Summary: Mr X complains about the Council’s decision not to seek advice from a speech and language therapist when assessing his child’s needs. We found the Council at fault for how it applied the relevant legislation and statutory guidance when making its decision and for failing to issue the Education, Health and Care (EHC) Plan within statutory timeframes. The Council has agreed to our recommendations to address the injustices caused by the faults.

The complaint

1. The complainant, who I shall refer to as Mr X, complains about the Council’s decision not to seek advice from a Speech and Language Therapist (SaLT) as part of his son’s, Y’s, Education, Health and Care (EHC) needs assessment. Mr X says the Council’s decision and the reasons it provided for the decision is in breach of Regulation 6 (1) of the Special Educational Needs and Disability (SEND) regulations 2014.

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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 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. 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)
5. 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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How I considered this complaint

6. I considered Mr X’s complaint and the information he provided.
7. I considered the information I received from the Council in response to my enquiries.
8. Mr X and the Council were given the opportunity to comment on a draft of this decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

9. A child with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the SEND Tribunal can do this.
10. The Council is responsible for making sure that arrangements specified in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.
11. There is a right of 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 must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
12. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014 (the ‘Regulations’). It says:
• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;
• the process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable;
• the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan.
13. 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.
14. 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”. In making this decision the council and the person providing the advice should ensure the advice remains current.
15. Those consulted have a maximum of six weeks to provide the advice.
16. The council should consider with the child’s parent and the parties listed the range of advice required to enable a full EHC needs assessment to take place (The Code 9.47).

What happened

17. This is not an exhaustive list of everything that happened. It is a summary of events relevant to my investigation.
18. Mr X has a son, Y, who has a diagnosis of Autism and dyslexia. The Council received requests on two occasions to assess Y’s needs for an EHC Plan. The Council refused to assess Y on both occasions.
19. Mr X used his right to appeal the Council’s decision not to assess to the SEND Tribunal. The Council informed the SEND Tribunal that it did not oppose the appeal and it began to assess Y’s needs. The Council decided to issue an EHC Plan for Y.
20. Mr X requested the Council seek advice from a speech and language therapist (SaLT). Mr X provided detailed reasons for his request and referred to evidence from professionals who had worked with Y.
21. The Council refused Mr X’s request. The reason for the refusal was that the ‘Regulations do not make reference to the local authority commissioning advice and information’.
22. Mr X contacted the Council because he was unhappy with the Council’s decision. He told the Council its reason for refusing the request was incorrect and not in accordance with the Regulations. Mr X set out the relevant regulations and expressed the urgency in receiving a response from the Council due to the statutory timescales involved in the EHC Plan process.
23. Mr X chased the Council for a response at the end of June 2023. The Council responded within two days and apologised for not responding sooner. It said this was due to an administrative error. In response to SaLT input, the Council said the Regulations set out from whom the Local Authority must seek advice and information and they do not make reference to the Local Authority commissioning advice and information. It went on to advise Mr X that he is at liberty to make any referrals he wishes and the Council would be ‘more than happy to consider further additions if an Education, Health and Care Plan is agreed’.
24. Mr X sought advice from an independent SaLT and the report was sent to the Council. Mr X paid £300 for the SaLT assessment and he requested the Council to reimburse him with the cost. In response to Mr X’s complaint, the Council said it was not in agreement to reimburse the cost of the report. The Council also acknowledged it had exceeded the 20-week timescale set out in the Code to issue the EHC Plan and explained this was due to the recruitment and retention of EPs.
25. Once an EP was allocated to Y’s case, his needs assessment was completed. The Council decided to issue an EHC Plan for Y.
26. Y’s final EHC Plan was issued in December 2023. When writing the Plan, the Council considered the independent SaLT report obtained by Mr X and incorporated the recommendations from the report into the final EHC Plan.
27. Mr X remained unhappy about the Council’s refusal to reimburse the cost of the independent report and brought his complaint to the Ombudsman.

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Analysis

28. As part of Y’s needs assessment, the Council contacted the NHS for advice. The NHS advised the Council that Y was not known to their speech and language service. The Code anticipates advice will be sought from professionals already involved with the child or young person. This is the explanation the Council has repeatedly provided for not considering Mr X’s request for speech and language input. This is correct, however, the Code also stipulates the Council must seek advice and information from any person requested by the child’s parent, where the local authority considers it reasonable or appropriate to do so (paragraph 9.49 of the Code and Regulation 6 (1)(f) of the SEND Regulations).
29. I acknowledge the Council’s argument that Y was not known to the NHS speech and language service, but councils have the power to obtain private assessments and reports if they consider they could not write an EHC Plan without this evidence. In Y’s case, the Council accepted the advice contained in the independent report provided by Mr X, it incorporated the recommendations into Y’s final EHC Plan and it has advised me that it is committed to commissioning the direct therapy recommended in the report. The Council has also used several paragraphs from the report, word for word, in Y’s final EHC Plan. Therefore, the evidence shows the Council would not have been able to write Y’s EHC Plan without the evidence from a speech and language therapist. I find the Council was at fault for not properly considering Mr X’s request for speech and language input in accordance with the Code and Regulations.
30. Mr X has paid £300 for the independent report and the Council has refused to reimburse him with the cost. Due to the extent of the Council’s use of the independent report in Y’s EHC Plan and the Council’s failure to properly consider his request for speech and language input, I consider a financial payment is appropriate in remedying the injustice caused by the faults.
31. The Council failed to respond to Mr X’s correspondence he sent in May 2023 regarding speech and language input and he had to chase the Council for a response. The Council says this was due to an administrative error and it apologised to Mr X.
32. I have also found evidence the Council failed to issue Y’s final EHC Plan within statutory timescales. There was a three-month delay in finalising Y’s EHC Plan and this was due to the national shortage of EPs. This had a knock-on effect which meant the Council could not draft the EHC Plan until it had received the EP report. This in turn delayed Mr X’s right to appeal to the SEND Tribunal.

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Agreed action

33. To remedy the injustice caused by the identified faults, the Council has agreed that within four weeks of this final decision, it will:
• Apologise to Mr X for the faults identified above.
• Pay Mr X £300 to acknowledge the distress, frustration and uncertainty caused to him and Y by the Council’s failure to issue his final EHC Plan in line with statutory timescales. This remedy is calculated at £100 per month from the date the Council should have issued the final EHC Plan in September 2023 until the date it issued the final EHC Plan in December 2023. I recommend Mr X uses this payment for Y’s benefit as he sees fit.
• Pay Mr X £500 for the avoidable distress caused by the Council failing to properly consider his request for speech and language input in line with the Code when assessing Y’s needs assessment, the delay in responding to his correspondence about the Council’s decision and the delayed appeal rights.
34. The Council will provide us with evidence it has complied with the above actions.

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Final decision

35. There is fault by the Council and it has agreed to remedy the injustice caused to Mr X and to Y. Therefore, I have completed my investigation and closed this complaint.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman