Summary: Mrs P complained about delays in the re-assessment of her son R’s Education Health and Care plan. She also complained the Council failed to provide the educational therapy in R’s plan and delayed providing him with alternative education out of school. We found significant avoidable delays in R’s EHC plan re-assessment by both the Council and Integrated Care Board (ICB). The Council failed to provide the educational therapy provision R was entitled to and delayed arranging suitable alternative education for him. These faults caused an injustice as R missed out on educational provision and Mrs P suffered significant stress, upset and inconvenience. The Council and ICB have agreed to apologise, pay a financial remedy to Mrs P and make improvements to their services.

The complaint

1. Mrs P complained Wokingham Borough Council (the Council) and Buckinghamshire, Oxfordshire and Berkshire West Integrated Care Board (the ICB, formerly known as Berkshire West Clinical Commissioning Group) delayed her son R’s Education, Health and Care Plan (EHC plan) reassessment process between June 2021 and February 2022. Mrs P says the ICB did not provide Speech and Language Therapy (SALT) and Occupational Therapy (OT) reports within the required six weeks, and the Council did not commission alternative assessments. Mrs P also complained the Council failed to ensure her son receives the SALT and OT provision set out in his EHC plan, from March 2021 onwards.  
2. Mrs P says her son has lost EHC provision which has negatively impacted his development. She says she has been put to time, trouble and stress having to chase the Council to fulfil its statutory duties in relation to EHC provision and the EHC plan reassessment process. She also says the family has suffered financial loss as they had to pay for an OT report privately.
3. Mrs P wants her son to receive the SALT and OT provision in his EHC plan. She wants the Council to apologise and to compensate her son for the impact of this not having been in place. She wants the organisations to compensate her for her time, trouble and stress in having to chase the Council about the EHC plan reassessment and lack of EHC provision. She also wants a refund of the cost of the private OT report. She wants the organisations to apologise to her and her son for the delay in assessing his needs and issuing his up-to-date EHC plan.
4. The CCG has now become part of Buckinghamshire, Oxfordshire and Berkshire West Integrated Care Board (the ICB). In this decision, I will refer to the organisation as the ICB.

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What I have investigated

5. I have investigated events up to February 2022, when the Council issued R’s new EHC plan. To provide context, I have included some events that occurred after February 2022 in the chronology of events.

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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, we have considered these complaints in 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). 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.
8. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended). The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the SEND Tribunal in this decision.
9. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
10. The Ombudsmen cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the organisation reached the decision. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
11. We make findings based on the balance of probabilities. This means we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened. 
12. 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)
13. 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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How I considered this complaint

14. I considered:
• information Mrs P provided in writing and by phone;
• information the Council, the ICB and Berkshire Healthcare NHS Foundation Trust (the Trust) provided in response to my enquiries;
• relevant law and guidance, as set out below; and
• our guidance on remedies and severity of injustice, available on our websites
15. Mrs P, the Council and the ICB had the opportunity to comment on my draft decision. I took all comments into account before making a final decision.

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What I found

Law and guidance

Education Health and Care (EHC) Plans

16. The Children and Families Act 2014, the Special Educational Needs and Disability Regulations 2014 and the SEND Code of Practice: 0 to 25 years give councils and NHS organisations information about their duties in relation to EHC plans.
17. A child with special educational needs (SEN) may have an EHC plan. The EHC plan is set out in sections including Section F which sets out the special educational provision the child or young person needs.
18. The Ombudsmen cannot direct changes to the sections of an EHC plan about special educational provision (Section F). Only the Special Educational Needs and Disability (SEND) Tribunal can do this.
19. Councils have a duty to ensure they deliver the special educational provision set out in Section F of an EHC plan.
20. EHC plans should reviewed at least every 12 months (the annual review). Within four weeks of the review meeting the council must decide whether it proposes to keep the EHC plan as it is, amend it, or cease to maintain it.
21. 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.
22. The Council must carry out a re-assessment of a child’s EHC plan if asked to do so by the child’s parent or their school. The council can refuse to carry out a re‑assessment if it is less than six months since the previous assessment. It can also refuse to reassess if it thinks a further EHC needs assessment is not necessary, for example because it considers the child’s needs have not changed significantly. The maximum time limit for a re-assessment is 14 weeks from the decision to re-assess, although the council should complete this it as soon as practicable.
23. Our Focus Report on Education, Health and Care plans (October 2019) said delay is a factor in most SEND cases we investigate. We recommended that councils have resources and systems in place to meet statutory timescales for EHC assessments and annual reviews. We also recommended councils have systems in place to check that provision in an EHC plan has been secured and is being provided to the child or young person.

Education Health and Care (EHC) Plans – health advice

24. Section 26 of the Children and Families Act 2014 says councils and their partner commissioning bodies must make arrangements (“joint commissioning arrangements”) about the education, health and care provision to be secured for children who have SEN.
25. Regulation 8 of the Special Educational Needs and Disability Regulations (the Regulations) says 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.
26. The Council for Disabled Children has issued guidance on the Requirements to provide Health Advice within Six Weeks, which is available on its website. This gives guidance to NHS Clinical Commissioning Groups (now called Integrated Care Boards (ICB’s)) on how health providers can meet their obligations about EHC assessments and plans.

Child out of school – alternative provision of education

27. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. The provision should be full-time unless the council determines that full-time education would not be in the child’s best interests for physical or mental health reasons. (Education Act 1996, section 19, and sections 3A and 3AA)
28. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
29. There is no legal deadline by which local authorities must start to provide alternative education provision for children with additional needs. Government guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ states that councils should arrange provision as soon as it is clear the child will be away from school for 15 days or more and should do so “at the latest by the sixth day of the absence”.
30. I have referred to the LGSCO’s focus report on ensuring children out of school get a good education. Our report gives guidance to local authorities on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time.

Ordinarily Available provision / the Graduated Response

31. Most children and young people with special educational needs and disabilities receive their education in mainstream settings. “Ordinarily Available” provision is the special educational support and provision mainstream schools or settings should provide for children from their own budget, called ‘SEN support’. The “Graduated Response”, involves a cycle of assessment of needs, planning support, putting support in place, and reviewing the child’s progress. In some cases, if the child or young person still needs extra support they may need an EHC plan.

Wokingham SEND Strategy 2021-2024

32. In March 2019 OFSTED and the Care Quality Commission (CQC) carried out a Joint Local Area SEND inspection in Wokingham and identified areas of significant weakness. Areas of concern included the timeliness and quality of EHC plans, health advice reports not being produced within six weeks, and the lack of well co-ordinated and effectively joined up work across education, health and social care. The Council and ICB sent a written statement of action to OFSTED, and have since issued a SEND Strategy 2021 – 2024 and Action Plan.
33. The SEND Strategy is governed by the SEND Improvement Board and is delivered by several multi-agency working groups. The Strategy includes actions to review and improve processes for joint working, frontloading multi-agency input into needs assessments, improving the timeliness of EHC plans, and work to share information about “ordinarily available provision” and the “graduated response”.

What happened

34. This section sets out the key events in this case and is not intended to be a comprehensive account of everything that happened.
35. R is 12 years old and is autistic. He also has Post-Traumatic Stress Disorder (PTSD), anxiety and Sensory Processing Disorder. He attended a mainstream primary school until November 2018 (year 4). He struggled with anxiety about attending school and was self-harming at home and in school. Due to concerns about R’s deteriorating mental health the Child and Adolescent Mental Health Service (CAMHS) said R could not continue to attend mainstream school. He was then registered at a Pupil Referral Unit but could not attend.
36. In early 2019 the Council started an EHC needs assessment for R. The Council issued an EHC Plan in October 2019. R’s parents were unhappy with parts of the plan and went to mediation.
37. From January 2020 (year 5) R received a package of Education Otherwise Than at School (EOTAS), funded by the council. In June 2020 the Council issued an updated EHC plan for R, after his parents had gone to mediation. The June 2020 EHC plan included support for R from SALT and OT, and one hour of SALT therapy per week, in Section F (educational provision).
38. In September 2020 R started attending a specialist school on a reduced timetable. He continued to struggle to attend school and stopped attending completely after the October 2020 half term.
39. In January 2021 R’s family, the Council and the school agreed R should receive an alternative education provision package (EOTAS), as he could not access a school setting. For the rest of that academic year R received four hours of support each week from a therapeutic mentor. His parents provided the rest of his educational and academic support.
40. In early February Mrs P asked the Council why R was not receiving any of the provision from his current EHC plan, including the SALT and OT support set out in Section F. The Council said the provision in Section F of the EHC plan was the responsibility of the school to provide as it received the funding for this.
41. In early March the EHC plan annual review meeting took place. The school said it could not meet R’s needs, and a re-assessment of his EHC plan was suggested. On 22 March Mrs P contacted the Council again to ask about R’s education provision as he was not attending school. She said she was concerned R was becoming harder to engage due to the lack of education and therapy input.
42. In mid-April the Council wrote to Mrs P to say that, following the annual review, it would not be amending R’s EHC plan. The Council said it believed R should be in school, but it did not know how long it would take for him to be able to return. It is important to mention that at this point, Mrs P had the right to appeal to the SEND Tribunal about the Council’s decision not to amend R’s EHC plan. However, Mrs P continued to engage with the Council to try and progress and resolve matters. In June the Council agreed to re-assess R’s needs with a view to issuing a new or amended EHC plan.
43. On 30 April the Council wrote to Mrs P to say:
• the Council and school had put several provisions in place for R
• it had offered several interventions which the family had not accepted
• the family had asked for an EOTAS package and the Council had agreed to this
• the main barrier had been R’s reluctance to engage with tutors in the house

Mrs P refutes the Council’s account. She says no provision was in place and no tutors were offered.

44. In early June 2021 Mrs P’s solicitors contacted the Council. They highlighted that R was not receiving any academic provision, and provided details of a suggested EOTAS package. The Council said it would give notice to R’s school as it was clear he would not be returning there. It said two education providers would assess R to see whether they could provide support with his educational learning. The Council also said it needed an updated Educational Psychologist’s (EP) report to amend R’s EHC plan.
45. In mid-June CAMHS diagnosed R with PTSD.
46. On 25 June the Council confirmed it would put a custom EOTAS package in place for September. It also suggested a re-assessment of R’s needs. It said “following six months of meetings, various interventions being suggested but not being found appropriate, as well as [R’]s recent diagnosis of PTSD it is clear that [R]’s needs have changed.” The Council said after the re-assessment it would amend the EHC plan or issue a new plan.
47. The timeframe for the EHC plan re-assessment started on 5 July 2021. This meant any reports needed were due by 16 August, and the 14-week deadline for the amended final EHC plan was 11 October.
48. In late August the Council sent Mrs P the final EOTAS provision breakdown for R and said the provision was in place. It agreed the EOTAS package would be funded via a Direct Payment to Mrs P.
49. On 2 September an Educational Psychologist assessed R and they provided their report on 8 October.
50. On 13 September Mrs P complained to the Council about delays in the re‑assessment of R’s needs, including that SALT and OT assessments had not been completed.
51. On 17 September the Council wrote to Mrs P to confirm R’s education was being delivered via an EOTAS package which was “continually evolving as [R] is able to access more learning.” It said it would expect R’s engagement with the EOTAS package to increase over time.
52. On 15 October the Council responded to Mrs P’s complaint, explaining the reasons for the delays in the re-assessment of R’s needs. Mrs P then asked the Council to consider her complaint under Stage 2 but the Council declined. It said the delayed health assessments were outside its control due to the demand for reports exceeding the capacity of the ICB. The Council said it did not consider the delays were due to “service maladministration”. It said it was “considering alternative solutions but will only know whether they are suitable once [the Council] fully understands the situation faced by health colleagues.”
53. On 24 November the SALT provided their completed report. On 14 December Mrs P sent the Council an OT report she had commissioned privately, due to the long delays in the Council getting an OT report.
54. On 15 December Mrs P complained to the Ombudsmen.
55. On 22 December the Council issued a draft updated EHC plan. The Council issued the final updated EHC plan on 3 February 2022.

Analysis

Delayed EHC plan re-assessment

56. The decision to re-assess R’s needs and update his EHC plan was effective from 5 July 2021. The health reports needed as part of the re‑assessment were due within six weeks, that is, by 16 August. They were significantly delayed. The Council should have issued the updated EHC plan by 14 October. This was also significantly delayed, to 3 February 2022. This is fault.
57. The ICB commissions Berkshire Healthcare NHS Foundation Trust (the Trust) to provide Children and Young People’s Integrated Therapies (CYPIT). This includes providing occupational therapy and speech and language therapy, and providing reports from these specialties as part of the EHC needs assessment process.
58. The Trust told us the Council’s original request for health advice on 5 July had to “be returned with a request for more information, as it did not specify the type of health advice needed. There was some ‘back and forth’ between the Trust and Council over the summer, and the Trust said it got all the information it needed by 2 September. It said the six weeks should run from that date, ending on 14 October rather than the original deadline of 16 August.
59. Regardless of whether the deadline was 16 August or 14 October, the SALT and OT reports were late. The SALT report was provided on 24 November. The first available OT appointment for a re-assessment was in January 2022, so Mrs P decided in December 2021 to get her own OT report about R instead, because of the very long delays. These delays amount to fault.
60. The Council issued the finalised EHC plan following re-assessment around four months late. Some of this delay was down to the Council, in the lack of clarity in the original request for health advice. Some of the delay was down to the ICB and the Trust in terms of the long turnaround time for health advice. The ICB is responsible for the service it commissions from the Trust for health advice for EHC needs assessments.
61. The ICB acknowledges it has not been meeting the six-week timescale for SALT and OT assessments, due to very high demand, and is taking action to address this.
62. I have taken on board the points the Council and ICB have raised about resource pressures on services. While we appreciate the challenges the Council and ICB faced we cannot make concessions for service failures due to budget and resourcing pressures. We must hold organisations to account, in line with relevant statutory duties, standards, guidance and their own policies. There does not need to be blame, intent or bad faith for us to find fault. I will address the impact of these faults later in this statement.

Failure to ensure provision of Speech and Language Therapy and Occupational Therapy

63. R did not receive the SALT and OT provision set out in Section F of his June 2020 EHC plan after he stopped attending school in October 2020. The evidence shows other than three OT sessions in January 2022, he did not start properly receiving this support and input until April / May 2022 after the Council issued his new EHC plan.
64. Mrs P said it was agreed at the annual review meeting in March 2021 that R would not be attending school and the Council would put the Section F provision in his existing EHC plan in place. She said the Council did not do this. She said when CAMHS diagnosed R with PTSD in early June the Council said it would not put the Section F provision in place as R needed a re-assessment of need.
65. The Council said the education provision for R for the academic year 2021/22 was an ongoing process that started in February 2021 with discussions about an EOTAS package. It said the school initially made the education provision before R moved to a full EOTAS package in September 2021. Mrs P disputes this. She says there was no provision of SALT or OT, and all R had was four hours per week from a therapeutic mentor. The Council told us it had contacted all registered SALTs within a 10-15 mile radius and nobody had the capacity to take on the provision of R’s Section F SALT support.
66. The Council felt R’s needs had changed significantly and he needed a re‑assessment of need and an updated EHC plan. Nevertheless, until the re‑assessment was completed the Council was under a duty to provide the provision in Section F of R’s existing EHC plan. It is my view that it would have been reasonable for the Council to put emergency interim provision in place while it was re-assessing R’s needs. Some of the Section F provision from SALT and OT might not have been possible outside the school setting. However, there are some parts of the provision that could potentially have been delivered through 1-1 SALT and OT work with R and his parents. It was fault that this was not in place at all for R.
67. I consider the Council should have ensured R was receiving Section F provision of SALT and OT from January 2021 onwards. R stopped attending school in October 2020, and I consider half a term sufficient for the Council to arrange the relevant provision.

Impact on R and Mrs P

68. The delays in the EHC plan reassessment have caused an injustice to Mrs P and R. R has missed out on educational provision. There was a delay of around four months in Mrs P being able to appeal to the SEND Tribunal about the content of Section F of R’s current EHC plan. The SALT and OT input from R’s previous EHC plan (June 2020) was not provided. Mrs P said the Council said it would not provide this as R’s needs had changed and needed to be re-assessed. If the Council had completed the re‑assessment sooner, the new EHC plan setting out R’s current Section F provision including his need for OT and SALT support would have been in place earlier. Also, regardless of the delays in the re-assessment, the Council should have been providing the SALT and OT in the June 2020 EHC plan until it issued a new plan. If R had received the SALT and OT input, his needs may not have changed so significantly. We cannot say what impact this has had, but this creates further uncertainty for Mrs P which is an injustice in itself.
69. The Council said it did not consider the delays had adversely impacted R, as it felt the EOTAS package in place was robust and there was more provision in place than he could access. It is my view that, on the balance of probabilities, the failure to provide OT and SALT will have impacted on R’s ability to engage positively with other aspects of his EHC provision. We cannot say what R’s level of engagement would have been if he had received the SALT and OT provision he was entitled to. But, there is likely to have been a negative impact on him by its absence. The level of impact on R is uncertain, but this in itself is an injustice. Mrs P has also experienced an injustice in terms of the time, trouble and stress of contacting the Council about ongoing lack of Section F provision.

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Agreed action

70. We take the individual circumstances of each complainant into account when recommending remedies. For injustice such as avoidable distress, harm or risk, we usually recommend a symbolic payment to recognise the impact of the fault on the complainant. Distress can include uncertainty about how the outcome might have been different and can include lost opportunity.
71. Where there has been avoidable distress, our recommendation to remedy this is usually between £300 to £1,000. This depends on the severity of the injustice, the vulnerability of those affected and whether the injustice is over a prolonged period.
72. In the case of lost educational provision, we normally recommend £200 to £600 per month.
73. The organisations have agreed to take the following actions, to remedy the injustice caused to Mrs P and R by their faults.
74. The Council will, within one month of our final decision:
• Apologise to Mrs P and R for the faults I have identified
• Ensure R is receiving the SALT and OT provision set out in his current EHC plan
• Pay Mrs P £250 to recognise the distress and uncertainty the Council’s fault has caused her
• Pay Mrs P £150 to recognise the time and trouble she has spent in chasing up the Council about the EHC re-assessment and the lack of Section F provision
• Pay Mrs P £5,000 (based on a sum of £400 per month) to recognise the fault resulting in loss of education provision for R, for the period January 2021 to February 2022. Mrs P should use this for R’s future educational benefit. We consider this amount to be a suitable remedy taking into account the provision in R’s EHC plan, the likely impact of the lack of provision, and his stage of education.
75. The ICB will, within one month of our final decision:
• Apologise to Mrs P and R for the faults I have identified
• Pay Mrs P £150 to recognise the time and trouble she has spent in chasing up the EHC re-assessment (in the context of the delayed health advice)
• Pay Mrs P £600 for the cost of the OT report she got privately due to the delays with the NHS report
76. To improve services to Mrs P and other families, the Council and ICB will take the following actions within three months of our final decision. They will write to Mrs P and us to confirm the action taken, and how this should prevent a recurrence of the faults in this case. There is already a joint SEND Strategy 2021-2024 which was produced to address significant weaknesses identified in a Joint Area SEND Inspection by OFSTED and CQC in 2019. In addition to carrying out the recommendations of that Strategy, the following actions are necessary to address the specific failures identified in this complaint.
77. The Council will:
1. review its processes and take actions to ensure it carries out re-assessments of need and issues updated EHC plans in line with statutory timescales and the requirements of the SEND Code of Practice
2. review sources of SALT and OT and develop a plan to ensure it can commission the SALT and OT therapies to support the EHC plans it maintains
3. review its approach to arranging alternative education (EOTAS) to ensure it makes this available as soon as possible when a child is out of school, and makes either full-time provision or clearly records an assessment of how much education the child or young person can manage
78. The ICB will:
1. provide an update on the work carried out to change the processes for assessment / input / triage where a request for health advice is about a child not already known to the service
2. provide an update on the work carried out with the Council and Trust to raise the profile of Ordinarily Available resources within and outside schools, and to understand the change in demand for health advice as part of EHC needs assessments
3. explain the action taken to ensure requests for health advice are completed within six weeks
79. The Council and ICB will work together to agree quality standards for health advice requests, and carry out regular monitoring of compliance to ensure requests meet the standards.

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Final decision

80. I have found fault by the Council and ICB. This fault caused Mrs P and R an injustice. The organisations have agreed to take action to remedy that injustice. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman