Summary: The Ombudsman upholds Miss X’s complaint about delays in issuing her daughter’s Education, Health and Care plan. The Council did not meet statutory deadlines to gather information or issue a plan. This caused Miss X frustration and uncertainty and her daughter has missed provision she was entitled to. The Council will apologise and make a payment to recognise this. It will also remind officers of their statutory duties and review arrangements for gathering information from health and social care providers as part of needs assessments.

The complaint

1. Miss X complains the Council has taken too long to issue an Education, Health and Care (EHC) plan for her daughter, Y. She says it delayed in consulting with other professionals. Miss X says this has caused her undue stress and her daughter has suffered because of the uncertainty of there being no plan for her to return to education. She would like the Council to have clearer guidelines for gathering information as part of an EHC plan assessment.

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The Ombudsman’s role and powers

2. 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)
3. SEND is a tribunal that considers special educational needs. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
4. 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)
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 have considered the complaint made by Miss X and the documents she provided.
7. I considered the Council’s comments about the complaint and the documents it provided in response to my enquiries.
8. I took account of the following Ombudsman’s focus reports:
• ‘Education, Health and Care Plans: our first 100 investigations’ published in October 2017.
• ‘Not going to plan? Education, Health and Care Plans two years on’ published in October 2019.
9. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
10. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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What I found

Background

Special educational needs

11. The Children and Families Act 2014 sets out how support will be provided to children with special educational needs and disabilities (SEND). The ‘Special education needs and disability code of practice’ (SEN code) published in 2014 gives more details about how councils, schools and others should carry out their duties.
12. Most children and young people will have their SEND needs met within early years settings, schools or colleges without any need for involvement from a council. Children with more complex needs might instead need an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. Councils are responsible for ensuring effective coordination of the assessment for and development of an EHC plan.
13. If a parent asks for an EHC needs assessment, councils must decide whether one is necessary and tell the parent of their decision within six weeks. If a council refuses to assess, parents have the right of appeal to the SEND tribunal.
14. If it decides to assess, a council must seek advice from relevant professionals about the child’s education, health and care needs. It should also ask about provision that may be required to meet those needs and desired outcomes. Councils must give professionals copies of any representations made or evidence sent by the parent. Professionals must provide advice to the council within six weeks of the request.
15. Councils must not seek further advice if it has already been provided and the person providing the advice, the council and the child’s parent are all satisfied that it is sufficient for the assessment.
16. If a council refuses to issue an EHC plan following assessment, it must tell the parent within 16 weeks of the request for assessment. A parent can appeal this decision to the SEND tribunal. If the council concedes before the appeal is heard, the council must then issue a draft plan within five weeks of its decision, and a final plan within 11 weeks.
17. Councils must send the draft plan, including the advice gathered during the needs assessment, to the parent and give them at least 15 days to give their views. Where a council does not agree to changes suggested by the parent, it should issue the final EHC plan and tell parents of their right to appeal to the SEND tribunal.
18. In May 2020, during the COVID-19 outbreak, the Secretary of State for Education issued a notice which temporarily changed the duties of councils to secure or arrange the provision set out in an EHC plan. The change required councils to use their ‘reasonable endeavours’ to secure the provision instead. The notice expired on 31 July.

Social care assessment and direct payments

19. The Council has a ‘Children’s care and support personal budgets and direct payments policy’. This says some children will need extra support so they can achieve positive outcomes. It gives an example of a personal care budget which to address outcomes around family life, being safe when out in the local community and developing independence skills towards transition to adulthood. A direct payment could be used to employ a personal assistant.
20. The Council uses a Resource Allocation System (RAS). This is a way of identifying what level of support a child needs, depending on the outcome of a social care assessment. The RAS provides an indicative budget following assessment which the assessing officer and their manager then review.
21. The policy says when the Council cannot offer a direct payment, it should communicate the reason in writing. The person should be advised of their right to appeal against the decision or how to use the Council’s complaints procedure.

What happened

Special educational needs

22. Miss X’s daughter Y is 15 years old. She has a diagnosis of dyspraxia, hyper-mobility, visual stress and suffers some social and emotional difficulties.
23. Miss X sought a needs assessment for her daughter in April 2019.
24. The Council decided to complete an assessment on 20 May, within the six-week deadline. In the same month, Y was permanently excluded from school.
25. The Council issued requests on 2 June with a deadline for response of 30 June to the following:
• Y’s previous school
• Community paediatrics
• Alternative provision
• Social care
• Educational psychology
• The local Child and Adolescent Mental Health Service (CAMHS) – a separate request was made to occupational therapy and psychotherapy
26. The statutory deadline for responding was 14 July. Only Y’s previous school, alternative provision and educational psychology responded within the timescale set.
27. The Council considered Y’s case at a panel on 6 August despite not having received a response from all professionals. The Council says it went ahead with the panel because there was relatively recent advice from a previous request for assessment made in 2018. It said the updated educational psychology report also included some health information about Y. The Council decided there was enough information for it to make an informed decision.
28. I asked the Council to provide me with the advice it considered at the panel in August. It provided Miss X’s request for assessment but not information from Y’s previous school, alternative provision or educational psychology. The notes of the panel say it decided not to issue a plan. The panel noted it needed advice from social care and CAMHS and needed to get Y back into school so she could be assessed. It followed up the advice request to the local CAMHS service on the same day. The Council wrote to Miss X to say it had decided not to issue a plan and advised her of her appeal rights.
29. Miss X complained about the outcome of the panel. Within two days, the Council overturned the decision not to issue a plan and agreed the case should come back to panel once it received the outstanding advice.
30. The Council received an interim response from the occupational therapist in late August. The Council sought advice from Y’s tutor. The Council sent an email to community paediatrics in September seeking advice for Y’s needs assessment which was returned on the same day. The Council considered Y’s case again at panel in September. It decided not to issue a plan, saying the added information did not suggest Y needed provision above what could be provided through the local offer. It wrote to Miss X with its decision.
31. Social care provided its assessment in late September and the occupational therapist sent an updated report in October. Y’s case was presented to panel again. This time, the Council considered advice from community paediatrics, social care, educational psychology, and CAMHS. The notes of the panel do not record a decision but suggest Y’s needs could be met in mainstream education. There is no record of the Council sending a decision letter to Miss X.
32. Miss X appealed the Council’s decision to the SEND Tribunal on 8 November. The tribunal asked the Council to provide its response by 24 December. On 20 November, the Council conceded the appeal and agreed to issue a plan. However, it failed to tell the tribunal its decision until the end of January 2020. The tribunal ended the appeal in mid-February.
33. The Council issued a draft plan in January 2020. It revised the plan in March and issued a further draft. It issued a final plan in August.
34. Miss X says Y’s emotional wellbeing has continued to decline throughout this period, and she now struggles to engage with education. Miss X says that she feels the Council would not have had accurate information about Y’s needs, or have decided to issue a plan, if she had not persistently pursued the matter. She says the Council is aware she has needs of her own which are worsened by stress and the situation has affected her own wellbeing.

Social care assessment and direct payments

35. Miss X says the officer who carried out the assessment suggested Y would benefit from a personal assistant. She says when the case was presented to the Resource Allocation Meeting, this was refused on the basis Y could travel independently and no additional needs had been identified.
36. The social care assessment completed in August 2019 says Miss X told the assessing officer she felt Y would benefit from having a personal assistant to help her access the local community. Conversations with Y suggested she was independently travelling on buses and meeting with friends several times a week.
37. The Council wrote to Miss X shortly after the assessment visit, before Miss X had received a copy of the written assessment. It said the Resource Allocation Meeting had decided Y did not need any added social care support. The letter did not tell Miss X how to appeal or complain.
38. In response to my enquiries, the Council said it did not offer Y additional support because it completed the RAS, all areas of need were identified within the system, and the indicative budget was zero.
39. Miss X began raising concerns about the assessment straight away. She provided a detailed response to the assessment. She said she, Y and Y’s advocate had told the assessing officer that Y could not travel alone at all and needed support to travel to and from social situations. She described several other areas of the assessment which she said were inaccurate reflections of the discussion with took place with the assessing officer. These were supported by Y’s advocate. She also referred to evidence from other bodies including educational psychology and CAMHS which she had provided as part of the assessment. The assessing officer discussed Miss X’s concerns with her manager, though there is no written record of this discussion. The Council declined to change the assessment.
40. The assessment was updated in late September to say the assessor stood by the information being accurate and so the decision that Y did not qualify for social care services remained the same. The assessment said if there was a significant change in Y’s needs, the Council could carry out another assessment.

Analysis

Jurisdiction

41. There are limits on our powers which mean we cannot consider all of this complaint. Where there is a right of appeal to the SEND tribunal, the Court has decided the decision, and the consequences of it, are matters which are ‘inextricably linked’ (R (on the application of ER) v the Commissioner for Local Administration, 2014). We cannot, therefore, investigate either the decision subject to the appeal or the consequences arising from the decision. This means we cannot consider those periods where Miss X has exercised her right of appeal.

Special educational needs

42. The first requests for advice made by the Council reflect the professionals Miss X identified as having had previous or current involvement when she asked for an assessment of Y. The Council sent most of them correctly, in good time, and with a suitable deadline date. However, evidence suggests it sent the request to community paediatrics to its social care service in error. This was fault and contributed to the delay in gathering the required information.
43. The Council says it has a duty to seek advice but cannot compel other professionals to provide it. However, the Council is responsible for making decisions about EHC plans within the statutory timescales. It failed to follow up the outstanding requests for advice. Once it became clear there would be difficulties securing the advice needed, the Council should have acted to obtain it. It failed to do so, which was fault and contributed to the delay in making an informed decision about whether to issue an EHC plan to Y.
44. The Council did not ask Miss X whether she was satisfied the information it already held was sufficient to assess Y when it considered this information at the panel in August. This was not in line with the code and was fault. It deprived Miss X of an opportunity to give her view on the suitability of the evidence.
45. The Council overturned the decision of the August panel almost immediately. In my view this was an acknowledgement by the Council that its decision making was flawed. It had to bring Y’s case back to panel twice more as reports were still missing. It made a final decision not to issue a plan in October. It should have decided within 16 weeks of the request for a needs assessment; it took over 26 weeks. This was fault.
46. The records from each panel are lacking in detail. They do not show who was involved in making the decision or what information was considered at each panel. The record from the August panel suggests the Council was aware there was information missing but still decided not to issue a plan. The notes of the October panel do not record a decision. The decision letters sent to Miss X also lacked detail about what evidence had been considered. This was fault and caused uncertainty for Miss X about how the Council had reached its decision.
47. I cannot investigate the period following the decision not to issue a plan in October 2019 as Miss X exercised her appeal rights. The Council accepts it took too long to respond to the tribunal, and it should have confirmed its decision to issue a plan by 24 December. I can investigate the period following this.
48. If the Council had adhered to the timescales for assessing and making decisions about Y’s EHC plan, it should have issued a final plan by the beginning of January 2020. It did not issue a final EHC plan until August 2020. This was fault
49. The Council says it has already begun addressing barriers to timely responses from health and social care providers to requests for advice. It is setting up a new case management system for EHC plans which will track requests for advice and automate reminders when these are overdue. It has developed a questionnaire to better target requests for advice to health professionals. The Council says it has addressed the delays in securing social care advice and there is currently no waiting list for assessment.
50. I cannot say what the impact may have been on Y if her special educational needs provision had been in place from January 2020 onwards. However, it is clear she has missed provision she was entitled to.
51. Regardless of the Council’s handling of her EHC plan, it is likely Y would have experienced some disruption to her education from the end of March 2020 because of the COVID-19 outbreak. However, there is uncertainty about what the Council would have done to secure the provision in her plan, had it been finalised on time.

Social care assessment and direct payments

52. There are some inaccuracies in the social work assessment, such as references to Y interacting with friends at school when she had been permanently excluded before the assessment took place. The Council updated the assessment to say Miss X and Y’s advocate disputed its accuracy, but the Council did not document what the disputed parts of the assessment were. The Council has not explained how it considered the concerns Miss X raised about the assessment and this was fault. This leaves Miss X uncertain about how her concerns about the assessment were considered.
53. There is a dispute about whether the assessing officer or Miss X first suggested a personal assistant for Y. As this relates to a verbal exchange, it is not possible for me to make a finding on what the officer said to Miss X during the assessment.
54. The Council did not tell Miss X how to appeal its decision following the Resource Allocation Meeting. This was not in line with its policy and was fault. This deprived Miss X of a timely opportunity to challenge the Council’s decision.

Agreed action

55. Within four weeks of this decision, to remedy the fault identified the Council will:
• Apologise to Miss X and Y for the faults identified in this investigation and pay £300 to recognise the frustration caused to them by the Council’s delays.
• Remedy the injustice to Y of her lost special educational needs provision from January to April by making a further payment of £600. In calculating this remedy, I have considered what provision Y received in this period. I have taken account of school holidays, Y’s ability to engage in full-time education and the provision set out in her EHC plan. Miss X can use this for Y’s educational benefit to ensure she catches up, as far as possible, on provision she missed.
• Make a further payment to Y of £300 to recognise the uncertainty about what the Council would have done to secure the provision in her EHC plan from May to July 2020.
• Consider Miss X’s comments on the social care assessment as an appeal against its decision not to offer a direct payment. It should write to Miss X explaining how it will consider the appeal, setting a clear timescale for a decision to be made.
56. Within four weeks of this decision, to improve its services the Council will:
• Ensure officers seek agreement from parents and professionals if the Council is relying on older advice when making decisions about issuing plans.
• Ensure records from panels and decision letters are sufficiently detailed, including who has been involved in the decision, what information was considered and giving reasons for the decision.
• Remind officers the timescale for deciding not to issue a plan is 16 weeks from the date of the request for an assessment. The Council should ensure it holds any panels within this timescale and all the information requested has been returned.
• Remind officers of the deadlines for issuing draft and final EHC plans when the Council concedes an appeal against a decision not to issue.
• Ensure decision letters following Resource Allocation Meetings include information about how the person can appeal or complain about the Council’s decision.
57. Within three months of the final decision, the Council should provide an update to the Ombudsman on its progress towards addressing barriers to timely responses from health and social care providers.

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Final decision

58. I have completed my investigation and uphold this complaint. Miss X and Y have been caused an injustice by the actions of the Council and it has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman