Summary: Mrs B complains that the Council delayed in completing an education, health and care needs assessment for her son, C. She says it also failed to carry out a full needs assessment and failed to keep her informed about progress. There were delays in the assessment process and, as a result, C lost the benefit of a specialist placement for 12 months. The Council failed to keep Mrs B informed causing her distress and putting her to time and trouble. In recognition of the injustice caused, the Council has agreed to make a payment to Mrs B.

The complaint

1. Mrs B complains that the Council:
• delayed in completing an education, health and care needs assessment for her son;
• failed to carry out a full needs assessment to include occupational therapy (OT), speech and language therapy (SALT) and health screening; and
• failed to keep the family informed about progress.
2. She says that, as a result, her son lost out on urgently needed support. In addition, the family suffered distress and frustration and were put to time, trouble and expense in pursuing the matter and in commissioning their own OT and SALT assessments.

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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. 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

5. I have considered all the information provided by Mrs B, made enquiries of the Council and considered its comments and the documents it provided.
6. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
7. 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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What I found

Legal and administrative background

Education Health & Care Plans

8. A child with special educational needs (SEN) may have an Education, Health and Care (EHCP). This sets out the child’s needs and what arrangements should be made to meet them.

Assessments

9. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHCPs. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:
• Where a local authority receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment.
• The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable.
• The whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply).
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.
10. As part of the assessment councils 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 an 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.
11. Those consulted have a maximum of six weeks to provide the advice.
12. The council must not seek further advice if it already has advice and "the person providing the advice, the local authority and the child's parent or the young person are all satisfied that it is sufficient for the assessment process". In making this decision the council and the person providing the advice should ensure the advice remains current.
13. There is a right of appeal to the SEND Tribunal against a decision not to assess, not to issue an EHCP or about the content of the final EHCP.

Key facts

14. Mrs B’s son, C, has a diagnosis of autism. He has emotional, behavioural and sensory difficulties. He also has extreme anxiety and finds school difficult to manage emotionally.
15. In May 2019 Mrs B asked the Council to complete an education, health and care needs assessment. C’s primary school had raised concerns about his anxiety, his social, emotional and mental health difficulties and his sensory behaviours.
16. On 25 July 2019 the Council agreed to complete an assessment and the special educational needs and disability (SEND) key worker, Officer X, wrote to Mrs B confirming this and inviting her to provide copies of any reports or information she would like considered. The letter said a decision on whether to issue an EHCP would be made no later than 11 October 2019.
17. Officer X contacted various agencies to obtain further information including: medical professionals involved with C, the Child and Adolescent Mental Health Service (CAMHS), an occupational therapist (OT), a speech and language therapist (SALT) and C’s school. The letters confirmed that responses should be provided by 3 September 2019.
18. On 4 September 2019 Mrs B contacted Officer X requesting an update. She asked what the next steps were. Officer X confirmed the Council had received information from most of the professionals and the educational psychologist (EP) would contact Mrs B to discuss observing C. She explained there was a shortage of EPs.
19. On 21 and 24 September 2019 Mrs B contacted Officer X explaining there had been no contact from the EP. Officer X explained the delay was caused by the shortage of EPs.
20. On 15 October 2019 Mrs B contacted the Council complaining about the delay. Officer X explained she was still waiting for an EP to be assigned to the case but had put C on the priority list. She followed the conversation up with an email apologising that she could not provide a precise timescale for when C would be assessed by the EP. Mrs B responded stating that C’s anxiety had been extremely high recently which had prevented him attending school. She said it was seriously affecting his mental health.
21. On 3 November 2019 Mrs B sent the Council a CAMHS’ observation report.
22. On 19 November 2019 the Council received the EP report and, on 26 November 2019, C’s case was considered by the Locality SEND decision-making group (DMG). It decided a draft EHCP should be issued and recommended 17 ½ hours per week with a teaching assistant.
23. In January 2020 a new SEND key worker, Officer Y, took over the case after Officer X left the service.
24. On 12 February 2020 Mrs B sent the Council a report from a clinical psychologist dated December 2019 and asked for this information to be added to C’s EHCP. The report confirmed C fulfilled the criteria for a diagnosis of autism spectrum disorder. Mrs B asked when the EHCP would be issued. She said C was unable to attend normal school hours because of his extreme anxiety and was in desperate need of the support.
25. On 5 March 2020 Mrs B complained to the Council. It responded at stage 1 of its complaints procedure on 20 April 2020.
26. On 21 April 2020 the Council issued a draft EHCP.
27. In early May 2020 Mrs B provided additional reports and notified the Council of her preferred school.
28. On 15 May 2020 Mrs B sent the Council a SALT report and an independent OT report and requested amendments to the EHCP.
29. On 9 June 2020 Mrs B requested an update. Officer Y explained another key worker had been adding the reports she had submitted and her requested amendments into the draft EHCP. She confirmed the Council would issue a further draft plan because of the amount of information that had been added. She said she would consult with Mrs B’s preferred school and, once a response was received, the case would be sent back to the DMG to see whether they agreed to name the preferred school in the EHCP.
30. The Council issued a revised draft EHCP on 30 June 2020 and formally consulted with Mrs B’s preferred school.
31. On 7 July 2020 the Council sent Mrs B an update and timeline of next steps.
32. On 16 July 2020 Mrs B requested an update. Officer Y responded confirming the Council had not yet received a response from their preferred school. She said that, once this was received, the Council would consider all responses and issue a final EHCP. She anticipated this would be before September.
33. On 23 July 2020 C was offered a place at his preferred school.
34. On 6 August 2020 Mrs B asked Officer Y when the final EHCP would be issued. The officer confirmed dates when the case would be considered by the DMG.
35. On 11 August 2020 the Locality DMG considered C’s case and decided to increase his support hours at mainstream school to include 2 ½ hours lunchtime support.
36. On 24 August 2020 the County DMG considered C’s case. It did not agree a place at C’s preferred school because it considered his needs could be met in a mainstream school so to name the preferred school would be incompatible with the efficient use of resources. It decided to name C’s current school and issue the EHCP.
37. The Council issued the final EHCP the same day and sent an email to Mrs B confirming the DMG’s decision. Mr and Mrs B appealed to the Tribunal regarding C’s school placement and EHCP content.
38. On 11 November 2020 the case was referred back to the County DMG for consideration of the request for C to attend his preferred school when he transferred to secondary school in September 2021. The DMG agreed the placement could start in January 2021.
39. C began attending his preferred school in February 2021 however the placement broke down shortly afterwards. The Council is working with Mr and Mrs B to try to find a more suitable specialist placement.

Analysis

Delay in completing an education, health and care needs assessment

40. The Council accepts there was a delay in the assessment process. It says this arose because of significant staffing issues within the educational psychology service due to several retirements and national difficulties with recruitment to the profession. These difficulties were further compounded by sickness absence and maternity leave and resulted in a backlog of psychological assessments. The Council says C’s case was added to a priority list and he was ultimately assessed by a locum EP. The Council says C’s draft EHCP was then listed as an overdue plan needing to be drafted. To deal with the backlog of EHCP’s, it employed agency specialist EHCP writers, one of whom wrote C’s EHCP.
41. The Council accepts that, once a decision had been made to issue the EHCP on 2 December 2019, it would normally write the plan within two weeks. Unfortunately, there was a further delay and the draft plan was not issued until 21 April 2020.
42. The Council says that, once the EHCP was issued, the parents sent in several other reports and requested various amendments. The Council also received a response from C’s school. It made changes to the EHCP and issued a further draft. By this time parents had submitted their school preference so the Council consulted with the school before issuing the final EHCP.
43. To comply with the statutory deadline, the Council should have issued the final EHCP 20 weeks from the request for an assessment, that is by 11 October 2019. It did not do so until 26 August 2020, a delay of 10 months. This was fault.
44. Mrs B was unable to submit an appeal to the SEND Tribunal until the Council issued the final EHCP. Once she B appealed, the Council quickly agreed to the placement at her preferred school, a specialist placement. I find, on a balance of probabilities, that but for the Council’s delay, the final EHCP would have been issued in October 2019, Mrs B would have appealed at that time and C would have been moved to a specialist placement 12 months sooner than he was.
45. Although the placement quickly broke down because the school could not meet C’s needs, this emphasises the fact that he needs a suitable specialist placement and mainstream school was not suitable for his needs. The Council has accepted this as it is now seeking a suitable alternative specialist placement. C was denied the benefit of a specialist placement for 12 months longer than he should have been and is a year behind the timeline of where he should be in terms of finding a suitable placement. This causes him a significant injustice. It also caused his parents distress and anxiety.
46. The Ombudsman’s guidance on remedies suggests a payment of between £200 and £600 per month for lost educational provision. Although C did not lose all his education, he lost the benefit of a specialist placement for 12 months. I have recommended a remedy for this.

Failure to complete a full assessment including OT, SALT and health screening

47. At the outset the Council requested reports from the medical professionals involved with C, the school, CAMHS, SALT and OT’s. It also requested an assessment by an educational psychologist. Mrs B also provided copies of reports she had commissioned independently before the Council agreed to complete an assessment (an OT report dated June 2018 and a SALT report dated June 2019).
48. I am satisfied the Council complied with the requirements of the code of practice.
49. Mrs B says the Council did not seek updated advice in light of C’s diagnosis of autism when it was informed of this in February 2020. The Council says it did not do so because Mrs B had already provided a report from a clinical psychologist in December 2019 and, as this report was recent, it did not consider it necessary to seek further information.
50. The February 2020 report confirmed C’s diagnosis of autism. I find no grounds to criticise the Council for relying on the advice in the clinical psychologist’s report from December 2019 as it was recent and very detailed.

Failure to keep the family informed

51. Mrs B says the Council failed to keep them informed about delays in the process. The Council does not accept this. It says there was a telephone call on 24 September 2020 informing them that the assessment would be late. However, it does accept regular updates were not offered after that.
52. I find the Council failed to keep Mr and Mrs B updated causing further distress and frustration and putting Mrs B to the time and trouble of chasing for updates and ultimately complaining to the Council and the Ombudsman.
53. Mrs B says that the Council failed to inform her when Officer X left her post in January 2020. She was not aware of this until she contacted the Council later that month. The Council says that, because of the number of cases each key worker managers, it is unable to contact every parent/carer or young person to inform them of staff changes, particularly as cases may change between different key workers for a number of reasons and for different durations. It explains that parents are informed when contact is next made.
54. I find no grounds to criticise this.

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Agreed action

55. The Council has agreed that, within one month, it will:
• pay Mrs B £2,700 to be used for the benefit of C’s education and his mental health. This sum represents nine months loss of specialist provision (taking into account school holidays) at a rate of £300 per month and takes into account the fact that C was receiving education and support in his mainstream school but missed out on a specialist setting; and
• pay Mrs B £500 in recognition of the distress and frustration she and her husband suffered and her time and trouble in pursuing her complaint.
56. The Council apologised to Mrs B in its stage 1 response. So, I have not recommended a further apology.

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Final decision

57. I find the Council was at fault in that there was a significant delay in the EHC process. I also find it failed to keep Mr and Mrs B informed.
58. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

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Investigator's decision on behalf of the Ombudsman