Summary: The complainant (Ms X) said the Council had delayed her son’s (Y) Education Health and Care needs assessment following the Special Educational Needs Tribunal order and failed to follow the right process during this assessment. We cannot investigate the quality of the professional advice obtained during Y’s needs assessment. We found fault with the Council for the delays in making its decision not to issue an Education Health and Care Plan for Y and for not obtaining all professional advice needed. We also found fault in the way the Council dealt with Ms X’s complaint. This fault caused injustice to Y and Ms X. The Council agreed to apologise, make payments to Ms X and obtain Speech and Language advice for Y. The Council also agreed to review its process of getting professional advice as part of a needs assessment for children who are electively home educated and provide some training to its staff dealing with the complaints.

The complaint

1. Ms X complains about the Council’s failings during an Education Health and Care (EHC) needs assessment for Y following the Special Educational Needs and Disabilities (SEND) Tribunal order in August 2022. Ms X says the Council’s failings affected Y’s education as they delayed putting in place support he needed. They caused her, she says, distress as she had to take responsibility for making educational arrangements for Y in the form of tutoring. Ms X would like the Council to refund her full or part of the tutoring fees.

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The Ombudsman’s role and powers

2. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (Local Government Act 1974, section 26(6)(a), as amended)
4. 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.
5. The courts have established that if someone has appealed to the Tribunal, we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
6. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example delays in the process before an appeal right started.
7. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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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What I have and have not investigated

10. I cannot investigate the Council’s decision of December 2022 not to issue an EHC Plan for Y as Ms X appealed to the SEND Tribunal. Due to our jurisdictional remits explained in paragraph five of this decision I cannot look at the Council’s reasons for the decision not to issue an EHC Plan for Y or whether, when making its decision, the Council considered all professional advice it had received, including medical advice.
11. Ms X questioned the quality of health advice and Educational Psychology (EP) advice obtained during an assessment of Y’s EHC needs as they were based on the telephone consultations rather than face-to-face meetings. I have not investigated the quality of any advice or the way the assessments were conducted. The advice will inform the content of Y’s EHC Plan and if Ms X is unhappy about sections B, F or I of the plan she can appeal to the SEND Tribunal.
12. I have investigated the delays in Y’s EHC needs assessment before Ms X appealed. I have also investigated whether the Council obtained all the professional advice, which was needed. This cannot be appealed to the SEND Tribunal and does not overlap with the Tribunal jurisdiction.

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How I considered this complaint

13. I spoke with Ms X and considered the information she provided.
14. I considered the information and documents provided by the Council.
15. Ms X 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

Legal and administrative background

EHC needs assessment

16. Following the SEND Tribunal order requiring a local authority to make an assessment of child’s EHC needs, the local authority will:
• tell the child’s parents it will make the assessment - within two weeks from the date of the order; and
• tell the child’s parents of its decision not to issue an EHC Plan for their child, providing its reasons – within ten weeks from the date of the order; or
• send a final EHC Plan to the child’s parents – within 14 weeks of the date of the order.

(Special Educational Needs and Disabilities Regulations 2014 regulation 44)

17. As part of the assessment councils must gather advice from relevant professionals. 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.

(Special Education Needs Regulations 2014 paragraph 6(1))

18. In seeking advice and information the local authority should consider with professionals what advice is necessary to ensure the assessment covers all the relevant education, health and care needs of the child. The local authority must seek advice from any person requested by the child’s parents where the local authority considers it reasonable to do so. (Statutory guidance Special educational needs and disability Code of Practice: 0 to 25 years paragraph 9.49)

Complaint

19. All councils have responsibility to consider complaints about decisions made in relation to EHC needs assessments. (SEND Code of Practice 2015 paragraph 11.86)

What happened

EHC needs assessment

20. Ms X appealed the Council’s refusal to carry out a EHC needs assessment for her child, Y. In the second week of August 2022 the SEND Tribunal ordered the Council to carry out Y’s EHC needs assessment.
21. Shortly afterwards the Council told Ms X it would assess Y’s needs. The Council asked for advice from an:
• Educational Psychologist (EP);
• Community Paediatrician and
• Speech and Language Therapist (SLT).
22. At the end of September a Community Paediatrician responded to the Council’s request for advice.
23. In the second week of October Ms X complained about the Council’s delays.
24. At the beginning of November the Council apologised to Ms X for the delays in securing the EP statutory advice. The Council explained that due to the shortage of EPs it had not been able to comply with the timescales. An action plan was in place to mitigate the impact of this situation on the children and young people with special educational needs. An EP was allocated to assess Y and the Council would be following up with the Occupational Therapy (OT) and the SLT services to obtain reports from them as well. The Council said it would update Ms X on the progress of the SLT and OT involvement.
25. In mid-November an EP prepared the statutory advice for Y. Ms X was not satisfied with this advice as there was no face-to-face assessment.
26. The Council decided not to issue an EHC Plan for Y at the beginning of December. Ms X appealed this decision and in mid-December 2023 the Tribunal ordered the Council to issue an EHC Plan for Y. At the date of drafting this decision the Council still has not issued a final EHC Plan for Y.

Complaint

27. In the second week of October 2022 Ms X complained about the Council’s failure to carry out Y’s EHC needs assessment in line with the statutory timescales following the SEND Tribunal order. The Council responded to this complaint at the beginning of November.
28. Ms X was not satisfied with the Council’s response and the following month asked the Council to consider her complaint at stage two. She confirmed an EP assessment had taken place but was unhappy it had happened over the phone. She asked for a face-to-face SLT and OT assessments for Y.
29. At the end of December 2022 the Council told Ms X her correspondence from the beginning of December did not relate to her stage one complaint as Y’s EHC needs assessment had already been done and the Council had decided not to issue an EHC Plan for Y. Thus there was no need, the Council said, for any further assessments. The Council did not register Ms X’s correspondence from the beginning of December as a stage two request and explained this to Ms X in February 2023.
30. Ms X sent another complaint, which she named ‘stage one complaint’, at the end of February. The issues she was dissatisfied with were:
• No OT assessment was carried out. An OT report for Y was based on the paediatrician’s report. Ms X wanted a full face-to-face assessment by a private specialist;
• An EP assessment for Y was not acceptable as was based on a telephone consultation rather than a face-to-face assessment;
• She received no update on a SLT report. Ms X asked for a face-to-face assessment by a private specialist;
31. Ms X also asked for a full clinical psychology assessment from a private specialist.
32. In February 2023 the Council refused to register Ms X’s complaint at stage two as the Council considered she was complaining about new issues. The Council advised Ms X she would need to start the complaint process afresh.
33. Although the Council said her appeal replaced the complaint, Ms X insisted she was complaining about the assessment process rather than the Council’s decision not to issue an EHC Plan.
34. At the end of July Ms X complained to us. After we had told the Council to investigate Ms X’s complaint, the Council provided its response at the end of August. The Council explained what happened during the assessment of Y’s needs and referred Ms X to its apology for the delays in securing professional advice of October 2022. The Council said that it could not be held responsible for the costs of Y’s tutoring as it had decided it was not necessary to issue an EHC Plan for him.
35. Ms X was not happy with the Council’s response. She said when deciding not to issue an EHC Plan for Y the Council ignored his medical diagnosis. Ms X also queried the absence of the SLT advice.
36. Responding at stage two the Council stated it had asked for advice from the SLT service. The SLT service declined the request as their commissioning arrangements did not cover children who were electively home educated. The Council admitted it had a duty of care to secure proper assessments but on this occasion it had decided to continue without the SLT assessment. The Council used Y’s previous SLT report dated November 2019. This part of Ms X’s complaint was partially upheld and the Council apologised. All other issues of Ms X’s complaint and delays with Y’s assessments, were not upheld.

The Council’s plan to address the EP shortage

37. The Council told us in May 2023 its leadership team started testing the market and held discussions with two national providers of independent EPs. As a result the Council commissioned one organisation, with a track record in securing independent EPs, to supply the Council with experienced EPs. In September 2023 the Council engaged an experienced Principal EP who has been providing a strategic leadership to the EP team. The improvement within the Council’s EP services had been showed recently, the Council said, by the number of EP assessments completed each month totalling between 30 and 40.

Analysis

38. The Council should have taken its decision not to issue an EHC Plan for Y within ten weeks of the SEND Tribunal’s decision, so by mid-October 2022. The Council issued its decision nearly two months later. This is fault.
39. The evidence shows the delay in preparing an EP advice was the main reason for the delay in the Council’s decision. In view of the nation-wide shortage of EPs the delay of only several weeks showed the Council’s efforts to secure this advice for Y. As explained in paragraph seven of this decision we would see the Council’s failing to comply with the statutory timescale for sending its decision as a service failure rather than maladministration.
40. The Council’s fault caused injustice to Y and Ms X as it prolonged their uncertainty about the outcome and delayed Ms X’s appeal rights. Ms X appealed in February, but if the Council had complied with the statutory timescales for its decision following assessing Y’s needs, Ms X would have most likely appealed two months earlier. The timeliness of the Council’s decision was particularly important in the individual circumstances of this case, when:
• Y was educated at home;
• Ms X was funding private tutoring for him;
• the EHC Plan process had already stretched beyond the usual statutory timescales due to the appeal against the Council’s decision not to carry out Y’s EHC needs assessment.
41. During EHC needs assessments councils must seek advice from any person requested by the child’s parents where the council considers it reasonable to do so. Ms X asked for SLT and OT advice.
1. SLT advice – when apologising for the delays in securing the EP advice for Y at the beginning of November 2022 the Council told Ms X it would be contacting its SLT services and would provide her with an update. This correspondence suggests the Council agreed the SLT advice was needed to assess Y’s needs. In its stage one response to Ms X’s complaint the Council said it had asked for SLT advice. Once the SLT service had declined its request the Council had decided not to pursue it but to use the most recent advice of November 2019. As the Council agreed with Ms X the SLT advice was needed, its failure to get it is fault. Educating child at home should not be a reason not to undertake EHC needs assessments. I cannot determine the full extent of injustice caused to Y and Ms X by the Council’s failure to get SLT advice for Y as I cannot tell what a SLT would have found and recommended and how much Y’s communication and interaction needs had changed since 2019. The Council’s fault caused, however, uncertainty to Y and Ms X about the support arrangements needed by him. As he was receiving private tutoring, any educational advice could have helped Y’s tutors to support him.
2. OT advice – in her complaint of February 2023 Ms X expressed her dissatisfaction with the OT report which was based on the paediatrician report rather than an assessment. As explained in paragraph eleven of this decision we cannot investigate the quality and content of the professional reports.

Complaint handling

42. I found fault in the Council’s refusal to consider Ms X’s complaint about the EHC needs assessment process because she appealed the Council’s decision not to issue an EHC Plan for Y. The delays with assessing Y’s EHC needs and the way the Council carried out this process were not part of Ms X’s appeal and should have been looked at by the Council as pointed out in paragraph 19 of this decision.
43. The Council’s fault caused injustice to Ms X as it delayed resolution of her complaint and she had to spend more time than necessary on trying to get her concerns addressed.

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Agreed action

44. To remedy the injustice caused by the faults identified, the Council has agreed to complete within four weeks of the final decision the following:
• Apologise to Ms X and Y for the injustice caused to them by the faults identified. The Council’s apology should follow our Guidance on remedies;
• Pay Ms X £200 to recognise the negative impact of the delays within the process of Y’s needs re-assessment;
• Pay Ms X £200 to recognise the distress and uncertainty caused to her and Y by the Council’s failing to obtain professional advice identified during an EHC needs assessment as needed;
• Pay Ms X £100 to recognise extra time Ms X spent and trouble she had to get her complaint looked at after the Council had refused to consider it through its complaint process.

The Council will provide the evidence that this has happened.

45. To remedy the injustice caused by the Council not getting SLT advice the Council has agreed within six weeks from the date of this decision to obtain up-to-date SLT advice on Y’s SLT needs and provision needed to address them. This should not delay issuing Y’s final EHC Plan. The Council will provide the evidence this has happened.
46. The Council has also agreed within three months of the final decision to complete the following:
• Review its process of getting professional advice for the electively home educated children with special educational needs and disabilities to ensure the arrangements are put in place for getting SLT advice for these children;
• Provide training to the staff dealing with complaints about EHC needs assessments on the Council’s duties in line with the SEND Code of Practice 2015 chapter 11.

The Council will provide the evidence the above has happened.

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Final decision

47. I uphold part of Ms X’s complaint. I found fault with the Council for the delays in making its decision not to issue an EHC Plan for Y and not getting all professional advice needed. I also found fault with the Council’s complaint handling. This fault caused injustice to Y and Ms X. I cannot investigate the quality of professional advice obtained during Y’s EHC needs assessment. The Council has accepted my recommendations, so this investigation is at an end.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman