Summary: The complainant (Mrs X) complained about delays within her son’s (Y) Education Health and Care (EHC) needs re-assessment, including issuing his final Education Health and Care Plan (EHCP) and the way the Council communicated with her throughout this process. She said the Council's failings meant Z did not receive necessary support which affected his school attendance and caused deterioration to his health and well-being. Mrs X said the Council’s failings caused her distress, frustration and had negative impact on her health and well-being. We find the Council at fault for its failing to follow the EHC needs re-assessment timescales, to consider Mrs X’s request for an Occupational Therapy (OT) assessment, to ensure Y’s Annual Review is carried out and to effectively communicate with her. The Council agreed to issue Y’s draft EHCP and consider Mrs X’s request for an OT assessment, apologise and make payments for Mrs X for the delays and distress. The Council also agreed some service improvements.

The complaint

1. Mrs X says the Council failed to adhere to the timescales for issuing Y’s EHCP following parental request for an EHC needs re-assessment. Mrs X also complains about inconsistent communication from the Council.
2. Mrs X says the Council’s alleged failings caused injustice to Y as he did not have enough support at school, which affected his school attendance and caused deterioration to his health and well-being. She also says they caused her distress, frustration and had negative impact on her work and well-being.

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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 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)
4. 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)

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How I considered this complaint

5. I spoke with Mrs X and considered the information she provided.
6. I made enquiries with the Council and considered the information it provided.
7. I reviewed the Council’s Corporate Complaints Policy.
8. Mrs X the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
9. 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

Law and administrative framework

EHC needs re-assessment

10. Once a decision to carry out an re-assessment has been taken the process is the same as for the first EHC needs assessment and drawing up of the EHC plan with the same timescales and rights of appeal. (Statutory guidance Special educational needs and disability Code of Practice: 0 to 25 years paragraph 9.191)
11. 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:
• 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.
12. The local authority must aim to complete the re-assessment process as soon as practicable. The maximum timescale for a re-assessment is 14 weeks from the decision to re-assess to the issuing of the final EHC plan. (Statutory guidance Special educational needs and disability Code of Practice: 0 to 25 years paragraph 9.192)

Advice sought during the EHC needs re-assessment

13. In seeking advice and information the local authority should consider with professionals what advice is necessary to ensure the assessment covers all the relevant education, health and care needs of the child. The local authority must seek advice from any person requested by the child’s parents where the local authority considers it reasonable to do so. (Statutory guidance Special educational needs and disability Code of Practice: 0 to 25 years paragraph 9.49)

Reviews

The Council’s duties on EHCP Annual Reviews are specified in Special Educational Needs and Disability Regulations 2014:

• Councils must review an EHCP at least every 12 months;
• Within two weeks of the review meeting the school must provide a report to the council with any recommended amendments;
• Within four weeks of the meeting, the council must decide whether it will keep the EHCP as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school. If it needs to amend the plan, the council should start the process of amendment without delay;
• Where a council proposes to amend an EHC plan, it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. The council must give the parents at least 15 days to give views on the proposed amendments;
• When the parent suggests changes that the council agrees, it should amend the plan and issue the final EHCP as quickly as possible;
• Where the council does not agree the suggested changes it may still issue the final EHCP;
• In any event the council should issue a final EHCP to the parent and any school named within 8 weeks of sending proposed amendments to the parents or young person. It must also notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so. (SEND Regulations 2014 regulations 18-22)
1. The local authority and the school attended by the child must cooperate to ensure a review meeting takes place. (Statutory guidance Special educational needs and disability Code of Practice: 0 to 25 years paragraph 9.173)
2. The local authority should provide a list of children who will need a review of their EHCP that term to all headteachers and principals of schools at least two weeks before the start of each term. (Statutory guidance Special educational needs and disability Code of Practice: 0 to 25 years paragraph 9.172)

Communication with parents

16. Parents views are important during the process of carrying out an EHC needs assessment and drawing up or reviewing an EHC plan in relation to a child. Local Authorities should enable parents to share their knowledge about their child and give them confidence that their views and contributions are valued and will be acted upon. (Statutory guidance Special educational needs and disability Code of Practice: 0 to 25 years paragraph 1.7)
17. Local authorities should support and encourage the involvement of children, young people and parents or carers by:

• Providing them with access to the relevant information in accessible formats
• Giving them time to prepare for discussions and meetings, and
• Dedicating time in discussions and meetings to hear their views.

(Statutory guidance Special educational needs and disability Code of Practice: 0 to 25 years paragraph 9.24)

What happened

Background

18. Y is eight and has a diagnosis of Autistic Spectrum Disorder (ASD). He also has sensory needs and low muscle tone.
19. Y attends a primary mainstream academy (the School). His attendance rates were:
• In the school year 2021/2022 around 75%;
• In the autumn of 2022 around 57%.
20. The Council issued Ys EHCP in April 2021.

Re-assessment

21. At the end of February 2022 Mrs X asked the Council to carry out Y’s special educational needs (SEN) re-assessment. She provided her reasons:
• The original EHC needs assessment took place during COVID and was not in person;
• Lifting COVID restrictions by the School had negative effect on Y;
• Y’s sensory needs and anxiety increased since the last assessment;
22. In the second week of March the Council decided to carry out a re-assessment of Y’s EHC needs and sent a request for information to its Educational Psychology (EP) service, the School, Designated Medical Officer (DMO), Social Care team and a specialist advisory teacher.
23. In the beginning of May Y’s parents asked the Council about the re-assessment, pointing out the EP and Occupational Therapy (OT) assessments did not happen although Y needed them. A few days later Y’s parents sent another chasing letter. The Council failed to respond to both communications.

Complaint

24. Mrs X complained about the Council’s failing to comply with the timescales for issuing Y’s EHCP following the re-assessment of his needs in mid-June. At the end of June she chased the Council’s response but received no response.
25. A few weeks later Mrs X sent her stage two complaint, pointing out she had not received any response to her previous one. When listing the Council’s failings Mrs X also mentioned the lack of OT assessment despite Y’s need for it.
26. A few days later the Council explained to Mrs X that it did not deal with her previous complaint in line with the Council’s corporate complaint procedure as she chose to contact the Director’s office rather than a complaint team. As a result the Council did not apply the usual complaint timescales. Now the Council recognised Mrs X’s previous communication as a stage one complaint and would respond within ten to twenty days.
27. Mrs X contacted us:
• In the beginning of August complaining about the Council’s refusal to pass her complaint to stage two;
• Mid-September telling us the Council still did not respond to her complaint;
28. A day after we contacted the Council, it sent its response to Mrs X’s stage one complaint, fully upholding it. The Council explained:
• The only request for advice sent after agreeing Y’s needs re-assessment was for the school information;
• Due to the processing error the Council failed to allocate an EHC Coordinator to Y;
29. The Council recognised its failings but said it had invested in a transformation programme to make improvements across the service.
30. After receiving the Council’s stage one response Mrs X asked for information on the progress Y’s EHC needs re-assessment. She was concerned about his re-assessment not being completed. She followed up her letter with a few telephone calls. All Mrs X’s communications remained unanswered. In the beginning of October Mrs X contacted the complaints team.
31. In its stage two complaint response, sent to Mrs X in the second week of October, the Council:
• Upheld her complaint;
• Apologised;
• Confirmed in the beginning of October it received an EP updated advice and would be issuing Y’s draft EHCP without delay
• Provided Mrs X with the contact details of a SEN Casework Manager, undertaking to send her Y’s EHC Coordinator’s contact details once the allocation took place.

Annual Review

32. At the end of November the School’s Special Educational Needs Coordinator (SENCo) contacted the Council saying Y’s EHCP was out-of-date. As the Council agreed to re-assess Y’s EHC needs last academic year, the Annual Review which was due in the summer term did not take place. The parents were considering Y might need a specialist placement therefore the School wished to arrange an interim review with the Council’s officer present.
33. The Council responded that even though it had been carrying out a re-assessment of Y’s needs, the Annual Review should have happened within 12 months from issuing Y’s final EHCP.
34. SENCo explained she was not aware of the process when a child’s EHC needs re-assessment was taking place. She said she tried to contact the Council several times but her communications remained unanswered. SENCo told the Council of the review planned for January 2023 as Y’s parents wanted to consider the option of a specialist placement and asked for the Council’s representative to be present at the review meeting.

Analysis

EHC needs re-assessment

35. As the Council agreed to carry out Y’s EHC needs re-assessment in the beginning of March 2022, the final EHCP should have been issued in the middle of June. In the letter of January 2023 responding to our enquiries the Council told us it still did not issue a draft EHCP following the re-assessment. There is a delay of seven months, which is fault.
36. It is difficult to find out the reasons for this delay beyond October 2022. The individual circumstances of this case make the Council’s failings in respect of Y’s needs re-assessment process particularly significant:
• The Council has known about the re-assessment delays at least since the end of July 2022, when it recognised Mrs X’s complaint;
• In its stage one response the Council apologised and confirmed the SEND service invested in a transformation programme which should improve experience of children and their parents in the future. Despite this assurance nothing seemed to have improved for Mrs X and Y;
• It seems that despite recognising Y did not have an EHC Coordinator because of the processing error, this situation continued even after the Council admitted this failing in its stage one complaint response. In its letter to us the Council said all children/young people under the EHC needs assessment/re-assessment had an EHC Coordinator, which makes a prolonged unavailability of one for Y even more inexplicable;
• In its stage two response the Council said it had received an EP updated advice and would issue a draft EHCP without delay. This did not happen.
37. The Council’s faults within the re-assessment process caused injustice to Y and Mrs X:
• Y – lack of the required support at school, which increased his anxiety and affected his school attendance, delay in deciding whether a mainstream school is the right placement for him;
• Mrs X – frustration with the process, negative effect on her work life in view of Y’s decreased school attendance, time and trouble taken for chasing the Council and complaining. Delay in issuing Y’s final EHCP following the re-assessment also meant the delay in resolving possible disagreements regarding the content and placement through an appeal to the Tribunal.
38. After our recent investigation of another complaint we have made recommendations to the Council to provide us with its plan to improve compliance with the EHCP timescales. I have, therefore, not made any recommendations about this.

Advice sought during the EHC needs re-assessment

39. In its response to our enquiries the Council said Mrs X did not specifically request an OT assessment during the re-assessment process.
40. The available evidence and in particular Mrs X’s correspondence with the Council from the beginning of May 2022 and the end of July 2022 contradict the Council’s claim.
41. When deciding what advice should be obtained for the EHC needs re-assessment the Council should cooperate with the parents. As explained under paragraph 13 of this decision the Council does not have to carry out an assessment requested by the parents if it considers it would not be reasonable to do so. There is, however, no evidence the Council considered and applied this test to the parental request for an OT assessment. In fact the Council denied all knowledge of such request. This is fault.
42. The Council’s fault caused Mrs X injustice. She did not have clarity on the Council’s position on the OT assessment. Mrs X told me if she had known the Council would refuse Y’s OT assessment, she would have sought a private OT advice.

Annual Review

43. The Council failed to comply with its duties regarding Y’s Annual Review which should have taken place by the end of April 2022. As explained under paragraphs 31 to 33 of this decision the Council has certain duties and an overarching responsibility for the EHCP reviews even if meetings are arranged by schools/academies. The Council’s failure to comply with its duties to ensure the Annual Review was carried out for Y is fault.
44. The Council’s failing meant Y missed out on:
• monitoring of his progress towards his outcomes;
• review of the appropriateness of his outcomes and supporting targets;
• review of the effectiveness of the special educational provisions in ensuring access to teaching and learning.

This caused injustice to him and his parents.

Communication with parents

45. Records of the communication between Mrs X and the Council show the inconsistency of the Council’s responses and in many cases lack of any contact following Mrs X’s enquiries and complaints. This is fault.
46. Injustice caused to Mrs X by the Council’s failings when communicating with her:
• Mrs X’s frustration and lack of clarity;
• Time and trouble spent on multiple communications and complaints;
• Delays with undertaking next steps and achieving resolutions.

Complaints process

47. The Council’s policy defines a complaint as an expression of dissatisfaction with the Council that requires resolution. This was clearly the content of Mrs X’s communication with the Council in mid-June. The Council’s failing to consider it as a formal complaint because it was addressed to the member of the Council’s leadership team was fault.
48. The Council should have responded to Mrs X’s complaint within 20 working days, so should have done it by mid-July. At the end of July, following Mrs X’s further communication, it decided to deal with Mrs X’s complaint of mid-June in line with its corporate complaints procedure. It took the Council further seven weeks to provide its stage one response. The overall delay, therefore, amounted to nine weeks. This is fault.
49. I found fault with the Council for its failure to act to remedy its failings acknowledged during the complaint process:
• In its stage one response the Council mentioned Y was not allocated an EHC Coordinator due to the processing error. A month later in the Council’s letter with stage two complaint response Mrs X received the contact details of a special educational needs and disability (SEND) Casework Manager because an EHC Coordinator was still not allocated;
• In its stage two response the Council stated Y’s EP advice was prepared and it would issue the draft EHCP without a delay. Three months later Mrs X still have not received this draft.
50. The Council’s faults within the complaint process increased Mrs X frustration. She had to spend more time contacting the Council and complaining. Because of the Council’s failure to act to make up for the admitted failings, Mrs X’s confidence in the Council was further undermined.

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Agreed action

51. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
• apologise to Mrs X and Y for the injustice caused to them by the faults identified;
• pay Mrs X £200 a month to recognise the negative impact of the delays within the process of Y’s needs re-assessment. The total the Council should pay is £1000 for the period of seven months from the mid-June 2022 till the mid-January 2023, excluding two months for summer holidays, the autumn half-term and the Christmas break;
• pay Mrs X £500 to recognise the distress caused to her by the Council’s failing within its complaint process and to communicate with her effectively.

The Council will provide the evidence that this has happened.

52. To remedy the injustice caused by the Council’s delays and lack of consideration of Mrs X’s OT assessment request, we recommend the Council complete within two weeks of the final decision the following:
• Issue and send Mrs X Y’s draft EHCP following the re-assessment of his needs;
• Consider Mrs X’s request for an OT assessment of Y’s physical and sensory needs. This should not delay issuing Y’s draft and final EHCP.

The Council will provide the evidence that this has happened.

53. We also recommend the Council within three months of the final decision:
• Consider the improvement in monitoring Annual Reviews arranged at schools by sending to the headteachers/principals lists of all children/young people, whose EHCP review should take place in the coming term, two weeks before the start of this term;
• Remind the front-line SEN staff of the details of the Council’s corporate complaints policy and in particular what constitutes a complaint, which should be passed to the complaints team and responded in line with the Council’s policy.

The Council will provide the evidence that this has happened.

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Final decision

54. I uphold Mrs X’s complaint about the Council’s failure to follow the timescales for issuing Y’s EHCP after his EHC needs re-assessment and adequately communicate with her throughout the process. The Council accepted my recommendations so this investigation is now at an end.

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Investigator's decision on behalf of the Ombudsman