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Surrey County Council (21 001 931)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 02 May 2022

The Ombudsman's final decision:

Summary: Mr A complains on behalf of Mrs X, his daughter, that the Council has not dealt properly with education provision or Special Educational Needs (SEN) provision for his granddaughter Y. The Council is at fault because it delayed issuing a decision about Y’s Education Health and Care Plan (EHCP), it delayed Mrs X’s appeal rights, used disrespectful language, did not provide a Child In Need (CIN) plan in time and did not postpone a meeting. The Council has made some service improvements. In addition, the Council should apologise, Pay Mrs X £3,000 for missed education provision, Pay Mrs X £500 for distress/outrage, pay Mr A £50 for time and trouble and provide guidance to staff.

The complaint

  1. The complainant, whom I shall refer to as Mrs X, complains the Council has failed to deal properly with education provision and special educational provision for Mrs X and her daughter Y because it:
    • delayed issuing Y’s EHCP;
    • did not provide a draft child in need plan in advance of a meeting and failed to post-pone the meeting to allow her to review the plan beforehand; and
    • cancelled mediation delaying an appeal about Y’s EHCP;
    • did not properly complete Y’s EHCP key stage transfer review properly as a meeting on 14 October 2020 wasn’t minuted or taken account of when producing an updated EHCP;
    • failed to provide full time education for Y since November 2020;
    • blamed the family for Y not attending school; and
    • did not handle his complaint properly due to the lack of communication
  2. Mrs X says her appeal rights were delayed, Y’s Special Educational Needs provision was delayed, Y has lost education provision and the family have suffered distress and time and trouble.

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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. 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)
  3. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
  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. (Local Government Act 1974, section 26(6)(a), as amended)
  5. 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)
  6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
  7. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
  8. 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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How I considered this complaint

  1. I spoke to Mr A about the complaint and considered documents provided by him. I made enquiries of the Council and considered its response and the supporting documents it provided.
  2. Mr A and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law, guidance and policies

Child in Need Plan

  1. When a council assesses a child as being in need, it supports them through a child in need plan. This should set clear, measurable outcomes for the child and expectations for their parent. Councils should review child in need plans regularly.

SEND Tribunal

  1. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.

EHCP Timescales

  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 council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;
    • following the completion of an EHC needs assessment, if the local authority decides that an EHC plan is not necessary, it must give notification and the reasons for its decision, as soon as practicable and at the latest within 16 weeks of the initial request;
    • 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); and
    • councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.
  2. An EHC plan must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education, to allow for planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year of the transfer at the latest for transfers into or between schools. The key transfers are:
    • early years provider to school;
    • infant school to junior school;
    • primary school to middle school;
    • primary school to secondary school, and
    • middle school to secondary school.
  3. Where a Council does not oppose an appeal concerning a decision not to issue an EHCP, it must issue a draft EHCP within five weeks and a final EHCP within 11 weeks. (Special Educational Needs and Disability Regulations 2014 Reg 45 (6))

Alternative Education

  1. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] We refer to this as section 19 or alternative education provision. (Education Act 1996, section 19).
  2. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
  3. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC Plan we cannot seek a remedy for lack of education after the date the appeal was submitted if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).

The Council’s Complaints Procedure

  1. At stage one, local resolution, the Council aims to provide a full response in 10 working days and will tell a complainant if this will take longer.
  2. At stage two, investigation, the Council will investigate and aims to provide a full response in 20 working days and will tell a complainant if this will take longer.

What happened?

  1. Y was diagnosed with Autistic Spectrum Disorder (ASD) with Extreme Demand Avoidance (EDA). She has recently been diagnosed with a generalised anxiety disorder and post-traumatic stress. Y has developed Tourette’s Syndrome and complex attentional and executive function difficulties which significantly affect her capacity to learn, change her behaviour and to process and retain learning and new information. Y has a severe sensory modulation disorder and has severe depressive adjustment and anxiety disorders.
  2. Mrs X asked the Council to provide an EHCP for Y. The Council decided not to assess Y for an EHCP but then changed its mind. It made requests for professional advice.
  3. The Council decided not to proceed with an EHCP for Y in December 2019. Mrs X appealed to Tribunal about the decision. The Council decided not to oppose Mrs X’s appeal and issued a final EHCP for Y in April 2020. A further EHCP with appeal rights was issued at the end of July 2020.
  4. Mrs X did not agree with the July 2020 EHCP and asked for mediation. However, the mediation did not take place as the Council prepared to review Y’s EHCP as part of a key phase transfer.
  5. At the same time the Council was considering a CIN plan for Y and held meetings regarding that process.
  6. The Council then decided to start a key stage transfer review of Y’s EHCP.
  7. In October 2020 Mr A complained on behalf of Mrs X to the Council at stage one of its complaints procedure. The Council responded to Mr A’s complaint in November. Mr A was unhappy with the outcome and asked for the complaint to be considered at stage two.
  8. Mrs X also appealed Y’s EHCP in November 2020.
  9. The Council replied to Mr A’s stage two complaint in March 2021. The Council partially upheld his complaint.
  10. In July 2021, the Tribunal agreed additional SEN provision for Y at a specialist placement.

Analysis

EHCP process delays

  1. The Council’s response to the Ombudsman says, “the statutory timeframes were exceeded in providing a decision on whether Y met the legal threshold for an EHCP by 11 weeks.” The Council has apologised to Mrs X for an 11 week delay.
  2. The Council originally provided a response to Mrs X’s request for an EHCP assessment in July 2019. This was within the six week timescale set out in the statutory guidance. This is not fault by the Council.
  3. Mrs X asked to Council to assess Y for an EHCP on 24 June 2019. According to the statutory guidance, after the Council agreed to undertake an EHCP assessment, it should have issued a decision as to whether it would issue an EHCP for Y within 16 weeks of the original request. The latest time this decision should have been issued is 14 October 2019, 16 weeks after 24 June.
  4. The Council informed Mrs X by a formal letter which included her appeal right, on 13 December 2019. Therefore, there was a delay from 14 October 2019 to 13 December 2019. This is fault by the Council. Mrs X’s appeal right, and as a result, Y’s eventual EHCP through Tribunal, was delayed for eight and a half weeks.
  5. Mrs X appealed the Council’s decision. This is not fault by the Council.
  6. The Council decided not to oppose Mrs X’s appeal in March 2020. It produced a draft EHCP for Y in three days and issued a final EHCP within one month, in April 2020. The Council complied with the timescales set out in the Regulations referred to in paragraph 17. This is not fault by the Council.

Child In Need Plan and Meeting

  1. The Council has already agreed in its stage two complaint response that it should have provided the CIN plan in advance of a meeting in September 2020 and that it should have postponed the meeting itself.
  2. This is fault by the Council. Mrs X could have been prevented from taking a full part in the meeting by not having had the same understanding of the documents as other participants.
  3. The Council has apologised to Mrs X and says advice has been circulated to staff about requests to postpone meetings.

Mediation/Appeal delay

  1. The Council issued a final EHCP for Y in July 2020, together with her appeal rights.
  2. Mrs X asked for mediation because she did not agree with the EHCP. This is not fault by the Council.
  3. I have seen an email from the Council to the mediator showing that the Council cancelled the mediation because it was undertaking Y’s key stage transfer review of her EHCP. This is supported by notes taken by Y’s school at a meeting which confirms the same reason for the decision. I have also seen an email from the Council to Mrs X in late September which explicitly stated, “the EHCP has been reverted back into draft format to facilitate the Key Stage Process, we would not be needing to mediate at this stage...”
  4. The mediator issued the certificate required for Mrs X to appeal to Tribunal on 23 October 2020. Mrs X later confirmed on 11 November that she did not want to continue to attempt mediation and appealed to SEND Tribunal.
  5. The Council says Mrs X cancelled the mediation that had been arranged. Whilst it is correct Mrs X declined to continue with mediation in November, the initial act to discontinue it was clearly taken by the Council in September.
  6. The Council found itself having to deal with two processes. Firstly, it had issued a final EHCP and had begun to engage in a process of mediation with Mrs X. Secondly, it was aware it needed to undertake a key phase transfer review of Y’s EHCP.
  7. Acting professionally, the Council should have been aware of the potential conflict between these processes well in advance. It should therefore have:
    • Warned Mrs X in its final EHCP letter that mediation may come into conflict with the key phase transfer review. This would have allowed Mrs X to make an informed choice about whether to appeal at an earlier point in time; and
    • Run both processes in parallel to each other until there was either agreement or one of them generated an appeal right that was exercised. This would have allowed the mediation the Council agreed to undertake to be completed and would have ensured Mrs X’s appeal right was unaffected.
  8. Instead, the Council chose to simply cancel the mediation and continue the phase transfer review. In doing so, the Council wrongly conflated two distinct and separate EHCP processes, deliberately intending to concentrate Mrs X’s two routes of appeal into one at the end of the phase transfer review. This is fault by the Council.
  9. On the balance of probabilities, if the Council had advised Mrs X the mediation may be compromised, she would have chosen to appeal earlier, because this is exactly what she did in November, as the Council’s actions had led to an irretrievable breakdown in trust.
  10. Mrs X appealed approximately three weeks after she obtained her part 3 mediation certificate. On this basis, if the Council had acted properly, following the July final EHCP, I find Mrs X would have appealed in the second half of August.
  11. Mrs X therefore suffered the frustration of having to work through the problems caused by the Council to the mediation process and a further delay to her right to appeal. This delay is approximately three months, the time period between 21 August 2020 and Mrs X’s actual appeal date, the 19 November 2020.
  12. If the appeal had been made earlier, the Tribunal hearing would also have been held earlier meaning Y would not have missed a further period of education and SEN provision. Y therefore also suffered a further three month delay to receiving education and SEN provision, in addition to the eight and a half week delay identified above in paragraph 36.

Key Phase transfer Review Meeting

  1. The Council agrees that an EHCP annual review meeting was held in October 2020 and that no written record was taken of this meeting.
  2. It says the October 2020 meeting was mis-titled and was a multi-disciplinary meeting between professionals in preparation for Y’s key stage transfer process. The Council says it was not a full review.
  3. The Council has already agreed in its stage two complaint response that detailed notes should be taken at formal meetings. This was a formal meeting as part of the key stage transfer review process. The Council should therefore have taken detailed notes. This is fault by the Council. However, Mrs X did not suffer any injustice because, on the balance of probabilities, it is unlikely to have changed the outcome.
  4. Mr A says the Council ignored a submission by Y’s school dated 6 November 2020. Mrs X made the decision not to continue with mediation and appealed to Tribunal shortly after this, and before an alternative proposed mediation date. There was therefore no opportunity for the Council to consider the school’s information before Mrs X appealed. Once Mrs X had appealed, Y’s EHCP was subject to Tribunal. The Council did not complete the key stage transfer review process because of this. This is not fault by the Council.

Education Provision

  1. Mrs X appealed to SEND Tribunal on 19 November 2020. The appeal was concerned with Y’s placement and SEN provision. I am unable to consider this part of Mrs X’s complaint due to the reasons outlined in paragraph 20 above. I have therefore not investigated this further.

Blaming Y’s Family

  1. Mrs X complains the use of language by Council officers blamed the family for Y’s non-attendance at school. It is clear that it is not Y or her family’s fault she did not attend school.
  2. The Council has stated that it is, “...sorry the language used by professionals was disrespectful...” in its stage two complaint response. The Council accepts there was fault in the way officers spoke about the family. The Council has apologised for any harm and distress caused.
  3. There is a stark contrast between the attitude accepted by the Council and the fault causing delay that I have identified in this investigation. Mrs X was not only disadvantaged by the Council’s actions, she suffered additional distress and personal outrage due to the Council considering her to be the cause of her daughter’s education difficulties, when in fact this was in part a result of the Council’s fault. I do not consider the apology by the Council to be an appropriate remedy.

Complaint Handling

  1. Mr A first complained to the Council at stage one on 20th October 2020. The Council responded to Mr A on 19th November. The Council took 22 working days to respond at stage one.
  2. Emails provided by the Council show there was contact between Mr A and the Council between November 2020 and March 2021 as follows:
    • Mr A asked the Council to escalate his complaint to stage two on 22nd November;
    • Mr A then wrote to the Council’s Chief Executive on 15 December because he had not received a response to his stage two complaint;
    • The Council acknowledged this contact a week later and said his letter would be responded to as part of his complaint;
    • Mr A requested an update regarding his complaint twice in early January;
    • Mr A was told in mid-January 2021 that a manager was being asked to lead on his complaint and the Council apologised for the delay;
    • Mr A was then contacted by the appointed manager to discuss his stage two complaint on 26 January 2021;
    • The investigating manager clarified Mr A’s complaint and completed their investigation; and
    • The Council issued its stage two final response on 25th March 2021.
  3. The Council took 79 working days to respond at stage two. The Council contends that, “Where the complaint is complex it can take longer to investigate.”
  4. The Council did not begin to actually investigate Mr A’s complaint until the middle of January when a manager was appointed to do so. Nearly eight weeks of the time taken was due to waiting for an officer to be appointed to undertake the investigation, not due to the complexity of it.
  5. The Council delayed responding to Mr A’s complaint at both stage one and two of its complaints process. Mr A had to chase the Council before it began the stage two investigation two months after he complained. This is fault by the Council. Mr A and Mrs X had to wait longer than they should have done for a response to their complaint.

Summary of Action by the Council

  1. The Council has apologised to the family;
    • in recognition of the delay experienced within the statutory process;
    • for not sending documents in sufficient time before meetings and for not postponing a meeting;
    • for the use of disrepectful language which Mrs X found distressing.
  2. The Council has identified service improvements as a result of Mrs X’s complaint, including:
    • Remind staff of the importance of accurate descriptions within the subject title in correspondence.
    • Remind staff that the legislation does not include an exemption for statutory advice being delayed and decisions must be made by week 16 at the latest.
    • Remind staff in both the SEND Service and Surrey Children’s Services to record detailed notes of formal meetings for the purposes of accurate record keeping.

Was the Council at fault?

  1. The Council was at fault because it;
    • Delayed a decision about whether to issue an EHCP for Y;
    • Failed to provide documents in advance of a CIN meeting;
    • Failed to postpone a CIN meeting;
    • Wrongly conflated two EHCP processes;
    • Failed to take detailed notes at a formal meeting;
    • Used disrepectful language about Mrs X, blaming her for Y’s situation; and
    • Failed to handle complaints properly.

Did Mrs X and Y suffer any injustice?

  1. Mrs X and Y suffered injustice because:
    • Mrs X’s appeal right was delayed for eight and a half weeks in 2019;
    • Mrs X’s appeal right regarding the July 2020 EHCP was delayed for three months (approximately 12 weeks);
    • Y’s Tribunal hearing and resultant EHCP were consequently delayed for a combined period of 20 and a half weeks, approximately 5 months, as a result;
    • Mrs X suffered distress/personal outrage; and
    • Mr A and Mrs X’s complaint response was delayed.

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Agreed action

  1. To remedy the outstanding injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this decision:
    • Apologise to Mrs X and Y for the additional fault I have identified;
    • Pay Mrs X £3,000 in respect of missed education and SEN provision caused to Y by the 20 and a half week delay in receiving her Tribunal outcome and resultant EHCP;
    • Pay Mrs X £500 in respect of avoidable distress and personal outrage;
    • Pay Mr A £50 for his time and trouble;
    • Provide guidance to staff to ensure that EHCP processes are managed to ensure, as far as practicable, that mediation and appeal rights are not compromised. Where it is foreseeable that this may occur, it should ensure letters about mediation and appeal rights include a warning about this to enable recipients to make informed decisions about how to proceed; and
    • Provide guidance to staff to ensure that the Council follows its complaints policy in relation to acknowledging complaints and providing information about delays.

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Final decision

  1. I have found fault by the Council, which caused injustice to Mr A, Mrs X and Y. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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