Summary: There was continued fault and delay by the Council in completing a statutory reassessment and a failure to secure provision in an Education, Health and Care Plan. There was administrative fault in the way the advice for reassessment was handled. There was also non-compliance with previous Ombudsman agreed recommendations. This caused distress, time, trouble and lost educational provision. The council will apologise, make a financial payment and carry out service improvements.

The complaint

1. Ms X complains about how the Council has handled a statutory reassessment of her child’s education, health and care (EHC) needs and that it failed to secure provision in an existing EHC plan.
2. Ms X complains about an educational psychology (EP) assessment and a failure to obtain occupational therapy (OT) advice as part of the reassessment.
3. Ms X also complains the Council has failed to implement recommendations in a previous Ombudsman investigation which concluded in September 2023.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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)
7. 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.
8. We do not start or continue an investigation if we decide:

• we cannot achieve the outcome someone wants; or
• there is another body better placed to consider this complaint; or
• it would be reasonable for the person to ask for a council review or appeal.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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. I have:
• considered information provided by Ms X and the Council;
• considered the previous Ombudsman investigation and agreed actions.
11. I have considered relevant law and statutory guidance including:

•      The Children and Families Act 2014 (‘The Act’)

•      The Special Education and Disability Regulations 2014 (‘The Regulations’)

•      The Special Educational Needs and disability code of practice: 0 to 25 years (‘The Code’)

12. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
13. 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

14. 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. Section F sets out the special educational provision needed by the child or young person. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
15. The Children and Families Act 2014 says local authorities are responsible for making sure that arrangements specified in EHC plans are put in place and reviewed each year. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out in an EHC plan has not been provided or where there have been delays in the process.
16. 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 EHC Plan. The right of appeal is only engaged when the final amended EHC Plan is issued.
17. When a Council decides to carry out a reassessment for a child with an existing EHC plan, and the Council decides to amend or replace the plan, it must issue a final plan within fourteen weeks of its decision to reassess. (Regulation 27)
18. As part of the reassessment 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.

(Regulation 6(1))

19. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan of (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)  

Factual background

20. Ms X’s child had a final EHC Plan dated Spring 2022 which was issued following a Tribunal decision in 2021. This included provision to be received otherwise than at school under s.61 of The Act until Ms X’s child could transition back into a school setting.
21. The Council held an annual review of the EHC Plan in Summer 2022. It decided to amend the Plan. Ms X raised concerns some of the provision in the final Plan had not been secured in breach of s.42 of The Act.
22. The Council issued amended draft plans but did not issue a final Plan. This meant Ms X did not gain further appeal rights after the Summer 2022 annual review.
23. In Spring 2023 the Council decided not to go ahead with issuing an amended final Plan, but to carry out a reassessment. The Council calculated the timeline on a 16 or 20 week timescale, but in fact it should have applied a 14 week timescale for a reassessment from the date it decided to reassess.
24. Any final amended Plan following the reassessment was due by late Spring 2023. The Council decided, late, in Summer 2023 an amended EHC Plan should be prepared and issued a draft.
25. While there were several versions of the draft Plan, the Council did not issue a final Plan until Spring 2024. We found fault in Autumn 2023 with this delay and the Council agreed to finalise the Plan and share it with Ms X at that time.
26. The Council apologised for the delay up to Autumn 2023 and made a financial payment to acknowledge the impact of delay on Ms X including the loss of appeal rights since 2022.
27. We found the Council also failed to provide some of the special educational provision in Section F of the 2022 EHC Plan. This included tutoring, music and OT. The Council agreed with us in Autumn 2023 it would review any provision that was missing and provide this. The Council told me it has not done so. The Council did make a financial payment to acknowledge the impact of lost education up to Summer 2023.
28. We found speech therapy provision was in place at the time of our previous decision, but Ms X says this is also not currently in place. Ms X told us tuition, music, occupational and speech therapy have not been in place since Autumn 2023. Recently the Council has asked for costings for Ms X to source some of this provision herself via a personal budget.
29. There is evidence play therapy (not currently part of the EHC Plan) was provided on an interim basis during the reassessment. The play therapist provided advice for the reassessment. This stated Ms X’s child was not engaging with any adult led activity.
30. Ms X raised additional concerns about the EHC reassessment process after she submitted her previous complaint to the Ombudsman. The Council investigated these issues separately and so they were not included in the previous investigation. The complaint issues are:
• The EP assessment and report in late Spring 2023 were not compliant with ‘Guidance for Educational Psychologists providing advice and information for Education, Health and Needs Assessments 2020’.
• Ms X says historical advice and her representations were not made available to the professionals from whom the Council sought advice during the reassessment.
• Ms X disagreed with the view of the Council the EP’s role was not to review the existing EHC Plan. The Council said the EP’s role was to assess current needs and provide advice about what the current needs were and what provision was required to meet these needs. Ms X disagreed because the professional Guidance said EP’s should ‘have access to and take account of relevant background information, including previous psychological reports, health, education and social care reports’. Ms X said the EP had ignored previous advice including the previous decision by the Tribunal.
• Ms X complained the Council’s draft plans following reassessment removed previous provision ordered by a Tribunal in 2021.
31. Ms X considered the reassessment did not reflect her child’s history or accurately reflect their needs. Ms X considers the reassessment was not required and the Council should have proceeded with completing the review following the 2022 annual review. Ms X says there was no need to ‘start over’ with a new EHC Plan and the Council should have worked from the 2021 Tribunal decision and Tribunal ordered Plan. Ms X considers the EP advice is not in line with professional standards and the Council should not use it.
32. Given Ms X’s dissatisfaction with the draft Plan the Council met her in late 2023 to go through this and try and agree changes to avoid a further Tribunal appeal. The Council told us it expected to issue a further draft and then finalise the Plan.
33. Ms X also raised a complaint on sight of the draft plan that the Council had failed to update occupational therapy (OT) advice. It had reached out to a NHS occupational therapist who had met her child in 2014 and accepted the NHS advice that her child was not known to the service and so did not have OT needs. Ms X says the existing 2022 EHC Plan identifies OT needs and includes OT provision and a therapist worked with her child in 2022 and inputted into the 2022 annual review. Ms X says the Council should have realised OT advice was relevant.
34. The Council’s complaint response and response to my enquiries said:
• Information was not sought from the school during the reassessment as Ms X’s child had not attended for three years (Ms X has not complained about this).
• The EP report did refer to reading previous EP advice. The Council is satisfied with the advice and says if Ms X is unhappy with the final Plan she can appeal.
• The Council has accepted it failed to provide Ms X’s representations and evidence when seeking advice from agencies under SEND Regulation 6(1), although this is a requirement. It says it will apologise to Ms X for this.
• The Council accepts it failed to obtain updated OT advice or consider the 2022 OT advice.
• The Council acknowledged its failure to complete the reassessment by issuing a final plan, identified in a previous Ombudsman investigation, remained ongoing. It accepts this is fault. The Council only issued the final Plan recently.
• The Council’s complaint response to Ms X said it was not obligated to include provision in the previous EHC Plan, or ordered by Tribunal, in the new amended final Plan following reassessment.
• The Council accepts it continues not to have all the Section F provision in place despite an agreement with the Ombudsman in Autumn 2023 it would secure this.

What I have and have not investigated

35. I have not investigated whether a statutory reassessment was appropriate. This issue was included in the previous investigation by the Ombudsman.
36. I have not investigated the impact of delay in the statutory reassessment prior to July 2023. The Council has already provided a remedy for this delay.
37. I have not investigated loss of special educational provision in the EHC Plan for the 2022/23 academic year The Council has already provided a remedy for this period.
38. I have not investigated complaints about speech and language advice during the reassessment. This was previously considered by the Ombudsman.
39. I have investigated Ms X’s complaints about the OT evidence obtained during the reassessment. This complaint was raised and considered while the previous Ombudsman investigation was ongoing and was not included in that investigation.
40. I have not investigated the content of the EP report or whether this meets professional standards for EP’s. It is not for the Ombudsman to question professional judgments. If Ms X considers the EP advice is not accurate, and this leads to a final EHC Plan she does not agree with, then her remedy would be to appeal the final Plan to the Tribunal. The Tribunal has the benefit of specialist advice, which the Ombudsman does not. The Tribunal can rewrite the Plan and decide whether to accept professional advice. The Tribunal is the appropriate forum to challenge professional advice and decisions. The Ombudsman’s role is to look at administrative fault. The Ombudsman could not achieve an outcome of excluding EP advice or requiring a council to reinstate previous advice and recommendations. The Ombudsman cannot tell a Council what evidence to obtain or restrict a Tribunal’s powers about the evidence it requires.
41. I have investigated ongoing delay and loss of provision from the start of the 2023/4 academic year to Easter 2024, and the failure to comply with previous Ombudsman recommendations.

Fault

42. EHC Plans must be reviewed at least annually. This means that Tribunals cannot bind councils about what provision should be in place in future years.
43. The Council has accepted fault in failing to obtain OT advice during the reassessment or consider the previous OT advice. It says it will apologise to Ms X for this. The recent final Plan retains therapy provision.
44. The Council accepted continued fault in failing to issue a final Plan and therefore denying Ms X appeal rights. While I acknowledge the Council hoped to avoid a further Tribunal, the reassessment process took over a year and should have been completed within 14 weeks of deciding to reassess. This is excessive delay. The Council also failed to comply with the actions it agreed with us in 2023. This is fault.
45. Ms X’s child continues to miss out on education as the Plan provision is not fully in place. This includes missed tuition and therapy. Again, the Council has failed to comply with our previous recommendation. This is fault.
46. The Council failed to provide Ms X’s representations and evidence to the professionals involved in the reassessment. The Code (9.50) says parent information and appendices are to be supplied to all those from whom advice sought. The Council has accepted this was fault.

47. The Council met Ms X in late 2023 to hear her concerns. These have led to an amended final Plan which Ms X told me is ‘more supportive’ and in line with her views.

48. If Ms X remains dissatisfied with the final Plan, then she has a right of appeal which we would expect her to use.

Injustice

49. The reassessment did not include advice from OT. This cast doubt on the provision included in the draft Plan and led to frustration and delay.

50. Ms X’s representations and views were not provided to professionals who provided advice. This failure to have her views heard was an injustice.

51. Ms X has been put to further time and trouble getting a final Plan issued and provision in place, despite the Ombudsman having previously upheld her complaint about delay and lost provision.

52. Ms X’s child has continued to miss out on most of their education provision since the Ombudsman’s previous decision. A further two terms of provision have been lost including academic tuition, therapies and music provision. I acknowledge play therapy was put in place, which was additional to the provision in the Plan. The evidence from the play therapist is Ms X’s child is disengaging from adult-led activity which is going to make it more difficult for them to engage in education once provision is re-established.

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Agreed action

Within four weeks of my final decision

53. The Council will provide an apology to Ms X for the faults identified in this decision statement. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended.
54. The Council will make a further financial payment to Ms X of £500 to acknowledge her distress, time and trouble for the continued delay since the Ombudsman’s previous decision in issuing a final EHC Plan.
55. The Council will make a further financial payment to Ms X on behalf of her child of £4000 (£2000 per term) to acknowledge loss of tuition, music lessons and therapy since the Ombudsman’s previous decision. This covers the period up to Easter 2024. The Council told me, in response to my draft decision, it has now secured provision via direct payments.

Within two months of my final decision

56. The Council will review its guidance for staff and processes to ensure:
• Assessments and reassessments are completed on time.
• The Regulations and Code are followed when seeking advice for assessments and reassessments, to include discussing the range of advice with parents and including their representations in documentation sent to professionals.
• It has robust processes in place to monitor and review the level of education provided to children educated otherwise than at school and to ensure all therapies and provision are in place.
• The Council will remind staff of the importance of complying with Ombudsman recommendations to avoid the need for repeat complaints.
57. The Council will provide us with evidence it has complied with the above actions.

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Final decision

58. I have completed my investigation. There was continued fault and delay in completing a statutory reassessment and a failure to secure provision in an EHC Plan. There was administrative fault in the way the advice for reassessment was handled. There was also non-compliance with previous Ombudsman agreed recommendations. This caused distress, time, trouble and lost educational provision. I am satisfied the agreed actions set out above are a satisfactory remedy for the injustice caused. The complaint is upheld.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman