Summary: the Council took too long to issue B’s Education, Health and Care Plan and should have sought advice from an Occupational Therapist and Speech and Language Therapist sooner. The Council has apologised.

The complaint

1. Mrs M complains about her dealings with the Council in connection with her son, B’s Education, Health and Care (EHC) Plan. In particular, Mrs M complains about:
1. the Council’s response to her request for an EHC needs assessment;
2. delay issuing B’s final EHC plan, including problems obtaining the necessary advice from an Occupational Therapist (OT) and a Speech and Language Therapist (SALT);
3. the content of the final plan; and
4. the secure email system used by the Council, Egress.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. 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, section 34(3), as amended)
3. 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)
4. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
5. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
6. 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

7. I have considered:
• information provided by Mrs M;
• information provided by the Council;
• Special educational needs and disability code of practice: 0 to 25 years. Statutory guidance for organisations which work with and support children and young people who have special educational needs or disabilities published in January 2015; and
• Special Educational Needs and Disability Regulations 2014.
8. I invited Mrs M and the Council to comment on my draft decision.

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What I found

Mrs M’s complaint to the Council

9. Mrs M complained to the Council on 22 August 2018. The Council responded by letter dated 2 October 2018. Mrs M was dissatisfied with the Council’s response and asked the Council to respond at the next stage of its complaints process. The Council forwarded her request to a Director. Mrs M did not receive a response. She complained to the Ombudsman on 6 March 2019.
10. The Ombudsman’s Assessment Team asked the Council why it had not responded to Mrs M’s complaint at the second stage of its complaints process. The Council said the Director had decided Mrs M’s request was “not valid”, but he was on leave so the Council could not provide further explanation. The Council offered to consider the complaint at stage two, but the Ombudsman’s Assessment Team declined the Council’s offer. I have considered the complaint instead.

Education, Health and Care Plans: the law

11. A child with special educational needs may have an Education, Health and Care (EHC) Plan. An EHC Plan describes the child’s special educational needs and the provision required to meet them.
12. The procedure for assessing a child’s special educational needs and issuing an Education, Health and Care Plan is set out in legislation and Government guidance.
13. Parents have a right of appeal to the SEND Tribunal if the Council decides not to begin an assessment or issue a plan, or if they disagree with the special educational provision or the school named in their child’s Education, Health and Care Plan.

Complaint a) the request for an EHC needs assessment

14. In May 2017, B’s school asked the Council to carry out an Education, Health and Care (EHC) needs assessment. The Council considered the school’s request, but decided not to carry out an assessment. Mrs M appealed to the Tribunal. Her appeal was successful. The Tribunal ordered the Council to carry out the assessment. The Tribunal described the school’s case for an assessment as ‘unusually strong’.
15. Mrs M complains about the Council’s decision not to assess B’s EHC needs. She says the evidence of his needs was ‘overwhelming’. She thinks it is unreasonable she had to appeal to the Tribunal to secure an assessment and complains the appeal caused delay meaning B was without suitable education for longer than necessary.
16. The Ombudsman does not decide whether the Council should assess B’s needs. This is the Council’s job. Parents have a right of appeal to the Tribunal if they disagree with the Council’s decision. The Ombudsman cannot investigate complaints where a parent has appealed to the Tribunal.
17. Mrs M appealed the Ombudsman’s decision. The Ombudsman cannot investigate her complaint about the Council’s refusal to assess B’s needs or the delay this caused.

Complaint b) delay issuing B’s EHC Plan

18. On 13 October 2017, the Tribunal ordered the Council to carry out an EHC needs assessment. Regulations set out the timescales within which the Council must carry out the Tribunal’s order.
19. The Council must notify parents it will carry out the assessment within two weeks of the Tribunal order. (Special Educational Needs and Disability Regulations 2014, Regulation 44(2)(b))
20. If, following the assessment, the Council decides to issue an EHC Plan, it must issue a final plan within 14 weeks of the date of the Tribunal order. (Special Educational Needs and Disability Regulations 2014, Regulation 44(2)(b)(ii))
21. Following an assessment, the Council decided to issue an EHC plan. It should have issued the final plan by 2 March 2018. The Council issued B’s final plan on 4 July 2018. This was 17 weeks late.
22. Mrs M complains about the delay. She also complains the Council did not obtain advice from an Occupational Therapist (OT) and a Speech and Language Therapist (SALT) before issuing B’s EHC Plan, so the Plan was based on incomplete information.
23. Regulations set out the advice and information the Council must seek when assessing a child’s EHC needs and issuing an EHC plan. (Special Educational Needs and Disability Regulations 2014, Regulation 6)
24. The Council must seek advice about the young person’s needs from a health care professional, an educational psychologist and any other person the Council thinks is appropriate. The Council must also seek advice from any person the child’s parent “reasonably requests”.
25. Government guidance says the Council should consider with the parent and the consultees the “range of advice required to enable a full EHC needs assessment to take place.” The guidance says, “The child’s parent […] should be supported to understand the range of assessments available so they can take an informed decision about whether existing advice is satisfactory.” (Special Educational Needs and Disability Code of Practice 2015, paragraph 9.47)
26. The Council wrote to the people listed in the regulations to request advice on 19 October 2017, including an OT and SALT. The Council wrote to Mrs M to say that it had begun consultation. However, it does not appear the Council worked with Mrs M to understand the range of assessments available so she could make an informed decision about whether existing advice was satisfactory and sufficient for the assessment. The letter did not invite Mrs M to suggest other assessments the Council should consider.
27. The Occupational Therapy service sent a copy of a 2016 assessment and explained that B had been discharged. The Health Service explained that B was not known to the SALT service.
28. The Council issued a draft EHC Plan based on the information received. Mrs M complained about the lack of up-to-date input from an OT and the lack of assessment by a SALT. Mrs M arranged referrals to the OT and SALT services, but there was a waiting list. The Council proposed continuing with the draft plan and incorporating the OT and SALT advice when it was available.
29. In response to Mrs M’s complaint, the Council acknowledged that it should have sought the advice sooner. The Council apologised and explained it would provide training for staff to avoid similar problems in the future.
30. I uphold Mrs M’s complaint about the delay issuing B’s EHC Plan and the problems she encountered obtaining OT and SALT advice. If the Council had worked with Mrs M to understand the range of assessments available and decide whether existing advice was satisfactory, as Government guidance suggests, the Council could have sought OT and SALT assessments sooner. I cannot, however, say how long it would have taken for the assessments to be completed. In these circumstances, I consider the Council’s apology a suitable remedy.
31. Mrs M was unhappy with B’s final EHC Plan and has appealed to the Tribunal. The delay issuing the plan has delayed Mrs M’s appeal. Since lodging her appeal, Mrs M has moved to another Council area. I cannot say what the implications of the delay for the outcome of Mrs M’s appeal have been.

Complaint c) the content of B’s final EHC plan

32. Mrs M was unhappy with B’s final EHC plan and appealed to the Tribunal. She appealed sections B (special educational needs), F (special educational provision) and I (placement).
33. The Ombudsman cannot consider Mrs M’s complaint about the contents of B’s EHC Plan because Mrs M has used her right of appeal.

Complaint d) the secure email system used by the Council

34. Mrs M complains about the secure email system used by the Council. Mrs M says the Council’s secure email system disadvantages parents because messages are deleted after a time. She asked to use standard email, but the Council refused.
35. The Council explained the email system allows it to send emails and attachments securely and encrypted to parents, schools and other partners safely and free of charge.
36. It is for the Council, not the Ombudsman, to decide how to send information by email. There is no fault in the Council’s decision.

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Final decision

37. I uphold Mrs M’s complaint. The Council took too long to issue B’s EHC Plan and should have sought advice from an OT and SALT sooner. The Council’s apology is an appropriate remedy.

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Investigator's decision on behalf of the Ombudsman