Cheshire East Council (19 017 717)
The Ombudsman's final decision:
Summary: Mrs X complained the Council did not properly assess her son, Y, for an Education, Health and Care Plan. She also complained the Council did not hold an early annual review when she requested one and failed to ensure Y was engaging with the provision set out in his Education, Health and Care Plan when he began secondary school. She said this situation caused her distress and negatively affected Y’s mental health and educational development. There was fault when the Council failed to issue a finalised Education, Health and Care Plan for Y within the required timescales. The Council was also at fault when it misinformed Mrs X after she requested assessments for Y and an early annual review. Neither Mrs X nor Y suffered an injustice due to these faults.
The complaint
- Mrs X complains the Council:
- did not carry out an Education, Health and Care (EHC) Plan needs assessment when she initially asked for one;
- did not check whether Y needed support when he was placed on the Special Educational needs (SEN) register;
- did not carry out a speech and language therapy (SALT) assessment when assessing Y for an EHC Plan;
- failed to ensure an educational psychologist (EP) carried out a full assessment of Y during the EHC Plan assessment;
- did not oversee Y’s engagement with the provision set out in his Plan;
- failed to carry out an early review of the EHC Plan after Mrs X requested one; and
- did not send a Council representative to attend the annual review.
- She said this caused her distress and negatively affected Y’s progress at school.
What I have investigated
- I have investigated Mrs X’s complaints 1c)-1g). I have not investigated her complaints 1a)-1b) for the reasons explained at paragraphs 59 and 60.
The Ombudsman’s role and powers
- 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)
- 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)
- The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. If someone has appealed to a tribunal we cannot investigate the matter appealed. (Local Government Act 1974, section 26(6)(a), as amended)
- SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
- We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
- 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)
- 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.
How I considered this complaint
- I made enquiries of the Council and considered the information it provided. This included email and letter correspondence between Mrs X and the Council and Y’s EHC Plan.
- I wrote to Mrs X and the Council with my draft decision and considered the comments I received before I made a final decision.
What I found
Education, Health and Care Plans
- The responsibilities of councils towards children and young people with special educational needs (SEN) are set out in the Children and Families Act 2014 and associated Regulations and statutory guidance, the SEND Code of Practice 2015 (The Code).
- 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 responsibility for ensuring the child receives the provision in an EHC Plan lies with the Council.
Initial needs assessment
- An EHC needs assessment is an assessment of a child or young person’s education, health and care needs. It is the first step to getting an EHC Plan.
- An EHC needs assessment must consider whether there are additional health or social care needs, as well as education needs.
- If a parent requests an EHC needs assessment and the Council refuses, the parent can appeal the decision at the SEND tribunal.
- If the SEND tribunal decides an assessment is necessary, the Council must assess the child and issue the finalised EHC Plan as soon as practicable and within 14 weeks of the date of the SEND tribunal’s order.
- Councils must ensure a child’s parent, or the young person is fully included in the assessment from the start and made aware of opportunities to offer views and information.
- 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 advice should be provided within 6 weeks.
- The child’s parent or the young person must be given 15 calendar days to consider and provide views on a draft EHC Plan and ask for a particular school or other institution to be named in it.
Reassessment of an EHC Plan
- If a council receives a request for a re-assessment of the EHC Plan from the child or the child’s parent, it must re-assess the Plan, other than in the following circumstances:
- if less than 6 months have passed since the last EHC needs assessment was conducted; and
- if it thinks a further EHC needs assessment is unnecessary, for example, because it believes the child’s needs have not changed significantly.
- The council must notify the parent of its decision within 15 calendar days of receiving the request to re-assess.
- The process for re-assessment is the same as the process for a first assessment. The overall maximum timescale for a re-assessment is 14 weeks from the decision to re-assess to the issuing of the final EHC Plan.
Annual reviews
- The council must review a child’s EHC Plan every 12 months as a minimum. Schools must co-operate with the council in the review process and the council can require schools to convene and hold annual review meetings on its behalf.
- Following the annual review, the Council must issue its decision to amend the EHC Plan within four weeks.
Ombudsman jurisdiction
- We can look at faults in the EHC assessment process and complaints about whether provision in an EHC Plan has been put in place. We cannot comment on the contents of an EHC Plan. Only the SEND tribunal can do this.
- A parent or young person can also appeal to the SEND tribunal each time the EHC plan is finalised, for example, after the Council has amended it following an annual review.
Background
- Mrs X’s child Y is of secondary school age. He was diagnosed with a learning difficulty in 2014.
- In December 2017, Mrs X asked the Council to carry out an EHC needs assessment for Y. The Council decided not to carry out the assessment because it felt Y’s needs could be met by his school. Mrs X appealed the decision at the SEND tribunal.
- On 6 April 2018, the SEND tribunal ordered the Council to secure a EHC needs assessment for Y. This gave the Council until 23 July 2018 to produce a final EHC Plan for Y.
What happened
- The Council began the needs assessment in April 2018 and invited Mrs X to suggest educational professionals she felt should be consulted during the assessment. Mrs X asked the Council to arrange a SALT assessment for Y.
- The Council declined this request and told Mrs X she could not ask for specific assessments. Mrs X wrote to the Council in late May 2018, stating that the SEND tribunal had recommended a language assessment for Y and this was therefore a reasonable request. She also asked the Council to arrange an assessment with an independent educational psychologist (EP). The Council told Mrs X she would need to ask Y’s school or GP to make a referral for these assessments.
- Mrs X was unhappy with the Council’s response and the Council went on to arrange an assessment with an EP in late June 2018 and a SALT assessment in early July 2018.
- The Council issued a draft EHC Plan on 25 July 2018. The Council issued a final EHC Plan for Y on 9 August 2018, after consulting with local schools in the area for a place for Y.
- Y’s EHC Plan included Y’s and Mrs X’s views and opinions on the support he needed. The Plan also included an assessment carried out by an independent EP, who consulted and observed Y whilst he was at school along with Mrs X and Y’s teachers. The assessment described Y’s learning difficulties and his discomfort with being treated differently to his peers.
- The EP carried out two language assessments with Y and made several recommendations including a suggestion that Y receive specialist literacy tuition and 1:1 support. The EP included references to an earlier independent EP assessment carried out in 2014 in their report.
- Mrs X contacted the Council in mid-August 2018 after receiving Y’s EHC Plan to complain that she was unhappy the Council finalised the Plan without holding a co -production meeting. A co-production meeting is held by the Council and provides an opportunity for the parents and school to discuss the contents of an EHC plan. The Council apologised and told Mrs X it would arrange the meeting in September 2018. However, the meeting did not take place until October 2018.
- Following the meeting, the Council issued a further final EHC Plan for Y in mid-October 2018, naming a school for Y. The Council also sent Mrs X a letter informing her the Council was not progressing Y’s SALT referral because he had failed to attend a session. The Council invited Mrs X to contact it again if she still had concerns about Y’s speech.
- Mrs X wrote to the Council in January 2019 to request an early review of Y’s plan because she felt Y’s needs had changed. The Council referred Mrs X to Y’s school to arrange the review. There is no evidence Mrs X did this.
- In July 2019, the Council held Y’s annual review meeting with Mrs X, an employee from the Council’s SEND team and staff members at Y’s school. Mrs X expressed concerns that Y’s school was not meeting his needs and she wanted the Council to agree to a change of placement. The Council explained it needed to seek external advice before it could agree to this.
- The Council and Mrs X continued to discuss Y’s progress in the following weeks. In August 2019, the Council sent Mrs X a proposed amended EHC Plan and a finalised Plan in September 2019.
- The Council held an interim review meeting with Mrs X to discuss the fact that Y was struggling in school and not engaging with the school’s attempts to administer his provision. It was agreed at the meeting that Mrs X would research other schools in the area she was more comfortable with.
- Mrs X complained to the Council at stage one of its complaints process in September 2019. She said the Council:
- incorrectly turned down her request for an EHC needs assessment in 2017.
- did not request a SALT assessment until after Y’s EHC plan was finalised. She also complained the EP used an earlier EP report to form their opinions on Y and did carry out a full assessment.
- failed to recognise the school was not helping Y engage with the provision. She also said the provision in Y’s plan was not sufficient to meet his needs.
- delayed holding the co-production meeting until October 2018 despite finalising the EHC plan in August 2018.
- did not hold an early annual review after she requested one and sent an employee without decision-making power to the annual review held in July 2019. She also said the Council did not issue its decision to amend the plan following the meeting within four weeks as required.
- The Council responded to Mrs X in late September 2019 with the following:
- the Council’s decision not to carry out an EHC needs assessment was overturned at tribunal and this matter had been concluded.
- The Council confirmed it requested a SALT assessment in July 2018 but could not confirm whether the assessment had taken place. The Council advised it would investigate this further. The Council also said the arranged EP carried out a full assessment in line with requirements.
- The Council said during the annual and interim review meetings held in July and September 2019, it emerged that despite the school following the plan, Y was not engaging with the support offered because it marked him out as different from his friends. The Council confirmed it arranged a further assessment with an EP in October 2019 to ensure Y was being educated in the correct way and offered to hold an interim review meeting to discuss further support for Y.
- The Council said it partly delayed holding the co-production meeting until October 2018 due to the school holidays and apologised.
- The Council confirmed a SEND team member attended the annual review meeting and whilst she could not make decisions, the Council was satisfied it had been appropriately represented at the meeting. The Council conceded it failed to issue a decision on the EHC plan within four weeks of the annual review meeting and apologised for this.
- Mrs X was unhappy with the Council’s response and escalated the complaint to stage 2 in October 2019.
- The Council responded in late November 2019.The Council reiterated its comments regarding Y’s EP assessment and apologised for the delay in holding the co-production meeting. The Council notified Mrs X that it had closed Y’s referral to the SALT team due to his non-attendance. The Council confirmed an EP conducted a further assessment of Y in October 2019 and it was working with the school to find ways to support Y. The Council said it would hold an interim review meeting to discuss this further.
- Mrs X referred her complaint to the Ombudsman in January 2020 as she remained unhappy with the Council’s response.
My findings
Y’s initial needs assessment
- Mrs X complains the Council did not arrange a SALT assessment after she asked for one. The Council referred Mrs X to the school and told her she could not make this request. This is fault. The guidance says the Council should seek professional advice on a parent’s behalf if it is a reasonable request. Mrs X made this request in line with recommendations made at the SEND tribunal. After Mrs X persisted, the Council referred Y to its SALT team and Y was assessed shortly after this. Therefore, Mrs X and Y did not experience an injustice because of the Council’s initial delay and incorrect advice.
- The evidence shows the Council asked for a SALT referral before finalising the EHC Plan. Y attended an initial SALT assessment but did not attend the second appointment. After sending Mrs X a letter informing her of this, the Council did not progress Y’s SALT referral. It was open to Mrs X to pursue this part of her complaint with the Council, but the evidence shows she has not done so. I do not fault the Council for this.
- Mrs X complained the EP did not fully assess Y and relied on an earlier independent report to make decisions about Y. Having reviewed the EP report,
I found it thorough and well researched. It included Y’s views, his parent’s views, and his teacher’s views. The EP assessed Y’s language skills on two occasions and included excerpts from an earlier assessment in her report. This was in addition to current information and she made recommendations based on all the information accrued up until that point. There was no fault in the Council’s actions.
Co-production meeting
- Mrs X complained the Council failed to hold a co-production meeting prior to issuing the finalised EHC Plan. The guidance requires the Council to include the young person or the parents in the assessment process and allow them opportunities to provide their views. However, the Council is not required by the law to hold a co-production meeting before issuing an EHC Plan. The Council sent Mrs X a copy of Y’s draft EHC Plan for comments and these were included in the final EHC Plan. There was no fault in the Council’s actions.
Delay
- Following the tribunal decision, the Council had 14 weeks to issue a finalised EHC Plan. The Council also had 4 weeks to issue a decision to amend the Plan after holding the annual review in July 2018. The Council issued the finalised Y’s EHC Plan two weeks late and issued the amended Plan over a month late. The Council has conceded it failed to keep to these timescales on both occasions and missed the respective deadlines by several weeks. This is fault. The delays in both cases were not significant and there is no evidence these delays led to an injustice for Mrs X or Y.
Y’s progress at school
- Mrs X complained the Council failed to liaise with his school to ensure he was engaging with the provision set out in his EHC Plan. We would expect the Council to act once it becomes aware there is an issue. After Y’s progress was discussed in the annual and interim meetings, the Council arranged a further assessment with an EP and is in talks with the school to discuss ways it can support Y. These were appropriate actions for the Council to take. It has been documented several times that Y will not engage with the provision due to his fear of appearing different to his peers. I do not find fault with the Council.
- Mrs X also complained the provision listed in the Plan was not sufficient for Y. This part of the complaint is out of our jurisdiction as Mrs X’s appeal rights were triggered after every amendment of the Plan.
Early review of Y’s EHC Plan
- The Council received a request for an early review of Y’s EHC Plan in January 2019. The Council initially told Mrs X to pursue this with Y’s school before holding an annual review meeting in July 2019. This is fault, as the responsibility for deciding whether an early annual review is necessary lies with the Council. However, the evidence indicates neither Mrs X nor the school pursued this. Therefore, under these circumstances Ms X did not experience an injustice.
Annual Review
- Mrs X complained the Council did not send an appropriate representative to the annual review meeting as they did not have the power to make decisions on the Council’s behalf. The Council has confirmed it sent a member of the SEND team, who regularly attends annual reviews. There is no requirement for the Council to send an employee with decision-making powers to an annual review. The Council did not act with fault.
Final decision
- The Council was at fault when it failed to issue Y’s EHC Plan within the required timescales, but this did not cause him or Mrs X an injustice. I have therefore completed my investigation.
Parts of the complaint that I did not investigate
- I did not investigate Mrs X’s complaint 1a because we do not have jurisdiction to investigate matters which have been referred to tribunal.
- I did not investigate Mrs X’s complaint 1b because this complaint point relates to events which took place in 2017 and there is no good reason to exercise discretion to investigate matters which took place that long ago.
Investigator's decision on behalf of the Ombudsman