Summary: the Council delayed completing an annual review for an education, health and care plan and in producing the final plan, failed to ensure some elements of provision in the plan were put in place, failed to consider a request for a speech and language therapy assessment and failed, on occasion, to respond to Mrs B’s contact until she chased the Council. An apology, payment to Mrs B, reimbursement of the amount she paid for her own speech and language therapy assessment and arrangement for the outstanding provisions to be put into place is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mrs B, complained the Council:
• delayed getting an educational psychology report and then asked the educational psychologist to change the report;
• delayed completing an annual review of her daughter’s education, health and care plan (EHCP) due in 2021;
• failed to ensure the school provided details of her daughter’s progress before the annual review in January 2022;
• failed to tell Mrs B she had the right to request a particular school;
• delayed producing a draft and final EHCP;
• failed to put in place various elements of provision within the timescales set out in the EHCP;
• failed to secure a speech and language therapy assessment which meant she had to pay for one herself; and
• communicated with her poorly.
2. Mrs B says the Council’s failures caused her to have to spend a significant amount of time pursuing the Council and her complaint and led to her daughter missing out on provision.

Back to top

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)
5. 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

How I considered this complaint

6. As part of the investigation, I have:
• considered the complaint and Mrs B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
7. Mrs B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

The special educational needs code of practice

8. The special educational needs code of practice (code of practice) says EHCP’s must be reviewed by the local authority as a minimum every 12 months. The first review must be held within 12 months of the date when the EHCP 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).
9. Where the local authority proposes to amend an EHCP 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 child’s parent or the young person should be informed they may request a meeting with the local authority to discuss the proposed changes.
10. Following representations from the child’s parent or the young person, if the local authority decides to continue to make amendments, it must issue the amended EHCP as quickly as possible and within 8 weeks of the original amendment notice. If the local authority decides not to make the amendments, it must notify the child’s parent or the young person, explaining why, within the same time limit.
11. If parents or young people want it to, mediation can take place following decisions by a local authority not to carry out a needs assessment, not to draw up an EHCP, after they receive a final EHCP or amended plan, following a decision not to amend an EHCP or a decision to cease to maintain an EHCP.

What happened

12. Mrs B’s daughter has special educational needs and has an EHCP. The Council reviewed that EHCP on 16 December 2020 and issued an amended EHCP. Mrs B appealed to tribunal, following which the Council issued a further final amended EHCP on 20 December 2021.
13. The school arranged and held an annual review for the EHCP on 25 January 2022. At the review Mrs B requested an updated speech and language therapy assessment for her daughter. The Council received a copy of the notes from the review meeting which included the request for an updated speech and language therapy report.
14. The Council wrote to Mrs B on 4 March to tell her it would issue an amended EHCP.
15. Mrs B chased the Council for progress on the EHCP in March 2022. At the same time Mrs B chased the Council about missing assessments. On 15 March the Council told Mrs B it was working on amendments to the EHCP and had begun the process of seeking an occupational therapist to carry out an assessment as well as someone to complete an ICT assessment.
16. The Council issued a draft EHCP on 18 March. The Council then met with Mrs B on 5 April to discuss the proposed amendments. During that meeting the Council completed a referral for an occupational therapy assessment.
17. Mrs B put in a complaint at the end of April 2022.
18. The occupational therapy provider the Council had approached told the Council at the beginning of May 2022 it could not accept the referral due to staff capacity.
19. The Council issued an amended EHCP on 10 May. Mrs B asked for some amendments and the Council issued a further EHCP on 27 May. That was followed by a further amended EHCP on 21 June and a final EHCP on 6 July. However, as Mrs B was not happy with the final EHCP the Council subsequently amended it and issued a further final plan in September 2022 after mediation.
20. The Council contacted providers for the ICT assessment and occupational therapy assessment in July 2022. The Council also made a referral to the inclusion facilitator.
21. The Council wrote to Mrs B about her complaint on 2 August and apologised the outstanding assessments had not taken place. The Council explained the difficulties it was having sourcing suitable providers. The Council told Mrs B it had arranged for an ICT assessment at the start of the new academic year. The Council also apologised for the delay completing the EHCP and said it had completed the referral for the inclusion facilitator. The Council told Mrs B due to the delays it would ensure her daughter received priority for that referral. The Council offered Mrs B £400 to reflect the delays.
22. The Council contacted Mrs B again in August to tell her it had arranged a remote assessment by an occupational therapist. Mrs B told the Council she was not happy with that and she contacted the organisation which had told the Council it did not have capacity earlier in the year. That organisation confirmed to Mrs B it now had capacity and Mrs B asked the Council to make another referral, which it did.
23. The Council says the occupational therapy process has now started, a visit for the ICT assessment has been arranged (although Mrs B says she is not aware of any arrangement) and arrangements are being made for a visit from the inclusion facilitator as soon as possible. For the one day assertiveness training the Council says it is reviewing with the education psychology service to understand where that can be commissioned from.
24. I understand while this complaint has been ongoing the Council has commissioned an independent review of its special educational needs services and taken action and committed to further action as a result of the review. I understand that includes more stringent monitoring processes to ensure EHCPs are kept updated and provision met.

Analysis

25. Mrs B says the Council delayed obtaining an educational psychologist report and then asked the educational psychologist to change the report. I have not seen any evidence of delay seeking the educational psychologist report. Nor have I found any evidence to suggest the educational psychologist amended the report at the request of the Council. Rather, the evidence I have seen suggests the educational psychologist initially provided comments by email but then completed a more detailed report when he became aware the information was to be used to draw up Mrs B’s daughter’s EHCP.
26. Mrs B says the Council delayed completing the annual review in 2021. The evidence I have seen satisfies me the Council completed the 2020 annual review on 16 December 2020. According to the code of practice the Council should therefore have carried out a further annual review in December 2021. However, the Council did not carry out the review until January 2022. That is outside the 12 months referred to in the code of practice and is therefore fault. However, I note the situation was complicated in this case by the fact Mrs B had appealed the 2020 EHCP. That appeal did not complete until late in 2021 which meant the Council did not issue the final EHCP following tribunal until 20 December 2021, which is after the review was due. I consider the Council would have needed to issue the final EHCP following tribunal before carrying out a review because the review would be reviewing the content of the final EHCP. So, while it was fault not to hold the review within 12 months I do not consider it likely that resulted in a significant injustice given the Council would have had to wait for the production of the final EHCP in any event and the Christmas period would have then delayed matters further.
27. Mrs B says the Council failed to provide details of her daughter’s progress before the annual review meeting in January 2022. The evidence I have seen satisfies me the school arranged the review meeting in January 2022. Given that, plus the fact it was the school’s responsibility to produce the report for the annual review, I have no grounds to criticise the Council. The Ombudsman does not have jurisdiction over the actions of the school.
28. Mrs B says the Council failed to tell her she had the right to request a particular school to be named in her daughter’s EHCP. The evidence I have seen satisfies me each time the Council sent Mrs B a draft EHCP this included a form for Mrs B to complete. That form included a section for Mrs B to complete details of her preferred education setting. I am therefore satisfied the Council properly advised Mrs B.
29. Mrs B says the Council delayed producing a final EHCP following the annual review in January 2022. I set out in paragraph 10 the timescales the Council must adhere to when completing the annual review process. That makes clear the Council has 12 weeks from the point at which the annual review takes place to confirm it will amend the EHCP and to complete those amendments. As the Council did not issue a final EHCP until July 2022 the Council failed to adhere to those timescales. That is fault. I recognise part of the reason for the delay was because the Council was seeking to amend the plan so all parties were happy with it. I recognise the Council’s intention was to ensure the final plan reflected what Mrs B wanted written. However, that is not a reason to fail to comply with the statutory timescales. Failure to comply with statutory timescales is fault and meant Mrs B’s daughter missed out on some special educational needs provision as the final EHCP was delayed and contained some new provision.
30. The Council accepts it failed to comply with the timescales in the EHCP for completing an occupational therapy assessment, an ICT assessment and for assertiveness training. The Council has referred to difficulties identifying a suitable provider in each case. I understand the difficulties the Council has experienced. Nevertheless, the Council retains responsibility for ensuring the provision in the EHCP is in place. Failure to do that for the occupational therapy assessment, ICT assessment assertiveness training is therefore fault.
31. For the delay referring to an inclusion facilitator though, I am satisfied the EHCP made clear the referral should have taken place by the end of July 2022. I am satisfied the Council made the referral by the end of July 2022. There was therefore no fault by the Council in making the referral. However, the evidence I have seen satisfies me the Council told Mrs B the inclusion facilitator would prioritise her daughter’s case rather than adding her to the waiting list due to the delays that had already occurred. It is clear this did not happen. Raising Mrs B’s expectations is fault.
32. Mrs B says the Council verbally agreed an updated speech and language therapy assessment was required for her daughter during the annual review in December 2020 but then failed to arrange an assessment. Mrs B says because of that she had to fund her own assessment and believes the Council should refund her for the costs involved. Having considered the documentary evidence I have not found any evidence to suggest the Council agreed to carry out a speech and language therapy assessment during the December 2020 annual review. However, the documentary records show Mrs B requested a speech and language therapy assessment during the 2020 review. There is some confusion about whether a Council officer attended that review meeting. In any event, I am satisfied the Council received a copy of the minutes of the annual review meeting and I would have expected it to consider whether to commission a speech and language therapy assessment. I have seen no evidence to suggest the Council considered that request. That is fault. I consider it likely, on the balance of probability, if the Council had properly considered the request it would have arranged for a new speech and language therapy assessment given the now updated EHCP includes some provision as a result of the assessment Mrs B paid for.
33. Mrs B says the Council communicated with her poorly. Having considered the documentary evidence from January 2022 onwards I can see there were occasions when Mrs B had to chase the Council for responses to her contacts, which is fault.
34. I am satisfied delays by the Council have caused Mrs B to have to go to time and trouble to pursue her complaint and led to her paying for a speech and language therapy assessment. I am also satisfied delays producing the EHCP have led to Mrs B’s daughter missing out on some provision. Those delays are disappointing as they are issues which have been identified in other special educational needs complaints against the Council, including a previous complaint submitted by Mrs B. I welcome the fact though the Council has carried out an independent review of its special educational needs services and as a result of that has introduced some changes to address issues such as those that have occurred in this case. As remedy I recommended the Council reimburse Mrs B for the cost of the speech and language therapy report, which I understand is £420, apologise to Mrs B and pay her £600. I further recommended the Council ensure the outstanding assessments and training are arranged and that it liaise with the inclusion facilitator to expedite the referral for Mrs B’s daughter. The Council has agreed to my recommendations.

Back to top

Recommended action

35. Within one month of my decision the Council should:
• apologise to Mrs B;
• pay Mrs B £600;
• reimburse Mrs B for the cost of the speech and language therapy report she paid for, which I understand is £420.
36. Within two months of my decision the Council should:
• arrange for the occupational therapy assessments to take place/confirm they have taken place;
• arrange for the ICT assessment to take place/confirm it has taken place;
• arrange the one day assertiveness training;
• confirm it has expedited the visit from the inclusion facilitator; and
• provide evidence of the action it has taken following the independent review of its special educational needs services where it is relevant to the issues raised in this complaint.

Back to top

Final decision

37. I have completed my investigation and uphold the complaint.

Back to top

Investigator's decision on behalf of the Ombudsman