Summary: Miss X complained about delays throughout the Education, Health, Care Needs assessment process for her son, and the Council did not seek appropriate advice to inform the assessment of his needs. We found fault with the Council with significant delays, with poor communication, and some fault with what advice it obtained. This caused uncertainty, frustration and distress for Miss X and her son, and he missed out on extra support for his needs. The Council has agreed to our recommendations to remedy the injustice and to take action to prevent recurrence of fault.

The complaint

1. Miss X complains about the Council’s handling of the Education, Health, Care Plan (“EHCP”) process for her son, (“B”), specifically:
1. Prolonged delays and not appropriately asking advice of professionals for the needs assessment,
2. The issuing of a final EHCP significantly outside of statutory timelines,
3. Poor communication with her throughout and failing to respond in a timely manner, including to her complaints.
2. Miss X says this has caused considerable stress, uncertainty, and frustration. She has been financially affected as she has sought the help of a representative because of these issues. She says her son has missed out on getting the help and support that he needs.

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What I have and have not investigated

3. I have investigated the period from December 2021 (when Miss X made the Education, Health, Care Needs Assessment request) to December 2022 (when B’s final EHCP was issued).
4. Since Miss X complained to us, she has raised additional ongoing concerns with further delays in EHCP processes with an annual review. Whilst linked, these are new issues which have not been considered by the Council and Miss X will need to complain to it about. This is because we expect councils to have the opportunity to respond to complaints before we consider them. Once Miss X has completed the complaints procedure, she may complain to us.
5. In Paragraph 20, I have referenced events before the above period for background and context.

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The Ombudsman’s role and powers

6. 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)
7. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
8. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5))
9. 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)
10. 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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How I considered this complaint

11. I discussed the complaint with Ms Y, Miss X’s representative, who is dealing with the complaint on her behalf, and considered her views.
12. I made enquiries of the Council and considered its written responses and information it provided.
13. I considered the SEND Regulations 2014, and the SEN Code of Practice 2015.
14. Ms Y and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and administrative background

Education, Health and Care Plans (EHCPs)

15. A child with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
16. 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 EHCPs. 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 EHCPs “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 EHCP 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 EHCP.
17. As part of the assessment councils must gather advice from relevant professionals (SEND Regulation 6(1)). 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; and
• advice and information from any person requested by the parent or young person, where the council considers it reasonable.
18. Those consulted have a maximum of six weeks to provide the advice.
19. Parents have a right of appeal to the SEND Tribunal. This is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.

Background

20. I had seen paperwork for an Education, Health, Care Needs Assessment (“EHCNA”) request dated July 2021. Ms Y, Miss X’s representative, said to me the school had helped make this request. It was not clear what happened with it and there was no outcome. Ms Y said Miss X looked for support elsewhere, and this is when Ms Y got involved. She helped Miss X with the second request in December 2021, which was formally considered by the Council.

What happened

21. I have summarised below the key relevant events. This is not intended to be a detailed account of every communication or everything that happened.
22. In December 2021, Miss X made an EHCNA request for her son, B.
23. In August 2022, Miss X made a formal complaint to the Council about:
• Significant delays in the Council completing B’s EHCNA in breach of statutory timelines; and
• It had not obtained the correct advice needed for the assessment.
24. In September, the Council responded. It accepted fault for the delays, apologised for poor communication, and upheld this part. It did not uphold her complaint about it not seeking correct advice. It said it had followed the SEN Code of Practice, but it noted there were delays with getting the Council’s Educational Psychologist (EP) report. The Council said it would send a draft EHCP to her by October.
25. The following are relevant events and additional concerns Miss X raised during the course of the year, through communication and complaint responses:
• In February 2022, the Council sent a request to social care for advice. It received a response, “the child is not known to social care”. The Council referred to this in its complaint response to Miss X in September. It said there was no social care provision required to support his special educational needs.
• In March, Miss X formally requested further advice and information as part of B’s EHCNA. The Council responded three weeks later, it did not agree to private assessment from an independent EP. With physiotherapy, Speech and Language Therapy (“SALT”) or Occupational Therapy (“OT”), it recognised he may have needs in each and would seek advice from local NHS therapy services.
• In May, Miss X said the Council EP had assessed B in November 2021 but she did not receive the report until April 2022. She raised concerns with the EP report, disagreed with its contents, and asked for an independent EP report. The Council acknowledged she disputed the content. But in its view, it was sufficient to be used towards B’s assessment, after factual errors were corrected and some minor amendments. As B had been already assessed by the Council’s EP, it did not consider her request to be reasonable, so would not seek a private or alternative EP assessment.
• In June, Miss X raised concerns to the Council as it had agreed to seek advice for SALT and OT but she had still not been contacted by the NHS therapy services. She said the school had also not been contacted for its input for B’s EHCNA.
• In July, the Council confirmed B had been considered for OT assessment. Based on the information on his needs, no significant OT need had been identified and so there would not be a further OT assessment. It said a SALT practitioner had been allocated to B for assessment. It said the school’s EHCNA request paperwork constituted their advice for the process.
• In September, within the Council’s first complaint response, it said there was no evidence of need for physiotherapy for B so no advice was required.
• In late September, the Council received advice from the SALT after chasing it up. A draft EHCP was sent to Miss X.
• In October, Miss X acknowledged receipt of the draft EHCP. She said B had been referred to an OT programme with weekly sessions so wanted the Council to seek advice from them.
26. In October, Miss X escalated her complaint to Stage Two. The Council’s position remained the same. It offered £750 as a result of the delays to B’s EHCNA. It said it followed LGSCO’s published Guidance on Remedies (“GOR”) for this. It said a payment for distress was usually between £100 - £300, sometimes up to £1,000 was justified. It felt this was a generous offer to remedy.
27. At the end of November 2022, Miss X complained to us. She added concerns about the Council’s complaint handling as it had delayed in sending her a Stage Two response. Two weeks later, the Council issued its Stage Two response to Miss X.
28. In response to my enquiries, the Council said it received advice from the OT programme B was attending. It said it did not include it in the final EHCP as it did not have a registered or named OT on it.

Analysis

Advice sought

29. As outlined in Paragraph 17, advice from the following is statutorily required for an EHCNA: the child’s school, health professionals involved with the child, an EP, and social care. I address each of these in turn below:

School

30. Miss X said B’s school had not been contacted for input towards B’s EHCNA. The Council said it was the school’s EHCNA request paperwork which constituted the advice towards it. The school filled in an earlier EHCNA request in July 2021. It was Miss X who completed the later December 2021 request with no school input, which the Council accepted. She says the school’s information should not have been used as it was not up to date. It is not my role to say whether the earlier information from the school’s request was appropriate to be included. In the Council’s Stage Two response, it said the school’s information was detailed and appropriate to be used towards the EHCP. However, the Council did not acknowledge or make a distinction between the two different requests here which confused matters. It should have considered and explained this clearly. This is fault.

Physiotherapy

31. I have seen Miss X’s EHCNA form which said B received physio treatment once every three months, so there was current involvement in this area with a health professional. I note her form did not include the contact details of an involved physiotherapist, with no report attached. Despite this, on balance, the Council should have followed up and consulted for advice in relation to physiotherapy. This is fault.

EP

32. I understand Miss X was unhappy with the EP report. It is not my role to determine if it was accurate or sufficient. The Council considered her comments, corrected the factual errors, and believed it appropriate to be used to inform B’s EHCNA. In its Stage Two response, it considered the SEN Code of Practice and said all parties do not have to be in agreement for advice used. It said where dispute arises, the proper process for managing this is at SEND Tribunal, after a final EHCP is issued. This is satisfactory and I do not find fault with the Council for this. Miss X had a right of appeal if she was unhappy with the content of B’s EHCP.

Social care

33. The Council should have done more for social care advice. Miss X attached an Early Help assessment from 2018 to her EHCNA request to the Council, so the response the Council received from social care was not sufficient. It should have followed up further on this. This is fault.

OT

34. In addition to the above, advice must be sought from any person requested by the parent, where the council considers it reasonable. Miss X requested the Council seek advice from OT. It was the professional opinion of the NHS therapy services that there was insufficient evidence of OT need to warrant further assessment, based on information within the EHCNA request. The Council considered this response and explained why it would not take the OT request further. It took into account relevant information, and it was a decision it was entitled to make. I do not find fault with the Council for this.
35. I am unable to say the faults above for the lack of follow-up of advice in certain areas (Physiotherapy and social care) would have made a difference to the final EHCP. Any dispute with the content of it would be for the SEND Tribunal to decide if Miss X wished to appeal.

Delays

36. Miss X requested an EHCNA on 21 December 2021. If a council decides to issue an EHCP, it must send the final plan by 20 weeks, which would have been 10 May. The final EHCP was not issued until 15 December. The overall process took 51 weeks, which is a delay of about 31 weeks. This is a significant delay outside of statutory timelines.
37. The Council acknowledged unacceptable delays, recognised the EP report was late, and noted there was a failure from some of its services to expedite their work, seek advice, and ensure waiting times were minimal. I note the Council agreed for a SALT assessment of B’s needs in July which wasn’t received until September. It also agreed in October to seek advice from B’s OT programme he was attending through school. This was at a very late stage, far past the 20 week deadline of May when the final EHCP should have been issued.
38. On balance, I understand there was dialogue and ongoing disagreements between Miss X and the Council regarding these requests and this contributed to the overall delay in issuing a final EHCP. If the Council had issued it in a timely manner, and there were still disagreements about the content of the Plan, Miss X could have used her right of appeal sooner. This significant delay is fault. This is injustice as her appeal rights were frustrated for longer than they should have.
39. These delays also caused injustice to B as Miss X had to wait substantially longer than necessary to receive a final EHCP which would have enabled provision to be put in place for his needs sooner. This impacted B as he missed out on extra support he would’ve been entitled to between May and December 2022.

Communication and Complaint Handling

40. The Council’s complaint policy says, at both of its stages, it would provide a response within 20 working days. Miss X’s Stage One complaint was responded to in 24 days, and her Stage Two was responded to in 46 working days. There was around a month’s delay at Stage Two. This is fault and Miss X felt frustrated she could not move forward in the complaints process in a timely manner.
41. The Council said it would keep her informed of the progress of the advice sought for the EHCNA. I have seen evidence of Miss X having to chase the Council for updates. The Council did acknowledge its contact with her could have been better. It said its actions should have been clearly communicated to her and for its service to be more responsive. This poor communication is fault, causing frustration for Miss X.

Remedy

42. Since the Council’s response to my enquiries, the LGSCO’s GOR has been updated. Within this, it normally recommends a remedy payment for distress of up to £500. I note the Council’s offer of £750 is higher and is sufficient to recognise the injustice of distress and would also cover the uncertainty and frustration caused to Miss X and B.
43. Whilst this payment acknowledging distress is welcomed, the Council has not considered a remedy for B’s lost provision as a result of the delays with the EHCP. Taking into consideration our GOR, I recommended a symbolic payment to recognise this below.
44. I understand Miss X has said she has been financially affected as she has paid money towards using a representative. However, our recommended payments are symbolic, not purely financial. It is not our role to assess economic losses or award compensation.

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Agreed action

45. To remedy the injustice outlined above, the Council has agreed to carry out the following actions:
46. Within one month of the final decision:
• Apologise to Miss X for the significant delays she and B experienced in the EHC needs assessment process, poor communication and delay in the complaints process;
• Pay Miss X £750 for the distress, uncertainty and frustration and caused to her and B by the delay,
• Pay Miss X £1,350 in recognition of missed provision for B between May and December 2022 (around a term and a half) caused by the delay in issuing a final EHCP. This is calculated at £900 per term. This can be used for B’s educational benefit; and
• Pay Miss X £150 to recognise the injustice from her delayed appeal rights.
47. Within three months of the final decision:
• Review its processes to ensure relevant staff are reminded to keeps parents appropriately informed as to the progress of EHC needs assessments; and
• Review its processes to ensure it issues final EHCPs within statutory timescales and minimises delays, sending guidance to appropriate staff members.
48. The Council should provide us with evidence it has complied with the above actions.

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Final decision

49. I found fault with the Council which caused injustice to Miss X and B. The Council has agreed with my recommendations to remedy this, and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman