Sussex Partnership NHS Foundation Trust (17 018 368a)

Category : Health > Mental health services

Decision : Upheld

Decision date : 25 Jun 2019

The Ombudsman's final decision:

Summary: Ms A complains about the treatment of her son by a Council and two Trusts in relation to school provision and mental health care. The Ombudsmen uphold the complaint against the Council due to a lack of tuition and school provision. The complaint is also upheld against both Trusts in relation to an autism assessment.

The complaint

  1. Ms A has complained on behalf of her son, B, about how Kent County Council (the Council) handled his education in 2017 and 2018. In addition, she has complained about B’s care and treatment from 2016 to 2018 by Sussex Partnership NHS Foundation Trust (the Sussex Trust) and North East London Foundation Trust (NEFLT)
  2. Specifically, Ms A complains the Council
  • Did not properly investigate an incident at school
  • Did not provide tuition while B was out of school
  • Caused delays in getting B into a new school
  1. Ms A also complains the Sussex Trust and NEFLT
  • Did not provide regular Children Adolescent Mental Health Services (CAMHS) support as stipulated in the Education Health and Care Plan (EHC Plan)
  • Caused long delays getting an Autistic Spectrum Disorder (ASD) assessment appointment
  • Ms A also says NEFLT did not provide her with the ASD assessment report

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What I have investigated

  1. I have investigated all the above issues apart from the issue about the Council not properly investigating the incident B had at school. I have explained at the end of this statement why I am barred from investigating this issue.

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The Ombudsmen’s role and powers

  1. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA,as amended, and Health Service Commissioners Act 1993, section 18ZA)
  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. 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)
  5. The Ombudsmen cannot decide what level of social care is appropriate and adequate for any individual. This is a matter of professional judgement and a decision that the relevant organisation has to make. Therefore, my investigation has focused on the way that the Council made its decisions.

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How I considered this complaint

  1. During the course of my investigation I have considered the following evidence:
  • Evidence from Ms A including documents, emails and telephone calls
  • Evidence from the Council, the Sussex Trust and NEFLT in the form of the complaint files and B’s records
  • Independent clinical advice from a CAMHS Nurse
  • Children Act 1989
  • The Education Act 1996
  • Working Together to Safeguard Children
  • The Special Educational Needs and Disability Regulations 2014
  • Special Educational Needs and Disability Code of Practice January 2015
  • Local Government Ombudsman Focus Report – Out of school…out of mind? (September 2011 amended July 2016)
  • L v Clarke and Somerset County Council [1998] ELR 129
  • The National Institute of Clinical Excellence (NICE) Guideline for attention deficit hyperactivity disorder, Quality standard [QS39] Published date: July 2013
  • Autism Quality standard [QS51] Published date: January 2014
  • NICE guidelines, Clinical guideline [CG128], Autism spectrum disorder in under 19s: recognition, referral and diagnosis, (2017)
  • I invited comments on my draft decision from all parties and have considered their responses.

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What I found

Legal background

EHC plans

  1. A child with special educational needs may have an EHC Plan. The Plan sets out the child's educational needs and what arrangements there should be to meet them. The Council is responsible for making sure that arrangements specified in the EHC Plan happen and are reviewed each year. The courts have found that councils have a duty to ensure this happens and they cannot delegate the duty to anyone else.
  2. Councils normally oversee delivery of EHC Plans through annual reviews, whether by attending meetings themselves, or by reviewing school records of meetings. The Special Educational Needs and Disability Code of Practice January 2015 says reviews must be undertaken in partnership with the child and their parent.
  3. In addition the Special Educational Needs and Disability Regulations (Regulation 22) also states:

“(2) Where the local authority is considering amending an EHC plan following a review it must—

(a) send the child’s parent or the young person a copy of the EHC plan together with a notice specifying the proposed amendments, together with copies of any evidence which supports those amendments;

(b) provide the child’s parent or the young person with notice of their right request the authority to secure that a particular school is or other institution is named in the plan under section 38(2)(b)(ii)

(c) give them at least 15 days, beginning with the day on which the draft plan was served, in which to—

(i) make representations about the content of the draft plan;

(ii) request that a particular school or other institution be named in the plan;

(iii) request a meeting with an officer of the local authority, if they wish to make

representations orally.

(d) advise them where they can find information about the schools and colleges that are available for the child or young person to attend.

(3) Where the local authority decides to amend the EHC plan following representations from the child’s parent or the young person, it must send the finalised EHC plan to—

(a) the child’s parent or to the young person;

(b) the governing body, proprietor or principal of any school or other institution named in the EHC plan; and

(c) to the responsible commissioning body

as soon as practicable, and in any event within 8 weeks of the local authority sending a copy of the EHC plan in accordance with paragraph (2)(a).”

Alternative education

  1. Section 19 of the Education Act 1996 says “councils must make arrangements for the provision of suitable education at a school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless arrangements are made for them”.
  2. Under the legislation, education provided by the Council must be full-time unless the Council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
  3. The Local Government and Social Care Ombudsman has issued guidance (‘Out of school…out of mind?’) to councils on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time.
  4. The Ombudsman made six recommendations. Councils should:
  • consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (with the exception of minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
  • consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
  • choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education;
  • keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
  • adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
  • put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

Background to the complaint

  1. B is a teenager and has a diagnosis of ADHD and autism. In September 2017, he was attending a specialist school and had an EHC Plan in place. However, following an incident with a member of staff, Ms A took her son out of school. B remained out of education until he started in a new school in April 2018. The new school decided he would need to repeat the school year.
  2. Ms A complained to the bodies involved and then approached the Ombudsmen in February 2018.

Complaints against the Council

The Council delayed in arranging a new school placement and did not provide tuition while B was out of school

  1. Ms A was not happy with the school’s investigation into her complaint. Ms A felt her son was not safe at school and withdrew him. Ms A complained that during the seven months her son was out of school, he was given no tuition. In addition, Ms A said her son had missed out on apprenticeship opportunities through having to repeat a year.
  2. From the evidence I have seen, the Council was told by the school in November 2017 of the need to find B a new school. The old school had carried out an emergency review of the EHC Plan on 17 November. Although a new EHC Plan was not actually completed by the Council until March 2018, this emergency review identified a new school as a suitable alternative for B. The Council accepted this new school as suitable for B’s education, accepting his old school was no longer suitable. This was when the Council became responsible under Section 19 of the Education Act to provide a suitable full-time education.
  3. The Council says the old school informed it in November 2017, following the review of B’s EHC Plan, of the need to find a new school for B and to change the EHC Plan to reflect this. It said in cases where amendments are agreed (in this case a change of placement) it has 12 weeks from the date of the annual review to complete those actions and issue a final amended EHCP.
  4. The Council said it consulted with the new school on the 4 December 2017. It then chased the new school several times but did not get a response until February 2018. At this point the school was of the view that it could not meet B’s needs. The Council said it worked with the new school and B eventually attended in April 2018. The Council apologised for the delays and offered Ms A £100 for the time and trouble caused.
  5. The Council has not referred to which guidelines it was following when it stated it had 12 weeks to amend the plan and issue the final plan. The time scale set out in Regulation 22 is eight weeks from the review of the existing plan. The review of the existing plan was in November 2017. The Council issued the final plan in March 2018.
  6. The first evidence of the new school being informed is on 4 December 2017. This was in the form of a letter to the new school which asked for its view on whether B’s needs could be met at the school.
  7. The new school wrote back in February 2018 with its reservations about B joining the school. The Council said it would offer further funding to support B at the new school but did not provide sufficient detail about this funding when asked by the new school.
  8. The new amended EHC Plan was issued in March 2018 and the new placement was eventually agreed in April 2018. This is outside the eight week limit for a new plan set out by the Regulations and B was not getting any support outlined in his EHC Plan from September 2017 when he was taken out of school. The Council is at fault for not issuing a new EHC Plan within eight weeks after it became aware of the need for a new school in November 2017.
  9. The Council originally apologised for this delay and made an offer of 18 hours tuition or £540. The Council explained that some of the delays lay with the new school not agreeing to the placement initially. It then agreed to fund intensive 1:1 tuition for B in April 2018 until the end of the last term of the school year. It felt this to be a suitable remedy for the period of time when tuition was not in place. In addition, as a gesture of goodwill the Council also offered Ms A a £100 time and trouble payment which she has not accepted.

My findings

  1. From November 2017 to April 2018 the Council was responsible for providing full time education for B, while he was waiting to attend the new school. The Council’s failure to do this is fault.
  2. This fault caused injustice, as B lost out on at least five months of education while he was waiting to attend his new school. For this period, the Council in total only offered 18 hours tuition or £540 to pay for tuition. Ms A accepted this money but did not feel it was sufficient for the amount of education her son had missed.
  3. In addition, Section F of B’s 2016 EHC Plan had provision for a school member of staff to support B as a learning mentor. This also did not happen and the Council did not put an alternative measure in place.
  4. The tuition the Council tried to put in place in April 2018 alongside B’s full-time education in April 2018 was not sufficient and was not a realistic option to make up for the seven months education B missed. It would be safe to assume that most pupils cannot pass a year of school when they have missed out on such a large proportion of the school year. Although by repeating the year B did eventually get the year’s schooling, the delay in tuition led to a missed opportunity for B to pass the school year at the first attempt. B also did not have the support of a learning mentor as set out in his EHC Plan.
  5. Regarding the delay in organising the school place, there were delays on the part of the Council and the new school which was reluctant to take B initially. However, if the Council had provided the school with more information initially and finalised the plan more swiftly the school would have been more likely to have accepted B at an earlier stage. Equally, the Council could have directed the school to admit B if it was necessary. Therefore, the Council was at fault for not ensuring the swift conclusion to this situation leading to a delay of at least five months in B attending his new school.
  6. Due to the lack of education that B had for much of the school year, it is not surprising that he could not complete the year and had to repeat it. Due to being out of school for several months Ms A said her son was engaging in risky behaviour. In addition, there was a social and mental impact to B from not attending school for five months and having to repeat a school year. Furthermore, Ms B suffered distress from having to chase the Council while B was out of school for five months.

Complaints against Sussex Trust and NEFLT

Did not provide regular CAMHS support as stipulated in the Education Health and Care Plan (EHCP)

  1. Ms A has pointed out that in section F of the EHC Plans of both 2016 and 2018 they stated B should have individual therapy provided by CAMHS. She says her son was not offered individual therapies during the period in question. In addition, Ms A said during this period psychology referrals were promised to her but never made.
  2. The Sussex Trust had responsibility for CAMHS in B’s area until September 2017, when it was assumed by NEFLT. Section F of the EHC Plan outlines any support a child may require to achieve the aims of the plan. The Council is responsible for ensuring the support in this section is provided.
  3. Past caselaw has established (L v Clarke and Somerset County Council [1998] ELR 129) where special educational provision is set out in Part 3 of the Statement (now Section F of an EHC Plan) it must be specific, which will normally involve specifying the number of hours of support.
  4. In section F of both EHC Plans it states B will have ongoing monitoring and support from CAMHS services (such as planned individual therapy). In addition, the plans state it would be for the CAMHS team to decide when such individual therapy was appropriate. Therefore, it was for CAMHS to decide on the amount of support or therapy B needed.
  5. B had been diagnosed with ADHD in 2011 and his treatment in 2016 following his EHC Plan was focussed on treating his symptoms and reviewing the physical impact, behaviour and risk reduction strategies. In addition, the guidance at the time, Quality Standard 39, focuses mainly on drug treatments and guidance rather than psychological interventions.
  6. Medication was prescribed in 2015 and B was thought to be responding well to his drug treatment which was regularly reviewed.
  7. In 2016 the Sussex Trust did offer family therapy to Ms A and B and parent training as recommended by Quality Standard 39 but this was declined by Ms A.
  8. During this period, I have not found evidence to conclude individual therapy should have been given. Rather, during 2015 and 2016, with B’s diagnosis it was indicated he should have drug treatments and guidance which was what was being providing by CAMHS.
  9. Following the EHC Plan in 2016 there was no indication that the Sussex Trust felt CAMHS individual therapy was required. There was a CAMHS appointment given in July 2017 to review his drug treatment as B was now non-compliant with medication. Furthermore, a family therapy referral was again made in September 2017. This was adequate support for B taking into account his diagnosis, relevant guidance and clinical advice. Therefore, I have not found fault with the Sussex Trust in relation to CAMHS support during the period 2016 to 2017.
  10. NELFT told the Ombudsmen that on 18 September 2017, the CAMHS staff meeting agreed it would offer Ms A and B family therapy to focus on improving relationships. On 9 October 2017, during a telephone conversation, Ms A declined family therapy and asked for her son to have individual sessions.
  11. In December 2017, B was diagnosed with Autistic Spectrum Disorder (ASD). NELFT said the family attended together for a review on 19 February 2018, when B declined individual sessions for therapy. He reported that he wanted to focus on going to a school, which was more important for his educational needs. He also wanted to concentrate on a forthcoming court date relating to when he was a victim of an assault. It was agreed that he could access individual therapy in the future and NELFT said it would review the situation to tailor therapy to the family and B’s needs. This is backed up by the evidence in the records.
  12. Taking this into account I have found evidence the NELFT offered appropriate CAMHS support to B to address his mental health issues. It has also organised reviews with Ms A and her son to tailor treatment to his needs. Therefore, I have not found fault with NELFT in relation to this matter.
  13. With regard to Ms A’s complaint about a lack of psychology referrals, she said that she was told by staff at the Sussex Trust and NEFLT her son would have psychology appointments. She said he only had a couple and then no more.
  14. NELFT said from the electronic record B attended eight sessions with a psychologist in 2017.
  15. From the records provided by both Sussex Trust and NELFT I have not seen sufficient evidence that B had eight sessions with a psychologist in 2017. However, I have also not seen sufficient evidence there was a clinical need for these sessions. In addition, I have not found evidence that during this period psychology referrals were promised and then not made. Taking this into account I have not found fault with the Trusts.

Long delays in getting an ASD assessment appointment and then the ASD full report

  1. Ms A complained about the wait for her son to have an ASD assessment. In addition, she complained about the delay in NEFLT sending her the report from the assessment.
  2. NELFT told the Ombudsmen that according to the electronic patient records, an ASD assessment was undertaken on the 19 October 2017. A letter to confirm the diagnosis of ASD was sent to the GP and family on the 13 December 2017 advising that a full report would follow. It apologised for the oversight in that the full report was not sent out to Ms FA.
  3. With regards to the delay in the assessment, NELFT said it had historically been experiencing an unprecedented demand for ASD assessments. As a response to this, NELFT created and expanded a separate specialist Kent and Medway Neuro Developmental Team in April 2018, which has since been working on reducing waiting times for ASD and ADHD assessments and treatment.
  4. Ms A has provided evidence that in June 2016 the Sussex Trust wrote to her with a consent form for an ASD assessment. The Sussex Trust then wrote back in October 2016 saying it had received the forms and would put B forward for an ASD assessment. He was assessed in October 2017, a year later.
  5. The NICE guidelines state “Start the autism diagnostic assessment within 3 months of the referral to the autism team.”
  6. B was not assessed until a year after his referral, nine months outside the recommended time limit. This was fault on the part of the Sussex Trust. The impact on B is not easy to define. However, it meant a missed opportunity to provide earlier treatment for his ASD.
  7. From the evidence I have seen, NEFLT took over responsibility for B’s care in September 2017 and he was assessed a month later. So the delay was not its responsibility. In addition, NELFT has taken satisfactory action to reduce delays in future.
  8. However, although NELFT spoke to Ms A after the assessment and explained the results, it is good practice to invite families back to a post-diagnostic information day. This did not happen in this case.
  9. In addition, NELFT sent a letter confirming the diagnosis in December 2017 but did not send the full report as promised. It has since transpired that NELFT has lost the full report. Also, the diagnosis letter was not shared with the Council to inform the EHC plan.
  10. Taking this into account, the fault by Sussex Trust in delaying the assessment led to a missed opportunity to provide more focused treatment to B. In addition, NEFLT’s loss of the the report has left Ms A with a lack of information about B’s ASD diagnosis and any options that may be open to him. NELFT has offered B another ASD assessment and for full reports to be carried out following this but Ms A has declined this offer.

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Agreed Recommendations

  1. I have found fault with the Council, the Sussex Trust and NELFT in this investigation. In view of this I have recommended the following.

The Council

  1. Within one month after receiving my final decision, the Council should:
  • Apologise to Ms A and her son for the distress caused by the failings I have identified in relation to a lack of tuition and a delay in being able to attend the new school
  • Acknowledge and apologise to Ms A and her son for not providing the teaching mentor during this period as outlined by the EHC Plan
  • Pay Ms A £500 for the distress caused by the failings in her son’s tuition and five-month delay in a school place and the time and trouble of having to pursue these matters with the Council
  • Pay B £1000 in recognition of the emotional, mental and social distress he suffered due to a lack of tuition, being out of school for five months and having to repeat a year at school. This will be held in trust by Ms A and to be used to purchase additional educational activities or equipment which B and his mother feel would be of benefit to him
  1. And within three months of my final decision, the Council should provide an action plan or evidence of changes it has made to address;
  • The failings in relation to a lack of provision of tuition for out of school pupils such as B
  • The failings in not communicating effectively with prospective schools to ensure their compliance with provisions in EHC Plans
  • Its failure to properly follow SEND guidance in making changes to EHC Plans, agreeing them with parents and finalising plans within the set timescales

Sussex Trust

  1. Within one month of my final report, Sussex Trust should write to Ms A and her son apologising for the missed opportunity for treatment caused by the delay in carrying out an ASD assessment

NEFLT

  1. Within one month of my final report, NELFT should:
  • Acknowledge and apologise to Ms A and her son for the missed opportunity for treatment and information caused by the failings of not arranging a follow up appointment, and for losing the ASD report
  1. And within three months of my final decision, it should provide an action plan or evidence of changes made to address the faults in not offering follow up appointments to ASD patients and the loss of ASD reports

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Final decision

  1. I uphold the complaint against the Council for a lack of tuition, failure to fulfil B’s EHC Plan and a delay in arranging a school place from November 2017 to April 2018. I uphold the complaint against Sussex Trust in relation to a delay in an ASD assessment but not for a lack of CAMHS support. I uphold the complaint against NELFT in relation to not offering a follow up appointment and for losing the ASD report. However, I do not uphold the complaint about a lack of CAMHS support.

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Parts of the complaint I did not investigate

The Council did not properly investigate an incident at school

  1. We are barred by legislation and case law from looking at complaints about teacher conduct in local authority maintained schools (B’s school was a foundation special school, which is a type of maintained school), nor can we consider any complaint about how the Council responded to an incident relating to an internal school matter.

Investigator’s final decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman

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