Summary: Mrs M complains about the Council’s actions in relation to the Education, Health and Care assessments for her two sons and that it delayed issuing the final plans. We have found fault causing injustice. The Council has agreed to apologise to Mrs M.

The complaint

1. Mrs M complains about the Council’s actions in relation to the Education, Health and Care needs assessment process for her two sons and that the Council has delayed issuing the final EHC Plans. As a result, the children have not had a suitable named setting in place from September 2020 and are not receiving the support they need.
2. Mrs M says the lack of support has caused her sons’ adoption placement to go from ‘at tipping point’, to being ‘broken’.

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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. 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. 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. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
7. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
8. 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)
9. 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.

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How I considered this complaint

10. I spoke to Mrs M about her complaint and considered the information she sent, the Council’s response to my enquiries and:
• the Special Educational Needs and Disability Code of Practice January 2015 ("the Code")
• the Special Educational Needs and Disability Regulations 2014 (“the Regulations”)
11. I issued a draft decision statement. As a result of Mrs M’s and the Council’s comments on it, I changed my findings and recommendations and issued a second draft decision. Mrs M and the Council had an opportunity to comment on the second draft decision. I considered any comments received and made further enquiries before making this final decision.

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What I found

Special educational needs

12. A child with special educational needs may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
13. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision, the school named in their child's plan, or the fact that no school or other provider is named.
14. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.

EHC plan process

15. Children and young people may require an EHC needs assessment for the council to decide whether an EHC plan is necessary. Councils must decide whether to carry out an EHC needs assessment and notify the parent of their decision within six weeks of a request. Parents can challenge a refusal to assess by appealing to the SEND Tribunal.
16. If the council agrees to assess, it must seek information and advice on the child’s needs, the provision required to meet those needs, and the outcomes expected to be achieved by the child. This advice must come from a range of different people as listed in the Regulations. This includes the parents and young person, educational psychologists, medical and social care, and advice and information from any other person the local authority thinks appropriate.
17. Anyone who is asked for information and advice must respond within six weeks (unless exemptions listed in the Regulations apply). This is a legal duty which must be complied with; it cannot be avoided because there is a long waiting list or staffing shortages. If a council is unable to obtain one of the necessary pieces of advice during the time frame, it would be expected to obtain an independent report in its place.
18. After the assessment, the council must decide whether to issue an EHC plan. If the council decides to issue an EHC plan, it must send out a draft plan to the parents, giving them 15 days to comment. The draft EHC plan must not name a school. The council then consults with the school(s), allowing 15 days to respond. It must send the final EHC plan to the parent or young person within 20 weeks from the date the assessment was requested.
19. There are some circumstances in which a council may not be required to comply with these timescales. These include where the council asks for advice from a school when it is closed for the summer holidays.
20. If a parent requests a particular school, this must be named in the EHC plan unless it would be unsuitable for the child or incompatible with the education of others. An independent school cannot be named unless it has been approved by the Secretary of State. When issuing a final EHC plan, the Code allows a council to name a school without a parent’s agreement if proper consultation with parents and the school has taken place.

Impact of COVID-19

21. Due to the coronavirus pandemic, all schools were closed to most pupils on 20 March 2020. On 1 May 2020, the Secretary of State issued a notice which changed the absolute duty of councils to secure or arrange special educational needs provision to a duty to use “reasonable endeavours” to do so.
22. The Regulations were also amended to replace the specific timescales described above with a requirement to act “as soon as reasonably practicable” if it was not reasonably practicable to meet that time limit “for a reason relating to the incidence or transmission of coronavirus.” This change was in place from 1 May 2020 to 25 September 2020.

What happened

Background

23. There has been a great deal of correspondence and discussion between Mrs M and the Council about these issues. It is not necessary for me to detail everything that happened here. I have set out the key events.
24. Mrs M has two adopted sons, J and K. They both have organic brain injuries, diagnoses of ADHD and experienced early life trauma. J and K attended mainstream primary school (School 1) but Mrs M was concerned it was not meeting their needs. In October 2019 she requested EHC needs assessments for both children.
25. On 4 December 2019, the Council’s EHC panel decided not to assess J. It considered his needs could be met through SEN support by the school. The Council notified Mrs M of this decision on 5 December 2019, setting out her appeal rights.
26. Mrs M complained to the Council about its refusal on 12 December 2019 and said there was an apparent gap in knowledge among the panel about the boys’ brain injuries. This was dealt with as a complaint, rather than through the appeal route, though the Council’s response on 24 December 2019 advised Mrs M of her appeal rights and that she could go to mediation. Mrs M asked to go to mediation. She also submitted a further complaint on 7 January 2020. Mrs M’s second complaint was closed on 27 January as it was superseded by the mediation process.
27. A mediation meeting was convened on 29 January 2020, but the mediator failed to attend. The Council’s note of the meeting says it reconsidered J’s progress and, as he was not making age-expected progress, it decided to assess his EHC needs.

EHC assessment

28. On 2 April 2020 Mrs M sent the Council a report by J and K’s therapist and asked what was happening about the EHC assessment. The next day the Council sent Mrs M its formal notification that it had agreed to assess J. It then requested information and advice from an educational psychologist. This should have been provided by mid-May 2020.
29. The first national COVID-19 lockdown started in March 2020 but I have seen no evidence to explain why it took until 3 April 2020 to issue the formal notification letter or start the assessment process.
30. There was a neuropsychology multi-disciplinary assessment of J and K on 30 June 2020, which had previously been requested by their adoption support worker. Mrs M was keen for the outcome of that assessment to be taken into account in developing the EHC plan but she asked for the educational psychology assessment to go ahead before the neuropsychology assessment had reported to prevent delay.
31. Mrs M sent the Council a new EHC assessment application for J on 16 July 2020 (“Appendix A”) and a new application for K on 27 July. These contained updated information, including on their complex background, the latest medical notes, J’s views and evidence of School 1’s failure to meet his needs. The new request made clear that Mrs M did not wish J to attend a mainstream school.
32. Mrs M wanted J and K to attend School 2, which was a new independent specialist school that was in the process of being registered by the Department for Education.
33. The educational psychologist assessed J on 23 July 2020 and sent his report to the Council on 10 August 2020. The Council says this took longer than six weeks as he was unable to carry out the assessment during the COVID-19 lockdown, following advice from the professional body not to visit. Mrs M says as the educational psychologist had been unable to visit, he could not carry out a full cognitive assessment. She therefore arranged and paid for an independent educational psychologist to do this assessment.
34. The Council’s EHC panel agreed to issue EHC plans for J on 19 August 2020. On 3 November it agreed to issue an EHC plan for K. The neuropsychology multi-disciplinary assessment report was sent to the Council on 2 September 2020. This said the family was at “tipping point” and recommended long term therapeutic provision and urgent support.

Development of the EHC plans

35. The Council says the panel agreed to naming School 2 on J’s EHC plan, but on 4 September 2020 it told Mrs M it could not do this as School 2 had not yet met the required Ofsted standards and was therefore not yet registered with the Department for Education.
36. There is evidence a draft EHC plan for J was sent to Mrs M on 10 September, with a deadline for comments of 25 September. It was also sent to School 1 and to other mainstream schools and to School 2 on 15 September. The draft EHC plan said J required a range of support including targeted interventions, one-to-one and small group support, and therapeutic support for social communication skills.
37. Mrs M was unhappy with the draft EHC plan. She said it did not include the updated information she had submitted with her revised Appendix A in July 2020. She was also concerned that the Council had consulted with School 1, which she considered was unsuitable, without her permission and had not consulted School 2.
38. The Council’s records show that on 18 September it told Mr M a revised EHC plan would be sent and that he agreed that an amended draft EHC plan could be sent to schools before Mr and Mrs M had had 15 days to review it. A further draft EHC plan for J was emailed to Mrs M and School 1 on 22 September. K’s medical records were wrongly included in the information sent to the schools. The Council apologised for this on 8 October and said it had been reported to the Information Commissioner as a data breach.

Mrs M’s complaint

39. Mrs M complained to the Council on 22 September that it had failed J. It responded on 19 October and upheld the complaint. I have summarised the complaint and response below.
• The Council had misinterpreted Appendix A leading to their initial refusal to assess. – The Council had explained in its response of 24 December 2019 that the panel had made its decision based on the evidence it had.
• The Council had wrongly claimed it had not received the revised Appendix A, had failed to present it to the Panel and had issued a draft EHC plan based on the incorrect Appendix A. – The Council accepted the revised Appendix A had not been used. It had told Mrs M on 8 October it would review the draft EHC plan to ensure it included this information. The Council would amend J’s draft EHC plan to ensure it reflected the reports provided and send revised documents to the panel.
• The Council had only given Mr and Mrs M 11 days to comment on the first draft rather than 15 days. – The Council said Mr M had agreed to this on 18 September.
• The Council had failed to issue a revised draft EHC plan on 18 September. - The Council accepted this.
• The Council had failed to respond to their correspondence. - The Council accepted there had been gaps with communications which had contributed to J and Mr and Mrs M not being at the centre the EHC needs assessment process. It apologised for this and said it would consider how to improve processes and communications.

Events following the complaint

40. Mrs M told the Council in October 2020 that J and K had started attending School 2 two days a week, funded by Mr and Mrs M. Mrs M said the Council had told her it funded no children to go there but this was incorrect. She asked the Council to reimburse the cost of School 2, as J and K’s needs remained unmet in School 1. She also said she had paid £1,500 for independent cognitive assessments, which had been relied on by the educational psychologist and others in developing the EHC plans.
41. The Council said it would hold an internal, professionals only multi-agency meeting to coordinate a plan. This took place on 2 November 2020. It noted EHC plans were to be completed but that it would not be naming School 2 as it was not yet registered. Mrs M wanted Section I of the final plan to state “Independent Specialist provision of Parents’ Choice” and for this to be updated this as soon as School 2 was registered.
42. Two further draft EHC plans were issued in December 2020. The Council also agreed to provide direct payments to Mrs M to fund the places at School 2 until the end of January 2021. This would be reviewed if School 2 was not named in the final EHC plan. School 2 was registered in December 2020. The Council confirmed J and K’s placement at School 2 and issued final EHC plans on 2 February 2021. Mrs M has appealed to the SEND Tribunal about those plans.

My findings

43. There was a delay by the Council from 29 January 2020 to 3 April 2020 in starting the EHC needs assessment process. Although the mediator did not attend, the Council agreed to assess J’s EHC needs at the meeting on 29 January 2020. I can see no reason why this process was not started in early February and I find this to be fault.
44. If the process had been started in early February, the advice from the educational psychologist should have been received by mid-March 2020 and a final plan issued by the end of June 2020. However, I consider the injustice caused by this delay was not significant. This is because the neuropsychology assessment would not have been completed by then and its outcome could not have been taken into account in the final EHC plan. In addition, School 2 was not yet open and Mrs M had not submitted her updated Appendix A.
45. The Council asked for an educational psychologist assessment in April 2020. The assessment was not carried out until 23 July 2020, beyond the statutory six weeks. However, I do not find fault because the Regulations had been temporarily amended in response to the pandemic. This allowed advice to be provided as soon as reasonably practicable. Educational psychologists had been advised by their professional body not to visit during the first lockdown. I have seen there was some discussion between the psychologist and Mrs M in June and July about the timing of his assessment and the multi-disciplinary assessment. I find the educational psychology assessment was carried out as soon as reasonably practicable. As a result, I do not find there was delay in issuing the first draft EHC plan on 10 September 2020, although I say more about this below.
46. Mrs M says she had to fund an independent full cognitive assessment as the Council had not requested one but it was necessary because the educational psychologist was unable to carry it out due to COVID-19 restrictions. My initial view was that there had been fault. Councils must seek advice from people parents request unless this is unreasonable. The outcome of the assessment was used by the educational psychologist and to develop the EHC plans. I considered it was an appropriate assessment that the Council should have commissioned and recommended the Council refund the cost to Mrs M.
47. In response to my first draft decision, the Council said Mrs M had commissioned the assessment following advice from her social worker but the Council had not been asked to commission it and would not have commissioned a separate report. I considered the Council’s comments and changed my view. In my second draft decision statement I found the Council could not be expected to fund an assessment the parent had not requested in advance and that it had not agreed to commission.
48. Mrs M highlighted in her comments on the second draft decision that she had requested a cognitive assessment. Her request for an EHC needs assessment says she asked for the “Educational Psychologist/Clinical Psychologist to carry out the neuro-cognitive assessment and baseline (outlined above) …”.
49. I have carefully considered this point. Whilst there is evidence Mrs M did ask for a cognitive assessment, the Council was entitled to decide this was not necessary and to decide not to commission it. Mrs M says it was an essential assessment, given the boys’ brain injuries, and that without it the EHC plans would have been meaningless. But this is not evidence of administrative fault in the Council’s decision not to commission it. My role is not to determine which assessments were necessary and without evidence of fault I cannot challenge the Council’s decision not to fund the cognitive assessment.
50. Mrs M complains that the Council failed to respond to her requests for support for J and K, given she considered School 1 was failing to meet their needs. I do not find fault here. Councils are only required to provide the SEN support that is set out in a final EHC plan. Whilst I appreciate it was frustrating that there was no final EHC plan, the Council was not required to fund additional support even though this was recommended in the neuropsychology assessment.
51. There is evidence the Council issued a draft EHC plan to both Mr and Mrs M and School 1 on 10 September 2020. I find this to be fault. The Code says parents should be given 15 days to comment on a draft plan and propose a school before a school is consulted. However, I do not consider the injustice caused to be significant as Mr and Mrs M commented on the draft, resulting in a revised version being issued, and their preferred school (School 2) was also consulted.
52. The Council wrongly included K’s medical information in the EHC plan information about J that it had sent to schools. Complaints about data breaches are for the Information Commissioner. However, I note that the Council has apologised and reported the data breach to the Commissioner. These are the actions we would expect it to take. I therefore do not find there is any further action for the Council to take on this matter.
53. Councils are usually required to issue a final EHC plan within 20 weeks of the date of the request for assessment. Twenty weeks from date of Mrs M’s request was 13 March 2020 but the final EHC plan was not issued until 2 February 2021. However, not all of this period was delay. The Council initially refused to assess J. It was entitled to make this decision. The Ombudsman cannot investigate the decision not to assess because Mrs M had a right of appeal to the Tribunal about it, which puts it out of our jurisdiction as explained in paragraph 5.
54. In response to my second draft decision statement, Mrs M sent a copy of the panel’s decision sheet which she said showed that the panel had in fact agreed to assess J. I found this form to be unclear. It says the case has met statutory tests and the wording “yes to assess” is written in red in the recommendation section, but the panel decision section is blank. I made further enquiries of the Council which sent me a different version of the form where the panel decision section is completed and says “No to Statutory Assessment. CoP 9:14. The LA Considers that part one of the legal test has been met that J may have SEND but part two is not evidenced within this application and needs can be met from within SEN Support at Core Standards.” I consider it most likely that the Council’s version of this form is the final one, as if there had been an error it would have been picked up in response to Mrs M’s complaint about the refusal to assess.
55. The Council agreed to assess on 29 January 2020. Twenty weeks from then would have been the end of June 2020. However, because the formal notification was not issued until 3 April 2020, COVID-19 meant the usual statutory deadlines did not apply. I have explained in paragraph 45 why I do not consider it was fault for the Council to issue the draft ECH plan in September 2020.
56. However, I do find there was delay from 10 October 2020 to 1 February 2021 in issuing the final EHC plan (a period of about four school months). Once the first draft EHC plan was issued on 10 September, the Council should have issued the final within about four weeks. I realise Mrs M was unhappy with the draft EHC plan and the Council was trying to be helpful in revising it, but the Government's intentions are clear; the whole EHC plan process should be completed as soon as practicable. A reason for this is to ensure that the right to appeal to the SEND Tribunal is not delayed, as it is in the child's best interests to settle their education promptly. It is therefore not fault for a council to issue an EHC plan a parent disagrees with. The Council should have done so, so that Mrs M could have gone to mediation or appeal if she remained dissatisfied.
57. If the final EHC plan had been issued in October 2020, School 2 could not have been named but Mrs M could have appealed to the SEND Tribunal about the fact that no school was named. So the delay in issuing the EHC plan meant she lost a right of appeal at that time, which is her injustice. But I cannot say with any certainty that a tribunal would have reached a decision before May 2021. This is because Mrs M would have had two months to register an appeal and tribunals usually take 16 weeks from when the person appeals to issuing their decision.
58. If Mrs M had not appealed, and the final plan had been issued by the end of October 2020, the earliest the provision she wanted could have been in place was January 2021, as School 2 was not registered until then. I do not find J and K could have started full time at School 2 in September 2020.
59. In my first draft statement I provisionally found that the delay in issuing the final plan caused J and K to lose one school month of the full SEN provision they required (i.e. January 2021) and three months of full support at School 1. I recommended a payment to Mrs M to acknowledge this loss of education and to be used for J’s and K’s educational benefit. In response the Council said there was no loss of educational provision as both J and K were attending School 1 two days a week and School 2 three days a week from October 2020 and were receiving SEN provision during this time. It had already reimbursed Mrs M £2,635 for each child for the cost of attending School 2 from 5 October 2020 until 29 January 2021. Mrs M considers the education at School 1 was unsuitable, but the Ombudsman cannot determine the suitability of education. I have re-considered this point and have changed my view. Although the plan was delayed, this did not cause injustice to J and K as they were receiving education and SEN support at Schools 1 and 2 for the period and the Council has already refunded Mrs M.

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Agreed action

60. Within a month of my final decision, the Council has agreed to apologise to Mrs M for the delay in issuing the final EHC plan.

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Final decision

61. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman