Summary: There was fault by the Council in the Education, Health and Care needs assessment and planning process for Y. This fault caused Y a loss of special education provision. It also caused Mrs X, his mother, a financial loss and avoidable distress. The Council will apologise and make payments described in this statement.

The complaint

1. Mrs X complained about Stoke-on-Trent City Council’s (the Council’s) Education, Health and Care (EHC) needs assessment and plan process for her son Y. She complained:
1. the Council took too long to issue the final EHC plan, issued multiple draft plans with confusing layouts and relied on out-of-date information that did not reflect Y’s current needs.
2. the Educational Psychologist (EP) made inappropriate comments and completed the report without seeing Y.
3. Y did not have appropriate education for 12 months.
2. Mrs X said the Council’s failings caused:
• A loss of education for Y
• A financial loss because she had to obtain a private educational psychology report
• Avoidable anxiety and distress.

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What I have investigated

3. I have investigated Mrs X’s complaints from January 2019 to May 2020. My reasons for this are in paragraphs 12 and 13.

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The Ombudsman’s role and powers

4. 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)
5. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
6. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
7. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
8. Complaints about Education, Health and Care Plans (EHC plans) may be within our remit depending on the complaint. We can investigate a complaint about an EHC plan if:
• The action relates to an administrative function of the council
• The action is taken by or on behalf of the council
• The action is not excluded by the provisions in paragraphs 5 or 7.
9. 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)
10. 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 a copy of the final decision statement of this complaint with Ofsted.
11. 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)

The period of this investigation

12. The timeframe for this investigation is from January 2019 to May 2020 when the Council issued Y’s final EHC plan. Mrs X had a right of appeal to the SEND tribunal from May 2020 and she appealed so we cannot investigate complaints after the date she appealed.
13. Mrs X complained to us in July 2020. So events earlier than July 2019 are late complaints. However, I started the investigation from January 2019 because the complaint is about a continuing series of delays in the EHC assessment and planning process which were not within Mrs X’s control. All the relevant documents and information are available for me to reach a robust conclusion.

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How I considered this complaint

14. I considered Mrs X’s complaint to us, her complaint to the Council, its response and documents described in the next section. I interviewed council officers by phone.
15. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

16. On receiving a request for an Education, Health and Care (EHC) needs assessment, a council must determine whether an assessment is necessary. (Children and Families Act 2015, section 36)
17. The council must prepare an EHC plan if, after a needs assessment, it is necessary for special educational provision to be made. (Children and Families Act, section 37)
18. The Special Educational Needs Code of Practice 2015 (the Code) is statutory guidance which councils must have regard to. I have summarised relevant paragraphs below:
• Assessment and issue of a final EHC plan must take no longer than 20 weeks from the date of a request for an assessment (9.40)
• The council must gather advice from relevant professionals about the child’s education, health and care needs, desired outcomes and any provision that may be required (9.46)
• The local authority and the person providing the advice should ensure the advice remains current (9.47)
• Evidence and advice should be clear, accessible and specific (9.51)
• Advice and information must be sought as follows (9.49):
1. Medical advice and information from health care professionals involved
2. Psychological advice and information from a council-employed or commissioned educational psychologist (EP) who should consult with any other psychologists known to be involved with the child
3. From any person requested by the child’s parent where the council considers it reasonable to do so.
19. The importance of sharing information and avoiding duplication is stressed in the Code:
• Information sharing is vital to support an effective assessment and planning process which fully identifies needs and outcomes and the education, health and care provision needed by the child or young person. Local authorities with their partners should establish local protocols for the effective sharing of information… (9.32)
• As far as possible, there should be a ‘tell us once’ approach to sharing information during the assessment and planning process so that families and young people do not have to repeat the same information to different agencies, or different practitioners and services within each agency. (9.33)
20. This complaint involves events during the COVID-19 pandemic during the first national lockdown. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to Covid-19”.
21. The SEND (Coronavirus) (Amendment) Regulations 2020 were in force from 1 May until 25 September 2020. Councils did not have to comply with time limits in the Code (see paragraph 21) in relation to completing EHC assessments and plans if it was impractical to do so because of a reason relating to coronavirus. In relation to cases where the EHC process was partly complete on 1 May, if the 20- week time limit had already passed, we are likely to take our usual approach to assessing the impact of the delay and failure to arrange provision.
22. The Coronavirus Act 2020 temporarily modified the duty in section 42 of the Children and Families Act 2014 to arrange or secure the SEN and health provision in an EHC plan. The change meant the absolute duty on a council to secure or arrange SEN provision was modified from 1 May to 31 July 2020 to a requirement to use ‘reasonable endeavours’ to do so.
23. Supporting vulnerable children and young people during the coronavirus outbreak – actions for educational providers and other partners (in force between March and August 2020) said education providers and councils should identify vulnerable children and young people, (including those not in education, those with EHC plans and those classed as vulnerable at the discretion of the council) and consider how best to support their welfare and education both remotely and on-site. There should be a risk assessment to determine whether attendance is safe or not.

What happened

24. Y, aged nine at the start of this complaint, has autistic spectrum disorder and was in a mainstream primary school. Y’s school drew up SEN support plans for him in Year 4. (An SEN support plan is put in place by a school where they have identified a pupil has SEN and decided to provide support for the child.) The school managed Y’s SEN support within its budget.
25. One of the Council’s EPs saw Y at school in January 2019. The note of the visit said ‘school to prepare historical data and evidence for an EHC submission.’ The school did not ask the Council for an EHC assessment for Y despite the EP’s note. As we have no power to investigate complaints about the internal management of schools, I have not pursued this point.
26. In March 2019, Mrs X paid for a private Speech and Language Therapist (SALT) to assess Y and recommend provision for any communication and language needs. The SALT recommended 18 x 90-minute sessions over the academic year.
27. Mrs C asked the Council for an EHC assessment for Y at the start of July. The Council asked the school and the EP for advice. The school responded in July with a letter describing how Y had been at that time - they were managing Y’s SEN within the school’s budget. The school’s SENCO (special educational needs co-ordinator) described him as working independently and behaving well in lessons and said there was no need for an EHC plan at present.
28. The Council decided to carry out an EHC needs assessment on 1 August.
29. Mrs X arranged for a private occupational therapist to assess Y and prepare a report in August. The report recommended sensory activities and support for Y and an environment that was supportive of his sensory needs.
30. One of the Council’s EPs completed a report on Y in September. The report concluded ‘overall the progress rate is age acceptable and indicative of a child who should be able to progress mainstream curriculum with some recommendations.’ The report suggested the EP had observed Y in the summer term of 2019 and had discussions with Mrs X in 2019 before writing the report. Mrs X said the EP did not see Y in summer 2019 and did not speak to her before writing the report.
31. The Council completed an EHC needs assessment. The document I have seen has no date but I understand it was completed in September. The assessment noted Mrs X said Y was on the verge of expulsion from school or the doctor making him medically unfit to attend. Mrs X said Y needed specialist education provision and the EP had used old and out of date information about Y in his report. Mrs X asked for an up-to-date EP report.
32. A letter from Y’s school in September (which probably post-dated the EP’s report and the EHC needs assessment described above) said:
• Since the start of term, Y’s behaviour changed. He was refusing to come into school, and when he did, he would not follow instructions. He had been excluded.
• He was in a 10-day prevention class at an alternative education unit.
33. Mrs X told me she and the EP met at school in September to discuss the EP’s report. Mrs X told me she raised concerns at the meeting that the EP had not seen Y since January and said that his presentation and behaviour had changed dramatically. Mrs X told me the EP refused to see Y and refused to change his report, saying what he had written was ‘legal and accurate on the day’. I asked the EP for comments and he has seen a draft of this statement, but he did not respond and he is no longer employed by the Council. A team leader in the SEN team told me there was a general expectation that EPs would write reports having seen the child recently.
34. The alternative education provider sent a report about Y in October. It said he had attended a 10-day placement arranged by the school. The provider recommended a phased return to school, noting Y had been at risk of exclusion for verbal and physical aggression.
35. The school sent a letter to the Council in October saying Y needed a specialist education placement, he had been abusive at school and run away.
36. The Council issued a first draft of an EHC plan for Y in the middle of November. The Council also sent me a draft EHC plan called draft 2 with a date one day after the first draft. Drafts 1 and 2 are identical. The SEN provision on these plans included 17.5 hours of support from a teaching assistant or 8 hours of support from a specialist teacher, every week, provided individually or in a small group. Drafts 1 and 2 of the EHC plan referred to the Council EP’s reports and information from the school’s SENCO.
37. The school commented on the draft EHC plan in November. It said none of the comments it had made about Y (see paragraphs 32 and 35) were reflected in the plan. The letter went on to say:
• Y had been excluded for a day, he had been kept at home due to anxiety for one week and was off school for a further week.
• Y was currently attending school for two hours a day. His anxiety was high
• The EP needed to re-assess Y
• Mainstream school could not meet his needs.
38. The school wrote again in November repeating concerns about Y’s out-of-control behaviour and saying he was attending school for two hours a day and was in a separate room with one or two members of staff.
39. At the end of November, Mrs X paid for a private EP to assess Y and prepare a report. The report recommended:
• Precision teaching for literacy and numeracy, 10 minutes each a day
• Communication and language group at least 60 minutes a week in a group of 5 children
• Staff with specialist behaviour training
• Access to sensory activities
• Scheduled movement breaks for 5-10 minutes
• Emotional regulation support 45 minutes a week
• Key worker to meet and greet each morning
• Regular check ins at least 3 times a week
• A reserved seat at lunch.
40. The Council issued a third draft of the EHC plan in December. It contained additional parental views and information from the private EP, OT and SALT reports. The SEN provision was the same as the previous drafts. Confusingly, the Council also issued a different third draft, which was shorter and in a very different format from the other drafts. In terms of provision, this version of the plan said ‘Band 4d with the organisation of resources and allocation to be set out in an Individual Education Plan by the school’. There was no explanation about what the Council meant by Band 4d.
41. In December, the school wrote to the Council asking for amendments to Draft 3 of the EHC plan. The letter said Y continued to be unsafe in the classroom, was still in a separate room for only two hours a day and the school could not accommodate him. The school went on to say the latest draft plan was still out of date and did not include any of the information it had provided.
42. Mrs X also commented on Draft 3 asking for the most recent evidence to be considered and included in the plan. She said the Council had received all the reports and up to date information from the school and the reports referred to in section K of the plan were out of date. She said her view was Y would need a carefully planned integration into any future provision, he could not be in a classroom at the moment and was in a separate room at school playing games. Mrs X said she wanted a special school as Y’s placement.
43. Mrs X wrote to the Council at the end of January 2020 with comments on the draft EHC plans. She said Draft 3 was clearer and ‘Draft 4’ (referring to Draft 3 in the different format, paragraph 40) was missing outcomes that were in the previous draft. She also said there was no detail about staffing ratios and asked the Council to use Draft 3 as a basis. She said the different drafts were confusing and asked for the latest information from the school to be included.
44. Mrs X emailed the Council again in January, enclosing further copies of reports and updates from the school that had been previously sent to the Council. She asked the Council to amend various sections of the draft EHC plan including the provision for Y.
45. An SEN case officer met with Mrs X in February. Mrs X emailed the case officer after the meeting with the special school she wanted for Y.
46. The SEN case officer emailed an unfinished Draft 4 of the EHC plan to Mrs X at the start of February, noting the plan was not finished. I have seen a copy of this plan and it is almost the same as the previous version. This led to Mrs X making a complaint to the Council about the same issues she has raised with us.
47. The school emailed the Council in March with suggested amendments to the plan.
48. The first national lockdown began on 20 March and Y’s school closed and so he was educated at home.
49. In the middle of April, Mrs Y emailed with comments on the latest draft plan. She said she’d had problems using the Council’s hub and had error messages after spending two hours trying to submit information. (The hub is an internet platform the Council uses to provide information about SEN and for parents and professionals to apply for an EHC plan and to upload documents)
50. The Council issued Draft 5 of the EHC plan at the start of April. This set out SALT provision for the first time. Provision for cognition and learning was significantly different from the previous drafts. The plan said Y needed ‘smaller classes than in mainstream school, a maximum of 15, preferably fewer than 8 pupils.’
51. The Council consulted with two special schools in April. There weren’t any positive responses.
52. Mrs X initially requested two special schools for Y, then changed her mind. The records indicate the Council would not consider one school because of cost.
53. The Council issued a final EHC plan and letter on 15 May. There was no placement named, the plan said Y needed a ‘special school’ and smaller class sizes than in mainstream school, less than 15, ideally less than 8. It also set out one to one or one to two teaching for specific tasks and activities, a sensory environment based on an OT’s recommendations and 18 x 90-minute sessions of SALT for each school year.
54. Mrs X complained to the Council. Its final response to Mrs X’s complaint said:
• She applied for an EHC needs assessment during the summer holidays. The SEN team asked the EP and school for information. There had been no involvement from the EP since January 2019, because the school did not feel it needed further advice and so the EP did not see Y again. The school’s advice reflected Y’s presentation and the school’s assessment information at the end of the summer term of Year 4. Things changed in September when Y went into Year 5
• It was sorry the EP shared his political views at a meeting in September 2019
• There were significant changes in staff which caused a delay from November to April in writing the draft EHC plan with the EP’s report. Y’s draft EHC plan was updated several times to reflect his changing needs. The first draft of the EHC plan (November 2019) included the Council’s EP report of September 2019. The Council was not required to include private EP reports in EHC plans, but it included much of the private report at Mrs X’s request
• The Council only sourced alternative education if a pupil was at significant risk of permanent exclusion. It was the school’s responsibility to instigate this
• The Council did not become responsible for SALT until the final EHC plan was in place. OT provision went into the second draft EHC plan and both OT and SALT were in the latest version
• The Council outsourced writing EHC plans to a company and due to staffing changes, several officers had been involved with Y’s case. It was sorry for the difficulties caused by this. The Council said it was difficult to follow the 'tell us once model' when a case was complex
• The Council was aware of issues with the hub and was sorry for the difficulties she had experienced. It hoped to have a solution soon.
55. Mrs X appealed to the SEND tribunal in May. The Council consulted with several special schools, but none had places for Y.
56. The Council did not oppose the appeal. The Council said on the tribunal papers that it had consulted with a number of placements, but none could meet Y’s needs and he had been receiving tutoring.
57. At the end of September, the tribunal ordered a 20-hours a week of one- to-one tuition at home and a personal budget for SALT and OT (a personal budget is an amount of money a council gives to enable the parent to arrange provision). Tutoring started at the beginning of September 2020.

Comments from the Council

58. Senior staff in the Council’s SEN team told me in interview that:
• Staff involved in the Autumn of 2019 had left the Council.
• There was an expectation that an EP would see a child before writing a report for an EHC needs assessment. Information should be recent. If the parent raised concerns about the content of the report, this would be taken up with the Principal EP
• A special group was running to address problems with the hub and group members included parents, council staff and schools. There was also a weekly meeting with the hub provider to discuss and address any technical problems with the hub. The contract with the hub provider was ending in the next 12 months and the Council was looking into a different system.

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Was there fault?

Complaint a: The Council took too long to issue the final EHC plan, issued multiple draft plans with confusing layouts and relied on out-of-date information that did not reflect Y’s current needs.

59. Mrs X asked the Council for an EHC needs assessment at the start July 2019. The Council was required by paragraph 9.40 of the Code to complete the assessment and issue a final EHC plan no later than the middle of November. It took until the middle of May 2020 to issue a final plan. The delay of six months was not in line with the Code and was fault.
60. Had the Council issued a final EHC plan in November 2019 in line with the statutory timescales, Y would have been entitled to receive the provision in that plan. The final plan issued in May 2020 said Y needed education in a small group and in a specialist setting, 18 SALT sessions each year, an appropriate sensory environment and short periods of 1 to 1 or 1 to 2 provision for specific tasks. This provision should have been in place from the middle of November 2019 to meet the 20-week timescale and the duty in section 42 of the Children and Families Act 2014 to secure or arrange provision in a final EHC plan. The Council should also have carried out a risk assessment to determine Y’s needs and whether these should be met when the reasonable endeavours duty began at the start of May 2020. This was because Y was a vulnerable child that would have been subject to an EHC plan had the statutory timescales been followed. The failure to do a risk assessment meant there was no consideration of Y’s welfare and education and whether or not on-site attendance was appropriate. This was fault.
61. There was a problem with the Council’s EHCP hub when Mrs X was using it to share information with the Council. Mrs X had to provide reports and letters from the school that she had already uploaded onto the hub. This was not in line with the ‘tell us once approach’ set out in paragraph 9.33 of the Code, was not effective information sharing as set out in paragraph 9.32 and was fault. I do not accept the Council’s statement that the ‘tell us once approach’ is more difficult when a case is complex. The issue here was not the complexity of Y’s case but was because of the hub not working with ease and/or the lack of support Mrs X had to use the hub.
62. It is not unusual for there to be more than one draft of an EHC plan and we may not regard this as fault depending on the circumstances. However, there was fault in this case because:
• The first three drafts did not include the latest available information about Y’s behaviour and presentation (which changed dramatically in September, October and November). I am satisfied Mrs X and/or the school used all efforts to get this information to the Council using the hub, but for unknown reasons it was not accessible to officers who were drafting Y’s plan.
• One draft plan was in a different format and this was confusing because it did not allow any comparison with previous drafts. This draft also did not specify the SEN provision other than as ‘Band 4d’. Information should be clear and specific to be in line with paragraph 9.51 of the Code and without further explanation, it was unclear what Band 4d provision was. This draft EHC plan was not in line with expected standards.
63. I deal with the complaint about out-of-date information in the EP’s report in the following section.

Complaint b: The Educational Psychologist made inappropriate comments and completed the report without seeing Y.

64. The Council accepted the EP made inappropriate comments and apologised to Mrs X in its complaint response. The EP has had an opportunity to explain what happened from his point of view and has not responded. My view is the Council was at fault. It has already apologised and no further action is required on this point.
65. I am satisfied the Council’s EP had not seen Y since January 2019 when he wrote his report, despite his comment in the report that he had seen Y in the summer term of 2019. There are no records of the EP’s visit to the school apart from the January 2019 visit and Mrs X told me she was not told that an EP had visited the school to see Y. There was fault because 9.51 of the Code required the Council to have up to date information about Y. Relying on information from a visit in January 2019 when writing a report about a child whose behaviour had radically changed was therefore fault. Council officers have also confirmed in interview with me that an EP should normally see the child before preparing a report and that information relied on in a report should be recent and up-to-date.

Complaint c: Y did not have appropriate education for 12 months.

66. Y’s EHC plan should have been issued by the middle of November 2019 had the Council complied with the 20-week timescale set out in the Code. The Council was at fault, although for reasons given in the next section, the Council is not responsible for 12 months loss of provision.

Injustice

67. Had the Council issued Y’s final EHC plan on time, he would have had specialist provision in a small group setting and some individual teaching support, along with SALT between November 2019 and March 2020 when the first lockdown started. Instead, he was in a mainstream school for only two hours a day, in a room with a teaching assistant, separated from other pupils in his class and not receiving any formal education.
68. All schools closed on 20 March in line with the government’s announcement of the first national lockdown. The amended EHC provisions in the Coronavirus Act 2020 applied from 1 May. The Council should then have carried out a risk assessment to inform any decision about provision for Y as he was a child with SEN. It is unlikely that any education on-site would have continued for Y and he likely would have stayed at home with very limited remote provision until schools re-opened in September. This is what happened in any event: Y was educated at home and then the one-to-one tuition specified in his EHC plan started at the beginning of September. So the lack of a risk assessment would not on a balance of probability made any difference to the outcome for Y. I note also that the Council only had to use reasonable endeavours to secure or arrange Y’s education provision from May to the end of July 2020. It is therefore unlikely Y would have received any school-based SEN provision during the summer term.
69. The Council has already apologised for inappropriate comments by the EP and this remedies any injustice.
70. Information from Mrs X indicates she raised concerns directly with the EP in a meeting in September, but the EP refused to see Y or amend his report. Mrs X therefore paid for a private EP report. This was an avoidable cost had the Council instructed the EP to update his report so it contained up-to-date information about Y.
71. The delay in issuing the final EHC plan caused Mrs X avoidable distress as well as a loss of provision for Y between November and March.

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Agreed action

72. I found the Council was at fault and this fault caused injustice described in the previous section.
73. To remedy the injustice, the Council will, within one month of my final statement:
• Apologise to Mrs X for the fault and injustice
• Reimburse her the cost of the private EP report. We do not generally recommend reimbursement of private reports, but in this case, it is appropriate because the EP refused to update his report despite Mrs X raising concerns directly with the EP about his report being out-of-date and about Y’s condition and behaviour having deteriorated since the EP’s last observation. I have also taken into account that Mrs X also raised concerns directly with the Council about information in the report in October, before she organised a private report. It was therefore reasonable of her to pay for a private report in order to get an up-to-date assessment of Y’s SEN.
• Makes a payment of £2000 to reflect Y’s loss of special education provision between November 2019 and March 2020. This is in line with our published Guidance on Remedies which sets out a guideline for each month of lost education.
• Makes Mrs X a payment of £250 to reflect her avoidable distress.
74. I have not made any recommendations about service improvements to the hub, because I am satisfied the Council is already taking action to improve the hub by working with those who use it and considering a different provider.

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Final decision

75. There was fault by the Council in the Education, Health and Care needs assessment and planning process for Y. This fault caused a loss of special education provision. It also caused Mrs X, his mother, a financial loss and avoidable distress. The Council will apologise and make payments described in this statement.
76. I have completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman