Summary: We consider City of Wolverhampton Council and The Royal Wolverhampton NHS Trust jointly contributed to delays finalising Y’s Education, Health and Care plan. That caused Mrs X and her son a personal injustice which the organisations will remedy.

The complaint

1. Mrs X complains about City of Wolverhampton Council (the Council) and The Royal Wolverhampton NHS Trust (the Trust) during an Education, Health and Care (EHC) needs assessment process for her son, Y. Specifically, she says:
1. The Trust should have provided various reports to the Council as part of the EHC needs assessment. It was wrong to say Y was not known to them.
2. The Council and Trust jointly contributed to delays finalising the EHC plan.
3. An Educational Psychologist (EP) for the Council implied Mrs X was stopping children of higher needs accessing support services because she had appealed the Council’s decision not to carry out an EHC needs assessment.
4. She was unhappy with the content of Section F (the lack of detailed and specific special education provision) and I (the name of the school) in Y’s EHC plan.
2. Mrs X says Y has missed out on support. She also says she suffered distress and time and trouble.
3. Mrs X also complains about the Council’s handling of her complaint. She says the Council did not follow up meetings in writing, and there were significant delays. She says this exacerbated the distress and time and trouble she suffered.
4. Mrs X would like apologies, service improvements and compensation.

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What I have investigated

5. I have investigated parts a) to c) of paragraph 1 and paragraph 3. The final section of this statement contains my reasons for not investigating part d) of paragraph 1.

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The Ombudsmen’s role and powers

6. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA)
7. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
8. If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused. We might also recommend the organisation takes action to stop the same mistakes happening again.
9. When investigating complaints, if there is a conflict of evidence, the Ombudsmen may make findings based on the balance of probabilities. This means that during an investigation, we will weigh up the available evidence and base our findings on what we think was more likely to have happened.
10. If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

11. I considered the information Mrs X and the organisations sent to me, including their responses to my enquiries. I also considered the relevant law and guidance.
12. Mrs X and the organisations 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. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
15. 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.
16. Regulation 8 of the Special Educational Needs and Disability Regulations (the Regulations) say where a council seeks the cooperation of another organisation in securing an EHC needs assessment, that organisation must comply with the request within six weeks of the date they receive it. An organisation does not need to comply if it is impractical to do so because:
• Exceptional circumstances affect the child, the child’s parent or the young person during that six-week period;
• The child, the child’s parent or the young person are absent from the area for a continuous period of not less than four weeks during that six-week period; or
• The child or young person fails to keep an appointment for an examination or test made by the body during that six-week period.
17. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’)).
18. NHS England’s ‘Guidance for health services for children and young people with Special Educational Needs and Disability (SEND)’ (2018) states:
• “If a service or a professional has not undertaken an assessment of a child, but they are known to them – for example, the service has received a referral – then the service needs to decide whether the assessment can feasibly be undertaken within the timeframe, without compromising the principles and equality to all children and young people on a list”.
• “Note that complying within six weeks does not necessarily mean a full assessment has been carried out within six weeks, as this may be neither clinically appropriate nor necessary. Health professionals should, however, ensure that within that timescale, all relevant information can be provided”.
19. In 2021, the Council for Disabled Children issued guidance called Requirements to provide Health Advice within six weeks, which is available on its website. That guidance provides advice to NHS organisations on how to meet their obligations in relation to EHC assessments and plans. It says:
• “…a DMO [Designated Medical Officer] or community paediatrician reviews the existing information and calls the parents to ask them about any concerns they may have about their child’s health. Where it is agreed that a new medical assessment is required this should be organised as soon as possible and there should be a mechanism in place to ensure that this can happen”.
• “For some health services, there are likely to be significant challenges in completing an assessment within six weeks because of waiting lists or the length of the assessment pathway. However, it is essential that the relevant health professional is in a position to give the required advice as part of the EHC needs assessment process within six weeks”.

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Key facts

20. In February 2021, Mrs X sought an EHC needs assessment from the Council for Y. The Council decided not to complete an EHC needs assessment. Mrs X was unhappy and wanted advice from Speech and Language Therapy (SALT), Occupational Therapy (OT) and the Children and Adolescents Mental Health Service (CAMHS). Mrs X appealed the decision to the SEND Tribunal.
21. The Council later agreed to carry out an EHC needs assessment and on 30 March 2021 sought advice from the Trust’s Gem Centre. The Gem Centre triage EHC advice requests from councils. By then, Mrs X’s and Y’s GP had referred Y to SALT and OT respectively and he was on waiting lists for both.
22. A Paediatrician at the Trust reviewed Y on 16 April 2021 to understand his health needs. The Paediatrician referred Y to OT (the second referral by then). OT received that referral on 3 June.
23. In May 2021, the Gem Centre told the Council that Y was not known to SALT and OT. Mrs X was unhappy and asked the Council to get that advice again. OT and SALT agreed and provided advice to the Council, which it did on 23 July and 14 September respectively.
24. CAMHS was not part of the Trust subject to this complaint. Separately, CAMHS told Mrs X that Y was not eligible for its support and referred him to a charity who provide advice. The charity provided written advice to the Council on 30 July.
25. The Council finalised the EHC plan on 24 September 2021.

Complaints and responses

26. On 11 May 2021, Mrs X told the Council’s SEND team that Y was on the waiting list for support from SALT, OT and CAMHS, so the Council should obtain advice from those services.
27. On 7 June 2021, Mrs X complained about the EP. She said the EP implied in an email to another parent that Mrs X had impacted support for children of higher need. That was because Mrs X had previously appealed to the SEND tribunal. Also, Mrs X said the EP had decided Y did not need support before writing their report for the EHC needs assessment. Mrs X felt this indicated bias and requested an independent EP to reassess Y. The Council recognised Mrs X’s complaint and let her know there may be delays handling her complaint due the pressure of COVID-19 on its service.
28. On 1 July 2021, the Council shared its Stage 1 response. It accepted the EP had been unprofessional, and agreed there may be a perception of bias given the views the EP had expressed about Mrs X appealing to the SEND Tribunal. The Council agreed to:
• Allocate a new EP to reassess Y’s needs and issue the new report by 30 July.
• Review its allocation model so requests do not impact EP work in schools.
• Develop an internal ‘assessment policy’ to support professional development of EPs to avoid the risk of bias.
• Develop a robust supervision and quality assurance process when EPs complete reports for EHC needs assessments.
29. Mrs X chased a response to her 11 May 2021 issues on 9 and 12 July. On 12 July she asked to escalate her complaint to Stage 2 and also complained about the delays finalising the EHC plan.
30. On 16 July 2021, the Council provided an additional Stage 1 complaint response, it said:
• It was sorry for the delay completing the EHC plan, it should have been done by 6 June.
• Y was not known to SALT, OT and CAMHS on 30 March.
• It was actively chasing OT and CAMHS and gave dates when each report should be completed.
• It would issue the EHC plan by 2 August, but if Mrs X wished to delay that then she could until 15 September, so OT could assess Y in school.
• The initial EP’s report was biased. The EP had placed a greater weight on Y’s school observations. It hoped its improvements would mitigate the risk of bias in future.
31. On 11 August 2021, Mrs X met with the Council’s Complaints and SEND team to discuss her concerns about Y’s EHC plan.
32. On 23 August 2021, the Council shared the Trust’s response to her complaint. The Trust said COVID-19 disrupted its response and accepted it had delayed seeing Y since March. OT would share the advice with the Council by 15 September.
33. The Council also said it could have done more to get OT advice sooner. It does not have any independent OT’s which it would have used. It was seeking an independent OT it could use in similar cases in future.
34. Mrs X later asked the Council when she would receive her Stage 2 response.
35. On 9 September 2021, the Council agreed to carry out a Stage 2 investigation. Three weeks later, the Council asked for Mrs X’s consent to a joint response with the Trust. The Council received Mrs X’s consent on 5 October.
36. The Council provided its Stage 2 response on 19 October 2021. It said it previously worked toward a joint response with the Trust. But Mrs X agreed to receive separate responses. It was sorry for the delays during the complaint process and for the delays by OT. It was also committed to make changes to reduce the risk of bias following her complaint about the EP.
37. A week later Mrs X complained to the Ombudsmen.
38. In November 2021, the Trust wrote to Mrs X. It accepted it did not meet the six weeks window to complete advice for the EHC needs assessment. That was due to delays triaging the SALT and OT referrals. That was longer than normal but not so long considering the impact of COVID-19. But it agreed to change its process.

Analysis

The Trust’s response to the EHC needs assessment

39. Mrs X is unhappy that in February 2021, the Trust said Y was not known to its services. That was part of the reason why the Council decided not to carry out the EHC needs assessment.
40. I agree that Y was not known to its service in February 2021. Y was not yet on the waiting list for SALT or OT support. Y’s GP referral to OT (dated 1 July 2020) was not received until 29 March 2021. I cannot say why, even on the balance of probabilities, there was such a significant delay.
41. In any case, Mrs X successfully appealed the Council’s decision to the SEND Tribunal. So, the Council reapproached the Trust for advice on 30 March 2021.
42. I have considered the Council’s EHC advice request to the Trust on 30 March 2021. There was no specific reference to SALT, OT and CAMHS. Before and after 30 March, Mrs X had repeatedly highlighted the importance of SALT, OT and CAMHS advice in emails to the Council. Therefore, I consider the Council’s advice request should have been more specific, which was fault.
43. The next day, the Gem Centre requested advice from various departments (including SALT, OT and CAMHS) if Y was known to them.
44. In April 2021, the Trust told the Council there were “no other reports”. The Trust later clarified that as meaning SALT, OT and CAMHS said Y was “… not known to their services”.
45. I can understand why Mrs X was unhappy with the comment that Y was not known to SALT and OT. By 30 March 2021, Y was on a waiting/referral list with both SALT and OT. While neither service had seen Y, they were wrong to say he was not known to them. That was fault.
46. I consider when SALT and OT received the 31 March 2021 email, they would have been aware Y was going through an EHC assessment. At that point, they both should have checked if Y was on their waiting lists and decide if they should carry out an assessment sooner. From the evidence I have seen, they did not do that, which was fault. I can appreciate that would have caused Mrs X frustration.
47. Mrs X also says CAMHS should have provided advice to the Council. CAMHS in Wolverhampton was provided by Black Country Healthcare NHS Foundation Trust (Black Country Trust). I have not seen evidence Mrs X has complained directly to Black Country Trust about CAMHS. I consider Mrs X should do that first before the Ombudsmen can consider her complaint about CAMHS. So Black Country Trust are not subject to my investigation.

The delays finalising the EHC plan

48. The Council should have finalised Y’s EHC plan within 20 weeks (by 17 August 2021) of the SEND Tribunal Consent order on 30 March. But the Council finalised the EHC plan over a month later. The Council was responsible for finalising the EHC plan, so I consider it acted with fault.
49. The Trust also took longer than the statutory timescale of six weeks to provide advice to the Council. That was fault. I will explain why.
50. SALT told me it received Mrs X’s referral on 1 March 2021, triaged Y on 13 April and allocated him to the ‘general school list’. SALT said when it was first aware (on 11 May) that Y was going through an EHC needs assessment, it moved him to the ‘priority list’. It then assessed him at school on 8 June and completed its advice on 23 July.
51. I disagree SALT was first aware on 11 May 2021. As I have said before, I consider SALT was aware of the EHC needs assessment on 31 March. So, the statutory six-week timescale started then.
52. When SALT agreed to provide advice after 11 May, I still consider it should have responded to the Council sooner. SALT said delays were due to service capacity issues. While I understand that, I am not persuaded it justified not meeting its statutory duty to respond to the Council within six weeks. SALT did not meet any of the exemptions as set out in Regulation 8 of the Regulations to justify not responding within six weeks.
53. OT told me it was first aware of Y’s EHC needs assessment on 12 May 2021, following the Paediatrician’s referral. I disagree. Similar to SALT, I consider the six-week timeframe for OT to provide advice started on 31 March.
54. Following the 12 May 2021, OT took four months to provide its advice to the Council. It told me it agreed with Mrs X it would assess Y in the classroom to better understand his needs. That meant delaying the assessment until the start of the new school year in September. I consider OT acted with fault. The NHS England guidance clearly says organisations do not need to carry out a full assessment to avoid delays completing advice during EHC needs assessments. I appreciate Mrs X agreed to the face-to-face assessment at school. However, had OT responded to the advice request in March 2021 properly, it would most likely not have needed to wait until September (the new school year).
55. Overall, I consider SALT and OT did not provide the advice in the statutory timescale. That was fault, which would have been frustrating for Mrs X and caused her time and trouble. While the Trust was the main reason for the delay, the Council was ultimately responsible for finalising the EHC plan. The one-month delay for the Council completing the EHC plan meant that Y most likely missed out on support. The delay issuing the final EHC plan also delayed Mrs X’s ability to appeal the content to the SEND Tribunal if she had felt that was necessary.
56. The Council and Trust should do more to remedy the injustice Mrs X suffered.

The Educational Psychologist’s comments

57. I consider the EP’s comment that Mrs X’s decision to appeal impacted the support of other children was wrong. That was fault. Mrs X had a legal right to appeal the Council’s decision not to carry out an EHC needs assessment. The Council also recognised the risk of bias in the EP’s assessment of Y. I can understand that would have caused Mrs X distress.
58. I am satisfied the Council appropriately apologised and took action to avoid similar fault happening again, which could impact others. During my investigation, I asked if the Council would be open to provide Mrs X with a financial remedy to further recognise the impact to her. The Council has offered Mrs X £500 for the distress she suffered from the EP’s email, and the time and trouble from making the complaint. I consider the Council’s offer is in line with the amount I would have recommended. So £500 is a fair amount to remedy Mrs X’s injustice.

The Council’s complaint handling

59. The Council’s Complaints Policy and Procedure has two stages. At Stage 1, the Council will provide a response to the complaint within 21 calendar days. If the complainant is unhappy with the Stage 1 response, they should write to the Council within 21 calendar days to escalate their complaint. At Stage 2, the Council will provide a full response in 28 calendar days. If the Council needs more time to investigate at either stage, it will let the complainant know.
60. Firstly, I will consider if the Council followed up meetings in writing to Mrs X.
61. There is no requirement in the Council’s complaints policy to have meetings with complainants, or to follow them up in writing. But I recognise it is good practice for councils to better understand the issues. So I have considered if the Council followed up on agreements to write to Mrs X after meetings.
62. Mrs X met the Council on 17 and 28 June 2021 to discuss her complaint about the EP. The Council followed up the meeting the next day with a robust summary of the discussion and proposed actions. That was good practice. I do not consider the Council acted with fault then.
63. After the 11 August 2021 meeting, the Council agreed to respond to Mrs X’s concerns by 23 August, which it did. Again, that was good practice. However, Mrs X chased a full written response to her Stage 2 complaint, and on 31 August the Council said: “As part of our complaints procedure we meet with complainants to try and resolve their concerns and agree a way forward. Your stage two investigation did not progress; this is due to a meeting which was undertaken on 11 August 2021, [with] the service and the complaints team. During this meeting the service confirmed a way forward and outlined what action needed to be undertaken. I am sorry if this wasn’t made clear to you during our meeting.”
64. Mrs X later sought a written response. The Council apologised for any confusion and agreed to formally investigate her complaint.
65. The Council accepted it did not clearly explain what would happen after the 11 August 2021 meeting. I agree that was fault. Because the Council provided written responses after the June meetings, I can understand why Mrs X expected another written response after 11 August. There is no reference to the role of meetings in the Council’s Complaint Policy and Procedure. I can appreciate how the Council’s fault caused Mrs X confusion and further time and trouble. The Council has apologised to Mrs X, but I consider it needs to do more to remedy the injustice Mrs X suffered.
66. Now I will consider the delays during the complaints process.
67. Mrs X made three Stage 1 complaints about different issues as they arose:
• Complaint 1 (the lack of OT, SALT and CAMHS advice) on 11 May 2021
• Complaint 2 (the EP’s email) on 7 June
• Complaint 3 (the delay finalising the EHC plan) on 12 July
68. The Council said it did not consider Complaint 1 in the relevant timescales because Mrs X raised it to the SEND team rather than the Complaints team. However, I consider Mrs X was clearly making a formal complaint on 11 May. Specifically, she said: “…it is not appropriate to apply the usual complaints process timescales”. That indicated it was a complaint and Mrs X wanted an urgent response. The SEND team should have recognised that and referred the complaint to the Complaints team. I consider that missed opportunity was fault.
69. The Council should have responded to Complaint 1 on 1 June. However, it did not formally respond until 16 July (as part of the additional Stage 1 response). I understand it was a ‘live’ issue and the Council was trying to resolve that concern directly with the Trust. However, the Council should have formally responded to Complaint 1 sooner. That was not in line with the Council’s Complaint Policy and Procedure.
70. The Council should have responded to Complaint 2 on 28 June. The Council responded on 1 July. While that was not in line with the Council’s policy, it was only a few days late. The response was robust and clearly addressed the complaint. Therefore, I am not persuaded its actions amounted to fault.
71. Complaint 3 was part of Mrs X’s Stage 2 complaint on 12 July 2021. The Council did not formally respond to her until 19 October. That was due to confusion around the outcome of the 11 August meeting. As I have already said that was fault, which contributed to delays issuing the Stage 2 response to Mrs X.
72. When the Council agreed to investigate Mrs X’s Stage 2 complaint (on 9 September 2021), it should have provided a response by 7 October.
73. The Council delayed issuing the Stage 2 response because Mrs X sought a joint response. It said the Trust took longer than the Council to respond.
74. It is good practice for councils and NHS trusts to collaborate towards joint complaint responses where necessary. They should work toward a joint timescale, rather than separate ones. I consider the Council should have considered a joint response sooner than it did (in early September 2021). That was fault. Also, the Council’s Complaint Policy and Procedure makes no reference to joint complaint investigations, which is also fault.
75. The Council appropriately told Mrs X she would have to wait longer than 7 October 2021 for a response and kept her updated. That was in line with its complaints procedure.
76. Overall, the Council’s delays handling Mrs X’s complaint worsened the frustration and time and trouble she had already suffered. The Council has already apologised for the delays during the complaints process. However, I consider it should take further action to remedy Mrs X’s injustice.

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Agreed actions

77. Within four weeks, the Council should:
• Apologise to Mrs X and Y, and pay them £200 each to recognise the impact the delay finalising Y’s EHC plan had on both.
• Acknowledge the fault in its complaint handling and pay £200 to Mrs X to recognise the impact of its faults on her.
• Pay Mrs X £500 to recognise the impact of the EP’s email on her.
78. Within eight weeks, the Council should ensure:
• The relevant staff are aware of their responsibilities when sending EHC advice requests. Specifically, requests to NHS organisations should specifically set out what advice is needed, such as SALT.
• It clarifies what role meetings have in its Complaints Policy and Procedures.
• It explains what the local arrangement for joint complaint handling is with NHS organisations in its Complaints Policy and Procedures.
79. Within four weeks, the Trust should apologise and pay £300 to Mrs X for the frustration caused by the delay providing SALT and OT advice after 31 March 2021.
80. Within eight weeks, the Trust should:
• Share a copy of NHS England’s ‘Guidance for health services for children and young people with Special Educational Needs and Disability (SEND)’ and the Council for Disabled Children’s ‘Requirements to provide Health Advice within six weeks’ guidance to relevant staff. So they are aware of their responsibilities when responding to EHC advice requests.
• Review department policy and procedures about EHC advice requests. It should ensure departments are not saying a child is not known to them even if they are on a referral/waiting list. Also, that departments are providing advice within six weeks upon receipt of requests.

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Final decision

81. I have found fault with the Council and Trust during Y’s EHC needs assessment, which caused Y and Mrs X an injustice.
82. I have also found fault with the Council’s handling of Mrs X’s complaint which compounded Mrs X’s frustration and time and trouble.

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Parts of the complaint that I did not investigate

83. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. 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)
84. I will not investigate Mrs X’s complaint about the contents of Sections F and I of Y’s EHC plan. That is because she can appeal to the SEND Tribunal about his special education needs.

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Investigator's decision on behalf of the Ombudsman