Summary: Miss P complains on behalf of her young daughter (Child A) who has special educational needs. The Council maintains and Education and Health Care Plan (EHCP) for Child A which identifies what specialist support she needs. Miss P complains in relation to the EHCP process, a delay in providing Child A’s needed support and the contents of the EHCP. She also says the Council’s contact with her has been poor and that Child A did not receive adequate early intervention support. We found the Council failed to provide Child A’s needed EHCP provision when it should have. Further, when the Council backdated the provision, it was delivered in a way which was inconsistent with Child A’s EHCP. The Council was also responsible for inadequate contact with Miss P. These failings caused an injustice and the Council has agreed to our recommendations to remedy this.

The complaint

1. The complainant, who I refer to as Miss P, complains on behalf of her daughter (Child A) who has special educational needs (SEN). The Council maintains an EHCP for Child A which identifies the specialist support she needs such as speech and language therapy (SALT). Miss P alleges the following:
1. Poor communication from the Council relating to the EHCP process.
2. A significant delay in Child A receiving early intervention, assessments and access to specialist services they are entitled to.
3. Missed SALT provision and delays in arranging this.
4. The EHCP assessment process was inadequate and delayed.
5. The contents of the EHCPs need are subject to numerous inaccuracies.
2. In summary, Miss P says Child A has not received the necessary support she is entitled to which has undermined her educational development. She also says the issues have caused a strained relationship with the Council which has meant considerable stress and uncertainty. As a desired outcome, Miss P wants the Council to be held accountable for their mistakes and actions.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended).
6. 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).
7. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended).

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How I considered this complaint

8. I have read Miss P’s complaint to the Council and Ombudsman. I have also had regard to the responses of the Council, supporting documents and applicable legislation and statutory guidance. I also invited both Miss P and the Council to comment on a draft of my decision. All comments received were fully considered before a final decision was made in this case.

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My findings

Background and legislative framework

Education and Health Care Plan

9. An EHCP is for children and young people aged up to 25 who need more support than is available through special educational needs support. An EHCP identifies educational and health needs and sets out the support to meet those needs (including, but not limited to, providing a specialist educational setting).
10. Councils are not required to provide exactly what parents request, but they should be able to explain clearly why they consider a suggested provision meets the assessed needs of a child. They must also take steps to ensure the view of the child is properly recorded and considered when planning provision for them. In cases where a council has been unable to find a suitable school placement within the time frame, they have a duty to provide appropriate alternative education. We can look at delay in issuing an EHCP, including whether the Council has failed to make purposeful efforts to identify a school place.
11. When an EHCP is maintained for a child or young person the local authority must secure the special educational provision specified in the plan. If a local authority names an independent school or independent college in the plan as special educational provision it must also meet the costs of the fees, including any boarding and lodging where relevant.
12. Local authorities must ensure that children, young people and parents are provided with the information, advice and support necessary to enable them to participate in discussions and decisions about their support.
13. The First-tier Tribunal (Special Educational Needs and Disability) (the SEND Tribunal) is responsible for handling appeals against local authority decisions about special educational needs. This includes a refusal to assess a child’s educational, health and care needs and create an EHCP.

Timescales for issuing EHCP

14. 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:
1. 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;
2. 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;
3. 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); and
4. councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.
15. The legal duty to carry out the EHCP assessment lies with the Council, it cannot delegate this to a school or college. An EHCP cannot be issued unless the child or young person has been through the statutory EHCP assessment process. Not every assessment will lead to an EHCP, sometimes a council will decide needs can be met within the resources of local schools and through the “Local Offer”. A decision not to issue an EHCP has a right of appeal to the SEND Tribunal.

EHCP annual review

16. The Annual Review of an EHCP considers whether the provision remains appropriate and whether progress is being made towards the targets in the Plan.
17. The 'Special Educational Needs and Disability Code of Practice: 0 to 25 years' (the Code) is statutory guidance. This means local authorities must follow the Code when making decisions about children with EHCPs. The Code says: "9.169 The first review must be held within 12 months of the date when the EHC plan was issued, and then within 12 months of any previous review, and the local authority's decision following the review meeting must be notified to the child's parent or the young person within four weeks of the review meeting (and within 12 months of the date of issue of the EHC plan or previous review".
18. In practice the review covers not just the annual review meeting, but the Council's decision (to maintain, cease or amend the Plan) following the meeting. Each of these three decisions carries a right of appeal to the SEND Tribunal.

EHCP provision

19. A council has a duty to secure the specified special educational provision in an EHCP for the child or young person (Section 42 of the Children and Families Act 2014). The Courts have said this duty to arrange provision is owed personally to the Young Person And is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135).

Chronology of events

20. In May 2020, Miss P contacted the Council requesting support and guidance in relation to concerns she held about Child A’s learning development. Miss P told me that she was initially pleased with the support provided.
21. From April 2021, the Council offered a place for Child A on its Portage Programme (the Programme). This offers children aged up to three and a half years with significant developmental or other needs with early intervention support through learning activities. The Programme offered was for twelve weeks.
22. In early May 2021, Miss P requested the Council assess Child A for an EHCP.
23. In June 2021, the Council commenced the statutory EHCP assessment process for Child A. The Council requested a SALT assessment as part of this.
24. In August 2021, the Council says it received Child A’s SALT advice.
25. In September 2021, the Council issued a final EHCP for Child A. This made provision for her to receive SALT, as well as other tailored support.
26. In October 2021, Miss P made a formal complaint to the Council. The same month, Miss P attended a mediation meeting with the Council to address the issues and rectify any problems. The Council agreed to backdate the provision Child A had missed due to a failure to provide this.
27. In January 2022, Child A received an OT assessment organised by the Council. However, Miss P says the report was not received until June 2022 which meant the advice was out of the date by the time it was received.
28. In February 2022, the Council issued an amended EHCP for Child A (version 2) following an annual review.
29. In May 2022, Miss P called for a further review of Child A’s EHCP. She has been a draft EHCP (version three) and this is currently in the process of being finalised.

My assessment

Early intervention

30. The Council began working with Miss P in May 2020 following her requesting support and guidance in relation to concerns she held about Child A’s learning development. Miss P said this resulted in her receiving support from the Council’s Specialist Early Education Service (SEES) which she was satisfied with. Later, the Council emailed Miss P in March 2021 offering a place for Child A on its Programme. It said the Programme would be for 12 weeks on a fortnightly basis from April 2021 during term time only. The Council said the Programme would be delivered within a blend of face-to-face visits, zoom sessions and telephone conversations. As I understand, the Council said it would alternate the sessions between Child A and her twin sister (Child A), meaning each would receive three sessions of support over the course of the Programme.
31. In summary, Miss P complains that Child A did not receive the support she was entitled to receive. Specifically, Miss P says the Programme’s sessions were generic, not fit for purpose and failed to take account of the individual needs of Child A. This raises a number of issues. The law says the Council is not responsible for providing provision until a final EHCP is issued. On this basis, Child A, at the point of early intervention, was not entitled to receive specifically tailored SEN provision from the Council. Further, Child A had also not been through the statutory assessment process, meaning it is not possible to identify what her needs were and how they should be met. I do not therefore consider it is possible to reach a determination on whether the support provided during the course of the Programme was suitable for Child A’s needs or not.
32. Moreover, the role of the Ombudsman is to remedy fault which has caused a significant and personal injustice. This means there must be a causal link between the alleged failings and Child A suffering serious loss, harm or distress. In my view, because Child A was not entitled to SEN provision and had not been through the statutory assessment process, I do not consider it can be said that she has suffered an injustice. As I understand, the Programme is designed to provide early assistance and support. This is as part of the Council exercising its functions with a view to identifying children and young people with SEN and disabilities. In my view, any support provided to Child A through the Programme would have been beneficial, as opposed to causing her an injustice. For these reasons, I do not propose to investigate this part of the complaint and the provision I describe at Paragraph 7 applies.

EHCP contents

33. Part of Miss P’s complaint relates to the contents of Child A’s EHCP (version one) which she says misses out important information. She says parts of the EHCP are too vague and it does not include the necessary individual provision Child A requires to develop. In addition, Miss P states that Child A’s EHCP did not include the necessary professional OT advice to inform what specialist provision was needed. In particular, Miss P refers to delays in the OT assessment process due to COVID-19. She says this meant Child A’s final EHCP (version one) states it is “awaiting OT report” which she challenged the Council on. She believes this undermines the credibility and accuracy of Child A’s EHCP (version one).
34. In the first instance, Miss P says she was told an OT assessment was never requested by the Council and that it was not needed. However, Miss P explains the Council later agreed to carry out an OT assessment which was undertaken in January 2022. Miss P complains the OT advice was not received until June 2022 which was just before Child A’s EHCP was formally reviewed by the Council. She also says that because of the delay in obtaining the advice, this meant the reviewed EHCP (version 2) which was issued in February 2022 was inaccurate.
35. I fully acknowledge why this matter is a concern for Miss P, but I have no legal jurisdiction to investigate. The contents of an EHCP, as well as what advice, or lack of, has been considered in determining this, are appealable to the SEND Tribunal. The law says we cannot investigate where the complainant could reasonably appeal to the SEND Tribunal. Following the Council issuing a final EHCP (version one) for Child A, Miss P submitted an appeal. Although she later withdrew the appeal before it was heard, this suggests it would be entirely reasonable for her to be able to appeal. The same applies to Child A’s amended EHCP (version two) which also presents appeal rights. We cannot therefore investigate and the provisions I describe at Paragraphs 5 and 6 apply.

EHCP assessment process

36. The Council received a request from Miss P in early May 2021 that Child A be assessed for an EHCP. The Code says the Council must decide whether to agree to an assessment within 6 weeks. The entire process from the point when an EHCP assessment is requested until the final EHCP is issued must take no more than 20 weeks. In this case, the Council agreed to an assessment within 6 weeks and issued a final EHCP for Child A within 20 weeks. There was no delay by the Council in undertaking the assessment and issuing a final EHCP. I have not identified any fault in this respect. The evidence also demonstrates the Council carrying out an annual review within the appropriate timeframes.

Provision and delay

37. Central to Miss P’s complaint is that the Council delayed in providing EHCP provision. She says that once a final EHCP (version one) was issued for Child A, the identified SALT provision was not provided by the Council. The Council has fully acknowledged a delay in providing SALT to Child A. This is because there were difficulties in sourcing a SALT therapist to work with Child A within the area. Following Miss P’s complaint, the Council held a mediation meeting with her and made arrangements to backdate the provision. I have spoken to Miss P on this point and she has confirmed SALT was fully backdated as of January 2022.
38. The Council deserves some credit for making these arrangements and providing an appropriate remedy for the missed SALT. However, it followed much time and trouble by Miss P to seek a resolution. As there was a delay of two months, I must make a finding of fault against the Council for not providing Child A with the necessary provision when it should have. I do consider the Council has largely remedied the loss to Child A. However, when the EHCP provision was backdated, SALT was provided to Child A in Miss P’s home. The EHCP states this should have taken place in an educational setting to maximise the benefits of educational staff also learning how to meet Child A’s needs. The purpose being that educational staff could carry out activities with Child A on the basis of SALT between sessions. I accept the point made by Miss P in that Child A did not receive provision in a way consistent with her EHCP and that the SALT was not as optimal as it could have been. I therefore find further fault by the Council.
39. The backdated SALT provision was only relevant to a very limited period of time and number of sessions. Nevertheless, I consider Child A suffered an injustice for the reasons given as a result. Further, I consider the fault identified has caused Miss P serious upset, uncertainty and time and trouble. In addition, for the period the Council failed to provide SALT, Miss P incurred financial loss by arranging for the Child A to receive sessions privately. I therefore made a number of recommendations for the Council to remedy these injustices.

Communication

40. Separately, Miss P has complained in relation to poor communication by the Council during the course of the EHCP process. Primarily, this relates the communications Miss P had been having in relation to the contents of the EHCPs which I cannot by law investigate. Further, she says updates were not being provided by the Council and emails and telephone calls were not responded to. The Council has fully acknowledged that communication between it and Miss P has not been as effective as it should have been. The Council has also apologised to Miss P in this respect. I do therefore find fault by the Council in respect of not demonstrating good administrative practice with respect to contacting Miss P during the EHCP assessment process.
41. I am not satisfied with the formal responses issued by the Council in response to Miss P’s complaint. Firstly, the Council’s initial response does not make any reference to Miss P’s concerns relating to early intervention. This was a central part of her complaint and it should have been addressed by the Council. Second, the Council’s final complaint response refused to investigate the failure to provide Child A’s EHCP provision. It declined to do so due to Miss P having appealed to the SEND Tribunal. However, the SEND Tribunal does not consider matters relating to this matter. This is an issue which should have been investigated by the Council and responded to. In my view, this could have prevented the complaint being referred to the Ombudsman. There was fault in the Council’s complaint handling and when considered against the communication failure generally, I consider Miss P will have been caused distress and uncertainty.

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Agreed action

42. To remedy the fault and injustice identified in this statement, the Council has agreed to perform the following actions by 28 November 2022:
1. Provide Miss P with a written apology which acknowledges the fault and injustice identified in this statement.
2. Pay Miss P £781.50 to serve as an acknowledgement of injustice suffered by her and Child A. This total has been calculated as follows:

• £250.00 to remedy the uncertainty and distress suffered by Miss P by reason of the fault identified in this statement.
• £150.00 to remedy Child A not receiving SALT provision in the correct educational setting, in a way consistent with her EHCP.
• £381.50 to remedy Miss P’s financial losses which were incurred as a result of having to pay for SALT sessions privately.

43. The Council will provide evidence to the Ombudsman it has satisfied the above actions by the above time period.

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Final decision

44. The Council failed to provide Child A’s needed EHCP provision when it should have. When the Council backdated the provision, it was delivered in a way which was inconsistent with Child A’s EHCP. The Council was also responsible for inadequate contact with Miss P and poor complaint handling. I cannot investigate matters relating to the contents of the EHCP because Miss P could reasonably appeal to the SEND Tribunal. Further, I will not investigate the concerns Miss held in relation to the Council’s early intervention support because I do not consider Child A suffered an injustice by reason of this. Nevertheless, the failings identified have caused Miss P an injustice and the Council has agreed to remedy this.

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Investigator's decision on behalf of the Ombudsman