The Ombudsman's final decision
Summary: Mrs X complained the Council failed to arrange appropriate information and advice before issuing an Education Health and Care plan for her daughter, Y. There was fault in how the Council failed to ensure it received the advice it had requested before issuing Y’s Education Health and Care plan. This delayed Y getting the support she needed, which caused avoidable distress to Y and Mrs X. The Council agreed to apologise, pay a financial remedy and review its existing arrangements for Education Health and Care advice.
The complaint
Mrs X complains the Council failed to arrange appropriate information and advice before issuing an Education Health and Care (EHC) plan for her daughter, Y. She says that when local health services could not provide the advice within the requires timescales, the Council should have paid for alternative reports.
As a result, Mrs X says Y’s first EHC plan did not properly meet her needs and Mrs X had to pay for a private occupational therapy report. She wants the Council to refund the costs for a private report and make up for the delay in fully meeting Y’s needs.
The Ombudsman’s role and powers
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) The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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) 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.
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)
How I considered this complaint
I considered: the information Mrs X provided and discussed the complaint with her; the Council’s comments on the complaint and the supporting information it provided; and relevant law and guidance.
Mrs X and the Council had an opportunity to comment on my draft decision. I considered the comments I received before making a final decision.
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.
What I found
Education health and care plans A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
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.
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.
Those consulted have a maximum of six weeks to provide the advice.
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. (The Code 9.47) Service failure 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) What happened Mrs X’s daughter, Y, has special educational needs (SEN). Mrs X asked the Council to assess Y’s needs in January 2022, which the Council agreed to do.
As part of the assessment, the Council asked for both Speech and Language Therapy (SLT) and Occupational Therapy (OT) reports from a local service it commissions.
The Council chased responses from its provider several times and, although it received the SLT report, its provider told the Council that Y was still on a waiting list for an OT assessment.
Mrs X complained to the Council in late April about the delays in getting OT advice and asked the Council to consider paying for a private provider. The Council apologised for the delays but refused to make alternative arrangements to get OT advice.
The Council issued a final EHC plan for Y in late June 2022. At the time it issued the plan, the Council had still not received the OT advice it had requested. Mrs X told the Council that the plan did not properly meet Y’s needs, because the Council did not have enough information and advice to properly plan the support Y needed.
Mrs X arranged and paid for a private OT assessment and sent this to the Council. As a result, the Council decided to amend Y’s EHC plan. Based on the OT report Mrs X arranged, the Council added specific OT support to Y’s EHC plan including: that Y must have regular breaks of 15 minutes every 45 minutes during the school day; weekly one hour OT sessions for 12 weeks of the school year; specific training for staff at Y’s school to better understand and support her.
Mrs X says she is satisfied the additions the Council has made provide adequate support for Y.
My findings
Mrs X had the right to appeal to the SEND Tribunal about the content of the final EHC plan the Council issued in June 2022. Therefore, we can only consider her complaint about this if we decide it was not reasonable for her to appeal.
Both Mrs X and the Council agreed that OT advice was needed to fully assess Y’s needs. The Council had told Mrs X that it would review the plan once that advice had been received. Given the lack of OT advice at the time, I accept Mrs X’s explanation that she did not appeal the plan because this advice was missing and felt that until it was available, she did not know whether there would be any remaining dispute about the support Y needed.
I am satisfied that Mrs X’s complaint is more about the Council’s administrative actions during the assessment process, rather than an underlying dispute about the Council’s professional judgement about what support Y needed. Therefore, I am satisfied it is appropriate for me to investigate her complaint.
Once the Council decided to complete an EHC assessment and issue an EHC plan, it had to do so within 20 weeks of Mrs X’s January 2022 request. The Council issued Y’s final EHC plan just under two weeks later than it should have done. Although the evidence suggests the Council tried to issue the plan in time, it was, in fact, late. Therefore, I am satisfied that this amounted to service failure and was therefore fault. However, this delay of just under two weeks did not cause any injustice to Y or Mrs X.
Although the law requires those providing the advice to do so within six weeks, the Council knew, early during the assessment process, that its commissioned provider would not be able to give the OT advice in time for the Council to complete the assessment within the required 20 weeks. Mrs X asked the Council to arrange advice privately, but it refused to consider doing so.
Since the Council had decided it needed OT advice to properly assess Y’s needs, it should have ensured it had this advice before deciding what support Y needed. Once the Council knew its commissioned provider would not be able to give advice in time, I am satisfied it should have considered alternative ways to get the advice it needed. It’s failure to do so was fault.
When Mrs X arranged for private OT advice, the Council amended Y’s plan and included specific support based on that advice. Therefore, I am satisfied that the Council’s failure to obtain the OT advice before producing the first EHC plan meant this plan did not include all the support Y needed. Mrs X also had to pay the costs of the private OT assessment.
Based on the extra support included in Y’s plan, I do not think that the delay in arranging the direct OT provision (12 hours in total) for Y had a significant impact on her wellbeing. However, it did delay staff at the school receiving suitable training or understanding what breaks Y would need. I am satisfied this caused both Y and Mrs X some avoidable distress.
Agreed action
Within one month of my final decision the Council will: apologise to Mrs X and Y for the delays in arranging OT advice; pay Mrs X £200 to recognise the avoidable distress caused to her and Y; and reimburse Mrs X for the costs of the private OT report she arranged.
Within three months of my final decision the Council will review its arrangements arranging Speech and Language Therapy and Occupational Therapy advice for EHC assessments. The Council should consider whether its existing arrangements are sufficient to ensure it receives the advice it requests within the necessary timescales and, in cases where it knows this is not possible, it has adequate procedures to consider alternatives.
The Council should provide us with evidence it has complied with the above actions.
Final decision
I have completed my investigation. There was fault in how the Council failed to ensure it received the OT advice it had requested before issuing Y’s EHC plan. This caused a delay in Y getting the support she needed, which caused avoidable distress to Y and Mrs X. The Council agreed to apologise, pay a financial remedy and review its existing arrangements for EHC advice.
Investigator's decision on behalf of the Ombudsman