Suffolk County Council (21 005 943)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 15 Mar 2022

The Ombudsman's final decision:

Summary: Mrs Y complained about the way the Council dealt with provision for her son and daughter’s special educational needs. We have found fault by the Council in the delay arranging an assessment for Mrs Y’s son, and in responding to her complaint, causing injustice. The Council has agreed to remedy this by apologising and making a payment to reflect Mrs Y’s upset, time and trouble.

The complaint

  1. Mrs Y complains about the way the Council has dealt with provision for her son, Z, and daughter, X’s special educational and other needs. She says the Council:
      1. failed, through its caseworker, to respond to emails about X’s special educational needs and was rude in communications with her. It continued to send her encrypted emails which she could not access despite being asked not to do so. It did not share X’s Education, Health and Care Plan with the Council’s Inclusion Service in a timely way.
      2. delayed putting in place SALT and OT for Z as provided for in his EHC Plan.
      3. failed to arrange the referral for Z’s assessment by an Educational Psychologist as specified in the Mediation Agreement dated 19 January 2021.
      4. failed to provide her and the family with support they needed during the period from September 2019 to August 2020 when both X and Z were at home and not attending school.

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What I have investigated

  1. I have investigated Mrs Y’s complaints about the Council’s actions from July 2020.
  2. The final section of this decision sets out my reasons for not investigating Mrs Y’s complaints about events which took place before July 2020 and Z’s OT and SALT provision.

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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. If we are satisfied with a council’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)

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How I considered this complaint

  1. I spoke to Mrs Y, made enquiries of the Council and read the information Mrs Y and the Council provided about the complaint
  2. I invited Mrs Y and the Council to comment on a draft version of this decision. I considered their responses before making a final decision.
  3. 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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What I found

What should have happened

Children with special educational needs

  1. A child with special educational needs (SEN) may have an Education, Health, and Care Plan (EHC Plan). This sets out the child’s needs, what arrangements should be made to meet them and where or how the child will be educated.
  2. The Special Educational Needs and Disability Tribunal (SEND) considers appeals against council decisions about SEN provision.

Child in need assessments

  1. Section 17 of the Children Act 1989 imposes a duty on councils to safeguard and promote the welfare of children within their area who are in need and promote their upbringing by their families, by providing a range of services appropriate to those children’s needs.
  2. If a council receives a referral, it should assess the child and family and quickly decide if it needs to carry out a full assessment to take urgent action.

What happened

  1. I have set out a summary of the key events below. It is not meant to show everything that happened.
  2. Z and X have SEN and EHC Plans.
  3. Mrs Y complained to us in July 2021.

Z’s Educational Psychologist assessment

  1. At a SEND mediation meeting held on 19 January 2021 to resolve issues relating to Z’s SEN provision, attended by the Council, Mrs Y and Z’s specialist school SEN co-ordinator it was agreed the Council would:
  • make a referral for Z to be assessed by an Educational Psychologist to provide advice on his education gap, catch up requirements and pathways available.
  • undertake an early Annual Review of Z’s EHC Plan as soon as the Educational Psychologist assessment had been concluded. This was expected to be around Easter 2021. The Annual Review would consider what action should be taken to enable Z to catch up.
  1. On 4 March 2021, the school asked Mrs Y to sign the referral form to confirm her consent for the assessment. The school told her it had been in touch with the Council’s Inclusion Service, been given details of a suitable psychologist who it was arranging to contact about the assessment.
  2. On 23 April 2021 Mrs Y complained to the Council about a number of issues relating to Z and X’s SEN provision, including its failure to arrange Z’s Educational Psychologist assessment. She told the Council this had been agreed in January 2021, but still not arranged.
  3. The Council replied to Mrs Y’s complaint on 20 July 2021. It responded to a number of her complaint issues but made no reference to the delay in arranging the assessment.
  4. In October 2021, the Council raised its concern with the school that the assessment had not been completed. The school confirmed it had not submitted the assessment request, although it could not explain why.
  5. Arrangements were made for the Educational Psychologist to carry out the assessment in November 2021. It was agreed it would be best if Z’s keyworker could be present to support him. The assessment had to be postponed because the keyworker was unable to attend.
  6. The Annual Review of Z’s EHC Plan took place on 29 November 2021.
  7. A new date for the assessment was arranged for January 2022. This had to be postponed again, but I understand the assessment was completed later that month.

Support for the family from July 2020 to August 2020

  1. Z did not attend school from March 2019 until September 2020. From September 2019, the Council provided Z with some alternative educational provision. I understand from September 2019 X had a limited timetable at school of four to five hours a week and spent the remaining school hours at home. X and Z both started at a new placement in September 2020.
  2. The Council issued Z’s final amended plan in September 2019. This referred to a S17 assessment completed in February 2019 and said Z’s care needs were currently well met by his parents and no social care needs were identified.
  3. An annual review of Z’s EHC Plan was completed in May 2020.
  4. I understand X’s first EHC Plan was issued in early 2020. Mrs Y says the EHC assessment should have included a S17 assessment. She successfully appealed to SEND about this part of X's Plan. But by this time it was too late to complete a S17 assessment because X and Z were about to start their new school.

My findings – was there fault by the Council causing injustice?

Z’s Educational Psychologist assessment.

  1. Based on the evidence I have seen, my view is the Council failed to arrange Z’s assessment in a timely way. The Council had been in contact with the school about the referral in March 2021 but did not check the assessment had been arranged. It did not respond to Mrs Y’s concern in April 2021 about the delay or take action to arrange the assessment until October 2021.
  2. It was expected, as stated in the mediation agreement, the assessment would be completed by Easter 2021 to allow an early annual review of Z’s EHC Plan.
  3. I note a Council’s officer says, in an email of 14 December 2021, she was hugely concerned about the delay in completing the assessment. This was a phase transfer, Z and Mrs Y had had a bad experience with the Council so far and she was trying to get things right as Z moved into his next step of education.
  4. It took a year, from the mediation agreement to complete the assessment. I consider the Council’s delay in arranging the assessment was fault. The assessment was an important step in considering the next steps for Z.
  5. The delay in completing the assessment meant the annual review was also delayed and in the end took place without the Educational Psychologist’s report on action to help Z catch up. This may have an impact on plans for Z’s next steps.
  6. Mrs Y was also caused upset and worry waiting for the assessment to be arranged and time and trouble chasing this.

Support for the family from July 2020 to August 2020

  1. I have explained below why I have not investigated the part of this complaint relating to the period before July 2020.
  2. The Council carries out S17 assessments to establish whether a child is in need, and if so, the action it should take to fulfil its statutory duty to safeguard and promote the welfare of children in need. My understanding is it not required to, and does not, have a policy for supporting families of children not in full-time education at school, outside of its duties under S17.
  3. I have seen any request for a S17 assessment of Z’s needs in July or August 2020 before he started school in September 2020.
  4. I understand following Mrs Y’s appeal to SEND, the process for a S17 assessment of X began but was not completed because she was about to start school. I have not seen any evidence of delay by the Council, and we do not know what the outcome of any assessment would have been.
  5. Based on the evidence I have seen, I do not consider there has been fault by the Council regarding the provision of support for the family in this period.

Communication issues

  1. I understand the communication issues set out in paragraph 1 (a) of this decision took place before July 2020. I have explained below why I have not investigated this part of Mrs Y’s complaint.
  2. But the Council took three months to reply to Mrs Y’s complaint of April 2021. I consider this was an unreasonable delay and fault by the Council. Mrs Y was caused upset, time and trouble waiting for the Council’s response to her complaint.

Independent Send Review September 2021

  1. The Independent SEND Review is published on the Council’s website. The review focussed on the processes, communication protocols and family-facing elements of the Council’s SEND services.
  2. The Council has also published its Action Plan addressing the review team’s recommendations, together with an open letter to parents and carers. It said it wanted to show it could put things right, had already started to make improvements to the way it did things and would continue to do so as quickly as it could.
  3. I note the action the Council is taking now to improve its SEND services, including communication with families. We hope these improvements will address the issues leading to the faults identified in this complaint. In view of this, I do not consider it appropriate to make any recommendations for service improvements in this decision.

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Agreed action

  1. To remedy the injustice caused by the above faults and, within four weeks from the date of this decision, the Council has agreed to:
  • apologise to Mrs Y for its delay in arranging Z’s assessment by an educational psychologist and its delay in responding to her complaint.
  • apologise to Z for its delay in arranging his assessment by the educational psychologist.
  • arrange a further review with Mrs Y and the school to consider the Educational Psychologist’s assessment and agree the action which should be taken to implement any recommendations.
  • pay Mrs Y £300 to reflect the upset, time and trouble caused by its delay in arranging the assessment and responding to her complaint. This figure is a symbolic amount based on the Ombudsman’s published guidance.
  1. Provide us with evidence it has completed the above.

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Final decision

  1. I have found fault by the Council causing injustice. I have completed my investigation on the basis the Council will carry out the above actions as a suitable way to remedy the injustice.

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Parts of the complaint that I did not investigate

  1. I have not investigated Mrs Y’s complaints about Z’s OT and SALT provision (set out at paragraph 1(b)). This is because this issue has already been investigated by us as part of another complaint.
  2. I have not investigated Mrs Y’s complaints about communication failures (paragraph 1 (a) or a failure to provide support (part of paragraph 1 (d)) in the period before July 2020. This is because this part of the complaint to us is late, and I do not consider there is a good reason why we should consider it now.
  3. 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)

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Investigator's decision on behalf of the Ombudsman

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