Summary: the Council took eight weeks too long to issue Mrs M’s daughter G’s Education, Health and Care (EHC) Plan. The Council issued the Plan without advice from an Occupational Therapist (OT) so the Plan was, in fact, incomplete. The Council refused Mrs M’s request for a specialist OT assessment. The reason the Council gave was invalid. This calls the Council’s decision into question. We do not uphold Mrs M’s complaint the Council refused to make interim provision before it issued the Plan, but we recommend the Council apologises for the delay and reconsiders Mrs M’s request for a specialist OT assessment.

The complaint

1. Mrs M complains about delay by the Council assessing her daughter G’s special educational needs. She complains the Council refused her request for a specialist Occupational Therapy assessment and refused to make interim provision before it issued G’s Education, Health and Care (EHC) Plan.

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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 injustice we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (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. Once 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)
6. 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

7. I have considered information provided by Mrs M and the Council. I invited Mrs M and the Council to comment on my draft decision.

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What I found

8. Mrs M asked the Council to undertake an education, health and care needs assessment for her daughter, G, on 20 April 2023.
9. On 26 May 2023, the Council declined.
10. Mrs M appealed the Council’s decision to the SEND Tribunal.
11. The Council conceded Mrs M’s appeal and agreed to undertake the assessment. The Council notified the Tribunal it would not oppose Mrs M’s appeal on 25 August 2023.
12. Having assessed G’s special educational needs, the Council agreed to issue an Education, Health and Care (EHC) Plan. The Council issued a draft Plan on 5 December 2023 and a final Plan on 29 January 2024.
13. Mrs M complained the Council’s decision not to assess G’s needs caused unnecessary delay. She complained the Council took too long to carry out the assessment and issue G’s EHC Plan. She complained the Council refused her request to obtain advice from a specialist Occupational Therapist. She complained the Council refused to offer a personal budget to meet G’s needs while the Council completed the assessment and issued the Plan.
14. The Council upheld Mrs M’s complaint about the delay issuing G’s Plan, but did not uphold her other complaints.
15. Unhappy with the Council’s response, Mrs M complained to the Ombudsman.

Complaint 1: the delay assessing G’s needs

16. The procedure for assessing a child’s special educational needs and issuing an Education, Health and Care Plan is set out in legislation and Government guidance.
17. The Council must decide whether or not to undertake an education, health and care needs assessment within six weeks of receiving a parent’s a request.
18. Mrs M asked the Council to undertake an education, health and care needs assessment for G on 20 April 2023. The Council decided not to undertake the assessment on 26 May 2023. This was five weeks and one day later. There was no delay by the Council.
19. Parents have a right of appeal to the SEND Tribunal if the Council decides not to assess their child’s needs.
20. Mrs M appealed the Council’s decision. The Ombudsman cannot investigate complaints once someone has appealed to the Tribunal. This means I cannot comment on the time taken for the appeal. Mrs M’s appeal ended on 25 August 2023 when the Council told the Tribunal it would assess G’s needs.
21. If a Council concedes an appeal and then decides to issue an EHC Plan, it must issue a final plan within 14 weeks of the date it notified the Tribunal it would not oppose the appeal.
22. The Council issued a final EHC Plan for G on 29 January 2024. The Council should have issued the Plan by 1 December 2023. The plan was eight weeks late. The Council did not meet the timescales in the regulations. The delay was fault.
23. Where we find fault, we consider the impact on the complainant. We refer to this as the injustice.
24. If the Council had issued G’s Plan on time, it is likely G would have started school by the beginning of term in January 2024 at the latest. Instead, she remained electively home educated longer than Mrs M wanted. This is the injustice.
25. We may recommend a remedy for injustice that is the result of fault by the Council. My recommendations are at the end of this statement.

Complaint 2: Mrs M’s request the Council obtain advice from a specialist OT

26. Mrs M complained the Council refused her request for a specialist occupational therapy assessment to inform G’s EHC Plan. Mrs M believes G needs specialist sensory integration therapy which is not provided by the NHS.
27. The Council said:
• it had commissioned occupational therapy advice from the NHS;
• it believed it was unreasonable to commission an independent assessment that was likely make recommendations that may lead to provision that is not delivered by the NHS;
• it did not, therefore, consider Mrs M’s request to be ‘reasonable’ within the meaning of the Regulations.
28. Mrs M is unhappy with the Council’s decision because:
• the Council has referred other children to the specialist occupational therapist she requested, so she believes its decision to refuse her request is unfair;
• there was a long waiting list for NHS occupational therapy assessments;
• the NHS does not provide the full range of assessment and support for sensory needs which she believes G needs;
• she thinks the Council is wrong to restrict children to provision available through the NHS.
29. In response to my enquiries, the Council explained that requests for independent advice are considered on an individual basis. It said Mrs M’s request was given due consideration, and the outcome was not to commission the advice.
30. The Council said it did not receive advice from the NHS OT on time and decided to issue G’s EHC Plan without the advice to avoid further delay.
31. The Council said that new leadership was working with partners in the health service to improve the advice received.
32. The NHS OT carried out an assessment in June 2024, six months after the Council issued G’s EHC Plan. Mrs M is unhappy with the assessment and the support offered.

Consideration

33. The Council issued G’s EHC Plan without the benefit of the occupational therapy advice it decided it needed. The Council did this to avoid further delay. Without the advice, the Plan was, however, technically incomplete. This is fault.
34. While the Council’s attempts to limit the delay are welcome, its decision to issue an incomplete Plan is concerning. It is reassuring to hear the Council is working with the health service to improve response times.
35. Mrs M wanted a specialist OT assessment, not an NHS OT assessment.
36. I have neither the authority nor the expertise to decide whether G should have the specialist OT assessment Mrs M requested. This is the Council’s job. My role is to check the Council made its decision properly.
37. The Council said it gave Mrs M’s request due consideration. However, the only reason it gave for refusing her request is invalid. The availability, or otherwise, of provision on the NHS is not a relevant consideration. The Council must arrange any provision it decides is necessary.
38. This calls the Council’s decision to refuse Mrs M’s request for a private OT assessment into question.
39. In response to my enquiries, the Council said that the annual review of G’s EHC Plan was due, and it would consider any requests Mrs M made for further assessment.
40. Mrs M tells me that G is struggling at school and she believes the specialist OT assessment is needed. The Council should consider Mrs M’s request and make a decision based on G’s needs, not the availability of services on the NHS.
41. If Mrs M and the Council are unable to agree on G’s special educational needs or the special educational provision to address them following the review, Mrs M may wish to consider another appeal to the SEND Tribunal.

Complaint 3: interim provision

42. Mrs M asked the Council for a personal budget so she could arrange special educational provision for G while the Council undertook the assessment and issued her Plan. The Council declined.
43. It would be difficult to say what provision was required before the assessment was complete and the Plan had been issued. The Council does not have a duty to arrange provision until it has issued the Plan. I do not uphold Mrs M’s complaint.
44. G’s Plan was, however, late. G was electively home educated at the time. G could have started school, and received the provision in her Plan, sooner if the Council had issued her Plan on time. This delay is an injustice. I have recommended a remedy for the injustice. My recommendations are at the end of this statement.

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Agreed action

45. We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred. When this is not possible, as in the case of Mrs M and B, we may recommend the Council makes a symbolic payment.
46. I recommended the Council:
• apologises for the delays issuing G’s final EHC Plan, including the six-month delay waiting for NHS OT advice;
• reconsiders Mrs M’s request for a specialist OT assessment and makes a decision based on G’s needs, not the availability of services on the NHS; and
• offers a symbolic payment of £200 to acknowledge the delays.
47. I recommended the Council makes the apology and payment within six weeks of my final decision, and reconsiders Mrs M’s request for a specialist OT assessment as soon as possible.
48. The Council accepted my recommendations.
49. The Council should provide us with evidence it has complied with the above actions.

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Final decision

50. I have completed my investigation as the Council accepted my recommendations.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman