Summary: Mrs X complains about delays in dealing with her son’s Education, Health and Care needs assessments and failure to deal properly with her requests for therapy assessments. The Ombudsman finds fault with the Council for delay failing to explain its decision properly on the request for therapy assessments. The Council has agreed a remedy including a payment to recognise loss of education, and a review of procedures.

The complaint

1. Mrs X complained that the Council failed to deal properly with her son's Education, Health and Care (EHC) needs assessment and Plan. She says the Council:
1. delayed in carrying out a needs assessment and issuing a final EHC Plan following a Tribunal decision in December 2020;
2. delayed in responding to her requests for a re-assessment, carrying out the assessment and issuing a final EHC Plan in 2022; and
3. failed to consider her requests for Occupational Therapy and Speech and Language Therapy assessments properly.
2. As a result she says her son has missed out on support he should have received and she and her son have experienced unnecessary anxiety and distress.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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, sections 26(1), 26A(1), and 34(3), as amended)
4. 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. 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)
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. 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. 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.

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How I considered this complaint

9. I discussed the complaint with Mrs X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I considered relevant law and guidance on special educational needs.
10. I have decided to exercise discretion to investigate events dating back to December 2020 because the Council included these events in its complaint investigation and Mrs X has been pursuing her complaint since then.
11. I considered comments from Mrs X and the Council on a draft of my decision.
12. 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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What I found

Education, Health and Care Plans

13. A child with special educational needs may have an Education, Health and Care (EHC) Plan, following a needs assessment. The EHC Plan sets out the child’s needs and what arrangements should be made to meet them. It 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.
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 SEND Regulations 2014. The following information is based on this law and guidance.
15. There is a right of appeal to the SEND Tribunal against a decision not to assess, not to issue or amend an EHC Plan, or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal.
16. If a SEND Tribunal decides the council must carry out an EHC assessment, the council must start the assessment within two weeks of the decision. If the council decides as a result of the assessment to issue an EHC Plan, it must issue the final EHC Plan “as soon as practicable” and in any event within 14 weeks of the Tribunal Order. (SEND Regulations 2014, Regulation 44(2)(b)(ii))
17. The following timescales apply:
• 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); and
• councils must give the child's parent or the young person 15 days to comment on a draft EHC plan.
18. As part of the EHC needs assessment councils must gather advice from relevant professionals. 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. (SEND Regulations 2014, regulation 6(1))
19. Those consulted have a maximum of six weeks to provide the advice. (SEND Regulations 2014, regulation 8(1))
20. A Personal Budget is an amount of money the council identifies to deliver provision set out in an EHC Plan where the parent or young person is involved in arranging the provision. The budget may be paid through direct payments to the individual or to the education placement.

Re-assessments

21. If a parent asks for a re-assessment of needs for a child’s EHC Plan the Council must:
• tell the parent its decision whether or not it will carry out a re-assessment within 15 calendar days of receiving the request;
• once it has decided to re-assess, follow the same process as for a first assessment;
• issue a final EHC Plan within 14 weeks of the decision to re-assess. (SEND Code paragraphs 9.186-9.192)

What happened

22. Mrs X’s teenaged son, Y, has moderate learning difficulties and high levels of anxiety. He attends a mainstream secondary school, School 1. When the Council refused to carry out an EHC needs assessment Mrs X appealed to the SEND Tribunal. On 14 December 2020 the Tribunal ordered the Council to carry out an assessment.
23. On 18 February 2021 Mrs X sent an email to the Council to ask what was happening about the assessment. She received contradictory information from the Council about timescales for completing the assessment. She then wrote back to the Council pointing out that it had not acted on the Tribunal Order. She asked for confirmation that the assessment had started.
24. The Council started the EHC needs assessment on 24 February 2021. The result was that the Council decided to issue an EHC Plan for Y. It informed Mrs X on 29 April.
25. The Council issued a draft EHC Plan on 18 May. Mrs X sent in her comments around a week later and asked about how to apply for a Personal Budget. The Council issued a final EHC Plan on 10 June. The EHC Plan included the following provision:
• an adapted curriculum
• support with social communication and interaction
• one hour a week 1:1 or small group support for targeted basic maths and literacy skills
• support from a teacher or LSA in small groups across all subject areas with termly monitoring and reviews
• a key person or mentor for daily 15-minute contact.
26. There was further correspondence between Mrs X and the Council about changes she wanted to the EHC Plan. The Council sent Mrs X a proposed amended EHC Plan in mid-July and Mrs X confirmed she agreed with the amendments. She also asked about the possibility of a Personal Budget. She wrote to the Council again in late August, saying her SEND Caseworker had left and she did not know who would be replacing her. She said the EHC Plan had been ready since early August but she had not received the final Plan. It is not clear whether the Council issued another EHC Plan after this.
27. At first Mrs X was happy with the support set out in the EHC Plan. But over time she felt Y was not making progress, he was becoming more anxious and stressed, and the EHC Plan did not seem to be having much impact.
28. Mrs X wrote to the Council on 10 November asking who her new Caseworker was and asking for information about Personal Budgets. Once she received the name of the new Caseworker they exchanged emails about Personal Budgets. Mrs X provided details of programmes she felt would be suitable for Y which she would like to use a Personal Budget to pay for.
29. Mrs X wrote to the SEN Caseworker on 16 December 2021 asking for a referral for an Occupational Therapy (OT) assessment for Y. She explained the difficulties he was having at school. She did not receive a response. Mrs X says during this time School 1 was struggling to support Y and he became reluctant to attend.
30. In early February 2022 after a meeting at School 1, Mrs X wrote to her Caseworker with what she said was “a reasonable request” for various assessments for Y. These included OT, Speech and Language Therapy (SaLT), mental health, and a full Educational Psychology (EP) assessment.
31. When she did not receive a reply, Mrs X made a complaint to the Council in mid-March. She complained about:
• lack of response to her email of 16 December 2021 with her questions about the EHC process;
• lack of response from her new Caseworker about her request for a Personal Budget;
• the delay in completing the EHC needs assessment after the Tribunal decision in December 2020;
• lack of response to her request for various assessments which she said meant the EHC Plan did not cover all Y’s needs.
32. At the same time Mrs X sent the Council a copy of an EP report she had obtained following a referral from School 1. She said this backed up why Y needed to receive the further assessments urgently.
33. By the end of March when Mrs X had not received a response to her complaint apart from acknowledgements, she wrote to the Council asking to take the complaint to stage 2. She complained about the lack of response. She said the Tribunal in December 2020 had ordered the Council to identify all Y’s needs. She said it had failed to do so which was why she was seeking further assessments.
34. When she had not received a response to the complaint by 5 May 2022 Mrs X wrote to the Council again. She complained about the delay and also said she was now making a formal request for a re-assessment of Y’s needs. She said Y was finding school overwhelming and was now receiving counselling. She set out the same list of assessments she was asking for as in her email in early February, including OT, SaLT and a full EP assessment. She said she was asking for these as a “reasonable request”.
35. The Council replied apologising for delay. It said a Senior Casework Officer, Officer P, would be looking into her complaint and aimed to respond at stage 1 in the next five working days.
36. In mid-May Officer P wrote to Mrs X confirming who her new Caseworker was since the previous one had left. She apologised for the poor communication and said the Council would now consider the request for a re-assessment. The letter also apologised for the delay in responding to the Tribunal Order in 2021. It said it appeared the Council was not aware of the Order until Mrs X brought it to the Council’s attention.
37. Mrs X continued to write to the Council during May and June about the lack of response to her complaint and her request for a re-assessment, lack of contact from the new Caseworker, and Y’s declining mental health.
38. On 29 June 2022, after Mrs X wrote to the Council chasing a response, the Council wrote to her agreeing to carry out a re-assessment. It asked her for her views and information about her son to contribute to the assessment. It set out the next steps and said the assessment should be completed and the final EHC Plan issued within 14 weeks.
39. The Council declined to refer Y for the OT, SaLT and other assessments Mrs X had asked for. On 27 July Officer P wrote to Mrs X explaining the reasons for refusal. These were, in summary, that:
• the Council took the decision in line with Regulation 6(1)(h) of the SEND Regulations 2014, under which there is no legal requirement to seek the professional advice Mrs X was asking for;
• Y was not already known to these services;
• a referral by the Council for assessments as part of the EHC needs assessment would not give the child any special priority on waiting lists for these services;
• this meant practically that seeking the advice and information would serve little purpose;
• the Council would only consider a request to be reasonable if the service was likely to hold information about Y already which the Council could take into account as part of the EHC needs assessment.
40. However, the letter said Mrs X could contact the various services and if she obtained any advice about Y the Council could consider it at future reviews of his EHC Plan. It noted School 1 had already made a referral to the SaLT service.
41. Mrs X made a further complaint to the Council after receiving this response. She argued her requests for assessments were reasonable and supported by the EP in the report she had provided to the Council and by Y’s paediatrician.
42. On the same day that the Council declined to make the referrals, 27 July, Officer P sent Mrs X another email offering to help her with a referral to the OT service. She said:

“if the EP has recommended assessment from an OT then it is appropriate for a referral to be made to the service available to support [Y]”

43. In early August the Council sent Mrs X its stage 1 complaint response. It recognised it had failed to respond to her correspondence and accepted shortcomings in its communications with her. It said it had agreed to investigate delays in the EHC needs assessments even though the events were more than 12 months old. It accepted it was at fault and apologised for the delay in the assessment. The Council said it could only assume the delay was “due to poor case handover during period of significant changes of staffing”. The Council did not accept the EHC Plan missed out any of Y’s needs, but said it had already agreed to start a re-assessment. As part of this it would consider Mrs X’s requests for specific assessments and tell her the outcome. It would also consider her request for a Personal Budget.
44. As a remedy for the impact of its failings, the Council offered an apology for the poor communications, a virtual meeting to discuss any queries Mrs X may have, and a payment of £250 to recognise her unnecessary time and trouble.
45. In late August 2022 Officer P wrote to Mrs X saying the Council could help her with a referral for an OT assessment. She said:

“the decision is in line with the advice from the EP which recommends a referral to the OT services”.

46. On 11 October, after the deadline for issuing the EHC Plan had passed, Mrs X wrote to the Council complaining about delay in issuing the EHC Plan. She also said she felt the assessment was inadequate.
47. The Council sent Mrs X its stage 2 complaint response around a month later. It recognised that the final EHC Plan was late. It said it had considered her requests for specific assessments but declined as it did not consider her requests were reasonable and it had explained its reasons to her. The Council said if she was not happy with the provision in the final EHC Plan she could appeal to the SEND Tribunal. The Council apologised for the delay in dealing with her complaint and repeated its offer of £250 which Mrs X had declined previously.
48. The Council issued the final EHC Plan on 15 November 2022. In addition to the provision in the EHC Plan of June 2021 this Plan included:
• a more detailed communication plan for staff working with Y
• weekly social skills sessions with key staff
• key staff to provide daily structured activities
• small group support and 1:1 support in all lessons
• 1 hour a week 1:1 or small group support with reading
• key staff to provide Y with a range of different methods to record information including technology and a scribe for longer pieces of work
• extra social, emotional and mental health support including a weekly 1:1 or small group emotional literacy programme, social story work and weekly pastoral support.
49. In section C, health needs relating to SEN, the EHC Plan noted that Y needed further assessment of his language and social communication skills as assessments so far indicated he needed support with some aspects of language. The plan noted that a SaLT therapist would be drawing up a therapy plan in consultation with the adults supporting Y.
50. Mrs X was not happy that there was no OT or SaLT support in the EHC Plan. She said she contacted the mediation service and the Council’s SEND Information Advice and Support Service. She says both services confirmed she had a right of appeal to the SEND Tribunal. But she said they told her the Tribunal would not be able to order further assessments and so she was unlikely to succeed in getting the Plan changed to include these therapies. She did not appeal.
51. In January 2023 the Officer P helped Mrs X complete a referral form for an OT assessment. In the covering email to the OT service with the referral form, Officer P noted that an EP and a community paediatrician had recommended a referral. The result was an OT Advice Plan with strategies and activities for the parents and school to carry out. The OT also recommended a physiotherapy assessment.
52. As a result of the SaLT referral the service carried out training with Mrs X and School 1. Following an assessment of Y in March, Y is due to receive direct SaLT sessions.

Analysis – was there fault causing injustice?

Complaint a) – delay in assessment and issuing a final EHC Plan following the Tribunal decision in December 2020

53. Following the Tribunal Order on 14 December 2020, the Council should have started the assessment two weeks later, on 28 December. It then had 14 weeks from the date of the Order to complete the assessment and issue the final EHC Plan. So the deadline was 22 March 2021. The Council did not even start the assessment until late February and it issued the final EHC Plan on 10 June. This is a delay of around two and a half months, during which time Y missed out the support set out in the EHC Plan. This is fault by the Council causing injustice to Y.
54. The Council has accepted it was at fault and apologised. But it has not recognised the loss of SEN provision during this time. Also it has underestimated the delay. In its response to Mrs X’s complaints and the Ombudsman’s enquiries the Council says the 14-week time limit starts from the date when the assessment starts. This is not correct. The SEND Regulations set the time limit from the date of the Tribunal Order (see paragraph 15 above).

Complaint b) - delay in responding to requests for a re-assessment, carrying out the assessment and issuing a final EHC Plan in 2022

55. Mrs X made a formal request for a re-assessment of Y’s needs on 5 May 2022. The Council should have made its decision within three weeks of the request, by 26 May. It agreed to the request on 29 June 2022, one month late.
56. Once the Council agreed, it should have completed the re-assessment and issued the final EHCP within 14 weeks, by 5 October 2022. It issued the final EHC Plan on 15 November 2022, six weeks late.
57. The combined delay in issuing the final EHC Plan following the request for a re-assessment is therefore two and a half months. This is fault by the Council. The delay meant Y missed out on the extra support the November 2022 Plan required compared with the one issued in June 2021.

Complaint c) – that the Council failed to consider Mrs X’s requests for Occupational Therapy and Speech and Language Therapy assessments properly

58. OT and SaLT are not included in the list of professionals and services the Council has to seek advice from. But the Council must seek advice and information “from any person requested by the parent or young person, where the council considers it reasonable”. It is not for the Ombudsman to say which of these other professionals the Council should seek advice from. But we can consider whether the Council considered Mrs X’s requests properly.
59. The Council declined Mrs X’s requests for OT and SaLT assessments for the reasons given in its letter of 27 July 2022. Essentially it was saying there is no legal requirement to seek the advice the parent asks for and in this case it was not reasonable as there were no practitioners already involved with Y, and asking for an assessment under Regulation 6(1) would not achieve one any sooner than if Mrs X contacted the services herself, and so it would not contribute to the EHC needs assessment. The Council would only consider a request reasonable if the service was already involved with the child and likely to hold information about them.
60. The reasoning as explained in this letter is flawed for two reasons. First, because it does not take account of the six-week time limit for professionals to provide advice if requested by the Council as part of an EHC needs assessment. Second, because it justifies its decision in general terms without referring to any evidence Mrs X provided about her own child’s individual circumstances.
61. Mrs X argued her request was reasonable as it was supported by the EP who assessed Y, and by his paediatrician.
62. In response to our enquiries on this complaint the Council said it did take account of the EP report. It provided a copy of the report. It said it did not have a copy of the paediatrician’s report. The Council pointed out that the EP report did not recommend that the Council seek OT and SaLT assessments. Rather it noted that the SaLT referral was in progress and Mrs X was going to make a referral to the OT service. It advised that “advice from the OT should be followed” and suggested Mrs X look into what OT services were available through the Council’s Local Offer.
63. So, while I consider the Council failed to explain its decision properly in relation to Y’s individual circumstances, on balance it seems unlikely this affected the outcome of the decision. The first EP report did not specifically recommend OT and SaLT assessments. Mrs X forwarded copies of a further EP report and an email from a doctor that she says she sent the Council. Both were dated August 2022, and therefore were not available for consideration when the Council made its decision in July 2022.
64. There also appeared to be some discrepancy between the Council’s refusal to refer Y for OT and SaLT assessments as part of the EHC needs assessment and what Officer P said when offering to help Mrs X with the OT referral. I asked the Council how it could say at the same time that a referral was ‘appropriate’ and that the request for one was not ‘reasonable’.
65. In response to my enquiries the Council said it considers there is a difference between a recommendation to make a referral to a service and a recommendation for a full assessment of needs by a specific professional from within that service under SEND Regulation 6(1). It said the EP report had not recommended a referral but the Council thought it would be helpful to support Mrs X with her referral to the OT service.
66. The Ombudsman cannot resolve legal disputes about the meaning of the regulations. The evidence provided shows that the Council considered the information that it had been provided with as part of the decision-making process in July 2022.
67. The Council considered the matter properly but did not explain its decision fully to Mrs X. If the Council reached its decision properly I cannot question the decision itself, even though I recognise Mrs X was unhappy with it.

Communications and complaint handling

68. The history of events shows the Council’s repeated failure to respond to Mrs X’s emails, including her requests for a Personal Budget, and delays in dealing with her complaint. This is also fault which has caused Mrs X avoidable frustration and distress and meant she has had to put unnecessary time and effort into pursuing her complaint.

Council’s response

69. In response to our enquiries the Council says it has offered Mrs X £500 to recognise the delay in the initial assessment process. It says it explained the changes to service delivery since the events in her complaint and the staff training it has provided as a result of the complaint.

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Agreed action

70. Within one month of the final decision, the Council has agreed to
• Send a further written apology to Mrs X for the faults I have identified.
• Make a payment to her to recognise the loss of special educational needs support to Y for a total of five months at the rate of £300 per month, making £1,500. This sum should be used for the benefit of Y’s education or therapeutic needs.
• Pay Mrs X £300 to recognise the unnecessary frustration, distress and time and trouble caused by the Council’s failings.
71. The proposed payment for loss of education is based on the Ombudsman’s guidelines. These normally recommend a remedy payment of between £200 and £600 per month to acknowledge the impact of that loss. The figure takes account of factors such as the child’s SEN, any educational provision made in the period, and whether the period was particularly significant. In this case I have taken account of the fact that Y was receiving some education and support but not the full tailored support he would have had if the EHC Plans had been issued earlier.
72. Within three months the Council has agreed to review its procedures and tell the Ombudsman what it has done to ensure it:
• complies with Tribunal Orders for carrying EHC needs assessments and issuing final EHC Plans in the required timescale;
• responds to requests for EHC re-assessments and carries out the assessments in the required timescale;
• takes account of evidence provided about a child’s individual circumstances when considering requests for professional advice as part of an EHC needs assessment, and explains its decisions to parents properly.
73. The Council should provide us with evidence it has complied with the above actions.

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Final decision

74. I have now completed my investigation. I find there was fault by the Council in dealing with Y’s EHC needs assessment.

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Investigator's decision on behalf of the Ombudsman