Summary: Mr X complained about the Council’s actions when he asked it to refer his son, D, for an assessment for autism. The Council was not the body responsible for making this decision. However, the Council was at fault because it did not consider a request from Mr X for an Education Health and Care needs assessment for D. This caused avoidable distress to the family, for which the Council agreed to apologise and pay a financial remedy. It will also consider Mr X’s request for an Education Health and Care needs assessment for D without delay and issue guidance to its staff.

The complaint

1. Mr X complains the Council refused to refer his child, D, for a diagnostic assessment for autism when both he and D’s school asked it to in 2022. Instead, the Council said Mr X would need to complete a parenting course and seek an assessment for D from the NHS. Mr X says this could have delayed his child in accessing support they need, and the family has been caused avoidable distress, time, and trouble. He wants the Council to repay him for the cost of a private assessment and make a financial payment to the family for the distress and inconvenience caused.

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What I have and have not investigated

2. I have only investigated the actions of the Council. We cannot investigate the actions of the NHS, or the process by which NHS decisions were made. Mr X can complain about this to the relevant NHS service if he wishes to do so. If he is not satisfied with its response, he may then complain to the Parliamentary and Health Service Ombudsman (PHSO), which is the body responsible for handling complaints about the NHS.

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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. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of the NHS. (Local Government Act 1974, sections 25 and 34A, as amended)
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. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
6. 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

7. I considered:
• information provided by Mr X and discussed the complaint with him;
• documentation and comments from the Council;
• relevant law and guidance; and
• the Ombudsman’s Guidance on Jurisdiction and Guidance on Remedies.
8. Mr X and 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

Special educational needs law and guidance

10. A child with special educational needs (SEN) may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them.
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:
1. a child’s parent or school has the right to ask a local authority to carry out an EHC needs assessment;
2. where a council receives a request for an EHC needs assessment it must:
1. tell the child’s parent it is considering whether an EHC needs assessment is necessary and consult them about this;
2. consider the views, wishes and feelings of the child and their parent;
3. arrange for the family to be provided with advice and information relevant to the child’s SEN; and
4. notify the family of its decision about whether it agrees to carry out the EHC needs assessment, and its reasons for this, within six weeks of receiving the request for assessment. If it agrees, this means it considers “it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan”.
3. the First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about SEN. There is a right of appeal to the Tribunal against a council’s decision not to carry out an EHC needs assessment. This appeal right is only engaged once a decision not to assess has been made and sent to the family.

The ASD/ADHD Pathway for Children in Peterborough

12. The local NHS service has an ‘ASD/ADHD pathway’. This sets out its process for referrals to its specialist service, for assessment of Autism Spectrum Disorder (ASD) and Attention Deficit Hyperactivity Disorder (ADHD). The policy says:
• before a child is referred to the service, the child and family should have received support from the Council’s ‘Early Help’ service. The Early Help service provides early intervention to tackle problems and issues emerging for children, young people and their families;
• the process begins with an Early Help Assessment (EHA), completed by a ‘lead professional’ working with the family. The lead professional is most likely to be the child’s school or school nurse but may also be a youth worker or health care professional;
• the EHA is then considered by a Council-administered Early Help panel meeting called the Multi Agency Support Group (MASG). The panel decides what support should be provided by Early Help, which may include access to an evidence-based parenting programme; and
• following support from Early Help, if further support is needed, the lead professional should refer the family to the most appropriate service. This may be a referral to request an assessment through the NHS specialist service, and completion of a parenting programme can be considered as evidence of the need for this assessment. However, not all children who start on the pathway will have an assessment. The lead professional may decide Early Help support is enough to reduce the concerns or resolve the problems. They may also decide not to refer to the service because the behaviours causing concern may not be attributed to a possible underlying neurodevelopmental disorder.
13. The Council has clarified the NHS local service is the lead body for this policy. The Council does not make decisions under this policy about whether children should be referred for diagnostic assessments for autism. It only provides:
• a means of gathering information via an Early Help Assessment; and
• access to evidence-based parenting programmes which may be considered by the NHS as evidence of the need for a neurodevelopmental assessment.

Background

14. In April 2022, Mr X approached D’s GP to ask them to refer D for an assessment for autism. The GP told Mr X he should instead ask D’s primary school. Mr X raised this with the school, and it began an Early Help Assessment (EHA), as described at paragraph 12. A member of staff at the school acted as the ‘lead professional’ for the EHA.
15. The Council accepted D’s case for discussion at its Early Help Multi Agency Support Group (MASG) in July 2022, attended by school staff and Council Early Help staff. The Council decided to offer support by granting D’s parents access to an online evidence-based parenting programme.
16. Mr X complained to the Council that he wanted it to refer D for “an assessment for SENs/ autism” and did not think he should have to complete a parenting programme first. The Council asked the NHS to consider the information provided by D’s school in its Early Help Assessment and asked if D could access a neurodevelopmental assessment without Mr X completing the parenting programme. The NHS said it did not consider D met the criteria for an appointment with its specialist service based on the information in the Early Help Assessment alone.
17. The Council issued its final complaint response in September 2022. It told Mr X the NHS local service was the body responsible for providing neurodevelopmental assessments and it could not provide the result he was seeking. It told Mr X to complain to the NHS about this instead. The MASG closed D’s case at a ten-week review meeting because of Mr X’s refusal to complete the parenting programme.
18. Mr X then came to the Ombudsman. Three weeks later, he told the Council he had completed the parenting programme, which he still had access to. He asked it to now refer D for an assessment for ASD and ADHD. The Council again explained it did not act as a direct referrer into the NHS specialist service for ASD or ADHD assessments. It told Mr X its role in the process was to provide access to parenting programmes to support these referrals via the Early Help Assessment process. It directed Mr X back to the lead professional at D’s school to seek a referral.

My findings

Mr X’s request for an autism assessment for D

19. The Council told Mr X it was not the body responsible for providing neurodevelopmental assessments and it could not make such a referral for him. This information was correct. If Mr X wants to complain about the ASD/ADHD pathway process, he needs to complain to the local NHS service. If he is not satisfied with its response, he may then complain to the Parliamentary and Health Service Ombudsman (PHSO), which is the body responsible for handling complaints about the NHS. The Local Government and Social Care Ombudsman (LGSCO) cannot consider complaints about the NHS.
20. I can only consider the actions of the Council. I am satisfied the Council acted without fault in its involvement in the ASD/ADHD pathway process because it:
• gave Mr X correct information about how the pathway worked and what its role was within it;
• followed the correct process in its consideration of the Early Help Assessment from D’s school. It offered support and granted access to a parenting programme, in line with its remit; and
• asked the NHS local service, as the lead body on the pathway, whether it could exercise discretion in D’s case. It decided it could not.

Education, Health and Care needs assessment

21. The Council said it gave no consideration to whether it should carry out an EHC needs assessment, as described at paragraph 11. It said based on its communications with D’s school, and the Early Help Assessment completed by the school, it did not think it needed to. I am satisfied D’s school did not provide any information which the Council should have considered as a request for an EHC needs assessment.
22. However, when Mr X complained to the Council, he said he wanted it to “proceed with [D’s] referral for an assessment for SENs/ autism”. As described at paragraph 11a, a child’s parent also has the right to request an EHC needs assessment from the Council. Given Mr X had specifically referred to “an assessment for SENs”, my view is the Council should have treated this as a request for an EHC needs assessment. The onus should not be on parents to navigate Council processes and know which specific team to contact. Mr X’s request should have been passed to the appropriate team to consider. The Council also received later complaint correspondence from Mr X in which he specifically said he did not think D’s needs were being met in school. It still did not consider whether he was asking for an EHC needs assessment.
23. The Council’s failure to consider whether it should carry out an EHC needs assessment for D when Mr X asked it to, was fault. My view is the Council should now consider Mr X’s request for an EHC needs assessment. I cannot say, even on the balance of probabilities, what would have happened if the Council had considered this at the time. The Council may have decided it should not carry out an EHC needs assessment, or its consideration could have resulted in D receiving SEN provision as part of an EHC plan. I consider there remains uncertainty for the family about what may have happened if the Council had acted without fault. The Council should remedy the avoidable distress caused to the family by this uncertainty.

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Agreed action

24. Within one month of our final decision the Council will:
1. apologise to the family for the fault identified;
2. consider and respond to Mr X’s request for an EHC needs assessment for D, without delay; and
3. pay Mr X £150 to recognise the distress caused to the family by the remaining uncertainty about whether D may have missed SEN provision he needed because the Council did not consider Mr X’s request for an EHC needs assessment.
25. Within three months of our final decision the Council will:
1. issue guidance to relevant staff about the Council’s statutory duties to consider whether it should assess EHC needs when asked to by a child’s parent. This should make clear that requests received outside the SEN service should be passed to the SEN service for consideration and response within the required statutory timescales; and
2. share a copy of our final decision with those same relevant staff.
26. The Council should provide us with evidence it has complied with the above actions.

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Final decision

27. I have completed my investigation. There was fault by the Council which caused distress to the family. The Council agreed to our recommendations to remedy this injustice, and issue guidance to its staff.

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Investigator's decision on behalf of the Ombudsman