West Sussex County Council (19 004 376)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 25 Feb 2020

The Ombudsman's final decision:

Summary: The Council was at fault in the way it dealt with Mrs X’s son’s Education Health and Care Plan. It was responsible for some of the delay in issuing the final Plan and it failed to seek a professional report as part of the assessment. The Council has agreed to apologise and make a payment to recognise the frustration, anxiety and time and trouble caused.

The complaint

  1. Mrs X complained that:
      1. there was unreasonable delay by the Council in completing the assessment of her son's special educational needs and issuing a final Education Health and Care (EHC) Plan;
      2. the Council failed to deal properly with her request for an Occupational Therapy assessment; and
      3. there was delay in dealing with her complaints about these matters.

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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 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, sections 26(1), 26A(1) and 34(3), as amended)
  2. 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)
  4. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. Once the person has appealed we have no discretion and cannot investigate. (Local Government Act 1974, section 26(6)(a), as amended)
  5. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))

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How I considered this complaint

  1. I discussed the complaint with Mrs X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I considered relevant law and guidance on special educational needs. I shared my draft decision with the Council and the complainant and considered their responses.
  2. 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

  1. A child with special educational needs (SEN) may have an Education, Health and Care (EHC) plan. This sets out the child’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.
     

Appeals

  1. There is a right of appeal to the SEND Tribunal against a decision not to assess, not to issue an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal.
  2. If a SEND Tribunal decides the council must carry out an EHC assessment, the council must:
    • start the assessment within two weeks of the decision
    • issue a final EHC Plan within 14 weeks of the Tribunal decision, if it decides to do so following an assessment.
       

Assessments

  1. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:
    • Where a local authority receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment.
    • The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable.
    • The whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply).
    • Councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.
  2. As part of the assessment councils must gather advice from relevant professionals. This includes:
    • the child's education placement
    • medical advice and information from health care professionals involved with the child
    • psychological advice and information from and Educational Psychologist (EP)
    • social care advice and information
    • advice and information from any person requested by the parent or young person, where the council considers it reasonable
    • any other advice and information the council considers appropriate for a satisfactory assessment.
  3. Those consulted have a maximum of six weeks to provide the advice.
  4. The council must not seek further advice if it already has advice and "the person providing the advice, the local authority and the child's parent or the young person are all satisfied that it is sufficient for the assessment process". In making this decision the council and the person providing the advice should ensure the advice remains current.

What happened

  1. Mrs X has a child, C, who attends primary school, School 1. Mrs X asked the Council to carry out an EHC assessment for him on 30 April 2018. The Council refused, issuing its decision on 20 June 2018, nine days over the six-week deadline. Mrs X successfully appealed against the decision. The Tribunal ordered the Council to carry out an assessment. It made the decision on 22 August 2018 and the Council received it on 30 August 2018.
  2. The Council started the assessment on 6 September 2018, one day over the two-week time limit for starting the assessment following the Tribunal’s decision. It sought advice from the health trust, Educational Psychologist (EP) and Children’s Social Care, giving a deadline for responses of 18 October 2018. It sent the health bodies copies of reports Mrs X had obtained privately from professionals working with C, including from a Speech and Language Therapist (SALT) and Occupational Therapist (OT). The Council also mistakenly wrote to C’s previous school for advice, rather than to School 1.
  3. At the same time the Council wrote to Mrs X to tell her it was starting the assessment. It said it aimed to gather all the information and make a decision whether or not to issue an EHC Plan by 8 November 2018.
  4. Mrs X asked the Council to seek reports from various professionals including SALT and OT services.
  5. When the Council became aware of its mistake, through Mrs X’s contact with School 1, it wrote to School 1 for a report on 26 September. It gave a deadline of 8 November 2018 and says it received the response before the deadline.
  6. Mrs X made a complaint to the Council about its error, and the data breach involved. The Council apologised. Mrs X also repeated her request for the further professional reports, including from the OT.
  7. The Council received the SALT report on 23 October, the EP report on 30 October and the health report on 5 November 2018.
  8. The day after receiving the final report the Council wrote to Mrs X to confirm it would be issuing an EHC Plan. It said it was aiming to issue the final Plan by 6 December 2018, 14 weeks after receiving notice of the Tribunal Order.
  9. The Council issued the draft EHC Plan on 21 December 2018, giving Mrs X 15 days to respond. Mrs X sent the Council some comments at the end of December and said she would be sending further proposed amendments once she had sought advice. There was then a series of email exchanges between Mrs X, her advisor and the Council over the next four months. During this correspondence, the following occurred:
    • The Council clarified that the 15-day timescale for representations was based on the law and the Code, but the Council was willing to extend the timescale if she wished.
    • Mrs X asked for a week’s delay due to a bereavement.
    • Mrs X said she was waiting for feedback from a speech therapist.
    • The Council sent a revised draft EHC Plan and Mrs X said she would like further changes.
    • Mrs X asked for a meeting with an SEN Manager, the Council said the Manager would have difficulty finding an available date and suggested she meet with the caseworker, but there was some difficulty arranging a mutually convenient time.
    • Mrs X then said she would prefer to send in written comments rather than have a meeting.
    • Mrs X’s advisor sent the Council proposed amendments which the Council considered, agreeing to some but not all of the requested changes.
  10. On 11 April 2019 the Council wrote to Mrs X and her advisor to say it would be issuing the final EHC Plan on 16 April.
  11. Mrs X made a complaint to the Council on 12 April. She complained about delay in issuing the draft and final EHC Plan, with the period for comments covering the Christmas holidays, and the lack of an OT assessment. She also complained about the content of the proposed EHC Plan, saying she wanted more specialised and specific provision. The Council acknowledged the complaint saying it would respond by 26 April 2019.
  12. Mrs X told the Council she wanted it to hold off issuing the final EHC Plan until she had received a response to her complaint. The Council agreed.
  13. The Council replied to the complaint on 25 April 2019. It said the response it had received from the health bodies it consulted did not indicate a need for an OT assessment. The Council accepted it was late issuing the draft EHC Plan, saying this was because of delays in receiving the professional advice. It apologised to Mrs X for not keeping her updated during this period of delay. It noted there were still areas of disagreement about the content of the EHC Plan but said it considered the provision was appropriate. The Council said now that it had issued its response to her complaint it would ask the SEN team to issue the final EHC Plan without further delay.
  14. Mrs X was not satisfied with the response and asked to take her complaint to stage 2 of the complaints procedure. The Council said it would reply by 28 May 2019.
  15. There was a further email exchange in which the Council said it wanted to issue the final EHC Plan. It said delaying this would delay the right of appeal. Mrs X asked the Council to hold off finalising the EHC Plan as she wanted to make sure she was satisfied with it. She said she felt the Council was trying to push something through that was “not fit for purpose in order to meet statutory deadlines”. She said “timescales are not as important to me as a document that is fit for purpose and legally compliant”. At the same time she said the Council could “go ahead and finalise if you wish”.
  16. Mrs X did not receive the stage 2 complaint response by the date promised. She contacted the Complaints Officer who apologised for the delay and said the Council intended to provide a response by 21 June 2018.
  17. When she did not receive the response on that day Mrs X wrote to the Council to confirm she now wanted it to issue the final EHC Plan.
  18. The Council issued the final EHC Plan on 25 June 2019. Mrs X told the Council the same day that she intended to appeal.
  19. The Council replied to Mrs X’s stage 2 complaint on 8 July 2019. In its response the Council:
    • said it did not consider it necessary to seek OT advice, based on the professional view of health teams consulted;
    • did not agree it had placed undue pressure on her to finalise the EHC Plan, but said it had shown it was willing to give her more time;
    • accepted there was no evidence it had offered to meet her before issuing the draft EHC Plan in order to discuss it with her;
    • denied it had refused to meet her to discuss the amendments she wanted made to the draft EHC Plan once it was issued;
    • confirmed it considered the provision in the EHC Plan appropriate but advised she could appeal if she did not agree.
  20. Mrs X appealed to the SEND Tribunal on 26 July 2019. The main changes Mrs X was seeking were OT support, and teaching by a specialist teacher for specific learning difficulties. In the course of discussions and representations about the appeal the Council agreed to Mrs X’s request to obtain an up-do-date OT assessment. The OT report recommends support including strategies for staff to use with C, an OT programme of six direct sessions, and a further review.
  21. The appeal process is still continuing. The Tribunal hearing has not yet taken place.

Council’s response

  1. In response to the Ombudsman’s enquiries, the Council said it had reviewed the records relating to the OT advice received in the EHC assessment. It found that the health trust OT service had written to the Council in late November 2019 noting that the private OT report Mrs X had provided was over two years old. The OT advised that the report would not reflect C’s current needs and in her “professional view should not be utilised”. She asked the Council or the School to make a referral for an assessment if needed.
  2. The Council therefore accepted it had not met its statutory duty to seek advice about C’s needs to inform the EHC assessment. The Council apologised for this failing.

Analysis – was there fault causing injustice?

Delay in issuing the EHC Plan

  1. The Council has accepted it did not meet the statutory timescales for completing the assessment and issuing the final EHC Plan. It explained in its response to Mrs X’s stage 1 complaint the work it had done to improve timescales for obtaining professional advice and information and issuing draft EHC Plans.
  2. There was a delay of nine days in issuing the decision refusing to assess C following Mrs X’s request at the end of April 2018.
  3. Once the Tribunal ordered the assessment, the deadline for issuing the EHC Plan was 14 weeks from the date of the Order, 22 August 2018, which was 28 November 2018. The Council issued the final EHC Plan on 25 June 2019. This is 30 weeks outside the statutory timescale. I have considered how much of the delay was a result of fault by the Council.
  4. The Council was aiming to issue the draft EHC Plan by 8 November 2018 but issued it on 21 December 2018, a delay of around six weeks. It said the delay was a result of receiving the professional reports late. As the Council gave the correct deadline and chased up the services it had contacted, I do not consider it was at fault in any delay in receiving the reports. However the last report was two weeks late and so should only have delayed the draft Plan by two weeks. The mistake in contacting the wrong school may also have played a small part in the delay. School 1 replied to the Council a few days after it received the last of the rest of the reports. So my view is there was a delay due to fault by the Council at this stage of four weeks.
  5. The Council says the delay in issuing the final EHC Plan after the draft occurred because it was responding to various requests for amendments from Mr and Mrs X and trying to reach agreement with them. It says it kept in contact with them, offered them the chance to finalise the Plan and explained that delaying issuing the final Plan would delay the right of appeal. The Council has provided copies of the correspondence which supports this account of events. The details of the communication between the Council and Mrs X are set out in paragraph 24 above.
  6. When Mrs X complained to the Ombudsman about the delay she said it was because she “refuse[d] to a agree to a substandard EHCP”. The Ombudsman cannot comment on the content of the EHC Plan, as that is a matter for the Tribunal. It is understandable that Mrs X wished to try and seek changes to the proposed Plan before it was finalised so as to avoid having to appeal. However the Council accommodated this approach, giving her more time when she asked and advising her about the consequences of the delay. Based on the evidence I have seen, I do not consider the delay between the dates of the draft and final EHC Plans was for the most part a result of fault by the Council.
  7. In my view, however, the Council did partly contribute to the delay. Mrs X wanted to wait for the outcome of her stage 2 complaint before agreeing the Council could issue the final EHC Plan. The complaint response was around six weeks late. Although it was Mrs X’s choice to wait, I consider it likely on balance that if the Council had replied to the complaint in time she would have appealed six weeks earlier.
  8. Taking all these periods together my view is that Mrs X’s opportunity to appeal was delayed by just over 11 weeks.
  9. Mrs X says there have been delays in the appeal process caused by the Council. However I cannot investigate any delays in the process from the date she submitted her appeal, as these events are outside the Ombudsman’s jurisdiction.
  10. The delay caused Mrs X frustration and resulted in her making a complaint. But it is not possible to say whether it had any impact on the support provided to C until we know the outcome of Mrs X’s appeal. It would be open to Mrs X to complain to the Ombudsman again if the Tribunal orders any extra provision in the EHC Plan. We could then consider whether to recommend a remedy for any loss of support for C for 11 weeks because of delay by the Council.

OT assessment

  1. The Council has recognised it was at fault in the way it dealt with Mrs X’s request for an OT assessment. It was relying on out-of-date advice. Neither Mrs X nor the health trust OT service agreed the existing advice was suitable for purposes of the EHC assessment. So the Council should have obtained an up-to-date assessment. In refusing to do so it was not acting in line with its statutory duties as set out in the Code.
  2. If the Council had obtained an OT report as part of the EHC assessment it might have included extra OT support in the final EHC Plan. But I could not conclude that the failure to do so made a difference to Mrs X’s decision to appeal. This is because her appeal covers other issues as well as OT support, such as the request for a specialist teacher.
  3. Nevertheless the Council refusing to obtain an OT report and repeatedly defending its decision in response to her complaints caused Mrs X unnecessary frustration and time and trouble in pursuing her complaint. It is only as a result of her complaint to the Ombudsman that the Council has accepted it was at fault.

Complaint handling

  1. There was a six-week delay by the Council in responding to Mrs X’s stage 2 complaint. As discussed, I consider this contributed to the delay in issuing the final EHC Plan.

Agreed action

  1. The Council has already apologised to Mrs X for delays in issuing the EHC Plan and outlined the improvements it has made to its practices.
  2. In response to my recommendations it has agreed to take the following action within one month of the decision on this complaint:
    • write to Mrs X to apologise to her directly for failing to obtain an OT report as part of the EHC assessment;
    • pay her £250 to recognise her unnecessary frustration, anxiety and time and trouble resulting from the Council’s failings.

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Final decision

  1. I have found fault in the way the Council dealt with the assessment and EHC Plan for C. I am satisfied with the action the Council has agreed to take to remedy the injustice caused and so I have completed my investigation. Mrs X may make a further complaint to the Ombudsman if her appeal results in any extra support for C. We can then consider whether to recommend any further remedy.

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Investigator's decision on behalf of the Ombudsman

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