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Derbyshire County Council (21 003 755)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 05 Apr 2022

The Ombudsman's final decision:

Summary: Mr X complained about the actions of the Council’s Children’s Services regarding his son’s Education, Health and Care plan. Mr X says the Council’s actions have caused him financial hardship and caused avoidable distress to himself and his son. We have discontinued our investigation of some of Mr X’s complaints as they are out of jurisdiction and have found fault by the Council in some of Mr X’s remaining complaints. The Council has agreed a remedy to address the injustice identified.

The complaint

  1. Mr X complained about the actions of the Council’s Children’s Services regarding his son’s Education, Health and Care plan. Mr X complained:
  • The Council did not obtain parental consent to carry out an occupational therapist’s assessment in October 2020;
  • An officer who responded to Mr X’s complaint was the same officer involved in the actions complained about. As a result, Mr X complains the Council failed to address a conflict of interest;
  • The Council incurred delays in its complaint handling;
  • The Council restricted Mr X’s contact with it due to what it considered to be excessive demands, and
  • The Council failed to refund the cost of an Educational Psychologist’s report commissioned privately in 2016.
  1. Mr X says the Council’s actions have caused financial hardship to him and avoidable distress to himself and his son.
  2. Mr X also complained:
  • The Council failed to carry out occupational therapy assessments, speech, language and communication needs assessments and social care assessments;
  • The Council carried out an assessment which contained misleading information;
  • The Council included provision for speech and language needs in an incorrect section of the Education, Health and Care plan;
  • The Council failed to provide a response to a subject access request within the expected timeframe;
  • The Council’s assessment contained inaccurate diagnostic information and selective diagnoses, and
  • The Council’s actions did not align with our decision regarding a previous complaint in 2016.

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What I have investigated

  1. I have investigated the complaints listed in paragraph one. The final section of this statement explains my reasons for not investigating the complaints listed in paragraph three.

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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 can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
  3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  5. 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)
  6. We cannot investigate a decision by the Council where it has been or could reasonably be appealed to a tribunal. We cannot also consider the consequences of that decision from the point of the right of appeal. R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407.
  7. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
  8. 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)
  9. Under our information sharing agreement, we will share our decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

  1. I have exercised discretion in investigating Mr X’s complaint back to January 2020. This is because Mr X made his complaint to the Council in January 2021 and brought his complaint to us within 12 months of the Council’s decision. I have investigated from 12 months before Mr X’s complaint.
  2. I have discussed the complaint with Mr X and considered the information he provided.
  3. I have made enquiries to the Council and considered the information it provided.
  4. I have also considered the relevant legislation and statutory guidance as set out below.
  5. Mr X and the Council have had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.

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What I found

Special Educational Needs and Education, Health and Care plans

  1. A child or young person has Special Educational Needs (SEN) if they have a learning difficulty or disability which calls for special educational provision to be made for them. Most children have these needs met within local early years, mainstream school or college settings. Support at this level is called SEN support.
  2. Some may require an Education, Health and Care (EHC) assessment for the local authority to decide whether it is necessary to make provision in accordance with an EHC plan.
  3. The purpose of an EHC plan is to make special educational provision to meet the child or young person’s special educational needs. It is also to secure the best possible outcomes for them across education, health and social care and, as they get older, prepare them for adulthood.
  4. The Children and Families Act 2014, the Special Educational Needs Code of Practice 2015 and the Special Educational Needs and Disabilities Regulations 2014 provide detailed guidance to councils about how they should manage the process of:
    • assessing children and young people for an EHC plan;
    • how to decide whether to issue a plan;
    • the content of the plan; and
    • how to implement, monitor or cease a plan.
  5. If parents or a young person disagrees with the content of an EHC plan, they can appeal the First Tier Tribunal Special Educational Needs and Disabilities (SEND) Tribunal.

Background

  1. This chronology includes key events in this case and does not include everything that happened. In this statement I have not made reference to every event, but I have not ignored their significance.
  2. Mr X complained to us in 2016 about the Council’s actions regarding his son’s SEN support. I will refer to Mr X’s son as A. Further to this, the Council agreed to transfer A’s SEN support to an EHC plan.
  3. Mr X privately commissioned an educational psychologist’s report for A in 2016 which identified A had a learning disability and social care needs. Mr X says the report also indicated A may have a language disorder. Mr X asked the Council to include the report’s findings as part of A’s EHC plan.
  4. Mr X says he also asked the Council to carry out a social care report at about this time.
  5. In 2017, the Council issued its EHC plan for A. The Council maintained the EHC plan from 2017 to 2020.

What happened

  1. A’s EHC plan was the subject of an annual review in January 2020. Mr X was unhappy with the speech, language and communication provision within the plan and asked the Council to commission a speech and language therapy report. Mr X says the Council did not assess A’s speech and language therapy needs at this time.
  2. Following the review, the Council issued its EHC plan on 21 April 2020.
  3. In July 2020, Mr X privately commissioned a speech, language and communication needs assessment for A. Mr X says the report identified A had a severe language disorder.
  4. In July 2020, Mr X appealed to the SEND Tribunal as he was dissatisfied with the content of the EHC plan and the provision it contained. Mr X considered the plan contained out of date information and did not meet A’s support needs.
  5. In September 2020, Mr X asked the Council to commission a full assessment of A’s sensory needs, and for the findings to be included as part of the EHC plan.
  6. The Council responded and told Mr X it considered A’s school and the professionals involved with him could instead work with a sensory processing toolkit devised by the NHS.
  7. Mr X told the Council the sensory processing toolkit was not a professional assessment. He asked the Council if it would cover the cost of a privately sourced occupational therapist’s report.
  8. In September 2020, Mr X made a request to the Tribunal to include additional information in the EHC plan.
  9. Mr X commissioned an independent occupational therapist’s report in October 2020. The report identified several further diagnoses including motor dyspraxia, global developmental delay and social care needs.
  10. In the same month, the Tribunal ordered that the grounds for appeal should include A’s diagnosis of anxiety and sensory difficulties.
  11. Mr X made a subject access request to the Council in October 2020 to request copies of the Council’s documents regarding A.
  12. In early November 2020, the Council agreed to commission an occupational therapist’s assessment for A.
  13. Mr X emailed the Council on 3 November 2020. He said the Council had not discussed with him its proposal to carry out the occupational therapist’s assessment, and said the Council already had access to the privately commissioned assessment obtained by him. Mr X refused the Council permission to go ahead with its own assessment as he said he did not want to expose A to further disruption.
  14. In December 2020, the Council provided its paperwork to the Tribunal.
  15. On 7 December 2020, Mr X complained about the Council’s paperwork submitted as part of the Tribunal process.
  16. Mr X submitted a request to the Tribunal shortly after, to ask that the findings of the private occupational therapist’s assessment should be included as part of the Tribunal hearing.
  17. On 22 December 2020, the Council replied to Mr X regarding his complaint about the Council’s Tribunal paperwork. The Council said it would provide a supplementary bundle to the Tribunal and told Mr X it did not uphold his complaint.
  18. On 23 December 2020, the Tribunal ordered that the appeal should include A’s social care needs.

Mr X’s complaints

  1. Mr X responded to the Council on 23 December 2020 about its complaint response regarding the Tribunal paperwork. He complained the Council had failed to address a conflict of interest because the officer who provided the complaint response was the same officer involved with the matters about which Mr X had complained.
  2. Mr X complained to the Council on 4 and 5 January 2021. He said the Council had not assessed A’s needs, had not provided adequate provision for several years and had not provided the required support to A. Mr X also said the Council had included provision in the wrong sections of the EHC plan.
  3. The Council replied on 28 January 2021. It said a lot of the matters raised by Mr X were being dealt with as part of the ongoing Tribunal proceedings. It said it had acted in accordance with the advice provided to it by the professionals, and that as part of the Tribunal proceedings, it agreed with much of the private educational psychologist’s assessment. The Council agreed to refund the cost of the privately commissioned reports from the speech and language therapist, the occupational therapist and the educational psychologist.
  4. Mr X replied to the Council and said its stage one response did not answer all the points raised and ignored some of the facts. He said the Council had not admitted that it failed to identify A’s needs and did not acknowledge the EHC plan was based on privately commissioned reports. Mr X also said the provision relating to the private reports was not fully incorporated into the EHC plan. He also complained the Council commissioned its own occupational therapist’s assessment without obtaining parental consent. Mr X said he had received reimbursement for the reports from the speech and language therapist and the occupational therapist and thanked the Council for agreeing to reimburse him for the educational psychologist’s report.
  5. Mr X complained to the Council on 9 February 2021 about delays in the Council’s handling of a subject access request.
  6. Mr X complained to the Council on 11 February 2021 about a social care report commissioned by the Council. Mr X said the report failed to include a complete diagnostic picture and contained inaccurate and misleading information. Mr X contacted the Council again on 18 February 2021 and said the Council’s assessment and statement of provision did not reflect A’s diagnoses and needs and was not supportive of the parents.
  7. Mr X made a further complaint to the Council on 21 February 2021 about the subject access request.
  8. Mr X complained to the Council on 22 February 2021 about the Council’s lack of assessment and inclusion of A’s social care needs in the EHC plan. Mr X said he expected this to have been done as a result of our decision in 2016.
  9. The Council replied to Mr X and said it could not consider the complaint relating to our 2016 decision because the complaint was made more than one year after the grounds to make representations arose.
  10. On 5 March 2021, the Council wrote to Mr X and said it had concerns about the nature of his communication with the Council. It said it was concerned about the frequency and length of Mr X’s emails and said Mr X had adopted a ‘scattergun’ approach by contacting several different teams at the same time. The Council said it may need to implement its ‘Procedure for Dealing with Unreasonably Persistent Complainants and Unreasonable Complainant Behaviour’ if it continued to have these concerns.
  11. The Council provided its final complaint response to Mr X on 15 March 2021. It said the Council had assessed A’s EHC needs and had advised Mr X of his right to dispute the content of the EHC plan. The Council said it was working to amend the content of the plan through the appeal process and said it had seen no evidence to indicate A’s communication needs and lesson accessibility had been unduly impacted.

What happened next

  1. The First-Tier Tribunal hearing took place on 19 March 2021. The Tribunal recommended a reassessment of A’s social care needs and recommended amendments to several sections of the EHC plan.
  2. Mr X remained dissatisfied with the Council’s response to his complaints and brought the matter to us in June 2021.
  3. On 18 October 2021, the Council provided a further complaint response to Mr X regarding his complaint about the conflict of interest, the Tribunal paperwork and the Council’s complaint handling. The Council partially upheld Mr X’s complaint and offered to make a payment of £300 in respect of the time and trouble taken to pursue his complaint.

Analysis

  1. The amount of information available was considerable. In this report I have not made reference to every element of that information, but I have not ignored its significance. I will address each of Mr X’s complaints separately.

Mr X’s complaint about a lack of parental consent to carry out an occupational therapist’s assessment in October 2020

  1. I have reviewed the information provided, including the correspondence between Mr X and the Council regarding his requests for assessments, and Mr X’s requests that A’s diagnoses should be included in the EHC plan.
  2. A Tribunal Order dated 22 October 2020 ordered that Mr X’s grounds for appeal should include A’s diagnoses of anxiety and sensory difficulties. It also ordered the Council to provide a response to the amended appeal by 2 November 2020.
  3. The Council provided its response to the Tribunal on 2 November 2020 and acknowledged Mr X’s dissatisfaction with the EHC plan. It said it would conduct an occupational therapist’s assessment in order to improve the quality of the plan.
  4. The Council says the agreement to commission the assessment was in line with the Tribunal Order and proceedings at the time and was made following legal advice obtained regarding the ongoing tribunal process. I acknowledge Mr X is unhappy the Council did not seek parental consent before deciding to commission the assessment and acknowledge his comments about the impact this had on him. However, this complaint is out of jurisdiction for us to investigate further. This is because the evidence shows the Council’s decision to carry out the assessment was made as part of the Tribunal process, and it is therefore inextricably linked to the matters considered by the Tribunal. As a result, I am unable to continue my investigation of this complaint and have therefore discontinued my investigation regarding this matter.

Mr X’s complaint regarding a conflict of interest

  1. Mr X complained to the Council about the content of its evidence bundle to the Tribunal. He was concerned some of the required evidence was missing from the bundle and that the Council had not previously shared some of the evidence in the bundle with him. The Lead SEND officer for the case responded to Mr X’s complaint but did not uphold it.
  2. Mr X complained the Council failed to address a conflict of interest because his complaint was investigated by the same officer who was involved in preparing the evidence bundle to the Tribunal.
  3. This complaint stems from the Council’s actions when preparing its documentation to the Tribunal. Although the complaint of a conflict of interest is about how the Council investigated Mr X’s complaint about the evidence bundle, this is inextricably linked to the Council’s actions within the Tribunal process. This is because it relates to the Council’s preparation for the Tribunal hearing. As a result, this complaint is out of jurisdiction for us to investigate further, and I am unable to continue my investigation of this complaint. For this reason, I have discontinued my investigation regarding this matter.

Mr X’s complaint about delays in the Council’s complaint handling

  1. The Council’s complaint response dated 18 October 2021 upheld this complaint. It said Mr X made several different complaints over a period of time, and that he contacted the Children’s Services feedback team, the Lead SEND officer and the Tribunal. It says that due to the complexity of the complaints and the ongoing appeal to the Tribunal, this created a substantial amount of correspondence.
  2. The Council says the delay in responding to Mr X’s complaints about the evidence bundle, the conflict of interest and the investigation of his complaints was an oversight. It acknowledges it did not adhere to its corporate complaints policy of providing a final response within 90 calendar days and said it considered this to be fault.
  3. I agree with the Council’s findings regarding this matter. Mr X made his complaint about the above issues in December 2020 and did not receive a final response until October 2021. This delay by the Council is fault.
  4. I have reviewed the correspondence regarding Mr X’s other complaints. Mr X complained about the issues relating to the occupational therapist and the speech and language provision on 4 and 5 January 2021 respectively. The Council issued its final response to these complaints on 15 March 2021, within 90 calendar days. There is no fault in the Council’s handling of these complaints.
  5. I acknowledge Mr X also has an ongoing complaint currently being considered as part of the children’s statutory complaints process and acknowledge his comments about the length of time taken to progress this. I also acknowledge Mr X says he made other complaints to which the Council delayed providing a response. However, these complaints relate to matters which do not form part of this investigation, as explained in the final section of this statement.

Mr X’s complaint the Council restricted his contact with it

  1. I have reviewed the Council’s ‘Procedure for dealing with unreasonably persistent complainants and unreasonable complainant behaviour’. This sets out what it considers to be unreasonable behaviour, and includes:
  • Adoption of a ‘scattergun’ approach – pursuing a complaint with one department and, at the same time, with other departments within the authority…’
  • Submission of repeat complaints, after the complaints process has been completed, essentially about the same issue but with additions/variations which the complainant insists makes these ‘new’ complaints…’
  1. The procedure says that before applying any restrictions, the complainant should be given a warning in writing that if their actions continue, the Council may decide to treat them as an unreasonably persistent complainant.
  2. I have seen a copy of the Council’s letter to Mr X dated 5 March 2021. This gave the reasons why the Council considered placing restrictions on Mr X’s contact with it. The letter said it was a first letter and said the Council may implement its procedure for dealing with unreasonable complainants if the issues it identified continued.
  3. Mr X says he does not agree with the Council’s reasoning for sending the warning letter. He says the Council did not consider the points set out in its procedure, namely the timescale for responses and delays in the complaint handling.
  4. I acknowledge Mr X’s comments but consider the reasons stated in the Council’s letter are in line with its definition of what it considered to be unreasonable behaviour. The Council said it considered Mr X had adopted a “scattergun” approach with his communication with the Council and had continued to bring the same points as new complaints when they had already been responded to. I acknowledge Mr X disagrees with the Council’s reasoning for sending the letter, but this disagreement is not evidence of fault. I am satisfied the Council followed its process regarding this matter, and as a result I have found no fault by the Council regarding this complaint.

Mr X’s complaint the Council failed to refund the cost of an educational psychologist’s report commissioned privately in 2016

  1. The Council’s letter to Mr X dated 28 January 2021 agreed to refund the assessment costs for the privately commissioned assessments. Mr X says the Council has not yet reimbursed him for the educational psychologist’s assessment. The Council has also confirmed this.
  2. In its response to our enquiries, the Council acknowledged its previous agreement, and has confirmed it will refund the cost of the assessment to Mr X.
  3. The Council’s failure to reimburse Mr X for the cost of the educational psychologist’s assessment as previously agreed is fault.

Injustice to Mr X

  1. Having identified fault, I must consider if this caused a significant injustice to Mr X. Mr X says he has incurred financial loss as a result of obtaining the independent reports and says the Council’s actions caused him avoidable distress.
  2. The Council has offered to reimburse Mr X for the cost of the educational psychologist’s assessment. It has also offered to make a payment of £300 in recognition of the time and trouble taken to pursue his complaint. I agree with this offer by the Council, but do not consider it adequately addresses the injustice to Mr X.

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Agreed action

  1. To address the injustice identified, the Council has agreed to take the following action within one month of the final decision:
  • Provide an apology to Mr X;
  • Make a payment of £300 for the time and trouble taken to pursue the complaint;
  • Make a further payment of £200 in recognition of the distress caused by the fault identified;
  • Reimburse Mr X the cost of the 2016 educational psychologist’s assessment, and
  • Remind its staff to adhere to the Council’s complaints policy regarding timescales.

The Council is required to provide evidence it has complied with the above recommendations.

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Final decision

  1. I have discontinued the investigation of two of Mr X’s complaints and have found fault by the Council regarding two further complaints. The Council has agreed to take the above action to remedy the injustice identified.

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Parts of the complaint that I did not investigate

  1. I have not investigated Mr X’s complaint that the Council failed to carry out occupational therapy assessments, speech, language and communication needs assessments and social care assessments. This complaint is out of our jurisdiction as it relates to Mr X’s dissatisfaction with the Council’s EHC plan in that it did not include the above assessments. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal, in this case, the First-Tier Tribunal (Special Educational Needs and Disability). Mr X appealed to the tribunal regarding this matter. As a result, the matter complained about has already been considered by the Tribunal.
  2. I have not investigated Mr X’s complaint that the Council carried out an assessment which contained misleading information. This is because the Council is continuing to investigate this complaint under the statutory complaint process, and the complaints process has not yet concluded.
  3. I have not investigated Mr X’s complaint that the Council included provision for speech and language needs in an incorrect section of the EHC plan. This complaint is out of our jurisdiction as Mr X had the right of appeal to the First-Tier Tribunal regarding this matter following the issue of the EHC plans.
  4. I have not investigated Mr X’s complaint that the Council failed to provide a response to a subject access request within the expected timeframe. This is because we normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. This includes complaints about subject access requests.
  5. I have not investigated Mr X’s complaint that the Council’s assessment contained inaccurate diagnostic information and selective diagnoses. This complaint is out of our jurisdiction as it was addressed as part of the tribunal hearing.
  6. I have not investigated Mr X’s complaint that the Council’s actions did not align with our decision regarding a previous complaint in 2016. This is because we cannot investigate late complaints unless we decide there are good reasons. I acknowledge Mr X’s explanation for not bringing this complaint to us sooner but there are no compelling reasons for exercising discretion to investigate events dating back to 2016.

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Investigator's decision on behalf of the Ombudsman

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