The Ombudsman's final decision:
Summary: The Ombudsmen find North East London NHS Foundation Trust delayed Miss X’s son, G, accessing autism support. Miss X suffered distress and time and trouble chasing. The Ombudsmen also find Southend-on-Sea Borough Council delayed issuing G’s Education, Health and Care Plan by over 18 months. That fault caused Miss X distress, uncertainty and time and trouble.
- Miss X complains for her son, G, about Southend-on-Sea Borough Council (the Council), North East London NHS Foundation Trust (the Trust) and Southend Clinical Commissioning Groups (the CCG) from January 2018 to May 2019.
- Miss X says:
- The Trust’s Emotional Wellbeing and Mental Health Service (EWMHS) delayed G accessing mental health and autism services.
- The CCG did not provide certain support to G. Also, the CCG did not agree to provide G with a personal health budget.
- The Council, the CCG and EWMHS poorly communicated with each other about G’s Education Health and Care plan (EHC plan). The Council delayed completing the EHC plan and made unilateral changes to it.
- EWMHS made unwarranted referrals to the Council’s social services, including a safeguarding referral.
The Ombudsmen’s role and powers
- The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA,as amended, and Health Service Commissioners Act 1993, section 18ZA)
- The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
- If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused. We might also recommend the organisation takes action to stop the same mistakes happening again.
- The Ombudsmen cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
- When investigating complaints, if there is a conflict of evidence, the Ombudsmen may make findings based on the balance of probabilities. This means that during an investigation, we will weigh up the available evidence and base our findings on what we think was more likely to have happened.
- 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)
How I considered this complaint
- I read the papers submitted by Miss X and discussed the complaint with her. I considered the Council, the Trust and the CCG’s comments about the complaint and the supporting documents they provided. I have also taken the relevant law and guidance into account.
- Miss X and the organisations had an opportunity to comment on two draft decisions. I considered any comments received before making a final decision.
- Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).
What I found
Access to mental health services
- In January 2018 Great Ormond Street Hospital (GOSH) diagnosed G with high functioning autism. GOSH recommended an assessment of G’s mental health, as it was likely he suffered anxiety.
- In February, Miss X asked EWMHS to assess G’s mental health.
- A child and adolescent psychotherapist (the psychotherapist) from EWMHS assessed G in March. The psychotherapist decided G did not need support from EWMHS. The psychotherapist felt G’s presentation was more in line with his autism, rather than anxiety. He then referred G to the Council’s Early Help team to support G and Miss X with “the more oppositional elements of his behaviour”. EWMHS then discharged G in June.
- Before EWMHS discharged G, the Council noted that: “[The psychotherapist] assessed for depression and anxiety...The main concern was around parenting, Mum [Miss X] is not able to accept responsibility for her own action”. The Council noted Miss X told Early Help it was not the right support for G after it tried to support her through its Troubled Families programme.
- The diagnosis of mental health disorders is often a matter of clinical opinion. It is not always possible to make a diagnosis using conventional clinical investigations (such as tests or scans). A psychiatrist will ordinarily compile a clinical history based on information from the records, the patient, their carers and other relevant professionals.
- In a complex clinical context, it is not uncommon for differences of opinion to occur. That may mean that clinicians disagree whether a specific symptom is present. Alternatively, clinicians may agree that a symptom is present, but disagree about its severity and significance in making a specific diagnosis. On other occasions, a change in the patient’s presentation, or new information, may lead a psychiatrist to revise a diagnosis.
- The National Institute for Health and Care Excellence (NICE) Social anxiety disorder: recognition, assessment and treatment (2013) guidelines, details how clinicians should assess and diagnose children and young people. The guidelines detail how to support families.
- The NICE guidance on autism states health and social care professionals should receive training when working with children with autism.
- Miss X said the psychotherapist was not qualified to decide if her son had mental health needs. She added the psychotherapist just wanted to discharge G and pass him over to the Council.
- I consider the psychotherapist was qualified to diagnose G with anxiety. The psychotherapist had extensive experience in providing mental health support to children, including those with autism.
- The psychotherapist considered G’s views and involved Miss X to understand G’s past and current behaviour. The psychotherapist also considered G’s autism during the assessment. I am satisfied the psychotherapist’s assessment was in line with the NICE guidance. While EWMHS later diagnosed G with anxiety six months later, that did not mean the psychotherapist missed the opportunity to diagnose G with anxiety in March 2018.
- Also, I have not seen any evidence to support Miss X’s claim the psychotherapist wanted to reduce the queue at EWMHS.
- Miss X said the psychotherapist should not have referred her son to Early Help.
- Troubled Families is a Council-led programme to help families struggling with issues including children out of school.
- I have considered EWMHS’s care records and correspondence with Miss X. I do not agree the referral to Early Help was fault. On the contrary, EWMHS recognised Miss X and G may benefit from other support. I consider that was good practice. While I have not found fault with the referral, I recognise EWMHS apologised for not clearly explaining why it referred Miss X and G to Early Help at the time.
- Miss X also said Early Help offered to support her and G through its Troubled Families programme which made her feel she was to blame. The Council told me there is no evidence it offered to support Miss X through that programme Troubled Families. There is a clear difference of opinion about what support Early Help offered. The Council’s evidence from June 2018 showed Miss X refused to take part in the Troubled Families programme. I consider, on the balance of probabilities, the Council did offer to support Miss X through the Troubled Families programme. However, I do not agree that was fault. I understand Miss X felt the Council (and EWMHS) were blaming her. However, the Troubled Families programme supports families, when children are not attending school. Therefore, I consider Early Help’s offer of support to Miss X was appropriate.
- Miss X said GOSH and a private psychiatrist both recommended G should receive cognitive behavioural therapy (CBT), so EWMHS should have provided it.
- EWMHS said it was not aware of GOSH’s letter until March 2019, and after October 2018, it would complete an extended assessment of G’s mental health. EWMHS said its approach was in line with the private psychiatrist’s view that G needed an extended assessment.
- I agree GOSH and the private psychiatrist both suggested CBT as possible treatment for G. However, I do not consider EWMHS’s decision to carry out an extended assessment was fault. It has provided evidence that it was not aware of GOSH’s letter until March 2019. Also, EWMHS has shown it considered the private psychiatrist’s report when deciding to carry out an extended assessment after October 2019.
- EWMHS did not rule out CBT for G. In November 2018, during G’s Care Education and Treatment Review (CETR), EWMHS agreed to continue the extended assessment to “establish a therapeutic relationship as a foundation for the recommended CBT work”. Overall, I do not consider EWMHS acted with fault when deciding to carry out an extended assessment of G to better understand G’s mental health.
Access to support for G’s autism
- In April 2018, G’s GP referred him to South London and Maudsley NHS Foundation Trust’s (the Maudsley) service for complex autism and associated neurodevelopmental disorders (SCAAND).
- When EWMHS discharged G in June 2018, it told the Maudsley it supported G’s SCAAND referral.
- NHS England produced guidance on how to process referrals from local CAMHS services to national CAMHS services, also called Tier 4 services (such as the Maudsley). The guidance says referrals to a Tier 4 service must be from a local CAMHS service (EWMHS). The local CAMHS service retains responsibility for the care of the young person until the point of admission to the Tier 4 service.
- Miss X said EWMHS put the SCAAND referral at risk when it discharged G in June 2018 because of what the national guidance said.
- In October 2018, EWMHS reconsidered its decision to discharge G and told the Maudsley it had agreed to support him. However, the Maudsley had a queue of assessments and it finally reviewed G in late 2019.
- I have considered the correspondence between EWMHS and the Maudsley.
- The fundamental issue in G’s case was that EWMHS did not agree G needed support until October 2018. However, the Maudsley needed G to remain under EWMHS to accept the referral. That was a mismatch.
- While EWMHS did not make the SCANND referral in April 2018, G was under its care then. EWMHS clearly did not understand that by discharging G in June 2018, it compromised the SCAAND referral. The guidance was clear G needed to remain under EWMHS to maintain the referral.
- I have already found EWMHS’s clinical decision to discharge G was not fault. However, I have not seen any evidence EWMHS considered the impact of discharging G on the SCAAND referral. That was fault.
- I consider, on the balance of probabilities, if EWMHS had considered the impact to the SCAAND referral, it would not have discharged G in June 2018. In January 2019, EWMHS kept G open to its service despite not providing any support to him. I believe EWMHS would have made the same decision in June 2018 if it understood the impact to the SCAAND referral.
- There was a significant delay after the Maudsley accepted G in October 2018. I cannot attribute that delay to EWMHS. However, EWMHS caused a six-month delay (April to October 2018) in G accessing support for his autism. That would have been distressing for G and Miss X, who also suffered time and trouble chasing EWMHS.
- The CCG told me it now commissions referrals to the Maudsley through NHS England or by using a non-contract agreement. However, this does not explain how EWMHS would stop discharging someone while there is an outstanding referral to a Tier 4 service. Therefore, EWMHS needs to do more to remedy the injustice Miss X and G suffered.
- Miss X said the CCG should have funded the private psychiatrist she paid for, and any future sessions.
- I have considered the CCG’s correspondence with Miss X.
- I do not consider the CCG was at fault when it decided not to fund the private psychiatrist. EWMHS was responsible for making the clinical decision to provide G with psychiatric support, which it did in October 2018. I do not agree the CCG should have paid for or toward any private support.
- Miss X also said the CCG only commissioned a sensory assessment after sending hundreds of emails asking for it.
- I have considered the CCG’s correspondence with Miss X.
- The CCG’s communication about the sensory assessment was not clear. The CCG was telling Miss X that it did not commission sensory assessments for children. However, at the same time, it was arranging the sensory assessment. Matters were further confused when, in January 2019, following a funding request from EWMHS for a sensory assessment, the CCG agreed to commission one, whilst at the same time, stating there was no clinical basis to do so. That communication was fault which confused Miss X. She clearly did not know if the CCG was going to fund the sensory assessment or not. Miss X also spent time and trouble chasing the sensory assessment.
- After January 2019, Miss X refused the offer of an NHS occupational therapist and the CCG agreed to commission a private one. I consider there were always going to be delays arranging that support from a private provider. I understand the CCG was trying to work productively with Miss X. However, it should have sourced an appropriately qualified NHS occupational therapist to complete the sensory assessment.
- The CCG was concerned about the quality of the report the private occupational therapist provided as the therapist had only met with Miss X, and not G. It considered that the assessment would have been of a higher standard if Miss X allowed an NHS occupational therapist assess G after January 2019.
- The sensory assessment would have been completed sooner if the CCG used an NHS occupational therapist. However, G was refusing to leave his room at that time. Therefore, on the balance of probabilities, I do not consider that any occupational therapist would have been able to have complete a face to face assessment at that time.
- However, the CCG should remedy the confusion Miss X suffered.
The personal health budget
- Children with EHC plans and their families have the right to request a personal budget for their support, which can include funding from education, health and social care. Councils have a duty to prepare a personal budget when requested. When a young person or parent is seeking an innovative or alternative way to receive their support, the planning and review process must consider those solutions.
- Section 9.109 of the SEND Code of Practice states: “Decisions in relation to the health element (Personal Health Budget) remain the responsibility of the CCG or other health commission bodies and where they decline a request for a direct payment, they must set out the reasons in writing and provide the opportunity for a formal review.”
- The Council’s Special Educational Needs & Disability Information Advice and Support Service (SENDIASS) produced guidance on personal budgets in its area. It says if the local authority or the health authority refuses a personal budget for special educational provision it must tell that person why.
- Miss X said the CCG should have provided G with a PHB.
- There are references to ‘personal budget’ and ‘PHB’ above. These are the same thing. I shall refer to PHB onwards.
- The Council said the CCG are responsible for arranging PHBs if it felt it was appropriate. However, there was no formal agreement in place.
- The CCG said there was limited evidence a PHB was necessary. It told me while Miss X had a ‘right to ask’ for a PHB, G did not fulfil the criteria for a PHB as part of the EHC plan.
- I have considered the criteria the CCG used to decide if it would provide G with a PHB. The criteria is two questions:
- Does the request meet a health or wellbeing outcome consistent with the assessed needs?
- Does the request represent good value for money?
The EHC plan
- Miss X asked for an EHC assessment in February 2018. The Council carried out an EHC needs assessment in March 2018. Home tuition started in March for five hours per week.
- The Council issued its first draft version of the plan in June 2018. Miss X commented on that plan and asked the Council to name a specific tuition service.
- In July 2018, following a multi-agency meeting, the Council shared a revised version of the plan with the CCG. The CCG provided comments and the Council issued a final EHC plan to Miss X at the end of July 2018.
- Miss X was unhappy with the unilateral changes to the plan. In September 2018, Miss X, the Council and the CCG began mediation. The CCG agreed to withdraw the July EHC plan and go back to a draft.
- At the same time, G’s home tuition increased to nine hours per week. In November 2018, his tuition increased to 15 hours per week.
- Also in November, the home tuition increased to 15 hours per week and the Council, CCG and EWMHS held a Care, Education and Treatment Review (CETR). They said:
- Home tutoring was positive, and G found it therapeutic.
- The CCG agreed to commission the sensory assessment.
- The CCG rejected Miss X’s request for CBT and referred her to the Council’s Local Offer service. However, EWMHS agreed to assess G’s suitability for CBT.
- Finalise the EHC plan.
- They would arrange an urgent CETR if G’s mental or physical health worsened.
- The Council issued a draft EHC plan to Miss X in August 2019 and the final plan was issued in late December 2019. Miss X is unhappy with the content of the final EHC Plan.
- Councils and CCG’s 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 that.
- Once an assessment determines that special educational needs provision is needed for a child, the council must issue an EHC plan. The council has a duty to ensure it is in place and is maintained.
- Councils should issue an EHC plan within 20 weeks of the request for a statutory needs assessment unless certain exemptions apply.
- When councils seek information as part of the EHC needs assessment, those supplying the information must respond within six weeks from the date of the request.
- Miss X said the Council’s communication with the CCG and EWMHS caused delays completing the EHC plan.
- The Council accepted there were significant delays completing the EHC plan. However, after September 2018, Miss X asked for changes which needed clinical recommendations from EWMHS and the CCG. It considered that as Miss X was working with them, it could not issue the final EHC plan.
- The Council said it did not have any specific policies on joint arrangements with the CCG.
- I have considered the vast correspondence between the Council, the CCG and EWMHS between January 2018 and May 2019. I have only considered that period because Miss X complained to the Ombudsmen in May 2019.
- The Council first completed the EHC plan at the end of July 2018, which was already past the 20 weeks. That was fault.
- In addition, the Council made unilateral changes to the health sections between the draft and final EHC plan. That was fault and not in line with the relevant guidance, which would have caused Miss X frustration. However, I consider the Council has suitably remedied the injustice Miss X suffered from making unilateral changes to the plan. The Council accepted and apologised when it responded to Miss X’s complaint in February 2019. As part of that complaint response, it also said it reminded staff about the guidance on what should happen between the EHC plan draft and final. It said managers were also checking final EHC plans to avoid similar fault again.
- After September 2018, it was clear what health support Miss X wanted for G. The Council should have worked collaboratively with the CCG and EWMHS so it could complete the EHC plan.
- The Council said it could not control the delays after September 2018. I agree the CCG delayed arranging and completing the sensory assessment. Also, EWMHS delayed assessing G’s mental health needs. However, the Council was ultimately responsible for completing the EHC plan within 20 weeks of Miss X’s request in February 2018. It did not do that. It delayed issuing the EHC plan by over 18 months. I am not satisfied the Council had robust joint arrangements with the CCG or EWMHS to secure the support G needed sooner. That was fault which caused Miss X distress. Miss X also suffered time and trouble chasing the Council to complete the EHC plan.
- Miss X said the delays impacted her son’s mental and physical health. As G refused to leave his room, health professionals struggled to understand G’s mental and physical health. In the final EHC plan (in December 2019) the Council said it wished to gain G’s trust to leave his room. Then EWMHS could assess his mental health and provide appropriate treatment. G’s refusal to leave his room is an ongoing issue for his physical health too. While the Council suspects G’s eating, sleeping and personal hygiene was poor it cannot say that for certain as he does not leave his room. This leaves Miss X with a sense of uncertainty. I will not be able to say, even on the balance of probabilities, how the delays issuing the EHC plan impacted G’s mental and physical health.
- Miss X said the delays impacted her son’s chance to return to school and full-time education. G’s refusal to leave his room meant it was unlikely he would have been able to return to school. Therefore, on the balance of probabilities, I cannot agree G missed the opportunity to return to school if not for the delays issuing the EHC plan. I am also satisfied the Council was providing education (home tuition) to G while it was working on the EHC plan.
- If the Council did not delay finalising the EHC plan, I consider G would have most likely been in the same situation as he was in December 2019. The Council (home tuition) and EWMHS (home visits) tried to support G but he refused to leave his room. I do not agree G has suffered any injustice or missed out on support. Therefore, I have not made any recommendations to him.
- The Council said it is working with the CCG on improvement plans around EHC plans. This is vague and does not explain how the Council will ensure similar delays do not happen again. Therefore, the Council should do more to remedy the injustice Miss X and G suffered.
The safeguarding referral
- In late December 2018 and early January 2019, the CCG asked the Council’s Head of Children’s Services about G’s relationship with their department, and about thresholds for a safeguarding referral. However, it did not make a formal referral. Instead, the CCG provided the Council’s advice to EWMHS, for them to make a safeguarding referral.
- On 18 January 2019, the Council’s Deputy Chief Executive asked the Head of Children’s Services to consider safeguarding concerns about G suffering social, educational and emotional harm. The Deputy Chief Executive raised those concerns after speaking to someone at “Health”. The Council decided to carry out a full social care assessment. Four days later, EWMHS formally raised the same safeguarding concerns to the Council.
- In March 2019, the Council decided there were no safeguarding concerns. It accepted Miss X was doing her best for G and found little evidence Miss X contributed to G’s mental health issues.
- Anyone who is concerned that a child is suffering or at risk of harm should inform the Council. Health bodies should be alert to the possibility that children may be at risk of harm and refer their concerns to the local authority for assessment.
- The Trust’s Safeguarding Children’s Policy (2016) states that: “If a member of staff believes or suspects that a child may be suffering, or is likely to suffer, significant harm then s/he should always refer his or her concerns to the local authority children’s social care services”.
- The Southend-on-Sea Local Safeguarding Children Board’s Southend, Essex and Thurrock (SET) Child Protection Procedures explain how to make a safeguarding referral to local authorities. Within local authorities, the children’s social care services are the first point of contact.
- I have reviewed EWMHS’s safeguarding referral and its correspondence with the Council and CCG.
- EWMHS had genuine concerns for G’s social, educational and emotional needs. By January 2019 G had refused to leave his room for over a year. EWMHS wished to work with the Council to explore how it could meet G’s needs. EWMHS had tried to support G through weekly home visits and by referring him to Early Help, but still had concerns. I consider EWMHS robustly explained why it felt G was suffering significant harm and referred G to the Council in line with the local safeguarding policies.
- However, the Council’s Deputy Chief Executive referred G four days earlier after speaking with “Health”. Unfortunately, nobody has been able to tell me who the Deputy Chief Executive spoke to. While I cannot say if that was someone from EWMHS or the CCG, I do not consider the Deputy Chief Executive acted with fault when he raised concerns about G. The Head of Children’s Services then carried out the referral in line with the local safeguarding policies. However, as best practice, the Deputy Chief Executive should have left a detailed record who he spoke to at “Health” about G.
- I recommended, within four weeks:
- The Trust should apologise for the distress and time and trouble caused to G and Miss X by delaying the SCAAND referral. It should also pay Miss X £400 to recognise that injustice.
- The CCG should apologise for the confusion it caused Miss X about the sensory assessment and the PHB. Miss X also lost the opportunity to challenge the CCG’s PHB decision, so it should allow Miss X the opportunity to challenge the PHB decision. The CCG should also pay Miss X £400 to recognise the impact of its fault to Miss X.
- The Council should apologise for the distress, uncertainty and time and trouble caused to Miss X by significantly delaying completing the EHC plan. It should also pay Miss X £1,000 to recognise that injustice.
- The Trust should develop an action plan which details how it will avoid discharging patients while there is an outstanding referral to a Tier 4 service.
- The CCG should ensure its PHB policy for people with special educational needs is in line with the requirements of the SEN Code of Practice. This includes allowing people the opportunity to formally challenge its decision to not issue one.
- EWMHS appropriately assessed G’s mental health needs in April 2018. However, it did not consider the impact of discharging G in June 2018 to G’s SCAAND referral. That caused G and Miss X distress and time and trouble.
- The Council wrongly made unilateral changes before completing the EHC plan. It also significantly delayed completing the EHC plan. That fault caused Miss X distress, uncertainty and time and trouble.
- The CCG did not always clearly explain what health support it agreed to arrange. The CCG also did not offer Miss X the opportunity to formally challenge its decision not to issue her with PHB. The CCG’s fault caused Miss X uncertainty, confusion and time and trouble.
- The Council followed the local safeguarding policies when its Deputy Chief Executive, and EWMHS, raised safeguarding concerns.
Investigator's decision on behalf of the Ombudsman