Summary: There was delay by the Council in updating an Education, Health and Care plan following a transition review in May 2018. Without this fault it is likely the Council would have been in a position to name the next school placement earlier avoiding unnecessary uncertainty for Mr X’s daughter and a rushed transition to the next phase of her education. The Council has agreed to apologise and provide a financial payment to acknowledge the distress caused. The Ombudsman has not identified fault in other aspects of Mr X’s complaint about incorrect diagnosis and intervention.

The complaint

1. Mr X has complained to the Ombudsman about the special educational provision made available to his daughter, whom I shall refer to as Y. Mr X complains:
1. The Council refused to assess Y’s needs delaying her access to an Education, Health and Care (EHC) Plan for two years
2. The Council delayed in correct identification of Y’s learning needs and in identifying these in her EHC plan
3. That inappropriate teaching methods were advised and carried out for two years and three months which led to Y falling further behind her peers.
4. That the Council and Y’s primary school failed to communicate effectively about the correct resources to meet Y’s needs
5. That no Council officer attended a crucial transition review of Y’s Education, Health and Care Plan
6. That the Council was dismissive of assessment for dyslexia.
7. That the Council discriminated against Y by not making reasonable adjustments for her to access education
8. That the Council was negligent in failing to identify Y’s difficulties and provide accurate advice on interventions
9. That the Council delayed naming a secondary school place
10. That the Council failed to put in place speech therapy included by the Tribunal in an amended EHC plan.
2. Mr X says that due to the above alleged failures his daughter missed out on appropriate educational interventions for dyslexia and language difficulties which adversely affected her educational progress. Mr X also says he has been put to unnecessary time and trouble holding the Council to account for failings to his daughter.

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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 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. The Local Government Act places restrictions on what we can investigate:
• 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)
• 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)
• We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
• 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)
• 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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What I have investigated

7. I have investigated the complaint points above except:
• Point a). I have not investigated if there was a two year delay before Y received an EHCP in 2016. This is too long ago and Mr X could have brought a complaint about this matter at the time. There are also evidential difficulties in establishing what happened from 2014 to 2016.
• Point h). I not investigated if there was negligence by the Council. Negligence claims are generally best decided by a court which has the benefit of expert advice as to the appropriate professional standards to apply. The Ombudsman does not have access to expert advisers and our role is to consider if there was fault in administrative processes.
• I have not investigated the period before the 2017 annual review. Mr X had a right of appeal after he received the 2016 final EHC plan which it was reasonable for him to use if he disagreed with the Plan.
8. In relation to points b), c), d) and g) I can only investigate the actions of the Council, I cannot investigate if there was fault by the school as schools are not within our jurisdiction. I can also only look at whether the Council followed the correct process, we do not usually question professional judgments.
9. In relation to Point j, this was not part of Mr X’s original complaint and was not addressed in the Council’s stage one and two complaint responses. It would be premature for the Ombudsman to investigate a matter which the Council has not been given an opportunity to respond to. As I understand it the therapy was put in place shortly after I made enquiries of the Council. If Mr X considers there is unremedied injustice in relation to this matter he should make a formal complaint to the Council.

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How I considered this complaint

10. I have considered information provided by Mr X and the Council including correspondence and documents held by the Council’s special educational needs (SEN) team.
11. I have considered relevant law and guidance including:
• The Children and Families Act 2014 (‘The Act’) and associated Regulations
• The Special Educational Needs and Disability (SEND) Code of Practice (‘The Code’)
12. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
13. 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

Factual background

14. The Council has maintained an Education, Health and Care (EHC) Plan for Y since 2016. As part of the EHC assessment the Council sought advice from professionals involved with Y, including an educational psychologist.
15. The 2016 EHC plan identified that Y’s epilepsy was the major factor affecting her learning. Mr X says he and Y’s mother always suspected Y was dyslexic as this condition was prevalent within the wider family and she had typical traits. Mr X says the Council would not include dyslexia in the 2016 EHC plan as it did not regard this condition as requiring an EHC plan or recognise dyslexia as a learning condition in an EHC plan.
16. Mr X says that the EHC plan identified Y as having literacy difficulties and that professionals advised school to use approaches suitable for a child who did not have dyslexia or language difficulties. Mr X says these approaches had limited impact.
17. Mr X says he paid privately for a dyslexia assessment but this was inconclusive as to whether epilepsy or dyslexia was affecting Y’s learning.
18. In November 2017 a new paediatric consultant referred Y for detailed assessment by a multi-disciplinary team. Mr X says the resulting report (December 2018) concluded Y was dyslexic and had a developmental language disorder (DLD).
19. Mr X believes Y could have received better targeted support if their concerns had been listened to earlier and that she received the wrong educational interventions for her difficulties which widened the gap between her and her peers.
20. The Council in its complaint response of August 2019 said that multiple professionals that had assessed Y did not point to a diagnosis of dyslexia in 2016. As a result, the Council’s SEND team was not able to include a diagnosis of dyslexia in Y’s EHC plan, as there was no professional report to evidence this.
21. Following receipt of the December 2018 report the Council included references to dyslexia and DLD in Y’s updated EHC plan issued on 15 February 2019.
22. Mr X responded to the Council’s complaint response stating that the professionals who had assessed Y (speech therapy and educational psychology) were employed by the Council. By this time Mr X had appealed the contents of the February 2019 EHC plan to the SEND tribunal. Mr X had employed an independent educational psychologist and speech therapist to assess Y and make recommendations for her education. Mr X says the independent experts were surprised Y’s dyslexia had not been identified sooner. Mr X concluded there had been ‘gross professional negligence’ in his daughter’s case. Mr X also said Y’s primary school had advised the Council would not recognise dyslexia as a condition to be included in an EHC plan.
23. Mr X further complained that the Educational Psychologist who advised in 2016 had never reviewed the effectiveness of the recommendations made. Y’s school had informed the family that due to educational psychology becoming a contracted service it was no longer able to access educational psychology advice. Mr X said the Council should have checked assumptions about Y’s epilepsy being the cause of her learning difficulties with health professionals.
24. The Council did not alter its view at stage two of the complaint process confirming the Plan was amended with the diagnoses added to Part C (health) once made. Mr X had appealed to the tribunal and this was an alternative, and more appropriate, way to challenge the contents of an EHC plan.
25. Mr X says he applied for secondary schools in Summer 2018, and a school confirmed it could meet Y’s needs in Autumn 2018, but the School was not named on a final Plan until August 2019. Mr X was frustrated the SEN officer did not attend the February 2019 review and that poor communication afterwards meant Y did not have time for a proper transition between schools.
26. The placement named in the final Plan in February 2019 was Y’s mainstream primary school until July 2019 and thereafter a state funded special school ‘to be identified’.
27. In its complaint response the Council acknowledged some communication difficulties and that the officer missed the February 2019 review meeting. It apologised and offered Mr X £300 for the time and trouble this caused him.

Complaints about incorrect diagnosis and intervention

Relevant law and guidance

28. A child with special educational needs may have an 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.
29. We can consider aspects of an EHC plan that are not appealable. We do this by checking the Council followed the correct process, and took account of all relevant information, in deciding what to include. If we find fault affected the outcome, we may ask the Council to reconsider. We will not usually substitute our judgement for the judgement of professionals.
30. 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.
31. When a Council carries out an EHC assessment it is required by Regulation 6(1) of the SEND Regulations 2014 to obtain professional advice from specified sources (the family, education setting, education psychologist, a healthcare professional and social care). The Regulations also require Councils to obtain advice from any other person the Council thinks appropriate ((6)(1)(f)) of from any person the parent reasonably requests it seek advice from ((6)(1)(h)).
32. At annual reviews of an EHC plan the Council would usually only seek advice from those professionals already involved with a child unless further assessment was recommended or requested.
33. The Code says annual reviews should focus on the child’s progress towards their outcomes and long-term aspirations. Reviews should gather and assess information to be used by schools to support the child and to review whether the special educational, health and social care provision is effective and achieving good progress towards outcomes.
34. The review process enables changes to be made to an EHC plan so it remains relevant to the needs of the child and desired outcomes. The Code says there may be times when a reassessment becomes appropriate, particularly if a child’s needs change significantly. Councils must conduct a reassessment if a request is made by the parent or school unless less than six months have passed since the previous EHC assessment or the Council considers it is not necessary to reassess.
35. Parents have appeal rights:
• after an annual review when a decision is made not to amend a plan, to cease a plan or when an amended final plan is issued; or
• if a request for re-assessment is refused.

Analysis

36. My conclusions are based on the evidence available to me, however there is less correspondence on the Council’s file than I would have expected to see. For example, I have not seen copies of decision letters sent by the Council after annual reviews and there appears generally to be less correspondence between the Council and the family than might have been expected.
37. Mr X had a right of appeal against the contents of the 2016 final EHC plan if he disagreed with the description of Y’s needs or the provision to meet those needs. We would have expected Mr X to use his right of appeal to the SEND Tribunal. The Tribunal would have been the appropriate forum to contest the contents of an EHC plan. I will therefore investigate Mr X’s complaint from the date of the 2017 annual review. I have investigated a period more than twelve months before Mr X came to the Ombudsman as I am satisfied Mr X only gained knowledge which cast doubt on the education his daughter had received in December 2018 when he received the multi-disciplinary report.
38. While Mr X says he felt he had no option but to seek an independent dyslexia report in 2017, no evidence has been provided to me that shows Mr X was raising concerns with the Council at Y’s annual reviews in 2017 or 2018 about Y’s needs being incorrectly stated in the EHC Plan. In particular, there is no evidence Mr X asked the Council to seek additional professional advice or requested a statutory re-assessment. Mr X did in his parental representations for annual review in 2017 state that he considered school staff needed more support from outside agencies, however minutes note that parents at that time considered Y’s poor progress was due to low attendance as a result of seizures. I further note that the 2017 independent report was inconclusive about whether Y had dyslexia and whether this or the epilepsy was causing her learning difficulties. This report did not add significantly to what was known in 2016.
39. After an annual review the Headteacher must report to the Council. The Headteacher’s report in 2017 did not request additional support from outside agencies and the School did not raise concerns that it could not meet Y’s needs.
40. As I understand it the EHC plan was not amended after this review and Mr X would have had a right of appeal to SEND against a decision not to amend.
41. The Council’s SEN team relied on the evidence provided to it during the EHC assessment and annual reviews. It was open to the setting or involved professionals to advise the Council to seek further advice or assessments, but none did. It was also open to Mr X to use his right of appeal after the annual review in 2017 to seek further input from outside agencies or to request a reassessment, but he did not do so.
42. On the evidence available I cannot say that it was fault for the Council not to seek additional assessment of Y in 2017 when neither parents nor a professional involved with Y was advising the Council that this was required. Councils can reasonably expect schools to be responsible for day to day teaching of children and to rely on schools to request additional support and report difficulties when appropriate.
43. By the time of the annual review in May 2018, which was a transition review to prepare Y for secondary school, the position had changed. Y’s School was now saying it could not meet Y’s needs and that she had made ‘incredibly limited progress’ despite interventions. The School had re-referred Y to the speech therapy service which provided a report and recommendations for the annual review. A Council officer did attend this transition review and secondary options and the admission process were discussed. It appears from other paperwork available to me that the Council’s decision after the review meeting was to amend the plan with a view to updating it to name the secondary placement by February 2019. Mr X had to express his preference of secondary schools in the Summer term of 2018.
44. In December 2018, the Council sent Mr X an amended draft EHC plan. It said it had consulted the three schools Mr X had indicated on his school admission application and identified that a special school could meet Y’s needs. The Council acknowledged this was not the family’s first preference school and explained Mr X could ask the Council to consult other schools. As I understand it Mr X was happy with the school indicated and this is the school Y currently attends. Mr X however asked for amendments to the draft based on the December 2018 health report he had by then received.
45. From the information available to me Mr X did not raise concerns about Y’s late diagnosis at the annual review meeting in May 2018. He also did not request a reassessment or further advice be sought to update the EHC plan. I am not therefore critical that the Council proceeded to write the Plan based on the evidence available to it. I do acknowledge that Mr X would not have a right of appeal against the Council’s decision after the annual review meeting until a final amended plan was issued and this did not happen until February 2019.
46. Following receipt of the December 2018 report which found it ‘highly plausible’ Y had dyslexia and DLD, the Council did update the Plan to reflect these findings. Mr X appealed the content of the Plan to the SEND tribunal after it was issued in February 2019. As Mr X has used his right of appeal the Ombudsman cannot comment further on the parts of the Plan that were appealed.
47. In summary, while I acknowledge that Mr X’s concern about his daughter’s late diagnosis of additional conditions, I cannot say that this was due to fault by the Council’s SEN team. The SEN team followed the EHC and assessment process correctly and relied on the advice it was given. As stated above it is not for the Ombudsman to ascertain whether professionals who provided advice or the School were ‘negligent’, this is properly a matter for the courts who have the benefit of expert advice to determine such matters. The Ombudsman does not have the benefit of expert advisers in dyslexia or DLD to comment on whether a diagnosis and therefore different education recommendations should have been made sooner.
48. The evidence available shows the Council was willing to reference a diagnosis of dyslexia once this was supported by a professional report. While Mr X says that the School gave different advice about the Council’s attitude to dyslexia, I cannot see Mr X asked the Council directly about this from 2016 to 2018. If the School gave incorrect advice, that is not fault by the Council. It is speculative for Mr X to say the Council would have refused to include dyslexia in the EHC plan if a professional had made the diagnosis earlier.
49. Mr X obtained further independent reports as part of his appeal to the Tribunal for which he is seeking reimbursement. The Ombudsman cannot investigate a complaint if someone has appealed to a tribunal, even if the tribunal has not provided a complete remedy for all the injustice claimed, for example if the tribunal has not, or cannot, order make an order for costs. (Local Government Act 1974, section 26(6)(a), R v the Commissioner for Local Administration ex parte PH, 1999) The fact tribunals do not generally order parties to pay the costs of reports relied on by the opposing party does not bring the matter into the Ombudsman’s jurisdiction.

Complaint about poor communication and delay by SEN team re secondary transfer

Relevant law and guidance

50. The Code says an EHC plan must be reviewed and amended in sufficient time before phase transfers, such as a transfer from primary to secondary school ‘to allow for planning for and, where necessary, commissioning of support and provision at the new institution’ with the review and any amendments completed by 15 February 2019 in the year of transfer.

Analysis

51. It was clearly intended after the May 2018 annual review meeting that the Plan would be updated with a school named by 15 February 2019. This did not happen. An amended draft plan was produced only in December 2018. As required by the Code, the draft did not name a specific school, as parents must be given the opportunity to request a specific school. When Mr X confirmed the Council’s suggested school was acceptable, the Council then had to go back to the school and confirm a place was still available. When the Council issued the final plan on 15 February 2019 it said it did so only to comply with the statutory time limit. The Council named a type of school (special) rather than a specific school. It is lawful to name a type of school.
52. The Plan was only updated to include the name of the actual School Y would attend in August 2019, after Mr X had appealed and shortly before the Tribunal was due to hear the case.
53. I find that there was delay after the annual review held in May 2018 in producing an amended draft plan. The Code states that when a Council should start the process of amendment ‘without delay’. The Council issued a draft amended Plan in December 2018, seven months after the review meeting was held and a decision made to amend the plan. This delay is fault.
54. However, it is also the case that if the Plan had been amended after the review meeting, it would need to have been amended again once the December 2018 report was available adding to Y’s diagnoses.
55. If the Council had not delayed seven months in issuing the draft plan, it is likely, on the balance of probabilities, that it would have been in a position to consult and name schools earlier. The delay caused unnecessary uncertainty for Y and had an adverse impact on transition planning. If the Council had started the process of amendment in May not December 2018 it is likely that this situation could have been avoided.
56. The Council has acknowledged and apologised for poor communication around the February 2019 meeting and offered a payment to acknowledge the inconvenience caused. The Council has not however apologised for the delay after the May 2018 review meeting.

Agreed action

57. Within four weeks of my final decision:
• The Council will apologise to Mr X for the further fault I have identified in delaying issue of the draft EHCP following the annual review in May 2018.
• The Council will pay Y £300 for the uncertainty and distress caused by the delay in updating the plan after the May 2018 review. This is in addition to the £300 it has already offered to pay for poor communication after the February 2019 review.

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Final decision

58. I have completed my investigation. There was delay by the Council in amending the EHC plan after a review in May 2018. This caused uncertainty for Mr X’s daughter and meant an unnecessary rushed transition to the next phase of her education.

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Investigator's decision on behalf of the Ombudsman