Bolton Metropolitan Borough Council (21 005 739)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 28 Mar 2022

The Ombudsman's final decision:

Summary: Bolton Metropolitan Borough Council was at fault in relation to Ms B’s complaints about the provision of handwriting support and that its handling of part of Ms B’s complaint to the Council was avoidably delayed. It will apologise to Ms B.

The complaint

  1. The complainant, whom I shall refer to as Ms B, complains that the Council’s special educational needs services failed to provide an acceptable service to her nine year old son who has an Education, Health and Care Plan. Specifically, she complains the Council:
      1. delayed completing an assessment and then arranging and delivering an eight week handwriting programme as detailed in section F of her son’s EHC plan from December 2019. The Council only completed the assessment after Ms B chased this up in February 2020;
      2. the Council’s inadequate and delayed handling of the handwriting assessment meant that in order to avoid further delay Ms B delivered the eight week provision because by the time the Council completed the assessment the Covid-19 lockdown had started and provision could not be made in school. The eight week provision was not completed until June 2020;
      3. failed to put in place mental health support for X between March and July 2021 because the mental health practitioner who had been providing this support left CAMHS in March 2021 and the Council failed to ensure a new practitioner was identified promptly. The Council also wrongly suggested unsuitably qualified practitioners could complete this work after March 2021. Ms B says he agreed a new suitable CAMHS practitioner by dealing directly with CAMHS about this in July 2021;
      4. delayed handling Ms B’s complaint, wrongly failed to uphold the complaints detailed in a), b) and c) above and so failed to put in place adequate remedies for these parts of her complaint; and
      5. failed to do what it did agree at the end of the stage 2 consideration of the complaint: it failed to issue the agreed written apology and there is no evidence of its completion of the service improvements detailed in points 3 to 10 of the stage 2 letter.

The injustice Ms B claims is that her son wrongly had to wait for provision to be made when he needed it and that she had chase up missed provision, secure the mental health provision, complain to get the provision in place and deliver the handwriting course.

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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. 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 discussed the complaint with Ms B and considered the written information she provided with her complaint. I made written enquiries of the Council and considered all the information before reaching a draft decision.
  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.
  3. Ms B and the Council 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

What should have happened

  1. A child with special educational needs may have an Education, Health and Care Plan (EHC Plan).
  2. The EHC plan is set out in sections which include:
    • Section B: The child or young person’s special educational needs. 
    • Section F: The special educational provision needed by the child or the young person.  
  3. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
  4. The relevant legislation recognises that there may be times when an EHC Plan may need to be amended as a result of minor or specific changes in circumstances but where a full review or re-assessment is not necessary.
  5. The Council’s corporate complaints procedure states it will provide a response to a written complaint within 20 working days. It says that if complainants are dissatisfied with the outcome of their complaint they can then ask for reconsideration within 20 working days and that a further response will then be provided after a further investigation, review of the stage 1 response and that this will be provided within 20 working days. There is a statutory complaints procedure for certain complaints about children’s services provision: this comprises three stages. At the second stage of that procedure an investigator and independent person are appointed to consider the complaint. They investigate and produce a report within 20 working says up to a maximum of 65 working days.

Background

  1. X is now 9 years old and diagnosed with an Autistic Spectrum Disorder. X first had an EHC Plan in 2018. This was amended in December 2019 and again in December 2020 and July 2021.

What the EHC Plan says

  1. In relation to the issues raised in this complaint:
    • Section F of the December 2019 EHC Plan includes provision of a handwriting programme to be delivered by the NHS paediatric OT service. A named was practitioner to deliver this and is specifically identified. The provision was to be a one off initial assessment and a session to demonstrate the exercises which would then be delivered to X individually for fifteen minutes daily by a teaching assistant. It was to be reviewed after a term and then a final assessment undertaken; and
    • Section F of the December 2020 EHC Plan includes sessions with a mental health practitioner to teach X about anxiety, the purpose of anxiety and coping techniques and strategies to reduce his symptoms of anxiety. The Plan states that X’s parents would attend these sessions, that they would comprise a one hour session online once every two weeks and a face to face session once a month. A named practitioner is identified – a mental health nurse practitioner from Child and Adolescent Mental Health Service (CAMHS).

What happened

Handwriting provision

  1. The Council says it took no action to put the handwriting provision in place between December 2019 and March 2020 because it was the responsibility of the Occupational Therapy service to deliver this and so the Council did not monitor this. The Council says however that when Ms B told the Council in early February 2020 that the provision was not being delivered it contacted the Occupational Therapy (OT) Service about this immediately. The OT then completed the handwriting assessment in m id-February but unfortunately the delivery was not then undertaken by the time of the national lockdown period due to Covid-19 in March 2020. In the end Ms B delivered the handwriting course.

Mental health support between March and July 2021

  1. The Council says it did not become aware that the mental health practitioner working with X would be leaving until Ms B advised them of this in early March 2021. Shortly after, Ms B confirmed in writing that the practitioner’s final day of work would be around mid-March and told the Council that CAMHS was not in a position to allocate a new mental health professional to see X before the end of April. She asked that the Council either intervene to ensure CAMHS provision before the end of March or it would need to find a therapist for him in the private sector. She then almost immediately sent a further email to the Council stating that she required confirmation either that a new therapist had been allocated at CAHMS or that one would be by the end of March or that the Council would provide her with a personal budget to enable her to buy in provision form the private sector.
  2. The Council contacted the CCG to enquire whether CAMHS was in a position to allocate a new suitable provider for X. CAMHS responded stating it could not provide a practitioner until April. The Council then emailed Ms B confirming this and agreeing to her request for a personal budget so that she could buy in provision from the private sector until a CAMHS worker could resume working with X. Ms B responded immediately stating X struggled with change due to his autism so she would require a personal budget until the end of the EHC Plan year or for CAMHS to arrange suitable provision from the beginning of April. The Council then offered a senior Educational Psychologist (EP) for Social, Emotional and Mental Health (SEMH) for April and May or another practitioner who had previously worked with CAMHS to make the provision. Following a telephone conversation with the senior EP Ms B agreed to the Senior EP making the provision if it would be permanent and detailed in his EHC Plan. The Council then issued proposed amendments but did not specifically name the EP instead stating the mental health support would be made by “a suitable professional specialising in social, emotional and mental health who is experienced in supporting children with ASD and co-morbid anxiety and OCD and appropriately qualified and trained”. Ms B would not agree to this and said she would seek a provider in the private sector. She cancelled a planned appointment for X with the EP for mid-April. She then submitted a complaint to the Council.
  3. Emails between Ms B and the Council in May 2021 demonstrate that Ms B arranged an appointment with a mental health professional she had previously identified in early April around the time she asked for a personal budget. She said that as a result of a Subject Access Request she submitted to CAMHS she had found out that X required Cognitive Behavioural Therapy (CBT). She asked the Council to amend the proposed EHC Plan to include provision of CBT of three one-hour sessions a month. She requested a higher personal budget in the form of a direct payment to pay for this. A session with that therapist went ahead but did not go well at which point Ms B asked for the previously identified EP to be put in place again. She said the only reason she had withdrawn her previous agreement for the EP was that she wanted the Council to confirm it would be permanent and that this would be reflected in the amended EHC Plan with the EP being named in that Plan.
  4. Following direct contact by Ms B with CAMHS in May 2020 (initially in the form of a complaint) and a referral by X’s paediatrician it agreed to appoint a new case manager with a view to making a referral for Cognitive Behavioural Therapy (CBT) for X.
  5. The Council says that in June CAHMS completed an assessment that identified a need for X to receive CBT and that following this a referral had been made and a suitable therapist identified who would provide weekly CBT for X.
  6. In July the Council issued a final amended EHC Plan which detailed a named CBT professional would provide weekly therapy to X.

Ms B’s complaint to the Council

  1. Ms B complained at stage 1 in early November 2020. She complained about the failure by the Council to arrange the handwriting course saying that the delay meant that she had to deliver it when she was home schooling during the Covid-19 lockdown from March 2020 and that this was entirely avoidable if the Council had made the arrangements promptly from December 2019.
  2. The Council provided its response in early December 2020. In its response the Council said that it understood that Ms B was not looking for a particular outcome on this complaint but that she wanted to raised issues of liaison with health providers and the Council’s duty to ensure provision was made in EHC plans. It also provided a response to concerns she had expressed after she made her complaint about the delayed handling of that complaint.
  3. Ms B then asked for the matter to be considered at stage 2 of the complaints procedure stating it was not the case that she was not seeking an outcome to her complaint. She complained at stage 2 on 7 December.
  4. The Council decided in February 2021 to ask for an independent investigation at stage 2. The investigator agreed a statement of complaint with Ms B and this was agreed between them in early March 2021.
  5. In mid-April 2021 Ms B complained again because more provision detailed in X’s EHC Plan was not being made. That complaint was added to the ongoing stage 2 consideration of the original; complaint.
  6. The stage 2 decision was issued in June 2021. This response took the form of a forty page report. It did not uphold Ms B’s complaint about the delay in arranging the handwriting course because the investigator considered that there had been a delay by the NHS in making provision but the Council responded promptly when Ms B made it aware of this delay. It partially upheld her complaint about delay in the complaints handling process agreeing there was delay at stage 2. It also partially upheld the complaint about the delay in putting in place mental health support for X after the previous mental health practitioner left with little notice in March 2021. A number of recommendations were made including an apology to Ms B for the upheld complaints and a time and trouble payment.
  7. The Council accepts that it failed to issue an apology for those parts of the complaint that were upheld. As a result of the complaint to this office and our enquiries we understand it has now issued this apology. The Council has confirmed that action was taken on all the other recommendations made as a result of the complaint investigation including a payment of £500 to acknowledge the time and trouble caused by having to make a complaint to resolve the complaint.

Was the Council and fault and did this cause injustice?

  1. The Council was responsible for arranging the handwriting provision which was detailed in Section F of X’s EHC Plan. It’s failure to take responsibility for this and to satisfy itself that the provision was being made amounts to fault. I accept that it seems likely that had the Council ensured that the handwriting provision was put in place promptly following its inclusion in X’s amended EHC Plan in December 2019 it seems likely that it could have been completed before the national Covid-19 lockdown and closure of schools in March 2020. So, I consider the fault caused injustice in the form of delay and lost opportunity for X to have received the course at school. I also consider it caused injustice to Ms B who had to source the provision and deliver it herself during the Covid-19 lockdown period in the Spring/Summer of 2020.
  2. With regards to the mental health provision, X’s EHC Plan named the mental health practitioner who was in post until mid-March 2021. The Council cannot guarantee that practitioners will continue to be employed or in the same role for long periods of time. So, when Ms B told the Council the practitioner was due to leave CAMHS it was then responsible for ensuring the provision continued to be made. The Council tried to do so promptly: in line with Ms B’s request, when it confirmed that CAMHS could not provide a new practitioner until late April, it agreed to provide a personal budget so that Ms B could employ a private provider. I have no reason to believe the Council would not have proceeded with this had Ms B not said that she wanted this arrangement in place for several months even though the CAMHS practitioner would have been available from late April. Instead, again in response to Ms B’s request, the Council then identified an Educational Psychologist for April and May 2021 with whom Ms B appeared to be happy but again said she wanted this to be long term provision. When the Council did not then name that professional in a proposed revised EHC Plan Ms B said she no longer agreed to that professional providing X’s mental health support. It seems that Ms B then went directly to CAMHS and following CAMHS assessment CBT was identified as what X needed to meet his mental health needs and the EHC Plan was amended accordingly. Ms B had also told the Council that she would revert to finding a private provider and email correspondence between Ms B and the Council appears to confirm the Council continued to accept that it would make a personal budget available for this. On balance, therefore, I do not consider the Council is at fault in relation to this part of Ms B’s complaint. This is because it made arrangements promptly which would have meant that there was little, if any, gap in provision of mental health support for X provided by a suitably qualified professional and so the period of no provision between mid-March and July was avoidable and not attributable to the Council. I recognise that Ms B wanted to try to ensure consistent provision rather than have a change of practitioner but councils can never entirely ensure that staff will not leave and can only try to ensure that new provision is made promptly and by a suitably qualified professional. I am satisfied that this is what happened in this case.
  3. The Council issued an amended plan when the new provision was agreed by CAMHS in July 2022. It could have proceeded to issue a final amended Plan in March or April detailing the provision it had agreed with Ms B in the form of the EP. It did not do so as Ms B was dissatisfied with the wording of the proposed amended Plan. Had it issued such a revised Plan in final form this would then have enabled Ms B to appeal to the SEND Tribunal. I have considered whether this amounts to fault. On balance I do not consider it should given the circumstances: namely the Council had agreed to put in place arrangements for ongoing provision by agreeing to put in place a personal budget as Ms B had requested until a suitable CAMHS professional was available. And, I do not consider its decision to continue to try to work with Ms B to try to agree a provision before issuing a final amended Plan meant that Ms B was disadvantaged. This is because there is commonly a wait of around six months for the SEND Tribunal to hear an appeal and so the provision was resolved before any appeal to the Tribunal would have been heard.
  4. I consider the handling of Ms B’s complaint was significantly and unnecessarily delayed. A response to Ms B’s complaint in early December 2020 regarding the handwriting provision should have been provided by January. Instead the Council asked for an independent investigation that was not finalised until June 2021 though this did include a response to the complaint submitted about the mental health provision which was only submitted in April 2021. I am unclear overall why it took this approach to the original complaint: the complaint was not one that qualified for consideration under the children’s statutory procedure which would have taken an approach to the one undertaken here but, even if it had, a response should have been provided much more promptly. I assume the Council was trying to take a thorough and clearly independent approach but this served to delay its consideration. I find the response on the handwriting complaint was avoidably delayed by around six months and that this caused Ms B injustice in the form of avoidable frustration. I do not consider the response to the April 2021 complaint was significantly delayed. In its comments the Council has already acknowledged that its approach led to delay and that its processes have now been “reviewed and streamlined”.
  5. With the exception of the written apology to Ms B I am satisfied that the Council took acceptable action to address shortcomings identified in the stage 2 investigation.

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Agreed action

  1. The Council will issue the written apology it agreed to provide following the Council’s investigation of her complaint and a further apology for the faults identified with regard to the handwriting support and the handling of her complaint about this. It will do this within a month of the date of the final decision on this complaint.
  2. The Council has already offered a payment of £500 for the poor handling of the complaint. Were I to ask the Council to make a payment to further recognise the injustice I would ask it to make a payment of £150 to recognise the delay in the handling of the complaint about the handwriting provision. In addition I would ask it to pay a further £300 to recognise the injustice to Ms B and X by the delayed handwriting course provision. As the Council has already make a payment in excess of this total of £450 I consider it has already made a payment that sufficiently recognises the injustice caused and so I am not asking the Council to make any further payment now.

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Final decision

  1. I have completed my investigation and issued a final decision statement on this complaint. The Council was at fault in relation to the complaint about the provision of handwriting support and that its handling of part of Ms B’s complaint to the Council was avoidably delayed.

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Investigator's decision on behalf of the Ombudsman

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