Summary: the complainants say the Council failed to properly assess and provide for their child’s special educational and health needs and adhere to its complaint’s procedure. The Council says it properly assessed the child but recognises it took longer than recommended to issue an Education Health and Care Plan. The Ombudsman finds the Council at fault and recommends a remedy.

The complaint

1. The complainants whom I shall refer to as Mr and Mrs X complain the Council failed to:
• Properly assess their daughter Y’s educational needs;
• Issue an Education, Health and Care Plan (EHC Plan) within the statutory timescales;
• Properly adhere to the Council’s complaints procedure by failing to respond to their complaints.
2. Mr and Mrs X say this delayed Y’s receipt of the educational provision and support she needed as set out in the EHC Plan. This has had an impact on Y’s educational progress. Mr and Mrs X say they had to commission reports and seek repayment for the costs of those reports.

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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. If 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)
5. 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)
6. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
7. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
8. 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.

9. We can consider the other sections of an EHC plan. We do this by checking the Council followed the correct procedure, and took account of all relevant information, in deciding what to include. If we find fault affected the result, we may ask the Council to reconsider. We will not usually substitute our judgement for the professionals’ judgement.
10. The Council is responsible for making sure that arrangements set out in the EHC plan are put in place. We can look at complaints about this, such as where delay occurs, or the Council does not ensure provision of the support set out in the EHC plan.

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How I considered this complaint

11. In considering this complaint I have:
• Contacted Mr and Mrs X and their representative and read the information presented with their complaint;
• Put enquiries to the Council and reviewed its response;
• Researched the relevant law, regulations and policy
• Shared with Mr and Mrs X and the Council my draft decision and have reflected on comments received before making this final decision.
12. 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 final decision with Ofsted.

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What I found

13. A child or young person has a special educational need (SEN) if they have a learning difficulty or disability which calls for them to receive special educational provision. A mainstream school or college setting may provide this as SEN support.
14. Some pupils may need an EHC assessment where the Council will decide if it needs to issue an EHC Plan setting out the provision the child or young person needs.
15. Councils are the lead agency for carrying out assessments for EHC plans and have the statutory duty to ensure the child receives the special educational provision in an EHC Plan. The Ombudsman expects councils as the lead agency to have commissioning and partnership arrangements in place to allow its officers to gain advice in a timely way.
16. The Children’s and Families Act 2014 sets out the responsibilities of all agencies including the Council, the educational setting and partner agencies (including health bodies). Associated Regulations and statutory guidance, and the SEN Code of Practice 2015 (the Code) support the statutory rules. The Act and Code expects agencies to work in an integrated way, with the child and family fully included in decisions.
17. The Council should not take longer than 20 weeks from the date the child’s parents ask for an assessment to assess a child’s needs and issue a final EHC Plan.
18. Councils should as part of the assessment gather evidence from education, health and care professionals. The Council should share the draft plan and consider representations received from parents, the young person, and schools and consider the parents’ school preference.
19. SEN Reg 6(1) sets out the minimum information and advice the Council should seek in an education needs assessment. A parent or young person can ask the Council to seek advice from anyone within health, education or social care and provided it is a reasonable request the Council must do so. The Regulation says the Council should gather advice within six weeks. The information the Council must seek includes:
• Advice and information from the child’s parent or young person;
• Educational advice and information from the school or other institution the child is attending, or where that is not available from a person the Council is satisfied had experience of teaching the child;
• Medical advice and information from a health care professional identified by the commissioning body;
• Psychological advice and information from an educational psychologist;
• Advice and information about social care;
• Advice and information from any other person the Council thinks appropriate;
• Advice and information from any other person the child’s parent or young person reasonably asks the Council to seek advice from.

What happened

Assessment

20. Since 2016 and Y’s transition to secondary education Mr and Mrs X noticed Y experienced increasing distress in the school environment. By 2017 Y experienced fatigue and low energy levels. Y has ASD, Chronic Fatigue Syndrome and Sensory Processing Difficulties. The Child and Adolescent Mental Health Service (CAMHS) assessed Y following a referral to the service .
21. In 2018 following a referral to the Paediatric Occupational Therapy Service Y began receiving support from an Occupational Therapist to help manage her fatigue and energy. Mrs X had concerns about Y’s difficulty in processing language and referred Y to the Speech and Language Therapy Service (SALT). SALT support followed and the service ended its engagement with Y in November 2018.
22. Y found it difficult to attend school. Y has not attended since January 2018. Mr and Mrs X say Y’s difficulties meant she needed provision to help her achieve educational success. Mr and Mrs X said in commenting on my draft decision, they emailed the Council asking for an EHC needs assessment on 26 April 2018, which the Council acknowledged. The Council says it received a letter dated 28 May 2018 with completed forms setting out the reasons why Mr and Mrs X believed Y needed an assessment. The Council took that letter rather than the earlier email as the request for an assessment. In June 2018, the Council’s SEN Panel considered the application and refused it. The Council says this fell within the six-week time limit for deciding if it should carry out an assessment. The Council’s refusal triggered Mr and Mrs X’s right to appeal the decision to the Tribunal. When commenting on my draft decision Mr and Mrs X say the six weeks should start from the date of their email of 26 April 2018. This would mean the Council did not give its decision in the six weeks deadline. The Council now accepts the Ombudsman’s view the email of 26 April 2018 constitutes the parental request for an assessment. The Council has changed its guidance to staff to prevent a recurrence.
23. In July 2018 Mr and Mrs X asked the Council to reconsider its refusal to assess Y. Following discussions, the Council agreed to carry out the SEN assessment.
24. The assessment began at the end of July 2018. The Council invited Mr and Mrs X, Y’s school, Educational Psychologist, social care, and health authorities to provide information about Y. In August 2018, the Council received information from CAMHS and a report from a Consultant Child and Adolescent Psychologist. Mr and Mrs X told the Council they had a SALT appointment in early September and had received a physiotherapy appointment. In its response dated 2 August 2018 the health service outlined Y’s diagnoses and the treatment she received. The letter confirmed Y no longer attended school because of the decline in her mental health while in the school environment. The letter signed by a nurse practitioner represents in the Council’s view the medical advice from a health care professional as set out in Regulation 6(1).
25. The Council issued the draft EHC Plan on 13 September 2018. The Council received the SALT report in early October 2018.
26. Mr and Mrs X asked for extra time to respond to the draft EHC Plan. When commenting on my draft decision Mr and Mrs X say this resulted from the Council’s failure to send all the reports used to support the contents of Section K of the draft EHC Plan. Mr and Ms X responded with their comments on 17 October 2018. At the end of November 2018, the Council received an amended report from the SALT team. The Council’s officer met with Mr and Mrs X in December 2018 to discuss the proposed EHC Plan.
27. In March 2019, the Council sought further health information. Between March and May 2019, the Council received six reports on Y’s health needs. Mr and Mrs X say they have not seen five of these reports. These included reports from:
• The SALT team;
• The School Nursing Service;
• The Special Needs Team;
• The School Health Service;
• A Consultant Paediatrician (Occupational Therapy Report);
• CAMHS.
28. The Council issued the final EHC Plan on 15 May 2019. Mr and Mrs X appealed to SEND Tribunal about the EHC Plan. With Mr and Mrs X exercising their right of appeal, the law says we cannot investigate the contents of the EHC Plan or issues arising after 15 May 2019.
29. The Council says it believed it had met the timetable for issuing an EHC Plan until it issued the draft EHC Plan in September 2018. The final EHC Plan should follow within 14 weeks, i.e. by 11 December 2018. The Council says it could not issue the final plan within that timescale because it wanted to work with Mr and Mrs X to resolve their concerns about the proposals in the draft EHC Plan. That, the Council says, is why it did not issue the final EHC Plan until May 2019. When commenting on my draft decision Mr and Mrs X say this does not remove the Council’s duty to complete the assessment and issue a final plan within the timescale under the SEND Regulations.
30. Mr and Mrs X say they asked the Council in August 2018 to gather all relevant information from the list of professionals set out in the Regulation 6(1). As they believe the Council did not do that Mr and Mrs X say it failed to properly assess Y’s needs.
31. In February 2019 Mr and Mrs X having researched what help might be on offer to Y through the Early Help scheme wrote to the Council saying they withdrew their request for a children’s social care assessment.

Complaint to the Council

32. Mr and Mrs X complained to the Council in September 2018. They said the Council had failed to gather information from a SALT therapist, physiotherapist, occupational therapist and to seek a general health assessment for Y.
33. The Council responded on 5 November 2018. The Council said it had contacted the educational psychologist, Y’s School, children’s social care and the local NHS Foundation trust. The Council said that it asked for information but cannot insist on health professionals completing assessments.
34. The Council invited children’s social care to provide information on Y’s care needs. However, not having previously assessed Y, children’s social care did not have any information about Y. Therefore, the Council says it could offer no advice. The Council says it told Mr and Mrs X that if they believed Y may need social care support, they could refer her to the Multi Agency Team for an Early Help Assessment. The Council did not ask children’s social care to assess whether Y had any unmet needs.
35. The Council did not uphold the complaint that it had failed to consult all the professionals listed in Regulation 6(1).
36. Not satisfied with that response Mr and Mrs X asked the Council on 28 November 2018 to consider their complaint at stage 2 of the Council’s complaints’ procedure. The Council delayed consideration of the complaint because it believed the service needed to continue working with the family to resolve the outstanding concerns. The stage 2 investigation therefore took place in July 2019.
37. Mr and Mrs X put forward four points of complaint for consideration at stage 2:
• The Educational Psychology or SALT professionals had not accepted responsibility for Y’s difficulty in processing information. Mr and Mrs X said the Council had responsibility to assess the needs of the child, not assess what service provision they had that might fit a few of Y’s needs.
• The Occupational Therapy report used for drafting the EHC Plan did not capture all of Y’s needs. The Council needed to commission reports into what Y needed to meet her different medical needs.
• The Educational Psychologist’s report lacked specificity. The report had good advice but recommended reasonable adjustments rather than provision that would improve Y’s ability to access and process information.
• Mr and Mrs Y never received a copy of the letter asking for health information and the Council had not asked the health authority for it until March 2019.
38. The stage 2 investigation did not uphold the first three points of complaint.
39. The investigation upheld the fourth complaint. It found the Council had failed to share with Mr and Mrs X a health professionals’ report the Council received in August 2018. The Council recognises the confusion caused difficulties for Mr and Mrs X in understanding the officer’s rationale for the recommendations made in the EHC Plan. The investigation recommended the Council apologise and arrange training and supervision of the staff involved.
40. Mr and Mrs X complained the Council failed to meet the timescales in its complaints procedure and included only a brief description of the complaint which did not cover all their concerns.
41. Following concerns expressed by the SEND Tribunal the Council carried out a children’s social care assessment of Y in February 2020. The assessment did not identify any risks for Y other than her need to resolve educational issues which the Tribunal would consider.

Analysis – was there fault leading to an injustice?

42. My role is to consider whether the Council gathered and considered all relevant information and acted without avoidable delay in issuing an EHC Plan. My role is not to consider the merits of the views expressed by professionals responding to the Council’s invitation to provide information or say what the EHC Plan should include. The SEND Tribunal may consider the merits of the provision set out in the EHC Plan and question the views expressed by professionals.
43. When Mr and Mrs X asked for an EHC assessment the Council’s Panel refused an assessment. The Council then considered representations from Mr and Mrs X and decided to carry out the assessment. My view is Mr and Mrs X asked for an assessment in their email of 26 April 2018. The six-week period therefore must start from 26 April 2020 and not from the date the Council received the consent form, and other details (28 May 2018). The Council accepts this view. That means the Council’s refusal to carry out an assessment did not meet the six-week time target. To do so the Panel needed to give its decision by 7 June 2018. The refusal given on 28 June 2018 therefore fell outside the six-week time limit by three weeks thereby delaying the review and decision to assess. I find the Council acted with fault in not meeting the six-week timescale to decide if it should carry out an assessment.
44. Having agreed on review to assess Y, the Council gathered information and issued a draft EHC Plan. The Council then took until May 2019 to issue a final EHC Plan. I find the Council failed to meet the set time limits for issuing a final EHC Plan. This caused avoidable delay in issuing the EHC Plan and starting the provision set out in it.
45. The Council invited the health authority and the Council’s children’s social care department to provide information to help it with its assessment. The Council contacted the right authorities in fulfilment of its duty under Regulation 6(1). Those authorities have a duty to provide what information they have on Y’s needs. It received information about Y’s health and the treatment she received. Mr and Mrs X say the report from the health services’ joint physiotherapy and occupational therapy service lacked specificity. That is an issue for the professionals writing the report. The question of the professional content of the health authority’s response lies outside my jurisdiction.
46. However, children’s social care said in effect, it did not know of Y. That is not enough to satisfy Regulation 6(1) which imposes a duty on councils to seek advice about the child’s needs. To fully assess Y’s EHC needs the Council should, if the child is unknown to children’s social care services, ask children’s social care services to assess her. It did not until February 2020. I find the Council at fault for failing to carry out a children’s social care assessment in summer 2018.
47. It should not have taken until February 2020 and an expression of concern from the SEND Tribunal before the Council undertook this assessment. Mr and Mrs X withdrew their request for an assessment in February 2019. However, that did not remove the Council’s duty to obtain advice on Y’s social care needs. Mr and Mrs X said they did not expect an assessment because they did not wish to take up scarce resources because they believed the service could not offer anything to Y. The Council should not leave that decision to the parents. It is fortunate the later assessment did not identify Y as a child in need or in need of any further intervention by the Council.
48. The Council should have shared the health information with Mr and Mrs X in 2018. Its failure to do so caused confusion and prevented Mr and Mrs X reaching a better understanding of what the Council proposed in the EHC Plan. I find the Council at fault for the delay and subsequent confusion this caused.
49. The delay in issuing the EHC Plan resulted in a second round of consultation with professionals on Y’s needs in March 2019. The Council took over 50 instead of the 20 weeks set to issue an EHC Plan. That is far too long. It caused anxiety and distress and delayed any provision Y may eventually receive under the EHC Plan.
50. I recognise the Council suspended its Stage 2 investigation into the complaint so officers could concentrate on resolving the EHC Plan issues. However, this meant the stage 2 investigation requested in November 2018 did not start until 7 July 2019. That is far too long, and I find the Council at fault for this delay.
51. The delays in both the EHC Plan and complaint procedures and failure to refer Y to children’s social care services for assessment and share the health information caused distress and inconvenience to Mr and Mrs X. Parents may expect to spend time in dealing with the EHC assessment procedure and following up a complaint but the Council put Mr and Mrs X to avoidable inconvenience and time.
52. I cannot recommend any remedy for the delay caused by the appeal to the Tribunal about the EHC Plan. This includes delays in the delivery of any of the provisions set out in the EHC Plan as issued or amended by the Tribunal. The law places this outside my jurisdiction.

Recommended and agreed action

53. To address the injustice arising from the fault I have found, I recommend, and the Council agrees to within four weeks of this my final decision:
• Apologise to Mr and Mrs X;
• Pay the costs of the independent repots commissioned by Mr and Mrs X to a total cost of £1,400 to gain information the Council should have gathered;
• Pay Mr and Mrs X £200 in recognition of the inconvenience and distress caused by the failures identified in this statement;

And within three months of the final decision the Council:

• Shares with officers the view taken in this decision;
• Reviews guidance to staff ensuring they consider carrying out a social care assessment if a child is not known to children’s social care services when gathering information for an EHC Plan.

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Final decision

54. In completing my investigation, I find the Council at fault causing injustice.

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Investigator's decision on behalf of the Ombudsman