Summary: There was fault and delay in the way a Council completed an Education, Health and Care (EHC) assessment. This delayed the parent’s right to appeal the EHC Plan by nine months and meant a child missed out on special educational provision. The Council also failed to assess social care needs which delayed provision by fourteen months. There was further delay securing therapy after a Tribunal decision. The complaint is upheld. Recommendations for an apology, financial payment and service improvements are made.

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 Down’s syndrome and special educational needs (SEN). He has an Education, Health and Care (EHC) Plan. Ms X complains:
• the Council delayed in carrying the EHC assessment and in issuing the final EHC plan
• there was a ‘catalogue of errors’ by the Council, both in the process and in poor communication, with the SEN officer ignoring her for extended periods of time
• she had to continually chase the Council, make sure the right professionals were asked for advice, chase the advice on the Council’s behalf and point out when advice was insufficient to write a robust EHC plan.
• the Council’s offered her £250 but this is not enough for the injustice caused.
2. Ms X says the Council’s fault:
• delayed her right of appeal to a specialist tribunal
• delayed Y getting the right amount and type of support
• created additional work which took her away from her self-employment.
• caused stress and frustration.
3. Since raising the complaint the Council has finalised the EHC plan and Ms X appealed this to the First Tier Tribunal. After the Tribunal Ms X raised a new complaint that occupational therapy provision ordered by the Tribunal was not in place. The Council upheld this complaint and offered Ms X a £200 remedy but Ms X considers this is not enough. The parties agreed to include this new issue as part of this investigation.

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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 complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
6. The Ombudsman cannot investigate a complaint if someone has appealed to a tribunal, even if the tribunal or court has not provided a complete remedy for all the injustice claimed. (Local Government Act 1974, section 26(6)(a), R v the Commissioner for Local Administration ex parte PH, 1999)
7. 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.
8. 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.
9. 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.
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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What I have investigated

11. I have investigated the issues set out above except where they have been considered by the SEND Tribunal. The Ombudsman cannot investigate a complaint if someone has appealed to a tribunal about the same matter. Where there is a right of appeal to the Tribunal about a decision, the Court has decided the decision, and the consequences of it, are matters which are ‘inextricably linked’. (R (on the application of ER) v the Commissioner for Local Administration, 2014)
12. Where a Council issues an Education, Health and Care Plan the Ombudsman cannot provide a remedy if the parents have appealed to SEND to add extra provision to the Plan. The decision not to include extra provision the parent wants and the consequence (failing to provide that provision during the period of the appeal) are ‘inextricably linked’. We can look at delay prior to the appeal.

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How I considered this complaint

13. I have considered information provided by Ms X and the Council including:
• Y’s EHC plans
• The EHC assessment documents
• Tribunal documents
• Complaint documents.
14. I have considered relevant law and guidance including the Children Act 1989, the Children and Families Act 2014, the Special Educational Needs and Disability (SEND) Regulations (2014/15) and the SEND Code of Practice.
15. I have considered relevant guidance issued by the Ombudsman on Remedies, EHC plans and COVID-19.
16. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
17. 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

Relevant law and guidance

18. SEND Regulation 5 says councils should decide a request for an EHC assessment within six weeks unless it is impractical to do so, for example if it is seeking advice from an education setting and the setting is closed for at least four weeks at the time of the request.
19. SEND Regulation 6 sets out the information and advice to be sought if a council decides to go ahead with the assessment. It must seek advice from:
• The young person or their parent
• A health care professional
• The head teacher of the education setting the child attends
• An Educational Psychologist
• Social care
• Any other person the local authority considers appropriate
• A teacher qualified in visual or hearing impairments (where relevant).
• Any person the parent or young person reasonably requests the local authority seek advice from.
20. The Council does not need to seek evidence if such evidence has been previously provided and the Council, parent and professional are all satisfied it is sufficient for the purposes of an EHC assessment (SEND Regulation 6(4)).
21. The SEND Code of Practice (‘the Code’) says councils should consider with the parent and young person the range of advice required to enable a full EHC needs assessment to take place (9.47).
22. Professionals must provide their advice within six weeks of the request (SEND Regulation 8). Evidence provided should be clear and specific (the Code 9.51).
23. The Council must consider the advice obtained, engage the parent and young person in decisions and minimise disruption to them. If it decides to issue a plan it must take the evidence received into account and consider how best to achieve the outcomes sought for the child or young person (SEND Regulations 7 and 11).
24. A Council must issue the finalised EHC plan as soon as practicable and no later than twenty weeks from the date of the request (SEND Regulation 13), subject to any exceptions to the timescale listed in the Regulations.
25. The Council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (s.42 Children and Families 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)

Chronology of events

26. Ms X applied to the Council requesting an EHC assessment in July 2019.
27. Ms X’s request referred to Y attending speech therapy, occupational therapy, a nursery setting, audiology, ear, nose and throat (ENT) service, paediatrics and that Y was waiting to be seen by physiotherapy.
28. Six weeks from the date of request was calculated by the Council as being 17 September 2019.
29. The Council sent letters asking the setting and other professionals involved with Y for advice on 29 July.
30. The Council told me it wrote to Ms X on 29 July and confirmed it would seek advice from:
• Social care
• Educational psychology
• Paediatrics
• Speech therapy
• Area Special Educational Needs Co-ordinator (SENCO)
• Music therapy
• Ophthalmology
• Occupational therapy.
31. The Council did not contact ENT or physiotherapy despite Y using these services.
32. ‘Health’ provided the following evidence which was already available for Y:
• Audiology report of April 2019
• Paediatric report of July 2019
• Occupational therapy assessment of 2018
• Speech therapy care plan of January 2019.

‘Health’ confirmed Y was on the waiting list for physiotherapy.

33. Social care said Y was not known to them and they would not be contributing to the EHC assessment if it went ahead.
34. Y’s education setting provided evidence on 27 August 2019.
35. The Council applied the exemption for when a request is made to a head teacher and the school is closed for a continuous period of four weeks. It decided to treat the six-week period to decide whether to assess as starting on 6 September 2019. The Council’s panel agreed to assess on 7 October and the SEN officer then sent letters requesting professional advice under SEND Regulation 6.
36. Y changed nurseries on 14 October. The Council says this prompted it to recall the letters seeking advice.
37. I asked the Council how to decides with parents what evidence to seek. It told me parents can request specific advice is sought and the Council lets parents know the list of professionals it has written to.
38. The Council says the letters seeking advice were resent in December 2019. The letters invited professionals to submit any more evidence (subsequent to the request in July) for the assessment. The Council says its panel asked the SEN officer to obtain advice from ENT, educational psychology, speech therapy and occupational therapy only so these were the professionals written to in December.
39. Ms X complained about delay in February 2020. Ms X said she was having to ‘drive’ the process including finding out what reports were outstanding, also the SEN officer had written to the wrong NHS Trust for therapy advice. Ms X complained the SEN officer was not keeping to timescales or keeping her informed.
40. The Council’s stage one complaint response did not uphold the complaint. It said:
• Ms X’s request was received in September and there was an agreement to allow a six week settling in period at the new nursery, which explained the delay in writing to professionals.
• There had been delay by the educational psychologist and in obtaining information from school.
• The Council had been in regular contact with Ms X.
41. In March 2020 Ms X asked the complaint to go to stage two because:
• She did not submit her request in September, but in July
• She did not recall any agreement to delay seeking advice for six weeks when Y changed nurseries
• She did not agree the SEN officer was in regular contact as she had to continually chase for updates and it was her who provided the SEN officer with updates by chasing professionals herself.
42. The Council’s panel agreed to issue an EHC plan in May 2020 and the Council issued a first draft plan (of three drafts) in July 2020.
43. In July 2020 Ms X complained in a discussion with the SEN officer the professional advice did not quantify and specify the provision Y required. Ms X says the SEN officer told her this could be dealt with in the Autumn term. Ms X was wanted the Council to seek clearer advice.
44. Ms X said the physiotherapist told her in late July 2020 the Council had not asked for a report. In August 2020 the speech therapist and physiotherapist told Ms X the Council was not responding to messages.
45. Ms X told me that while the EHC process was going on Y’s therapies stopped.
46. The Council’s stage two response is dated September 2020. The Council:
• apologised for delay in the complaint response which it said was due to COVID-19
• upheld Ms X’s complaint that there had been delay in the EHC process
• apologised for the delay and offered Ms X a £250 payment for her time and trouble
• agreed Ms X’s contact would now be the Team Leader
• said it would issue the final EHC plan by 18 September 2020.
47. The Council issued the final EHC plan on 18 September and Ms X appealed to the SEND Tribunal in October. The appeal was resolved by the Tribunal in March 2021. It ordered the Council issue an amended final EHC plan, this included more specification and more support for Y than the previous version. For example, an additional ten hours per week one to one support was ordered as well as more occupational therapy and support from the specialist teacher for the deaf.
48. The final EHC plan lists the evidence obtained by the Council as follows:
• Parent advice 31.7.19
• School 12/5/20, 27/8/19,
• Paediatric 4/7/19
• ENT 11/6/19
• Audiology 23/7/19, 29/10/20
• Educational psychology 17/3/20
• Speech therapy 14/1/20, 21/8/20
• Social care 18/12/20
• Occupational therapy 24/8/20
• Physiotherapy 20/8/20
• Teacher of the deaf 5/1/21
• Paediatric Surgeon 5/1/21.
49. A social care assessment led to Y being awarded short break funding of £1248.
50. Ms X told me that after the Tribunal decision of 14 March 2021 there was delay by the Council in putting occupational therapy provision in place. Ms X raised this as a new complaint with the Council. The Council upheld the complaint and said it had contacted the NHS provider several times but had no response. It had also contacted the Designated Clinical Officer at the Community Health Council (CHC) to ask them to intervene. The NHS said due to staff shortages it was unable to allocate a therapist to Y at that time.
51. The Council’s response to the complaint said it had arranged for a different organisation to provide the therapy on an interim basis until the end of the school year. It had also asked this organisation if it could offer any additional catch-up sessions. It offered Ms X £200 to acknowledge the loss of provision.
52. The Council has now confirmed the interim therapy was not put in place before the summer holidays and therapy started on 23 September. Ms X told me this happened only after she asked the head teacher to intervene.
53. Ms X considers £200 is not sufficient for the loss of therapy (six months) and says no catch-up provision has been offered.

Analysis

Fault

54. The Council requested evidence from Y’s education setting in July and received it in August. It also received a response from health. It had the evidence it needed to decide whether to assess Y within one month. There was no basis to apply an exemption and apply a new start date for the EHC process of 6 September. The Council cannot rely on an exemption it was ‘impractical’ to obtain evidence within the six-week timeframe when it had already received the evidence.
55. Applying a new start date of 6 September for the twenty-week process was fault.
56. There is no evidence of any discussion to agree to delay seeking professional advice when Y started nursery and I find, on the balance of probabilities, no such agreement was reached with Ms X. A change of setting is not a reason under the Regulations to disapply the EHC timescale. Y was not absent from the area and the Council must have been satisfied with the education evidence it already held as it did not obtain more evidence from Y’s setting until May 2020.
57. I find the twenty-week process should have started in late July 2019 with a final Plan due in December 2019.
58. I have seen no evidence the Council agreed the list of professionals from whom it intended to seek advice under SEND Regulation 6 with Ms X. Its process is for parents to raise concerns if they disagree with the list, but this is not what the Code requires which is a proactive discussion and agreement. The Council also did not discuss with Ms X whether the evidence already held was sufficient. This is fault.
59. The Council did not obtain advice from physiotherapy until August 2020, although this was mentioned by Ms X in her original request and in the response from Health. This was fault. However, I acknowledge that at the time of Ms X’s request Y was on the waiting list and the Council might have had to choose whether to issue the plan in December without physiotherapy input or delay the plan until this was received.
60. The Council also did not obtain advice from a teacher for the deaf or social care until Ms X appealed the contents of the Plan to Tribunal. This advice was mandatory under SEND Regulation 6. Failure to seek this advice at the start of the assessment was fault.
61. The SEN Officer should not have accepted a response from social care that Y was not known to the service or that it would not be involved with the EHC assessment. An EHC assessment must consider social care needs and, where those need to be determined, a social care assessment should be combined with the EHC assessment. It was later determined that Y did have unmet social care needs as he was awarded a personal budget. The Council’s social care team was wrong to refuse to be part of the assessment. Y’s social care assessment should have started in July 2019 and been completed within forty-five working days (by October 2019). There was a delay of fourteen months.
62. The Council has told me in its response to my draft decision that it accepts there is a duty to consider social care needs as part of an EHC assessment and to this end it has established a designated social care officer post within the SEND service and appointed to this role in April 2021. It told me:

‘During the needs assessment process, the officer has direct contact with families where there is any suggestion of unmet social care needs, signposting to local resources, including the local offer and where required exploring the need for social care assessments. This post holder now ensures at the point of request for an EHC needs assessment that social care needs are considered, and where required a referral for a Social Care assessment is made with the parent and/or young person’s consent. The MASH team make a decision as to what type of assessment is required, specifically whether an Early Help intervention is suitable or if a Section 17 Social Work led assessment is required. The establishment of this post means that going forward, social care needs are routinely considered in the EHC needs assessment process and the right social care professionals are included in the assessment’.

The Ombudsman welcomes this service improvement and acknowledges this complaint pre-dates these changes.

63. The Council upheld Ms X’s complaint about failing to secure occupational therapy provision in March 2021. There was a six month delay putting this therapy in place. This was fault.
64. I agree with Ms X that £200 is not a sufficient remedy for a delay of six months.

Injustice

65. Due to the Council’s fault:
• the final EHC plan was delayed from December 2019 to September 2020
• Ms X’s right of appeal was similarly delayed
• social care provision was delayed from October 2019 to December 2020
• occupational therapy ordered by Tribunal was delayed from March to September 2021.
66. I cannot say that ‘but for’ the fault Ms X would not have needed to appeal to get the provision she wanted included in the Plan. There were several differences between the Council and Ms X on the evidence and it is likely Ms X would have asked the Tribunal to resolve these in any event. I do acknowledge that the appeal issues would have been more limited if all the advice had been sought at the start and if the Council had challenged any advice that was not sufficiently specific at the time of receipt.
67. I acknowledge that COVID-19 intervened to exacerbate the delay in 2020. The Government did relax EHC timescales between May and September 2020 due to the impact of COVID-19, however in this case the final Plan should have been issued before COVID-19 became a factor.
68. The Council has acknowledged that Ms X was put to unnecessary time and trouble in the EHC process and pursuing her complaint. It has offered £250 to acknowledge this.
69. I find that, but for the Council’s fault, on the balance of probabilities:
• Ms X would not have need to continually chase the Council and professionals to provide advice sufficient to draft a robust EHC plan
• The Council would not have issued a final Plan which was not legally compliant as mandatory advice was not included
• Any appeal would have been more straightforward and happened nine months sooner
• The additional provision the Tribunal ordered would have been in place nine months sooner
• Occupational therapy would have been in place thirteen months sooner
• Social Care provision would have been in place fourteen months sooner.

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Agreed action

Within four weeks of my final decision

70. The Council will apologise to Ms X and Y for the faults I have identified.
71. The Council will pay Y the following sums to acknowledge the impact of the faults identified:
• £1400 (£100 per month) to acknowledge the delay in social care provision
• £1400 (£200 per month for seven months lost education) to acknowledge that additional special educational provision would have been in place nine months sooner (this takes account of school holidays).
• £50 for loss of occupational therapy between March and September 2021 (£250 being £50 per month for five months taking into account school holidays, less £200 already paid by the Council)

The payment should be made in Y’s name and paid into an account over which parents have supervision.

72. If not already paid, the Council will pay Ms X £250 for her additional time and trouble as set out in its complaint response. This is consistent with the Ombudsman’s Guidance on Remedies for time and trouble payments.

Within three months of my final decision

73. The Council will:
• Review its training and guidance for SEN officers of when exemptions can be applied to the EHC process
• Remind officers of the mandatory classes of advice that must be sought for an EHC assessment
• Review its processes for agreeing the list of professional advice to seek under SEND Regulation 6 with parents and to ensure the process meets the requirements of the Code
• Ensure it has guidance in place as to how officers can challenge advice which is not sufficient to enable officers to write a robust plan, including advice of how to escalate to senior staff if necessary
• Consider whether additional review or supervision is required when cases stray beyond the statutory timescale to ensure if the twenty-week period is missed any further delay is minimised and cases are not allowed to drift.
• Ensure provision in a new Plan is secured quickly and the Council has a process in place to check that this has happened.
• Provide a report to the Ombudsman setting out the steps it has taken to prevent a recurrence of the fault identified in this case.
74. The Council has already taken steps to ensure social care needs are considered during EHC needs assessments so I do not need to make any further recommendations on this point.

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Final decision

75. I have completed my investigation. There was fault and delay in the way a Council completed an EHC assessment. This delayed the parent’s right of appeal by nine months and meant Y missed out on special educational provision. There was also failure to assess social care needs delaying provision by fourteen months and a failure to put in place therapy after a Tribunal order. The complaint is upheld. I am satisfied the agreed actions set out above are a satisfactory resolution to Ms X’s complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman