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London Borough of Merton (19 000 969)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 27 Jan 2020

The Ombudsman's final decision:

Summary: The Ombudsman upholds Mr and Mrs X’s complaint about the delay in issuing an Education, Health and Care plan for their daughter, Y. The Council failed to consult with all the relevant professionals and delayed seeking advice from other sources. It failed to communicate with Mr and Mrs X, missed deadlines and did not keep clear records of decisions. Y missed out on support as a result of the delay. The Council will apologise and make a payment to Y and Mr and Mrs X to remedy their injustice. It will also hold an early annual review for Y and remind staff of their duties in carrying out needs assessments and issuing plans.

The complaint

  1. Mr and Mrs X complain the Council took too long to issue an Education, Health and Care plan for their daughter Y. They say it delayed in consulting with other professionals and in providing interim support while it was drafting the plan. Mr and Mrs X say Y missed out on support at a key transition point between infant and junior school. They have found the process to be frustrating and have been put to the time and trouble of making complaints to resolve the situation.

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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. SEND is a tribunal that considers special educational needs. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)

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How I considered this complaint

  1. I read the complaint made by Mr and Mrs X and the documents they provided.
  2. I considered the Council’s comments about the complaint and the documents it provided in response to my enquiries.
  3. I took account of the following Ombudsman’s focus reports:
    • ‘Education, Health and Care Plans: our first 100 investigations’ published in October 2017.
    • ‘Not going to plan? Education, Health and Care Plans two years on’ published in October 2019.
  4. I gave Mr and Mrs X and the Council an opportunity to comment on my draft decision and I considered their responses.
  5. 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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What I found

Background

  1. The Children and Families Act 2014 sets out how support will be provided to children with special educational needs and disabilities (SEND). The ‘Special education needs and disability code of practice’ gives more details about how councils, schools and others should carry out their duties.
  2. Most children and young people will have their SEND needs met within early years settings, schools or colleges without any need for involvement from a council. Children with more complex needs might instead need an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. Councils are responsible for ensuring there is effective coordination of the assessment and development of an EHC plan.
  3. If a parent asks for an EHC needs assessment, councils must decide whether one is necessary and tell the parent of their decision within six weeks. If a council refuses to assess, parents have the right of appeal to the SEND tribunal. At the request of both parties, the tribunal can make a consent order which brings the proceedings to an end.
  4. If it decides to assess, a council must seek advice from relevant professionals about the child’s education, health and care needs and desired outcomes. It should also ask about provision that may be required to meet those needs and outcomes. Councils must give professionals copies of any representations made or evidence submitted by the parent. Professionals must provide advice to the council within six weeks of the request.
  5. Councils must not seek further advice if it has already been provided and the person providing the advice, the council and the child’s parent are all satisfied that it is sufficient for the assessment process.
  6. When a council decides it is necessary to issue an EHC plan following a needs assessment it must tell the parent and give reasons for its decision. It must ensure it allows enough time to prepare the draft plan and complete the remaining steps within the overall time limit within which it must issue the final EHC plan.
  7. Councils must send the draft plan, including the advice gathered during the needs assessment, to the parent and give them at least 15 days to give their views. Where a council does not agree to changes suggested by the parent, it should issue the final EHC plan and notify parents of their right to appeal to the SEND tribunal.
  8. Where an assessment leads to a council issuing an EHC plan, the council is responsible for ensuring the special educational provision in the plan is in place. The code says the provision must be detailed and specific and should normally be quantified in terms of the type, hours and frequency of support. Case law has established that the plan should be so specific and clear about provision that it leaves no room for doubt as to what has been decided.
  9. The whole process, from the request for a needs assessment to the issue of a final EHC plan, must take no more than 20 weeks. The code says where services are assessed as being needed, provision should not be delayed until the EHC plan is complete.
  10. Schools contribute the first £6,000 of added educational support for pupils with SEND. Funding above this level is agreed between councils and schools when the EHC plan is developed. In this case, the Council manages funding through a banding model. Funding increases in the higher bands.

What happened

Assessment and EHC plan

  1. Mr and Mrs X’s daughter Y is eight years old. She has a diagnosis of autism, sensory processing difficulties and selective mutism. She presents with challenging behaviour.
  2. When Y started in Year 1 in September 2017, her school (School A) asked Council B to assess her for an EHC plan. Council B refused and Mr and Mrs X appealed to the SEND tribunal in February 2018.

April

  1. Before the appeal was heard, Mr and Mrs X moved from Council B to the Council which is the subject of this complaint. Council B told it of the move and the appeal on 4 April 2018.
  2. The Council’s SEN panel considered documents from the tribunal on 17 April. This included information from:
    • School A;
    • a consultant paediatrician;
    • speech and language therapy;
    • an educational psychologist;
    • the autistic spectrum disorder (ASD) service; and
    • occupational therapy.
  3. The reports were all less than two years old. The Council noted it would contact the educational psychologist, consultant paediatrician and speech and language therapy service for advice. It did not include the occupational therapy service or ASD service despite there being evidence of their previous involvement. The notes of the panel do not provide an explanation for this decision.
  4. The Council agreed to assess Y and wrote to Mr and Mrs X on 24 April to confirm its decision. It said it would seek advice from the professionals identified in the referral for assessment and the case officer would be in touch.
  5. The Council sought advice from School A, the local NHS trust, the consultant paediatrician and educational psychologist. It included the tribunal bundle with its request. This advice should have been returned by 5 June. The Council asked School A which other agencies were involved. The school said Y had support from the ASD service and speech and language therapy. The Council asked the school to provide the contact details for speech and language therapy. It did not contact the ASD service.

May

  1. Mr and Mrs X and the Council signed a consent order at the end of May. The Council agreed to complete the needs assessment and present it to the SEN panel by 3 July, and Mr and Mrs X agreed to withdraw their appeal. The tribunal proceedings then ended.
  2. Mr and Mrs X completed their contribution to the assessment the same day.

June

  1. The case officer assigned to Y’s case began arranging a planning meeting with School A. He had not yet made direct contact with Mr and Mrs X to discuss Y’s assessment.
  2. The Council sought advice from speech and language therapy in mid-June. The NHS service said it had discharged Y in July 2017, so the Council sought advice from Council B’s speech, language and communications service.
  3. The planning meeting took place towards the end of the month. Mr and Mrs X asked for copies of the advice received so far before the meeting, but the Council was unable to provide any. They agreed to go ahead with the meeting but expressed their concerns at the way the Council was coordinating the assessment. They were also concerned their views had not been shared with the professionals involved, and the assessment would not be complete by the deadline set in the consent order.
  4. The Council has not provided a written record of the meeting. However, Mr X emailed the case officer in the week following the meeting to summarise the key points of discussion. He highlighted the need to manage Y’s transition from infants to junior school carefully. He also advised the case officer that he expected the Council to seek advice from the child and adolescent mental health service (CAMHS), given Y’s paediatric consultant had previously recommended a referral be made. He asked the case officer to ensure the Council:
    • completed the assessment by 3 July, including all the professional advice;
    • made funding available to Y’s junior school (School B) to allow it to put support in place by the start of the academic year; and
    • completed the full EHC in a timely manner including detailed provision for Y.
  5. At the end of June, the Council told School A to make a referral to occupational therapy if it felt there was a need for continued input from the service. The school made the referral immediately.
  6. The school provided its contribution to the assessment at the end of June and the Council also received the medical advice it had asked for.

July

  1. The Council missed the deadline set to present the assessment to its SEN Panel, as set out in the consent order.
  2. Following a delay in visiting Y, the educational psychologist provided her report early in the month. The Council twice followed up on the outstanding advice from the speech, language and communications service, without response.
  3. At the end of the month, School A made a referral to CAMHS.

August

  1. The Council discussed Y’s case at the SEN panel on 7 August and agreed to issue an EHC plan. It also agreed to provide funding at band two, which provided between 16 and 19 hours of support. The notes of the panel do not provide an explanation for how this decision was made.
  2. On the same day, Mr and Mrs X complained to the Council about the failure to complete the assessment and meet the deadline set in the consent order.
  3. The speech, language and communications service provided its advice and the Council issued a draft EHC plan to Mr and Mrs X on 21 August 2018. It told them of the 15-day timescale for providing comments.
  4. Mr and Mrs X responded with their concerns that the draft plan was based on an incomplete assessment of Y’s needs. There were outstanding reports from occupational therapy, the ASD service and CAMHS. They were also unhappy the plan did not quantify the number of hours support Y should receive from a teaching assistant. They asked the Council to ensure provision was in place for Y before the plan was finalised.
  5. The Council contacted CAMHS at the end of the month. It told Mr X that CAMHS said it had received a referral for Y but had closed it due to an error by the referring GP.

September

  1. Y began attending School B.
  2. The Council responded to Mr and Mrs X’s complaint towards the end of September. It said:
    • Case officers are not involved in the first six weeks following an agreement to assess, and a business support team coordinates the request and receipt of advice.
    • The case officer should have made contact when the case was assigned to him and this would be monitored more closely.
    • The planning meeting which took place in June should have been rearranged due to the lack of professional advice available.
    • It had failed to provide Mr and Mrs X with information about the local information and advice service which could have offered support with the needs assessment. It said it had taken action to address this.
    • There was no suggestion in the referral for assessment that input was required from CAMHS.
    • Mr and Mrs X’s representations were not shared with the professionals who were asked to provide advice, and this process would be reviewed.
    • It missed the deadline in the consent order because other professionals did not return their advice in time, and it was working with other departments and agencies to ensure the timescale was met in future.
    • It had miscalculated the date when the 20-week deadline for completing the EHC plan started.
  3. Mr and Mrs X were unhappy with the response to their complaint and escalated it to the next stage of the Council’s complaints procedure.

October

  1. Towards the end of October, the Council contacted Council B’s ASD service asking for a copy of its most recent report about Y. It also asked whether the service would be able to become involved in supporting Y again.
  2. On the same day it contacted CAMHS again, requesting the most recent report about Y. CAMHS said Y had been referred in August 2018 but the referral had been rejected so it could not provide a report.
  3. The Council received a report from occupational therapy.
  4. The Council responded to Mr X’s complaint at the end of the month. It said:
    • It would not automatically source private assessments if advice was not received.
    • If the case officer had made contact at the outset, there would have been no confusion about what advice Mr and Mrs X were seeking. It said more training had been provided to case officers to remind them of their duties and the importance of contacting parents when cases are assigned to them.
    • Deadline dates had been calculated incorrectly and not adhered to.
    • If an assessment from a CAMHS specialist was considered necessary, it would seek this privately.
    • Advice from occupational therapy had been added to the draft EHC plan and a new request for advice had been sent to the ASD service. It said the professionals would have six weeks to respond to the request.
    • The EHC plan would include details of the hours of support for Y once all the professional advice had been received.
    • It usually confirmed funding once the EHC plan was complete but to avoid further delays it had agreed to provide funding at band two from 22 October.
    • The delay in the first complaint response was due to staff absence.
    • The final EHC plan would be issued by 7 January 2019.
    • The speech and language therapy Y had missed at the start of the school year would be incorporated into the rest of the school term.
    • It had considered the Ombudsman’s guidance on remedies and offered Mr and Mrs X £150 in recognition of their time and trouble in making the complaint.

November

  1. Mr X emailed the Council following its response to his complaint. He outlined what he expected the reports from CAMHS and the ASD service to cover. He asked the Council to arrange the reports without delay, ensuring the professionals were provided with the previous reports and parent contribution to the assessment.
  2. The Council commissioned a clinical psychologist to provide advice about Y for her EHC plan. The psychologist asked the Council for copies of the previous diagnostic reports for Y, which were part of the tribunal bundle, as well as occupational therapy and ASD service reports. The Council provided the ASD report but said it didn’t have any others. Mr and Mrs X say they had to provide them when the psychologist carried out a home visit.
  3. The Council commissioned the ASD service to produce an assessment report and intervention plan. The Council stressed the urgency of the request.

December

  1. The Council received advice from Council B’s ASD service on 3 December and sent it to Mr and Mrs X on 21 December 2018. It said it would arrange a meeting at Y’s school once it received the clinical psychologist’s report to discuss the findings.

January to March 2019

  1. The Council received the clinical psychologist’s report and issued a further draft EHC plan on 9 January 2019. It met with Mr X and School B to discuss it shortly after. There are no minutes of this meeting. However, Mr X emailed the Council shortly after to summarise the points he and the school had made. He pointed out some errors in the draft plan. The school said the current hours were not enough to support Y’s complex needs. Mr X said the Council had agreed to return the case to panel to consider more funding and it would issue a further draft EHC plan after this for parents to comment on.
  2. The panel met at the end of January and agreed to increase the funding to band four, providing between 26 and 30 hours of support. The Council was unable to provide a written record of the panel meeting, therefore there is no explanation for how the Council arrived at this decision.
  3. The Council emailed Mr X in early February and told him it would be finalising the plan, rather than issuing another draft. The Council then issued a final plan to Mr and Mrs X. However, soon after, the Council said it issued this in error and it should have been a draft plan giving Mr and Mrs X 15 days to provide comments.
  4. Mr and Mrs X provided their comments on the revised draft. They noted some errors in the names of professionals who were working with Y or had contributed to the plan. They suggested rewording some of the document to take account of the latest diagnostic information and avoid confusion. They also proposed some added wording to clarify how provision would be delivered to Y. Finally, they asked the Council to quantify the number of hours teaching support Y would receive.
  5. On 25 February, the Council agreed to and made the changes, but it did not quantify the number of hours teaching support Y should receive. However, it failed to issue the final EHC plan. When Mr and Mrs X contacted the Council a month later to ask when they would receive the final plan, the case officer said it was sent to them on 8 February. When challenged, the Council agreed to send the final EHC plan on 22 March 2019.

Provision

  1. In early July 2018, School B contacted the Council. It said the school needed to get the right provision in place for Y immediately. It needed to recruit suitable staff and begin building a relationship with her before she started at the school. It asked the Council to provide funding for one-to-one support for Y.
  2. School B contacted the Council twice more before the end of term. It said it had found suitable support for Y but needed confirmation of the funding before it could offer the person the job. It believed it could meet Y’s needs with at least 26 hours support per week.
  3. The Council responded to say it could not offer an advance on the funding. It said the assessment was continuing and it was awaiting a speech and language report. It said until it received this it could not make an informed decision about how much support Y would need.
  4. The school offered to chase the outstanding reports to move the assessment forward. It contacted the Council again shortly before the start of the academic year asking for confirmation of when the hours of support in the EHC plan would start. There is no evidence the Council told the school that it had already agreed funding for up to 19 hours of weekly support for Y (paragraph 38).
  5. From September 2018, School B funded 16.5 hours of support a week from a teaching assistant and an hour of support each lunchtime. The Council provided funding for 16 to 20 hours of support at the end October. From January 2019, Y received 15 hours a week support from a teaching assistant, which covered the morning session. She continued to receive support at lunchtime. This continued through to the end of the academic year. From September 2019, Y has received 30 hours of support a week.

Analysis

Assessment and EHC plan

  1. The Council was made aware there was a child in its area seeking assessment on 4 April 2018. Email evidence supports the view the Council did not send the final EHC plan out until at least 22 March 2019. This was 50 weeks later. The Council therefore delayed issuing the final plan by 30 weeks and this was fault.
  2. The Council has accepted that it miscalculated the timescales involved when it drew up the consent order. This fault led Mr and Mrs X to believe the Council would complete the assessment by the beginning of July 2018.
  3. The Council failed to comply with the deadline set in the consent order to complete the assessment and this was fault. In addition to the frustration this caused, Mr and Mrs X were put to the inconvenience of contacting the SEND Tribunal again to highlight the Council’s failure.
  4. The Council missed its own deadline again when it failed to issue a final EHC plan by its revised deadline in January 2019, causing further delay and frustration.
  5. The Council says the delay was due to professionals not returning their advice within six weeks. It also says it was working with Mr and Mrs X to ensure the final plan outlined Y’s needs and included the correct provision. While this might account for some delays, it does not account for the full 30 weeks. Once it became clear there would be difficulties in securing the advice needed, the Council should have taken action to secure it privately. It delayed doing so and this was fault. The Council should also have ensured it allowed enough time for Mr and Mrs X to provide comments on any draft EHC plan and for any amendments to be made within the 20-week timescale.
  6. The Council has accepted that communication between the case officer and Mr and Mrs X was poor at the outset of the assessment. As a result, the Council missed an opportunity to find out whether the reports already available were sufficient to continue with the EHC process. This was fault and contributed to the delay as the Council sought new advice which may not have been necessary. It also led to a lack of clarity about which professionals it would consult.
  7. Despite the documents from the tribunal identifying several organisations involved in supporting Y, the Council did not seek advice from all of them at the earliest opportunity. The Council suggested to School A that it was unclear in the tribunal bundle received from Council B which professionals had been involved. I disagree. The referral made by School A was clear about which organisations had been supporting Y and there was a wealth of reports from multiple professionals which clearly identified which services were involved. The Council’s failure to consult with them quickly was fault.
  8. The Council wrongly delegated responsibility to Y’s school for making referrals to other services such as occupational therapy, delaying the receipt of advice from the service for Y’s EHC plan.
  9. The Council delayed seeking advice from the ASD service and Mr and Mrs X had to remind it of the lack of advice more than once. This was fault. It caused them frustration and contributed to the delay in finalising the assessment and issuing Y’s EHC Plan.
  10. Mr X was clear with the Council following the meeting in June that he wanted it to seek advice from CAMHS. More than six weeks passed before the Council contacted CAMHS to find out if Y was known to the service. The Council then repeated its request in October. It delayed in securing a private assessment from a clinical psychologist until November and the report was not made available until the end of December. This was fault.
  11. Although it shared the documents from the tribunal with some of the professionals who were providing advice, the Council did not share Mr and Mrs X’s representations. Mr and Mrs X had to share their representations and previous diagnostic reports with several of the professionals providing advice because the Council had failed to do so. This was fault.
  12. Records of decisions made at or presented to the SEN Panel are sparse. The Council has not explained how it decided which professionals to consult during the panel in April 2018, nor how it decided funding levels. Similarly, there are no written records of the planning meetings held with Mr and Mrs X. This poor record keeping is fault and creates uncertainty about how the Council has arrived at its decisions.
  13. The Council committed to including the number of hours’ support Y would receive in her final EHC plan, as required by the code, but then failed to do so. This was fault and has caused frustration for Mr and Mrs X who now face having to return to the SEND tribunal to have the provision quantified.

Provision

  1. The Council agreed some funding in early August 2018 but failed to communicate this to School B. This caused uncertainty for Mr and Mrs X because they were aware the school needed confirmation of funding before it could recruit a teaching assistant to support Y.
  2. Had the Council completed the EHC plan on time, funding would have been in place when Y started at School B in September 2018. The Council did not agree the final funding until February 2019. This was fault.
  3. The injustice to Y because of these faults has been tempered by the school providing some support. However, Y missed around ten hours a week of support for the full school year. This is fault as the Council is responsible for ensuring the provision in Y’s plan is in place and it failed to do so.

Agreed action

  1. Within one month of this decision, to remedy the injustice caused, the Council will:
    • Apologise to Mr and Mrs X and Y for the faults identified in this investigation.
    • Pay £900 to Mr and Mrs X for Y to recognise her lost provision. In calculating this remedy, I have considered what SEN support Y received between September 2018 and July 2019. I have taken account of school holidays, Y’s needs and the provision set out in her EHC plan.
    • Pay £500 to Mr and Mrs X to recognise the uncertainty, frustration, inconvenience and delay caused to them.
    • Arrange an earlier annual review for Y and consider quantifying Y’s provision as it said it would do in its response to Mr and Mrs X’s complaint. If it decides not to amend the plan to quantify the provision, Mr and Mrs X must be notified of their right to appeal to the tribunal.
    • Remind officers coordinating assessments of their duties relating to seeking advice, communicating with families and other professionals, drafting plans and adhering to timescales.
    • Ensure parents and carers are notified of their right to approach the Ombudsman should the Council fail to comply with a consent order issued by the SEND Tribunal.

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Final decision

  1. I uphold this complaint. Mr and Mrs X have been caused an injustice by the actions of the Council 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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