Summary
Ms X’s complaint about a failure to secure special educational provision on her child Y’s Education, Health and Care Plan is premature and she needs to raise it with the Council first. We do not uphold the second complaint. The Council did not include the recommendations of a Tribunal on Y’s Plan because the NHS decided not to commission health provision. This is not fault because there is no provision agreed by the NHS for the relevant part of the Plan.
The complaint
Ms X complained the Council: Omitted recommendations of the Special Educational Needs and Disability (SEND) Tribunal from her child Y’s Education, Health and Care (EHC) Plan and failed to respond to her email querying this; and Did not secure full sensory occupational therapy (OT) and other provision despite this being in Y’s EHC Plan Ms X said as a consequence Y has missed out on educational provision in her EHC Plan and Ms X has suffered avoidable distress.
The Ombudsman’s role and powers
The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. We refer to complaints that a council has not considered as ‘premature’. We may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6) We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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)
How I considered this complaint
I considered the complaint to the Ombudsman, the Council’s responses to the complaint and documents described in this statement.
Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I have and have not investigated I have investigated complaint (a) which the Council has responded to through its two-stage complaint procedure. There is no evidence Ms X has raised complaint (b) formally with the Council. It is therefore a premature complaint and Ms X needs to complain to the Council. It is reasonable for the Council to investigate and respond because there has been an annual review meeting in the autumn term of 2023 and so evidence of concerns raised by Ms X during the annual review about a failure to secure educational provision can be included when the Council prepares a further complaint response.
What I found
Relevant law and guidance A child or young person with special educational needs (SEN) may have an Education, Health and Care (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.
The EHC Plan is set out in sections including: Section B: SEN Section C: Health needs related to the child or young person’s SEN Section D: Social care needs related to the child or young person’s SEN Section F: The special educational provision needed by the child or the young person.
Section G: Any health provision required because of their learning difficulties or disabilities which results in the child or young person having SEN.
Section I: The name and/or type of educational placement There is a right of appeal to the SEND Tribunal against the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified. The Tribunal can also make non-binding recommendations in relation to health needs and health provision.
If the Plan specifies health care provision, the responsible commissioning body must arrange the specified health care provision for the child or young person unless the family has made its own arrangements. (section 42(3) Children and Families Act 2014) The SEND (First Tier Tribunal Recommendations Power) Regulations 2017 set out how councils and Integrated Care Boards (ICBs) must respond to the Tribunal’s recommendations. The ICB is responsible for responding to health recommendations in Section G.
The Department for Education’s “SEND Tribunal: extended appeals” provides guidance for councils, ICBs, parents and young people on the extended powers of the Tribunal. It says: There is no requirement for the ICB to agree to the Tribunal’s non-binding recommendations. However, it is generally expected to follow them.
The ICB has five weeks to decide if it will implement non-binding recommendations of the Tribunal about health matters. The ICB should write to the child’s parents/young person and the council’s SEND team.
In its written response, the ICB should state what steps it has taken following the Tribunal’s recommendations. It should provide detailed reasons if it has decided not to follow those recommendations.
Summary of key events Y has an EHC Plan. Ms X appealed Sections B, F and I to the SEND Tribunal and sought recommendations under Sections C (health needs) and G (health provision). The Tribunal recommended a full CAMHS assessment should be repeated in Section G.
Following the Tribunal’s order, the Integrated Care Board said in a letter of December 2022 to Ms X that: Y had a full mental health assessment by a clinical psychologist in 2021 and did not require any further assessments other than a referral for a [specialist] health assessment.
The clinical psychologist recommended “monthly consultation from a professional who specialises in avoidant attachment behaviours and development trauma to support the network around Y …and provide advice.”
The Council amended Y’s EHC Plan once the Tribunal concluded. Section C (health needs) said: “The Clinical Psychologist’s recommendations in December 2021 with regard to health recommended the following: ……, a specialist neurodevelopmental assessment is commissioned ……….such a service is not available in Stoke-on-Trent and would require agreement from local commissioners.
Monthly consultation from a professional who specialises in avoidant attachment behaviours and developmental trauma would provide support to the network around Y to develop an ongoing psychological understanding of her needs and provide responsive advice on inevitable presentation changes as she makes progress.”
Section G of the amended EHC Plan post Tribunal is blank.
Ms X emailed the case officer in January 2023 saying the Tribunal ordered a full Child and Adolescent Mental Health Service (CAMHS) assessment to take place and for this to be in Sections C and G and the Council had removed this from the EHC Plan. She went on to say the monthly clinical consultations had not been actioned either.
There was no response to Ms X’s email. So, she complained to the Council. The complaint said the Council had not acknowledged her email (see previous paragraph) and the Council had finalised Y’s EHC Plan omitting the Tribunal’s recommendations. The Council’s first response at the end of February said: It was sorry the case officer did not reply to her email, but she was off work. The Council upheld this complaint. In future, senior staff had access to emails if an officer is off work for a long period.
The Tribunal ordered amendments to Sections B, F and I. It said amendments to C (Note: the Council clarified in a later letter that this was a typo and should have said Section G), was a recommendation and not an order.
The case officer decided to remove the CAMHS assessment because of the ICB’s response to the Tribunal’s recommendation.
Regarding the monthly clinical consultation – the Headteacher confirmed this clinical support had been actioned and a triage meeting was taking place that week followed by a meeting with her to agree a support plan.
Ms X escalated her complaint to the second stage of the Council’s complaints procedure. She said the actions set out in the Council’s first response (see paragraph 19(d)) had not taken place.
The Council’s final response to the complaint in May 2023 said: Y’s school provided the consultation with Clinical Psychology in-house. It was sorry the Designated Clinical Officer advised the Council to source this from the CAMHS team, as this was not the case.
The CAMHS assessment was only a recommendation from the Tribunal. As the school has its own clinical psychologist, the assessment would be provided by them.
Following an annual review held in the autumn term, the Council issued a decision to maintain Y’s EHC Plan in November 2023.
Ms X complained to us in January 2024.
Findings
The Council has apologised for the failure to respond to Ms X’s email in January 2023 and has apologised for the avoidable distress. Failing to respond was fault, but the apology is an appropriate remedy and it is not necessary to recommend a further remedy.
The Council is not at fault in omitting the CAMHS assessment from Section G. This is because the ICB did not accept the Tribunal’s recommendation to commission a full CAMHS assessment and it explained why. The Council would not include health provision in Section G when the NHS body responsible for commissioning it has declined to do so. The ICB’s role is not within our remit.
The inclusion of health provision is usually agreed by the NHS body which funds healthcare. The Council cannot decide to include health provision without ICB agreement. As I explained in the last paragraph, if the NHS body rejects the Tribunal’s recommendations, it follows that the Council does not need to put the provision it recommended in Section G because the NHS had decided no health provision is required. The Council has acted correctly and there is no fault.
The school is delivering the monthly clinical consultations referred to in Section C of Y’s Plan (see paragraphs 19 and 21). As a side note: it is unclear why monthly clinical consultations are in Section C as they are in my view health provision rather health needs. In any event we would not regard the Council to be at fault for securing health provision (although it has no legal duty to) and there is no injustice to Y. If Ms X wanted to appeal any aspects of Y’s EHC Plan (for example, to seek amendments so the monthly clinical consultations were special educational provision in Section F) she had a right of appeal in November 2023 against the Council’s decision to maintain the Plan without amendments. We would expect her to use this appeal right. Ms X also needs to complain to the ICB and not the Council for failing to provide health provision.
Final decision
Ms X’s complaint about a failure to secure special educational provision on her child Y’s Education, Health and Care Plan is premature and she needs to raise it with the Council first. Provisionally, we do not uphold the second complaint. The Council did not include the recommendations of a Tribunal on Y’s Plan because the NHS decided not to commission health provision. This is not fault because there is no provision agreed by the NHS for the relevant part of the Plan.
I completed the investigation.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman