Summary: Ms X complains about the way the Council managed the Education Health and Care Plan process for her son Y. We found fault as the Council delayed issuing Y’s final EHCP and failed to action Ms X’s request for Speech and Language Therapy and Occupational Therapy reports. This caused Y an injustice as he was potentially without the additional support he needed, and Ms X was put to time and trouble in pursuing the matter. We have recommended a suitable remedy and so have completed our investigation.

The complaint

1. I have called the complainant Ms X. She complains about the way the Council managed the Education Health and Care Plan (EHCP) procedure for her son Y. Ms X says the Council
• delayed issuing a final EHCP.
• failed to consider her request for Occupational Therapy (OT) and Speech and Language Therapy (SALT) assessments.
• failed to include her comments/amendments about the EHCP before issuing a final plan.
• failed to carry out a social care assessment. Ms X says this has recently been completed.
• failed to ensure there was enough time to carry out transition arrangements for Y before he went to a new school.
2. Ms X says the Council’s failures resulted in Y not having suitable support in place, so he received several fixed term exclusions from school. Ms X considers that if the support had been in place earlier there would have been less of an impact on Y’s mental health which has declined significantly. And he would not need the high level of support he now needs. Ms X says the matter has caused her, and Y distress and she had to pay £2000 for OT and SALT assessments.
3. Ms X wants the Council to acknowledge its significant failure to ensure Y was at the heart of its decision making and the impact onto his education and mental health. Ms X says the Council should compensate Y for the lack of support and compensate her for the time and trouble in pursuing the matter plus the cost of the private assessments she obtained.

Back to top

The Ombudsman’s role and powers

4. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
5. 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)
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
8. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended). 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.
9. 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)
10. 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.

Back to top

How I considered this complaint

11. I have read the papers submitted by Ms X and spoken to her about the complaint. I considered the Council’s comments about the complaint and the supporting documents it provided.
12. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Education, Health and Care Plan (EHCP)

13. A child with special educational needs (SEN) may have an EHCP. This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the SEND Tribunal can do this.

Appeals

14. Parents have a right to appeal to the SEND Tribunal if a council refuses to carry out an assessment. Or they disagree with the special education provision, or the school named in the child’s EHCP.

Assessments

15. 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 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.

Background to the complaint

16. Y attended a mainstream primary school and received support in school. He received a diagnosis of ADHD in 2019 and was waiting for an assessment for possible Autistic Spectrum Disorder (ASD). Y also suffered with behavioural problems and mental health issues.

Events leading to the complaint

17. This section sets out the key events in this case and is not intended to be a detailed chronology.
18. In May 2020, when Y was seven years old, Ms X asked the Council to carry out an EHCP needs assessment on him. The Council agreed to an assessment in July 2020. Ms X completed the parental consent and parental view forms. Ms X asked the Council to carry out several assessments on Y including SALT and OT assessments.
19. During July and August 2020, the Council received medical and psychological reports as well as educational advice from organisations and Y’s current school. Ms X told the Council she was unhappy it had not carried out all the assessments she requested and considered it would detrimentally impact on the outcome.
20. The Council responded to Ms X’s concerns in September 2010. The Council acknowledged Ms X made the request for an EHCP needs assessment on 25 May 2020 and it agreed to the assessment on 1 July 2020. The Council should then, under the statutory timescales, decide whether to issue a plan on 27 August 2020. And then it should issue a final plan on 8 October 2020 should one be agreed.
21. The Council explained the government temporarily changed some aspects of the law on EHC needs assessments and plans on 1 May 2020 due to the Covid-19 pandemic. This included amendments specifying timescales set out in the SEN code of practice. These were replaced with the requirement to do them ‘as soon as reasonably practicable’. The changes remained in place until 25 September 2020.
22. The Council said Ms X made the EHC needs assessment during the Covid-19 pandemic. Despite the Council using its best endeavours to meet the statutory timescales it had impacted on its ability to complete the needs assessment and caused unavoidable delays. The Council said it was continuing to ensure it completed the assessment as soon as reasonably practicable according to the temporary legal requirements. This included carrying out the required assessment from the educational psychologist. It also included Ms X’s request for Y’s needs to be assessed by a SALT and OT. The Council apologised for the lack of engagement about her request for therapy assessments.
23. The Council noted it was within the 20-week timescale for issuing a final EHCP. But the SEND team had been unable to make a decision on whether it intended to issue a plan by week 16 (27 August 2020).
24. The Council received the educational psychologist’s advice on Y in September 2020. In October 2020 Ms X sent the Council private OT and SALT reports she commissioned. Ms X asked the Council to carry out a social needs assessment.
25. The Council’s decision-making panel on SEN and EHCP’s (panel) met in November 2020 and agreed to issue an EHCP for Y naming a mainstream setting in section I. The Council issued a draft EHCP in November 2020. Y’s current school responded to the Council in February 2021 saying it was not a suitable setting for him due to his significant needs that were incompatible with a mainstream setting.
26. Ms X complained to the Council as she was unhappy with its response to her complaint and the SEND team’s engagement with her. The Council accepted delays in completing the EHC needs assessment. It noted that after it issued the draft EHCP in November 2020 Ms X asked for further amendments which it did not consider. In addition, officers did not actively manage Y’s case. The Council apologised for the lack of communication, and said it had a programme of improvements in place to strengthen communications with families.

EHCP issued February 2021

27. The Council issued a final EHCP to Ms X and Y’s school on 3 February 2021 naming his current school as the setting in section I of the plan. The Council told Ms X it would continue to work with her to verify the independent OT and SALT reports she submitted. The Council told Ms X she could attend mediation if she disagreed with the EHCP. Or she could exercise her right of appeal to the SEND Tribunal.
28. The Council received an updated medical report for Y confirming a diagnosis of ASD and held mediation with Ms X as she disagreed Y’s current school could meet his needs. The Council agreed to make the changes to Y’s EHCP Ms X sought including the needs and provision identified from the independent OT and SALT reports she obtained. The Council agreed its panel would consider a specialist school placement for Y.
29. At the end of April 2021 Y’s school updated the Council. It said Y responded well to changes in place at school due to Covid-19 such as staggered playtimes and smaller class sizes. Y had accessed school full time between January to March 2021 and thrived. But the school noted a deterioration in Y once the school opened for all students to return on 8 March 2021. The school said it was no longer able to meet Y’s needs.
30. The panel met in early May 2021 to discuss Y’s case noting the need to make an urgent decision following mediation. Ms X asked for Y attend a specialist placement and the panel agreed to the request. The Council told Ms X it was looking to amend the final plan and consulting with two schools she requested for a placement.
31. The Council sent the revised EHCP to Ms X and advised the two schools responded they were not suitable for Y’s needs. The Council consulted with two further schools including an independent specialist school Ms X asked for. I will refer to this school as school B. Ms X requested amendments to the EHCP.The two schools including school B responded they were unsuitable for Y. The Council sent Ms X an amended EHCP. Ms X confirmed she had no further comments and was happy for it to be issued.

Amended Final EHCP issued May 2021

32. The Council issued a final EHCP on 26 May 2021. It named a specialist school setting for Y in section I, and he would remain at his current school while it looked for an appropriate placement. The amended plan included provisions for SALT and an OT. It noted there was currently no social care provision identified but Ms X had requested a social care assessment.
33. The Council consulted two further schools requested by Ms X. One school replied it was unsuitable for Y, but the second school offered a taster day for Y to attend and be observed.
34. During May to July 2021 the Council and Ms X looked further into a placement at school B. The school agreed to reconsider its consultation response. This was following an agreement with Ms X to remove some of the provision in the EHCP as the school said it could not make all the provision mentioned. The Council sent Ms X an offer of a placement at school B on 6 July 2021 with transition to the school taking place at the end of the summer term. The Council listed out the EHCP provision the school could not provide.
35. Ms X responded she did not wish to accept a place at the school Y attended for a taster day. The school later told the Council it could not meet Y’s needs. Ms X confirmed she wished Y to attend school B and agreed to changes in the EHCP. Ms X told the Council she intended to appeal to the SEND tribunal if it did not agree to the placement.
36. Ms X contacted the Council on 12 July 2021 to chase the panel’s decision on the placement at school B. Ms X complained nothing was happening with Y having no school place for September 2021. Ms X said she would consider an Education Other Than at School package for Y which would be more suitable than his current school. Although Ms X accepted the school had done an excellent job with Y, but it did not have the capacity or funds to maintain the provision he needed.
37. Ms X then formally complained to the Council it had failed to apply appropriate legislation and frustrated the appeal process resulting in unlawful decisions. Ms X said her complaint was preliminary notice of Judicial Review action. The Council acknowledged Ms X’s complaint. On 16 July 2021 the Council told Ms X it agreed to a placement at school B and would amend Y’s EHCP. The Council issued a final amended plan naming school B at section I.
38. Ms X contacted the Council a few days later asking why it had not carried out a social care assessment as it was in breach of the statutory timescales for doing so. Ms X said now Y was out of the school routine ‘things had descended into chaos at home’. The Council contacted social care and asked it to complete an assessment. Ms X says a social worker met with her and Y in September 2021 and recommended Y receive four hours a week social care support. The social worker left the Council and Ms X says she had to chase the Council for a response about the social care assessment. In December 2021 the Council told Ms X it had no evidence of the social care assessment, so it needed to be redone. Ms X says this has now been carried out and a social worker recommended Y received 3 hours of support a week. This is currently being considered by the Council’s panel.
39. Y started at school B in September 2021. The school’s end of autumn term report says Y settled extremely well into the school.

The Council’s response to the complaint

Delays in the EHCP process

40. The Council acknowledges there were significant delays between Ms X’s request for an EHC needs assessment in May 2020 and the date it issued a final EHCP on 3 February 2021. The Council accepts it should have issued the final plan by 8 October 2020 (20 weeks) but the whole procedure took 37 weeks. It accepts this was fault and apologises to Ms X for this.
41. The Council says its SEND team experienced significant staffing issues and changes over the last two years. This impacted on its ability to action and process EHC needs assessment requests and issue EHCP’s according to statutory timescales. The Council is addressing this through improvement work following a reinspection by Ofsted and involvement from the Department for Education. The Council is preparing an accelerated progress plan to resolve areas of weakness including improving its SEN service.

SALT and OT assessment request

42. The Council notes Ms X asked the Council to seek advice and information for several assessments including SALT and OT on 4 July 2020. The Council sought advice from health and an educational psychologist. But says it is unclear from its records if it requested specific advice and information from SALT or OT.

Social care assessment

43. The Council says social care advised Y was not in receipt of any social care support. When Ms X raised concerns in July 2021, an officer addressed this with social care and asked for an assessment. The Council says its SEND team have no record in its files of the assessment taking place and no evidence in the case file of the assessment report by social care.
44. The Council says its Children’s social care services are independently run by Birmingham Children’s Trust (Trust) on the Council’s behalf and it has a separate complaints procedure to the Council. The Council says it is unclear whether Ms X submitted a complaint to the Trust about the social care assessment.

Transition arrangements

45. The Council says school B offered the placement on 5 July 2021 and the Council confirmed to Ms X it would name the school in Y’s EHCP on 16 July 2021. The Council was still waiting for another school to respond to consultation. It considers it was not unreasonable for it to take nine working days to consider an offer of a placement from school B and issue a final amended EHCP.
46. The Council comments it worked with Ms X to identify and secure a school placement for Y. It was a lengthy process as all the schools consulted said they were unsuitable placements for Y. The only school that then said it could meet Y’s needs was school B. But only if certain provisions Ms X asked for in the EHCP were not included as it could not deliver them.
47. The Council says Ms X was clear she preferred school B for Y and agreed to the Council amending the EHCP to remove some provisions. This was due to the nature of school B and the specialist staffing and support he would receive. The Council says the process of identifying and securing a school placement was not resolved until the last week of the summer term 2021. This did not allow much time for Y to have a graduated and phased transition to his new school. The Council accepts this would have been an anxious time for Y and his family. But it could not have achieved it any earlier as it only received the placement at school B in early July 2021.

Lack of support and Impact on Y

48. The Council accepts that if it met the statutory timescales Y would have received the Final EHCP by 8 October 2020. And it was at fault for the process taking an extra 17 weeks due to the reasons it has explained (paragraph 41). Y remained at his current school responding well to changes made due to Covid-19. Unfortunately, he deteriorated once the school opened again to all students in March 2021.
49. The Council says it cannot comment on whether Y having an EHCP from October 2020 would have had less of an impact on his mental health. This would be determined by the professionals who have provided reports for Y and whether they believe the delay impacted on his mental health. But the key change for Y has been the ability to access a special school. This was not secured until July 2021 despite the Council’s efforts.

The Council’s proposed remedy

50. The Council accepts it was at fault for delays in the EHC needs assessment process. It proposed the following remedies to address the fault:
• An apology to Ms X and Y for the fault identified.
• A payment of £500 to Y for the loss of possible additional support between 8 October 2020 and 3 February 2021 due to delays in issuing his final EHCP.
• A payment of £300 to Ms X for her time and trouble involved in bringing a complaint, in accordance with our guidance on remedies.

My assessment

51. The Council has accepted there were delays in completing Y’s EHCP and the process took 37 weeks instead of 20. This is fault by the Council even considering the brief change in specific guidelines between May and September 2020. The Council accepts the delays were due to significant staffing issues. We recognise and acknowledge the Council is taking action to improve to its SEN and EHCP service.
52. The Council has offered a payment of £500 to Y for the loss of additional support between October 2020 and February 2021 due to delays in issuing the EHCP. I consider the Council’s offer is sufficient to remedy the injustice caused to Y because of the delays in issuing the final EHCP. I do not recommend any further amount as a remedy. This is because while the EHCP sets out additional provision and support for Y he was attending school full time during the period of delay and the school reports he was thriving. It was only once the school reopened for all students to return in March 2021 that Y’s behaviour deteriorated. Ms X has also reported the school did an excellent job with Y.
53. Ms X considers if support had been in place sooner for Y, it would have impacted less on his mental health and reduce the high levels of support he now needs. However, we cannot say for certain what the outcome would have been if the Council had completed the EHCP any sooner. This was because of the difficulty in finding a suitable school placement for Y. The Council consulted with several schools who could not offer Y a placement. We cannot say for certain that school B would have had a place available earlier in the process. In fact, School B were only able to offer a place once Ms X conceded changes to the EHCP that it could not provide.
54. We also cannot say for certain about the impact on Y because Ms X and the Council were mediating over the final EHCP issued in February 2021. The Council did ultimately amend the EHCP to her satisfaction, so she did not need to appeal. If the Council had not agreed to a specialist placement and mediation broke down, Ms X would have needed to exercise her right of appeal to the SEND Tribunal. So, it may have taken longer for Ms X to resolve her concerns about Y if she had appealed. There was no guarantee she would have achieved the outcome she did with Y attending school B. It is also unlikely Y’s school place would have been resolved before September 2021 when he started at school B. Because of this I remain of the view that the Council’s offer of £500 to Y is a suitable amount as a remedy in this case.
55. The Council accepts Ms X did ask it to carry out SALT and OT assessments as part of the EHCP needs assessment. But it says it is unclear if it sought specific advice on these areas. The Council’s documents do not show any evidence it sought SALT and OT advice even after it advised Ms X it would do so when responding to her complaint in September 2020. I consider this is fault by the Council as Ms X specifically asked for these assessments.
56. This caused an injustice to Ms X as she paid for independent reports because the Council did not arrange the assessments. The documents show the Council relied on the private SALT and OT reports in the EHCP Ms X obtained. The Council amended the final EHCP in May 2021 using the suggested support and provisions from the reports and referenced them as appendices. Because of this I recommend the Council reimburses Ms X for the cost of the SALT and OT reports she sought. This is as well as the £300 payment the Council has offered Ms X for her time and trouble in pursuing her complaint. The evidence provided does show Ms X has needed to pursue complaints to the Council about the EHCP procedure.
57. We would normally recommend the Council reviews the process it has in place to track advice requests from parents and ensure it responds to the requests as a service improvement. However, the Council confirms it will be dealt with as part of the progress plan being overseen by the Department for Education. So, the service improvement will be achieved through that route.
58. Ms X complains the Council failed to include her comments and amendments in the final EHCP issued in February 2021. The Council accepted it did not consider some of the further comments she made, and it did not actively pursue the case after it issued the draft decision in November 2021. The Council apologised to Ms X for this. I consider it fault by the Council not to consider Ms X’s comments about the draft EHCP.
59. However, once the Council issued the final EHCP in February 2021 Ms X had appeal rights to the SEND Tribunal if she was unhappy with the EHCP issued by the Council. And if she did not consider the Council had taken account of her comments or amendments. We would expect Ms X to exercise her appeal rights to the Tribunal and use this route to pursue her concerns as it is able to direct changes to the EHCP. So, we will not investigate Ms X’s concerns about the Council failing to take account of her comments and suggested amendments.
60. The documents show Ms X asked the Council for a social care assessment during the EHCP procedure as the draft and final ECHP refer to this. The Council says it has no record of a social care assessment taking place although it asked social care to carry one out. Ms X advised me an assessment did take place in September 2021, but the Council had no record of it, so it has recently been redone. Ms X has recently received the outcome.
61. The Council says Ms X should pursue any concerns about the social care assessment with the Trust as it provides the Council’s children’s social care services. But the Trust is acting on the Council’s behalf and so it is for the Council to resolve. As Ms X has recently received the outcome, I consider it is premature for us to consider Ms X’s concerns about the social care assessment now, although I recognise it was raised during the EHCP procedure. Ms X should complain directly to the Council about the social care assessment if she remains unhappy about the time taken to carry out the assessment, the process and outcome. This because although the Trust is acting on its behalf the Council is ultimately responsible for providing children’s social services in its area.
62. Ms X complains about the Council’s failure to carry out transitional arrangements for Y before he moved to school B in September 2021. The Council says that it did not have enough time to make the arrangements for Y as the Council only confirmed his placement at the school towards the end of the summer term. It is unfortunate there was insufficient time for transitional arrangements for Y. But I do not consider it caused an injustice to Y. This is because the school and Ms X report Y settled in well during the autumn term despite no transitional arrangements. So, I do not consider there are grounds for us to pursue Ms X’s concerns on this issue further.

Back to top

Agreed action

63. I acknowledge the Council’s proposed offer and wish to remedy fault in this case, and I agree with the proposals. But in addition, I have recommended further remedy in this case. The Council has agreed to the following remedy to be carried out within one month of the date of the final decision. It will:
• Send a written apology to Ms X and Y for the faults I have identified in this case.
• Pay £500 to Y for the loss of possible additional support between 8 October 2020 and 3 February 2021 due to delays in issuing his final EHCP.
• Pay £300 to Ms X for her time and trouble involved in bringing a complaint, in accordance with our guidance on remedies.
• On production of relevant information from Ms X within one month of the date of the final decision it will refund her the costs incurred for the SALT and OT reports she obtained in 2020. The Council will pay Ms X the costs within one month of her providing the necessary information.

Back to top

Final decision

64. I am completing my investigation. There was fault by the Council in the way it dealt with the EHCP procedure for Y. I have recommended a suitable remedy in this case.

Back to top

Investigator's decision on behalf of the Ombudsman