Summary: Mrs X complained about errors in the Council’s handling of her son, Y’s, Education Health and Care (EHC) Plan between October 2020 and September 2022. She said this caused uncertainty and distress for two years and meant Y has missed out on specialist educational provisions. The Council was at fault. There were delays issuing two EHC Plans between October 2020 and September 2022. It failed to appropriately consider Mrs X’s request for occupational therapy advice as part of an EHC needs assessment process. There was also poor communication. The Council will apologise to Mrs X, make financial payments to remedy the uncertainty and distress caused and Y’s lost provision and improve its services.

The complaint

1. Mrs X complained about errors in the Council’s handling of her son, Y’s, Education Health and Care (EHC) Plan since October 2020.
2. She complained the Council:
1. Never issued a final amended plan after the annual review meeting in October 2020.
2. Agreed he needed a re-assessment of his needs in September 2021 but delayed issuing a final EHC plan until September 2022.
3. Wrongly refused to consider whether it needed an occupational therapy assessment and other assessments as part of the re-assessment process, when parents requested this.
4. Did not included therapy provisions in the final plan issued September 2022.
5. Communicated with them poorly, often leaving months with no contact or response to emails and made repeated errors in their son’s personal details.
3. Mrs X says the errors mean Y has missed out on education and specialist provision, their right of appeal to the SEND tribunal was delayed and it caused the whole family distress.
4. She wants the Council to provide additional support to help Y catch up on missed education and provide a financial remedy for the lost provision, delays and poor communication and improve its services.

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What I have and have not investigated

5. I have not investigated point d) of Mrs X’s complaint. This is because Mrs X had a right of appeal to the SEND Tribunal about the content of the final plan and it was reasonable for her to use it. This part of the complaint is out of our jurisdiction.

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The Ombudsman’s role and powers

6. 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)
7. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
8. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
9. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
10. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
11. 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)
12. 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

13. I read Mrs X’s complaint and spoke with her about it on the phone.
14. I made enquiries of the Council and considered information it sent me.
15. Mrs X and the Council had the opportunity to comment on the draft decision. I considered their comments before making a final decision.

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What I found

Background information

Education, Health and Care Plans

16. Some children and young people with special educational needs and disabilities will have an Education, Health and Care Plan (EHC Plan). The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs.

The EHC Plan assessment process

17. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). 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.

18. The Council should decide whether to complete an EHC Plan needs assessment within 6 weeks and complete this within a further 14 weeks. The whole assessment process must take no more than 20 weeks.

Annual reviews

19. A council must review a child’s EHC Plan at least every 12 months. If a child attends a school or other educational institution, it can ask the school to arrange and hold the meeting on its behalf.
20. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
21. Where a council proposes to amend an EHC Plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
22. It must send the child’s parents a copy of the existing plan and the proposed amendments. The parent must be given at least 15 days to comment on the proposed amendments. If the council decides to continue making the amendments, it must issue the amended EHC Plan as quickly as possible, and within 8 weeks of the original amendment notice. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
23. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC Plan. The right of appeal is only engaged when the final amended plan is issued.
24. Where a Council considers a child’s needs have changed substantially, they may agree to re-assess a child’s needs following the EHC Plan assessment process as set out above, rather than reviewing and amending an existing plan.

What happened

25. Mrs X’s son, Y, has special educational needs and an EHC Plan. In 2020, he attended an independent special school, funded by the Council. In October 2020, Y’s school held an annual review meeting. The meeting record said:
• The placement remained appropriate.
• The provision in the plan needed to be amended in order to meet Y’s needs.
• Y’s parents had concerns about whether the school was meeting his needs, but for the moment Y had said he wanted to stay at the school.
• The last year had been very difficult for Y.
• The school would seek advice from an educational psychologist and refer Y for an occupational therapy (OT) assessment.
26. Following this, the Council did not notify Mrs X whether it intended to maintain, amend or cease the plan. Nor did it send Mrs X any plan with proposed amendments.
27. In March 2021, Y changed his name by deed poll and Mrs X sent the Council evidence of this in May 2021.
28. In May 2021, Mrs X told the Council Y was having difficulties at school and she did not feel the school was meeting his needs. The Council agreed to involve a specialist officer to work with her to resolve the concerns.
29. In June 2021, Mrs X told the Council the school was not meeting Y’s needs and she wanted Y removed from the school register. She asked the Council if it could put home tutoring in place instead and requested involvement from occupational therapy.
30. The school held an annual review in June 2021. The school agreed it was not meeting Y’s needs and said Y could not currently cope with a school setting. It said it would refer him to a home tutoring service to ensure he received education for the rest of the summer term.
31. Y received home tuition until the end of the summer term.
32. In July 2021, Mrs X told the Council the home tuition was working well and set out their reasons for wanting this to continue. She again asked for occupational therapy involvement. In August 2021, the Council agreed to fund 10 hours home tutoring per week for the Autumn 2021 term. As Y’s needs had changed significantly, it also decided to re-assess Y’s Education, Health and Care needs, rather than amending his current plan.
33. Y’s home tuition re-started in September 2021. The Council began the EHC re-assessment process. Mrs X says she asked for an occupational therapy assessment as part of this. The final plan was due by December 2021.
34. Mrs X emailed the Council in October and November 2021 for an update but the Council did not respond.
35. In January 2022, the Council agreed to fund Y’s home tuition for the rest of the school year.
36. In February 2022, Mrs X emailed the Council again to ask for an update on Y’s EHC Plan. She said the Council had not contacted her about it since September 2021.
37. The Council responded in March 2022. The officer said she had just taken over Y’s case. She asked Mrs X how Y was progressing with home tuition and what her preference was for Y’s education going forward. Mrs X responded the same day to say the tutoring was going well and she wanted Y to continue with this.
38. In April 2022 Mrs X emailed the Council again. She complained about the delays. The email said:

“for the fifth/sixth time, we are asking for an EOTAS package, […] a termly OT visit, mentoring weekly by a PA and other forms of weekly online provision such as Mindjam”

39. In May 2022, Mrs X complained to the Council. She said following the Council’s agreement to re-assess Y’s needs, it should have finalised the plan by December 2021. It was now May 2022 and she had not received a final plan. She asked the Council to finalise the plan as soon as possible.
40. The Council sent Mrs X a draft EHC Plan for her comments the next day.
41. The Council responded to her complaint. It apologised for the delay and frustration caused. It said the matter was now resolved as it had sent her a draft plan.
42. Mrs X was unhappy and asked to escalate her complaint. She said the Council had provided no explanation for the delay. Although it had sent a draft, they had still not received a final plan. She complained of unreasonable delay and poor communication.
43. The Council sent her a stage two complaint response. It apologised again for not meeting the statutory timescales for issuing the EHC Plan. It said it would issue the final plan by 10 June 2022.
44. The Council did not finalise the plan in June 2022.
45. Mrs X remained dissatisfied and brought the complaint to us.
46. The Council issued a final EHC Plan for Y in September 2022. The accompanying letter told Mrs X of her right to request mediation or to appeal to the SEND Tribunal. Provision in the plan included:
• Personalised, targeted support and interventions to be implemented by the tutor in the areas of communication and interaction, cognition and learning, social emotional and mental health and physical and sensory needs.
• Support to tolerate graded exposure to his fears – to be provided during one hour sessions, twice monthly and delivered by a therapist or Autism specialist.
• Personalised intervention to expand participation in an area of interest – initially one hour per week to be delivered by the tutor or another adult working with Y, increased to two hours as able.
47. In its response to our enquiries, the Council said:
• It accepted it did not follow the statutory process or produce an amended EHC Plan for Y after the October 2020 annual review. It apologised for its failure to do this.
• It accepted that following the decision to re-assess Y’s EHC needs, it should have issued a final EHC Plan by December 2021. It did not do this until September 2022. It accepted this was a delay and apologised for this.
• It had no records of her communications from October- January 2022 but did not dispute her statement that she sent them. It apologised for the distress caused if she did not receive responses.
• It had no record of Mrs X requesting an occupational therapy assessment as part of Y’s EHC re-assessment. In any case, the Council did not carry out or commission health assessments, it would only obtain information and seek advice from services a child was already involved with.
• It apologised that it had spelt Y’s name wrong in the stage 1 complaint response. It confirmed its records now had Y’s name spelt correctly. It apologised for any other errors it had made in the past.
• Although it accepted some faults and apologised for these, it did not agree Y had missed out on education.

Analysis

The October 2020 Annual Review

48. The Council has accepted it failed to communicate with Mrs X or issue a final amended EHC Plan after the October 2020 annual review meeting. This was fault. The meeting record indicates that the plan needed amending, but Y should remain at his current school. I cannot say the failure to amend and finalise the plan caused Y a loss of education as he remained on the school roll until June 2021, after which the school arranged home tuition for the remainder of the term. However, it did cause uncertainty as to what special educational provision Y may have missed out on. The uncertainty also caused Mrs X frustration and distress.

The EHC Plan re-assessment

49. The Council agreed to re-assess Y’s EHC needs in August 2021. The EHC assessment process should have been completed by December 2021. It did not issue a final plan until September 2022. This delay is fault which caused Mrs X frustration. This delay also caused injustice to Y. Although Y was receiving education between December 2021 and September 2022, for two terms he missed out on the specialist provisions and additional support listed in the September 2022 Plan. This included sessions with a specialist therapist, specialist teaching interventions and time expanding an area of interest. The loss of these provisions is likely to have impacted on his progress and learning.

Request for occupational therapy assessment

50. The October 2020 annual review record says Y’s school agreed to refer him for an OT assessment and I cannot know whether the school progressed this or not. The Ombudsman cannot investigate the actions of schools, so I cannot make a finding on this point.
51. Mrs X says she asked for an OT assessment as part of the EHC re-assessment process. The Council says it did not receive a request. Having considered the evidence and on the balance of probabilities, Mrs X did make this clear to the Council, and the Council should have considered this request. This is because:
• The evidence shows Mrs X requested OT input for Y in two emails to the Council in June and July 2021.
• The Council says it has no record of Mrs X’s communications between October 2021 and January 2022 but does not dispute her statement that she sent it emails during this time.
• The Council did not contact Mrs X about the EHC re-assessment until March 2022, despite this process starting in September 2021.
• In an email Ms X sent to the Council in April 2022, she told the Council she wanted OT involvement and said she had already asked for this five or six times.
52. The Council should have considered whether Mrs X’s request for an OT assessment to enable OT provision to be included in Y’s plan was a reasonable request. If it considered it reasonable, it should have arranged for this assessment, either through appropriate commissioning arrangements with the NHS or privately.
53. The Council says in any case, it would not have referred Y for an OT assessment as part of the EHC re-assessment, as it does not commission health assessments as part of the process and will only seek advice from professionals already involved with a child or young person.
54. The SEND regulations state a council must seek information and advice from “any person the child’s parent or young person reasonably requests that the local authority seek advice from”.

The regulations do not state a child must be known to a service in order for a council to consider seeking advice. The Council should have considered the individual circumstances of Y’s case and whether Mrs X’s request was reasonable. There is no contemporaneous record showing the Council considered Mrs X’s request following her email in April 2022 or prior to this, or how it concluded her request was not reasonable as part of the EHC re-assessment. On balance, the Council did not appropriately consider the request and this was fault.

55. I cannot know whether an OT assessment would have led to the inclusion of OT provision in Y’s EHC Plan finalised in September 2022. However, the failure to appropriately consider Mrs X’s request has caused uncertainty. Mrs X has the right to appeal to the SEND Tribunal about the content of the plan, and it is open to her to use that appeal right.

Communication

56. The Council accepted in its complaint response that its communication was poor. It did not keep Mrs X updated on the progress of Y’s EHC needs re-assessment. It has no record of any of her communications between October 2021 and January 2022. It made errors in the spelling of Y’s name. I agree this is poor communication and is fault. The poor communication has caused Mrs X frustration and distress and time and trouble chasing the Council.

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Agreed action

57. Within one month of the final decision, the Council will:
• Write to Mrs X to apologise to her for the faults identified and the uncertainty and distress caused by these.
• Pay Mrs X £1000 to acknowledge the cumulative uncertainty and distress caused by the failings identified since October 2020.
• Pay Mrs X an additional £1200 to be used for Y’s educational benefit, in recognition of Y’s lost special educational provisions between December 2021 and September 2022.
• Remind relevant officers that they must consider individual parental requests for advice from relevant professionals during EHC needs assessments and decide whether the request is reasonable in each case. If the request is reasonable, the Council must seek that advice even if the child is not currently known to that service/professional.
• Remind relevant officers of the importance of keeping parents updated during the EHC needs assessment process.
58. Within three months of the final decision, the Council will review its procedures to ensure:
• Officers complete the required paperwork after annual reviews, and it has an effective way to monitor this.
• It completes EHC needs assessments/ re-assessments within the statutory timescales and it has an effective way to monitor this.
59. The Council should provide us with evidence it has complied with the above actions.

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Final decision

60. I have completed my investigation. I have found fault and the Council has agreed actions to remedy the injustice caused and improve Council services.

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Investigator's decision on behalf of the Ombudsman