Summary: We have upheld a complaint from Mrs X, that the Council did not properly consider requests she made that it should seek specialist advice as part of an education, health and care (EHC) needs assessment for her daughter. It also delayed in issuing an EHC plan. These faults caused uncertainty for Mrs X and delayed her ability to appeal the EHC plan which later succeeded, thereby causing her a further injustice. The Council accepts these findings. At the end of this statement, we set out the action it has agreed to remedy this injustice.

The complaint

1. I have called the complainant Mrs X. She complains there were flaws in how the Council carried out an education, health and care needs assessment for her daughter, ‘Y’. In particular, Mrs X says the Council:

• did not seek enough specialist advice as part of the assessment; she had to obtain her own reports from a speech and language therapist and occupational therapist;
• did not undertake an adequate education psychology assessment;
• delayed in producing Y’s education, care and health (EHC) plan;
• delayed in putting in place funding to support Y’s EHC plan.

2. Mrs X has also raised complaints about the content of the EHC plan, which she appealed. Mrs X considers the appeal was unnecessary. She is unhappy with the conduct of the Council while waiting for the appeal. Mrs X says it waited many months, until near the date of the appeal hearing, before agreeing changes to the EHC plan which Mrs X asked for.
3. Mrs X says these faults have caused her distress and she should not have had to pay for the specialist reports. She says Y has also missed out on support with her special education needs because of the delay in completing the EHC plan.

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What I have and have not investigated

4. I have investigated those parts of the complaint summarised in paragraph 1 above. I have not investigated those parts of the complaint summarised at paragraph 2. I explain my reasons below in that part of my findings headed ‘the Ombudsman’s jurisdiction’.

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The Ombudsman’s role and powers

5. 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)
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. 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)
8. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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)

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How I considered this complaint

10. Before issuing this decision statement I considered:

• Mrs X’s written complaint to the Ombudsman and any supporting information she provided;
• correspondence between Mrs X and the Council about the matters forming the complaint, pre-dating our investigation;
• information provided by the Council in response to my written enquiries;
• any relevant law, Government guidance or Council policy referred to below;
• relevant guidance published by this office including the Ombudsman’s guidance on remedies.

11. I also gave Mrs X and the Council opportunity to comment on a draft version of this decision statement. I took account of any comments they made before finalising the statement.
12. Under an 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

Legal and administrative background

13. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and arrangements to meet them
14. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for undertaking EHC assessments and producing EHC plans. The guidance supplements 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 decide within six weeks whether to agree to the assessment;
• it must carry out “in a timely manner” the assessment of needs and developing the EHC plan;
• the time between the request for an assessment and issue of the final EHC should be 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 EHC plan

15. 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;
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and
• any other advice and information the council considers appropriate for a satisfactory assessment.

16. The Council is responsible for putting in place the arrangements set out in the EHC plan. We can look at complaints that allege a council has failed to provide the support set out in an EHC plan or about delays in the process.
17. A parent can appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC plan or about the content of the final EHC plan. Parents only have appeal rights where a council decides whether or not to assess, issue or amend an EHC plan and once it has sent the parent a final EHC plan. In other words they cannot appeal, until the Council makes its decision on these matters.
18. The courts have said that if someone has appealed to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).

Key facts

19. In January 2021 Mrs X asked the Council to carry out an education, care and health needs assessment for Y. The Council agreed to do so in mid-February.
20. When Mrs X learnt of the Council’s decision to assess Y, she asked if it would seek advice from an occupational therapist. She considered Y needed a specialist assessment in this area. Similarly, she asked if the Council would seek advice from a speech and language therapist.
21. The Council replied saying that it did not routinely carry out such assessments. But it said that parents could self-refer for speech and language therapy to a combined therapeutic service run by a local NHS trust. It also told Mrs X that Y’s school could request an occupational therapy assessment from the same combined therapeutic service.
22. Mrs X was unhappy with this reply. So, she asked again if the Council would seek advice from these services. This time she also asked if the Council would commission advice from a clinical psychologist and an assessment to see if Y has ADHD (attention deficit hyperactivity disorder). In support of her requests Mrs X said:

• Y’s sibling had ADHD and so she wanted this explored;
• that an assessment from a NHS clinic which had found Y had autism had suggested Mrs X and her husband might benefit from psychological support for management of Y’s behaviour at home;
• that Y had a private education psychology report in May 2019 which found she had “clinically significant” mental health issues and issues with sensory processing, language and communication;
• that Y had a social worker who had already referred her for occupational therapy support;
• that a privately commissioned report from a specialist adviser teacher (2019) had also drawn attention to “a high level of dysfunction associated with hyper-visual processing and hypo-auditory processing”.
• a privately commissioned diagnostic assessment report from a clinical psychologist recommended Y needed a sensory assessment.

23. In March 2021 Mrs X escalated her request by making a complaint to the Council.
24. In the same month, the Council referred Y’s case to an educational psychologist for advice. As part of their assessment, they met with Y via video link. They prepared advice and circulated this at the end of the month. Mrs X then commented on the advice and the psychologist agreed to amend their report in places, also providing a reply to Mrs X’s comments. The Council took account of the amended advice when drawing up Y’s EHC plan.
25. In April 2021 the Council replied to Mrs X’s complaint. It said that it had contacted the NHS therapeutic services and would respond to any advice it gave. Also, that it was for health professionals (such as Y’s GP) to decide if Y needed any specialist health assessments. It noted that Y’s social worker had recently (January 2021) referred Y to CAMHS (children and adolescent mental health services). CAMHS had decided Y did not meet its criteria for support.
26. Soon afterwards the Council received confirmation from local NHS therapeutic services that Y’s case was not open to it. She had received past support from an occupational therapist and a speech and language therapist, but not since 2018. Mrs X comments that this is because the service does not provide an ongoing provision.
27. In April 2021 the Council confirmed it would issue an EHC plan for Y. It circulated a first draft of the plan in mid-May. It also issued a revised draft version of the EHC plan in June, following initial comments from Mrs X.
28. In July 2021, the Council gave a final reply to Mrs X’s complaint. In its response the Council again defended the approach it had taken to Mrs X’s requests for specialist advice. It told Mrs X it had given her details of NHS therapeutic services and she had chosen not to access these. It repeated its view that it was for health professionals to commission any specialist health assessments Y needed.
29. In response to comments Mrs X made about its education psychology assessment, the Council said it would consider adding more detail to Y’s EHC plan, then still at draft stage. It also said this applied to the 2019 NHS assessments, Mrs X wanted appending to the plan. The Council apologised for delay in considering Mrs X’s comments on the draft EHC plan, caused by the assessment officer’s unexpected absence from work. The Council said it had now assigned Y’s case to a different officer.
30. The Council issued two further draft versions of Y’s EHC plan in July 2021 and a further draft in August. It issued these in response to comments and further information presented by Mrs X. This included recent occupational therapy and speech and language therapy reports she had commissioned.
31. On the Council records is a document headed ‘higher needs funding placement notification’, which identified that Y’s school should receive more funding to meet her needs from September 2021. Then, in January 2022, the Council received a request from Y’s school for more funding to meet Y’s needs. The Council agreed this the following month.
32. In March 2022 Mrs X complained to this office that:

• the Council had not commissioned the specialist advice / assessments she asked for;
• that it had not taken all appropriate advice into account when drawing up the final EHC plan; and
• that it had delayed in issuing the final EHC plan.

33. We took the view we could not investigate Mrs X’s complaint then, because she had an outstanding appeal to the SEND tribunal. As a result, we could not consider any complaint about the content of the plan. We also said we could not come to a view on the impact of any delay on Y’s plan before the SEND Tribunal gave its decision.
34. The SEND tribunal heard Mrs X’s appeal in November 2022 and gave its decision the following month. Before it heard the appeal Mrs X and the Council agreed on some outstanding matters of dispute. Following the hearing the tribunal ordered amendments to Y’s EHC plan in several places including Section B (which describes her special educational needs), Section D (covering Y’s social care needs) and Section F (describing the provision she should receive).

My findings

The Ombudsman’s jurisdiction

35. The term jurisdiction refers to our legal powers to conduct an investigation. There are two potential barriers to an investigation in this case. The first is the passage of time, as Mrs X’s complaint concerns some matters going back to spring 2021. The second is that of Mrs X’s appeal to the SEND tribunal heard in December 2022 and the extent to which it impacts our ability to investigate this complaint.
36. On the first point, I do not consider time should prevent us investigating Mrs X’s complaint. Because while the complaint concerns matters dating back to spring 2021, there was no delay by Mrs X in making us aware of her complaint. She first asked us to investigate in March 2022. We took the view that we could not reach a sound decision on her complaint in advance of the SEND tribunal. Mrs X made her further complaint to us soon after the tribunal made its ruling and after giving chance to the Council to reply, which it declined. While part of the complaint are late therefore, there are clearly special reasons which justify investigation.
37. However, I cannot investigate those parts of the complaint which engage with Mrs X’s appeal to the SEND tribunal. Specifically, I am unable to comment on the necessity of Mrs X having to pursue her appeal. If I considered the adequacy of Y’s final ECH plan when issued in September 2021, then I would be making comments about the merits of that document. It is not our role to do that, as it is for the SEND tribunal to consider if an EHC plan adequately meets a child’s needs where a parent contests this.
38. I also cannot come to a view on the conduct of the Council while Mrs X waited for the SEND tribunal hearing. I recognise her frustration the Council agreed some changes to Y’s EHC plan only shortly before the hearing. But any changes to the EHC plan accepted by the Council, were in direct response to Mrs X’s request for changes contained in her appeal. So, at the point the changes were made Mrs X had already begun using the ‘alternative remedy’ of appeal to the SEND tribunal. We have no power to investigate the same matters raised by someone in their appeal to a tribunal, even if those matters were not aired in the tribunal hearing.

On the substance

39. Turning to those parts of the complaint I can investigate, summarised in paragraph 1, I have considered first the extent of advice sought by the Council during Y’s EHC needs assessment. As paragraph 16 explains, the Council is not under an obligation to agree to obtain specialist advice because a parent requests it to. While it must obtain some specialist advice in all cases, this does not apply to the four pieces of specific advice (or specialist assessments) Mrs X requested. Instead, the Council had to consider the ‘reasonableness’ of Mrs X’s request.
40. The Council did not do this sufficiently. It did take account of some relevant factors when considering Mrs X’s requests. I consider it was relevant for it to consult local NHS therapeutic services and check the records of that organisation to see if those provided grounds to agree to Mrs X’s request. Likewise, it was relevant for it to refer to CAMHS’ recent decision not to accept a referral to support Y. So, I find no fault in the Council referring to these matters in choosing to decline Mrs X’s request.
41. But fault lay in the Council not also considering the supporting evidence provided by Mrs X in making her requests. Mrs X made specific reference to privately commissioned assessments of Y that were more recent than any help she received from local therapeutic services. I consider those of the education psychologist and a specialist teacher, together with the assessment of a clinical psychologist were all particularly relevant. Because all advanced reasons why Y might benefit from further assessment and input from speech and language or occupational therapists. I consider it was fault that there is no record the Council engaged with this evidence in making its decision.
42. I cannot say that if it had, the Council would necessarily have come to a different decision and agreed to the requests for further advice that Mrs X requested. In particular, I do not think Mrs X provided similar quality evidence to support her requests for a clinical psychology and ADHD assessment.
43. I note the private assessments Mrs X later obtained contained information which directly informed Y’s EHC plan. But I do not consider these show that the Council should have known Y needed those assessments in spring 2021. This would be to find the Council should have taken account of information it could not possess at the time of its decision.
44. However, the failure to consider relevant evidence at the relevant time still casts a shadow over the Council’s decision to refuse to obtain further advice. It creates uncertainty about whether, had it made a proper decision, the Council would have given the same response. We consider uncertainty as a form of injustice. Flowing from this is also the associated uncertainty that Mrs X may not have gone on to commission her own private occupational therapy and speech and language reports.
45. I also note by referring Mrs X to the NHS therapeutic service the Council gave the impression that it was for Mrs X to self-refer for advice. I make no criticism of the Council signposting parents to sources of potential advice for their own benefit. However, this cannot be a substitute for the Council making its own considered decision on whether it needs advice as part of the education, health and care needs assessment. I stop short of making a separate finding of fault on this point, as it will not add anything to the finding above, but the Council should be careful not to conflate these matters.
46. I make no finding of fault in respect of the education psychology assessment the Council commissioned. I find no reason to say it was not comprehensive nor fit for purpose in informing Y’s EHC plan. Mrs X had the chance to comment specifically on the advice and the Council shared her comments with the education psychologist. They revised their specialist report accordingly. I recognise Mrs X did not get all she asked for from those revisions. But to the extent the content of the report then informed the content of the EHC plan, it would not be for me to comment on the education psychologist’s professional opinion. Because this would be a matter for appeal to the SEND tribunal.
47. Turning to the question of delay, the facts show it took the Council 37 weeks to produce Y’s EHC plan against the statutory timescale of 20 weeks. I recognise the cause of some of this delay lay in Mrs X producing more material which led to revised drafts. Also, the originally assigned assessment officer became absent from work at a key time. But these factors cannot mitigate against a finding of fault for the delay.
48. However, they are relevant when considering Mrs X’s and Y’s subsequent injustice. Because it is arguable the delays worked to some extent to Y’s advantage. The final EHC plan produced in September 2021 was closer to what Mrs X wanted in that it contained more specialist advice and recommendations. But even so, it still fell short of what she wanted in total and so Mrs X went on to appeal. The delay therefore impacted on Mrs X’s ability to appeal and the denial of that right, for around four months was an injustice.
49. If the appeal had been heard sooner, then it follows that Y would have had the amended EHC plan ordered by the SEND Tribunal sooner also. This will have had some negative impact on her education for that period therefore.
50. Finally, in considering Mrs X’s complaint about funding of Y’s placement, the September 2021 final EHC plan envisaged Y receiving additional support in school from a key member of staff. I accept the record is unclear about when additional funding went into place to support this. If it is the case the Council did not provide funding before February 2022 then that could justify a finding of fault.
51. However, I do not find Mrs X has provided any evidence that Y’s education suffered between October 2021 and February 2022 because of any lag in funding. I have checked with the Council and it has no record of Mrs X raising this as a concern at the time. Consequently, I cannot make a finding that any fault here caused Y injustice.

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Agreed action

Personal remedy

52. The Council accepts the findings set out above. It has agreed that to remedy the injustice caused to Mrs X and Y that it will, within 20 working days of this decision, do the following:
1. provide an apology to Mrs X in line with our published guidance on remedies;
2. make a symbolic payment to Mrs X of £1000; £500 of this is to reflect the uncertainty that arises from the Council’s handling of her requests for specialist advice (or assessments) and £500 is to reflect the consequences of the delay in issuing Y’s final EHC plan.
53. I have decided it would not be proportionate to ask the Council to recompense Mrs X for the costs of the privately commissioned reports that went on to inform Y’s EHC plan. I accept that had the Council agreed Mrs X’s request to commission those reports she would not have done so. But as I explained above I cannot say that even after a proper consideration of her request, the Council was obliged to do so. Also, Mrs X had the route of asking the SEND Tribunal to require the Council to commission the specialist reports as an alternative to self-funding them. Something, she could have chosen to do as part of an appeal.

Service improvement

54. The Council has also agreed that within three months of this decision it will issue advice to all relevant staff dealing with EHC assessments that when it receives requests for specialist advice, it must consider those on their merits. It must engage with the reasons put forward by the parent for requesting this and any supporting evidence they provide in support of such a request.
55. The recommended advice referred to above can be given in writing or in person at a staff briefing or incorporated into any planned training. But we will require evidence from the Council that it has been given, along with evidence showing it has provided Mrs X’s personal remedy.

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Final decision

56. For reasons set out above I uphold this complaint finding fault by the Council causing injustice to Mrs X and to Y. The Council accepts these findings and has agreed action to remedy that injustice and improve services in the future. Consequently, I can now complete my investigation satisfied with its response.

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Investigator's decision on behalf of the Ombudsman