West Northamptonshire Council (21 010 780)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 29 Jun 2022

The Ombudsman's final decision:

Summary: There was delay by the Council. It took 23 weeks longer than it should have done to issue an Education, Health and Care plan after it was directed to do so by a tribunal. The Council was also at fault as it delayed getting specialist reports during the assessment of a child, Y’s, needs. A financial payment to the Y’s family remedies any injustice from the delay in identifying and providing education, which Miss X says has caused Y significant distress.

The complaint

  1. The complainant, who I shall call Miss X, complains there have been delays by the Council during the Education and Healthcare (EHC) plan assessment process and delays in issuing the final plan for her son, Y.
  2. Miss X says this means Y has been in a school which cannot meet his needs which is causing the family and the child significant distress. Miss X says this has delayed them seeking changes and appealing the EHC plan, which they are unhappy with the contents of.

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What I have investigated

  1. I have investigated Miss X’s complaint during the following time periods:
    • From 14 April 2020 until August 2020.
    • From 10 February 2021 to 4 October 2021.
  2. The final section of this statement contains my reasons for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether an organisation’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)
  2. If we are satisfied with an organisation’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)
  3. 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

  1. I read the papers put in by Miss X and discussed the complaint with her.
  2. I considered the Council’s comments about the complaint and any supporting documents it provided.
  3. Miss X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Education and Health Care plan

Key facts

  1. Y’s school made an application for an EHC plan needs assessment in December 2019. The Council decided not to assess in January 2020. Miss X appealed to the SEND tribunal in April 2020. On 14 April 2020 the Council conceded and started the EHC needs assessment.
  2. The Council sought advice as part of the EHC needs assessment in April 2020:
    • It received Educational Psychologist advice in June 2020. Miss X says the Educational Psychologist indicated Y also needed assessments from an Occupational Therapist, speech and language, Physio (which was already in place), and further face to face cognitive assessments.
    • It requested Occupational Therapy in April 2020. This said Y was not known to the team so it did not give advice. (The Council later said it should have completed a referral.)
    • It existed advice from Physiotherapy during a virtual meeting.
  3. On 3 July 2020 the Council decided not to issue an EHC plan. Miss X appealed to the SEND Tribunal in August 2020. The SEND tribunal ordered the EHC plan be issued on 10 February 2021.
  4. The Council told Miss X on 2 March 2021 that they would request advice from Occupational Therapy (OT), speech and language and physiotherapy. But to comply with tribunal timescales they would issue the draft before the advice was received. The draft EHC plan was issued on 19 March 2021.
  5. The Council asked for additional advice from the Educational Psychologist on 8 April 2021.
  6. Miss X requested extra time to respond to the draft EHC plan, an OT assessment into sensory and fine motor skills and a full educational Psychologists report. The Council said that the timescales could not be amended so it had to issue the EHC plan but would add the additional advice to the EHC plan when received. An updated draft EHC plan was sent to Miss X on 16 July.
  7. The Council issued the final EHC plan on 4 October 2021. Miss X appealed to the SEND tribunal about the content and placement named.

The law

  1. 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.
  2. 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.
  3. 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.

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.

Those consulted have a maximum of six weeks to provide the advice. The council should consider with the child’s parent and the parties listed the range of advice required to enable a full EHC needs assessment to take place. (The Code 9.47)

My analysis

  1. Miss X complains the Council did not get the correct reports from professionals when carrying out the EHC needs assessment. She considers the delays in getting the correct advice, led to the Council refusing to issue an EHC plan and further delays after the SEND tribunal.

14 April 2020 until August 2020

  1. In its official complaint response the Council accepted it was at fault in failing to get advice from Speech and Language. This advice was finally commissioned on 30 November 2021. However, in response to my enquiries the Council said the Educational Psychologist did not recommend seeking advice from the Speech and Language Therapist (SALT). But it did say ‘for language, communication and interaction outcomes please see advice from Speech and Language therapy’. The Council said no advice from the SALT service was available as Y was discharged in 2017.
  2. It is clear the Educational Psychologist expected the Council to get advice from SALT and that her report noted that Y had a Special Educational Need in communication. I do consider it was fault not to get advice from SALT towards the needs assessment.
  3. The Council also said it was at fault in its complaint response of December 2021 as it did not carry out a referral to Occupational Therapy in April 2020 when the OT said they could not provide advice as Y was not known to the service. The Council got the OT advice in May 2021. The Council also failed to get the further face to face cognitive assessments recommended by the Educational Psychologist in her report.
  4. The Council decided not to issue the EHC plan. As Miss X appealed against the decision not to issue the plan, I cannot investigate whether the failure to obtain these assessments affected the decision not to issue the EHC plan, for the reasons explained in the section headed ‘parts of the complaint I did not investigate.

10 February 2021 to 4 October 2021

  1. The SEND tribunal said the Council should issue the EHC plan, with the reports recommended by the Educational Psychologist. The SEND tribunal identified that:
    • The Educational Psychologist did refer to the need for further cognitive assessment to be undertaken with Y.
    • The Educational Psychologist had also recommended an assessment by physiotherapy for support with physical and sensory needs.
  2. The SEND tribunal ordered the Council to issue the draft EHC plan within 5 weeks on 10 February 2021. The Council complied with this timescale. The final EHC plan should be issued within 11 weeks. The Council issued the plan on 4 October 2021. This took 34 weeks, a delay of 23 weeks. This meant the plan was not in place when Y started the new school year.
  3. I find there was fault by the Council. There was a delay of 23 weeks in issuing the EHC plan after the SEND tribunal. There was also a delay in responding to Miss X’s official complaint.
  4. There has been significant delay by the Council when dealing with Y’s EHC application and plan. The Council accepts there has been delay but considers there has been no loss of provision to Y. While we cannot say this for sure, failure to get specialist reports is likely to mean the Council did not identify all the provision needed. The recent tribunal has resulted in additional provision and schooling in a specialist unit. It is likely that these changes to provision could have put in place earlier, if the delays had not occurred.
  5. In order to remedy the 23 weeks delay, I consider a payment should be made, in recognition of the additional provision that is likely to have been made earlier if the delays had not occurred. Where fault has resulted in a loss of educational provision, our guidance recommends a payment of between £200 and £600 a month to acknowledge the impact of that loss. As Y was in education during the period of delay, we would normally recommend a payment at the lower end of the scale. The period of delay was 23 weeks, but this did include 9 weeks of the Easter, May and Summer holidays. So, I propose a payment of £200 a month for 12 weeks, a total of £600.
  6. I also propose an additional payment of £500 towards Miss X’s time and trouble and to recognise that the Council’s failure (which it accepted in its official complaint response) to get the SALT, OT and cognitive assessments has led to increased uncertainty during the process that her son’s needs had been properly identified.
  7. Miss X complains that her son has not received the provision in his EHC plan. The Council has said that it has no evidence that this is the case. And, I have seen no written evidence that Miss X has complained to the Council on this point. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:
  • check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;
  • check the provision at least annually via the review process; and
  • investigate complaints or concerns that provision is not in place at any time.
  1. Miss X can make a complaint to the Council if she considers the provision in the EHC plan was not put in place from October 2021 until June 2022. If she is dissatisfied with the response she can make a new complaint to the Ombudsman.

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Agreed action

  1. The Council pays £1100 to Miss X, towards her uncertainty and the loss of educational provision to Y due to delays within one month of the date of the decision on this complaint.
  2. The Council should review its procedures to ensure that officers are aware of the need to meet timescales set by the SEND tribunal within one month of the date of the decision on this complaint.
  3. The Council should review its procedures for EHC plan needs assessment to ensure that the correct professional reports are requested without delay within one month of the date of the decision on this complaint.

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Final decision

  1. I have completed my investigation of this complaint. This complaint is upheld, as there was delay by the Council. I consider the remedy above is a satisfactory remedy to the injustice caused to Miss X and her family.

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Parts of the complaint that I did not investigate

  1. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC Plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
  2. So I cannot investigate events during the following time periods while Miss X was waiting for, or had appealed to, the SEND tribunal:
    • Events before 14 April 2020, as Miss X appealed against the Council’s decision not to undertake an EHC plan needs assessment.
    • Events from August 2020 until 10 February 2021, as Miss X appealed against the Council’s decision not to issue an EHC plan.
    • Events from 4 October 2021 onwards, as Miss X appealed against the Council’s provision and content of the EHC plan.

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Investigator's decision on behalf of the Ombudsman

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