Summary: There was delay and fault in the way the Council carried out an Education, Health and Care Needs Assessment. The Council failed to involve the parent in the decision about what advice to obtain or consider if a new health assessment was required. There was also delay in consulting the parent’s preference of a specialist school. This caused frustration and delay. The Council will apologise, make a time and trouble payment and make service improvements.

The complaint

1. Ms X complains on behalf of her daughter, whom I shall refer to as Y. Y has special educational needs (SEN) and the Council maintains an Education, Health and Care (EHC) Plan for Y.
2. Ms X complains:
• The Council failed to obtain occupational therapy evidence during an Education, Health and Care Needs Assessment (EHCNA) under s.36 Children and Families Act 2014 (‘The Act’) in breach of s.6(1)(h) of the SEND Regulations 2014.
• The Council failed to consult a school requested by the parent for a period of four months in breach of s.39 of The Act
• The Council failed to meet deadlines for annual reviews
• The Council failed to meet Tribunal deadlines.
3. Ms X says because of the alleged fault:
• Her appeal was delayed
• Y lost out on their first choice of school
• Y lost out on specialist provision
• Unnecessary distress, inconvenience and anxiety were caused.

Back to top

The Ombudsman’s role and powers

4. 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)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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.
8. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
9. 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)

Back to top

What I have investigated

10. I have investigated the above complaint issues except for the alleged failure to meet Tribunal deadlines. The Tribunal has its own case management powers and has considered applications by Ms X, for example to sanction the Council and bar it from proceedings. It is not possible to consider the Council’s actions during the preparation of Tribunal proceedings without straying into commenting on matters that have been decided by the Judge. The Ombudsman has no remit to consider decisions by Judges.

Back to top

How I considered this complaint

11. I have considered information provided by Ms X and the Council including:
• Appeal documents
• EHC documents
• Complaint documents.
12. I have considered relevant law and statutory guidance including:
• The Children and Families Act 2014 (‘The Act’)
• The Special Education and Disability Regulations 2014 (‘The Regulations’)
• The Special Educational Needs and disability code of practice: 0 to 25 years (‘The Code’)
13. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
14. 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

What I found

Relevant law and guidance

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.
16. 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.

17. Those consulted have a maximum of six weeks to provide the advice.
18. 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)
19. The Code 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.
• 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).

20. When a council sends a draft plan to a child’s parent or young person it must give them at least 15 days, beginning with the day on which the draft plan was served, in which to: 
• make representations about the content of the draft plan, and to ask that a particular school or other institution be named in the plan; and 

• require the council to arrange a meeting between them and an officer of the council at which the draft plan can be discussed. (Special Educational Needs and Disability Regulations 2014) 

Key events

21. The following is a summary of key events. It does not include everything that happened.
22. The Council agreed to carry out an EHCNA for Y in April 2021. Ms X did not ask for specific advice to be sought in her parent representations for the EHCNA.
23. In Summer 2021 Ms X asked the Council if it needed to obtain evidence from occupational therapy (OT), as had been done for her other children. Y was not already under the care of OT. The Council said an OT assessment was not part of the usual assessment process for an EHC plan.
24. Ms X appealed the final plan to the SEND Tribunal. A final hearing was heard in Spring 2022.

During the EHCNA the Council obtained evidence from:

• EP
• Social Care
• Mental Health Services, Paediatrician and School Nurse / Health Visiting (Health)
• Y’s current school
1. At the end of the EHCNA, the Council decided an EHC plan was necessary. When the Council sent the draft plan to Ms X for her comments, she expressed a preference for an autism specialist school.
2. The Council issued the final plan seven weeks late (27 weeks) naming the current mainstream school. It did not consult specialist schools until after the final plan was issued.
3. Ms X appealed the final plan to the SEND Tribunal. The appeal was resolved by consent in Spring 2022. A specialist placement was named from September 2022, with a transition period from the current school.
4. In Winter 2021, a specialist teacher carried out a sensory profile questionnaire and made recommendations about the provision Y should receive.
5. In early 2022 Ms X read the Code and discovered that councils must obtain evidence reasonably requested under SEND Regulation 6(1). Ms X complained the Council had told her an OT assessment was not part of ECHNA. Ms X said this assessment should have been requested in Summer 2021.
6. A multiagency meeting was held at which mental health services offered an OT assessment from a therapist within their service.
7. The Council was consulting specialist schools between the issue of the final plan and the appeal hearing. Ms X complained this should have happened at the time of the draft plan.
8. The Council acknowledged in its complaint response it should have consulted her preference of school earlier, even if it had not agreed to name the placement (for example because it was not an efficient use of public resources compared to the cost of attending the current school). It also said it would raise the concern about the OT assessment with health colleagues as it agreed there should be systems to identify when a health assessment may need to be initiated during an EHCNA.
9. Ms X was dissatisfied with the complaint response as:
• The Council did not explain why it had not sought OT evidence at time of EHCNA or why she was told at the time that an OT assessment was not part of the process.
• The decision not to consult a specialist placement when requested was against the law.
10. In response to my enquiries of the Council, it said:
• There was no delay in consulting the parent’s preference of school, as Ms X only identified a specific school in November 2021 (after the final EHC plan was issued). This school was full and did not offer a place.
• The final Plan was issued naming the current school, although Ms X was continuing to visit schools. The current school maintained it could meet Y’s needs.
• The Council agreed a specialist placement during the appeal process after extensive discussions and after a time extension was provided by the Tribunal to undertake further consultations.
• Advice received from health colleagues was that they do not regard a request for advice for children not already known to services as a referral for assessment. Health provides advice for EHCNA based on recent or current involvement with the child.
• The Council’s view was that advice from the EP addressed OT needs sufficiently and this was included in the EHC plan. A specialist teacher also later undertook a sensory analysis. The Council noted the Tribunal did not order the Council to carry out an OT assessment. The Council considers the response to Ms X that OT assessment was not a usual part of an EHCNA was correct.

Analysis

Fault

35. There was a seven week delay in completing the EHCNA.
36. The Code says a Council should consider with the child’s parent the range of advice required to enable a full EHC needs assessment to take place. (The Code 9.47). There is no evidence the Council did so at the start of the EHCNA, this is fault and may have avoided subsequent disagreement about the evidence to be sought.
37. Ms X did raise a question about whether there was a need for OT advice in Summer 2021, however this was not clearly a request to obtain OT advice via a new assessment. The Council should have explored this with Ms X further rather than saying OT assessment was not usually part of the process. An EHCNA can include new assessments.
38. ‘Advice for EHC plans’ issued by the Council for Disabled Children says, ‘it is important to have an oversight mechanism to ensure unrecognised needs aren’t overlooked when there is no existing health involvement…where it is agreed a new medical assessment is required this should be arranged as soon as possible and there should be a mechanism in place to ensure that this can happen’.
39. The Council told me no OT assessment was required to inform the EHC plan because OT needs were sufficiently addressed in the EHC plan by advice from other professionals. This argument has been put forward for the first time in response to this investigation. It would have been open to a council to reach a decision that further assessment or advice was not ‘reasonably required’ under SEND Regulation 6(1), but this was a judgment it needed to have made during the EHCNA and explained to Ms X at the time; it failed to do so.
40. The Council’s original complaint response accepted there should be systems to identify when a health assessment may need to be initiated during an EHCNA. The Council’s response to me backtracks on this view, stating Health will only provide advice for children already known to their services. I find the Council’s original complaint response that there should be a mechanism to consider if a new medical assessment is the correct approach.
41. The Council has acknowledged in its original complaint response to Ms X it failed to consult schools at the appropriate time, which was fault. The Council has now given a different view in response to my enquiries that there was no delay.
42. I find Ms X did request a specialist school at draft plan stage and this request was not actioned by the Council at the time. This delay is fault. It is speculative whether earlier consultation would have altered the outcome. The Council may still have named the mainstream school in the final EHC Plan. I acknowledge Ms X has the uncertainty of whether a different school might have been offered sooner and this uncertainty is itself an injustice.
43. When a Council names a school that a parent considers unsuitable, the parent has a right of appeal against that decision. Ms X used her right of appeal. This was the correct route to challenge the type of school. This is not a matter for the Ombudsman to comment on.
44. Where there is a right of appeal to the Tribunal about a decision, the Court has decided the decision, and the consequences of it, are matters which are ‘inextricably linked’. As Ms X used her right of appeal, I cannot look at any loss of specialist provision during the appeal period. Any loss of provision is a consequence of the Council’s decision to name a mainstream school and inextricably linked to Ms X’s appeal about the suitability of that type of school. (R (on the application of ER) v the Commissioner for Local Administration, 2014)
45. I find there was fault and inconsistency in the Council’s complaint handling. It gave different views to the Ombudsman than it did in the original complaint response.

Injustice

46. The fault caused distress, frustration and uncertainty as to whether, but for the fault, Y may have started her new school sooner.

Back to top

Agreed action

Within four weeks of my final decision

47. The Council will apologise to Ms X and Y for the fault identified in this investigation.
48. The Council will make a payment to acknowledge the delay and distress caused by the fault as follows:
• £250 to Ms X
• £250 to Y.

Within two months of my final decision

49. The Council will remind officers of the need to ensure parents and young people are involved in the decision about what advice to seek as part of an EHCNA and to keep appropriate records to show this has happened.
50. Where a Council refuses a request to seek advice it should provide a written decision to the parent or young person giving reasons.
51. The Council will review with its health partners if there is a suitable mechanism in place to seek new medical assessments when previously unidentified needs are identified during an EHCNA. It should also ensure its officers are aware of the arrangements.
52. The Council will provide a report to the Ombudsman confirming what action it has taken to improve its service to prevent a recurrence of the fault.

Back to top

Final decision

53. I have completed my investigation. There was delay and fault in the way the Council carried out the EHCNA. The Council failed to involve Ms X in the decision about what advice to obtain or consider if a new health assessment was required. There was also delay in consulting Ms X’s preference of a specialist school. While this caused distress and delay, I cannot say that the outcome in terms of education provision would have been different if the fault had not occurred, or that the Council would have considered an OT assessment necessary had it considered the matter at the appropriate time.

Back to top

Parts of the complaint that I did not investigate

54. For the reasons given above, I have not investigated any matters which were considered by the SEND Tribunal or inextricably linked to that appeal.

Back to top

Investigator's decision on behalf of the Ombudsman