The Ombudsman's final decision
Summary: Ms G complains the Council did not complete an occupational therapy (OT) assessment or complete a thorough educational psychology (EP) assessment as part of her son, F’s education, health and care (EHC) plan. She says this means his needs have not been adequately assessed and he is not receiving the provision he requires. We do not intend to find fault by the Council in how it assessed F’s OT needs, as it did so in line with the relevant code of practice. Complaints about provision in an EHC plan should be appealed to a tribunal.
The complaint
Ms G complains that the Council; Failed to carry out an occupational therapy (OT) assessment as part of her son F’s education, health and care (EHC) plan and has therefore not properly assessed his needs.
Failed to carry out a thorough educational psychology (EP) assessment as part of F’s EHC plan and has therefore not properly assessed his needs.
Ms G says because the Council has not properly undertaken the above assessments, her son is not receiving the provision he requires.
The Ombudsman’s role and powers
The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide there is not enough evidence of fault to justify investigating.
(Local Government Act 1974, section 24A(6)) 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.
How I considered this complaint
I read the complaint and the Council’s responses. I considered relevant government guidance.
Ms G and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Special educational needs and disability code of practice 0-25 years (SEND COP) The SEND Code of Practice (SEND COP) provides statutory guidance to organisations which work with and support children and young people who have special educational needs or disabilities.
Section 9.45 to 9.52 of the SEND COP provides specific advice and information for EHC needs assessments.
Section 9.49 says that local authorities should seek information from professionals when assessing a child or young persons needs. Amongst other things it says: Local authorities must take account of the parent’s views and they must seek information and advice from any person requested by the child’s parent, where the local authority considers it reasonable to do so. For example, contacting a GP or other health professional.
the local authority must seek medical advice and information from health care professionals with a role in relation to the child’s or young person’s health.
psychological advice and information should be sought from an educational psychologist who should normally be employed or commissioned by the local authority. It says the educational psychologist should consult with other psychologists known to be involved with the child or young person.
Occupational Therapy (OT) F was discharged by the NHS integrated therapies team in 2017. This included speech and language therapy and occupational therapy. A further request was made by F’s school for him to resume therapy in 2019, but this was either declined or not received by the service. At the time Ms G sought an EHCP for F, his case was not open to these services.
Ms G said F’s speech concerns were not improving so she consulted an independent Speech and Language Therapist (SALT) who then provided therapy to F between October 2019 and July 2020.
Ms G said the SALT identified and diagnosed F with severe and complex speech sound disorder and language disorder. Miss G said that because of this information she started the EHC process for F.
Ms G provided SALT reports dated February 2020 and June 2020 as part of the ECHP process which stated F needed assessments with a Paediatrician, an Educational Psychologist and an Occupational Therapist to consider Dyslexia, Dyscalculia and Developmental Co-ordination Disorder.
Ms G said her son F was issued with an EHCP in July 2020. However, Ms G complained that during the EHCP process, no OT report was requested by the Council and as such F’s needs were not adequately assessed.
Ms G said that since the EHC plan was issued she paid for an independent OT assessment.
The Council said that when assessing F’s needs, it contacted the Children and Young People’s Therapy Service (CYPTS) and found that F had been discharged in 2017 and was not currently open to the service. As such CYPTS was unable to provide any detailed information in relation to F’s needs. The Council said that by requesting information from CYPTS that it had fulfilled its duty to request information about F’s needs.
In its complaint response to Ms G, the Council said that if Ms G was still concerned about F’s OT needs then she could complete a new referral to CYPTS, and it signposted her to the website to do so.
Educational Psychology (EP) Ms G said that no EP assessment of F took place other than an unscheduled brief phone call in May 2020. The educational psychologist’s report was written without seeing or talking to F, so Ms G considered it did not assess his full educational needs.
The Council confirmed that the assessment was conducted via a telephone call. It stated this was because of the COVID-19 pandemic which prevented direct assessment via visits.
The Council received the report on 28 May. Ms G did not identify any concerns with the assessment process at that time. Ms G emailed the Educational Psychology Service shortly afterwards and asked for several additions and amendments to the report. The Council says an amended report was submitted on 6 June 2020 incorporating some of Ms G’s comments where the Educational Psychologist judged this was appropriate.
The Council said the Educational Psychology Service provided advice based on all the information available at the time of the report. It said the report noted that assessment of needs, identified outcomes, and suggested strategies may be incomplete due to the lockdown restrictions at the time, and these limitations should be taken into account when interpreting the advice. It also noted that information may need to be updated.
In August 2020 a Paediatrician wrote to the Ms G and the Council. In his letter he stated an EP should be contacted to complete F’s assessment and to assess him for dyslexia and dyscalculia.
Between September and November 2020, when pupils returned to schools, Ms G asked the School and the Council if a full EP assessment would take place. This was, in part, to help decide which school would be suitable for F as part of a review of F’s EHCP.
In October, the Council noted that a number of schools and parents were seeking reassessments because plans had been written, during lockdown, using EP assessments completed remotely. It suggested the school could arrange for an EP to attend the ECHP review or the EHCP could be reassessed later, if there was evidence of a change in F’s needs. The Council stated this could be pursued via an Early Help Assessment (EHA). In November the EP service confirmed that another EP assessment would not take place.
Ms G commissioned an independent Educational Psychologist to do a full assessment of F. This took place on 17 November 2020. The assessment confirmed that F has generalised learning difficulties and dyslexia, and possibly other conditions for which he would be undergoing further assessments.
The Council stated that during the annual review process Ms G requested some provision from the private EP report to be added to F’s amended EHC plan. The Council did not agree to all of the requested amendments. It said if Ms G disagreed with the provision detailed in F’s EHC plan then she would need to appeal to the tribunal.
In December 2020 the Council did agree to conduct an EP assessment via an EHA referral by the school. However, F had recently had a number of other assessments, and this was taking a toll. F was extremely tired and having regular headaches. As a result, it was decided this should wait until the new year. Ms G noted that this was too late to inform the choice of school or EHCP timescales.
Analysis Occupational Therapy The SEND Code of Practice places a duty on councils to seek medical information from health care professionals with a role in relation to the child or young person’s health. It also states councils must consult any person requested by a parent, provided this is reasonable.
However, the Code refers to the need to seek information from health care professionals that are known to or have a role in relation to the child concerned. I recognise that during the EHCP process, a SALT advised that F needed further assessments and referrals. However, the Code does not place a duty on a council to arrange an OT assessment for the purpose of the EHCP.
The Council did seek information from CYPTS but it was unable to obtain information from them because F was discharged from its services in 2017, and that a further request for therapy in 2019 was refused. The Council signposted Ms G to make a further referral to CYPTS if she wished to.
For the reasons I have set out above, I have not found fault with the actions of the Council in relation to the OT assessment.
Educational Psychology The Council adapted its process for EP assessments during the COVID-19 pandemic. It completed an assessment of F’s needs over the telephone and Ms G corresponded with the Educational Psychologist to make amendments to the advice the assessor provided.
I recognise that it was frustrating that F’s EP assessment was not carried out in person, and may have been limited as a result. However, in all the circumstances I do not consider it was fault that the Council changed the way that it carried out the assessment.
Prior to the annual review of F’s EHCP in late 2020, Ms G sought a full EP assessment to inform suitable schools and to enable changes to the EHCP where appropriate. The EP was not provided at that time, but the Council did later agree to conduct an EP assessment and attempted to arrange this in December. I recognise that Ms G considered a full EP assessment needed to take place ahead of the EHCP review. However, EP input had been obtained for the original ECHP, relatively recently. I do not consider it was fault that a full assessment was not conducted at the time of the EHCP review.
If Ms G remains unhappy with the provision contained in F’s EHC plan, it is open to her to appeal to a tribunal. The Ombudsman cannot question the extent of the provision specified.
As I have not found fault, I have completed my investigation and closed my file.
Final decision
We found no fault by the Council for the reasons detailed in this statement.
Investigator's decision on behalf of the Ombudsman