Summary: Mrs B complained about the actions the Council took in respect of her daughter, C’s special educational needs. We find that the Council failed to maintain C’s EHC Plan, delayed in carrying out a reassessment of C’s needs and failed to produce a final EHC Plan. The Council has agreed to issue a final EHC Plan, make up missed therapy provision, pay C £1800 to be used for her educational benefit and Mrs B, £500.

The complaint

1. Mrs B complains that the London Borough of Sutton (the Council):
• failed to maintain her daughter, C’s EHC Plan since the Council agreed, in October 2018, not to oppose the appeal against cessation of the plan;
• delayed in carrying out a reassessment and producing a new EHC Plan;
• failed to make any educational or therapeutic provision since September 2018;
• failed to communicate adequately with Mrs B; and
• delayed in responding to her complaints.

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The Ombudsman’s role and powers

2. 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)
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)

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How I considered this complaint

4. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. I have written to Mrs B and the Council with my draft decision and considered their comments.
5. 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

Education, Health and Care Plans

6. A child or young person with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the person’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.
7. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.

EHC plan assessment timescales

8. The Special Educational Needs Code of Practice 2015 (the Code) says that “local authorities should ensure that they have planned sufficient time for each step of the assessment process, so that wherever possible, any issues or disagreements can be resolved within the statutory timescales”.
9. It also states that: “The whole process of EHC Plan needs assessment and EHC Plan development, from the point when 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”. The 20-week time limit is set out in Regulation 13(2) of the Special Educational Needs and Disability Regulations 2014.

EHC plans and statutory care and support plans

10. Where young people aged 18 or over continue to have EHC plans, and are receiving care and support, this will be provided under the Care Act 2014. The statutory adult care and support plan should form the ‘care’ element of the young person’s EHC plan. While the care part of the EHC plan must meet the requirements of the Care Act 2014 and a copy should be kept by adult services, it is the EHC plan that should be the overarching plan that is used with these young people to ensure they receive the support they need to enable them to achieve agreed outcomes.
11. Local authorities must set out in section H2 of the EHC plan any adult care and support that is reasonably required by the young person’s learning difficulties or disabilities. For those over 18, this will be those elements of their statutory care and support plan that are directly related to their learning difficulties or disabilities. EHC plans may also specify other adult care and support in the young person’s care and support plan where appropriate, but the elements directly related to learning difficulties and disabilities should always be included as they will be of particular relevance to the rest of the EHC plan.

Ceasing an EHC Plan

12. A local authority may cease to maintain an EHC plan only if it determines that it is no longer necessary for the plan to be maintained, or if it is no longer responsible for the child or young person.
13. Where the child’s parent or the young person disagrees with the local authority’s decision to cease their EHC plan, they may appeal to the Tribunal. Local authorities must continue to maintain the EHC plan until an appeal has been concluded.

What happened

14. Mrs B’s daughter C is 23 years old and has a diagnosis of Autism Spectrum Disorder which severely affects her language, learning and communication skills.
15. The Council issued a final EHC Plan in 2015 and C attended a specialist college from September 2015 for three years. The placement was due to end in July 2018. The Plan also included speech and language therapy, occupational therapy and physiotherapy which were provided at the college.
16. In April 2018 the Council proposed ceasing the EHC plan from July 2018. It said the college would not continue C’s placement as it did not consider she would benefit from its provision anymore.
17. The Council’s adult social care team carried out an assessment in April 2018 and concluded that further social work input was needed to explore options post-college and in the community for C. The most up-to-date support plan was an interim one, done in February 2018. It noted the information was out-of-date as the care provider had changed and said a full review was required as C’s college placement was ending.
18. The adult social care team consulted with local day care providers to support C preparing for adulthood. Six providers declined to offer a placement due to C’s complex needs and potential disruption for other service-users. In October 2018 adult social care identified a potential placement (Provider Z) for C subject to a funding agreement between the Council departments.

Appeal

19. On 30 August 2018, Mrs B appealed against the Council’s decision to end the EHC plan. She had found an alternative placement for C. In October 2018 the Council agreed not to contest the appeal but to carry out a reassessment of C. It said the reports and advice were out of date and it needed a reassessment to best decide the way forward. It said it could not secure a placement until the reassessment was complete and it did not have to do so, as C was not of statutory school age.
20. The Tribunal confirmed on 16 November 2018 that the appeal had ended.
21. On 22 November 2018 Mrs B’s representative (REP) challenged the Council’s view. She said it had a duty to maintain C’s provision until the reassessment was completed and asked it to consult with Mrs B’s alternative provider.

Complaint

22. Mrs B made a formal complaint to the Council about the refusal to make any educational provision for C in accordance with her EHC Plan. The Council replied initially on 21 December 2018 saying it couldn’t find a copy of the original complaint, but it was currently obtaining new reports for the re-assessment. It would then refer the case to the SEN Panel as soon as possible to decide if an EHC Plan was required and if so, it would then seek and consult with appropriate providers.
23. In February 2019 the Council issued a draft EHC Plan. Section E detailed four outcomes:
• Undertake a simple activity such as knitting, beading or filing;
• Prepare a simple lunch with light-touch support and supervision;
• Participate in a group to allow interaction with others and to develop a new friendship; and
• Take part in physical exercise four times a week.
24. The accompanying reports recommended that speech and language therapy and occupational therapy should continue.
25. In Section D it said that C received a package of social care which was under review. In section H (social care provision under the Chronically Sick and Disabled Person Act 1970) it said ‘N/A’. C started at Provider Z in March 2019.
26. After contact from our office, the Council responded in March 2019 to the complaint. It apologised for the delay in responding but said the complaint had never been registered as a complaint. It said it could not pursue a placement for C while the reassessment was ongoing but social care had been providing support. It said the assessment had been completed in February 2019 and would be going to a joint planning panel to produce a joined- up plan.
27. The Council sent a further complaint response in April 2019. It agreed it should have reassessed C’s needs while she was still at college in 2018. It apologised for the failure to do so. It offered to provide the missed occupational therapy sessions in the summer term and said it would liaise with social care for a suitable provider. It upheld the complaint.
28. REP escalated the complaint and the Council responded again in May 2019. It acknowledged it had failed to maintain the provision in C’s EHC plan since September 2018. In addition to the occupational therapy sessions it also offered eight sessions of speech and language therapy and eight sessions of physiotherapy. It did not agree C had missed out on educational provision or that its communication had been poor.
29. REP escalated the complaint to stage three of the complaints process. She said no final EHC Plan had been issued and no contact had been made with Mrs B over the missing therapy sessions. The Council replied in July 2019 saying that it had contacted Mrs B regarding the missing therapy sessions but had received no response. It acknowledged it had not issued a final EHC Plan but said it had offered to meet with the family. It said social care had been providing a care package delivered over four days a week: three days at Provider Z and one day of enrichment at the college. It offered to meet again with the family.
30. REP then complained again to the Ombudsman.
31. In its response to my enquiries, the Council says its adult social care team undertook a review of the placement in July 2019 and C had made good progress. She enjoyed the library and cooking activities. She could prepare simple snacks and light meals. It said this progress may not have been possible in a traditional educational establishment.

Analysis

EHC Plan

32. The Council should have continued the provision in C’s EHC Plan from September 2018 until the appeal was concluded and while it carried out a reassessment. It failed to do so and this was fault. C was without any provision at all from September 2018 until March 2019.
33. Since March 2019 C has received some provision via a social care package. The Council considers this has met her educational needs. However, it is difficult to conclude this is the case given that it has not produced a final EHC Plan nor a current care and support plan. The social care elements of the EHC Plan have not been completed correctly, so Mrs B has no way of knowing if the provision is suitable for her all daughter’s needs.
34. It was fault not to produce a final EHC Plan. The Council produced a draft EHC Plan in February 2019 and almost a year later has still not issued a final document naming a placement. This has denied Mrs B a right of appeal to the Tribunal against the provision, the placement and the social care content. It was also fault not to give any reason why it has not produced a final EHC Plan and no commitment to do so in the future.
35. The Code makes clear that the EHC Plan should be the overarching document for a young person who has social care needs in addition to educational needs. The Council talked about producing a joined-up plan but has failed to produce any plan at all. If it considers an EHC Plan is no longer necessary, it should have ceased the plan and defended its case at Tribunal. It is unacceptable to have done nothing. In addition to the lack of support for C, it has caused Mrs B significant frustration, distress and inconvenience.
36. The Council has also delayed in considering Mrs B’s complaints and failed to communicate adequately with her which has exacerbated the injustice.
37. The Council has apologised to Mrs B, offered extra sessions of occupational therapy, speech and language therapy and physiotherapy. It says Mrs B has not responded to the offer, but REP says the Council has not contacted them. I have insufficient information to reach a view on this aspect of the complaint, but I consider the Council should do more to put right the injustice caused to C and Mrs B.

Agreed action

38. In order to put matters right I asked the Council to, (within one month of the date of the decision):
• issue a final EHC Plan incorporating the social care provision and naming a placement for C;
• contact REP and Mrs B with a plan for making up the missed therapy (speech and language, occupational and physiotherapy) sessions. The number of sessions offered should be increased to recognise the fact that C has had no therapeutic provision since September 2018;
• pay C (via Mrs B) £1800 to be used for her educational benefit, for the period between September 2018 and March 2019 when she was without any provision;
• pay Mrs B £500 for the distress and time and trouble caused to her; and
• ensure all staff involved in EHC planning are reminded of the statutory duties and timescales.
39. The Council has agreed to my recommendations.

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Final decision

40. I consider this is a reasonable and fair way of resolving the complaint and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman