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London Borough of Merton (19 017 971)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 22 Oct 2020

The Ombudsman's final decision:

Summary: There was delay in issuing an Education, Health and Care Plan and in implementing actions agreed as part of the complaint process. This was fault and unnecessarily delayed some specialist support. Recommendations for an apology, financial payment and service improvements are made.

The complaint

  1. Ms X complains about the Council’s handling of her son’s Education, Health and Care Plan. Ms X says:
    • the Council failed to implement agreed actions following the local complaint process to issue a final plan by July 2019 and to refund legal expenses incurred
    • amendments agreed at a meeting in June 2019 were not included in the second draft plan issued in July 2019.
    • the Council has further delayed since July 2019 with no final plan yet being issued
    • the Council failed to obtain the correct evidence to inform the Plan so the draft was ‘not fit for purpose’.
  2. As a result of the alleged faults Ms X says:
    • her son has been without necessary support in school which has had an adverse impact on his access to education and to his physical and mental health with her son requiring a referral to mental health support services
    • she has been put to unnecessary expense seeking independent advice and incurred unnecessary time and trouble chasing the Council
    • the delay and impact on her son put unnecessary stress on the whole family.

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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. A child with special educational needs 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.
  1. We can consider the other sections of an EHC plan. We do this by checking the Council followed the correct process, and took account of all relevant information, in deciding what to include. If we find fault affected the outcome, we may ask the Council to reconsider. We will not usually substitute our judgement for the judgement of professionals.
  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)

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How I considered this complaint

  1. I have considered information provided by Ms X and the Council.
  2. I have considered relevant law and statutory guidance:
    • The Special Educational Needs and Disability Code of Practice (‘The Code’)
    • The Children and Families Act 2014 (‘The Act’) and associated Regulations.
  3. I have considered other guidance including:
    • The Ombudsman’s Focus Reports on EHC Plans and Guidance on Remedies
    • The Council for Disabled Children guidance ‘Securing good quality health advice for education, health and care plans’.
  4. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
  5. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I found

The EHC assessment process

  1. Children with special educational needs who require support above what a school can ordinarily provide may 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.
  2. 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 decides to assess, it 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. Professionals must provide advice to a council within six weeks of the request.
  3. The Council must seek advice from a range of people. The list is set out in Regulation 6(1) of the Special Educational Needs and Disability Regulations 2014 and 9.49 of the Code:
    • the child’s parent or the young person;
    • educational advice (usually from the head teacher);
    • medical advice and information from a health care professional;
    • psychological advice and information from an educational psychologist;
    • advice and information in relation to social care;
    • advice and information from any other person the local authority thinks appropriate;
    • advice and information from any person the child’s parent or young person reasonably requests that the local authority seek advice from.
  4. The Code (9.47) says the Council should consider with the child’s parent or the young person and the persons providing advice the range of advice required to enable ‘a full EHC needs assessment to take place’. It says: ‘the child’s parent and the young person should be supported to understand the range of assessments available so they can take an informed decision about whether existing advice is satisfactory’. Paragraph 9.48 says ‘if there are signs of an underlying health difficulty a specialist health assessment may be necessary’.
  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 prepare a draft plan and allow parents to make comments. It must then consider any suggested amendments and any parental preference for a particular placement before issuing a final EHC plan.
  7. The whole process, from the request for assessment to issue of a final EHC plan, must take no more than 20 weeks. The Plan must set out the needs of the child, the provision required to meet those needs and the outcomes intended to be achieved.
  8. In practice this means a draft plan needs to be issued by week 16 of the process so that there is time to finalise the plan by week 20.
  9. The Act and Code places the legal responsibility on health commissioning bodies to decide which medical professionals will provide health advice for a needs assessment and to ensure the advice is provided within 6 weeks of a request.
  10. The Act says Councils must review plans within 12 months of the Plan being made and thereafter in each subsequent period of 12 months starting on the date the Plan was last reviewed. When a review meeting is held the school must prepare a report for the Council within two weeks. The Council must then make one of three decisions:
    • To amend the plan
    • Not to amend the plan
    • To cease the plan.

The Council must tell the parent or young person of its decision within four weeks of the review meeting (The Code 9.169).

  1. If the decision is to amend, the Act and Regulations do not specify a timeframe by when a draft plan needs to be sent to the parent or young person. The Code simply says the process of amendment should start ‘without delay’ (9.176) Once an amended draft plan is issued, with an amendment notice, the final Plan must be issued within eight weeks of the amendment notice (The Code 9.193-7). The next annual review must then take place within 12 months of the review meeting, not 12 months from the date the amended plan is issued.

Chronology of events

  1. The Council received a request to assess on 4 November 2018 which its panel agreed to on 4 December 2018. The Council says the 20 week deadline to issue the Plan was 28 March 2019.
  2. On 10 December the Council advice requested from:
    • school
    • paediatrician
    • occupational therapy (OT)
    • educational psychology (EP)
    • child and adolescent mental health services (CAMHS).

The advice was due by 21 January 2019.

  1. The Council says the EP advice was provided on 5 February and Paediatric (health) advice on 26 March.
  2. The Council says OT declined to provide advice as it said Ms X’s son was not known to the service. It is not clear whether Ms X, the Council, or both, challenged this position but a request for advice from OT was resubmitted on 8 April 2019 as well as a request for physiotherapy advice.
  3. The Council says it received the OT advice on 16 April and physiotherapy advice on 21 May.
  4. The Council’s Panel agreed to issue a Plan on 14 May.
  5. The Council says as Ms X was concerned about delay it issued a first draft on 15 May before some of the advice was received.
  6. Ms X’s son was on the waiting list for assessment by a child psychiatrist specialising in autism and mental health disorders. This professional produced an assessment report on 19 May independently of the EHC process. Ms X subsequently asked for this advice and the recommendations to be included in the Plan.
  7. The Council met Ms X on 12 June at School to discuss the draft EHC plan. Ms X attended with a representative from an education law charity. On 20 June Ms X followed up the meeting with a number of comments and requests which included that:
    • She wanted the EP to carry out further testing to more clearly define her child’s strengths and weaknesses and to specify the amount of ongoing input the EP would provide
    • The Council needed to clarify who would fund equipment required
    • Ms X confirmed a number of amendments that had been agreed to the Plan and said she would like to see a second draft before this went to the Council’s panel.
  8. The case went back to the Council’s Panel on 25 June, and due to the amendments required by Ms X, the panel advised the caseworker to speak to the Head of the department.
  9. The Council says it issued a second draft in July 2019. The Council confirmed to me that Ms X is correct in saying the Council omitted to make all the agreed amendments to the second draft but says these were corrected when the final plan was issued in September.
  10. On 5 July Ms X complained about ongoing delay.
  11. The Council replied on 17 July. It said delay had been due to late request for, and provision of, advice for EHC plan. The Council said this was its error. The Council acknowledged that Ms X had been correct to raise concerns about the quality of the first draft which was too vague and not specific enough. The Council said it had agreed to improve it and would backdate funding to the school to the date the Plan should have been completed.
  12. Ms X says she received a further draft on 30 July 2019 but there were still serious inaccuracies and it was not quantified and specific about what was to be provided. Ms X says she paid a legal charity £165 to check the EHC plan for her.
  13. A meeting was held on 12 September to discuss the amended draft. Ms X said a further report was by then available from autism outreach but information from outreach and the child psychiatrist had not been included in the Plan. Ms X also asked why a speech therapy assessment had not been arranged.
  14. The Council agreed to seek speech therapy advice, this required a new assessment. The assessment was requested on 30 September and advice received on 11 November 2019.
  15. The Council says it finalised the Plan on 27 September 2019 without the speech therapy advice as the Plan was already late.
  16. The Council has acknowledged the Plan was not issued within the 20 weeks but says it agreed to backdate the school funding to the date when the Plan should have been issued in March and it says the School was able to provide Ms X’s child with the same level of 1:1 support before the Plan was finalised.
  17. The final Plan issued on 27 September 2019 provided for 25 hours 1:1 support in addition to OT and other interventions to address Ms X’s son’s special educational needs.
  18. While the final Plan set out that input from the EP and therapists would be required not all this support was specified and quantified in the Plan issued in September. Ms X did not however appeal the final plan as the Council had agreed to update it when further advice was received.
  19. The Council told me an amended plan was produced after a review meeting with Ms X on 5 December but it failed to send this to Ms X. It acknowledges this was fault. The legal plan in force therefore remains that dated 27 September 2019.
  20. The Council says there was an incident at school in February 2020 that led to a significant change in Ms X’s son’s presentation and this together with lockdown restrictions relating to Covid-19 led to an increase in involvement from child psychiatry. It says these needs were reviewed at an annual review meeting in September 2020 and the additional health provision Ms X’s son is now receiving will be added to his Plan.

Complaint process

  1. The Council provided its Stage one complaint response on 17 July 2019 accepting there had been delay and fault in the drafting of the EHC plan. The Council also accepted it had been late in requesting evidence for the EHC plan and the receipt of this, which it said was an error by the Council.
  2. On 20 September the Council agreed to repay charity fees of £165 as a goodwill gesture due to ongoing delay. The Council told me that it did fail to pay this reimbursement due to administrative error but it will now follow this up and ensure it is paid.
  3. On 27 September 2019 Ms X asked for the complaint to be escalated to stage two.
  4. As the Council had issued the final Plan on 30 September it asked Ms X if she still wanted to escalate the complaint to stage two. Ms X did. The stage two complaint was due to be responded to by 21 November 2019 but the Council acknowledges Ms X never received a response. It accepts this was fault and says this was due to a limited number of officers in the team at the time due to absence, and apologises that Ms X did not get a reply.
  5. The Council told me in response to my enquiries it acknowledges there have bene a number of delays and errors in this case and it will apologise and is willing to offer Ms X £500 to acknowledge this.

Analysis

Complaint issue 1: the Council failed to issue a final plan by July 2019 and to refund legal expenses incurred

  1. The Council made a decision to assess in week 4 of the 20 week EHC process and requested advice in week 5. This was within the required time limits.
  2. There was delay in receiving all the advices and some advice (physiotherapy) was sought after the initial request. The Council, in its July 2019 complaint response, accepted fault for delay in seeking and receiving advice from professionals between December 2018 and July 2019 and said this was its error (not that of health services). As the fault is accepted there is no need for me to investigate this aspect further.
  3. The Council has also accepted fault in failing to pay the legal expenses it agreed to refund in September 2019.

Complaint issue 2: amendments agreed at a meeting in June 2019 were not included in the second draft plan issued in July 2019.

  1. The Council has admitted this fault.

Complaint issue 3: the Council has further delayed since July 2019 with no final plan yet being issued

  1. The Council did issue a final Plan in September 2019, so it is not correct to say there has been no final plan. It has also mitigated the injustice caused by backdating the funding to school to when the plan should have been finalised. The Council says the school implemented some provision before the Plan was finalised.
  2. Ms X did not appeal the final Plan in September as the Council said it would update the Plan again when outstanding advice from speech therapy was available.
  3. A review meeting was held on 5 December to review the plan and new evidence. The Council’s decision after this review was to amend. There is no legal time limit by when amendments must be made, but the Code says they should be done without delay.
  4. The Council intended to issue an amended draft plan to Ms X in December, and drafted one, but omitted to send it. It has accepted this was fault and that the final plan in force remains the one issued in September 2019. There has been a nine month delay in providing amendments following the review meeting. This is unacceptable delay.

Complaint issue 4: the Council failed to obtain the correct evidence to inform the Plan so the draft was ‘not fit for purpose’

  1. The Council sent requests for advice to all the required people listed in Regulation 6(1) and complied with the law.
  2. While the Act and Code provides for a 6 week period for advice to be provided from the list of professionals listed in Regulation 6(1), this is based on an assumption that such advice will be readily available from professionals already involved with a child. The Act and Code do not address the situation where there are unrecognised needs which require further assessment or the involvement of new professionals and where, due to waiting lists, this may be delayed. The Act and Code also do not deal with the situation where a professional providing advice under Regulation 6(1) then recommends further assessments or advice are sought.
  3. The Council for Disabled Children guidance recommends health bodies have a mechanism to ensure unrecognised needs are not overlooked in EHC assessments when there is no existing health involvement. It suggests the health professional overseeing the collection of health advice speaks to the family and / or considers information obtained by the Local Authority from the family and where it is agreed a new medical assessment is required that this should be organised as soon as possible.
  4. The Ombudsman would not necessarily criticise a Council issuing what is in effect a ‘holding plan’ based on the original pool of professional advice sought under Regulation 6 and then seeking to update it when new assessments have been completed. This avoids delaying provision which is not disputed and avoids delaying a parent’s right of appeal. The Ombudsman recognises that councils may be caught in a situation of having to choose between issuing a ‘holding plan’ with the advice that is available and amending the plan again later, or awaiting further evidence and missing the legal deadline for issuing the Plan.
  5. In this case the initial advice sought under Regulation 6(1) was available by the end of May and all additional advice sought following Ms X’s comments on the draft was available by November 2019. There was clearly fault and delay in issuing the first final Plan between May and September and in issuing the amended final plan after November 2019 to date.
  6. Ms X alleges that it should have been apparent to the Council that it needed to obtain speech therapy evidence in December 2018, when the other categories of advice were sought, and therefore that there was a nine month delay in seeking this advice.
  7. The Code recommends that Councils discuss with parents or young people the range of advice to be sought at the start of the EHC assessment. I have not seen evidence this happened, but the Council’s letter to Ms X did say it would seek advice from all the professionals listed on the referral for assessment and invited Ms X to let the Council know if there was anyone else she thought the Council should seek advice from. I have not seen evidence Ms X asked the Council to seek advice from any other person, for example a speech therapist, at that time.
  8. The Council sought advice from ‘health’ at the correct time and from the correct categories of professionals. It was legally a decision for health services, not the Council, which health professional(s) should provide advice for the EHC assessment. I therefore do not have enough evidence to criticise the Council for not considering speech therapy advice in December 2018.
  9. The EP carried out testing of Ms X’s son in January 2019. This identified he had communication and interaction needs (these are referred to in the September 2019 final Plan) but the EP also referred to testing that showed language skills were in the typical / average range. Ms X then asked for more detailed testing (including a wider range of language testing) in June 2019. The Council agreed to this, but it delayed in organising the assessment until September 2019.
  10. Whether the Council should itself have recognised that further assessment was required by a speech and language professional in addition to that of the EP is not within the expertise of an Ombudsman investigator. Where a parent is unhappy with needs described in Section B, or provision described in Section F of a Plan they can appeal to the Tribunal which has specialist expertise. In Ms X’s case she was able to challenge the draft Plan and persuade the Council to seek further advice without needing to appeal. Ms X has raised other concerns about the plan not being ‘fit for purpose’, again these would have been for the Tribunal not the Ombudsman to comment on, but the Council has itself accepted fault in issuing a plan which was too vague and required redrafting.
  11. As the Plan was delayed between March and September, new evidence become available from a child psychiatrist. Ms X understandably wanted this to be included in the Plan so it fully reflected current needs. This evidence would not have been included had the Plan been issued on time.
  12. The Council says it did draft an updated draft Plan based on the additional evidence in December 2019, but it failed to send Ms X a copy. This was fault. The Council says it held a review in September 2020 and intends to issue an amended draft plan and amendment notice in the week of 12 October 2020 with the final plan issued by 27 November 2020.

Failure of complaint process

  1. The Council failed to follow its own complaint process and provide a stage two response. The Council also failed to follow up actions it agreed in its stage one response. This was fault and led to unnecessary time and trouble for Ms X.

Injustice

  1. The Council says that while there was delay in issuing the plan between March and September 2019, the school was implementing some of the provision in advance of the plan being finalised and funding was backdated to cover 1:1 provision made by school.
  2. Since September 2019 there has been a final plan in place and Ms X’s son was legally entitled to the provision specified in the Plan. This provision did not include additional speech and language input recommended in November 2019. Had this assessment been actioned in June, not November, it is likely it would have been available to be included in the final plan issued on 27 September and Ms X’s son would have received the additional provision sooner. I cannot say that without fault this provision would have been available in March or July 2019 as I cannot say it should have been sought before Ms X herself requested it. Ms X’s son remains without a legal entitlement to this additional provision because the amended draft produced in December 2019 was never finalised.
  3. Ms X says that deterioration in her son’s mental health is related to the lack of provision in his EHC plan. This has not been confirmed by a relevant mental health professional and it is outside the expertise of an Ombudsman investigator to make such a finding.
  4. Ms X says that the delays and fault have caused additional time, trouble and inconvenience as well as considerable distress and that her son has missed out on provision. The Council has in its response to me offered a financial remedy of £500 to recognise the impact of its fault. I am not persuaded this level of payment adequately recognises the level of fault or injustice caused.

New complaint issues

  1. In response to my draft decision Ms X advised that:
    • Her son has not received all the special educational provision in his September 2019 EHC plan
    • There has been a delay in providing psychological therapy recommended in 2020
    • The Council did not carry out a risk assessment during the ‘lockdown’ due to Covid-19.
  2. Before considering a complaint, the Ombudsman should be satisfied the Council has had an opportunity to investigate and respond to a complaint. (Local Government Act 1974, section 26(5)) I am not satisfied these matters were part of Ms X’s original complaint to the Council or that the Council has yet had an opportunity to comment on them and so they are premature for the Ombudsman to consider. Ms X would need to make a complaint to the Council.
  3. The actions below, including the financial remedy, were agreed before Ms X raised new complaint issues and on the understanding Ms X’s child did receive the provision in his September 2019 EHC plan in full. If a subsequent complaint investigation finds further fault by the Council, then the Council should consider if a further financial remedy is appropriate.

Agreed action

  1. Within 4 weeks of my final decision:
    • The Council will apologise for the faults identified
    • The Council will pay £165 for legal fees
    • The Council will pay Ms X £250 for her time and trouble in bringing the complaint
    • The Council will pay Ms X’s son £1000 for the distress and adverse impact on his education / loss of provision resulting from the delays in issuing the two final EHC plans.
  2. The Council will issue an updated draft plan in the week 12 October 2020 and a final plan no later than 27 November 2020.
  3. Within 8 weeks of my final decision the Council will review its EHC process and complaints process to ensure:
    • Officers discuss the range of advice to be sought with families at the start of each EHC assessment and make any new referrals promptly
    • There is a mechanism to check that agreed complaint actions are implemented before a complaint file is closed
    • Requests for advice are clear about the need for specific and quantified recommendations at the start and advices are checked on receipt to ensure that they are sufficient for drafting robust EHC plans
    • That there are mechanisms in place with health to resolve problems with delayed or poorly drafted advice.

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Final decision

  1. I have completed my investigation. There was fault by the Council in the way it handled the EHC assessment, amendment of the plan and the complaint process. This has caused injustice. The complaint is upheld.

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Investigator's decision on behalf of the Ombudsman

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