Summary: Ms X complained about delays and poor practice throughout the EHC process for her son. We have concluded our investigation having made a finding of fault by the Council. We found that that there were delays in the EHC process. Further to this, we found fault in the Council’s actions to undertake an OT assessment without the consent of Ms X. Although the Council has provided a remedy and made several service improvements, it has agreed to the further recommendations we have proposed.

The complaint

1. Ms X complains about delays throughout the EHC process for her son. Ms X also complains the Council undertook an assessment without her consent. Ms X would like the Council to take appropriate steps to improve its service to ensure such events do not happen again.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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.
4. When investigating complaints, if there is a conflict of evidence, we 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.
5. 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

6. As part of my investigation, I spoke with Ms X about her complaint. I also considered information that Ms X and the Council provided. I offered Ms X and the Council an opportunity to comment on my draft decision.

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What I found

Relevant legislation and guidance

Education Health and Care (EHC) Plans

7. The Children and Families Act 2014 sets out support for children with special educational needs and disabilities (SEND). The 'Special educational needs and disability code of practice' (the Code) gives more details about how councils, schools and others should carry out their duties.
8. A child with special educational needs may have an EHCP. This sets out the child's needs and how they should be met. The EHCP is set out in sections. We cannot direct changes to the sections about education or the setting named. Only the SEND tribunal can do this.
9. Councils must ensure EHCP provision is met. A council will usually do this by providing funding to a school or college to provide the necessary support. A council may also make a payment to a parent or young person so they can organise the provision themselves. This is called a personal budget. We can look at complaints about this. We can investigate where a council has not ensured provision, or where there have been delays in the process.
10. The Code says councils must review EHCPs, at least, annually. The review should focus on a child's progress towards achieving the plan outcomes and consider whether the outcomes and supporting targets remain appropriate. Councils can consider holding an early review if there is a change in the child's circumstances.
11. Councils must give notice to all those invited and seek advice and information from all parties. Following the meeting, councils must share a report with all parties within two weeks setting out any recommendations and amendments.
12. The council has four weeks from the review meeting to decide whether to maintain or amend the EHCP. It must present proposed changes to parents with an opportunity to comment and begin any amendments without delay.
13. The EHCP must be finalised within eight weeks of the amendment notice.
14. Councils should also tell parents they have a right to appeal the final EHCP to the SEND Tribunal.

Background

15. Y lives with his parents, Mr X and Ms X. Y has an EHC plan.
16. This decision statement covers the key events and is not intended to be a comprehensive account of everything that happened.

What happened

Annual Review and finalising the EHCP

17. The annual review took place in January 2021. In February 2021, the Council received the paperwork.
18. Ms X submitted further information In March 2021 in support of Music Therapy being incorporated into the final plan.
19. In March 2021, the Council rejected the request. The Council sent Ms X a post review confirmation letter agreeing to include changes following the annual review. The Council acknowledged that this was sent outside the statutory timescale.
20. Later in March 2021, a Speech, and Language Therapy (SLT) referral is made by the Council.
21. In June 2021, the Council received the SLT report.
22. In July 2021, an Occupational Therapy (OT) assessment referral is made.
23. In September, the Council held a telephone conversation with Ms X. The Council says Ms X requested it wait to issue the draft EHCP until after Y had undergone an OT assessment. The Council followed up in an email to Ms X to confirm this shortly after.
24. In October 2021, Ms X emailed the Council's SEND Service, regarding the delay in issuing the EHCP.
25. Later in October 2021, the Council emailed Ms X suggesting the school bring forward the annual review in January 2022 so it could capture all recent information.
26. To conclude, the Council did not finalise the EHCP for 2021, in favour of bringing forward the annual review for January 2022.

OT Assessment

27. After the Council received the annual review paperwork in February 2021, it requested an updated assessment regarding the therapy provision.
28. The Council emailed Ms X in March 2021 to inform her about the assessment request.
29. The Council had not heard back and so it followed up with OT services in July 2021. OT services advised the Council that Ms X had requested the OT assessment be arranged after the summer holidays.
30. In September 2021, the Council contacted Ms X to discuss the assessment. The Council says it was agreed with Ms X that she would contact OT services to arrange the assessment.
31. Later in September, OT services arranged and carried out the OT assessment without consent from Ms X.
32. Ms X contacted the Council to complain it had undertaken an assessment without her consent. OT services advised that there was a record on their system that an appointment had been booked with Ms X earlier in September 2021.
33. The Council apologised to Ms X, advising her that it was not aware the appointment had been booked.
34. Ms X emailed the Council in September 2021 to inform it that despite the assessment being undertaken without her consent, she had still not received a copy of the report.

Analysis

Were there delays in finalising the EHCP following the annual review in 2021?

35. As per paragraph 12, within four weeks of the review meeting, the Council must decide whether it proposes to keep the EHCP as it is, amend the plan, or cease to maintain the plan, and notify the child's parent or the young person and the school. The Council did not do so until March 2021, where it acknowledges this was sent outside of the statutory timescales.
36. In February 2021, the Council requested an updated assessment regarding therapy provision which it says was missed by SEND case officers. The Council did not follow this up until July 2021, thereby contributing to delays in finalising the EHCP.
37. The Council has eight weeks to finalise the EHCP following an amendment notice, which it did not do. There were a number of factors that contributed to this, including delays in assessments and referrals not being actioned. In any event, the matter remained up until unresolved up until September 2021 that it was suggested the annual review for 2022 be brought forward.
38. Although there were delays in the process, I have not seen any evidence to suggest that Y has missed out on any provision as a result.
39. In recognition of the delays in the process, the Council made a redress payment of £400 to Ms X, and an additional amount of £200 for delaying her appeal rights. It is my view that this is a satisfactory remedy.

Did the Council undertake assessments without the knowledge or consent of Ms X?

40. As per the SEND Code of Practice, 'the decision to involve specialists should be taken with the child's parents'.
41. The Council says it had a record on their system that it had arranged the appointment with Ms X during a call in September 2021. The Council acknowledges that it did not have the consent of Ms X to proceed, as during a call with Ms X, it was agreed that she would call OT services to schedule the appointment, which she did not.
42. It is therefore probable that there was a misunderstanding during the call that resulted in the appointment being scheduled and carried out. The Council has apologised to Ms X and awarded an additional amount of £200 in recognition of the time and trouble spent on the matter. It is my view that whilst this remedies the injustice, the Council has not put in place any service improvements to prevent such issues occurring again.
43. It is also not clear why the Council did not immediately send Ms X a copy of the OT assessment report when it became available. Ms X had to complain to the Council in order to receive it.

What action has the Council taken following Ms X’s complaint?

44. In response to Ms X complaint, the Council advised it would be undertaking a number of service improvement measures.
45. All SEND case officers at the Council have attended an accredited training course where statutory timescales and the Council's duties have been reinforced. The Council has also advised that the accredited training course will now be included in the induction training for new staff joining the Council.
46. The Council has also provided targeted support to SEND officers regarding the annual review process.
47. The Council has taken sufficient action to ensure that staff are trained, and that support is provided where appropriate.

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Agreed action

48. It is positive to see that the Council has been proactive in offering Ms X a personal remedy in line with our guidance, and we do not have any additional recommendations to make in this regard.
49. In order to prevent similar issues occurring again, the Council should:
1. Explain what measures it will put in place to ensure that any assessments it has scheduled are undertaken with the appropriate consent in place first.
2. Explain what measures it will put in place to ensure any applicable reports are sent to the relevant people as soon as available to do so.
50. The Council has agreed to complete actions a and b within two months of the Ombudsman's final decision.

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Final decision

51. I have concluded my investigation having made a finding of fault. There were delays in the EHC process, and the Council undertook an OT assessment without the consent of Ms X. Although the Council has provided a remedy and made several service improvements, it has agreed to further recommendations.

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Investigator's decision on behalf of the Ombudsman