity. It also offered a medication review and a NVR parenting programme for Child C. The offer of a NVR course was declined by the parents because of practical difficulties in both attending such a course and because they did not consider this would meet the specific needs of the children.
82. The parents say that a medication review of Child C was not offered until recently. NELFT says that previous invitations were not responded to by the parents.
83. In December 2018, there was a meeting involving Kent County Council and NELFT professionals, attended by the parents. NELFT considered that the local autism support agency could assist the parents. Mr X explained that he had been in touch with this agency in the summer of 2018 and all they could offer was to put them on the mailing list. He provided a copy of the email which he had received from the autism charity.
84. The meeting decided that:
1. NELFT would undertake a cognitive assessment of Child B, to be completed by the end of February 2019, and it would send this to Kent County Council;
2. it would send the recent assessments to Kent County Council by 11 January 2019;
3. it would arrange the invitation to the parenting class;
4. NELFT’s Clinical Lead would contact the local autistic society on behalf of the parents;
5. Kent County Council would issue draft EHC Plans by the end of January 2019;
6. two main contacts were agreed by Kent County Council and by NELFT; and
7. parents would visit a maintained special school, close to home, which the Council had previously considered was a potential suitable placement for Child C, but which now had vacancies.
85. Mr and Mrs X explained at the meeting that they could not attend the parenting programme because they had no alternative care for the boys. However, they told NELFT they would be willing to attend a training course which specialised in Pathological Demand Avoidance (PDA) which they have considered would be helpful in managing Child C’s behaviours. NELFT say that this is not a recognised mental health diagnosis and, in NELFT’s view, it does not have a good evidence base. The parents disagree.
86. NELFT also invited the parents to attend an ASD training day run by its Neuro Development Team. Mr and Mrs X did not attend.
87. Subsequently, the CCG agreed to arrange a speech and language assessment for Child B because the GP had not done so, although NELFT says the parents did not ask their GP. Arrangements for this assessment were not made until mid July 2019 and the Speech and Language Therapist was unaware that Child B refused to leave the house. She did a home visit in August, but Child B refused to engage.
88. On 31 January, Kent County Council issued a draft amended EHC Plan for Child C. Kent County Council offered a place for Child C at the local maintained special school which now had a vacancy.
89. Child C started at his school at the end of January 2019. Mr and Mrs X appealed the contents of the EHC Plan in February 2019 so the Ombudsmen cannot investigate the educational matters beyond this point.
90. On 20 February, NELFT completed the cognitive assessment for Child B. The assessment indicated significant difficulties for Child B in processing speed and his intellectual ability and verbal comprehension was assessed as very low. NELFT says that this assessment confirmed Child B’s ASD diagnosis, which is not a mental health disorder, and it was thought this assessment would be helpful in planning for Child B’s EHC Plan.
91. Child B currently remains out of school and remains reluctant to engage with the home tutors. NELFT considers that this is because of Child B’s poor sleep hygiene (asleep during the day, awake at night) which Kent County Council’s Early Help Team worked on in collaboration with the parents. The parents reported an improvement, but it appears this improvement was short-lived and he reverted to his previous pattern. Child B has recently been diagnosed with an overactive thyroid.
92. On 8 May 2019, there was an annual review of Child B’s Plan. Prior to this review, Kent County Council had sent an email to Mr X, in error, stating that his absence should not prevent the review taking place and that it may be beneficial for the Council if he did not attend the meeting. Kent County Council subsequently apologised for giving the impression that it was uncaring of the parents’ situation.
93. Kent County Council has now issued a final EHC Plan for Child B which Mr and Mrs X are appealing. The Ombudsmen cannot consider the educational provision from this date (June 2019) which is when Mr and Mrs X appealed to the Tribunal.
94. Kent County Council arranged home-based support to Mr and Mrs X and the children between April and June 2019. But Child B did not engage, and they say that there was no individual psychological therapy offered to him by NELFT during these visits. In June, Mr and Mrs X asked for the support to end as it was agitating Child C and – in their view – did not provide any obvious benefit. NELFT completed a further safeguarding referral to Children Services after this.

NELFT’s therapy offers

95. In respect of Child B, NELFT says that, at the visit in early October 2018, the Principal Systemic Psychotherapist recommended psychological therapy for Child B’s anxiety by a highly skilled therapist. However, the parents advised that Child B could not be brought to appointments because of their commitment to the other children. Therefore, NELFT asked Kent County Council to provide anxiety management from its Early Help Services. Early Help was able to help improve Child B’s sleeping patterns (although this was short lived). There is no evidence, which we have seen, that a clinician from NELFT was involved alongside Early Help.
96. NELFT also agreed to expedite the assessment of Child B by a Consultant Psychiatrist and the cognitive assessment. NELFT considers that the difficulties for Child B in processing speed and verbal comprehension confirmed his ASD and that his inability to function was not a mental health need.
97. In respect of Child C, NELFT have confirmed his diagnosis of ADHD, ASD with associated anxiety and behavioural problems.
98. NELFT says that, although Child C was placed on a waiting list for CBT, it later decided this was inappropriate because Child C was not able to concentrate or maintain attention for a sufficient period of time to understand the CBT processes due to having ‘unmedicated ADHD’. NELFT explains that CBT involves linking thoughts, feelings and behaviours and then making changes to those behaviours. Child C’s ASD/ADHD impedes his ability to identify his emotional states from ‘an intrinsic perspective’. NELFT says that, unless the parents welcomed a systemic approach, then treating Child C with CBT was not going to be effective. A positive behavioural approach was considered a more reasonable way to help moderate Child C’s behaviours. NELFT had considered that this was being offered by Child C’s previous special school.
99. NELFT have offered a second opinion from NELFT for Child C, based in a neighbouring area within the Trust, but the parents have declined this.
100. In addition, NELFT says that the parents have been offered weekly telephone contact, but Mr X has declined this because he prefers communication to be in writing. It has offered NVR training, an ASD training day and access to a peer support group. All have been declined by the parents.

Was there fault in the actions of Kent County Council?

101. Kent County Council says that, after the family moved to the area, there was no evidence that the boys were unable to attend school for medical reasons, as the EHC Plans from West Sussex County Council stated in Section I that they could attend a particular type of school, which could manage their special needs. The difficulty for Kent County Council was in finding a suitable school, which could manage their special needs, and which was willing to take the boys. Hence Kent County Council arranged the home tuition as alternative provision while it looked for appropriate schools.
102. The duty to work with partner agencies is set out in the legislation. Kent County Council has not provided details to the Ombudsmen of any written working protocols with NELFT and the CCG about how they work together to assess, manage, treat and provide for pupils with special educational and health needs. That is fault.
103. We also find fault by Kent County Council in the following ways;

• It failed to give the parents a decision within 6 weeks, in writing, (from 17 May 2018 when it became aware of the move into their area and had received the final Plans from West Sussex County Council) as to whether it would adopt the Plans or whether it would reassess the children. The parents should have been told this by 28 June 2018;
• Kent County Council failed to consider whether to arrange support services to Child B and Child C when it received West Sussex County Council’s referral, and only completed a children and family assessment as part of the Tribunal process in 2019. Therefore, there was a lost opportunity to provide the early help, which Kent County Council and NELFT subsequently, in April 2019, considered appropriate;
• Kent County Council failed, in May 2018, despite the medical information in the appendices to the EHC final Plans from West Sussex County Council, to contact NELFT urgently, given the boys were both out of school for medical reasons. It failed to recognise NELFT as a partner agency responsible for working with it to assess and provide treatment and special educational provision to two boys with significant health needs;
• In early July 2018, Kent County Council gave information to Mr and Mrs X, implying that it would review the Plans, would contact NELFT, and would confirm its actions in writing. But it failed to do so;
• Kent County Council told a mediation service that it would review the final Plans, leading Mr and Mrs X to think that there would be a reassessment by Kent County Council. It failed to tell Mr and Mrs X that they should mediate with West Sussex County Council, if that was its view, and that their SEN appeal had to be against West Sussex County Council. This prevented the parents from pursuing an appeal to the Tribunal sooner, which might have been on time, or only slightly out of time, had Kent County Council provided the correct information to Mr and Mrs X promptly;
• Kent County Council did not consider whether a reassessment was required, and it failed to tell Mr and Mrs X that they could request one, and a refusal would trigger a right of appeal to the Tribunal. Kent County Council says it would not have agreed to a reassessment as the Plans were less than 6 months old. But the last assessment of the children’s needs had been in November 2017, and both Plans of May 2018 recommended a review meeting after two months. In addition to this, there had been a deterioration in the boys’ mental health, the home tuition was limited, and no school placements had been secured. In our view, the Council should have considered whether these factors should have triggered a reassessment. Had it done so, and refused a reassessment, Mr and Mrs X would have had a right of appeal to the Tribunal. Therefore, they again lost an opportunity to submit an earlier appeal against Kent County Council about the content of its Plans;
• Kent County Council says it reviewed the alternative education and the tutors have been creative in their approach. But there is no evidence to support the view that Kent County Council properly reviewed the situation to assess whether there should be more hours’ tuition, or a different approach, or whether the tuition met the boys’ educational provision in their EHC Plans. We are, however, satisfied that the tutors have tried hard to engage the boys, despite the challenges their behaviours presented to them;
• Kent County Council failed to make a referral to its Health Needs Education Service. This was another option and, given the difficulties in finding appropriate school places, this is an option which should have been pursued, even if we cannot say what the outcome might have been;
• Agreements made at the professionals’ meeting on 18 December 2018 were not all carried through and Child B’s amended final EHC Plan remained outstanding for longer than agreed (4 months), thereby delaying the parents’ right of appeal;
• Kent County Council has apologised for the email sent to the parents in April 2019. But it was poor practice for Mr and Mrs X to receive an email which showed a lack of regard for their welfare.

Was there fault in the actions of NEFLT and the CCG?

104. In respect of mental health provision, the Ombudsmen consider it is reasonable and appropriate to use the CQC’s benchmark of 18 weeks between referral and treatment when assessing the timeliness of mental health provision. Moreover, waiting for a school placement to become available, before any individual clinical treatment is provided, unnecessarily delayed interventions to help Child B and Child C make the transition back to school or to help them to minimise the impact of their difficulties on their daily life
105. The Ombudsmen are also guided by the recommendations made by NICE, in particular in relation to ASD, ADHD and Conduct Disorders. Much of this guidance focuses on helping children and young people to regulate their behaviours and emotions and providing guidance to parents and carers about their children’s diagnosis.
106. We find the following faults by NELFT and the CCG:

• On 5 and 13 July 2018, NELFT was made aware of Sussex Trust’s recommendations for treatment. NELFT says that it was unable to comment without the completion of its own assessment and agreement of a treatment plan. NELFT should have told Kent County Council that it was not in a position to provide what the previous Trust had recommended, and it should have asked Kent County Council to carry out a needs assessment or review in accordance with the SEND legislation (with a right of appeal to the parents on the former option if Kent County Council had refused);
• On 2 November 2018, Mr X became frustrated and angry when at the NELFT’s office. NELFT decided to cancel a subsequent appointment to see the boys for 9 November. Services to the boys should not have been affected by the parents’ behaviour and NELFT could have seen the boys at home without Mr X being present;
• We would expect NELFT and the CCG to follow the NICE guidance in respect of treatment for the boys’ diagnosis of autism and anxiety. While NELFT has said that it was providing clinical input to Kent County Council’s Early Help Services, there is no evidence of this in the Council’s case notes;
• NELFT has offered group training programmes for the parents in accordance with NICE guidance. Mr and Mrs X have not taken up these offers whatever the reason. In these circumstances, we would expect NEFLT to have reviewed the young person’s situation rather than stick rigidly to a clinical plan which was not being delivered. NELFT has failed to demonstrate flexible thinking about how to accommodate the family’s circumstances, so that the boys could access help for their diagnosed anxiety;
• Child B and Child C have remained on a waiting list for specific individual clinical treatment since moving to Kent in May 2018. Nearly 18 months later they still have not received any individual therapy for their autism or anxiety, in accordance with NICE guidance. We find that this is in breach of the CQC expected waiting time of 18 weeks between referral and treatment;
• In addition, NELFT told Mr and Mrs X in December 2018 it would arrange a speech and language assessment for Child B but only made the arrangements in March 2019. There also remains continued confusion about how parents can request and obtain speech and language and occupational therapy assessments;
• Until recently, there was no Designated Medical Officer as recommended by the SEN guidance.

Joint working between NELFT, the CCG and Kent County Council

107. There was little joint working initially between these three key agencies and that amounts to fault by all. Later there were some discussions about Child B and Child C between the agencies but little positive action until the professionals’ meeting of December 2018, some six months after the family had moved to Kent.
108. We consider that the statutory joint working arrangements have not been met in this case, and that amounts to fault by all three agencies: Kent County Council, NELFT and the CCG. The faults have meant the boys have not received an appropriate education or clinical treatment for their health problems.

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Agreed actions

109. To remedy the injustice caused by the identified faults by West Sussex County Council, Kent County Council and the CCG, we recommend the following to be completed within one month of the date of the final statement:
1. The Ombudsmen normally recommends between £200 to £600 for each month of lost education. There was a five-month delay by West Sussex County Council in finalising the boys’ Plans. But we recognise it provided some alternative education and worked jointly with Sussex Trust. West Sussex County Council will apologise to the parents for this delay. We consider £200 per month is appropriate to recognise the injustice caused, which means West Sussex County Council will pay Mr and Mrs X £1000 for each boy, to be used for their education, to remedy the injustice caused by its delays in finalising the Plans. In addition, it will remind SEN managers that the planning for provision and finalising Plans should adhere to the statutory timescales, regardless of whether a family is seeking amendments to the draft Plans or is moving out of area;
2. The CCG has now appointed a Designated Medical Officer. This Officer will report back to the Ombudsmen on how they are ensuring better co‑ordination and collaborative working between Kent County Council and NELFT/CCG;
3. There remains confusion about how parents can obtain occupational and speech and language assessments and these are often required when carrying out an EHC needs assessment Kent County Council and the CCG will clarify in writing how, in future, these can be obtained in a timely manner, and ensure that this information is available to all parents and carers in its area through the Kent County Council’s Local Offer on its website;
4. Kent County Council and the CCG will apologise, in writing, to Mr and Mrs X for the avoidable distress and frustration caused by their faults;
5. Kent County Council will make a financial payment to the parents for Child B and Child C for the injustice caused to them by its failures. In this case, we recommend payments at the rate of £500 per month (£100 less than the maximum because Kent County Council has provided some home tuition) to be paid as from the end of June 2018, which is when Kent County Council should have decided and told the parents whether it adopted West Sussex County Council’s final EHC Plans. This equates to a payment of £6,000 for Child B (12 months out of school), as he remains without suitable education, and £3,500 for Child C who was placed at a school at the end of January 2019 (7 months out of school). It will be for Mr and Mrs X to decide, in discussion with Kent County Council, how these payments should be used to the benefit of Child B and Child C. The parents may wish to make such decisions after the final Tribunal hearings for Child B and Child C;
6. The Ombudsmen normally recommend symbolic payments for avoidable distress and frustration caused to complainants, ranging from £300 to £1,000. We recommend payments at the higher end and that Kent County Council and CCG will each pay £1,000 to Mr and Mrs X for the distress caused to them by their failings (£2,000 in total).
7. We have not made recommendations to NEFLT to remedy the injustice caused by faults in arranging clinical services for Child B and Child C. The SEND Tribunal will be able to make recommendations to NELFT about health provision, based on the more recent assessments ordered by it of both Child B and Child C. But, if the SEND Tribunal recommends certain health provision, and NELFT does not implement this, the parents can refer this back to us as a new complaint about NELFT’s alleged failings.

Joint Working arrangements between Kent County Council and NELFT/CCG

110. We have taken account of the joint inspection carried out by the CQC and Ofsted which raised concerns about the management of pupils with special educational needs, concerning both Kent County Council, NELFT and the CCG. Its main findings, relevant to this investigation, are that:

• too many children with special educational needs or disabilities (SEND) did not receive the support they required;
• health leaders have not been consistent in their membership of the 0-25 Health and Wellbeing Board;
• joint commissioning arrangements are underdeveloped;
• too many children have weak EHC Plans;
• children and young people with SEND cannot access the same services in all parts of Kent and systems to assess and review children’s needs are weak.

111. Kent County Council and the CCG will need to tell Ofsted and the CQC how it plans to tackle the areas of significant weaknesses in the SEN arrangements. But, to prevent a reoccurrence of the faults in this particular complaint, Kent County Council and the CCG have agreed within four months of the date of the final statement, to report back to the Ombudsmen on the following recommendations:

Kent County Council and the CCG will provide training to all Kent County Council SEN Officers and to relevant NELFT staff covering the legal requirements under the SEN legislation and Code of Practice; specifically about timescales for statutory assessments, around joint working and sharing of information, timescales for adopting Plans when pupils with special needs move into the area and about the requirements for reassessments and reviews. There also needs to be clarity about arranging and commissioning specialist assessments;

Kent County Council and the CCG will also provide joint written working protocols so Kent County Council, the CCG and NELFT Officers have clear written guidance about the SEN process and their joint duties.

Kent County Council will carry out an audit of all its pupils currently receiving home tuition from its Education Programme Service to ensure that these pupils are receiving full time education, or there are justified reasons why they are not, also ensuring pupils are being taught on par with their mainstream peers, and that plans are in place to enable the pupil to return to school, if appropriate.

Where there is an EHC Plan, Kent County Council should ensure the home tuition is providing what is set out as required in the EHC Plan. Kent County Council should report back to the Ombudsmen, providing details of each pupil, anonymously, setting out the reasons for the number of hours allocated, the subjects covered, whether it meets the provision required by an EHC Plan and provide details of the plan for a return to school;

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Final decision

112. We have not found evidence of fault with the actions of Sussex Trust or with the joint working between it and West Sussex County Council.
113. We have found evidence of fault causing injustice with the actions of West Sussex County Council, Kent County Council, NEFLT, and the CCG.

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Parts of the complaint that we cannot investigate

114. The Ombudsmen cannot investigate the actions within a school.
115. Mr and Mrs X had complained about actions at Child B’s previous school in West Sussex County Council. The Chief Executive had offered an independent review but withdrew this offer when the family moved to Kent. However, the Ombudsmen cannot investigate this decision as it is integral to matters within a school.
116. Once a parent has a final EHC Plan, and has appealed to a SEND Tribunal, the Ombudsmen cannot look at the provision made from the date of the appeal. This means that the Ombudsmen cannot consider the merits of Kent County Council’s education provision set out in Child B’s amended EHC Plan of May 2019 (appealed by the parents in June 2019) and Child C’s amended EHC Plan of February 2019 (appealed by the parents in February 2019).

Investigator’s final decision statement on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman