Summary: We found fault by the Council. It gave misleading information, delayed in issuing a final Education, Health and Care Plan and failed to respond to a request for a personal budget. The Council also failed to provide occupational and speech and language therapies for a term. To remedy the injustice, the Council will apologise and make payments.

The complaint

1. Mrs X complained Norfolk County Council (the Council):
1. Unreasonably refused to get speech and language (SALT) and occupational therapy (OT) reports as part of the EHC assessment and plan process
2. Delayed in issuing an EHC plan
3. Did not communicate well enough with her about progress or decision-making, misled her about a sensory assessment and about going to panel for SALT and OT provision
4. Delayed in complying with the SEND tribunal’s order and securing the provision contained in the agreed final EHC plan.
2. Mrs X said the Council’s fault caused a financial loss of specialist reports and avoidable stress and time and trouble as well as a loss of provision for her son Y.

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What I have investigated

3. Mrs X obtained two sets of SALT and OT reports first in 2018 and then in 2020. I have investigated the complaint about the 2018 reports. My reasons for not investigating the 2020 reports is at the end of this statement.

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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 five to seven.
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 a copy of the final decision statement of this complaint with Ofsted.
10. 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

11. I considered Mrs X’s complaint to us, the Council’s responses to the complaint and documents described in this statement. I discussed the complaint with Mrs X
12. 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

13. Children with special educational needs may have an Education, Health and Care (EHC) plan. Councils are the lead agency for carrying out assessments for EHC plans and have the statutory duty to ensure special educational provision in an EHC plan is made available. (Children and Families Act 2014, Section 42)
14. When securing an EHC needs assessment, a council must seek advice and information on the child’s needs, provision required to meet needs and the intended outcomes to be achieved. Advice and information must be sought from:
• the parents, the child’s current headteacher, medical professionals, an educational psychologist, social care.
• any other person the council thinks is appropriate.
• any other person the child’s parent reasonably requests. (The Special Educational Needs and Disability Regulations 2014, Regulation 6(1))
15. 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)
16. There must be a review of an EHC plan at least every year. The review considers the appropriateness of the EHC plan and whether any changes are needed, including any changes to the education placement (SEND Code of Practice (SENCOP), paragraph 9.166)
17. Within four weeks of the review meeting, the local authority must decide whether to keep, cease or amend the EHC plan and must notify the parent. If amendments are needed, the local authority must start the amendment process without delay (SENCOP paragraph 9.176)
18. The local authority must send the current EHC plan and a notice setting out proposed amendments and give the parent at least 15 calendar days to comment. It must issue an amended plan as quickly as possible and within 8 weeks of the original amendment notice. (SENCOP, paragraphs 9.184- 9.186)
19. A special educational needs (SEN) personal budget is an amount of money identified by the local authority to deliver provision set out in an EHC Plan. The council can identify provision which can be made via a direct payment (a monetary payment).
20. The Special Educational Needs (Personal Budget) Regulations 2014 say:
• A child’s parents may ask for a personal budget (including a direct payment) when an EHC plan is being reviewed and the council must consider that request (Regulation 4)
• Where a council refuses a request for a direct payment, it must tell the parent in writing, give reasons for the refusal and setting out the right to request a review of the decision (Regulation 7)
• A council may only make a direct payment if it is satisfied that the direct payment will not have an adverse impact on other services which the council provides or arranges for children with an EHC plan which the council maintains (Regulation 6)

What happened

Background

21. Y has autistic spectrum disorder (ASD) and has had an EHC plan since 2018. When Mrs X complained to us, Y went to a specialist school for pupils with ASD. He has since transferred to another school, both funded by the Council.
22. Mrs X applied for an EHC assessment in February 2018. The Council decided to carry out an EHC assessment and issued a final EHC plan in June 2018. That plan named Y’s previous school, a mainstream primary. This was because Y’s placement at the ASD school was not finalised until July 2018.

2018

23. Mrs X asked at the end of March 2018 if the Council had collected all the assessment reports for Y’s EHC plan. She requested advice from a SALT and OT as well as from the clinical psychologist that had diagnosed Y’s ASD.
24. The EHC plan co-ordinator responded to say the NHS SALT team had never seen Y and asked if she wanted Y to be referred to that team. The EHC plan co-ordinator also said:
• the Council could not refer to health professionals, Y’s GP should refer him, but there was a long waiting time
• the NHS did not commission OT’s to complete sensory assessments so Mrs X would need to fund this privately.
25. Mrs X responded to say if the NHS was going to take so long, then she would fund the sensory integration assessment privately. She told me that she said this because she had been led to believe that it would have held up the EHC assessment process.
26. Mrs X went ahead and arranged for a SALT and an OT to assess Y in around June 2018.
27. The Council issued a further final EHC plan at the start of July. It also offered Y a place at the specialist school. The Council told me this was before it had seen the SALT and OT reports Mrs X had commissioned.
28. Mrs X emailed the EHC plan co-ordinator at the end of July to say she was not happy with the quality of information in sections E and F of Y’s EHC plan. The co-ordinator’s response said the plan would be reviewed. The Council told me it intended to rewrite the plan incorporating the advice at Y’s annual review in October and this would allow Y to settle in at school and for professionals to determine appropriate provision to add to the next plan.
29. There was an annual review at the end of October 2018. Mrs X raised concerns about the EHC plan and asked if provision in the expert reports she had commissioned could be provided through a personal budget. She also complained the suggested provision was underspecified compared with the recommendations in the experts’ reports.

2019

30. The Council issued a draft EHC plan in the last week of February 2019. Mrs X responded with comments including concerns about provision in section F.
31. At the end of July, the EHC plan co-ordinator asked the SEN panel to consider the request for OT input. There is no outcome noted and no evidence the panel considered the request.
32. Mrs X complained to the Council in June. She said she had received a draft plan in February 2019 and despite sending in her comments, she still had not got a final plan. She said there had been no response to her request for input from a SALT and SALT was not in the draft plan.
33. The Council’s response said:
• It provided a first final EHC plan in June 2018 and a further final plan in July 2018 after several amendments.
• There was an annual review in October 2018
• During the draft process, Mrs X commissioned independent advice. However, the plan was issued in error before the Council had the opportunity to amend to include the advice and after Y was offered a place at the specialist school.
• EHC plan co-ordinator agreed to rewrite the plan incorporating the advice after the next annual review, they felt this timescale would allow Y to settle into his new school. So that appropriate provision could be established and added to next EHC plan to be issued in January 2019.
• There was then a change of EHC plan co-ordinator who requested information from the school regarding frequency of provision. This caused delay in issuing the final EHC plan after the review of October 2018. The Council was sorry for this.
• It was sorry for poor communication from EHC plan co-ordinator.
• The EHC plan co-ordinator would liaise with the school and with other professionals to determine agreement on suggested amendments, including for SALT input.
• The Council obtained advice from an Educational Psychologist as part of the EHC assessment. There was no evidence it needed to commission further assessments.
34. In July, Mrs X emailed the complaints team to say she had heard nothing further about the final EHC plan and she did not know who Y’s new EHC plan co-ordinator was. The Council’s response gave their name and said they would be in touch regarding the final plan.
35. At the start of September, the Council’s SEN panel agreed to fund a sensory assessment by an OT. The report should have been back in October but was never received. The Council told me this was because the OT service it intended to use did not receive the referral. It said this was due to an administrative error while updating a spreadsheet and that it had reviewed processes to prevent recurrence.
36. The EHC plan co-ordinator phoned Mrs X in the middle of September to apologise for the delay in issuing Y’s final EHC plan. She (the EHC plan co-ordinator) suggested delaying Y’s annual review (which would have been due at the end of October 2019) to the spring term so the school had reports from the SALT service and the sensory needs assessment.
37. The Council issued Y’s final EHC plan in the middle of October 2019 and the NHS SALT service refused to accept Y’s referral in October.
38. The EHC plan co-ordinator emailed Mrs X in the middle of November to say she would contact her again about their request for a personal budget.
39. There was a professionals’ meeting in December at the school to discuss what to do about Mrs X’s request for SALT provision. The Council told me the EHC plan co-ordinator asked for Y to be added to the SEN funding panel’s meeting for a personal budget. The outcome is not noted so there is no written evidence the panel considered the case.

2020

40. At the end of January 2020, Mrs X asked for Y’s annual review to take place. She said she wanted to appeal to the SEND tribunal as section F of Y’s EHC plan was not specific.
41. Y’s annual review took place at the end of February 2020. Mrs X asked for a copy of the Council’s personal budget policy. The EHC plan co-ordinator sent this and also said the funding panel would consider the request for a personal budget in March.
42. The Council decided to maintain Y’s EHC plan in March.
43. Mrs X appealed to the SEND tribunal in May. In August, the tribunal ordered the Council to provide up to date SALT and OT reports.
44. At the end of August, Mrs X complained to the Council. She referred to her previous complaint and said matters were still not resolved. She said:
• She did not get Y’s final EHC plan till the end of October 2019 and the plan did not have the SALT or OT provision recommended
• The Council delayed issuing the final plan which denied her a right of appeal
• The EHC plan co-ordinator said she would take the request for a SALT assessment to the SEN panel but this did not happen so they called an annual review meeting in February 2020.
45. The Council responded saying it would not address issues that were going to be dealt with by the tribunal, the Council suggested an OT referral in 2018, there was little evidence to support a need for a personal budget for SALT and the tribunal would consider her request for costs of reports.
46. There was a further exchange of correspondence between the Council’s complaints team and Mrs X, the outcome was the Council offered a payment of £500 to recognise uncertainty and avoidable distress caused by its delay and a change in EHC plan co-ordinator.
47. At the end of October, the Council’s SEN placement advisory group decided that it would not fund a personal budget for Y until it had details of what was already available in school.
48. The Council and Mrs X took part in the working document process, which is part of the requirements of the SEND tribunal and is where the parties place their suggested amendments to the EHC plan with the aim of reaching an agreement.
49. At the end of November, the SEND tribunal approved a consent order based on the working document the parties had agreed. It ordered the Council to issue a final EHC plan based on the working document by the middle of December.
50. In the middle of December, the school and Mrs X met to identify the provision the school could offer to fulfil the consent order and provision which would require additional funding from the Council.
51. Mrs X appealed to the tribunal for costs of the second set of SALT and OT reports which she had commissioned during the tribunal. The tribunal refused.

2021

52. The Council issued Y’s final EHC plan in the first week of January.
53. Mrs X complained to the Council in the second week of January about the delay and asked the Council to arrange the provision in Y’s EHC plan immediately. The Council apologised in response.
54. At the start of February 2021, the Council’s SEN panel agreed a yearly personal budget for SALT and OT of £1300 and £6250 respectively based on Y’s EHC plan. Provision began in April.

Was there fault and if so, did this cause injustice?

Complaint a: The Council unreasonably refused to get speech and language (SALT) and occupational therapy (OT) reports as part of the EHC assessment and plan process

55. There was fault by the Council in March 2018 in the way it responded to Mrs X request for the Council to get SALT and OT advice. The EHC plan co-ordinator told Mrs X the Council ‘did not commission OTs to complete sensory assessments’ and that NHS SALT advice would take a long time. This information was misleading and was not in line with Regulation 6(1) of the 2014 SEN and Disability Regulations (see paragraph 14) which required the Council to seek advice from any professional it considers appropriate or that a parent reasonably requests. The EHC plan co-ordinator should have explained why OT and SALT assessments were not appropriate in Y’s case and why Mrs X’s request was not a reasonable one.
56. I consider Mrs X was misled into commissioning and paying for SALT and OT advice in 2018 as a direct result of the EHC plan co-ordinator’s information in March 2018. I have taken into account that the Council agreed during the tribunal process that it was appropriate to include SALT and OT provision in Y’s EHC plan so it would be hard for the Council to argue it was unreasonable for Mrs Y to have requested OT and SALT advice. In consequence she suffered a financial loss.

Complaint b: Delay in issuing an EHC plan

57. Following Y’s review in October 2018, the Council should have issued his final EHC plan by February 2019. It did not issue a final plan until October 2019, a delay of about eight months. This was not in line with the 12-week timeframe in the SEN Code of Practice (see paragraphs 17 and 18) and was fault. It delayed Mrs X’s ability to appeal to the SEND tribunal. Though Mrs Y had a right of appeal in October 2019, she did not appeal until May 2020 after a further annual review and a decision to maintain the existing plan, where there does not appear to have been any delay. So I do not conclude that the Council’s delay in issuing the final plan in October 2019 caused any loss of provision for Y. Mrs X could have appealed in October 2019 but she did not.

Complaint c: The Council did not communicate well enough with her about progress or decision-making and misled her about a sensory assessment and going to panel for SALT and OT provision

58. Communication with Mrs X was poor. I have already identified misleading statements by council staff in my findings to complaint (a). I also find there was poor communication in the complaint response in July 2019 which said the Council had already issued a final EHC plan. This was not the case as the plan was not issued until October.
59. On several occasions, Mrs X was told the Council’s SEN panel was considering requests for funding for assessments, provision and a personal budget. There is no evidence she was properly updated about the panel’s decision-making and this caused frustration, confusion and uncertainty.
60. Mrs X asked for a personal budget for OT and SALT during the annual review in October 2018. She repeated that request in June 2019 when she complained to the Council. The Personal Budget Regulations (see paragraph 20) required the Council to consider Mrs X’s request and if refusing Y a personal budget, to tell her in writing why and explain her right to request a review. The failure to respond to Mrs X’s request was fault. It seems more likely than not that the Council would have refused the request had it considered the matter properly and issued a response. This was because the Council disputed Y required OT and SALT provision at the time Mrs X first asked for a personal budget and it was not until the tribunal two years later that the matter was settled. The failure to deal with Mrs X’s request caused her avoidable frustration and time and trouble complaining.
61. The Council’s SEN funding panel agreed a specialist sensory assessment in August 2019, but the referral to the appropriate provider was not made due to an administrative error. This was a fault causing Mrs X further frustration, confusion about what the Council was doing or had agreed to do and time and trouble complaining.

Complaint d: The Council delayed in complying with the SEND tribunal’s order and securing the provision contained in the agreed final EHC plan

62. There was a delay of about three weeks in issuing the final EHC plan. This was not in line with the tribunal’s order and was fault which caused a delay in provision starting.
63. Y’s OT and SALT provision should have started and been delivered in line with his EHC plan from January 2021, allowing for a couple of weeks commissioning time. Provision did not start until April so Y lost out on three months of SALT and OT support.

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Agreed action

64. I have found fault causing injustice. To remedy the injustice, the Council will, within one month:
• Apologise in writing to Mrs X for the faults I have identified
• Pay Mrs X the cost of the OT and SALT reports she commissioned in 2018 (she needs to provide the Council with invoices)
• Pay Y £1800 to reflect the loss of three months of SALT and OT provision. This is in line with our published Guidance on Remedies which suggests a remedy to reflect ‘catch-up’ provision
• Pay Mrs X an additional £500 to reflect her avoidable frustration and time and trouble.
65. The Council has recently delivered training for EHC plan co-ordinators and other relevant SEN staff covering:
• How staff should respond to parental requests for a personal budget in line with the Personal Budget Regulations
• How staff should respond to parental requests for specialist advice as part of the EHC assessment under the SEN and Disability Regulations 2014.
66. I have seen the slides from the training and am satisfied staff have now been fully trained in the law and guidance.

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Final decision

67. I found fault by the Council. It provided misleading information, delayed in issuing a final EHC plan and failed to respond to a request for a personal budget. It also failed to provide occupational and speech and language therapies for three months. To remedy the injustice, the Council will apologise and make payments.
68. 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.
69. I have completed the investigation.

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Parts of the complaint that I did not investigate

70. I did not investigate complaint (a) as concerns the SALT and OT reports Mrs X commissioned in 2020. This is because this complaint has already been determined by the SEND tribunal and so we have no power to investigate it.

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Investigator's decision on behalf of the Ombudsman