Summary: Mrs X complained about delay in assessing her son’s special educational needs and putting the provision in his Education Health and Care Plan in place. She says he missed out on support as a result. There was no, or no significant, delay in the assessment. The Ombudsman can only consider part of the alleged delay because of limits on our jurisdiction. The Council accepts there was delay in arranging some of the provision. It has agreed a suitable remedy.

The complaint

1. Mrs X complains that there has been unreasonable delay by the Council in assessing her son’s special educational needs and putting the provision in his Education Health and Care Plan in place.
2. As a result she says her son has missed out on Occupational Therapy and Speech and Language Therapy support he should have had.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, sections 26(1) , 26A(1), and 34(3), as amended)
4. 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)
5. There are some limits on the Ombudsman’s jurisdiction. 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. If the person has appealed we have no discretion and cannot investigate. (Local Government Act 1974, section 26(6)(a), as amended)
6. If someone has lodged an appeal to a tribunal the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407)
7. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
8. 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)

Back to top

How I considered this complaint

9. I discussed the complaint with Mrs X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I considered relevant law and guidance on Education Health and Care assessments and Plans. I shared my draft decision with the Council and Mrs X and considered their responses.

Back to top

What I found

Education Health and Care Plans

10. 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.
     
11. There is a right of appeal to the SEND Tribunal against a decision not to carry out an EHC assessment or about the provision or placement set out in an EHC Plan.
     
12. Where a SEND Tribunal orders a council to amend an EHC Plan, the council must issue the amended Plan within five weeks of the Order. The time runs from the day after the Tribunal sends out the Order.
13. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance says:
• Where a local authority receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment.
• The whole process from the date of the request until the final EHC Plan is issued must take no more than 20 weeks (unless certain exceptions apply).
14. Local authorities have a duty to secure the special educational provision set out in an EHC Plan. (Children and Families Act 2014 section 42)

What happened

15. Mrs X has a son, Y, of primary school age. He was diagnosed with ADHD in February 2018 and autism in January 2019. He has an EHC Plan and attends a mainstream primary school, School 1.
16. School 1 asked the Council to carry out an EHC assessment of Y on 19 July 2017. The Council refused, sending Mrs X a decision letter six weeks later on 31 August 2017. Mrs X appealed against the decision to the SEND Tribunal on 22 October 2017. On 8 January 2018 the Council agreed to carry out an assessment.
17. The Council started the assessment the same day, seeking advice from School 1, the Educational Psychologist, consultant community paediatrician and specialist teaching team. Mrs X asked for an assessment by an Occupational Therapist (OT) and the Child and Adolescent Mental Health Service (CAMHS). The Council made a referral to the OT service on 18 January 2018. School 1 and the paediatrician made a referral to CAMHS. The Council received the Educational Psychology advice in late February 2017 and the medical advice at the beginning of March 2017. CAMHS decided a formal assessment was not necessary at that time.
18. The Council issued a draft EHC Plan on 12 March 2018. It had not received an OT report by this time. The OT completed the assessment towards the end of March, although the Council says it did not receive it until later. Mrs X says the OT told her Y should have some OT support but did not write this recommendation into the report.
19. The Council issued the final EHC Plan on 5 April 2018. The Plan set out teaching strategies and support to be provided by the class teacher and a Teaching Assistant (TA), including some 1:1 support, with help and monitoring from the School’s Special Educational Needs Coordinator. It did not include any OT provision.
20. Mrs X was not happy with the support set out in the EHC Plan as it did not include any therapies. She appealed to the SEND Tribunal on 5 June 2018.
21. Mrs X also sought further assessments. She challenged the decision by CAMHS not to assess Y and it agreed to assess him in September 2018. The result was a recommendation for play therapy. Mrs X arranged this therapy privately. She also arranged a Speech and Language Therapy (SALT) assessment in November 2018. She says the therapist advised her Y needed a full-time 1:1 TA but did not write this recommendation into her report. The Council says the report concluded Y did not need input from the SALT service. Rather school staff could support him with his social communication difficulties and use of social stories.
22. The OT prepared a further report which recommended advice, support and training for staff at the School working with Y.
23. The SEND Tribunal hearing took place on 27 November 2018. The Tribunal decided the Council should amend Y’s EHC Plan to include the following additional support:
• access to support from a TA with experience of working with pupils having social communication difficulties and ADHD for 32.5 hours each week
• a total of 8 hours and 15 minutes per academic year indirect support from an OT made up of:
1. 60 minutes per term for writing a sensory diet and reports
2. 60 minutes per term for observation and review with class staff
3. 45 minutes per term for feedback to parents
4. 60 minutes per year for staff training.
• up to 12 sessions of weekly play-based therapy from a qualified professional.
24. It also included work on social stories with Y by the class teacher and TA, but no support from a specialist SALT therapist.
25. The Council received the Tribunal Order on 9 December 2018. It issued an amended final EHC Plan on 1 February and then a further amended final EHC Plan on 18 February 2019 setting out the provision ordered by the Tribunal.
26. The Council says it contacted the NHS Children’s OT Service to arrange the OT provision after receiving the Tribunal decision. It has not said when it first approached the OT Service. On 10 April 2019 the OT Service told the Council it could not offer the provision and so a few days later the Council contacted an independent OT. The independent OT said the earliest they could see Y would be in June 2019. The observation took place in June and the OT arranged a visit to the school for September 2019.
27. Mrs X made a formal complaint to the Council in March 2019 about the way it handled Y’s EHC assessment and about lack of provision. The Council replied in early April 2019. Regarding the therapies Y needed, the Council confirmed the following.
• Play therapy: It noted the provision set out in the EHC Plan and that Mrs X had been arranging and paying for play therapy privately. It offered to reimburse the fees and arrange for continuing payments once Mrs X provided the necessary information.
• SALT: The EHC Plan, in line with the SALT report received, did not require further input from the SALT service. School staff would follow the Plan in relation to developing social stories, with termly visits from the Council’s SEND team.
• OT: It explained the NHS Children’s OT Service was not able to provide a service and said the Council would commission an independent OT, to start early the following term.
28. Mrs X complained to the Ombudsman about the difficulties she had experienced in getting the support her son needed. She said she had been trying to get the right support for the past 19 months and he still did not have the OT or SALT support he needed.

Council’s response

29. In response to the Ombudsman’s enquiries, the Council recognised there was delay in putting in place the OT provision set out in the final EHC Plan following the Tribunal decision. It notes there was no support in place until the summer term 2019. The Council has offered to make up for the missing provision in the spring term 2019 by arranging an extra visit during the autumn term 2019.

Analysis – jurisdiction, fault and injustice

30. The Council received the request for an EHC assessment in July 2017 and issued the final EHC Plan following the Tribunal decision in February 2019. So the whole process took over a year and a half. It then took a further four months before any OT support was in place. It is understandable, then, that Mrs X feels it took too long for Y to get the support he needs. However the limits on the Ombudsman’s powers referred to in paragraphs 5 and 6 above mean we cannot consider the whole of this period. I can only consider delay which happened outside of any periods during which Mrs X had or used a right of appeal.
31. I have looked first at whether there was delay by the Council between the request for an EHC assessment and the decision refusing to assess. The Council responded to the request in the required timescale of six weeks. So there was no delay at this point.
32. Once the Council issued the decision, Mrs X used her right of appeal. She appealed to the SEND Tribunal on 22 October 2017. The Council agreed to undertake an EHC assessment around two and half months later, on 8 January 2018. But I cannot consider this period as the decision was under appeal.
33. The whole process from the request for an assessment to the issue of the final EHC Plan should be completed in 20 weeks. However if the Council decides not to assess and the parent appeals, as in this case, the period is broken. The clock stops when the Council makes the decision not to assess. The decision then stands until it is either overturned by a Tribunal or the Council reverses it. Where the Council changes its decision and agrees to assess, the Ombudsman takes the view that the period starts again at week six. The Council then has 14 weeks to complete the assessment and issue a final EHC Plan.
34. In this case the Council changed its decision and agreed to carry out an assessment on 8 January 2018. By my calculation it therefore had until 16 April 2018 to complete the assessment and issue the final EHC Plan. The Council says the deadline was 29 March and so in issuing it on 5 April it was five days late (ignoring two Bank Holiday days). So either it issued the EHC Plan in time, or there was no significant delay.
35. Once the Council issued the final EHC Plan, Mrs X again had a right of appeal. She disagreed with the content of the EHC Plan, including the lack of OT support. However I cannot investigate this issue because it is a matter about which she could, and did, appeal to the SEND Tribunal.
36. Nor can I consider any alleged delay between the date of Mrs X’s appeal in June 2018 and the date of the Tribunal hearing in November 2018. This was part of the appeal process and so is outside the Ombudsman’s remit.
37. So, taking account of the limits on our jurisdiction I find that the delay in carrying out the assessment and issuing the final EHC Plan was a maximum of five days.
38. Once the Council issued the final amended EHC Plan in line with the Tribunal decision, it had a duty to ensure the support set out in the Plan was arranged. I can consider any delay in doing so. The Council had five weeks to amend the EHC Plan in line with the Tribunal Order. It took ten weeks to issue the second amended Plan, which includes the Christmas period. There was then further delay in putting the OT provision in place. The Council has recognised it did not do so until the summer term 2019. This combined delay was fault.
39. The EHC Plan did not provide for direct sessions for Y with an OT therapist. But the lack of a programme, classroom observations, and training to staff by the specialist therapist would have had an impact on the ability of school staff to support Y. Mrs X also missed out on the feedback she should have had from the OT.
40. The Council says it missed provision for the spring term 2019. However as the first OT visit only took place in June 2019, Y lost the opportunity to receive the appropriate OT support for most of the summer term as well.
41. Mrs X has confirmed that Y received the required 1:1 support from an experienced TA from September 2018. He received play therapy as Mrs X arranged this herself. She has confirmed that the Council has now reimbursed the costs. So she has received an appropriate remedy for this part of the complaint.
42. Mrs X says Y did not receive the SALT support he should have had. However the Ombudsman can only investigate whether the Council put in place the provision set out in the EHC Plan, not any additional support she considers he should have had. The EHC Plan did not call for Y to have direct SALT provision. If Mrs X disagreed with the speech and language support set out in the Plan, that would have been a matter to take up through her appeal.
43. Similarly, while Mrs X says Y should have been receiving OT support from April 2018 when the first final EHC Plan was issued, this was a matter for appeal. I therefore cannot consider it.

Agreed action

44. The Council has offered to make up for the loss of OT provision by arranging an additional visit. But as staff working with Y did not have advice from an experienced specialist or a personalised sensory diet until June 2019, it seems unlikely an extra visit later in the year would be enough to make up for the loss of opportunity for Y to make progress with his sensory needs. As the Council has not provided evidence to the contrary, such as information from School 1 or a professional opinion from the OT, I find that the Council’s offer is not a sufficient remedy.
45. The Council has agreed that as well as the extra visit in the autumn term it will offer Mrs X a payment of £400 to recognise the loss of OT support. This should be used for the benefit of Y’s special educational needs. Allowing one month for the Council to have arranged the provision, the recommended sum represents £100 per month for loss of OT provision. In arriving at this figure I have taken account of the fact that Y was attending school full-time and received the rest of the support set out in his EHC Plan.
46. The Council will also apologise to Mrs X for the delay in arranging the OT provision. It will take these actions within one month of the final decision on this complaint.

Back to top

Final decision

47. I have found that the Council was at fault in delaying arranging part of the support set out in Y’s EHC Plan following the Tribunal Order. I am satisfied with the action the Council has agreed to take to remedy the injustice caused and I so have completed my investigation.
48. 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.

Back to top

Investigator's decision on behalf of the Ombudsman