The Ombudsman's final decision:
Summary: Dr B complains the Council delayed in issuing an Education, Health and Care Plan following a re-assessment of her daughter’s needs. The Council has accepted there was a delay in issuing the Plan. We find the Council was also at fault for failing to promptly request advice from professionals involved in her daughter’s care. This caused Dr B distress and she was put to time and trouble. Dr B’s daughter missed out on certain provision in her Plan. To remedy this, the Council has agreed to apologise to Dr B and her daughter and make them a payment. It has also agreed to make certain service improvements.
- The complainant, who I shall refer to here as Dr B, complains the Council:
- failed to issue a final amended Education, Health and Care Plan (EHC Plan) within the statutory timescales after she requested a re-assessment of her daughter, X’s needs in April 2021; and
- delayed in getting updated reports from a Speech and Language Therapist (SALT) and Educational Psychologist (EP) that could inform the amended EHC Plan in a timely manner.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- I spoke with Dr B about her complaint. I considered all the information provided by Dr B and the Council.
- Dr B and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
- 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.
What I found
Education, Health and Care Plans – re-assessment of needs
- 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 SEND Tribunal can do this.
- 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.
- Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for producing and reviewing EHC Plans. The Code is based on the Children and Families Act 2014 and the SEN Regulations 2014.
- The Code says Councils must carry out annual reviews of EHC plans. The review process will enable changes to be made to an EHC plan so it remains relevant to the needs of the child or young person and the desired outcomes. However, there may be occasions when a re-assessment becomes appropriate, particularly when a child or young person’s needs change significantly.
- When the child’s parent or young person requests a re-assessment of needs, the Code states the council must tell the child’s parent or the young person within 15 calendar days of receiving the request to reassess whether or not it will carry out the re-assessment.
- When the council decides to carry out a re-assessment, it must follow the same process and timescales as for the first EHC needs assessment and drawing up of the EHC plan. These timescales mean:
- the overall maximum timescale for a re-assessment is 14 weeks from the decision to reassess to the issuing of the final EHC plan. However, a council must aim to complete the process as soon as practicable; and
- the council must give the child’s parent or the young person 15 days to comment on a draft EHC plan.
- Following a re-assessment, the council must review the EHC plan within 12 months of the date that the finalised EHC plan is sent to the child’s parent or the young person.
- Dr B’s daughter, X, has an EHC Plan. X is autistic and has selective mutism and anxiety.
- In April 2021, Dr B asked the Council to carry out a re-assessment of X’s needs. Dr B said she no longer thought X’s Plan reflected her needs and was based on reports from professionals that were not up to date. She said she was concerned about making sure X had the appropriate support in place before moving into Year 9 in September and beginning her GCSEs.
- Later in April, Dr B chased the Council for a reply.
- The next day, a Council Special Educational Needs (SEN) Casework Officer emailed Dr B to confirm the Council would carry out the re-assessment. She said she would arrange a meeting with Dr B to discuss her concerns.
- In early June, two Council SEN Casework Officers met with Dr B to discuss the re-assessment of needs.
- Towards the end of June, a Council SEN Casework Officer wrote to Dr B saying the Council would carry out a re-assessment of needs. The Officer said she would contact the professionals involved in X’s case for advice. She asked Dr B to send in X’s views and any additional information by 5 August.
- After the meeting, Dr B wrote to the Council’s SEN Casework Officer. She asked the Officer to get updated reports from a speech and language therapist (SALT), occupational therapist and educational psychologist (EP). The Officer confirmed she would get these reports. Dr B said she would get a report from X’s psychiatrist and asked for a dyslexia assessment.
- In July, Dr B complained to the Council. She said the Council had failed to:
- get updated advice from a SALT or EP;
- tell Dr B within 15 calendar days whether or not it would carry out the re-assessment; and
- send a draft EHC Plan in time. She said the deadline for issuing the final EHC Plan was two weeks from today, but she was yet to receive a draft Plan she could comment on in time.
- On the same day, the Council received a report from an occupational therapist.
- Two days later, Dr B chased the Council for a response.
- The next day, the Council replied to say:
- the Council had experienced a backlog of EHC needs assessments since the outbreak of COVID-19 and staffing issues within its Educational Psychology service. It said it had failed to progress X’s re-assessment as it was still waiting for EP advice. The Council said it would send a draft EHC Plan as soon as it received this.
- it apologised for the delay in getting EP advice and offered Dr B £150 for the time and trouble she had gone to complaining. The Council said it had recruited staff to address the backlog of assessments and was trying to recruit more EPs.
- In early August, a SALT and EP produced reports for X’s re-assessment.
- Dr B asked for her complaint to be escalated to the final stage of the complaints process.
- A few days later, the Council sent Dr B its final complaint response. The Council said it upheld Dr B’s complaint. It said the Council had received the SALT report, but was waiting for the EP report. It said it would be able to send Dr B a draft EHC Plan once it received an EP report.
- Dr B complained to the Ombudsman.
- Later in August, the Council received the EP report.
- In early September, the Council sent Dr B a draft EHC Plan.
- At the end of September, Dr B chased the Council for an update on X’s EHC Plan. She said X was struggling and needed the right support in place to make sure her mental health was not further affected. Dr B asked to speak with someone face to face about her concerns for X.
- At the beginning of October, the Council sent Dr B a second draft EHC Plan.
- Later in October, the Council sent Dr B a final amended EHC Plan.
Analysis – was there fault by the Council causing injustice?
- In its stage one complaint response, the Council said its SEN Casework Officer had incorrectly told Dr B that the Council had 15 working days to tell her whether or not it would carry out the re-assessment. The Council said the correct timescale was 15 calendar days. It apologised for this and accepted its response was five days late. The Council accepted it was at fault here. I find it sufficiently remedied the stress and uncertainty Dr B experienced during this delay.
- In its complaint responses, the Council has also accepted that it failed to issue a final amended EHC Plan within the statutory timescales after Dr B requested a reassessment of X’s needs in April 2021. This is fault (part a of the complaint). The Council should have issued a final EHC Plan by the beginning of August 2021 to meet the 14-week statutory deadline for completing the re-assessment process. However, it sent Dr B the final amended Plan over two months later in October 2021. This delayed Dr B’s SEND Tribunal appeal rights and caused her stress and uncertainty. She went to time and trouble chasing the Council to complete the process.
- The delay meant X missed out on starting the 2021/22 academic year with the up-to-date EHC Plan in place. During the period of delay, I find this meant X missed out on some of the special educational provision included in the final amended EHC Plan. This covered a period of one month and one week (between September and October 2021 when the final EHC Plan was issued). Based on the evidence I have seen, this included providing X with support to catch up on missed work when she was not in lessons as well as a personalised timetable and targeted SALT sessions. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £200 and £600 a month to acknowledge the impact of that loss. As X was at a key stage in her education (beginning Year 9), but the Council did provide some of the provision in the Plan, I consider a payment in the middle of the range to be suitable.
- Dr B complains the Council delayed in getting updated reports from a Speech and Language Therapist and Educational Psychologist (EP) that could inform the amended EHC Plan in a timely manner (part b of the complaint).
- In its complaint responses, the Council accepted that there were delays in getting EP advice. This is fault. It has said this was linked with staffing issues within its Educational Psychology service.
- However, in my view, it is likely that much of the delays in getting the EP and SALT reports could have been avoided if the Council had requested these in a timely manner. It did not do so, which is fault. At the end of April 2021, the Council confirmed it would carry out the re-assessment. But it did not begin requesting the necessary advice and information from professionals until two months later at the end of June. By this point, almost nine of the maximum 14 weeks for completing the re-assessment had passed. If the Council had requested the advice sooner, it is likely it would have received the reports with sufficient time to issue the final amended Plan by the statutory deadline in August 2021. The Council’s delays in requesting the advice caused Dr B further distress and frustration. She went to time and trouble chasing the Council to get the advice.
- Within four weeks of my final decision, to remedy the injustice Dr B and X experienced, the Council has agreed to:
- apologise in writing to Dr B and X for the fault causing injustice;
- make the payment to Dr B of £150, which the Council previously offered for the distress she was caused and time and trouble she was put to. I consider this remedy offered to be in line with the Ombudsman’s published guidance on remedies;
- make a payment to Dr B, on behalf of X, of £150 for the distress and uncertainty caused by the Council’s failure to issue the amended EHC Plan in time; and,
- make a payment to Dr B, on behalf of X, of £500 to recognise X’s loss of provision during the period of delay in the Council issuing the final amended EHC Plan. This covered a period of one school month and one week (between September and October 2021 when the final EHC Plan was issued). This payment should be used for the benefit of X’s education.
- circulate a reminder to relevant staff of the statutory timescales for deciding whether to carry out a re-assessment and issuing final EHC plans following a re-assessment of needs. The Council should also highlight the importance of meeting the timescales to ensure the right to appeal the final plan is not delayed, and
- share this decision with relevant staff members.
- I have completed my investigation.
- I have decided to uphold parts a and b of Dr B’s complaint. This is because there is evidence of fault by the Council causing Dr B and X injustice. The Council has agreed to the above recommendations, which are suitable ways for the Council to remedy this.
Investigator's decision on behalf of the Ombudsman