Surrey County Council (23 003 786)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 28 Mar 2024

The Ombudsman's final decision:

Summary: Mr M and his mother complain the Council left him without education from 2019. It delayed reviewing his Education, Health and Care Plan, did not respond to their request to explore a personal budget and delayed referring them to the Council’s Adult Social Care service for an assessment. We will not investigate some parts of Mr M’s complaint. But we have found fault with the parts we have investigated. The Council has agreed to our recommendation of an improved remedy to that which it had offered.

The complaint

  1. The complainants (whom I shall refer to as Mr M and his mother Mrs M) complain:
    1. the Council left Mr M without any education from 2019;
    2. in its Education, Health and Care (EHC) needs assessments, the Council did not ask for assessments from the full range of professionals needed to carry out a complete assessment;
    3. a caseworker carried out a review of the EHC Plan, but then left without keeping a record. This meant they had to go through everything again with a new caseworker, which was distressing;
    4. the Council says the new caseworker carried out an annual review of the EHC Plan. But she did not inform the family the meeting was a review. And the Council did not involve all the professionals the SEND Code of Practice says it should have;
    5. the Council has not answered their request for an EHC Plan personal budget;
    6. the Council delayed acting on Mrs M’s request for transition planning and an assessment from Adult Social Care (ASC).

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. 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)
  3. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
  4. 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.
  5. 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)
  6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

  1. Mr M and Mrs M complained to the Ombudsman in September 2023. But they had tried to complain in June 2023. As there is some evidence they had earlier tried to escalate their complaint with the Council (see paragraph 35), I have investigated matters from a year before June 2023 – so from June 2022.
  2. I have also used my discretion to look back to December 2021 about the delivery of the contents of Mr M’s EHC Plan. This is because the Council has accepted it was at fault for not delivering the contents of the Plan and has offered a remedy for that fault.
  3. But I have not investigated back to 2019, which is full scope of Mr M and Mrs M’s complaint a). Mrs M has explained they did not complain at the time as she did not have the energy strength and knowledge and expected the Council to do the right thing. While I understand those reasons, some time has passed after then without a complaint. So I do not consider the reasons are sufficient for me to extend further the period I have investigated.
  4. I have also not investigated Mr M and Mrs M’s complaint b). To do so would stray into the SEND Tribunal’s remit in trying to decide what the provision should/would have been. That is because it is for a council to decide what evidence it needs for an assessment. And if it does not consult a professional when doing an assessment, then the resulting plan is appealable.
  5. The Council issued its final EHC Plan in August 2023, although Mrs M says they did not receive it. That would mean she did not have the chance to appeal. But the Council agreed shortly after to carry out a new review. The decision on the new review will supersede the August 2023 Plan. Mrs M and Mr M can appeal that decision. In line with our procedures, the time we have investigated ends at the time Mrs M complained to us in September 2023. So any delays in the new assessment are outside the matters this investigation has considered.

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How I considered this complaint

  1. As part of the investigation, I have:
    • considered the complaint and the documents provided by Mrs M;
    • made enquiries of the Council and considered its response;
    • spoken to Mrs M;
    • sent my draft decision to Mrs M, Mr M and the Council and considered their responses.

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What I found

Legal and administrative background

Education, Health and Care Plans

  1. A child or young person with special educational needs may have an EHC Plan. This document 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 their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.
  2. As part of the initial assessment, councils must gather advice from relevant professionals, named in the Regulations (SEND Regulation 6(1)). The council may decide to seek additional advice, for example from an Occupational Therapist (OT) or Speech and Language Therapist (SaLT), or the child’s parent or young person may request this. The council should decide if this is necessary based on the individual circumstances of the case.
  3. The EHC Plan is set out in sections which include:
    • Section B: Special educational needs;
    • Section F: The special educational provision needed by the child or the young person;
    • Section I: The name and/or type of educational placement;
    • Section J: Details of any personal budget required to fund the provision in the EHC Plan.
  4. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The Regulations set out the procedure for carrying out a review. The annual review begins with consulting the child’s parents or the young person and the educational placement. The Regulations set out people a council must invite. (Section 20 Special Educational Needs and Disability Regulations 2014)
  5. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. The process is only complete when the council issues a decision about the review. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
  6. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.

Personal budgets

  1. A personal budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. A child’s parent or the young person has the right to request a personal budget when the council has completed an EHC needs assessment and confirmed it will prepare an EHC Plan. They may also request a personal budget during a statutory review of an existing EHC Plan.
  2. Personal budgets are either:
    • a fund arranged and managed by the person themselves;
    • a fund organised and managed by the council or a school;
    • a fund organised and managed by a third party on behalf of the child; or
    • a combination of these.
  3. If a council refuses a request for a personal budget, it must set out the reasons in writing and inform the child’s parent or the young person of their right to request a formal review of the decision. The Council’s personal budget policy says it deals with disputes about personal budget decisions through its complaint procedure.

What happened

Background

  1. Mr M has had an EHC Plan since December 2021, after he and Mrs M appealed an earlier decision by the Council not to issue a Plan. Mrs M says he has been out of school since 2019, after being unable to cope with mainstream education. Mr M’s 18th birthday was in early 2022.
  2. The EHC Plan included:
    • a home tuition plan of support;
    • no specific occupational therapy provision;
    • some speech and language therapy that was school based.
  3. Shortly after issuing the EHC Plan, the Council’s officer clarified with Mrs M the home tuition provision was an interim measure, while Mr M could not attend formal education. The Council had agreed that package until the end of the academic year. It intended to review the package and the next steps for the following academic year in the 2022 Summer Term. The Council also contacted Child and Adolescent Mental Health Services (CAMHS) and adult mental health services.
  4. In March 2022 the Council offered Mr M a placement with a home learning tutorial service (which I shall refer to as Organisation 1). In May Organisation 1 contacted the Council to advise that Mr M was not engaging with its attempts to start to provide its service.
  5. Mrs M said Mr M would not be able to engage with any educational support until some provision was provided to address his mental health issues.

The first meeting

  1. In September 2022, Mrs M contacted the Council. She noted Mr M had had his EHC Plan for a year, but no provision had been delivered. At the beginning of October Mrs M, Mr M and Mr M’s representative from a voluntary organisation (whom I shall refer to as Ms P) met a case officer (whom I shall refer to as Officer 1). Mrs M says the purpose of the meeting was to review the EHC Plan. She says they also discussed new information following an NHS SaLT assessment and Mr M’s transition to ASC. Mrs M says after this meeting they did not hear again from Officer 1.

The second meeting and the first draft of the revised EHC Plan

  1. In January 2023 Mrs M contacted the Council and spoke to its duty officer. The officer advised:
    • they could complain at any time;
    • she had not found a record of the earlier meeting. She asked Mr M and Mrs M to advise how they wanted to continue. The Council could make changes to the EHC Plan and make a referral to its ASC Transitions Team.
  2. Mrs M complained about the lack of an annual review of the EHC Plan, no transition planning and poor communications from the Council.
  3. The Council appointed a new officer to act as Mr M’s caseworker (whom I shall refer to as Officer 2). Ms P contacted Officer 2 to advise what had been agreed at the October meeting with Officer 1.
  4. At the end of January Mr M and Mrs M had a meeting with Officer 2. In its complaint responses the Council says its view was Officer 2 (who no longer worked for the Council) intended this to be a review meeting of Mr M’s EHC Plan. it recognised Officer 2 had not:
    • followed the correct process;
    • given a formal invitation to the family;
    • followed timescales; or
    • issued the correct review paperwork.
  5. In its February complaint response, the Council apologised it had not acted in line with its statutory duties with its review. And that it had not made a referral to its ASC team, which it accepted it should have done in October 2022. It advised a new case officer would be in touch to arrange a meeting to discuss Mr M’s EHC Plan. The officer would then make any amendments needed and issue a revised EHC Plan.
  6. Later in February the Council issued a draft EHC Plan. Ms P acknowledged the Council’s “…first draft of the EHC [Plan]”. She commented on the draft and:
    • asked about a possible use for a personal budget;
    • advised the December 2021 EHC Plan’s assessment had included an educational psychologist’s assessment that was carried out on-line due to the COVID-19 restrictions. Mr M and Mrs M believed that format was not suitable for Mr M, meaning the resulting report was “suboptimal”.
  7. Mrs M replied to the Council’s complaint response asking for the Council to take several steps:
    • to chase a referral to its ASC Transitions Team;
    • an occupational therapy assessment;
    • information about options for a personal budget;
    • a request for an outline of the plan of action for addressing Mr M’s educational needs;
    • an apology to both Mr M and Mrs M.

In its later complaint response the Council says it treated this contact as a request for action rather than a further complaint. So it closed its complaint file.

  1. In March the Council refused Mrs M’s request for a new educational psychologist’s assessment.

The second draft of the revised EHC Plan

  1. At the end of March the Council issued an amended draft of Mr M’s EHC Plan. The Council says the reason it issued a revised draft, rather than a final Plan, was because the family wanted to continue negotiations. But also because of “…a period of recruitment/capacity challenges and change of case officer”.
  2. In early April the Council’s SEND Team asked its Educational Psychologist Team about the request for a new psychologist’s assessment. The advice received was that one was not necessary.
  3. Later in April Ms P wrote to the Council asking for a reassessment, as Section B of Mr M’s EHC Plan no longer reflected his needs. Ms P again requested educational psychologist and OT assessments.
  4. Mr M, Mrs M and Ms P had some meetings with a manager (Officer 3) to discuss their concerns. In a second meeting, they mentioned they wanted an assessment and support from a named therapeutic service (Organisation 2).

The third copy of the EHC Plan

  1. At the end of May Officer 3 sent Mr M another version of his draft EHC Plan. Her records at the time note:
    • Mr M’s GP had advised the NHS did not have provision available to address his mental health concerns;
    • Mr M was seeking therapeutic support from Organisation 2;
    • Mr M wanted an OT assessment to understand his sensory needs;
    • Mr M continued to request an educational psychologist assessment “…despite my explanation that underlying cognitive levels/ability will remain the same”.
  2. Mr M, Mrs M and Ms P had two further meetings with Officer 3. Her follow up emails from those meetings:
    • sent Mr M a referral form for Organisation 2;
    • acknowledged they had sought a copy of the current (December 2021) EHC Plan. Officer 3 noted this was dated, which is why she had recommended they complete the review, to give them rights of appeal.

The new complaint

  1. In June 2023 Mrs M first contacted the Ombudsman asking to complain. As they had not completed the Council’s complaints procedure, we asked Mrs M to first do this. In August, in response to Mrs M’s complaint, the Council noted:
    • it had not adhered to the relevant legislation and guidance. So it upheld the complaint;
    • partly the faults had happened because of staff absence due to sickness and “staffing issues” meaning Mr M had not had any consistency in his case. The service recognised it needed to better manage when it had long-term staff absence;
    • Mr M had not received the provision identified in his EHC Plan, from December 2021;
    • the service would consider how best to remedy the SaLT sessions Mr M had missed from December 2021.

The final EHC Plan

  1. In August the Council issued its final EHC Plan. It noted Mr M was out of education, had a tailored package of support and had no identified social care needs. No educational establishment was named. The section for a personal budget was marked “n[ot]/a[pplicable]”. In response to my draft decision Mrs M advised they did not receive a copy of that Plan.

After the EHC Plan and the Council’s remedies

  1. At the end of September the Council contacted Mr M and Mrs M with letters of apology. The letters advised, that as remedies for the faults it had identified, it offered:
    • a full reassessment of Mr M’s needs, so the Council could understand his support requirements that would allow him to access education;
    • £300 each to Mr M and Mrs M in recognition of any contribution made to anxiety or distress due to the delays identified;
    • £2700 to Mr M in recognition of missed education from December 2021 to be used for educational purposes;
    • £360 to Mr M for the 4.5 hours missed speech and language therapy sessions.
  2. Mrs M responded to the Council’s letter setting out their concerns the Council’s proposed reassessment might not need Mr M’s needs, including that it had not mentioned Organisation 2 in its response. She also asked about using Mr M’s personal budget to commission services that might benefit him.
  3. In September Mr M and Mrs M complained to the Ombudsman. In response to my enquiries, the Council advised:
    • during its review by managers and through its complaint procedure, it had noted the complainant’s concerns with its administration of Mr M’s review and that it had not followed the statutory procedure. But it took the view it was best to finalise the Plan to limit the delay and give Mr M appeal rights;
    • it apologised for a “potential lack of process knowledge by a locum officer” (Officer 2). Its records did not show Officer 2, or any other officer, had made a referral to the Council’s ASC service, after a January 2023 handover. It first told its ASC team of a request for support in May 2023;
    • its new EHC needs assessment was not complete, as some assessments were outstanding;
    • from the first request Mr M had shown the need for mental health support and had appeared to fall through multiple gaps;
    • it offered to fund an assessment at Organisation 2, something Mr M and Mrs M had sought. It has confirmed it has now made that referral.

The social care assessment

  1. At the end of July 2023 and again in August, a social worker from the Council’s ASC team met with Mr M and Mrs M about his social care needs.
  2. There was a further assessment in September. The Council’s October view was Mr M did not have eligible need for a Care Act package of care and his needs could be met through universal services and support from his family.
  3. In response to my draft decision, Ms M advised the Council has now assessed Mr M as having eligible needs and the Council is putting together a package of care.

Was there fault by the Council?

  1. The Council has accepted that, from the time of its December 2021 issue, it did not deliver the contents of Mr M’s EHC Plan. I agree that this was fault.
  2. On the balance of probabilities, Council officers likely met Mr M and Mrs M in both October 2022 and January 2023 with the intent of reviewing the Plan, but did not follow the correct process. My decision is both meetings demonstrate fault.
  3. At the latest the Council should have completed a review of Mr M’s EHC Plan within a year – that is by December 2022. But it did not issue a decision on the Plan until August 2023. That was a delay of around eight months and fault.
  4. Mrs M says they did not receive that Plan. But given the Council agreed to a further review/reassessment shortly after, there is not enough extra injustice to warrant further investigation of that matter.
  5. The Council’s officer said to Mr M and Mrs M that its intent was the December 2021 plan was ‘interim’. And it intended to review it before the start of the Autumn 2022 term. It did not do this and my decision is that was a further delay. So, in addition to the delay when compared to the statutory time limits, there was a further delay of around five months from when the Council advised Mr M and Mrs M it intended to carry out a review. That makes a total delay of around 13 months.
  6. After the January 2023 meeting, the Council issued a draft EHC Plan in February. It followed this up with two further drafts, in March and May. I note the Council was trying to meet Mr M and Mrs M’s wishes in continuing to work with them on the contents of the Plan. But issuing multiple drafts contributed to the delay. That was fault.
  7. Despite asking several times for a personal budget, the Council has not provided Mrs M with a response to that request. My decision is that was fault. It is unreasonable to expect parents to provide all the information needed without any guidance. If the Council had considered and refused the request, it should then have told Mrs M that she could ask for a review of the decision.
  8. The Council delayed by about seven months in making a referral to its ASC Transitions Team for a social care assessment. My decision is that was fault.
  9. There is evidence of some poor communications and record keeping.

Did the fault cause an injustice?

  1. The Council has accepted Mr M did not receive the contents of his EHC Plan, including SaLT, from December 2021. That continued until August 2023 when it issued a final EHC Plan.
  2. The Council’s delay in carrying out a review of Mr M’s EHC Plan, with the associated faults about the way it carried out its assessment, caused a separate injustice to both Mr M and Mrs M. This was in the frustration and the uncertainty about whether things might have been resolved earlier but for the faults.
  3. Mr M and Mrs M have never had a written response to their multiple requests the Council advise if receiving a personal budget was an option. That is an ongoing injustice.
  4. The delay in the referral to the Transitions Team will also have caused some frustration. The Council at first assessed Mr M as not having eligible needs, although Mrs M says it has now changed that decision.

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Agreed actions

Personal remedies

  1. The Council has already offered remedies for distress to both Mrs M and Mr M and for Mr M’s missed educational provision. It has also made the referral to Organisation 2 Mr M and Mrs M have been seeking.
  2. My decision is, with reference to our Guidance on Remedies, the symbolic payments the Council has suggested are not enough for the injustice caused by the faults, for the reasons set out below. Mrs M has confirmed they have not received the earlier remedies.
  3. There were around five terms between the Council issuing the first EHC Plan and it issuing a revised EHC Plan. The Council has agreed to my recommendation that, (instead of the £2700 the Council has offered) it should make Mr M a symbolic payment of £7500 for that missed education. Mr M should use that, as he sees fit, for his educational benefit.
  4. The Council offered £300 each to Mr M and Mrs M in recognition of any contribution made to anxiety or distress due to the delays identified. The Council has agreed to my recommendation that it increase this to £500 each to recognise the distress caused by the delays and other faults.
  5. The Council offered a symbolic financial remedy of £360 for 4.5 hours (three terms’ worth) of missed speech and language therapy sessions. As my view is the injustice continued for five terms, it should increase the figure to £600. The Council has agreed.
  6. Mr M and Mrs M have been put to unnecessary time and trouble. The Council has agreed to my recommendation that it pay them each £100 as a symbolic recognition for that injustice.
  7. I also recommended the Council ensures its ongoing assessment includes a discussion with Mr M and Mrs M about their request for a personal budget. The Council has agreed.
  8. The Council should also provide Mr M and Mrs M with apologies for the faults identified in this statement.

Service improvements

  1. Where we find fault, the Ombudsman has powers to recommend an organisation makes improvements to its service. A recent public interest report from the Ombudsman noted the difficulties the Council was facing in its EHC assessments. That report sets out the steps the Council had taken to address delays and improve adherence to statutory timescales. These were set out in its ‘EHCP Timeliness Recovery Plan’. Our report made extra recommendations about democratic oversight and providing public information.
  2. In another recent Ombudsman’s decision the Council has agreed to develop a document and process to assist with the handover of EHC assessments between its officers.
  3. The issues this complaint is about pre-date the Council’s Recovery Plan and the new handover procedure. So I have not made recommendations that those processes address, as they should help to avoid a repeat of some faults identified in this complaint.
  4. But there are some extra learning points Mr M and Mrs M’s complaint highlights. So, within three months of my final decision, the Council has agreed to my recommendation that it takes the following actions.
    • It will provide training or guidance to relevant officers to ensure it responds to requests for personal budgets in EHC needs assessments and reviews;
    • The Council’s response to the Ombudsman noted a likely lack of process knowledge by a locum officer. This is worrying, given the process for EHC reviews is set out in the Regulations and statutory guidance. So, at a senior level, the Council should undertake a detailed review of the failings identified in this statement. The review should focus on the induction and support new SEND officers, including locum officers, receive.
  5. The Council should provide us with evidence it has complied with the above actions.

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Final decision

  1. I uphold this complaint. The Council has agreed to my recommendations, so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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