Summary: Mrs X complained about the Council’s handling of her son’s education, health and care needs assessment and the provision in his plan. While there was fault in how the Council carried out the needs assessment, we cannot provide a remedy to Mrs X or her son. This is because she has exercised her right of appeal to the SEND tribunal. The Council has agreed to carry out service improvements.

The complaint

1. Mrs X complains the Council failed to seek the required advice to inform an education, health and care (EHC) needs assessment for her son, Y. Mrs X says the fault in the assessment process meant she had to fund private reports and appeal to a tribunal about the content of Y’s EHC plan. She would like the Council to refund the cost of the private reports, and the legal costs of going to tribunal. Mrs X also complains about the Council’s failure to engage in mediation in 2017 and that it failed to include speech and language therapy and occupational therapy in a final EHC plan issued in 2019.

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What I have investigated

2. I have investigated the Council’s handling of Y’s education, health and care needs assessment and drafting of his plan. The final section of this statement contains my reasons for not investigating the rest of the complaint.

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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 or service improvements. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. 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)
6. Case law has established that where an alternative remedy has been used (such as a right of appeal to a tribunal) we have no jurisdiction to investigate related matters or to provide an additional remedy. (R v The Commissioner for Local Administration ex parte PH (1999))
7. 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

8. I have considered the complaint made by Mrs X and the documents she provided.
9. I considered the Council’s comments about the complaint and the documents it provided in response to my enquiries.
10. 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.
11. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
12. 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

Law and guidance

13. 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’ (‘the Code’) gives more details about how councils, schools and others should carry out their duties.
14. 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. 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. Councils are responsible for ensuring effective coordination of the assessment and development of an EHC plan.
15. 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.
16. If it decides to assess, a council must seek advice from relevant professionals about the child’s education, health and care needs and desired outcomes. It should also ask what provision will meet those needs and outcomes. Councils must give professionals copies of representations made or evidence sent by the parent. Professionals must provide advice to the council within six weeks of the request.
17. Councils must seek advice from:
• The child’s school
• Health care professionals with a role in relation to the child’s health
• An educational psychologist
• Social care
• Any person requested by the child’s parent where the council considers it reasonable to do so.
• Any others the council considers appropriate for a satisfactory assessment.
18. 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 process.
19. If a council decides to issue an EHC plan following a needs assessment, it must send the draft plan 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. The council can only amend the final plan in response to representations made by the parent; it must not make any other changes. If a council wishes to make changes to a plan it must re-issue the draft plan to the parent.

What happened

20. In 2017 Mrs X asked the Council to assess Y for an EHC Plan. She arranged private assessments of Y by an educational psychologist, speech and language therapist and occupational therapist. The Council refused to assess Y. Mrs X appealed, unsuccessfully, to the SEND first-tier tribunal. However, she later appealed the outcome to the upper tribunal which found the first-tier tribunal had made an error. By this time, the Council had agreed to assess Y as he had been diagnosed with an autistic spectrum condition.
21. The Council agreed to assess Y in October 2018 and sent a request for advice to:
• Y’s school
• Educational psychology
• Speech and language therapy
• Occupational therapy
• Y’s private speech and language therapist
• Community paediatrics
• Child and Adolescent Mental Health Services (CAMHS)
• Social care
22. Advice should have been returned by mid-November. By mid-December the Council had still not received a response from the NHS speech and language or occupational therapy service. The Council contacted the speech and language therapy service to ask for a report. Y’s private speech and language therapist sent a report suggesting he needed 40 hours a year provision.
23. The Council issued a draft EHC plan on 7 January 2019. This showed the Council had considered responses received from Y’s school, educational psychology, community paediatrics, social care, CAMHS and the private assessments Mrs X had commissioned into speech and language and occupational therapy. The Council had not received reports from NHS speech and language or occupational therapy services.
24. The draft plan included recommendations that Y receive nine sessions one-to-one direct speech and language therapy a term and additional hours to attend a social skills group. The following day, Mrs X told the Council she accepted the draft plan but was waiting to hear about speech and language and occupational therapy provision.
25. The Council issued a final EHC plan a week later. It removed the recommendations about direct speech and language therapy and hours for social skills provision. Instead, the Council said it was clarifying the speech and language provision with the NHS provider. It said once this clarification and an occupational therapy report had been provided it would amend the plan. On the same day, a speech and language therapist referred Y to the speech and language therapy service for an assessment. Mrs X commissioned her own occupational therapy assessment.
26. An NHS speech and language therapist met with Y in February and completed their report in March. This recommended Y receive 32 hours of provision each year. In the same month Mrs X appealed to the SEND tribunal about the description of Y’s needs and the provision detailed in his EHC plan. In April, an NHS occupational therapist assessed Y and produced a report.
27. The tribunal hearing took place in September 2019. The tribunal noted Mrs X and the Council had agreed most amendments to the EHC plan, including occupational therapy provision as set out in the report by the NHS occupational therapist. But there remained a dispute about how many hours speech and language therapy Y should receive. The tribunal directed the Council to amend Y’s plan to include 36 hours of speech and language provision. The Council issued an amended final plan in October 2019.
28. Mrs X complained to the Ombudsman in August 2020. She said she would like the Council to pay for the provision she made for Y before it was put into his EHC plan. She would also like the Council to pay for the private reports she commissioned and for the legal costs of her appeal to the SEND tribunal.

Analysis

29. Once the Council decided to assess Y, it issued its requests for advice in good time and to the professionals required by the Code. However, it was at fault for failing to secure the advice about Y’s speech and language therapy and occupational therapy needs before issuing his plan. If the Council considered it needed a view from NHS providers as part of Y’s needs assessment, once it became clear there would be difficulties securing this advice it should have acted to obtain it.
30. The Council was also at fault for making changes to the draft plan which were not suggested by Mrs X. Mrs X’s response to the draft plan said she was waiting to hear about speech and language and occupational therapy; she did not propose removing the provision already set out in the draft plan.
31. However, the consequences of these faults were that Mrs X felt Y’s EHC plan did not accurately reflect his needs or the provision he required to meet them. Mrs X appealed to the SEND tribunal about the content of Y’s EHC plan. 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 how the Council decided what provision to include in Y’s EHC plan and we cannot provide an additional remedy to Mrs X or Y.
32. The Council is not under a duty to secure provision until it is in a final EHC plan. As the plan did not include direct speech and language or occupational therapy provision until October 2019, the Council is not required to meet the costs of provision which Mrs X arrange for Y privately before then.

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Agreed action

33. Within one month of this decision, to prevent injustice being caused in the future, the Council will:
• Remind officers carrying out education, health and care needs assessments that they must act to obtain advice from relevant professionals as soon as it becomes clear there may be difficulties securing it.
• Remind officers responsible for drafting and finalising plans changes can only be made to a draft plan in response to representations made by the child or their parents. If the Council wishes to make changes to the draft it must issue an amended draft and allow a further 15 days to comment.

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Final decision

34. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to carry out service improvements to prevent similar injustice being caused in the future.

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Parts of the complaint that I did not investigate

35. I have not investigated Mrs X’s complaint about the Council’s decision not to participate in mediation in 2017. This part of the complaint is late and there do not appear to be good reasons for us to consider it now.
36. I have not investigated the Council’s failure to include speech and language or occupational therapy provision in Y’s EHC plan. This was subject of an appeal to the SEND tribunal and is therefore not in our jurisdiction.

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Investigator's decision on behalf of the Ombudsman