The Ombudsman's final decision:
Summary: Mrs S complained the Council failed to manage the process of transition to an EHCP for her daughter, T. There is evidence of fault and injustice and the Council has been asked to reimburse Mrs S for the money she spent on supporting T while the school failed to put in the necessary support. It is also asked to acknowledge the distress and time and trouble this caused her by making a financial settlement in line with our guidance.
- The complainant, whom I shall call Mrs S, complains that the Council failed to manage her daughter T’s transition from a Statement of Special Educational Needs to an Education, Health and Care Plan.
- There were three aspects to Mrs S’s complaint; the production process for the Education, Health and Care Plan (EHCP), advice from professionals and the support T received at school. I have considered the complaint in those three subheadings. I also considered the Council’s complaints handling.
What I have investigated
- I have investigated Mrs S’s complaints apart from matters involving the content of T’s EHCP, which is something only SEND can decide.
The Ombudsman’s role and powers
- SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’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)
- 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.
- 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)
How I considered this complaint
- I considered the information Mrs S included with her complaint and spoke to her on the telephone. I made enquiries of the Council and assessed its response. I sent Mrs S and the Council a copy of my draft decision and took comments they made into account before issuing a decision.
What I found
- T, who has complex needs, was transitioning from a Statement of Special Educational Needs (a Statement) to an Education, Health and Care Plan (EHCP).
- Although Mrs S would have liked T to receive her plan when she transitioned from infant to junior school in September 2015, there is nothing in law to suggest this is necessary even though it may be desirable.
- The Council notified Mrs S on 13 June 2017 that conversion of T’s Statement of Special Educational Needs to an Education, Health and Care Plan (EHCP) would take place
- The process of issuing an EHCP for T took too long. Although she continued to be supported by a Statement of Special Educational Needs, by 2017 T had other diagnoses and so the support offered by her school needed to be changed. The Council has accepted T should have had a finalised EHCP in October 2017 and instead she received it on 29 March 2018.
- The school T attended was felt able to meet her needs. As T was attending that school at the time, it would have been included in meetings and allowed to express its views. It would be able to tell the Council if it did not agree that it could meet T’s needs.
- Once the EHCP was finalised it became a statutory duty on the Council to ensure the content was delivered.
- I will consider Mrs S’s complaints under the four subtitles I mentioned earlier. At the end I will sum up the fault and injustice.
EHCP production process
- It is accepted T’s first final EHCP was issued approximately five months late on 29 March 2018. At that point, Mrs S says reports from professionals were outstanding and the document was incomplete. Mrs S says it was ‘cut and pasted’ from other documents so was difficult to read and understand. Mrs S felt this made it difficult for the school trying to identify what provision should be put in place. The content of an EHCP is appealable to SEND and I cannot look at this.
- Prior to the issue of the first final EHCP, Mrs S was not given the required amount of time to comment. This is fault.
- Mrs S re-wrote the EHCP to make the need and provision clear, which caused her further stress. This became the second version of the EHCP issued on 3 August 2018. Mrs S should not have been put in that position. The Council should have taken her concerns on board and redrafted. Because Mrs S felt she had no alternative but to do this, I am finding the Council at fault.
Advice from professionals
- On 7 June 2017, before the Council formally confirmed transition, Mrs S sent the Council a list of professionals she wanted the Council to consult in order to carry out a full needs assessment for T. These professionals were involved in T’s care. After she sent the list, the Council wrote back and said it was the school’s responsibility to ‘invite’ these professionals to the conversion meeting – it did not acknowledge Mrs S had provided information so professionals could be consulted as a statutory part of the transition process. This is fault. Mrs S believed the Council did not (at least initially) take its statutory duties seriously enough and I consider she had good grounds to feel this way.
- The Council received reports from the dyslexia centre (June) and then educational psychology, a learning assessment from the school and the dyslexia teacher (September). The Council wrote to its single point of contact in health (SPA) on 3 October asking for a list of other professionals involved with T and the form was returned a day later. The delay (from when Mrs S asked it to do this) is fault but the Council is not at fault for failing to write to professionals individually at addresses given by Mrs S. The SPA would have had access to T’s records and sent the form on to the professionals who needed it (as well as the professionals already highlighted by Mrs S).
Speech and language therapy (SALT)
- At the point where the SPA became involved, all professionals working with T would have been aware reports were required to inform the EHCP. When I asked the Council for information from the SPA, it said it ‘was informed from SALT when chasing reports that parents had requested that the EHCP be withdrawn'. I can see no reason for this view. The Council has confirmed to me there was never any attempt to withdraw T’s EHCP. The information goes on to say, however, that the SPA (rather than SALT) ‘confirmed this with SEN team on 11 December 2017’.
- There is obvious confusion as to the situation with T’s EHCP and this is fault. Nevertheless, as reports had been requested there was no good reason for services to delay even if the view was there could be a withdrawal. This is because T would still be entitled to a service, as a health need, even if she did not have an EHCP.
- Mrs S was told by SALT the request for a report was received on 24 October 2017 (rather than on 4 October) with a deadline of 27 October for the completed report. SALT said it had previously told the Council there should be an eight week notice period and an extension of two weeks was agreed. As health has advised me that it contacted professionals on the earlier date, I have no grounds to find fault with the Council for the late receipt.
- Mrs S was also informed the report format did not allow SALT to provide a ‘full’ assessment. The Council tells me the format was agreed with health so it was not the case the Council was acting alone (as the letter sent to Mrs S by SALT suggests). If SALT disagreed with the format then it could have written to SPA or the Council. Alternatively, SALT could have asked SPA for advice if there was a problem fitting the information into the layout. I understand that Mrs S asked for a private SALT assessment on T. There is no evidence this was due to Council fault. However, given the level of confusion (from SALT about whether the EHCP would be withdrawn) and that professionals were approached late, for which I have identified fault, the Council has agreed to make a contribution towards the cost on receipt of appropriate evidence.
- The complaint review conducted by the Council says; ‘the trust’s explanation was intended to clarify what was relevant in an EHCP report rather than a suggestion that it was dictated by the Council’. But this does not say whether the form allowed for a ‘full assessment’ or not although the Council clearly believes it does. The Council should clarify this with the trust. The Council’s Stage One response to Mrs S’s complaint says it asks for ‘full advice’ rather than ‘a shorter report’. On this basis, a ‘full assessment’ would seem appropriate and the system of obtaining this advice should allow this to be provided even if that then needs to be summarized to go into the EHCP.
- Mrs S says that the SALT report was of poor quality because it was rushed. She complained and the report was rewritten. This was appropriate. The NHS report was received by the Council in June, which made it too late to be included in the first final EHCP. However, Mrs S had provided the private report to the Council, which could have been distilled for use in the EHCP. There is no evidence this was considered, which is fault by the Council. If it could not be used for that purpose, the Council could have made this clear to Mrs S at the time.
- The Council says occupational health/physiotherapy was contacted in October, when it contacted other professionals, but SPA did not receive a report. Mrs S says occupational health was not contacted. As the Council had undertaken to contact occupational health, it should have ensured it received a report. Its failure to do this is fault. The Council should ensure the SPA is able to follow-up requests made to health professionals so they deliver reports on time. It should tell me what action it will take, as a result, within four months of the date of my decision.
Support at school
- The school told Mrs S that it was unable to deliver some of the provision. It told her the money it received to ‘top up’ provision had been spent. The Council needed to be made aware of this so either it provided money to the school to allow it to implement the EHCP or it found T additional provision or another placement (while giving her existing school money to implement the EHCP while the transition was ongoing).
- That the school did not implement the provision of 1:1 specialist teaching for maths and literacy for 6 months is fault by the Council. T missed out on support.
- Mrs S says she paid for 1:1 teaching for an hour per week during this time to try to prop up T’s learning. The final EHCP detailed 2 hours of provision every week. This is fault.
- Mrs S is unhappy the Council took 12 weeks to respond to her at Stage 1. She submitted a Stage Two complaint on 24 February, which was not answered until June; a period of 17 weeks. Given the Council’s target is 28 days for a response, this response time significantly exceeds this. This is fault.
Fault and injustice
- The delay in the Council issuing a finalised EHCP was fault. The Council accepted this meant T missed out on services she needed. The Council has agreed to make payments for the cost of specialist provision, funded by Mrs S, from 31 October 2017 until the school put provision in place in October 2018. It has also agreed to fund the additional hour of support also set out in T’s EHCP for the same duration.
- Mrs S was caused significant distress, and time and trouble, by the Council over this time. The Council failed, at the outset, to acknowledge it was appropriate and necessary for a full needs assessment to be carried out. The Council failed to give her the right amount of time to comment before the first final EHCP; she reports feeling forced to re-write T’s EHCP to align need to provision; the Council contacted health professionals four months after she gave them the necessary details and she was told SALT could not write a ‘full assessment’. Mrs S’s private SALT assessment was not used by the Council in the EHCP. Mrs S wanted an accurate reflection of T’s needs in the EHCP so wanted the Council to follow up its requests to professionals for reports. The Council also delayed responding to her complaints making her feel it was not committed to achieving good outcomes for T.
- Apologise to Mrs S for the distress and time and trouble she experienced through this process. Given the amount of time, and the significance of this to her and her family, the Council should make a token payment of £500 in line with our guidance. It should make this payment in three months from the date of my decision.
- Arrange to make a payment to Mrs S for T’s missed provision that she had to make up from the time T should have received her EHCP to the time the school put the provision in place. I note the Council has also proposed an arrangement to reimburse Mrs S for the other sessions that T did not receive. The Council should do this in three months from the date of my decision.
- Ensure parents are made aware of their right to ask for a full needs assessment where appropriate. The Council should tell me of any changes it needs to make to its literature so this message is clear within four months of the date of my decision.
- Work with schools when EHCPs are finalised to ensure all parts can be implemented immediately. The Council should tell me what action it will take within four months of the date of my decision.
- Clarify with the trust whether the form requesting information for an EHCP, as it stands, allows SALT to perform a full assessment. The Council should then decide whether it needs to take any further action (such as clarifying this for professionals and parents). Actions should be completed within four months of the date of my decision.
- The Council has agreed to make a contribution towards Mrs S’s private speech and language report. Mrs S will send a copy of the invoice to the Council and the Council should decide the amount of contribution it will make within three months of that date. Its contribution should not be below thirty percent.
- Develop a means of following up professionals when they are asked for reports, particularly through SPA, but do not deliver them. The Council should tell me what action it will take within three months of the date of my decision.
- Explain what actions it will take, or has taken, in order to answer complaints in accordance with its guidance. The Council should tell me this within four months of the date of my decision.
- I have found evidence of fault leading to injustice. The Council has agreed actions to remedy this injustice.
Parts of the complaint that I did not investigate
- I did not investigate the content of T’s EHCP, which is properly a matter for SEND.
Investigator's decision on behalf of the Ombudsman