Summary: Mrs B complains the Council has not dealt with her daughter Miss X’s Special Educational Needs properly. The Council did not follow statutory timescales, did not obtain reports in time and did not deal with Mrs B safeguarding complaint properly. Mrs B incurred costs to obtain independent reports, did not receive a proper response to her complaint about safeguarding and suffered distress. Miss X’s right to appeal was delayed and she missed support. The Council has agreed to apologise to Mrs B, pay Mrs B £200 for her time, trouble and avoidable distress, pay Mrs B £600 for the delay and Miss X’s missed provision and £1050 for the independent reports she had to provide and review how SEND assessments requests are communicated and actioned.

The complaint

1. The complainant, whom I shall refer to as Mrs B, complains the Council deliberately delayed and reduced the provision for her daughter Miss X’s needs because:

1. It did not adhere to the proper timescales;
2. it failed to produce reports in time;
3. it failed to notify her of Miss X’s school place in time;
4. it made improper changes to Miss X’s draft EHCP;
5. It informed Mrs B that an Occupational Therapist (OT) didn’t stand by her recommendations which was not true;
6. it undertook a safeguarding investigation into Mrs B but did not disclose this to her;
7. It did not undertake a mediation process properly;
8. it asked an Independent OT to state a professional opinion about necessary provision before seeing her daughter;
9. It did not handle her complaint regarding safeguarding and alleged verbal threats properly;
10. It delayed sending drafts out via the external post with long waits between post mark and date of receipt;
11. It has not apologised for problems with transport provision.

2. Mrs B says Miss X has missed out on special educational needs (SEN) provision because of the delays and Mrs B has had to pay for reports.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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)
4. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
5. A child with special educational needs may have an Education, Health and Care (EHC) plan. This 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 education, or name a different school. Only the tribunal can do this.
6. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
7. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
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. 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)
10. 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

11. I have spoken to Mrs B about her complaint and considered the information she has provided to the Ombudsman. I have also considered the Council’s response to their complaint and its response to my enquiries.
12. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Special Educational Needs (SEN)

13. Where an EHCP is necessary, Councils must complete and issue the EHCP within 20 weeks from the point when as assessment is requested. (SEND Code of Guidance)
14. When local authorities request information as part of the EHC needs assessment process, those supplying the information must respond in a timely manner and within a maximum of 6 weeks from the date of the request. (SEND Code of Guidance)
15. The final EHC plan can differ from the draft EHC plan only as a result of any representations made by the child’s parent or the young person and decisions made about the school to be named in the EHC plan. The local authority must not make any other changes – if the local authority wishes to make other changes it must re-issue the draft EHC plan to the child’s parent or the young person. (SEND Code of Guidance)
16. Councils must notify the child’s parent or the young person of their right to appeal to the Tribunal and the time limit for doing so, of the requirement for them to consider mediation should they wish to appeal, and the availability of information, advice and support and disagreement resolution services. (SEND Code of Guidance)
17. Where a local authority maintains an EHCP for a child or young person it must secure the specified special educational provision for the child or young person. (Section 42 (1 & 2) of the Children and Families Act 2014)
18. 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.

What happened

19. Mrs B requested an EHCP assessment for her daughter Miss X. The Council decided not to assess Miss X for an EHCP. Mrs B challenged this decision and the Council then decided it would assess Miss X for an EHCP.
20. The Council commissioned services from an NHS Trust, including for the provision of Occupational Therapist (OT) and Speech and Language Therapist (SaLT) advice. The Council requested information and advice from the Trust to enable it to make an assessment.
21. There were delays in providing the requested OT and SaLT information and Mrs B commissioned her own private reports concerning these areas. There was disagreement between professionals about the level of provision that Miss X required.
22. Multiple versions of Miss X’s EHCP were issued throughout 2019. Mrs B complained to the Council about delays in providing information, issues involving the Council and private OT and SaLT reports, statutory timescales being exceeded and missing EHCP documents.
23. Amendments were made to Miss X’s EHCP between February and April 2019. Mrs B then went to mediation with the Council in May 2019. Mrs B also met with the Council to discuss her complaint in June 2019.
24. Further amendments were made to Miss X’s EHCP between June and September 2019 and the Council sought to obtain a further independent OT report. Mrs B remained unhappy with the content of Miss X’s EHCP and appealed to SEND in October 2019. The Tribunal hearing took place on 7 April 2020.

Analysis

Complaint 1: Timescales

25. Mrs B's request for an EHCP assessment was accepted by the Council on 25 July 2018. When this was refused by the Council, Mrs B asked for it to be reconsidered. She made it clear that she believed the threshold for assessment was already met. The Council then reviewed its decision. The record of SEN advisory panel clearly records, “a further review of the referral….has been made”. The Council made a decision to assess Miss X on 28 September 2018.
26. The Council took six weeks to make its original decision not to assess Miss X. The Council should therefore have had 14 weeks from 28 September to issue Miss X’s EHCP. The Council should have issued Miss X’s EHCP by 7 January 2019.
27. The Council accepts the statutory timescale was missed. The Council says it sent Mrs B a final EHCP along with a letter outlining her right to appeal in March. The Council issued Miss X’s final EHCP and Mrs B was notified of her right to appeal in March 2019. I have seen evidence of postage showing the Council did not send Miss X’s final EHCP until 1st April. Miss X could not have received the final EHCP before 2nd April 2019.
28. I agree with the Council that it did not issue Miss X’s EHCP within the statutory timescale. This is fault by the Council. The delay in issuing Miss X’s EHCP was the difference between 7 January 2019 and 2 April 2019, a total of 12 weeks.
29. Mrs B has since appealed to SEND about the content of Miss X’s EHCP and the Tribunal reached its decision on 7 April 2020, agreeing the following significant elements:
• 25 hours special support assistant per week;
• 23 hours SaLT intervention;
• 29.5 hours OT intervention, including contact and non contact time. Including an initial 6 week (6 hours) OT, followed by up to 3 hours termly sessions, annual review report and attendance, termly reviews; and
• 15 hours support from ASD Team specialist teacher per year.
30. Miss X has missed out on 12 weeks of SEN provision.

Complaint 2: Timeliness of reports

31. The Council commissions OT and SaLT services from a local NHS Trust. I have reviewed the commissioning arrangements for services provided to the Council by the Trust. The service specification states, ““Provision of advice for SEND assessments will usually exclude children and young people who are not known to the service or have been discharged from the service for more than 12 months (unless in exceptional circumstances on an individual basis if required)”.
32. Copies of NHS records, together with emails from the Council, show:
• At the beginning of October 2018, the Council initially made OT and SaLT Appendix requests to the Trust.
• The Trust responded stating only whether Miss X was known to the services.
• At the end of October, the Council contacted the Trust again to chase up the provision of its EHCP Appendix F request, stating the deadline was fast approaching.
• At the beginning of November 2018, the Council again contacted the Trust saying Mrs B, Miss X’s school and the Council were concerned the OT and SaLT reports had not yet been provided.
• The Trust replied again stating that it responded directly to officers that Miss X was not known to the services.
• Three days later, Mrs B commissioned her own private reports.
• The Trust decided to commission its own reports when it was aware of the outcome of the private reports commissioned by Mrs B.
33. The Trust responded with a ‘not known to services’ reply despite a request and two reminders from the Council for it to complete EHCP Appendix F reports. The Trust’s response was apparently based on an interpretation of the service specification that it did not need to commission the reports because Miss X was not known to its services within the last 12 months. The service was not delivered according to the service specification, which contributed to the delay identified in complaint 1 above.
34. The Council retains overall responsibility for obtaining necessary reports and information to enable an EHCP assessment to be made. The Council accepts that information it requested was not provided within the six week timescale. This is fault by the Council.
35. I have seen emails which show that Mrs B was aware of the difficulties about the provision of information in late October 2018. Mrs B suffered injustice when she incurred costs as she commissioned independent OT and SaLT reports in early November 2018, only after it became apparent that the information requested by the Council would not be provided in time.

Complaint 3: Notification of Miss X’s school place

36. The Council says Miss X was allocated a place through the normal admissions process at School B on 20 March 2019. I have seen Council emails that show Miss X was not allocated her first preference at School B through the normal admissions process. The Council admissions department became aware Miss X had an EHCP after the final version was issued. The Council named School B in her final EHCP later after School B had been consulted about being named in the EHCP. Miss X was able attend the named school in September 2019.
37. I have seen emails from the Council to Mrs B in February 2019 stating that the Council would consult with School B and would provide a formal answer before the normal admissions deadline and shows there was a delay in the Council consulting with School B. This is fault by the Council. However, Mrs B and Miss X did not suffer any significant injustice as a result because School B was named in Miss X’s EHCP and the delay in doing so was short. I note the Council also apologised to Mrs B at the time for the delay in consulting with School B.

Complaint 4: Changes to Miss X’s draft EHCP

38. I have identified a number of changes made between the draft EHCP in January 2019 and the EHCP issued in February 2019. I have seen emails between Mrs B and the Council which show Mrs B complained about additions to the February EHCP that she was not aware of.
39. I have also seen internal Council emails in April 2019 which show the Council accepted the correct process had not been followed because amendments had been made which had not been requested by Mrs B and it intended to clarify the situation with Mrs B. The Council later issued a further final EHCP in April 2019.
40. However, as identified in paragraph 28, Mrs B already had a right of appeal to Tribunal from 2 April 2019. This part of Mrs B’s complaint is about the content of Miss X’s EHCP and is therefore inseparable from the right to appeal. For this reason I consider the Ombudsman is unable to further investigate complaint 4.

Complaint 5: Occupational therapist recommendations

41. This part of Mrs B’s complaint intrinsically relates to differences in professional opinions expressed by Council and privately commissioned occupational therapists (OTs) before the final EHCP was issued in April 2019.
42. Mrs B referred both OTs to the Health and Care Professionals Council (HCPC). I have seen a letter from the HCPC showing it decided not to investigate because it found no evidence to support Mrs B’s concerns about the dispute in professional opinion.
43. Any outstanding differences in opinion about provision necessary for Miss X have been considered and resolved through Mrs B’s Tribunal appeal decision. For this reason, I consider the Ombudsman is unable to further investigate complaint 5.

Complaint 6: Safeguarding investigation

44. Mrs B has already complained to the Council and the NHS Trust about a safeguarding investigation. Mrs B has received a joint response to this complaint in November 2019. This response said that safeguarding was discussed as part of a multi-professional meeting about the provision Miss X needed in her EHCP, it was agreed there were no child protection issues and that no action was taken.
45. Mrs B says safeguarding issues have been raised and discussed by the Council in emails and at meetings over an extended period of time.
46. Further documents provided by Mrs B show that two meetings were held in early January and late February and a discussion in March. The Trust later confirmed to Mrs B that redacted information it provided to her relating to events concerning the meetings were about safeguarding issues.
47. Records show that the Council suspended the EHCP process to allow for this determination to take place. This contributed to the delay already identified in complaint 1.
48. An email between the OT and the Council shows the Council did not think Miss X had already received a diagnosis of ASD, which was contradicted by the OT. The final EHCP issued was clear that Miss X had a diagnosis of ASD. OT records also show that concern was expressed about Mrs B declining treatment sessions and that she may have been ‘disabling’ rather than ‘enabling’ Miss X.
49. On the balance of probabilities the Council made a mistake about the status of Miss X’s diagnosis, which was correctly challenged by the OT and was recorded accurately in Miss X’s final EHCP.
50. There is no evidence that any of the concerns were progressed to formal safeguarding actions as a result. This is consistent with the joint complaint response sent to Mrs B in November 2019. The Ombudsman is not able to investigate the actions of the Trust outlined in the joint complaint response. This is not fault by the Council.

Complaint 7: Mediation process

51. Mrs B says the Council did not abide by the outcome of the mediation process, because it did not chase reassessment with a different Speech and Language Therapist. The Council has been unable to provide evidence that it did so. On the balance of probabilities, the Council therefore did not take the action it said it would in the mediation process.
52. Mrs B says she had to pay for an independent SALT report because of the Council’s failure. None of the EHCP documents after the mediation meeting refer to a SALT report from 2019 being taken into consideration. Mrs B says mediation should negate the need for appeal to Tribunal. There is no guarantee that the Council would have agreed the provision Mrs B thought necessary and Mrs B retained her right of appeal.
53. Mrs B had the right of appeal to tribunal after the final EHCP was issued. This part of Mrs B’s complaint is essentially about the content of Miss X’s EHCP and is therefore inseparable from the right to appeal. For this reason I consider the Ombudsman is unable to further investigate complaint 7.

Complaint 8: Occupational therapist opinion

54. The Council says an independent OT was contacted in relation to seeing Miss X, but was not asked to make a determination about provision before seeing her. The Council confirmed it commissioned a third independent OT report and has provided a copy, dated December 2019.
55. Emails from July show the Council liaised with an independent OT regarding an OT assessment. The Council asked the OT, ”..can I confirm you feel direct input is not required?” The OT’s response to the Council’s request was to quote the costs for their work. This part of Mrs B’s complaint relates to the conduct of the Council as well as relating to the content of Miss X’s EHCP.
56. The part of Mrs B’s complaint about the content of Miss X’s EHCP is inseparable from the right to appeal. For this reason I consider the Ombudsman is unable to further investigate this.
57. I have carefully considered the evidence relating to the conduct of the Council, that was not appealable. Even if there was fault, I have not been able to identify any significant injustice that Mrs B or Miss X may have suffered. For this reason, I have decided not to investigate this further.

Complaint 9: Complaint handling

58. Emails between Mrs B and the Council about verbal threats show Mrs B agreed this complaint was made to the NHS Trust, not the Council.
59. Mrs B made a complaint to the Council and the NHS Trust about the safeguarding issues related to complaint 6. The Council confirmed it was considering Mrs B’s complaint at stage one of its complaints process, that it would write to Mrs B if matters fell outside the Council’s jurisdiction and that it would work jointly with the NHS Trust to provide a response.
60. The Council also wrote to Mrs B to tell her it was working on a response to her complaint, indicating this was separate to a response from the NHS Trust. There is no evidence the Council wrote to Mrs B to advise her that any part of her complaint fell outside its jurisdiction. A joint response was sent from the Council and the NHS Trust to Mrs B in November 2019. The response stated that Mrs B could escalate her complaint to the Parliamentary and Health Services Ombudsman.
61. The Council should have either written to Mrs B advising her it had no jurisdiction to consider her complaint and then allowed the NHS Trust to respond alone, or it should have considered her complaint at stage two of its complaints process when she was unhappy with the outcome. This is fault by the Council. Mrs B has suffered injustice as a result because:
• She lost the opportunity for her complaint to be properly considered by the Council and has had to make numerous subject access requests in order to partially understand the Council’s involvement in events in early 2019 relating to safeguarding;
• the joint complaint response in November 2019 was partially inaccurate; and
• Mrs B has had to refer herself to her professional standards body in relation to her employment, given the lack of transparency about the safeguarding issues the Council considered.

Complaint 10: Delayed drafts

62. I have seen evidence of postage and emails showing the Council delayed sending Miss X’s final EHCP to her. The Council is not responsible for any delays caused by the Royal Mail. I consider this to be fault by the Council. The Council has already apologised for the delay. This is an appropriate remedy. I have already taken account of any injustice caused by the delay itself as part of complaint 1.

Complaint 11: Transport provision apology

63. The Council agrees that transport provision was agreed with Mrs B in June 2019 and the taxi driver contacted her in September about being unable to accept X on the transport. I have not seen evidence that there was any actual failure of transport provision. I have not been able to identify any significant injustice that Mrs B or Miss X may have suffered. For this reason, I have decided not to investigate this further.

Agreed action

64. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although we found fault with the service of the NHS Trust, we have made recommendations to the Council.
65. To remedy the injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this decision:
• Apologise to Mrs B;
• Pay Mrs B £200 for her time and trouble and avoidable distress;
• Pay Mrs B £600 in respect of the missed SEN provision caused to Miss X by the delay in producing her final EHCP;
• Pay Mrs B £1050 in relation to the costs of private OT and SaLT reports she provided; and
• Undertake a review of practice relating to the communication and execution of requests from the Council for SEND assessments and ensure guidance and recommendations are circulated to professionals in both the Council and the NHS Trust.

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Final decision

66. I have found fault by the Council which caused injustice to Mrs B and Miss X. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman