Hertfordshire County Council (23 009 810)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 28 Mar 2024

The Ombudsman's final decision:

Summary: Miss C complained about delays by the Council in taking action to support her child, who has special educational needs. We uphold the complaint. We find the Council delayed in consulting a specialist school, in obtaining advice about the child’s speech and language needs and in completing a review of their Education, Health and Care Plan. These delays caused Miss C distress. The Council has accepted our findings and at the end of this statement we set out the action it has agreed to remedy this injustice and improve its service.

The complaint

  1. I have called the complainant Miss C. Her complaint concerns special educational provision for her child, D. The Council gave D an Education, Health and Care (EHC) Plan in June 2022 when they were four years old. Miss C complains the Council:
  • failed to review D’s EHC Plan within six months in line with Government guidance and what it told her when it issued the Plan;
  • failed to consult with a specialist school in July 2022, despite telling her it would do so;
  • delayed in securing information and advice from a speech and language therapist; it then failed to make provision in line with that advice when provided in Spring 2023.
  1. Miss C says because of the above D has not received education suitable for their needs as they remain in a mainstream school when they need a specialist school. D is also not receiving speech and language therapy they need and Miss C has had to pay privately for this.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. 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.
  4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
  5. 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)
  6. 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

  1. Before issuing this decision statement I considered:
  • Miss C’s complaint to the Ombudsman and any supporting information she provided, including that gathered in a telephone call;
  • correspondence exchanged between Miss C and the Council about her complaint, pre-dating our investigation;
  • information provided by the Council in reply to written enquiries;
  • any relevant law or Government guidance referred to below;
  • any relevant guidance published by the Ombudsman referred to below.
  1. I also gave Miss C and the Council chance to comment on a draft version of this decision statement. I took account of their comments before issuing this final statement.
  2. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

Relevant law and guidance

  1. A child or young person with special educational needs may have an EHC Plan.
  2. Before drawing up a plan, councils will carry out an education, health and care needs assessment. As part of this assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This can include gathering any advice and information the council considers appropriate for a satisfactory assessment. For example, from specialist services such as speech and language therapy. Those consulted have a maximum of six weeks to provide the advice. 
  3. The council must not seek further advice if it already has advice and “the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process”. However, before deciding this, the council and person providing the advice should ensure the advice remains current.  
  4. The EHC Plan sets out the child’s needs and arrangements made to meet them. The Plan has sections including:
  • Section B: setting out the child’s special educational needs (SEN).  
  • Section F: setting out the special educational provision needed by the child or the young person. 
  • Section I: which names the education setting (or type of placement).
  1. There is a right of appeal to the SEND Tribunal against:
  • how the EHC plan describes the child’s SEN (Section B), the special educational provision specified (Section F), the school or placement or that no school or other placement is specified (Section I);
  • any amendment to any of these sections of the EHC Plan.
  1. The council must review the EHC Plan, at least once a year. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once it has decided this, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
  2. When the council proposes to amend an EHC Plan, 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. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). 

Case law sets out this should happen within four weeks of the date of the review meeting.

  1. The final amended EHC plan must be issued as soon as practicable and within a further eight weeks maximum. So, councils must issue final amended EHC plans within a maximum of 12 weeks of the annual review meeting.
  2. The Government publishes additional guidance on reviews where children are under five. It says councils should consider carrying out reviews for such pupils “at least every three to six months” to ensure provision remains appropriate. It says these reviews should “complement the duty to carry out a review at least annually”. It suggests these reviews may be streamlined, requiring fewer professionals to attend than an annual review (SEN Code paragraph 9.178).

The key facts

  1. In February 2022 the Council agreed to carry out an education, health and care assessment for D. It wrote to Miss C saying amongst other things, that it would seek advice or information from ‘speech and language therapy’, as part of the assessment. It wrote to local NHS speech and language services to see if D was known to them.
  2. In response the NHS speech and language therapy service confirmed, by providing a copy of a letter dated January 2022, that D was known to them. That letter explained the service had provided some initial speech and language therapeutic help to Miss C. The letter set out some strategies for meeting D’s speech and language needs. The letter also said D was on a waiting list for further assessment.
  3. Separately, Miss C had also commissioned a private report from a speech and language therapist. This is dated January 2021, but I understand this is incorrect and the therapist produced the report in January 2022.
  4. In June 2022 the Council issued an EHC Plan for D. At this point D was four years old, but within six months of their fifth birthday. It had not received any further information from NHS speech and language services. So, it included within Section F of D’s plan some of the strategies set out in the January 2022 letter. Section I of D’s plan named a mainstream school.
  5. Following issue of the EHC Plan, Miss C told the Council she would prefer for D to attend a specialist school. The Council referred D’s case to a ‘provision panel’ which agreed they met the criteria for a specialist school. It says that it placed D on a waiting list accordingly and should, at that point, have consulted their nearest specialist school. However, because of an oversight, it failed to do so.
  6. I note that around the time it issued the EHC Plan, the Council also chased the NHS speech and language services to check on the progress of the assessment and was told D’s case remained in a queue. Miss C also says the SEN Caseworker assigned D’s case attended a meeting at D’s school. They told her the Council would seek a place for D to attend a specialist school from September 2023.
  7. In January 2023 Miss C contacted the Council by email. She said:
  • that she understood a review of D’s EHC Plan was now overdue. When the Council had first issued D’s Plan in June 2022, it had told her it would be reviewed within six months because they were under five years old;
  • that D still awaited a speech and language assessment;
  • that she had heard nothing further following the request she made in June 2022 for D to attend a specialist school. Miss C knew D’s case went to a panel for discussion but not the outcome.
  1. The Council did not respond to this email and so a week later Miss C made a complaint. Miss C told me she also tried to contact the Council by telephone but could not reach a case officer. The Council told me it had no record of any missed calls from Miss C.
  2. In February 2023 the Council replied to Miss C’s complaint. It noted the Council had taken account of the NHS letter dated January 2022 when considering D’s speech and language needs. But it also recognised there was an outstanding assessment of their needs in this area and apologised for the delay. The Council also recognised that it had failed to consult a specialist school and said it would do so straight away. It would also begin the process of reviewing D’s EHC Plan (a review meeting was held in March). It offered apologies, but Miss C did not consider these sufficient and so escalated her complaint.
  3. In March 2023 the Council received a reply to its consultation from the specialist school. The school said it could meet D’s needs. But that it would not have a place for him before September 2024.
  4. By April 2023 the Council had also received the speech and language therapy report from the NHS service. The NHS report advised further strategies for meeting D’s needs in this area.
  5. In May 2023 the Council issued a revised draft version of D’s EHC Plan. In Section B this included some more description of his speech and language needs taken from Miss C’s privately commissioned report in January 2022. But Section F remained unchanged.
  6. In September 2023 the Council issued a final revised EHC Plan for D. It contained no further changes from the May 2023 draft version. So, Section F remained unchanged from the June 2022 version of the plan. Section I named D’s mainstream school until July 2024. But it said in September 2024 D would attend the specialist school.
  7. As noted above, the Council has acknowledged fault in not consulting the specialist school in July 2022. However, it considers this would not have resulted in D obtaining a place sooner. It says this is because it aims to finalise demand for places before the start of the academic year (i.e., in this case before the start of the 2022/23 academic year). It notes the high demand for specialist school places.
  8. The Council also acknowledges that it failed to update D’s EHC Plan to reflect the speech and language therapist advice received from specialist NHS services in April 2023. It says it will now do so and issue a revised final EHC Plan to Miss C.

My findings

The Ombudsman’s jurisdiction

  1. The term jurisdiction refers to our legal powers to investigate a complaint.
  2. There are two considerations relevant to this complaint. The first is the question of time. I consider some of Miss C’s complaint is potentially late because it requires consideration of events since the Council began assessing D’s needs in early 2022.
  3. However, I have decided the question of time should not limit our investigation. Miss C’s complaints about school consultation and speech and language therapy rely on considering a sequence of events going back to June 2022 and February 2022 respectively. Miss C did not complain at those times about the Council’s actions, because her complaint concerns administrative delays and at that time no delays had occurred. The delays only became apparent later. It would therefore be unfair to exclude investigation of any matters during this timeline because Miss C did not complain sooner. As I consider in these circumstances, she had no cause to do so earlier.
  4. The second issue I must consider is the role of the SEND Tribunal. As I have explained, the SEND Tribunal can make decisions on the content of Sections F and I of an EHC Plan. So, where a parent objects to the extent of speech and language therapy set out as part of their child’s education provision, or with the education setting, we would usually expect them to appeal to the Tribunal.
  5. Miss C has had two opportunities to appeal these matters. In June 2022 and September 2023, when the Council issued finalised versions of D’s EHC Plan.
  6. I have decided we can investigate the Council’s approach to school consultation and speech and language therapy provision after issue of the first plan in June 2022. I am satisfied Miss C’s decision not to appeal, followed her receiving assurances from the Council. First, that it would consider and consult on D having a specialist school place. Second, that it would consider the content of the NHS speech and language assessment awaited at that time. While the Council has not confirmed Miss C’s account of her meeting with its SEN caseworker, its intentions on these matters are confirmed by other documents from June 2022. These are the referral of D’s case to its provision panel and it chasing NHS speech and language therapy service for an update on D’s outstanding assessment of need in this area.
  7. In these circumstances, it is understandable Miss C did not exercise her right of appeal. This is because she understood the Council was open to revising the EHC Plan as soon as the consultation completed and the assessment received. There are special reasons justifying investigation therefore.
  8. But I consider the same analysis does not apply to the circumstances after the Council issued the second version of D’s EHC Plan in September 2023. At this point the Council had set out that it agreed D’s need for specialist schooling but that it did not consider they could start this before September 2024. It had also received and considered the speech and language assessment report provided by the NHS. The Council’s position on both matters therefore appeared fixed and not fluid as in June 2022. So, I consider it appropriate to expect Miss C to have used her rights of appeal at that point if she wanted to challenge either or both matters.
  9. My decision does not therefore take a view on whether the September 2023 EHC Plan could have named an earlier start date for D to attend the specialist school. Or whether Section F of the Plan should contain different content around D’s speech and language needs.

The complaint about review of D’s EHC Plan

  1. I do not find the Council at fault for the timing of this. Government guidance says councils can consider holding more regular reviews of EHC plans for under-fives. But it is not a legal requirement. And even if this was not the case, D’s first EHC plan was dated less than six months before their fifth birthday. So, the Council was not in breach of the guidance, as D was five years old before six months elapsed.
  2. The Council has also commented that it had no reason to bring forward a review of D’s plan. It says before Miss C requested this, it had received no request from D’s school, nor had it any other reason to think an early review appropriate. I consider there is no fault in this position either.
  3. But that said, it would appear the Council misled Miss C into believing it would hold a review within six months of issuing D’s EHC Plan. The Council has not sought to contradict this is what it told her at the outset. It was at fault therefore, for giving this mis-advice which caused the injustice of raising Miss C’s expectations.
  4. Further, the Council was at fault for how long the review took once it held the review meeting in March. It failed to send proposed amendments to the EHC Plan to Miss C within four weeks. It also failed to issue D’s finalised EHC Plan within 12 weeks of the review meeting. In total the review took around three months longer to complete than it should. That too was a fault. This caused Miss C further injustice as uncertainty, something we consider a form of distress.

The complaint about school consultation

  1. In July 2022 the Council considered D’s case at its placement panel and agreed they needed a specialist school place. It should have consulted their nearest specialist school at this point but failed to do so. Consequently, it was not until after Miss C complained, in March 2023, the Council completed that consultation. That was eight months after it first agreed D needed a specialist school. The delay was a fault.
  2. The Council has set out its reasons why it does not consider this delay impacted on the start date for when the specialist school could accept D’s placement. Miss C disputes this, pointing to the meeting she had in June 2022.
  3. I note there is no dispute the Council should have begun consultation for D to have a specialist school place in June 2022, so within the 2021/22 academic year. So, I question if it is correct to say that at that point it was too late for D to gain a specialist school place for September 2023. But I accept the Council’s statement that there is a high demand for such places. I also note that when consulted in March 2023, the specialist school could not offer D a place until September 2024. This supports the view the school operates with a long lead-in time between agreeing a request and making available a place in the school. So, on balance I accept the Council’s statement here and have decided not to undertake further enquiries on this point.
  4. However, the delay has still caused Miss C injustice as unnecessary uncertainty and frustration. So, this has added to her distress.

The complaint about speech and language therapy

  1. I find the Council position on the advice and information it sought for D’s EHC Plan confusing. In comments on the draft version of this decision statement the Council suggested it was only checking with the NHS to see if D was known to its speech and language therapy services. But that is not implied from the letter it sent Miss C when it agreed to carry out its needs assessment. That letter copied the wording of the relevant Regulation, saying the Council wanted “advice and information” from speech and language therapy services to inform its assessment. I am satisfied this was its intent.
  2. In which case, the Regulation makes clear that where a Council decides to seek such advice, it must secure it within six weeks. The Council has suggested the January 2022 letter sent from NHS specialist services to Miss C, which it used when writing the June 2022 EHC Plan, sufficient to discharge this requirement.
  3. But this was not the impression that Miss C received, or that given by the Council by its actions in June 2022 when it chased the NHS to check on the progress of D’s more detailed assessment of need in this area. It is clear why the Council would want this. Because the information it had, indicated the NHS specialist service did not think it had a complete picture of D’s needs. If the picture was incomplete, then I must question whether the Council had properly secured all the advice and information it had requested before issuing D’s EHC Plan.
  4. However, I can see a dilemma for the Council here. It would not want to delay issue of an EHC Plan when it had some information about D’s needs in this area which it went on to include in the plan. Government guidance is also not helpful on the correct approach councils should take when in response to a request for advice and information they receive a reply that has some detail but remains incomplete.
  5. I stop short therefore of finding the Council at fault for failing to secure the advice required as part of D’s needs assessment. But what is not in dispute is that there was a prolonged period of uncertainty here for Miss C, waiting for the fuller NHS assessment. I appreciate the Council does not have control over NHS waiting lists (although this would not prevent it potentially seeking advice from another speech and language therapist if needed to complete an assessment). I consider the Council could have reduced some of that uncertainty had it been clearer in its communications around its position on the NHS assessment. Its actions in this area have therefore caused Miss C some further avoidable distress, as she did not know how the assessment might impact on provision for D in this area of need.
  6. However, I cannot say any confusion had a significant impact on the provision D receives. This is because after it received the NHS assessment the Council left Section F of D’s EHC Plan unchanged. This was also a decision Miss C chose not to appeal.
  7. I accept there is evidence the failure to amend Section F after April 2023 was more by accident than design. Because during the investigation the Council has said that it will now review the content of D’s EHC Plan again, to see if it should have made changes following receipt of the assessment. But that does not change that the EHC Plan was still appealable after issue in September 2023. This would be the correct route for Miss C to take if she wished to challenge whether Section F of the EHC Plan remained fit for purpose.
  8. I am aware Miss C has, at her own expense, been paying for D to have private speech and language therapy sessions. But there are no grounds for me to recommend the Council reimburse her in these circumstances.

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Agreed action

  1. I understand the Council will accept the findings set out above. In paragraphs 47, 48, 52 and 57 I have identified where fault by the Council caused injustice to Miss C. The Council has already acknowledged some mistakes here and made earlier apologies. However, I do not consider that these go far enough to remedy the injustice. So, the Council has agreed that within 20 working days of this decision, it will provide the following:
      1. an apology to Miss C, accepting the findings of this investigation, and taking account of our published guidance on remedies (section 3.2) which sets out our expectations on what an effective apology should contain;
      2. a symbolic payment to Miss C of £650 to recognise the impact of its injustice; this is broken down as follows - £250 for the raised expectations arising from its mis-advice about when it would review D’s EHC plan and the delay in issuing the final EHC Plan following the review; and £200 each for the uncertainty caused by delays in consulting the specialist school and securing speech and language advice.
  2. I also want the Council to learn wider lessons from Miss C’s complaint. I note that four times in the past two years we have made service improvement recommendations because of delay by the Council in completing a review of an EHC Plan. I am aware the Council has acknowledged there are several areas where it needs to deliver SEN services better, and it has an improvement plan in place to do this. But the Council has agreed that it write to us within two months of a decision on this complaint and set out what further measures it is taking, or proposes to take, to continue to reduce delays in reviews of EHC plans. Those measures should be specific and contain clear targets in terms of what will be delivered and by when.
  3. The Council will also issue a briefing to all SEN caseworkers on our expectations when it comes to securing advice to inform the content of an EHC Plan. For example, from speech and language specialist services or similar. This briefing can be given in writing or in person, at the discretion of the Council. It should make clear that when making a check if a child is known to a service, this is not the same as seeking ‘advice and information’ about their needs and so the Council must distinguish this in its communications. But that where it has decided to seek such advice and information it must secure that within six weeks.
  4. The Council will provide us with evidence it has complied with all the above actions.

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Final decision

  1. For reasons set out above I uphold this complaint finding fault by the Council causing injustice to Miss C. The Council has accepted these findings and has agreed action that I consider will remedy that injustice. Consequently, I have completed my investigation, satisfied with its response.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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