Summary: The Council delayed in completing the assessment of Ms F’s son’s special educational needs. This delay meant that her right to appeal to a Tribunal was also delayed as was the outcome of that appeal. Additional provision detailed as a result of the Tribunal’s decision was therefore delayed too. The Council will take the agreed action to recognise the injustice caused by the provision that was missed as a result of the delay.

The complaint

1. The complainant, whom I shall refer to as Ms F, says that Liverpool City Council failed to adequately assess her son’s special educational needs in order to issue an Education, Health and Social Care Plan following her request for this in October 2017. Specifically she says it:

1. delayed in completing the assessment and issuing the final EHCP and so failed to meet the relevant statutory deadlines;
2. produced an inadequate EHCP because it failed to obtain a satisfactory report from an educational psychologist or any report at all from a speech and language therapist; and
3. failed to make the SALT and OT provision agreed between Ms F and the Council after she had appealed to the Tribunal.

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The Ombudsman’s role and powers

2. 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. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. 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. I am aware that Ms F appealed to the SEN Tribunal about sections B, F and I of the EHCP. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended).

4. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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

6. I considered the written information Ms F provided with her complaint and discussed the complaint with her. I made written enquiries of the Council and considered all the information before reaching a draft decision on the complaint.
7. I gave the Council and Ms F the opportunity to comment on my draft decision and took account of their responses before reaching my final decision.
8. 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

9. The timescale for assessment for an EHC plan is a maximum of 20 weeks with an emphasis on completing the steps involved as soon as practicable. Paragraph 9.40 of the statutory guidance “Special Educational Needs and Disability Code of Practice: 0 to 25 years” says “The whole process of EHC needs assessment and EHC plan development, from the point when as assessment is requested…until the final EHC plan is issued, must take no more than 20 weeks…”. There are specific exemptions to thee time limits. These exemptions are listed and comprise:
• appointments arranged by the Council are missed by the child or young person;
• the child is absent from the area for at least four weeks;
• exceptional circumstances affect the child or his parent;
• the educational institution is closed for at least four weeks which may delay the provision of information from that institution.
10. Paragraph 9.19 of the statutory guidance states that if a council decides not to conduct an EHC needs assessment it must tell the child/parents of their right to appeal that decision and of the requirement for them to consider mediation should they wish to appeal. If the child or parent then decides to proceed to mediation the council must then ensure that a mediation session takes place within 30 days of the request.
11. The statutory guidance says the Council must gather evidence from relevant professionals about the child’s education, health and care needs and special educational, health and care provision that may be needed to meet identified needs. Paragraph 9.49 of the guidance states advice and information must be sought from:
• The child or the child’s parents;
• Educational advice from the child’s school;
• Medical information from a health care professional;
• Psychological advice and information from an educational psychologist;
• Social care advice;
• “Advice and information from any person requested by the child’s parent or young person, where the local authority considers it reasonable to do so”.
12. Where the SEN Tribunal orders a council to amend the special educational provision specified in an EHC plan, the council must issue the amended EHC plan within 5 weeks of the order being made.

What happened

13. The Council’s chronology of events regarding the EHC plan process states that Ms F requested an assessment on 12 September 2017 and that the Council issued its decision on this on 18 October 2017. The Council states it therefore issued its decision just over five weeks after the request was issued and that this was within the six weeks required by the relevant regulations. The Council’s decision was that it should not undertake an assessment.
14. Ms F indicated she would appeal against this decision and agreed to mediation. A mediation session took place in November 2017 and the Council says the result of this was an agreement to proceed to undertake an assessment of Y’s needs under the EHCP process. It confirms it then very promptly went on to start the assessment and issued a draft EHCP on 15 February 2018.
15. Following issue of the draft EHC plan Ms F entered into some fairly protracted discussions about the content of this and agreements around comments/suggested amendments from her and from the school were considered by the Council. The Council’s chronology notes that in late March Ms F asked that the plan was not made into the Final Plan. The Council agreed it would finalise the plan by mid- April after making some final changes. The Final EHCP was in fact issued on 9 April. The Council states this was 19 weeks and 6 days after the date of the mediation meeting regarding the initial refusal to assess. It was nearly 30 weeks from the date of the request to the issue of the final EHCP.
16. Ms F appealed to the SEN Tribunal later in April. She appealed about the special educational needs detailed in section B of the final EHCP, the provision detailed in section F and the school named in section I.
17. In August the Council received copies of an independent Educational Psychologist assessment and an independent Speech and Language Therapist’s (SALT) assessment. These assessments were commissioned by Ms F and completed following the issue of the final EHCP and formed part of the evidence presented to the SEN Tribunal.
18. The SEN Tribunal took place in November 2018 and the Tribunal issued its decision in early December. The final amended EHC plan was issued towards the end of January 2019.
19. The final EHCP issued following the tribunal detailed SALT and OT provision as:
• One 60 minute session directly from a SALT every half-term which was to be attended by the TA. Also that the SALT would provide an update termly programme for the TA to deliver twice a week for 30 minutes a session;
• OT to liaise with teacher/TA who is providing support to ensure correct positioning in lessons and appropriate seating, correct desk height etc. Suitably qualified and experienced OT to conduct a minimum 60 minute review of Y in Autumn term 2018 and Summer term of 2019 and will also meet teaching staff to go over the OT recommendations after each review session.
20. The Council says that after issuing the Amended Final EHCP in January 2019, it told Y’s school to put the provision in place and apply to the Council for the additional funding it needed for this. It says the School submitted its application of the additional funding by 10 February 2019 and says the Council has agreed to put into place the support detailed in Y’s EHCP in relation to SALT and OT support. It says this amounts to:
• 6 sessions per academic year with the SALT and 3 reviews and revision of the SALT programme; and
• 2 reviews a year with the OT of fine motor and sensory processing to include discussion with school staff and written summary.
21. The Council says that Y’s school have implemented their elements of support within the EHCP including the 1:1 support detailed in the final EHCP. The Council confirms that Y was seen by the OT on 7 March 2019 and by the SALT on 15 March 2019 for his first sessions with them. It argues this was a reasonable timeframe for school to have been able to arrange these visits.

Was the Council at fault and did this cause injustice?

22. Having carefully considered the evidence regarding Ms F’s appeal and what the Tribunal considered I have decided we do not have any discretion to consider part b) of Mrs F’s complaint. This is because matters regarding the assessment of Y’s needs were included in the appeal and so this takes this element of the complaint out of our jurisdiction. The Council says that it told Ms F of her right to make an application for costs to the Tribunal if she wanted the tribunal to consider this. The cost to Ms F of obtaining private EP and SALT reports as part of her case to the Tribunal are not a matter for me to address as I am not able to consider matters related to the Tribunal.
23. The total time from the date of Ms F’s request for an assessment to the issue of the final EHCP was one day short of 30 weeks which is some 10 weeks longer than the 20 weeks required in the regulations and the statutory guidance. I accept that the mediation pursued as a result of Ms F’s intention to proceed to tribunal took around four weeks and that this should not be included as a period of delay. I therefore agree that the Council delayed by six weeks in completing the assessment process. To be clear this calculation takes account of the near 30 weeks from the start of the process to the issue of the final EHCP minus the four weeks taken up arranging and undertaking the mediation. This means the process took 26 weeks and the time limit is 20 weeks resulting in a delay of nearly 6 weeks. The Council accepts that it issued the final EHCP just under six weeks later than it should have done.
24. The Council argues that Ms F requested extensions to the consultation timeframes before it issued the final EHCP in April 2018 and that in accommodating these requests it did not meet the statutory deadlines for assessment. I acknowledge the Council’s argument that it was trying to be accommodating in allowing Ms F extra time to respond to the consultation deadlines. However, the statutory deadlines and the exemptions for this are very clear and do not include agreeing additional time for the parents to respond. A reason for this is to ensure that the right to appeal to the Tribunal is not delayed, as it is in the child’s best interests to settle their education promptly. In this case, additional time did not result in an EHCP that Ms F found acceptable and she appealed in any case so the additional time taken simply delayed the right of appeal.
25. The Council was required to issue the amended EHCP following the Tribunal’s decision within five weeks of the Tribunal’s decision. It did so in around eight weeks so the Council missed the deadline for this by three weeks.
26. Following the Tribunal decision and the final EHCP being issued the Council says that the first visits by the OT and the SALT were both completed in March 2019. The amended EHCP should have been issued three weeks earlier than it was. In also taking account of the six week delay in completing the EHC assessment (which amounts to fault) I consider that, but for this delay, the final outcome of the Tribunal could have been reached six weeks earlier as it is reasonable to assume that Ms F would have appealed to the Tribunal six weeks earlier had the process been completed on time. Had it been, using the same timescales taken by the Tribunal process on Ms F’s appeal, then the Tribunal decision would likely have been completed by around mid-October and so the final EHCP would have been completed by mid-December. Had this in turn been the case it is reasonable to believe that the Council would have arranged the first SALT session for the January to February half-term period in 2019. I therefore consider that the delay in completing the assessment caused Y injustice as it delayed the start of his SALT provision by one half-term. As the OT provision is only twice yearly there are no grounds for me to conclude, with any certainty, that Y definitely missed out on earlier OT provision.

Agreed action

27. The Council will apologise to Ms F for the identified fault and injustice within one month of the date of this decision statement.
28. In future the Council will ensure that it adheres to the statutory timescales for EHCP assessment. It will provide us with details of how it will ensure this is the case within two months of the date of this final decision statement.
29. It will pay Ms F £300 to recognise the injustice caused to Y by one half-term’s missed provision of his SALT which is considered an education need under the final EHCP. It will do this within one month of the date of this final decision statement.

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Final decision

30. The Council delayed in completing the EHCP assessment and this delay caused consequent delays in Ms F being in a position to apply to the Tribunal and in the decision of the Tribunal. This in turn caused Y injustice in terms of delayed provision of SALT services.

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Investigator's decision on behalf of the Ombudsman