Summary: There was fault by the Council in the way it handled an EHC assessment and in failing to secure provision in an EHC plan. This caused Y to miss out on special educational provision at an important stage of his development. The Council will apologise, pay the complainants £3000, and make service improvements.

The complaint

1. Ms X complains on her own behalf and on behalf of her son, whom I shall refer to as Y. Y has special educational needs (SEN). Ms X complains about the way the Council assessed Y for an Education, Health and Care (EHC) plan and that it failed to ensure support was put in place once the Plan was issued.
2. In particular, Ms X complains:
• The Council delayed taking a request for funding for one-to-one support in Y’s nursery to its internal panel;
• The Council failed to obtain advice from an occupational therapist (OT);
• The Council failed to communicate with Ms X in a timely way and failed to notify her that Y’s case officer was absent for three months;
• The Council did not take pro-active action and delayed her son’s support;
• The Council did not accept responsibility for its actions;
• The Council issued a vaguely worded EHC plan which failed to specify the amount of support her son should receive either in hours per week or weeks per year.
• The Council failed to remove an officer who made errors from the case.
3. Ms X says that as a result of the alleged fault:
• She has been put to unnecessary time, trouble and inconvenience getting her son’s needs met;
• The whole process has been distressing, in particular Ms X feels her son missed out on support at a crucial stage of his development and he can never get this time back;
• Ms X had to take the Council to Tribunal to get a clearly worded EHC plan which covered all her son’s needs;
• Ms X had to ‘compensate’ for the lack of educational provision by doing extra activities at home to support his development which put an added strain on her as a carer;
• Ms X had to contact occupational therapy herself and her son lost out on nine months of therapy.

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What I have investigated

4. I have investigated the complaints listed above except those matters which are outside the jurisdiction of the Ombudsman. I explain below why I cannot, or will not, investigate some aspects of the complaint.

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The Ombudsman’s role and powers

5. 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)
6. We cannot investigate a complaint if it is about a personnel issue. (Local Government Act 1974, Schedule 5/5a, paragraph 4, as amended)
7. 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)
8. 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.
9. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
10. 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 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.

11. We can consider the EHC assessment process up to the point a right of appeal arises.
12. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.

13. 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

14. I have considered information provided by Ms X and the Council during the Council’s complaint process. I have also sought and received evidence from Y’s nursery about what provision it was able to provide to him.
15. I have considered relevant law and guidance including:
• The Children and Families Act 2014 (‘The Act’)
• The Special Educational Needs and Disability Regulations (SEND) 2014 (‘The Regulations’)
• The Special Educational Needs and Disability Code of Practice (‘The Code’)
• The Ombudsman’s Focus Reports ‘Education, Health and Care Plans: our first 100 investigations’, October 2017 and ‘Not going to plan? Education, Health and Care Plans two years on’ October 2019.
• The Ombudsman’s Guidance on Remedies.
16. 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.
17. Ms 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

18. The Regulations and Code say that where a local authority agrees to carry out an EHC needs assessment, it must gather advice from relevant professionals. This includes:
• the child's education placement;
• medical advice and information from health care professionals involved with the child;
• psychological advice and information from and Educational Psychologist (EP);
• social care advice and information;
• advice and information from any person requested by the parent or young person, where the council considers it reasonable;
• any other advice and information the council considers appropriate for a satisfactory assessment.
19. The Code says (9.47):
• ‘the local authority should consider with the child’s parent…and the parties listed…the range of advice required to enable a full EHC needs assessment to take place’;
• ‘in seeking advice and information, the local authority should consider with professionals what advice they can contribute to ensure the assessment covers all the relevant education, health and care needs of the child’;
• The evidence and advice submitted by those providing it should be clear, accessible and specific.’
20. Those consulted have a maximum of six weeks to provide the advice.
21. The Code says that when drafting EHC plans provision must be detailed and specific and should normally be quantified for example in terms of the type, hours, frequency of support and level of expertise.
22. The Council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 of the Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a Council asks another organisation to make the provision and that organisation fails to do so, the Council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
23. The Ombudsman expects Councils to have systems in place to check that provision in an EHC plan has been secured and is being provided to a child or young person. (Not going to plan? Education, Health and Care Plans two years on’)

Chronology of events

24. Y attended a private nursery five days per week, 8am to 6pm year-round and received free place funding for thirty hours per week term-time only. He started to attend in late 2017 when he was 25 months old. At that time, he lived in a different council area.
25. When Y started nursery, he had an identified speech delay and had received some initial support. The nursery felt he needed more support and referred him to a paediatrician and OT and asked for the Area special educational needs co-ordinator (SENCO) to do a focussed assessment.
26. Ms X then moved to the Council’s area. The nursery says it contacted the Council’s SEND team and was advised the team would ask Ms X to request paediatrician and OT referrals through the general practitioner (GP). An early years specialist teacher visited the nursery to observe Y. It was agreed Y needed an SEN support plan. The nursery applied to the council where it was based and was granted SEN inclusion funding for Y for 22 hours support per week from February to July 2019, excluding school holidays, although Y was not resident in the area. The nursery says Y showed immediate improvement with a high level of dedicated adult support and in particular a reduction in self-harming and hurting other children.
27. Ms X applied to the Council, where Y lived, for an EHC assessment. The Council agreed the request and sought advice in July 2019.
28. The nursery applied to the Council for funding from September 2019. The Council said it had to apply through the EHC plan once this was in place. The nursery asked the Council to provide 25 hours support per week to support Y’s safety and development. Y attended the nursery for 50 hours per week.
29. The Council did not seek advice from OT during the EHC assessment. During Ms X’s later complaint, it told her that it did not identify OT advice was required at the time of the assessment and Ms X did not raise this in July 2019 when it advised her what advice it intended to seek.
30. Ms X says that she was not familiar with the process and so did not know to request advice in July, but she did raise the need for OT advice in a draft EHC meeting held in October 2019. Ms X says at the meeting concerns were raised about Y’s motor skills and the nursery, herself, the SENCO and the early years teacher felt input was required. Ms X says she felt the case officer ‘brushed off’ these concerns and told her to contact OT herself. Ms X said she had already requested a referral, but there was a long waiting time.
31. Y was referred to OT by the paediatrician in October 2019 but not seen until March 2020 and only after Ms X intervened to move Y to the EHC pathway. Ms X considered Y would have been seen sooner if the Council had requested an assessment as part of the EHC process.
32. The Educational Psychology (EP) advice provided to the Council in August 2019 recommended a programme of activities to support Y’s motor skills and that OT advice should be sought as appropriate.
33. The Council issued a final EHC plan for Y on 25 October 2019. The Plan did not specify how many hours per week of one-to-one support Y required or how many weeks per year the support should be in place for. The Plan also referred to support available in a school setting (a learning support assistant (LSA) and class teacher) although this was not support available within a private nursery.
34. Ms X complained to the Council in January 2020 that the Council had not yet released any funding to the nursery, so it was not able to provide Y with the necessary support. She also complained about the Council’s failure to seek OT advice.
35. On 14 February, the Council apologised stating the case officer had been absent due to illness. The Council acknowledged the case should have gone to a funding panel on 7 November and was not considered until 30 January. The Council said it had now agreed to provide funding equivalent to 15 hours LSA time per week as it said some support could be provided from the nursery’s own resources. The Council said the legal duty was on the nursery to provide the provision in the EHC plan and it would backdate the funding to the date the plan was issued (25 October). The Council said OT was usually something parents would pursue themselves or via the setting. It noted that due to Ms X’s concerns OT had agreed to provide advice within six weeks. This could then be included in Y’s Plan.
36. In February 2020, the nursery replied to a query from Ms X about OT. It said that when Y was initially referred to the Council for an EHC assessment the nursery stated he would need to be seen by an OT. The nursery confirmed this was discussed during the EHC planning meeting in October and the case officer had advised that no outcomes or targets related to OT could be included in the Plan until Y had been seen and targets would be added when the Plan was next reviewed.
37. Ms X asked for her complaint to go to stage two. Ms X said a request for a Council referral for OT advice had been made at the October meeting, but not actioned, and that to date none of her son’s EHC provision was in place. The Council had not yet provided funding to the nursery. Ms X also said she wished to appeal the allowance of 15 hours per week as this was not sufficient.
38. The Council’s stage two response in April 2020 said that the Council considered that some of the provision in Y’s EHC plan would be ordinarily available in an early years setting and it was satisfied 15 hours funding was sufficient. The Council said the duty to ensure the provision was in place lay with the nursery and there was no evidence Y had not had the support. The Council said it would ask the SEND team to do a checklist with the nursery when it reopened after Covid-19 restrictions were lifted. The Council said it had recently received an invoice from the nursery.
39. The Council acknowledged it had a duty to secure provision in an EHC Plan but said this was done via funding and was why it was now providing funding to the nursery. The Council said it only had a legal duty to provide funding for 38 weeks per year during term-time.
40. I understand funding was not released to the nursery until March 2020 and at that time it was able to increase its staffing ratio.
41. The nursery told me it was very much in need of the funding to be able to provide the support in Y’s EHC plan. Throughout the period October 2019 to March 2020, it struggled to support his development within its normal staff ratio because the interventions needed dedicated adult support. It said it tried its best but could not provide a significant amount of additional support due to the delayed funding. The nursery had previously received 22 hours of funding from the Council where it was located but Y lost this in July 2019. The nursery was able to put support back in place in March 2020. The nursery then closed until June 2020 due to Covid-19, but Y attended a different setting during this period. Y then returned to the nursery in August.
42. The nursery told me when Y had 1:1 support before July 2019 and after March 2020, his progress was considerable; and he would have received targeted support and OT earlier if the Council had not delayed.
43. A speech and language therapy (SLT) report stated Y started to receive SLT as detailed in his EHC Plan on 15 January 2020.
44. Y’s Plan was updated in February 2020 to name Y’s next school placement. Ms X appealed the contents of this Plan to the SEND Tribunal as she considered it was not adequately specified and quantified. The Tribunal agreed and a further detailed Plan was issued in October 2020 which included OT provision.
45. The nursery was asked to provide updated advice in April 2020. It stated that Y had been seen by OT but no programme had yet been provided. The nursery said it needed extra funding to enhance its ratio so it could support all Y’s EHC outcomes and it requested 25 hours.

Analysis

EHC assessment and failure to seek OT advice

46. The Code requires that councils involve the parent throughout the process of assessment and production of an EHC plan. Councils should also consider with the child’s parent and professionals the range of advice to seek to enable it to produce a Plan that addresses all the relevant education, health and care needs of the child and ensure parents can make an informed decision about this.
47. The Council notified Ms X of the advice it had sought, but Ms X’s evidence is that it did not discuss this with her. The EP advice the Council received in August also raised OT as an area where more advice may be needed. Y’s nursery says that it had referred Y for OT advice when he lived in the previous council’s area. I am satisfied that if the Council had considered the range of advice with parents and other professionals it would have identified a need for OT sooner; either in July 2019, or when it received the advice from other professionals in August.
48. While the Code says advice must be provided within six weeks, the Code assumes that professionals are already involved in the child’s care. The law and Code do not adequately deal with the scenario where a new assessment, rather than existing advice, is required and where Health has a waiting list. While Ms X says that advice would have been provided faster through the EHC process, I cannot say with certainty that the advice would have been available within six weeks of a request. There is a reference in some of Ms X’s correspondence to the waiting list for EHC cases being 14 weeks. The OT report does state that the service operates two lists, one for normal referrals and an EHCP waiting list, so it is reasonable to conclude there would still have been a wait, but this would have been less than for the usual list.
49. Y was referred to OT in October and seen in March. If Y had been referred in July or August, we can assume he would have been seen at least two to three months earlier. The OT advice may still not have been available in time to inform the EHC plan issued in October 2019 but would have been available for the updated Plan in February 2020. The nursery confirmed that it did not yet have a programme for OT in April 2020. Y has therefore lost out on at least two to three months of OT provision due to the Council’s delay in seeking OT advice to inform the EHC plan.
50. Y’s EHC plan in October 2019 did include advice about interventions for motor skills from the EP however these were not the detailed programmes later provided by the OT. There would also have been difficulty in the nursery implementing the programmes as this would have required adult support. The OT advice recommended three hours of direct OT per week.

Failure to provide special educational provision in an EHC Plan

51. The law says that the duty to ensure special educational provision in an EHC plan is in place lies with the Council and this is a non-delegable duty. Support should be in place from the date the Plan is issued.
52. Y’s Plan required him to receive speech therapy, but this did not start until January 2020, a delay of three months. The Council should have ensured it was in place when the Plan was issued.
53. The Council failed to submit the nursery’s funding application until three months after the Plan was issued and then failed to release the funding for a further two months. This was a total delay of five months and was fault.
54. I am satisfied the nursery was not able to provide Y with the level of adult support required to deliver the special educational provision between October 2019 when the Plan was issued and March 2020. Y lost out on targeted support and therapy he required during this period.
55. The Council’s complaint response stated there was no evidence Y had not received the support and it expected the nursery to have provided this without extra funding. The Council does not appear to have asked the nursery what it had been able to provide before replying to the complaint. This is fault. If it had done so it would have received the same advice that the nursery provided to me.
56. The Council drafted the EHC plan and considered the complaint initially as though Y was in a school-based early years setting which would have delegated funding, a class teacher and LSA support available. This is fault. Y was attending a private nursery and it could not finance the extra staffing itself. This confusion may also have influenced the Council’s decision to allow only 15 hours funding when the nursery had requested more.
57. The Council was wrong to blame the nursery for failing to make provision in its complaint response; the legal duty lay with the Council.
58. I find the Council failed to ensure that Y’s special educational provision was fully in place in October 2019. This was fault. The Council says it uses a checklist system. It should have checked the provision proactively to be sure it had discharged its s.42 duty, not waited to receive a complaint.

Failure to quantify and specify support in an EHC plan

59. The first two EHC Plans were not properly quantified and specified however I am satisfied the nursery was clear what provision was required, and it was able to produce a detailed intervention timetable based on the reports received.
60. The Ombudsman cannot say how many hours of support Y should have received or whether this was only required during term-time. This is a matter only the SEND Tribunal could decide. Ms X could have appealed the first EHC plan to Tribunal and we would have expected her to do so if she was unhappy with its contents. Ms X has subsequently appealed the second Plan to the SEND Tribunal and it has ordered a more detailed version be issued. This version does not state Y should receive provision outside the usual school year. The Ombudsman cannot comment on the contents of the Plan further as Ms X has used an alternative remedy to the SEND Tribunal.
61. The Council was however wrong to advise Ms X that it only has a legal duty to provide education during term-time. Special educational provision is determined by need not what schools ordinarily provide. Some children do receive education for more than 38 weeks per year in their EHC plans. This is however a matter which Ms X could have asked the SEND Tribunal to consider.
62. While I acknowledge that the lack of specificity in the Plan was a factor in Ms X taking the matter to appeal, I cannot say that even if the Plan had been more detailed Ms X would not have felt she needed to appeal. There would, on the balance of probabilities, still have been a dispute about the number of hours per week and weeks per year of support Y required, which the Tribunal would have needed to resolve.

Poor communication

63. The Council has accepted there was poor communication when the case officer was absent which led to delay in the case going to panel. It has apologised for this.
64. The Council did not do enough to involve Ms X in the EHC assessment process as it failed to discuss the range of advice to obtain.
65. I also found the Council gave incorrect advice during the complaint process, this meant it failed to fully acknowledge the extent of its legal responsibilities.

Change of case officer

66. We cannot investigate a complaint if it is about a personnel issue. (Local Government Act 1974, Schedule 5/5a, paragraph 4, as amended) The Council is entitled to decide how it allocates its staff including whether it changes case officers when a complaint is received. I cannot intervene in this matter.

Injustice

67. As a result of fault by the Council I find:
• Y lost out on five months of special educational provision from when provision should have been in place to when the Council released the funding to his nursery.
• Y lost out on at least two to three months of specialist OT input.
• Y lost out on three months of speech therapy input.
• Ms X has been put to unnecessary time, trouble, inconvenience and distress trying to get her son’s needs met and resolving the issues with the nursery’s funding. I acknowledge that Ms X is particularly upset by the loss of intervention when Y was at an early stage of his development and will always have the uncertainty of whether this has had long term consequences for his overall outcome. This is in itself in injustice to Ms X.

Agreed action

68. Within four weeks of my final decision the Council will:
• Apologise to Ms X for the fault and the impact this has had on her and Y.
• Make a financial payment of £2000 to Y to acknowledge the impact that five months of lost specialist input has had on him. The payment should be made into an account in Y’s name but over which parents have control and the money should be used for his educational or social benefit.
• Make a financial payment to Ms X of £1000 for the time, trouble, inconvenience and significant distress caused to her from her son’s not being met for five months and the uncertainty this has left her with.
69. Within eight weeks of my final decision the Council will review its EHC processes to ensure:
• Case officers know to discuss the range of advice to be sought during an EHC assessment with parents, the young person and professionals.
• Case officers ensure advice obtained is properly specified and quantified, providing advice to professionals if needed, so detailed EHC plans can be written.
• Case officers are fully aware of the Council’s duties under s.42 of the Act and check that special educational provision is in place when a new Plan is issued.
• Case officers keep families informed throughout the EHC process including explaining when delays occur.
• Where the Council wishes to use panels, ensure this does not delay the issue of EHC plans or the start of EHC Plan provision.
• Case officers and panels check the type of setting and do not make assumptions about the delegated funding available.
• EHC plans correctly state the type of setting attended and the wording in all sections of the Plan reflect this.
• Complaint officers properly investigate complaints about a failure to secure special educational provision including seeking evidence from settings where necessary.

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Final decision

70. I have completed my investigation. There was fault by the Council in the way it handled an EHC assessment and in failing to secure support in an EHC plan. This caused injustice. The complaint is upheld.

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Investigator's decision on behalf of the Ombudsman