Summary: There was fault by the Council which did not issue Mr Y’s final Education, Health and Care Plan within the timescales required by a Tribunal’s order. This caused avoidable frustration and uncertainty. The Council will apologise, make symbolic payments, fund a specialist advocate, arrange and take part in mediation and issue an amended final plan.

The complaint

1. Ms X complained the Council:
1. Failed to comply with an order by the SEND tribunal to make and maintain an Education, Health and Care Plan (EHC Plan) for her son Mr Y.
2. Did not follow her wishes on consent. She withdrew consent for the Council to access and share information about Mr Y’s health.
3. Did not consult with the professionals she was paying to support and treat Mr Y and only consulted with an NHS service that wasn’t providing ongoing care or treatment.
2. Ms X also complained about a failure to deal with her request for a personal health budget.
3. Ms X said this caused avoidable distress and costs because she paid for a professional to go through all the specialist reports and identify provision. She said it also caused Mr Y a loss of education, health and social care provision.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. I have investigated Mrs X’s complaint although issues happened more than 12 months ago from the date of the complaint to us. This is because she was occupied using the NHS complaints procedure and was also dealing with a traumatic bereavement.
7. If we are satisfied with an organisation’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)
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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What I have and have not investigated

9. I have investigated the complaint in paragraph one. I have not investigated the complaint in paragraph two because personal health budgets are the responsibility of the local NHS Integrated Care Board (ICB). We have no power to investigate complaints about the NHS unless we are conducting a joint investigation with the Parliamentary and Health Service Ombudsman, which does not apply to this complaint.

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How I considered this complaint

10. I considered Ms X’s complaint, the Council’s response and documents set out in this statement. I discussed the complaint with her and she provided further information following the discussion.
11. I have not referred to every piece of evidence available from Ms X, but I have considered all her documents.
12. Ms X and the Council received two drafts of this statement and provided comments and additional documents. I considered these before making a final decision.

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What I found

Relevant law and guidance

13. Under the Equality Act 2010, public sector organisations like councils must make changes in their services to ensure they are accessible to people with disabilities. These changes are called ‘reasonable adjustments’.
14. Adjustments only have to be made if it’s reasonable to do so. We expect to see organisations considering things like how practicable the changes are, if the changes would overcome the disadvantage disabled people experience.
15. There are three ways organisations may make adjustments:
• changing the way things are done (a provision, criterion or practice);
• changing a physical feature; 
• providing extra aids or services (auxiliary aids and services).
16. A child or young person with special educational needs may have an 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.
17. The SEND Code of Practice is statutory guidance that we expect councils to follow. It says:
• Decisions about personal health budgets are the responsibility of the Clinical Commissioning Group (now called Integrated Care Board, but I have referred to it as the CCG as this was its name at the time). (Paragraph 9.109)
• Councils must consult the child/young person and their parent throughout the process of assessment and production of an EHC Plan. Councils must have regard to the views, wishes and feelings of the child/young person and their parents (Paragraph 9.21)
• The assessment and planning process should bring together relevant professionals to discuss and agree together the overall approach. (Paragraph 9.22)
• During the needs assessment process, a council must seek advice from an Educational Psychologist, health professionals with a role in relation to the child’s health and any person requested by the parent or young person where the council considers it reasonable to do so (Paragraph 9.49)
• Some children and young people will require support from an advocate to ensure their views are heard and acknowledged. Councils should ensure those who need advocacy, have access to it (Paragraph 9.25)
• Councils must discuss with the child/young person and their parents what information they are happy for the council to share with other agencies. A record should be made of what information can be shared and with whom (Paragraph 9.34)
18. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan, about the content of the final EHC Plan and about the named placement. Parents must consider mediation before deciding to appeal and obtain a mediation certificate. 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.
19. Regulation 44 of the SEND Regulations 2014 says:
• Where a tribunal order requires the council to make and maintain an EHC Plan it must issue a draft plan within five weeks and a final plan within 11 weeks of the order. (Regulation 44(2)(c))
• A council doesn’t have to comply with the time limits above if it is impractical to do so because exceptional circumstances affect the young person or their parent, they are away from the area or circumstances in Regulation 13(3) apply.
20. Regulation 13(3) of the SEND Regulations 2014 says councils do not need to comply with the time limits in the previous paragraph if it is impractical for any of the reasons in Regulation 10(4)(a) to (d) which are:
• Advice is awaited from a headteacher of a school/college which is closed
• Exceptional circumstances affect the young person or parent or they are away from the area.

What happened

Background

21. Mr Y is a young adult with autism and mental health problems. Ms X told me she paid for his education at a private school and he passed all his GCSEs there. Ms X explained she had not applied for an EHC Plan before because Mr Y’s private school provided him with an appropriate education. Mr Y started a course at a state college after GCSEs, but he became mentally unwell and was admitted to a psychiatric hospital at the end of 2020.
22. Ms X applied for an EHC needs assessment and the Council completed one. The Council decided not to issue an EHC plan. Ms X appealed this decision to the SEND Tribunal.

2021

23. In October 2021, the SEND Tribunal ordered the Council to make and maintain an EHC Plan for Mr Y.
24. The Council issued a draft EHC Plan in November 2021. It sent a cover letter to Ms X with the draft EHC Plan asking for her comments. The draft plan contained special educational provision in section F. Section G noted consent had been withdrawn and so current recommended health provision was not known. Section K listed the advice the Council had taken into account in devising the draft EHC plan. The advice included:
• Information from Ms X and Mr Y
• Reports from Mr Y’s private psychiatrist (March 2021) and private counsellor (February 2021). The former said Mr Y met the criteria for an EHC Plan and the latter said he needed a structured therapeutic day.
25. Ms X responded to the draft EHC Plan saying she and Mr Y had withdrawn their consent for the Council to access information from health and social care teams within Essex Partnership University Trust about Mr Y. She went on to say that they no longer wanted any connection with the Council. Ms X told me the reason she withdrew consent was because the Council refused to consult Mr Y’s (private) treatment team and kept consulting an (NHS) team who were not assessing or treating him.
26. The manager responded saying she had contacted the NHS mental health team (who had provided services to Mr Y in the past) to obtain relevant data to inform Mr Y’s EHC Plan.
27. In a statement for this investigation, the manager said she tried to work with Ms X but Ms X withdrew consent after receipt of the draft EHC Plan and so this limited the quality of information that could be included in it. The manager went on to say the SEND team in Southend was a small one and she was the only member of staff who dealt with tribunal cases and so there was no one else who could manage Mr Y’s case.
28. Ms X said in an email that she could no longer work with the manager because she (the manager) had made safeguarding referrals and behaved poorly in a previous mediation. The manager replied saying she would limit any further contact with Ms X and asked her to respond fully to the draft EHC Plan.
29. The Council applied to the SEND Tribunal in November. It asked for a review of the decision to make and maintain an EHC Plan for Mr Y because consent for sharing and accessing information had been withdrawn. The Tribunal declined to amend the order. It concluded the change of circumstances was relevant to implementation of the order rather than the decision. It noted the withdrawal of consent may lead to the position that the Council could not implement the Tribunal’s order.
30. The manager emailed a copy of Mr Y’s draft EHC Plan to the NHS mental health team which had previously treated Mr Y and asked for a mental capacity assessment of his capacity to decide to withdraw permission to share information.
31. Ms X said in an email to the Council in December that Mr Y needed:
• Up to 10 hours a week of martial arts teaching/mentoring including PE, dyspraxia and dyslexia support.
• Bespoke carers/training advice as the universal careers advice service would not/could not provide this.
32. Ms X went on to say she was unwell and could not put the EHC Plan together on her own and she expected the plan to take shape as soon as they were well enough to fully engage.
33. The manager and Ms X continued to exchange emails. In December, the manager offered a meeting with Ms X.
34. The Council did not issue a final EHC Plan.

2022

35. In April 2022, Ms X emailed the Council asking for a personal budget for a coach for Mr Y.
36. In May the Council shared a copy of Mr Y’s draft EHC plan with the CCG in response to a request from it. (The CCG was meeting with Ms X to discuss her application for a personal health budget).
37. In June, Ms X emailed the Council asking for costs of £700 she said she had incurred taking Mr Y’s case to the tribunal. The Council replied saying there was free advocacy support available and the tribunal did not make an award for her costs and so the Council would not pay these.
38. Ms X contacted her local councillor about Mr Y’s case. An email exchange between officers and the councillor in June set out Ms X’s requests for a personal budget to pay for education provision for Mr Y:
• A structured therapeutic day
• Disability social care
• Mentoring
• Martial arts
• Drama course at a named college.

2023

39. In January 2023, Ms X emailed a councillor and said Mr Y was unwell and needed an education at home. She asked for contact from someone to discuss co-production of his EHC plan.
40. The Council’s response to the complaint in January 2023 said an officer had offered to meet with her and Mr Y to discuss co-production of the EHC Plan. The response denied leaving Mr Y to deteriorate to save money.
41. Ms X had complained to the Parliamentary and Health Service Ombudsman (PHSO) in 2021. When considering her NHS complaint, PHSO identified matters that were within the LGSCO’s remit and with Ms X’s permission, referred those matters to us in January 2023.
42. A private psychiatrist’s report in January said Mr Y was not leaving his bedroom and it was vital he had the right support and a therapeutic tuition package.
43. A further report from Mr Y’s private psychiatrist in May 2023 refers to a recent consultation with him. It says “in my opinion Mr Y is ready to engage with a programme that will help and support him in his independent development…. I would suggest he is supported with active engagement through a therapeutic tuition package.”
44. A recent email from a Team Manager to Ms X declined to pay for an advocacy service Ms X had requested and gave her details of free advocacy services. Ms X said those services had limited capacity to assist and were not able to meet her communication needs.

Comments and information from Ms X

45. Ms X told me at present Mr Y cannot leave the house and can only brush his teeth.
46. Ms X said she was unhappy with the draft EHC Plan the Council issued in November 2021 because the suggested provision was not suitable for Mr Y and there was no health provision. She said she withdrew consent because the NHS team was not working with Mr Y and the Council would not contact the private team.
47. Ms X also told me she is autistic and has been badly affected by trauma in her life relating to the death of one of her other children, disputes with the Council over SEN and social care provision for her other child and by the death of another relative. She told me she struggles to complete tasks. She does not think she can manage mediation and then have to fight Mr Y’s case at a tribunal if she does not accept the provision on Mr Y’s final EHC Plan that the Council may issue in future.
48. Ms X said Mr Y has missed out on three years of education and training that private professionals have recommended.
49. Ms X also provided me with a psychiatric report she obtained during my investigation. The report said she has post-traumatic stress disorder (PTSD) and autism. The psychiatrist said their opinion was Ms X needed advocacy in place for meetings and was presenting with acute trauma symptoms and was likely to find meetings with the SEND team triggering.

Comments from the Council

50. The Council told me it had not finalised Mr Y’s EHC Plan because:
• It could not do so without his consent to share information with the NHS.
• Ms X had said the family no longer wanted any involvement with the Council’s SEN team.
• Mrs X said the family was not well enough to engage.
• Ms X has requested a structured therapeutic day as suggested by clinicians where he was an inpatient and by his private psychiatrist. This cannot be achieved without access to advice from the Trust.
• Ms X has recently resumed contact with the Council and with her/Mr Y’s permission, the plan can be finalised.
• The tribunal acknowledged that the Council may not be able to implement the order because of consent issues

Action the Council has taken during my investigation

51. During this investigation, the Council issued a final amended EHC Plan for Mr Y. This was the same in content as the draft plan and it did not name an educational setting.

Was there fault and if so did this cause injustice?

Complaint (a): The Council failed to comply with a tribunal order to make and maintain an Education, Health and Care Plan (EHC Plan) for her son Mr Y

52. The Council issued a draft EHC plan for Mr Y in November 2021. This was within, or very close to the five-week timescales required in Regulation 44 of the SEND Regulations and so was not fault.
53. The Council did not finalise the EHC plan within 11 weeks as required by Regulation 44. I do not consider any of the exceptions in Regulation 13 of the SEND Regulations applied. I note the Council was hindered by the withdrawal of consent and by Ms X and Mr Y’s withdrawal of co-operation. I have also taken into account emails from Ms X at the end of 2021 saying she and Mr Y were too unwell to engage. But there are also later emails in April 2022 which indicate her desire to engage including emails setting out the provision she was seeking (see paragraphs 32 and 39.)
54. Taking all the evidence summarised in the previous paragraph into account, the Council should still have issued a final plan within 11 weeks of the order, based on the draft plan it had issued in November 2021 and despite Ms X’s withdrawal of consent. It is likely a final EHC Plan would have mirrored the draft plan which Ms X was unhappy with. It likely would not have had a placement named in Section I, but possession of a final plan would have given Ms X a right of appeal to the SEND Tribunal and meant the Council had complied with its statutory duties.
55. The failure to issue a final plan caused avoidable distress and denied Ms X a right of appeal. I note Ms X does not want to appeal and has said she is not mentally well enough to do so. But the SEND Tribunal is the statutory body for resolving disputes about placements and SEND provision and we expect complainants to use it.
56. The failure to issue a final EHC Plan also likely denied Mr Y some education provision. The specifics of this are not yet known. Ms X seeks a financial remedy for loss of education provision for Mr Y. My view is this loss is speculative. But there is avoidable uncertainty for Ms X and Mr Y about what Mr Y may have been entitled to receive by way of provision. Ms X considers the Council is required to secure the provision the private professionals have mentioned in their reports. This is not the case. The Council may take their recommendations into account, as well as the views of Ms X and Mr Y. But the final decision about special educational provision is the Council’s.
57. The Council did not have due regard to the principles in the Equality Act 2010 to consider making reasonable adjustments when engaging with Ms X and this was fault. The duty is anticipatory. The Council is aware of Ms X’s trauma due to previous dealings with her. It should have considered this in the context of dealing with her in relation to Mr Y’s SEN and it should have considered whether it was reasonable to engage specific specialist advocacy support for her to enable the EHC Plan to be finalised. This was also not in line with Paragraph 9.25 of the SEND Code of Practice.

Complaint (b): The Council did not follow Ms X’s wishes on consent. She withdrew consent for the Council to access and share Mr Y’s health data

58. Mr Y is an adult who wishes Ms X to represent him. The Council has accepted Ms X as his representative and has liaised with her directly. This was appropriate and not fault.
59. I do not regard the Council’s action in seeking of information from NHS mental health services in November 2021 to be fault because Ms X and Mr Y had given general implied consent for information sharing when Ms X requested an EHC needs assessment. The process of completing an EHC needs assessment requires information gathering from other bodies. My view is the Council was entitled to rely on that consent in seeking information from the NHS, even though Mr Y’s case was not ‘open’ to the mental health team. I note Ms X is seeking health provision as part of Mr Y’s EHC Plan and so clearly the Council was going to need to request information from the NHS about relevant health needs to inform the EHC assessment and plan.
60. Ms X told the Council in the middle of November 2021 (on receiving the draft EHC Plan) that they no longer gave consent for information sharing with the NHS. The records indicate the Council sent a copy of Y’s draft EHC plan to the CCG on two occasions after consent had been withdrawn (see paragraphs 30 and 36). This was fault and not in line with Paragraph 9.34 of the SEND Code of Practice. It caused avoidable distress and a further deterioration in relationships.

Complaint (c): The Council did not consult with the professionals Ms X was paying to support and treat Mr Y and only consulted with an NHS service that wasn’t providing ongoing care or treatment.

61. There is no fault in the Council consulting with NHS mental health services although there was no ongoing mental health provision. There may have been relevant information about Mr Y’s mental health needs which would have been important to include in his final EHC plan. The Council is not at fault because it was acting in line with Paragraph 9.49 of the SEND Code of Practice.
62. Section K of the draft EHC Plan includes the information the Council considered. This includes two reports from the private therapist and private psychiatrist. There is no fault because this was in line with Paragraph 9.49 the SEND Code of Practice: the Council considered Ms X’s request to consult private health professionals and included their reports in drawing up the draft EHC plan. Ms X says the Council refused to consult with the private professionals, but this is not the case because their advice is referenced in Section K of the draft EHC Plan.
63. As I have set out in complaint (a) once consent was withdrawn, the Council should not have shared the draft EHC plan with the NHS.

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Agreed action

64. Our published Guidance on Remedies sets out the principles we apply when making recommendations. Our remedies are not punitive or compensatory. We consider the injustice caused as a result of the fault we have identified.
65. Our remedies seek to put the person back into the position they would have been in if the fault had not happened, but this is not always possible. Where a loss of education provision is speculative, we may recommend a symbolic payment instead to reflect avoidable uncertainty and distress. Because there is no final EHC Plan, I cannot say on a balance of probability what SEN provision Mr Y should have received. Ms X says the Council should have provided the education recommended by the private therapists she engaged. This is not correct. The Council should have taken into account the views of private therapists, but it isn’t obliged to provide what they have recommended.
66. Ms X seeks reimbursement of costs she incurred paying a professional to summarise reports for the Council to include in the final EHC plan. My view is this was for the Council to do and it was neither reasonable nor necessary for Ms X to incur these costs. So I am not recommending reimbursement.
67. Ms X also seeks independent SEND and social care practitioners to produce Mr Y’s final EHC plan. I am not making this recommendation because independent practitioners have no authority to commit the Council to funding provision. The Council needs to be the body which completes the final amended EHC Plan in consultation with Ms X.
68. Within one month of my final decision, the Council will:
1. Apologise to Ms X and Mr Y for the avoidable distress, frustration and uncertainty caused by the failure to issue a final EHC Plan.
2. Make Ms X and Mr Y a symbolic payment of £500 each to reflect the avoidable distress, frustration and uncertainty.
3. Appoint an independent mediator and arrange a mediation meeting.
4. Appoint a named case officer from the SEND team who has had no previous involvement with the family. I have recommended this because relationships with staff previously involved would not appear to be productive ones and would likely not move the case forward.
5. Seek up-to-date advice from the private psychiatrist and counsellor and from any other private professionals who have been treating Mr Y if the Council considers this reasonable. If it does not consider it reasonable, explain why in writing.
6. Fund up to 10 hours of specialist independent advocacy for Ms X with the specialist service she has identified as a reasonable adjustment. This funding needs to cover a pre-mediation meeting between the advocate and Ms X, for the advocate to represent her at mediation meeting(s) and make any reasonable written submissions to enable issuing of Mr Y’s further amended EHC plan. The purpose of specialist advocacy is to address Ms X’s communication needs arising from PTSD.
7. Take part in mediation session(s) and then issue a further amended EHC Plan for Mr Y.
69. If agreement on the content of the amended EHC Plan cannot be reached (that is, if mediation is unsuccessful), then the Council needs to issue Mr Y’s further amended EHC Plan within two months of my final decision. This will then give Ms X a right of appeal to the SEND Tribunal.
70. The Council should provide us with evidence it has complied with the above actions.

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Final decision

71. There was fault by the Council which did not issue Mr Y’s final Education, Health and Care Plan within the required time causing avoidable frustration and uncertainty. The Council will apologise, make payments, fund specialist advocacy with Ms Y, arrange and take part in mediation with her and issue an amended plan.
72. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman