Summary: London Borough of Sutton and NHS South West London Integrated Care Board were jointly at fault for not providing health provision in Miss Y’s Education, Health and Care Plan. That put her at risk of harm and caused her distress and uncertainty. That fault also caused Miss Y’s father, Dr X, distress. Those organisations should apologise, carry out service improvements and make a symbolic payment to recognise the injustice Miss Y and Dr X suffered.

The complaint

1. Dr X complains on behalf of his daughter, Miss Y about London Borough of Sutton (the Council), Sutton Uplift (part of South West London & St George’s Mental Health NHS Trust) and NHS South West London Integrated Care Board (formally Sutton Clinical Commissioning Group – the CCG) when his daughter moved from Bournemouth back to Sutton. Specifically, about the lack of dialectal behavioural therapy in her Education, Health and Care Plan. He says from July 2021, that support should have continued but instead Sutton Uplift made his daughter join an 18-month waiting list. During that time, Miss Y’s mental health worsened, she took overdoses and planned to take their own life. He says the organisational fault caused emotional distress to the whole family. Dr X would like the organisations to pay a financial remedy to reflect the harm to Miss Y and for the emotional impact and time and trouble caused to the family.

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The Ombudsmen’s role and powers

2. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
3. If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused.  We might also recommend the organisation takes action to stop the same mistakes happening again.
4. The Ombudsmen cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
5. When investigating complaints, if there is a conflict of evidence, the Ombudsmen may make findings based on the balance of probabilities. This means that during an investigation, we will weigh up the available evidence and base our findings on what we think was more likely to have happened. 
6. If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

7. I considered the information Dr X and the organisations sent to me, including their responses to my enquiries. I also considered the relevant national guidance and legislation.
8. Dr X, Miss Y and the organisations had an opportunity to comment on my draft decision.
9. 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 found

Relevant legislation and guidance

10. Children who have special educational needs may have an Education Health and Care Plan (EHC Plan). This sets out the child’s special educational needs and the provision needed to meet them. Local authorities have a duty to secure the special educational provision set out in an EHC Plan, unless the parent or young person has made suitable alternative arrangements. If the EHC Plan specifies health provision (in Section G), the responsible healthcare commissioning body must arrange that provision for the child or young person. (Children and Families Act 2014 section 42)
11. Chapter 3 and Point 9.142 of the ‘Special educational needs and disability code of practice: 0 to 25 years’ (the Code of Practice) highlights the importance of joint commissioning arrangements for agreeing healthcare provision for children and young people with SEN or disabilities.

Background

12. In 2020, Miss Y had special educational needs which the Council supported through an EHC Plan. She lived in a residential placement at a further education college in Bournemouth.
13. In late-2020, the Council started to plan Miss Y’s move back to Sutton in mid‑2021. It referred Miss Y to Sutton Uplift to support her mental health needs. The Council noted Miss Y had started dialectal behavioural therapy (DBT). DBT is a talking therapy for people who feel emotions intensely.
14. In January 2021, the Council reviewed Miss Y’s EHC Plan. It confirmed the final EHC Plan in late March. Section G of Miss Y’s EHC Plan stated: “[Miss Y] required DBT therapy, in addition to changes in her current medications for her new diagnosis of Emotionally Unstable Dysregulation (borderline personality) Disorder [sic]”.
15. In late April 2021, Sutton Uplift told the Council it needed more detail to consider a referral for DBT. The college in Bournemouth provided further details to Sutton Uplift to support the request for DBT on 5 July.
16. In July 2021, Dr X told the Council his daughter would have a mental health crisis if Sutton Uplift did not provide DBT. The Council agreed to include this paragraph in Miss Y’s EHC Plan: “If Sutton Uplift is unable to provide [Miss Y] with services to meet her mental health needs as detailed in Sections C and G, Sutton Social Services will put a case of need forward on behalf of [Miss Y] to the Sutton CCG Mental Health Commissioner.”
17. On 8 July 2021, the Council emailed the CCG. It asked to discuss Miss Y’s health provision (DBT) in her EHC Plan. It was concerned Sutton Uplift would not consider a referral until Miss Y had registered with a GP in Sutton. The Council sent that email to the wrong address, so the CCG did not receive it.
18. In mid-July 2021, Miss Y moved back to Sutton.
19. Sutton Uplift assessed Miss Y on 10 September 2021. It referred her for DBT but there was an 18-month waiting list. While she waited, a Psychiatrist agreed to review Miss Y every few months. Its Recovery and Support Team would also support her mental health.
20. The same day, Dr X asked the Council if it could commission DBT while Miss Y waited for that support from Sutton Uplift. A month later, the Council told Dr X it would need to ask the CCG to commission that support. Dr X said the clinical need for DBT was clear, it was in Section G of his daughter’s EHC plan.
21. On 2 November 2021, a Psychiatrist for Sutton Uplift noted Miss Y was not doing very well.
22. Three weeks later, the Council told Dr X that Sutton Uplift should apply to the CCG for further support. Dr X told the Council the need for DBT was clear in Miss Y’s EHC Plan. The Council suggested Dr X complain to Sutton Uplift about not meeting Miss Y’s needs.
23. In January and March 2022, Psychiatrists for Sutton Uplift noted Miss Y’s stable mental health.
24. However, a month later, Miss Y suffered a mental health crisis and called Sutton Uplift for support. Sutton Uplift carried out welfare checks and Miss Y said she was “doing great”.
25. In May 2022, a Psychiatrist noted Miss Y’s mental health had worsened and amended her medication.
26. On 17 June 2022, Miss Y self-harmed after being upset about her unwell dog. Five days later, she took a paracetamol overdose and went to hospital.
27. On 24 June 2022, Sutton Uplift assessed Miss Y and did not have concerns about further self-harm or suicide. Dr X emailed Sutton Uplift. He said the lack of DBT caused his daughter’s recent self-harm. He asked it to review Miss Y for further support.
28. A few days later, the Trust noted that Miss Y said she was trying to understand her emotions. She was scared that if left alone she might take another overdose and. She also planned to self-harm, but not suicidal.
29. On 5 July 2022, a Psychiatrist reviewed Miss Y. They noted she was suffering a mental health crisis. They referred Miss Y to the Home Treatment Team (HTT) and increased her medication. The HTT’s Crisis Plan noted Miss Y liked talking with others and needed the help of a therapist.
30. In September 2022, a Psychiatrist noted Miss Y’s stable mental health.
31. A month later, a DBT Practitioner assessed Miss Y’s needs and decided she was suitable for group DBT. He offered Miss Y four weekly sessions, which started in November.
32. In early 2023, Miss Y took another overdose. Sutton Uplift decided to transfer her care to the Complex Needs Service. But Miss Y highlighted how positive DBT was for her mental health.

My findings

33. The Code of Practice is clear that CCGs are responsible for arranging any health provision in Section G of the EHC Plan.
34. Before Miss Y moved back to Sutton in July 2021, the CCG should have been aware of Miss Y’s need for DBT and arranged that for her. Miss Y did not start to receive DBT until November 2022.
35. During my investigation, the CCG told me it would have arranged DBT for Miss Y had the Council told the CCG Miss Y was moving back to Sutton.
36. From the evidence I have seen, the CCG was not involved in the EHC Plan reviews before Miss Y moved back to Sutton. The CCG should have been aware of its duty to provide the health provision regardless of where Miss Y lived. I am not persuaded the CCG had proper oversight of Miss Y in 2021 and 2022.
37. The Council should have understood the CCG was responsible for managing Miss Y’s health provision. I consider the Council should have done more to involve the CCG in the plan to support Miss Y’s move back to Sutton. Instead, the Council focused its discussions about Miss Y’s DBT with Sutton Uplift. Sutton Uplift would have providing that support. But the CCG should have arrnaged it.
38. The Council tried to speak to the CCG about Miss Y’s DBT in July 2021. But it sent its email to the wrong address, and never followed that up.
39. I consider the Council and CCG both acted with fault before July 2021. The CCG did not have oversight of Miss Y’s health provision, and the Council did not contact the right organisation to ensure Miss Y’s health provision carried on in Sutton.
40. It became clear when Miss Y returned to Sutton that she would not receive DBT as she should. I understand why Dr X pushed for the amendment to the EHC Plan in July 2021. But it was not for the Council to argue Miss Y’s case for DBT when Sutton Uplift placed her on the waiting list. She should not have been on one at all.
41. In November 2021, the Council decided against applying to the CCG. That was because Sutton Uplift had started to provide some mental health support while Miss Y waited for the DBT. However, fundamentally, Miss Y was not receiving DBT. Then in February 2022, during an annual review of Miss Y’s EHC Plan, the Council recognised Miss Y was missing DBT and the impact that had on her. I consider those were missed opportunities for the Council to escalate the lack of DBT to the CCG.
42. Overall, the CCG and Council acted jointly with fault.
43. During my investigation, each organisation told me there is no local joint policy or arrangement to manage health provision in EHC Plans. I believe that most likely explained the Council and CCG’s mismanagement of Miss Y’s health provision. A local joint policy (in line with Chapter 3 of the Code of Practice) would have made it easier for the Council and CCG to plan Miss Y’s health provision.
44. I have not found fault with the Trust. That is because the Council and CCG were jointly at fault for not properly planning and arranging Miss Y’s health provision.
45. I will now consider the impact of the Council and CCG’s fault on Miss Y and Dr X.

The injustice to Miss Y and Dr X

46. I cannot say, even on the balance of probabilities that Miss Y would not have self‑harmed or taken overdoses if not for the Council and CCG’s fault. However, the Council and CCG’s fault most likely put Miss Y at risk of harm. There was evidence the DBT helped Miss Y manage her emotions.
47. On top of the risk of harm to Miss Y, I consider the lack of DBT would have caused Miss Y further distress and uncertainty. For the 14 months she did not receive DBT, she had to manage her own emotions without that support.
48. Similarly, the Council and CCG’s fault also caused Dr X to suffer unnecessary distress and uncertainty. He had also warned the Council about the risk of harm to his daughter before July 2021.
49. In response to my investigation, the Integrated Care Board (the ICB) said it would ensure:
• All EHC Plans are shared with its Designated Clinical Officer as part of the Annual Review process. The ICB can then consider any health needs and provision in children and young people’s EHC Plans.
• It works with partners so the ICB is aware of any children moving back to Sutton from out of the area.
• It works with the Trust to monitor waiting times, and report longer waiting times to EHC Plan co-ordinators.
50. It is positive the ICB has recognised it needed to do more to manage the health provision in EHC Plans. I agree this will help other children and younger people. However, the Council has not found it acted with fault. Greater cooperation between the Council and ICB is crucial to avoid similar fault occurring in this case. Therefore, I have made some further recommendations below.

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Agreed actions

51. Within four weeks of this decision, the Council and ICB should each:
• Apologise to Miss Y for putting her at risk of harm because of its fault. Also, for the distress and uncertainty it caused her.
• Apologise to Dr X for the distress and uncertainty he suffered.
• Pay Miss Y £400 to recognise the risk of harm it put her at between July 2021 and November 2022.
• Pay Miss Y £700 to recognise the distress and uncertainty she suffered.
• Also, pay Dr X £300 to recognise the distress and uncertainty he suffered.
52. Within eight weeks of this decision, the Council and ICB should develop a joint policy/arrangement in line with the Code of Practice to ensure children receive the health provision set out in Section G of their EHC Plan. That policy/arrangement should include a specific arrangement for children who are ordinarily resident to Sutton but living outside the area.
53. The organisations should provide us with evidence they have complied with the above actions.

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Final decision

54. The Council and CCG were jointly at fault for not continuing Miss Y’s DBT when she moved from Bournemouth back to Sutton. That caused her and Dr X an injustice, which they have agreed to remedy.

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Investigator's decision on behalf of the Ombudsman