Summary: Ms X complained about delays with getting professional advice and issuing an Education and Health Care Plan (EHCP) for her daughter (Z). She also complained about the Council’s unsatisfactory communication throughout the EHCP process. Ms X said the Council’s failings had detrimental effect on Z at the critical stage of her education, caused them distress and resulted in the family’s financial difficulties. We find the Council at fault for failing to comply with the EHCP timescales and to effectively communicate with Ms X. The Council has accepted our recommendations for personal remedies and service improvements.

The complaint

1. Ms X complains about the Council’s failings during the EHCP process for her daughter (Z). She says the Council failed:
• to seek Occupational Therapy (OT) and Physiotherapy advice during an EHC assessment;
• to comply with the assessment timescales;
• to comply with deadlines for issuing an EHC plan for Z.
2. Ms X also complains about the Council’s unsatisfactory communication during the process.
3. The Council’s alleged failings had, according to Ms X, negative impact on her daughter and herself:
• the delays impacted Z’s General Certificate of Secondary Education (GCSE) grades and she lost a chance to get a supported transition to her new educational setting. The Council’s failings were also damaging to Z’s self-esteem, resilience and mental health at the critical stage of her education;
• to support Z with her GCSE exams Ms X had to change jobs and commission private tutoring as well as an Educational Psychology (EP) report. This had negative financial impact on the family. The situation around Z’s education also impacted Ms X’s mental health and well-being.

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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 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 Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)
6. 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)
7. 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)

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How I considered this complaint

8. I reviewed the documents sent by Ms X and the Council.
9. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
10. 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

Legal and administrative background

Advice received during the EHC needs assessment

11. As part of the assessment councils must gather advice from relevant professionals. This includes:

• the child’s education placement;
• medical advice and information from health care 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.

(Special Education Needs Regulations 2014 paragraph 6(1))

12. The council must not seek further advice if it already has advice and “the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process”. In making this decision the council and the person providing the advice should ensure the advice remains current.
13. Those consulted have a maximum of six weeks to provide the advice.
14. The council should consider with the child’s parent and the parties listed the range of advice required to enable a full EHC needs assessment to take place. (Statutory guidance Special educational needs and disability Code of Practice: 0 to 25 years paragraph 9.47)
15. 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. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.

EHCP timescales

16. 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:

• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;
• 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;
• 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 (unless certain specific circumstances apply); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.

17. When a council sends a draft plan to a child’s parent or young person it must give them at least 15 days, beginning with the day on which the draft plan was served, in which to: 
• make representations about the content of the draft plan, and to ask that a particular school or other institution be named in the plan; and 
• require the council to arrange a meeting between them and an officer of the council at which the draft plan can be discussed. 

18. Following an unopposed appeal against the Council’s decision not to carry out an EHC needs assessment, the Council is bound by following timescales from the date the Council sent its response to the Tribunal:
• two weeks to notify the child’s parents that it must make the EHC needs assessment;
• 14 weeks to send the parents the finalised EHC plan.

(Special Educational Needs and Disabilities (Amendment) Regulations 2015 paragraph 8(a))

Communication with the parents

19. Parents views are important during the process of carrying out an EHC needs assessment and drawing up or reviewing an EHC plan in relation to a child. Local Authorities should enable parents to share their knowledge about their child and give them confidence that their views and contributions are valued and will be acted upon. (Statutory guidance Special educational needs and disability Code of Practice: 0 to 25 years paragraph 1.7)
20. Local authorities should support and encourage the involvement of children, young people and parents or carers by:
• providing them with access to the relevant information in accessible formats;
• giving them time to prepare for discussions and meetings; and
• dedicating time in discussions and meetings to hear their views.

(Statutory guidance Special educational needs and disability Code of Practice: 0 to 25 years paragraph 9.24)

Key facts

Background

21. Z is 16 and moving to the sixth form attached to her secondary school.
22. Due to Z’s school-related anxiety, in the autumn of 2021 Z was referred to a charity offering mental health and emotional well-being advice and support for children and young people (the Well-being Service). This was the second referral as the first one took place in 2018 and resulted in six counselling sessions.
23. In the beginning of 2022 Z was diagnosed with attention deficit hyperactivity disorder (ADHD) and started medication.
24. In response to the Council’s request for advice from Z’s educational placement, in January 2022 Z’s school told the Council it had been providing Z with extra support in the form of:
• exam access support arrangements;
• access to pastoral staff;
• movement break pass;
• priority careers advice and 1:1 support;
• adapted timetable;
• 1:1 and small group support for English and Maths with tutors;
• targeted intervention groups;
• extra Learning Support Assistant (LSA) in Maths;
• Speech and Language Therapy (SLT) assessments and monitoring;
• weekly academic mentoring prior to GCSE exams.
25. From the end of April 2022 the Well-being Service started delivering therapy to Z, which, as Ms X reported, had a very positive impact on Z.
26. Concerned about Z’s academic progress, Ms X arranged weekly private tutoring for Maths and English for Z, which started in July 2021 and continued till June 2022.
27. Both in the spring and summer terms Z’s grades were significantly below her target grades. Between these terms five of Z’s grades improved, one got lower and two remained the same.
28. Ms X credited Z’s progress with her academic studies since her mock GCSEs to ADHD medication, which Z started taking in February 2022, and the private tutoring.
29. Z took her GCSE exams in May and June 2022.

EHCP process

30. Ms X asked the Council to carry out an EHC needs assessment for Z in mid-July 2021.
31. A month later the Council refused to carry out an EHC needs assessment for Z claiming her needs could be met through resources available in school. The Council explained it would be happy to reconsider a new request for an assessment if Ms X could show Z’s needs could not be met within the quality first teaching.
32. After telling the Council Ms X considered appealing, the mediation meeting took place in October 2021. At this meeting Ms X filed a private EP report completed in the early October 2021 and a recent Speech and Language Therapy (SLT) advice.
33. Concerned about losing her appeal rights and while waiting for the Council’s post-mediation position, in October 2021 Ms X appealed the Council’s decision refusing an EHC needs assessment for Z.
34. At the end of November 2021 and after Ms X lodged her appeal, the Council agreed to carry out Z’s EHC needs assessment. Explaining the change in its position, the Council referred to the new professional advice which Ms X presented at the mediation meeting.
35. In the first week of December 2021 the Council sent its response to the Tribunal, conceding the appeal. The Tribunal formally closed the appeal in mid-January 2022.
36. In December 2021 Ms X and Z’s SEN Case Officer exchanged emails about parental request for Physiotherapy and OT assessments.
37. With no appointments made for Z’s assessment Ms X contacted the Council again in the second part of January 2022, asking for an independent advice to be commissioned to ensure the Council’s compliance with the EHCP timescales. The Council rejected this suggestion.
38. In response to Ms X’s complaint sent in early February, the Head of Special Educational Needs (SEN) Service apologised for the delays in getting professional advice and for the Council’s failure to meet the EHCP deadlines.
39. Ms X told Z’s SEN Case Officer she was taking her complaint further. In the same email Ms X also asked for the information on colleges and sixth forms.
40. A few days later the Case Officer sent her the information she requested. They also asked for Ms X to provide information necessary to complete Section A of Z’s EHCP.
41. In mid-May the Council told Ms X it decided to issue an EHCP for Z.
42. Ms X contacted Z’s Case Officer in mid-June asking about the draft EHCP and raising the issue of the delays. She also expressed her concerns about the quality of the OT assessment and in particular lack of any sensory assessment or preparation for adulthood section.
43. In the email correspondence which followed the Case Officer mentioned she had been convinced Ms X wished to wait for the OT report before issuing a draft EHCP.
44. In the third week of June the Council issued the first draft EHCP. Section A of the draft EHC plan, where a child’s or young person’s and their parents’ views, wishes and aspirations are to be recorded, contained sparse information. Many parts were left blank. There was no information under many headings.
45. From the end of June there have been exchanges of correspondence between Ms X and the Council about the content of the plan. They resulted in the Council issuing subsequent drafts of the plan.
46. In mid-August the Council issued version three of the draft EHCP. Section A of this version, as well as the version two of the draft EHCP, included the information provided by Z and her mother. At the time Ms X was supported by a SEN advocate.

Advice sought during Z’s EHC needs assessment

47. As part of EHC needs assessment the Council asked for advice from: Z’s school, Social Care, Community Paediatricians, EP, Child and Adolescent Mental Health Services (CAMHS), the Council’s Children’s Project, SLT, the Well-being Service. Some services approached by the Council provided their response with delay, in particular SLT, EP and the Well-being Service.
48. At the parental request the Council also asked for an Occupational Therapy (OT) and Physiotherapy advice:
• Physiotherapy team provided its response in late December 2021, refusing to carry out Z’s physiotherapy assessment saying Z did not fulfil the assessment criteria for an assessment. It stated there were no physiotherapy concerns in the referral for an EHCP. Previous physiotherapy General Practitioner’s (GP) referral was also declined as it did not specify any functional needs;
• OT – received in July 2022.
49. Although the private EP report mentioned requirement for a Physiotherapy and OT assessment, it failed to list Z’s physical or sensory needs which would justify this recommendation. The only difficulties described as Z’s physical and sensory needs are Z’s independence skills.
50. Aware of the delays caused by capacity problems in the professional teams, at the end of January 2022 Ms X asked the Council to commission private EP, OT and Physiotherapy assessments. The Council refused this request.

Analysis

Professional advice received during the EHC needs assessment

51. I do not find fault in the way the Council gained professional advice during Z’s EHC needs assessment for the following reasons:
• the Councils got all statutory professional advice listed in paragraph 11 bullet points one to four of this decision;
• the Council should have also obtained information and advice from any person sought by the parents if it considered it reasonable. Ms X explained she was asking for a Physiotherapy and OT advice as it was recommended by a private EP. The Council complied with the parental request and contacted the Physiotherapy and OT services for advice;
• responding to the Council’s request, the Physiotherapy team refused to assess Z and provided its reasons. Considering the only specific recommendations to seek Physiotherapy advice came from the private EP report, which failed to specify which difficulties the assessment would aim to explore, it seems reasonable for the Council not to pursue this matter further;
• it is not clear whether the Council agreed with Ms X that Z needed an OT assessment. The Council, however, asked for an OT advice and delayed issuing Z’s EHCP waiting for this report;
• if Ms X is not happy with a content of Z’s final EHCP, which might stem from the incomplete, in her view, professional advice gained during an EHC needs assessment, she can appeal to the Tribunal.

EHCP timescales

52. Following Ms X’s appeal and the Council’s response conceding it, the timescales for issuing Z’s EHCP should be calculated as mentioned in paragraph 18 of this decision. To give Z’s parent at least 15 days to comment and allow for expressing preference on an educational placement, Ms X should have received the draft EHCP by the end of February 2022 with the date for the final EHCP falling on 14 March 2022.
53. In fact, the Council sent the first draft of the EHCP in the third week of June, four months after the deadline. The Council issued Z’s final EHCP in the third week of August 2022. These delays are fault.
54. I recognise there were delays with providing some advice sought by the Council, especially an EP advice and an OT advice. However, if the Council had acted quickly after receiving its statutory EP advice, the delay in issuing a draft and a final EHCP would have possibly been two or three weeks, rather than 17 weeks for the draft EHCP and even more for the final. The absence of the OT advice did not justify the delay in issuing Z’s EHCP, especially when considering:
• physical and sensory needs were not Z’s primary SEN; and
• Z was about to take her GCSE exams and transition to a different provision.
55. In its response to my enquiries the Council disputed the impact of any delays in the EHCP process on Z’s education. It said at no point Z’s school considered Z needed extra support, additional to the SEN provision available in the school. Besides, due to the closeness of Z’s GCSE exams, even if her EHCP had been issued on time, it would have had a minimal effect on her exam preparations.
56. I cannot accept the Council’s argument leading to the conclusion Z did not suffer injustice because of the Council’s delays with issuing a draft and a final EHCP. When agreeing to issue an EHCP for Z the Council determined she needed special educational provisions to be made for her in accordance with an EHCP. In such case the delay in issuing it would have been detrimental to her.
57. Also, in view of the stage of Z’s education, the delay in issuing a final EHCP impacted the choice of her next educational setting. Ms X was aware of Z’s need for a robust transition, therefore when the Council issued the first draft EHCP in the third week of June 2022 she did not have time to explore alternative educational settings for September 2022, despite her and Z’s wish to do so. This would have been possible if the Council had issued a draft EHCP for Z in compliance with the timescales in February 2022.
58. The Council’s delays caused injustice to Ms X and Z.
59. Injustice caused by the delays to Z:
• delay with introducing all special educational provisions included in Z’s final EHCP;
• uncertainty about her education and provisions, which is especially damaging to a young person with social, emotional and mental health difficulties as a primary SEN;
• limited options to consult with various educational settings for the next stage of Z’s education.
60. When deciding injustice which the Council’s fault caused to Z it is important to consider the EHCP process has been taking place when Z was in Year 11, at the critical stage of her education. She was about to take her GCSE exams and move to a different educational placement.
61. Some circumstances, however, mitigated the negative impact of the Council’s fault. Even before drafting an EHCP for Z the school had already put in place many provisions to support Z in her GCSEs preparations and exam taking. These extra interventions are listed under paragraph 24 of this decision.
62. In her comments to my draft decision Ms X stated Z’s school only started supporting her from the end of September 2021 and failed to deliver all the provisions mentioned in the school’s advice to the Council, such as careers advice and weekly academic mentoring. I consider, on balance, there is no need for making further enquiries regarding this issue. Even without these provisions what the school implemented, has mitigated negative effects of the delay in issuing Z’s EHCP.
63. Injustice caused by the delays to Ms X:
• distress;
• uncertainty;
• delay in the opportunity to challenge the Council’s proposed support arrangements through an appeal;
• pressure to fund private educational support.

Communication with the parents

64. The evidence suggests the Council’s communication with Z’s parent was inconsistent, often reactive rather than pro-active and lacking in focus. This is fault.
65. There is only one recorded occasion before issuing the first EHCP draft when Z’s Case Officer asked Ms X for information on Z’s strengths and difficulties as well as aspirations which would inform Section A of her EHCP.
66. As listed in paragraphs 19 to 20 of this decision the EHCP process, introduced by the legislation in 2014, is meant to be child-focussed. Getting child’s and the parents’ views on the needs and support arrangements, as well as finding their wishes and aspirations should be a central element of drafting an EHCP.
67. Although at times, such as after issuing the first EHCP draft, the Council’s communication with Ms X was intensive, at other times the chronology of communication shows significant gaps. From March to mid-May 2022 there was hardly any contact, even though the EHCP should have been finalised by mid-March. This must have contributed to the delays in the process and caused Ms X and Z anxiety.

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Agreed action

68. To remedy the injustice caused by the faults identified, we recommend the Council completes within four weeks of the final decision the following:
• apologise to Ms X and Z for the injustice caused to them by the faults identified;
• pay Ms X £300 a month to recognise the negative impact of the delay in issuing a final EHCP for Z. The total the Council should pay is £1200 for the period of four months from the middle of March 2022 till the middle of July 2022;
• pay Ms X £300 to recognise the distress caused to her by the Council’s faults.
69. We also recommend the Council within four weeks of the final decision reminds all SEN case officers and their managers the importance of:
• compliance with the EHCP timescales; and
• involvement of children or young persons and their parents in the EHCP process.

The Council will provide the evidence that this has happened.

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Final decision

70. I uphold Ms X’s complaint about the Council’s failure to comply with the Education and Health Care plan timescales and to adequately communicate with her throughout the process. The Council has accepted my recommendations. This investigation is now complete.

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Investigator's decision on behalf of the Ombudsman