Summary: Mrs B complained the Council failed to seek advice from an Occupational Therapist (OT) during the Education, Health and Care (EHC) needs assessment process for her daughter, C, and there were also delays. The Council was at fault for its failure to consider alternative ways to get OT advice, and for the delays. Because of the fault, Mrs B suffered distress and frustration, and it meant she continued to contact the Council for updates. Because of the delays, C also missed out on provision she should have received sooner. The Council has agreed to apologise to Mrs B and C, and make symbolic payments.

The complaint

1. Mrs B complains the Council failed to seek advice from an Occupational Therapist during the EHC needs assessment process for her daughter, who I will refer to as C. She also complains there were delays in the process.
2. Mrs B says the Council’s actions have had a physical and mental impact on her and her family, and her efforts and time spent contacting the Council took time away from her supporting C.
3. Mrs B would like the Council to refund her for the cost of the private OT report she arranged.

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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 any fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. The law says we cannot normally investigate a complaint when someone can appeal 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 appeal. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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.
7. 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)
8. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have investigated

9. I have investigated matters in this case from mid-March 2024, when Mrs B sent her request for an EHC needs assessment for C to the Council, to late September 2024, when the Council issued a final EHC Plan for C.

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How I considered this complaint

10. I read Mrs B’s complaint and spoke to her about it on the phone.
11. I considered evidence provided by Mrs B and the Council, as well as relevant law, policy and guidance.
12. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

13. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document 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 their needs, education, or the name of the educational placement. Only the Tribunal or the council can do this.

Timescales and process for EHC needs assessments

14. 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. It says the following:
• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks.
• 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.
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, 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.

Advice and information for EHC needs assessments

15. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes:
• the child’s educational placement;
• medical advice and information from healthcare 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.
16. The council may decide to seek additional advice, for example from an Occupational Therapist (OT) or Speech and Language Therapist (SaLT), or the child’s parent or young person may request this. The council should decide if this is necessary based on the individual circumstances of the case.

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What happened

17. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
18. On 19 March 2024, Mrs B sent her request to the Council for it to carry out an EHC needs assessment for C.
19. On 1 May 2024, Mrs B logged a stage one complaint with the Council as six weeks had passed, and it had not sent her its decision about whether it agreed to an assessment. The Council sent Mrs B its decision to assess later the same day. The Council spoke to Mrs B about her complaint, and she told the Council she no longer wanted to pursue it.
20. On 2 May 2024, Mrs B sent her request to the Council for an OT to assess C for her sensory needs. She told the Council she would like this to be included in the EHC needs assessment as sensory issues had previously been noted by the EP, and in C’s autism assessment report.
21. Around the same time, the Council spoke to Mrs B and told her there is a two-year wait for an OT assessment, but C would be added to the waitlist. The Council told Mrs B she could arrange her own OT assessment privately.
22. On 13 May 2024, the Council made an OT assessment referral for C to be added to the waitlist.
23. On 22 May 2024, Mrs B asked the Council to commission a private OT assessment due to the two-year wait.
24. In late May 2024, Mrs B logged a stage two complaint with the Council. She told it she had had no further contact from the Council about an OT assessment and it had not given her a response about her request for it to commission a private OT assessment.
25. In early June 2024, Mrs B chased the Council for a response. The Council told her it had referred her OT assessment request to the consultant paediatrician to find out if it was appropriate and needed. It also told Mrs B it would be able meet the 20-week timeframe for issuing the EHC Plan.
26. In mid-June 2024, Mrs B further chased the Council for an update. The Council sent her its complaint response. It told Mrs B there is a shortage of OT provision in the council area which is resulting in national long wait times for children to be assessed by an OT. The Council also told Mrs B the EP had considered C’s health needs as part of the EHC needs assessment process, and advised C has some sensory issues which an OT may clarify, but it is unlikely it would result in regular therapy. It told Mrs B that C had already been referred for an OT assessment on 13 May 2024 and she was on the waitlist.
27. Mrs B logged a stage three complaint with the Council. She told it that it had breached its duty to seek advice and information about C’s needs and the provision required to meet those needs by not getting advice and information from an OT.
28. In late June 2024, Mrs B asked the Council to wait for the private OT report she had arranged for C. At this time, the Council was also waiting for SaLT and health advice.
29. In mid-July 2024, the Council told Mrs B it had received the private OT report. Around the same time, it also sent Mrs B its response to her stage three complaint. It apologised for the delays and the impact on Mrs B’s health and family life. It also told Mrs B it was unable to refund the costs of the private OT assessment, as the Designated Medical Officer did not feel this was necessary.
30. In late July 2024, the Council agreed to issue an EHC Plan for C. It informed Mrs B of the decision and told her it hoped to begin writing the draft EHC Plan the following week.
31. The Council issued a draft EHC Plan in August 2024, and September 2024. The final EHC Plan was issued on 30 September 2024. The Council considered the private OT report arranged by Mrs B as part of the EHC needs assessment, and this information is reflected in sections B and F of C’s EHC Plan.
32. During the draft decision stage of our investigation, the Council informed us Mrs B lodged an appeal with the SEND Tribunal in October 2024 against sections B, F and I of C’s EHC Plan.

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Analysis

33. The Council informed Mrs B about the two-year wait for an OT assessment when she sent it her request for one. So, the Council knew during the EHC needs assessment process it would not be able to get OT advice in time for it to complete the assessment within the required 20-week timeframe. Mrs B says the Council told her it could add the OT advice to C’s EHC Plan at a later date. But given C’s age, she would have finished school by the time the Council received the OT advice. The Council would have been aware of this and knew C would have needed an OT assessment sooner.
34. Councils have the power to obtain private assessments and reports where it is not possible to get detailed advice from an NHS professional, for example, because the child is on a long waitlist for an assessment. Mrs B asked the Council to privately arrange an OT assessment, but it did not consider this was necessary. The Council had decided it needed OT advice to properly assess C’s needs, as it had already sent an OT referral for C to be added to the waitlist by the point Mrs B had sent it her request for the Council to privately arrange OT advice. So, since the Council had already decided it needed this advice and knew it would not receive it in time, it should have considered alternative ways to get it. The failure to do so was fault. This caused distress and frustration to Mrs B, and meant she privately arranged the OT assessment at her own cost.
35. Where a parent has paid for private advice, we can consider asking the Council to repay the costs where:
• the Council has accepted this advice (in full or part);
• it has used it to write the EHC Plan; and
• there has been no appeal made by the parent to the SEND Tribunal.
36. Mrs B privately arranged an OT assessment, and the Council has included specific support in C’s EHC Plan based on the OT advice. We would usually consider recommending the Council refund the costs of a private OT assessment where the above circumstances listed in paragraph 35 apply. As Mrs B has appealed to the SEND Tribunal, we cannot recommend the Council refund her for the costs of the private OT report, for the reasons outlined in paragraphs 5 and 35.
37. The Council has acknowledged, and it is clear from the documentation, there have been delays in this case. Mrs B’s request for an EHC needs assessment was made on 19 March 2024. The Council sent its decision to assess on 1 May 2024, one day later than it should have. The Council spoke to Mrs B and resolved this matter at the time. But the final EHC Plan was issued on 30 September 2024, which was just under eight weeks later than it should have been issued. This delay was fault.
38. The failure to complete the EHC needs assessment process and issue the final EHC Plan within the statutory timescales caused a delay in C receiving SEN provision and support outlined in section F of the EHC Plan. The final EHC Plan includes SaLT support, OT sessions and various training to be delivered to key staff. It also includes requirements for monitoring of food intake, and various strategies to help support C in the school environment. But for the delay, C would have benefitted from this additional provision and support sooner. This delay caused an injustice to C, and further distress for Mrs B. I have made recommendations below to remedy this.
39. The Council has apologised to Mrs B and in response to my enquiries, it told me it has had a high staff absence in its SEND Support, Assessment and Review Team which has placed pressure on remaining caseworkers. The Council told me it has already taken steps to improve the service and reduce delays, including a team restructure which means it now has a team that solely focuses on EHC needs assessment requests. The Council has also sent me a copy of an action plan it has recently produced which sets out what it will do to improve its service. I have therefore not made any service improvement recommendations.
40. The Council was not timely when responding to Mrs B’s communications and her stage two complaint. Mrs B was already under significant pressure due to other failings by the Council, and its poor communication and complaint handling caused additional frustration and meant she continued to chase the Council for updates.
41. Sometimes we will recommend a financial payment to the person who brought their complaint to us. This might be to reimburse a person who has suffered a quantifiable financial loss, or it might be more of a symbolic payment which serves as an acknowledgement of the distress or difficulties they have been put through. But our remedies are not intended to be punitive and we do not award compensation the way a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider.
42. We have published guidance to explain how we calculate remedies for people who have suffered injustice because 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.

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Action

43. To remedy the outstanding injustice caused to Mrs B and C by the fault I have identified, the Council has agreed to take the following actions within four weeks of my final decision:
• Apologise to Mrs B and C for the failure to consider alternative ways to get OT advice in a timely manner, the delays in the EHC needs assessment process and complaints process, and the poor communication. This apology should be in accordance with our guidance Making an effective apology.
• Pay Mrs B £225 to be used for C’s benefit. This is to remedy the equivalent of one quarter of a term of lost support and provision which I have detailed in paragraph 38.
• Pay Mrs B £200 for the distress and frustration caused by the delays in the above, and the poor communication.
44. The Council should provide us with evidence it has complied with the above actions.

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Decision

45. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman