Summary: Mrs X complained about the Council’s decision to reassess her daughter for an Education Health and Care Plan (EHCP) and its delay in completing this. She also complained about missed provision and the new final EHCP. We found the Council at fault for its delay and its failure to arrange provision. We recommended the Council provide an apology, pay £300 for distress, pay £4790 for missed provision and act to improve its record keeping. We are satisfied with actions already taken to prevent delay in future.

The complaint

1. Mrs X complains:
• The Council has not provided psychological therapy as required under her daughter, Y’s, Education Health and Care Plan (“EHCP”) since 23 November 2021;
• The Council has not provided Speech and Language Therapy (“SALT”) as required under her daughter’s Education Health and Care Plan since January 2022;
• about the Council’s April 2022 decision to reassess Y’s needs;
• about the Council’s delay in completing the reassessment;
• about the content of the EHCP issued in August 2022.

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What I have and have not investigated

2. I have investigated the complaints above excepting the complaint about the EHCP issued in August 2022. This is because I do not have jurisdiction to investigate as Mrs X appealed to the SEND Tribunal.

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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. 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, section 34(3), as amended)
5. 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)
6. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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.
8. 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

9. I spoke to Mrs X and I reviewed documents provided by Mrs X and the Council.
10. I gave Mrs X and the Council an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Jurisdiction

11. The courts have confirmed that we cannot investigate a decision where it has been or could reasonably be appealed to a tribunal. We also cannot consider the consequences of that decision. (Local Government Act 1974, section 26(6)(a), R v the Commissioner for Local Administration ex parte PH, 1999); R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407).

EHCP annual reviews

12. Councils should review an EHCP at least every 12 months.
13. A council can ask the school to hold the review meeting.
14. The council must be invited to the meeting however it is not required to attend unless specifically requested.

EHCP reassessment

15. A council may decide to initiate a re-assessment without a request if it thinks one is necessary.
16. Re-assessments must follow the same process as for the first EHC needs Assessment, with the same timescales and rights of appeal.
17. A council should:
• gather relevant information.
• send a draft EHCP to the parent.
• give the child’s parent 15 calendar days to consider and provide views on a draft EHCP and ask for a particular school or other institution to be named in it.
• consult with any school before naming it in the EHCP.
• issue the final EHCP and notify the parent of their right to appeal.
18. The overall maximum timescale for a re-assessment is 14 weeks from the decision to re-assess to the issuing of the final EHCP.

What happened

19. Y started secondary school in September 2021.
20. Y’s EHCP, in effect from October 2021, included:
• 1 hour weekly Speech and Language Therapy (“SALT”) and
• 1 hour weekly psychological therapy.
21. Mrs X says a psychological therapist was not available from 23 November 2021 and the Council did not find a replacement. SALT was not available from January 2022 and the Council did not find a replacement.
22. Y’s school held an annual review meeting in March 2022.
23. On 27 April the Council told Mrs X it had decided to reassess Y for an EHCP.
24. On 8 August Mrs X complained the 14 week timeframe to complete the reassessment had passed.
25. On 26 August the Council issued a final EHCP to Mrs X. The cover letter explained it had issued this now to comply with timescales. However, it would give Mrs X 15 days to make any comments and suggested amendments for it to consider.
26. The final EHCP did not include any SALT or psychological therapy sessions.
27. The Council provided a complaint response on 31 August. It said:
• It had been trying to secure a psychologist. Those contacted to date could not meet Y’s needs or had long waiting lists. It had kept her updated.
• It apologised for the delay in reassessment and had now issued a final EHCP.
28. Mrs X complained further on 1 September:
• It did not look for therapists until April.
• One provider was identified but the Council failed to follow this up.
• It did not issue a draft EHCP as it should have.
• She was unhappy with the content of the final EHCP including the removal of therapies.
• She asked why the Council did not attend the annual review.
• She questioned the Council’s decision to reassess given the review found no change in Y’s provision.
29. Mrs X added on 26 September that she considered the Council’s comments with professionals was inappropriate and she queries why it removed provision in the final EHCP.
30. The Council provided its final response on 10 October. In summary it said:
• The stage 1 response addressed her concerns.
• It apologised for the lack of psychological therapy and offered compensation of £2800; £100 per missed session.
• It noted Mrs X was unhappy with the final EHCP but the Tribunal would address this through her appeal.
• It finalised the EHCP as soon as possible and explained in the cover letter why it had done so.
• It could not attend all annual reviews.
• Officers contacted professionals appropriately for clarification.
• She could contact the Ombudsman if she remained unhappy.
31. In response to enquiries the Council said:
• Its offer of £100 per missed psychological therapy session was based on the cost per session as per quotes it received. 29 sessions were missed from 23 November 2021 to the end of term in summer 2022 so it offered £2900 in compensation.
• It tried to secure SALT. Two sessions were provided in May 2022 but that provider could not continue. Mrs X suggested she would wait until another provider was free in September but later changed her mind. She then said would send the Council details of another provider. 21 SALT sessions were missed from January 2022 to the end of term in summer 2022. It was willing to offer compensation of £1890 based on the cost of £90 per session.
• In response to the request for contemporaneous records of its decision to reassess; the officer who made the decision was no longer employed and it could not access the record of the decision they made. However, it could provide information following discussions with current officers who were actively involved in the decision to reassess as follows.
• The Annual Review paperwork showed Y was making good progress against her outcomes. Out of a total of 22 outcomes, the school recommended to remove 8 as achieved. Due to this positive progress, it considered it necessary to secure a reassessment to determine Y’s current needs, the provision she required and the outcomes she should be working towards. It was also considered necessary taking into account her transfer to secondary school in September 2021.
• It did not receive responses from professional within the required timescales but Mrs X agreed for it to progress without these. There were then internal delays. It is aware of its duties and is working on improving timescales with oversight from the Commissioner.
• In addition to offering payment for missed therapy sessions it proposes offering a written apology, payment for distress and payment for time and trouble.
32. In comments on my draft decision Mrs X queried the Council’s decision to reassess. She referred to annual review documents showing Y had only achieved one EHCP outcome, yet the Council said she had achieved 8 outcomes.
33. In response the Council explained it based its decision on the annotated EHCP which was sent with the annual review report. This detailed that 8 outcomes should be removed.

Findings

34. We expect councils to keep records of their decision making and to be able to provide copies if requested. The lack of available contemporaneous records of the Council’s decision to reassess Y for an EHCP is fault. I cannot say this caused significant injustice to Mrs X but I will make a recommendation to prevent injustice to others in future.
35. The Council has explained its decision to reassess with reference to the information available and in line with statutory guidance. I find no fault in the Council’s decision making and I cannot otherwise question its judgement. I acknowledge Mrs X has a differing view to the Council as to the number of outcomes Y had achieved. However, the Council has explained its decision with reference to the information relied on. I cannot find fault simply because Mrs X disagrees with its view.
36. The Council did not follow the reassessment process correctly as it did not issue a draft EHCP to Mrs X for comments. This is fault. Mrs X lost the opportunity to comment before the Council finalised the ECHP and suffered distress. This is injustice. I will recommend a remedy for Mrs X. I am satisfied the Council is aware it did not act in accordance with the statutory process and so I will not make a service improvement recommendation.
37. The Council did not complete the reassessment in time, as it issued a final EHCP one month late. This is fault. Mrs X suffered uncertainty and a delayed right to appeal. This is injustice. I will recommend a remedy for Mrs X. I am satisfied the Council is aware of the statutory timescales and is already taking action to improve its services to meet them. Therefore, I will not make a service improvement recommendation.
38. The Council did not ensure Y received psychological therapy as required by her October 2021 EHCP as it should have, from 23 November 2021 to 26 August 2022 (term time only). This is fault. Y missed provision. This is injustice. The Council has offered to pay the cost of the missed sessions to allow Mrs X to arrange catch up provision. I am satisfied this remedies the injustice.
39. The Council did not ensure Y received SALT as required by her October 2021 EHCP as it should have, from January 2022 to 26 August 2022 (term time only). This is fault. Y missed provision. This is injustice. The Council has offered to pay the cost of the missed sessions to allow Mrs X to arrange catch up provision. I am satisfied this remedies the injustice.
40. On the information seen, I do not consider Mrs X was put to time and trouble during the complaints process above and beyond that to be expected from any complaint. The Council addressed the complaint at each stage within a reasonable timeframe. I find no fault and therefore I will not recommend a time and trouble payment.

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Agreed action

41. To remedy the injustice set out above I recommend the Council carry out the following actions:
42. Within one month:
• Provide Mrs X with a written apology;
• Pay Mrs X £300 for distress and uncertainty;
• Pay Mrs X £2900 for missed psychological therapy;
• Pay Mrs X £1890 for missed SALT; and
43. Within three months:
• Take action to ensure the Council can access the casework records of staff working in the SEN department, even after they have left employment with the Council.
44. The Council should provide us with evidence it has complied with the above actions.
45. The Council has accepted my recommendations.

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Final decision

46. I find the Council at fault for delay in Y’s EHCP reassessment and for not meeting Y’s EHCP provision. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman