Summary: Mrs X complained about the Council’s handling of her son, F’s Education, Health and Care (EHC) Plan in 2020 and about a failure to provide Occupational Therapy (OT) in line with the Plan. The Council was at fault. It did not issue F’s final EHC Plan in line with statutory timescales and then failed to ensure the OT provision specified in the Plan was in place for the 2020/21 academic year. It also failed to deal with Mrs X’s complaint in a timely manner. The Council agreed to pay Mrs X £500 to recognise the loss of opportunity caused to F and an additional £300 to recognise the distress, uncertainty and time and trouble caused to her.

The complaint

1. Mrs X complains about the Council’s handling of her son, F’s, Education Health and Care (EHC) Plan during 2020 and 2021. Mrs X complains the Council failed to:
• adhere to statutory timescales and delayed issuing F’s EHC Plan in 2020 and then did not adequately deal with her complaint about it;
• request advice from a speech and language therapist (SaLT) as part of the EHC assessment which meant she had to commission one privately; and
• ensure F received Occupational Therapy (OT) and psychotherapy in line with his EHC Plan for the duration of the 2020/21 academic year.
2. Mrs X says the Council’s faults have caused her distress, uncertainty and time and trouble. She says F has lost out on educational provision which has caused him distress.

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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. 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.
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
6. 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)
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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How I considered this complaint

8. I spoke to Mrs X about her complaint and considered information she provided.
9. I considered the Council’s response to my enquiry letter.
10. Mrs X and the Council had an opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

Education, Health and Care (EHC) Plan

11. Children with complex needs may require an Education, Health and Care (EHC) Plan. This is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care. This can include support needed in school.
12. Councils are responsible for making sure all the arrangements set out in in the EHC Plan are put in place.
13. The Council has a legal duty to ensure the educational and social care support set out in a final EHC plan is delivered. This duty is non-delegable. The local health care provider will have the duty to deliver the health care provision.

The SEND Tribunal

14. Certain SEN decisions have a right of appeal to the SEND Tribunal. We would not normally investigate a complaint when someone can appeal to a tribunal, unless we consider it would be unreasonable to expect the person to appeal.
15. Some of the decisions which are appealable and usually out of our jurisdiction include:
• A council’s refusal to carry out an EHC assessment or refusal to reassess.
• A council’s refusal to issue an EHC Plan.
• the suitability of the provision specified in section F of the EHC Plan.
16. Where a parent has appealed to the SEND Tribunal, we cannot investigate what happened between the date the appeal right arose until the appeal is completed where it is linked to the matters appealed. So, the Council’s actions during that period are outside the Ombudsman’s jurisdiction. It also means we cannot seek a remedy for lack of education or provision during that period.

Timescales for preparation and issue of the EHC Plan following an unopposed appeal

17. If a parent or school believes a child needs an EHC Plan, it can ask the Council to carry out a needs assessment to determine what special educational support the child needs.
18. Councils can decide not to carry out a needs assessment. It must let the parent know of this decision within 6 weeks of the request being made. The parent can appeal the Council's decision to the SEND tribunal.
19. Where a parent has appealed to the SEND tribunal and a council decides not to oppose the appeal then the appeal is treated as if it was determined in favour of the appellant.
20. Where the appeal concerns a request for the council make an EHC assessment, the council is required to carry out that assessment within 4 weeks of the council’s notification to the SEND tribunal that it does not oppose the appeal.
21. If the council then decides it is necessary, following the EHC assessment, to make an EHC Plan for the child then it should do so within 14 weeks of the date of its notification to the SEND tribunal.

The Coronavirus Act 2020

22. In May 2020 some aspects of the law on education, health and care needs assessments and plans changed temporarily to allow councils, health commissioning bodies, education settings and other bodies who contribute to these processes more flexibility in responding to the demands placed on them by COVID-19.
23. The SEND Regulations 2014 were amended from 1 May until 28 September 2020. These amendments removed specific timescales set out in the SEND code of practice replacing these with the requirement to do so ‘as soon as reasonably practicable’. However, this was only if a council was unable to meet the timescales because of ‘a reason relating to the incidence or transmission of coronavirus’.

What happened

24. Mrs X has a son, F who used to attend a selective independent secondary school. While at this school, F was diagnosed with autism and other special educational needs (SEN) including social and language difficulties. F stopped attending school in 2018.
25. In late 2019 Mrs X asked the Council to assess F for an EHC Plan to help reintegrate F into post-16 education. The Council refused so Mrs X appealed that decision in early 2020 to the SEND tribunal.
26. In late April 2020 the Council conceded Mrs X’s appeal before the tribunal hearing and agreed to assess F for an EHC Plan. The Council wrote to Mrs X confirming this decision.
27. Records show the Council arranged at the start of May 2020 to send letters for advice from social care, health and an educational psychologist (EP). However, due to an administrative error the letters were not sent. The Council sent these letters four weeks later at the start of June.
28. In mid-June 2020 Mrs X wrote to the Council, unhappy with how it was progressing F’s EHC assessment. Mrs X was unhappy the Council had refused to seek advice from a SALT despite her requesting it do so. Mrs X was also unhappy about the unnecessary delay in requesting advice from other services.
29. The Council wrote back to Mrs X. It apologised for the administrative error which led to a delay in sending out advice letters to various professionals in May. It said it flagged them up as urgent when it sent them in June. The Council said it decided a SALT assessment was not necessary as F’s communication needs could be addressed via the educational psychologist assessment. Mrs X therefore decided to commission and pay for a private SALT assessment. Mrs X said she also commissioned a private EP assessment after the Council’s assessment report suggested a mainstream setting was appropriate, rather than a specialist setting.
30. Records show the Council’s EHC board considered F’s assessment in early July 2020, however it was unable to make a decision as health had not yet provided its advice.
31. F’s case returned to the EHC board in early August 2020 which agreed F met the threshold for an EHC Plan. The Council sent Mrs X the draft EHC Plan the following day.
32. Mrs X found a specialist placement (the School) for F to attend from September 2020 onwards. Records show the School contacted Mrs X in mid-August about F’s proposed placement. It said it required a deposit payment of £7,000 towards the first term’s fees of £14,000. The School said that without a final EHC Plan it could not demand payment from the Council. The School gave Mrs X a deadline of the end of August to arrange payment.
33. Records show the School wrote to the Council on 13 August 2020 asking it to confirm F’s place by 25 August 2020. On 18 August 2020 the Council’s post-16 panel met and agreed to name the School in F’s EHC Plan. There is no evidence it confirmed this with the School.
34. Mrs X was told by the School that without the fees it could not guarantee F a place. As the Council had not issued F’s final EHC Plan naming the School, Mrs X paid the first term’s fees of £7,000. Mrs X said she needed to ask family for money to pay the fees in order to meet the School’s deadline. Records show the School reimbursed these fees in January 2021 after the Council issued F’s final EHC Plan and took over responsibility for the cost of the placement.
35. The Council issued F’s final EHC Plan in early September 2020, a delay of four weeks over the statutory timescales. Amongst the provision for F outlined in section F were three 90-minute visits by an OT over a 12-month period. The Plan also said F would continue receiving support from a private psychotherapist, funded by Mrs X. Mrs X says the Council added the words ‘parent funded’ in respect of the psychotherapy provision in the final draft plan.
36. Mrs X appealed the wording of the psychotherapy provision to the SEND tribunal in December 2020.
37. Records show the Council began trying to source an OT and identified a therapist towards the end of September 2020, however this fell though. The Council said it continued trying to source an OT before the end of the year but was unable to do so.
38. Mrs X complained to the Council in January 2021. She complained about the Council’s decision not to carry out a SALT assessment and about the adequacy of the Council’s EP report, which meant she had to commission private ones. She also complained about the Council’s failure to issue F’s EHC Plan within statutory timescales which caused her the stress of having to pay the School’s fees in order to secure F’s place. Mrs X wanted reimbursement for the costs of the private assessments.
39. The Council responded to Mrs X in January 2021. The Council said it did not deem a SALT assessment as necessary and said it was not in the EP’s remit to determine whether a particular placement should be ruled in or out. The Council said there was a delay in sending out advice letters which caused a delay in providing evidence to the EHC board. It said the advice from health was delayed due to the COVID-19. It apologised for the stress caused by the delays and said it had provided training to its SEND officers to prevent unnecessary delays in the future.
40. Mrs X told the Council she was dissatisfied with its response and asked it to escalate the complaint to stage 2 of its complaint’s procedure. Mrs X did not give specific reasons why and neither did the Council approach Mrs X for her reasons.
41. The Council wrote to Mrs X a few days later. The Council said Mrs X had a current ongoing appeal with the tribunal (against the wording of F’s psychotherapy provision) and therefore it was unable to explore Mrs X’s complaint at stage 2. The Council said it could not assess the impact of the delays in the statutory process until the conclusion of the tribunal.
42. Mrs X wrote back to the Council confirming her complaint was about delays in the process. She said her ongoing appeal was not relevant or related to her complaint and therefore she wished the Council to investigate it at stage 2.
43. The Council responded again to Mrs X. It said she should address reimbursement for the cost of private assessments though the appeal process. With regards to the delays in issuing F’s final EHC Plan the Council said law changes due to COVID-19 allowed it to discharge its duty as soon as reasonably practicable. The Council referred Mrs X to us.
44. F remained without OT provision for the remainder of the academic year after the Council was unable to source a therapist. In June 2021 a SEND tribunal representative suggested the name of a therapist to Mrs X which the Council agreed to use going forward.
45. Mrs X’s appeal around the psychotherapy provision in F’s EHC Plan concluded in May 2021. Following this Mrs X contacted the Council and asked it to provide a stage 2 complaint response. Mrs X had added an additional element to her complaint in that it failed to investigate her complaint at stage 2 in a timely manner.
46. The Council provided its final response to Mrs X in August 2020 reiterating much of what it said in its correspondence to Mrs X outlined in paragraph 43.
47. Mrs X remained unhappy and complained to us.

My findings

48. The Council decided a SALT assessment was unnecessary when it assessed F for an EHC Plan, and that the EP report was satisfactory. These were decisions the Council was entitled to make. They were open to appeal by Mrs X to the SEND tribunal for consideration if she disagreed. If she had done so, the SEND tribunal would have considered the adequacy of the Council’s assessment and whether additional professional’s reports were required. Instead, Mrs X decided to commission her own SALT and EP assessments. This was Mrs X’s choice to make but I do not hold the Council responsible for her decision.
49. The Council issued F’s EHC Plan over four weeks later than the statutory timescales allowed. The Council said the delay was because of COVID-19.
50. The changes to the law outlined in paragraphs 22 and 23 allowed the Council to meet statutory timescales as soon as reasonably practicable if it was unable to meet the timescales because of ‘a reason relating to the incidence or transmission of coronavirus’. However, the Council delayed sending an email for advice letters in May 2020 by four weeks which it has accepted was down to an administrative error and not COVID-19. That was fault and caused Mrs X the distress and uncertainty of needing to pay F’s fees to secure his place at the School.
51. On balance therefore, it is likely that without the administrative error the Council would have issued F’s final Plan earlier. Had it done so, it is likely Mrs X would not have had to pay the first term’s fees. The Council has already apologised for the fault and put in place staff training. These are satisfactory actions to take to remedy the injustice Mrs X experienced and to minimise a reoccurrence of the fault.
52. F was entitled to three 90-minute OT sessions as part of the provision outlined in his EHC Plan. The Council has a legal duty to ensure provision in an EHC Plan is delivered. The Council was unable to source a therapist and it failed to put in place OT provision for F in line with his EHC Plan. That was fault resulting in F missing out on OT provision for the whole 2020/21 academic year.
53. Mrs X complained F did not receive psychotherapy provision. Mrs X appealed to the SEND tribunal about the wording of this provision. The delivery of this provision hinged on the outcome of the SEND tribunal hearing. It is therefore out of our jurisdiction, so I have not considered this any further.
54. Mrs X also complained about the Council’s complaint handling, specifically arounds its response to the delay in issuing F’s EHC Plan during 2020. The Council’s complaint response to this was confusing and its communication was poor after Mrs X asked it to consider her complaint at stage 2.
55. Its initial response acknowledged the administrative error contributed to the delay. It then told her it was unable to assess the impact of the delay until the ongoing appeal was concluded. However, Mrs X’s ongoing appeal at the time was unrelated to her complaint. Therefore, the Council should have dealt with this point at the time at stage 2. When it eventually issued a final stage 2 response in August 2021, it did not address ‘the impact of the delay’ as it had suggested it would and referred to the change in legislation as the reason for the delay. The handling of and the delay in dealing with the complaint was fault and caused Mrs X uncertainty and unnecessary time and trouble in pursuing her complaint.

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Agreed actions

56. Within one month of the final decision the Council agreed to:
• apologise to Mrs X and pay her £300 to recognise the distress, uncertainty and time and trouble caused by the delay in issuing F’s final EHC Plan in 2020 and its handling of her complaint about it.
• pay Mrs X £500 to recognise the loss of opportunity caused to F when the Council failed to ensure OT provision, in line with his EHC Plan, was in place for the duration of the 2020/21 academic year. Mrs X can use the payment for F’s benefit as she sees fit.
• review its handling of Mrs X’s complaint and identify any learning points to take forward to prevent delays in complaint handling where the parent has ongoing SEND tribunal appeals which are unrelated to the matters subject to the complaint.

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Final decision

57. I completed my investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman