Summary: Mr X complains the Council failed to ensure the provision of mental health support that was specified in his son, Y’s, Education Health and Care Plan (EHCP). We have concluded our investigation having made a finding of fault by the Council. Although the Council acted promptly to resolve the matter, it failed to ensure the appropriate provision was in place as per Y’s EHCP’s between April 2021 and October 2021. The Council has agreed to the recommendations we proposed to it.

The complaint

1. Mr X complains the Council failed to ensure the provision of mental health support that was specified in his son, Y’s, Education Health and Care Plan (EHCP). Mr X says that Y has been disadvantaged as a result. Mr X would like the Council to ensure the provision is delivered consistently without further delay and a financial award made in recognition of the inconsistent provision provided and impact on Y’s mental health as a result of the Council’s actions.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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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How I considered this complaint

5. I spoke with Mr X and considered the information he provided. I also considered information provided by the Council in response to my enquiries. I considered any comments made by Mr X and the Council in response to my draft decision.

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What I found

Relevant law and guidance

Education, Health, and Care Plans (EHCPs)

6. A child with special educational needs may have an Education, Health and Care Plan (EHCP). This is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care. This can include support needed in school.
7. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHCP. The right of appeal is only engaged when the final amended plan is issued.
8. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
9. The council has a duty to secure the specified special educational provision in an EHCP for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
10. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHCP. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:
• check the special educational provision is in place when a new or substantially different EHCP is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.
11. An EHCP must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education, to allow for planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year of the transfer at the latest for transfers into or between schools. The key transfers are:
• early years provider to school
• infant school to junior school
• primary school to middle school
• primary school to secondary school, and
• middle school to secondary school

School Nursing Service

12. As per the Council’s health services website, the School Nursing Service works in partnership with children, young people and their families to ensure that children's health needs are supported within their school and their community.
13. School nurses are public health nurses who lead and deliver the Healthy Child Programme for school-aged children and young people. They work closely with education, social care and other health professionals, to help children and young people to remain healthy and accessing education.

What happened

14. I have included a summary of some of the key events in this complaint. This is not intended to be a comprehensive account of everything that took place.
15. Mr X’s son, Y attends School A. Y has ASD, mild/moderate learning difficulty, physical needs, sensory needs and global development delay. The Council maintain an EHCP for Y.
16. In March 2021, a hearing of the SEN and Disability Tribunal (SENDIST) was held. The tribunal issued their decision in April 2021. The Council subsequently issued an amended final EHCP later in April 2021. The EHCP states that Y will have access to weekly 50-minute sessions delivered by the school nurse.
17. An annual review was held in April 2021. Mr and Mrs X both attended the annual review meeting. The school health specialty doctor and the specialist public health nurse were invited but did not attend. The annual review report recorded the change of provision in section G, relating to Y’s mental health provision as recommended by the tribunal decision.
18. Following the annual review held in April 2021, the Council agreed to make amendments to Y’s EHCP and a final amended EHCP was issued in August 2021.
19. The annual review report from the school nurse in January 2022 records that in October 2021, a referral to the school nurse was received from School A requesting support for emotional well-being and puberty. The referral was accepted later in October 2021. Due to Y’s absence from school and illness on the part of the school nurse a first appointment was held with Y at the end of November 2021.
20. Between November 2021 and October 2022, the Council says support for Y’s mental health needs had been delivered. School A delivered the weekly 50-minute sessions under the supervision of the school nurse who held fortnightly visits to Y in school.
21. In November 2021, Mr X withdrew consent for the School Nursing Service to share Y’s health information with the Council’s SEND assessment service.
22. In January 2022, Mr X raised a formal complaint regarding the failure to deliver the mental health provision as outlined in section G of Y’s EHCP. The Council responded to Mr X’s complaint in February 2022. The Council acknowledged that it had a responsibility to ensure the provision was being implemented. The Council concluded that a referral was made to the School Nursing Service in October 2021 and his complaint was not upheld.
23. Unhappy with the Council’s response, in February 2022, Mr X escalated his complaint to stage 2 of the Council’s complaints. The Council upheld Mr X’s complaint in March 2022 on the basis that it had failed to ensure the provision outlined in Y’s EHCP had been provided until it was put in place in October 2021.
24. An annual review was held in January 2022. The specialist community public health nurse attended the annual review and provided a report. Mr X raised concerns at the annual review that Y’s mental health needs were not fully addressed. The report from the nurse outlined a fortnightly programme of visits with Y alongside a regular meeting with a trusted adult in school. The report provided a record of appointments that had taken place so far. The report stated that the involvement of the School Nursing Service would be regularly reviewed. The annual review did not recommend any changes to section G of the EHCP.

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Analysis

Was provision in place when it should have been?

25. As per Y’s EHCP, Y should have had access to weekly 50-minute sessions delivered by the school nurse. The School Nursing Service informed the Council that prior to April 2021, Y was being seen by the school nurse at School A.
26. The Council has confirmed that between April 2021 and October 2021, Y did not have any contact with the School Nursing Service, and it is here I have made a finding of fault. As per Y’s EHCP, he should have been receiving mental health provision and the Council is responsible for making sure that arrangements specified in the EHCP are in place.
27. Although I have not been able to substantiate why Y was discharged from the School Nursing Service, better communication and processes between the Council and School Nursing Service would have mitigated against the length of time that Y was not receiving the mental health provision. Had the Council been informed that Y had been discharged from the School Nursing Service, it would have been aware that Y was not in receipt of his mental health provision, and the matter could have been addressed and resolved sooner.
28. Further, it is not clear why the school health specialty doctor and the specialist public health nurse did not attend the annual review in April 2021, and I have not seen any evidence from the Council that they were kept informed about the outcome of that meeting. In correspondence provided by Mr X, it was also confirmed that the School Nursing Service did not receive a copy of Y’s EHCP. Had better working practices been in place between the Council and the School Nursing Service, it is likely the School Nursing Service would have better informed to ensure it was providing Y with his mental health provision.
29. When matters were brought to the attention of Mr X, he shared his concerns with the Council regarding Y’s mental health provision not being delivered. In October 2021, the Council contacted School A, who made a referral to the School Nursing Service. Whilst it is clear the Council acted promptly to resolve the matter, this does not absolve the Council of its duty to deliver provisions specified in an EHCP, and there were missed opportunities to prevent or mitigate against any missed provision between April 2021 and October 2021.
30. In response to Mr X’s complaint, the Council made a written apology to Mr X and has made several service improvements in light of his complaint. The Council has:
• Developed a checklist for staff to ensure appropriate partners are informed of a tribunal at the point it is registered so all parties remain involved in the discussion.
• Amended its quality assurance process to ensure all draft EHCP’s are shared with the designated clinical officer when they include health needs and provision identified in sections C and G
• Agreed to review its working protocols between education, health and social care to improve the working relationships during the EHC needs assessment process, the annual review process and disagreement resolution.
• Where a child or young person has an EHCP and NHS health services are ended or the child or young person discharged, the NHS service will send the Council a copy of the discharge letter. The Council says this will ensure that both it and parents remain informed.
31. Although the Council has been proactive in taking action to prevent similar occurrences happening, the fault identified above has caused an injustice to Y and Mr X which the Council has not provided a suitable remedy for. The mental health provision, as per Y’s EHCP, was not in place during a time when Y was facing further challenges with his mental health and would have benefitted from such support being in place. The absence of provision also put additional pressure on Mr X and his family who would have been providing ongoing support and comfort to Y during this period. There has been a loss of opportunity and a consequential impact that the absence of mental health provision has had on Y and the Council should provide an improved remedy to Mr X.

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Agreed actions

32. Where fault has resulted in a loss of provision, the Ombudsman’s Guidance on Remedies recommends payments of between £200 and £600 for each month to acknowledge the impact of that loss. Our guidance suggests a remedy at the lower end where provision was part-time, and I have applied a reduction to this amount as I recognise the sessions were to be held once weekly. To resolve matters, the Council has agreed to:
1. Award Mr X a symbolic payment of £500. This is in recognition of the missed opportunity and impact that an absence of mental health provision has had on Y. This is a figure of £100 per month apportioned to exclude school holidays.
2. Award Mr X an additional amount of £150 in recognition of the distress and additional pressures Mr X and his family experienced.
3. Share the outcome of its review with the Ombudsman that it has undertaken regarding its working protocols between education, health and social care. The Ombudsman would like to see that the Council has considered how its working processes can be improved to ensure better sharing of information between services.
33. The Council will complete action a and b within one month of the Ombudsman’s final decision and action c within two months of the Ombudsman’s final decision.

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Final decision

34. I have concluded my investigation having made a finding of fault by the Council. Although the Council acted promptly to resolve the matter, it failed to ensure the appropriate provision was in place as per Y’s EHCP’s between April 2021 and October 2021. The Council has agreed to the recommendations I proposed to it.

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Investigator's decision on behalf of the Ombudsman