Summary: Mrs X complained about the delays in the statutory Education, Health and Care plan assessment and an assessment by Occupational Therapist. She also complained about the Council’s poor communication with her about the assessments. Mrs X said the Council’s actions caused her and her son avoidable distress and uncertainty. The Council was at fault for the delays. It agreed to take action to remedy the injustice caused to Mrs X and Y.

The complaint

1. Mrs X complains that following a needs assessment of her son, Y that took place in March 2022 the Council failed to:
• issue the final Education, Health and Care Plan within the statutory 20 weeks;
• arrange for an Occupational Therapy sensory needs assessment she asked for;
• effectively communicate with her about the progress of Y’s EHC plan; and
• follow its own corporate complaint policy when it did not send a stage two response to her complaint.
2. Mrs X said the Council’s failures have caused significant stress to her family. She also says had it not been for the Council’s faults Y would have started education at a specialist school sooner than September 2023.
3. Mrs X would like the Council to secure the Occupational Therapy sensory needs assessment to inform the annual review of Y’s EHC plan. She would also like the Council to make the necessary service improvements so that no other family experiences the stress she has gone through.

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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. 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.
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
7. If we are satisfied with a council’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

8. I considered the information Mrs X sent me, and I have spoken to her about her complaint.
9. I considered the Council response to my enquiries.
10. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Education, Health and Care Plan (EHC plan)

11. The Children and Families Act 2014 (the Act) sets out the framework for supporting special educational needs (SEN). The Act is supported by Special Educational Needs and Disabilities Regulations 2014 (the Regulations) and the Special Educational Needs Code of Practice 2015 (the Code). These contain detailed guidance to local authorities about how they provide support for children and young people with SEN.
12. The majority of children with SEN have those needs met by schools and early years settings. Those bodies have a responsibility to identify children with SEN, sometimes with the help of outside specialists.
13. If a school or parent has concerns that, despite a school’s SEN provision, a child is not developing, they can ask a local authority to consider whether it needs to carry out an assessment of EHC needs.
14. An Education, Health and Care Plan (EHC plan) is a legal document which sets out a description of a child's special educational needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care.
15. The Council must respond to all requests for an EHC plan. It must decide whether an assessment is needed within six weeks of receiving the request. The whole process from the point of request to the Council issuing the final EHC plan must take no more than 20 weeks.
16. Where there are exceptional circumstances, it may not be possible for the Council to meet the timescales. The Council should tell the child’s parent or the young person of the reasons for any delays.
17. Councils must seek advice from the child’s parent, their school, healthcare professionals involved, an educational psychologist, and from anyone else the parent has reasonably requested (Special Educational Needs Code of Practice paragraph 9.49)
18. The Regulations set out the minimum information and advice the Council should seek in an EHC assessment. A parent or young person can ask the Council to seek advice from anyone within health, education or social care and, provided it is a reasonable request, the Council must do so.
19. The Regulations say the advice should be provided within six weeks, which is also the timescale for a local authority deciding whether it needs to draw up a plan.
20. The Code says a council:
• must ensure the child’s parents are fully included from the start and consulted throughout the production of the plan; and
• should carry out timely, well informed assessments.
21. The Council can only issue an EHC plan after a child or young person has gone through the assessment. At the end of that process the Council must decide whether to issue a plan or not.
22. If the Council decides to issue a plan it must first issue a draft for the parents or young person to consider. The Council does not have to provide exactly what the parents request but it should be able to explain why the EHC plan meets the needs of the child.
23. The Ombudsman cannot investigate the Council’s decision whether to conduct an assessment, and the content of the EHC plan as these are appealable to SEND Tribunal.
24. The Ombudsman can look at any delay in the assessment and creation of an EHC plan as well as any failure by the Council to deliver the provision within an EHC plan.
25. Once the Council completes the EHC plan it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.

Council’s corporate complaints procedure

26. The Council’s complaint procedure has two stages. The Council says it will acknowledge complaints at both stages in three working days. It will respond to stage one and stage two complaints in 15 working days.
27. Where the Council may not meet the above timescales, the policy says it will update the complainant at least every two weeks.

What happened

28. Mrs X asked the Council to assess Y for an EHC plan in March 2022. The Council decided to do it two months after Mrs X’s request.
29. Between May and September, the Council asked professionals for their input. The Council asked education and some health professionals for advice. The Council did not ask an Occupational Therapist for advice.
30. Mrs X emailed the Council in October to ask for an update on Y’s EHC plan assessment, but she said she did not get any replies to her messages. Mrs X decided to email the Director of the service and told them that Y had been placed in a pupil referral unit and he would not be allowed to go back to his mainstream school after this.
31. In late October the Council issued its first draft EHC plan and sent it to Mrs X in early November. In this draft the Council said that Y’s school should make a referral for an OT assessment to explore his sensory needs. Mrs X asked the Council to make the OT assessment referral, but the Council told us that it did not consider Mrs X’s request to be reasonable. It said that it told Mrs X that she could ask the school to request the OT assessment. At this time the Council acknowledged the corporate complaint Mrs X made.
32. In the same month, Y’s caseworker made contact with Mrs X for the first time.
33. The following month, Y’s school told Mrs X it had received a draft EHC plan from the Council. It also passed a copy to Mrs X so she could comment on it.
34. The Council told us that it had received a copy with Mrs X’s comments of the draft plan, and it believed it had sent her a copy at the same time it had sent one to the schools.
35. At the end of November the Council issued its stage one response to Mrs X’s corporate complaint, but this was over the time limit set in the Council’s corporate complaint policy. The Council apologised for the delay.
36. Mrs X asked the Council to escalate her complaint a few days later. She was not happy with the response she received.
37. Throughout December and January Mrs X chased the Council for updates and school consultation documents. She also attended a virtual meeting to discuss the changes to Y’s draft EHC plan.
38. After receiving feedback from Mrs X and from consulted schools the Council issued Y’s second draft EHC plan at the end of January 2023. Within a few days the Council sent the second draft to Mrs X for comments and consulted more schools.
39. Within 48 hours Mrs X confirmed she was happy with the changes and asked the Council to finalise the plan.
40. In February the Council decided that Y would remain at his specialist placement until the end of this academic year, and in September 2023 Y would transfer to a specialist school that could meet his needs.
41. The following month Mrs X chased her complaint and the Council told her it was waiting for the service to address it.
42. At the end of the month Mrs X came to the Ombudsman and asked us to consider her complaint about the ongoing delays in the EHC plan assessment and her corporate complaint.
43. The Council issued Y’s final EHC plan at the end of March.
44. In April, two months after it was due, the Council issued its final response to Mrs X’s corporate complaint.
• It apologised for the delays in the responses and offered £150 as a remedy for the time and trouble Mrs X encountered in pursuing her complaint.
• Explained the consultations it made.
• Confirmed it issued Y’s final EHC plan and he had a suitable place from September 2023.

Analysis

EHC plan assessment

45. Mrs X asked the Council to assess Y in mid-March 2022, but the Council did not make a decision about this until late May 2022. This is ten weeks after Mrs X’s request. This is fault.
46. The Code says that the Council should have issued Y’s EHC plan within 20 weeks from when Mrs X requested an assessment. This means that Council should have issued the plan by early August 2022, but this did not happen until end of March 2023. This is six months after the statutory deadline and is fault.
47. We consider both the delay in deciding whether to assess and later on, in finalising the EHC plan, have caused Mrs X and Y avoidable distress and uncertainty about what was going to happen.
48. The Council accepted that it did not produce Y’s EHC plan withing the statutory 20 weeks and to recognise the distress Mrs X has experienced because of the delay in finalising Y’s EHC plan the Council offered to pay her a personal remedy of £250.
49. Mrs X said that because of the delay in finalising Y’s EHC plan he was excluded from his school and had to attend a pupil referral unit.
50. We cannot say even on balance of probabilities what would have happened if the council had assessed and finalised Y’s EHC plan within the statutory 20 weeks. This causes Mrs X further avoidable distress and uncertainty about Y’s experiences had it not been for the Council’s delay.
51. Because of this we do not consider the Council’s offer of £250 to be a suitable remedy for the avoidable distress and uncertainty the Council’s faults have caused Mrs X.
52. We have recommended actions we consider the Council should take to remedy the injustice caused to Mrs X at the end of this statement.

Occupational Therapy sensory needs assessment

53. The Council said that it did not request an OT assessment because it did not think it was necessary.
54. The Council’s records show that in early 2022, Y was diagnosed with Autism Spectrum Disorder (ASD). The diagnosis letter says that he would benefit from a sensory assessment to understand his needs.
55. The same letter contained comments from Y’s teachers that showed he struggled to join in with the lessons and to access the education his peers were receiving.
56. Furthermore, in November 2022 the Council issued a draft EHC plan that said the school would make a referral for a sensory needs assessment.
57. Mrs X requested a sensory OT referral, but the Council said it would not do it and told her to ask Y’s school for the referral.
58. The Council told us it did not consider her request to be reasonable, because:
• Mrs X could request a referral from the school; and
• Y had not been previously known to the Special Educational Needs Statutory Assessment and Provision team.
59. The Council was at fault when it decided that Mrs X’s request for a sensory needs assessment was not reasonable. This is because there was already evidence from other professionals showing that Y would benefit from having such assessment.
60. The fact that Mrs X could have asked other professionals, such as Y’s school or his GP, for such a referral does not mean her request to the Council was not reasonable.
61. The Council’s decision caused Mrs X avoidable distress and uncertainty about what would have happened had the Council made the referral when Mrs X requested it.
62. We do not consider that Y missed out on special educational provision as a result of the Council’s action as Mrs X was happy with the final EHC plan it issued. If she felt or feels in the future that his plan does not meet all his needs, she can dispute the contents of the plans to the SEND Tribunal.

Communication between Mrs X and the SEND Team

63. Mrs X told us she was not happy with the communications between her, and the Council’s SEND team.
64. She said that she spent a considerable amount of time chasing the Council for updates, and there were times when she didn’t get a reply and her husband would have to get involved.
65. The Council said that it updated Mrs X at regular points throughout the assessment process. The Council’s records show that between May 2022 and September 2022 the Council messaged Mrs X on average every six weeks. This includes correspondence sharing draft plans for Y.
66. Between October and December, the Council contacted Mrs X every two weeks. Which, in comparison to the previous months, is much more frequently.
67. From December 2022 to March 2023, when the Council issued the final EHC plan, there were eight weeks between the communications from the Council to Mrs X.
68. Mrs X also provided us the emails she sent to the Council chasing for updates about the assessment, school consultations and the corporate complaint process.
69. We consider the frequency of the communication from the Council was inconsistent and fell below a standard that we would expect. This has resulted in avoidable distress for Mrs X.
70. Mrs X told us that she believed that part of a problem was the fact the Council believed she had separated from her husband, which was brought up by an officer during a call in November 2022.
71. The Council confirmed that during this call an officer mistakenly referenced Mrs X being separated from her husband, but assured us this had no impact on how and when it contacted Mrs X. We are satisfied there were no contact restrictions put in place as a result of this misunderstanding and we found no evidence of fault in the Council’s actions.

Council’s corporate complaint policy

72. The Council accepted that it did not issue stage one and two responses to Mrs X’s complaint in time. This is fault.
73. It has apologised for the delay and offered Mrs X a personal remedy of £150 for the difficulties she experienced with the complaints procedure.
74. We consider this to be a suitable remedy for the time and trouble Mrs X was put to in chasing the replies to her corporate complaint.

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Agreed action

75. Within one month of the date of the final decision statement, the Council will:
• apologise to Mrs X for the delay in finalising Y’s EHC plan;
• pay Mrs X £400 in recognition of the distress, frustration and unnecessary she experienced as the result of the delay in finalising the EHC plan within 20 weeks, poor communications with the SEND team and failing to consider her request for a sensory OT assessment as reasonable;
• pay Mrs X £150 in recognition of the time and trouble she went to in chasing the Council for the replies to her corporate complaint. This is the remedy the Council has already offered to Mrs X;
• consider Mrs X’s request for a sensory OT assessment and decide if it needs to make the referral. The Council should share its decision and reasons for it with Mrs X; and
• remind its SEND officers the importance of keeping the parents updated of the EHC plan assessment process.

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Final decision

76. The Council was at fault for not finalising Y’s EHC plan assessment within 20 weeks, poor communication with Mrs X about her complaints and failing to consider her request for an OT assessment as reasonable. The Council will now take action to remedy the injustice its actions have caused to Mrs X.

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Investigator's decision on behalf of the Ombudsman