Summary: Mr C complained that the Council, in respect of his son D’s special educational needs, had delayed in obtaining relevant assessments and amending the EHCP for an excessive period of time. We found fault with the Council’s actions. The Council has agreed to pay Mr C £400 and to ensure its annual review procedure includes guidance to schools on making clear and quantifiable recommendations.

The complaint

1. Mr C complained that the London Borough of Hammersmith and Fulham (the Council) in respect of his son, D:
• delayed in obtaining an educational psychology assessment report following the annual review on 5 May 2021;
• denied it had been agreed to obtain an educational psychologist reassessment at, or following, the annual review;
• delayed in obtaining the educational assessment report after it had agreed to do so in October 2021;
• delayed in issuing an amended Education, Health and Care Plan (EHCP) since it first said it was going to do so in August 2021;
• failed to send a formal confirmation that it was going to amend the EHCP; and
• once again agreed to amend D’s EHCP in January 2023, despite not issuing an amended EHCP after the previous annual review.
2. This ongoing delay has caused significant distress, inconvenience and time and trouble to Mr C and means D has missed out on much-needed support and an up-to-date EHCP.

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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 have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mr C 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

Special educational needs

6. A child with special educational needs may have an 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
7. We can consider the other sections of an EHCP. We do this by checking the Council followed the correct process, and took account of all relevant information, in deciding what to include. If we find fault affected the outcome, we may ask the Council to reconsider. We will not usually substitute our judgement for the judgement of professionals.
8. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.

Reviewing an EHCP

9. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHCP.
10. Where a council proposes to amend an EHCP, the law says 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.
11. The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”.
12. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHCP as soon as practicable and within eight weeks of the date it sent the EHCP and proposed amendments to the parents.
13. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHCP. The right of appeal is only engaged when the final amended plan is issued.

Council complaints procedure

14. The Council operates a two stage corporate complaints procedure. It says it will respond to complaints at stage one within 15 working days and stage two, within 20 working days.

What happened

15. Mr C’s son D has some medical conditions including autism spectrum disorder and has special educational needs. His EHCP from 2020 included six, half hour sessions of speech and language therapy per term and six sessions a year of occupational therapy. The EHCP referred to an educational psychology report from 2017.

Annual Review: May 2021

16. The school arranged an annual review of D’s EHCP in May 2021. The Council did not attend. Mr C provided two private reports from a behaviour specialist and a physiotherapist. The behaviour specialist said:

“It is vital that [D], his parents and teachers receive professional support on a regular basis from clinical and educational psychologist, who would work with [D], his parents and teachers on planning and teaching him pivotal skills”.

17. The physiotherapist recommended regular physiotherapy input but did not quantify the provision. Mr C requested an educational psychology assessment.
18. The school sent its annual review report to the Council on 23 June 2021. It said in section B: ‘Identifying any changes to my education, health and care needs’ that it would be helpful for D to get further guidance from the educational psychologist [EP] and the autism outreach specialist. It recommended changes to sections A, B and E of the EHCP but did not recommend any changes to D’s provision in section F.
19. Mr C contacted the Council in early August 2021 to find out what was happening with D’s EHCP. The Council replied by email saying it intended to amend the EHCP and a new caseworker would be in touch shortly.
20. On 14 September 2021 Mr C’s wife, Mrs C chased the Council again. The Council spoke to Mrs C by telephone and then sent an email saying:

“As per conversation I will be contacting the EP team for a reassessment of D’s EHCP and needs as you feel that his needs have…become ASD centric and that his needs have increased as per independent physio report.

I will update his EHCP when [we] have the full EP report with all the new recommendations.”

21. In response to my enquiries the Council said that the officer during the telephone call with Mrs C, apologised for the lack of contact following the annual review, explained that an EP does not normally carry out an assessment of physiotherapy needs and advised Mrs C to go to her GP for a physiotherapy assessment. The Council said Mrs C did not want the EHCP amended until the EP assessment had been done.
22. The Council spoke to the school special educational needs co-ordinator (SENCO) who said she was unaware of the request for an EP assessment at the annual review. She did not feel D needed an EP assessment but possibly a referral to the autism outreach service. The Council and the SENCO agreed that D needed an OT assessment.
23. Mrs C emailed the Council on 27 September 2021 following a conversation with the SENCO. Mrs C was unhappy that the SENCO had told her that neither the school nor the Council would be getting an EP assessment.
24. In early October 2021 the Council contacted the SENCO to confirm the occupational therapist (OT) would assess D after half-term and queried whether he needed a physiotherapy assessment as well. Mr C chased the Council again for the amended EHCP.
25. The Council replied on 19 October 2021 apologising again for the lack of contact since the annual review and confirming that the EHCP would be amended in line with the recommendations in the annual review report. It said an EP report/assessment was not requested at every annual review, an OT assessment would be done after half-term and then the EHCP would be amended after this. It offered as an alternative to amend the EHCP straightaway and then make any further amendments once the OT report was received.
26. Mr C replied saying that the EP and physiotherapy assessments had been recommended by the private therapists and requested by him and Mrs C at the annual review. He said they were vital for D’s progress, and he wanted them done. He agreed to the OT assessment before the EHCP was amended.
27. Mr C chased up the Council on 1 November 2021. The Council offered a meeting with the Council and the school, but Mr C declined and complained about the delay and lack of action in progressing the assessments.
28. The Council replied to Mr C saying that it only knew about the request for an EP assessment in October 2021. Mr C challenged this straightaway saying that the EP assessment had been recommended in the annual review report received by the Council in June 2021. He said he would send the relevant reports to the Council.
29. The OT carried out an assessment and delivered her report on 15 November 2021. The OT said to the Council that they had advised Mrs C to go to her GP for a physiotherapy referral. Mr C complained about the lack of OT sessions D had received the previous year (three rather than six).
30. On 26 November 2021 the Council said it had been in touch with the EP service to see what support it could provide to the school. It had also taken some steps to progress a physiotherapy assessment. It asked Mr C to provide the reports he had previously promised. The Council contacted the SENCO to see if the school could provide some EP support from its funded hours.
31. Mr C informed the Council that D had been in hospital for an operation, and he had experienced some upsetting events while there.
32. The school replied at the end of January 2022 that it was not going to use its funded EP hours to assess D, as other children were a priority. The Council informed Mr C it would put a funding request for the EP assessment to its Panel on 3 March 2022. It suggested holding another annual review. Mr C complained about the continuing delays in obtaining an EP assessment and amending D’s EHCP. He did not want to start another annual review while the previous year’s remained outstanding.
33. The Council said to Mr C that it was going ahead with the EP and physiotherapy assessments. It apologised again for the delay. The Council contacted the EP service to obtain a time-frame for the assessment. It said it considered D’s needs had changed following the traumatic hospitalisation during December 2021 and his overall presentation both physically and cognitively was different. It confirmed again it was going ahead with the physiotherapy assessment as well. It said:

“This has been going back and forth for a while. It was not entirely clear what was being requested at the beginning but as this has been escalated to [X] we have agreed these actions.”

34. The SENCO tried to refer D to the physiotherapy service but it said the referral had to come from a healthcare professional.
35. The EP met D for the assessment on 17 March 2022. The EP sent her report to the Council and Mr C on 5 May 2022. It made recommendations for school staff in the classroom along with annual support to staff from an EP. The EP explained to Mr C that she had not recommended direct input from an EP and that was not something EPs normally did, but she would carry out termly reviews.

Formal complaint

36. Mr C first complained on 4 April 2022. The Council attempted local resolution until 30 May 2022 when it formally registered Mr C’s complaint.
37. The Council responded at stage one of its procedure on 30 June 2022. It said it received the annual review report from the school on 23 June 2021 and the report did not specifically request an EP assessment. The Council acknowledged Mr C had requested one and that he had provided private therapeutic reports. The Council had considered these as part of the review but neither contained quantifiable provision which could be included in the EHCP. The Council advised Mr C to go to a GP regarding the physiotherapy referral. It partially upheld the complaint about delay in obtaining the EP assessment but noted one had now been done.
38. It upheld Mr C’s complaint about the lack of OT sessions, despite its best endeavours and committed to the new OT working with D now to meet his needs.
39. Mr C escalated his complaint in early July 2022 saying he was unhappy that D was not receiving any EP support in school and receiving inadequate OT support. The Council responded that due to COVID19 and a shortage of specialist staff, D had only received five OT sessions in the 2020/21 academic year. Despite this he achieved his goals. He had received eight sessions in the current academic year with two more scheduled. By the next annual review D would have received 10 sessions over a 12 month period on top of the five in 2020/21.
40. The Council says the stage 2 request was unclear and Mr C had been sending a high volume of emails in the intervening periods. Its complaints team clarified his complaint with him on 25 October 2022 and responded in full in November 2022. It said that the request for an EP assessment was not in the annual review paperwork and only came to light following correspondence with Mr C in October 2021. It accepted there was a delay of seven months in getting the EP assessment but recommended that Mr C take part in the dispute resolution framework facilitated by an independent mediator with Mr C, the Council and the school.
41. In November 2022 Mr C disputed that the Council only knew about the EP assessment request in October 2021, referring to the Council’s email of 14 September 2021 where it confirmed it would get an EP assessment and then changed its mind by 27 September 2021 saying it did not need one.
42. The school held another annual review in December 2022 with reports from OT, SALT and a paediatrician. It identified changes to sections A, B,C and E but the provision in section F remained the same.
43. The Council sent a further stage two complaint response on 9 December 2022 in response to Mr C’s concerns about the first stage two response. It acknowledged there had been confusion and delay in respect of the EP assessment and this should had been achieved through the annual review process. It said the school should have clearly recommended an EP assessment in the annual review report and it was providing training to the school on this issue. It apologised for the delay in the process. It recommended a dispute resolution chaired by an independent mediator to resolve matters.
44. The Council confirmed to Mr C in January 2023 that it was going to amend D’s EHCP and sent a draft EHCP to Mr C on 2 March 2023. The provision in section F remained the same.
45. Mr C complained to us.

Council response to my enquiries.

46. In response to my enquiries, the Council agreed there was a delay in the annual review process. It said the school delayed in sending the paperwork and then the caseworker on D’s case was on long-term sick leave for eight weeks. It explained this period was during the COVID19 pandemic which exacerbated staffing levels and pressures in schools and the Council. It accepted it did not chase the school quickly enough for the paperwork. It explained it had integrated the annual review process with its SEN case management system and improved management oversight. It was now proactively managing the annual review process with schools and had created an annual review co-ordinator role to assist this process.
47. It also agreed it had delayed in notifying Mr C of its intention to amend D’s EHCP and the delay was unreasonable. It apologised again to Mr C.
48. However it noted that the recent draft amended EHCP did not contain any material changes to the provision for D and it did not consider the delay had affected D adversely. It said that in retrospect it had not been clear enough with Mr C about the Council’s statutory responsibilities and the management of his case had not struck the right balance between a parent-centred approach and the statutory framework. It considered the email sent by the Council to Mr C on 14 September 2021 was an error which created confusion for everyone on the EP assessment. It maintained that the case for an EP reassessment had not been made in the annal review paperwork.

Analysis

Annual Review

49. I agree with the Council that it should have proactively chased the school for the annual review paperwork. The school took approximately six weeks to send the paperwork to the Council. This was too long and was fault. I welcome the changes the Council has made to its processes, which will hopefully prevent this fault recurring in the future.

EP assessment

50. The Council has acknowledged latterly that it did not respond in a balanced or coherent manner to the issue of the EP assessment. I agree that its approach lacked authority and created confusion for many months. The annual review report was not clear in its view on the EP assessment. It did not make a specific recommendation to obtain an EP assessment but mentioned guidance from an EP would be helpful. This was confusing and it should have been resolved within the annual review meeting as to whether an EP assessment was necessary. If the Council had acted on the annual review report sooner, it could have clarified this issue with the school. Hopefully its work with schools on the annual review process will improve this process for the future.
51. By the time the new caseworker took over the case they exacerbated the confusion by saying on 14 September 2021 they would get an EP assessment then changing their mind by 27 September 2021 after speaking to the school SENCO. This caused uncertainty and frustration for Mr C who was relying on the information from the behaviour specialist and the annual review report. The Council should have decided on the basis of the evidence, whether it needed to obtain an EP assessment then explained its decision with reasoning to Mr C. It could then have amended and finalised the EHCP and provided Mr C with a right of appeal if he wished to pursue the issue further. The failure to do so was fault which caused Mr C confusion and distress over many months.
52. This drift and delay continued for another six months while the Council vacillated over the issue of whether to get an EP assessment as well as how to pay for it. This was fault which caused distress to Mr C.
53. There was a similarly confusing approach to the matter of a physiotherapy assessment. The Council on September 2021 confused the roles of the EP, OT and physiotherapy and failed to make clear in writing to Mr and Mrs C that they needed to approach D’s GP for a referral to physiotherapy. There is evidence that the school SENCO advised Mrs C to do this, but then attempted to do the referral herself in early 2022. At this point the physiotherapy service clarified the referral had to come from a healthcare professional. The Council in response to my enquiries produced a chronology showing it had a telephone conversation with Mrs C explaining this point. The Council did not provide this information in writing until its stage one complaint response nine months after the issue first arose. This was fault which caused injustice to Mr C.

Delay in amending EHCP

54. The Council has acknowledged it delayed in acting on the annual review report. Mr C had to chase the matter on several occasions and did not get an initial response until August 2021 when the Council confirmed it would be amending the EHCP. It did not confirm this by letter until 19 October 2021, over five months after the annual review. This delay was excessive and was fault which caused Mr C distress and uncertainty as to whether his son was missing out on support at school.
55. The delay continued while the Council debated whether or not to get further assessments as described in paragraphs 49 to 52 above. I accept that Mr and Mrs C contributed to the delay by agreeing to the EHCP amendments being postponed until the EP and OT assessments were obtained, but I consider the major cause of the delay was the Council’s indecisiveness. If it had made a clear decision in September 2021 to either pursue an EP assessment or not, it could then have amended the EHCP once the OT assessment had been done in mid- November 2021. Instead, the EHCP was only amended in March 2023 after a further annual review and without the input of Mr and Mrs C who had lost faith in the process by this point. This was fault which caused further distress and uncertainty to Mr C.

Complaint-handling

56. The Council took over 12 weeks to respond to Mr C’s stage one complaint, nine weeks outside its target of 15 working days. I accept some of this period was taken up with informal resolution, but it still took too long. This was fault.
57. It also delayed in responding to the stage two complaint, taking approximately three months against a target of 20 working days. The stage two complaint also failed to acknowledge that the Council was aware of the request for the EP assessment in the annual review paperwork. This was further fault causing Mr C frustration and time and trouble in having to respond with the correct information.

Injustice

58. I note that the recent draft EHCP does not have any additional provision in sections F or G and the EP explained to Mr and Mrs C why she was not recommending direct EP interventions for D. So, I have not concluded D missed out on any support due to the delay. If Mr C disagrees with the conclusion on the EP support, he can pursue his right of appeal once the EHCP is finalised.
59. I also note the Council ensured D received extra OT sessions to make up for those he missed in 2020/21, so no further action is necessary.
60. I have concluded that Mr C was caused significant distress and inconvenience by the fault identified above and time and trouble in pursuing the complaint with us.

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Agreed action

61. In recognition of the injustice caused to Mr C, I recommend the Council within one month of the date of my final decision:
• pays Mr C £400 (£200 for distress/uncertainty and £200 for time and trouble)
• confirms that the improvements to its annual review procedure includes guidance to schools in ensuring clarity in the annual review reports and quantifiable recommendations, based on the available evidence.
62. The Council has agreed to my recommendations and should provide us with evidence it has complied with the above actions.

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Final decision

63. I consider this is a proportionate way of putting right the injustice caused to Mr C and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman