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Devon County Council (21 003 770)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 11 Apr 2022

The Ombudsman's final decision:

Summary: Mrs D complained the Council failed to complete her daughter’s Education, Health and Care needs assessment as directed by the SEND Tribunal, and within the statutory timescales. As a result, Mrs D said she experienced distress and her daughter did not get the support she needed. We found the Council at fault for causing delays and for seeking an unnecessary assessment. It should apologise to Mrs D and make payment to acknowledge the injustice this caused.

The complaint

  1. The complainant, whom I shall refer to as Mrs D, complained about the Council’s handling of her daughter’s (Child X) Education, Health and Care (EHC) Plan assessment. She said the Council:
    • caused delays and failed to assess Child X within the statutory timescales;
    • failed to arrange for some professionals to assess Child X’s needs;
    • wrongly arranged for an educational psychologist to assess Child X again; and
    • failed to add Mrs D’s advocate to the Council’s information sharing Hub.
  2. As a result, Mrs D said she and Child X experienced distress, and Child X had a loss of special educational needs provision.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. 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.
  4. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
  5. 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

  1. As part of my investigation, I have:
    • considered Mrs D’s complaint and the Council’s responses;
    • discussed the complaint with Mrs D’s advocate (Mrs Y) and considered the information she provided;
    • considered the information the Council provided in response to my enquiries; and
    • considered the relevant law and guidance relevant to the complaint.
  2. Mrs D the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
  3. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

Relevant law and guidance

Timescales and process for EHC assessments

  1. 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 EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:
  • where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;
  • a council has two weeks to notify a parent it will complete an EHC needs assessment, when ordered by a SEND Tribunal to do so;
  • 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); and
  • councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.

Gathering advice for assessments

  1. As part of the assessment councils must gather advice from relevant professionals (SEND Regulation 6(1)). 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; and
  • any other advice and information the council considers appropriate for a satisfactory assessment.
  1. 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. (The Code 9.47)

Social Care advice for EHC plans

  1. Section 36(20) of the Children and Families Act 2014 defines an EHC assessment as including an assessment of the child/young person’s social care needs. Support provided by Early Help or under section 17 of the Children Act should be included in Section H2 of the EHC plan.

Appeal rights

  1. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.

What happened

  1. Mrs D’s daughter, Child X, has a diagnosis of autism spectrum disorder (ASD) including anxiety and other health conditions.
  2. In 2019 Child X was in her final year of primary school. An Educational Psychologist assessed her and found she had some special educational needs (SEN), but an EHC Plan was not needed as her school could meet her needs.
  3. In 2020 Mrs D asked the Council for and EHC needs assessment for Child X due to the impact her SEN had on her education.
  4. The Council found Child X’s school could meet her needs and refused Mrs D’s request.
  5. Mrs D appealed the Council’s decision to refused Child X’s EHC needs assessment to the SEND Tribunal. She also arranged for a new educational psychologist to assess Child X and shared the report with the Tribunal.
  6. In late 2020, the SEND Tribunal found the Council should complete and EHC needs assessment for Child X. This was because her SEN was evidenced by her declining attendance, increased anxiety and lack of educational progress. It also said the Council should gather up to date and comprehensive reports, which were necessary to determine the SEN provision needed for Child X.

Mrs D’s complaint

  1. In 2021 Mrs D asked her advocate (Mrs Y) to complain to the Council about its handling of Child X’s EHC needs assessment. Mrs Y told the Council it had:
    • failed to inform Mrs D it would complete Child X’s EHC needs assessment, and caused delays in starting Child X’s EHC needs assessment;
    • failed to Mrs Y to the Council’s information sharing Hub, despite their requests;
    • wrongly arranged for an educational psychologist to assess Child X again, which would put unnecessary pressure on her. She said this was because the Council’s Hub did not show the independently obtained reports the SEND Tribunal considered; and
    • failed to complete a full assessment of Child X’s relevant areas of needs as set out in the Tribunal Order.
  2. Shortly after the Council shared its draft EHC plan for Child X with Mrs D.
  3. In response to Mrs D’s complaint, the Council told her it:
    • acknowledged it had caused significant delays in its EHC needs assessment for Child X and apologised. It explained this was due to communication issues within its SEN assessment team and the Christmas holidays;
    • apologised for the delay in adding Mrs Y to its information Hub. It explained its system was new and there had been technical issues with it, but the issues had since been resolved;
    • had not found it over assessed Child X. This was because the evidence already available at the time was shared with professionals, who were asked to provide their own advice to Child X’s EHC needs assessment; and
    • found it had followed the Tribunal Order in assessing Child X’s EHC needs. This required the Council to carry out the assessment, including asking for advice from an Educational Psychologist, the school and health professionals.
  4. In spring 2021 the Council issued its final EHC plan for Child X.
  5. Mrs D remains unhappy with the Council’s handling of Child X’s EHC needs assessment. She asked the Ombudsman to consider her complaint.
  6. Mrs D has since appealed Child X’s EHC plan to the SEND Tribunal as she was also not satisfied with the provision set out in the Plan.
  7. The SEND Tribunal considered Mrs D’s appeal. This led to some changes in Child X’s EHC plan. It also found the Council had not properly considered Child X’s social care needs, as its offer of universal support was insufficient. It therefore recommended for the Council to assess Child X’s social care needs before it removed her monthly provision of community support. It also said, if the Council then finds her community support should be removed, it should do so gradually.
  8. In response to my enquiries, the Council said it had removed Child X’s community support. It had done so based on its social care assessment which it completed before the SEND Tribunal made its decision.

Analysis

  1. Mrs D has rightly appealed her concerns about the provision set out in Child X’s final EHC plan to the SEND Tribunal and it has considered her appeal. I cannot therefore consider any concerns she may have about the provision set out in Child X’s EHC plan.
  2. However, I can consider:
    • the Council’s handling of Child X’s EHC needs assessment before her final EHC plan was issued; and
    • the Council decision to stop Child X’s community support after the Send Tribunal’s decision and recommendations.

Child X’s EHC needs assessment

  1. The Council has accepted it was at fault, and apologised to Mrs D for:
    • failing to start and complete Child X’s EHC needs assessment within the statutory timescales;
    • failing to notify Mrs D within two weeks of the SEND Tribunal Order, it would complete the assessment; and
    • not adding Mrs Y to its information sharing Hub when it was requested to do so.
  2. Mrs Y also said the Council over-assessed Child X’s needs as its further educational psychologist assessment was unnecessary. The evidence shows the SEND Tribunal considered Child X’s 2019 and 2020 educational psychologist assessment but decided the Council should arrange for up-to-date comprehensive reports to inform is decisions on Child X’s needs.
  3. The Council considered Child X’s two educational psychologist assessments but found a further assessment was needed for it to properly consider her SEN at the time.
  4. I cannot criticise the merits of the Council’s decision if it has followed proper process and it has considered the available information. However, in this case, I have seen no evidence or good reasons for the Council’s decision to arrange a further educational psychologist assessment for Child X. I am also conscious the SEND Tribunal in 2021 found little or no benefit of this assessment, but instead referred to Child X’s 2020 educational psychologist assessment. I therefore found the Council at fault for seeking further advice which was unnecessary.
  5. In addition, Mrs Y said the Council failed to arrange for a full assessment of some of Child X’s needs as set out in the SEND Tribunal’s Order in 2020. This included assessments of how Child X’s visual impairment and auditory processing affected her learning.
  6. The Council sought advice from various relevant professionals and considered the views it received. It is not for me to decide how detailed such assessment should be, such matters are for the Council, or a Tribunal to decide.
  7. The SEND Tribunal has since considered Child X’s final EHC Plan, which includes the assessments the Council arranged. I cannot therefore consider this matter any further.

Child X’s community support

  1. I found the Council at fault for ending its community support for Child X without further assessing her social care needs. This is because:
    • the SEND Tribunal found Child X needed a social care assessment before her community support was stopped; and
    • the Council’s social care assessment for Child X took place before the SEND Tribunal hearing. If the Council had reached its view at the time, it should have shared this with the Tribunal.
  2. I acknowledge the SEND Tribunal’s decision on social care in Child X’s EHC plan is only recommendations. However, the Council had agreed for such recommendations to be made, and I would therefore expect for it to follow them.

Injustice

  1. I found fault by the Council for:
    • failing to start and complete Child X’s EHC needs assessment within the statutory timescales;
    • failed to notify Mrs D within two weeks of the SEND Tribunal Order, it would complete Child X’s EHC needs assessment;
    • not adding Mrs Y to its information sharing Hub when it was requested to do so;
    • seeking a further educational psychologist assessment which was unnecessary; and
    • ending Child X’s community support before an assessment of her social care needs had been completed.
  2. I am satisfied Mrs D experienced distress due to the uncertainty the Council’s fault caused. Mrs D also had time and trouble to bring her concerns to its attention.
  3. I did not find Child X had a loss of SEN provision due to the Council’s faults. However, I am satisfied she experienced some unnecessary limited distress and uncertainty in the process. She also lost out of some community support which may have gradually been reduced before ending the support completely.

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Agreed action

  1. To remedy the injustice the Council caused to Mrs D, the Council should, within one month of the final decision:
      1. apologise in writing to Mrs D and Child X;
      2. pay Mrs D £400 to acknowledge the distress and uncertainty she and Child X experienced as a result of the Council’s failure to follow the statutory process for EHC needs assessment and errors;
      3. pay Mrs D £100, to use as she sees fit for Child X’s benefit, to acknowledge Child X’s loss of some community support provision; and
      4. pay Mrs D a further £100 for the time and trouble she had to bring her concerns to the Council’s and Ombudsman’s attention.

In total the Council should therefore pay Mrs D £600.

  1. Within three months of the final decision the Council should also:
      1.  
      2.  
      3.  
      4. remind its staff of the importance of adhering to the process and statutory timescales for EHC needs assessments; and
      5. remind its staff to follow the SEND Tribunal Orders, including in cases where the Council has agreed for the Tribunal to provide recommendations in areas outside SEN, unless it can show good reasons for not doing so.

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Final decision

  1. There was fault leading to an injustice, it is on this basis I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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