Summary: Ms F complained about the Council’s handling of her son’s education, health and care needs assessment, support and plan. We found delay in responding to Ms F’s complaint which caused her time and trouble. The Council has agreed to apologise and make a payment to remedy this. There was no fault in relation to the provision of interim support or securing SEN provision. Issues about whether the EHC plan contained appropriate information and advice are outside our remit.

The complaint

1. Ms F complains the Council:
1. Failed to provide interim support for her son, M, whilst his EHC plan was being finalised from September to November 2022.
2. Issued an incomplete EHC plan which did not contain advice from social care, a qualified educational psychologist, or healthcare professionals and failed to make referrals for health services.
3. Delayed issuing a cover letter with the final plan.
4. Failed to put all the SEN support specified in the plan in place – in particular, Down’s syndrome specific support and literacy training.
5. Delayed carrying out a child and family social care assessment and failed to put social care provision in place.
6. Failed to progress her complaint in a timely manner at stage two.
2. As a result, Ms F says there were significant delays in access to health care, which have adversely affected M's health, and a lack of support for him which has meant she has been unable to work. She has also had to spend significant time chasing agencies and complaining to secure the support he needs.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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.
5. 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)
6. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
7. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the provision in an EHC plan we cannot seek a remedy for lack of provision after the date the appeal was engaged if it is linked to the disagreement about the provision. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407)
8. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
9. 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)

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What I have and have not investigated

10. I have not investigated part e) of the complaint about the child and family assessment and social care provision. This has been considered by the Ombudsman under a separate complaint.
11. I explain at paragraphs 4-7 and 55-57 why I cannot make findings in relation to most of part b) of the complaint.

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How I considered this complaint

12. I spoke to Ms F about her complaint and considered the information she sent, the Council’s response to my enquiries and:
• The Special Educational Needs and Disability Code of Practice, January 2015 ("the Code")
• The Children and Families Act 2014
• The Special Educational Needs and Disabilities Regulations 2014
• The School Admissions Code 2021 and its Explanatory Note, December 2021
• Somerset safeguarding children partnership’s guidance: SEND Effective Support for Children and Young People with SEND and their Families
13. Ms F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Special educational needs

14. A child with special educational needs (SEN) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
15. Where a child or young person moves to another council area, the ‘old’ council must transfer the EHC plan to the ‘new’ council. The new council must tell the child’s parent or the young person, within six weeks of the date of transfer, when it proposes to make an EHC needs assessment.
16. Parents have a right of appeal to the SEND Tribunal if they disagree with the SEN provision, the school named in their child's plan, or the fact that no school or other provider is named.
17. The Ombudsman cannot investigate complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.
18. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. We consider that councils should be able to demonstrate due diligence in discharging this important legal duty by:
• checking the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;
• checking the provision at least annually via the review process; and
• investigating complaints or concerns that provision is not in place at any time.
19. Once a council has issued a final plan and given the right of appeal, we cannot investigate matters that could have been appealed except in limited circumstances.

EHC needs assessments

20. Children and young people may require an EHC needs assessment for the council to decide whether an EHC plan is necessary. Councils must decide whether to carry out an EHC needs assessment and notify the parent of their decision within six weeks of a request. Parents can challenge a refusal to assess by appealing to the SEND Tribunal.
21. If the council agrees to assess, it must seek information and advice on the child's needs, the provision required to meet those needs, and the outcomes expected to be achieved by the child. The Council must seek advice from the child's parents, the school, an identified health care professional, an educational psychologist (EP), social care, anyone else the Council considers appropriate and from any person the child's parent reasonably requests. Where a child is not previously known to social care a new assessment will be needed to identify if there are social care needs which need to be included in the EHC plan.
22. Paragraph 9.49 of the Code says if the child is vision impaired, the educational advice must be given after consultation with a person who is qualified to teach pupils or students with these impairments.
23. The Council does not have to seek advice or assessment where an assessment has been carried out recently and if the parent, school and relevant experts agree the findings are sufficient for an EHCP.
24. The Code says:
• 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; and
• 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).
• Councils must give the child's parent or the young person 15 days to comment on a draft EHC plan. The council then consults with the school(s), allowing 15 days to respond.
• If a parent requests a particular maintained school, this must be named in the EHC plan unless it would be unsuitable for the child or incompatible with the education of others.

Children of Crown servants

25. The school admissions code says for families of service personnel with a confirmed posting, or Crown servants returning from overseas, admission authorities must:
1. allocate a place in advance of the family arriving in the area (as long as one is available), provided the application is accompanied by an official letter that declares a relocation date. Admission authorities must not refuse to process an application and must not refuse a place solely because the family do not yet have an intended address, or do not yet live in the area.
2. use the address at which the child will live when applying their oversubscription criteria, as long as the parents provide some evidence of their intended address. The accompanying explanatory notes says admissions authorities may expect to have some level of certainty about a family’s intended new address so they can make sure they allocate a place lawfully.
3. not reserve blocks of places for these children.
4. ensure that arrangements in their area support the Government’s commitment to removing disadvantage for service children.
26. In relation to children with SEND, the December 2021 explanatory note says where parents think their child needs an EHC plan, they should act early and discuss their child’s needs with the local authority in the area in which they hope to return.

What happened

27. Ms F’s son, M, has a diagnosis of Down syndrome with a severe learning disability and visual impairment. He has medical, physical, speech, language and communication, social, emotional and behavioural needs. M had had an EHC plan with a different local authority previously.
28. In 2021 the family were living overseas as Crown servants. Ms F contacted the Council in early 2022 as the family was planning to return to the UK and move into the area later that year. On 31 May 2022, Ms F requested an EHC needs assessment and for interim support to be put in place to enable M to have an education whilst the EHC plan was being finalised.
29. The Council met with her in an online meeting on 6 June. It agreed to carry out an EHC needs assessment whilst the family was overseas using professional information and advice that was already available, which Ms F provided. It was agreed there would be a condensed educational psychology assessment, with further observations once M was at school. The Council said it would aim to finalise the EHC plan within 14 weeks (by 12 September 2022), rather than 20 weeks (by 24 October 2022).
30. There was a discussion about which school M would attend and the funding needed to enable the school to recruit and train staff. Ms F stated a preference for School A. At that point the family did not have a permanent UK address, so Ms F gave their temporary address.
31. Ms F emailed the Council over the summer asking what interim provision would be in place for M. She says the Council provided no clear plan. She had online meetings with a trainee educational psychologist and a disabled children’s worker in relation to social care. These discussions were used to inform the EHC plan.
32. In June, the Council agreed funding for a teaching assistant and training for school staff. On 10 August it issued a draft EHC plan. The plan incorporated information and advice from:
• M and his parents.
• M’s existing school.
• An educational psychologist.
• Social care, which said a child and family assessment was needed.
• Speech and language therapy (SALT).
• Occupational therapy (OT).
• A paediatrician and other health professionals.
33. The plan said M would require full time one-to-one support with a trained teaching assistant; SALT and OT provision; writing software; and for all staff working with him to be trained on Down syndrome and in relation to dysphagia.
34. The family moved into the Council’s area and M started at School A in September 2022. The Council then agreed funding for OT sessions and training, and SALT which started to be put in place.
35. Ms F commented on the draft EHC plan. On 15 September she chased the Council for the final plan and on 21 September she said M was still lacking basic equipment, including a chair. The Council said the majority of the provision was being funded but it was hoping to issue the final plan soon.
36. The Council issued two further draft EHC plans. It issued the final plan on 21 October but did not enclose a cover letter. The cover letter was sent to Ms F on 11 November. At this point Ms F had a right of appeal to the SEND Tribunal.

Ms F’s complaint

37. Ms F complained to the Council on 14 November that it had failed to:
• Make interim arrangements to support M whilst the plan was being finalised.
• Issue a further draft plan after she had made amendments.
• Advise her of her right to appeal when the final plan was issued.
• Include any health advice or social care advice in the EHC plan, obtain a specialist health assessment or include adequate EP advice.
• Make social care provision.
• Make referrals to health services for M, causing lengthy delays in his access to medical care.
38. She also made a separate complaint about school transport.
39. The Council sent a stage one response on 5 December. It apologised for M’s final plan being issued without the covering letter, but it did not consider the plan was incomplete. It had amended the plan after Ms F’s comments and would continue to revise it if further assessments were provided.
40. The Council said the EHC needs assessment had used the information Ms F had provided, as agreed in June. It had completed a bespoke assessment so that funding could be released to School A in advance of M joining and prior to a final plan being issued. This was to enable School A to have sufficient time to recruit a teaching assistant. The Council had also arranged for training to be provided and for SALT and OT to be funded prior to the final plan being issued.
41. Advice had been sought from social care, but the child and family assessment could not be done until the family had moved into the Council’s area. The Council was not responsible for making referrals to health services.
42. Ms F remained dissatisfied. On 21 December 2022 she asked for the complaint to be escalated to stage two. She said:
• Key provision was still missing and staff had not had Makaton training.
• The failure to put in place an interim plan for his support had resulted in delays in M accessing therapies, equipment, health provision, and social care provision.
• The only health provision that had been arranged was in relation to dysphagia. Other services had been named without referrals being made or provision arranged. Many reports were also incomplete or had not been adequately specified and quantified.
• Despite M’s vision needs the Council had not consulted with a person qualified to teach pupils or students with these impairments.
43. Ms F said the delay in accessing healthcare had caused serious health difficulties for M. They had been unable to obtain an emergency medication resulting in having to call an ambulance. Consultant reviews were overdue and they had had to arrange a vision review in another town.
44. Ms F went to mediation about the EHC plan as she had concerns about the school named, M’s SEND needs and provision – in particular in relation to educational psychology, and health and social care.
45. Although the Council issued a stage two response on 26 January 2023 this dealt with school transport issues. Ms F chased the Council in February and March 2023 for the final response to her complaint.
46. The Council issued it on 29 March 2023. It did not uphold Ms F’s complaint. In addition to its stage one response, the Council said a significant support package was put in place for M to start school whilst further assessment could be completed. Its children and young people’s specialist service was supporting School A to ensure the School met its statutory duties with regards to the medical needs of pupils.

My findings

a) Failed to provide interim support for her son, M, whilst his EHC plan was being finalised from September to November 2022.

47. There is no legal duty for a council to secure SEND provision if there is no final EHC plan in place. However, the School Admissions Code and its explanatory note say children of Crown servants should not be disadvantaged. The Equality Act 2010 says schools must not discriminate against a pupil because of their disability and must make reasonable adjustments.
48. I therefore consider that, to prevent M being disadvantaged, the Council had to either put support in place for M to enable him to be educated, or to complete an EHC needs assessment prior to the family’s arrival in the UK. The Council took both of those actions.
49. There is evidence that some equipment and the writing software was not initially available to M when he started at School A and that not all staff had been trained. However, the Council had secured a teaching assistant to provide one-to-one support, staff training, SALT and OT. I therefore find that interim support was put in place and there was no fault.

b) Issued an incomplete EHC plan which did not contain advice from social care, a qualified educational psychologist, or healthcare professionals and failed to make referrals for health services.

50. It is not the responsibility of the Council to make referrals for health services, these should be done by M’s GP, so I do not find fault here.
51. I have carefully considered the issue of obtaining information and advice during the EHC needs assessment. The Council says it carried out a bespoke assessment for M, but my view is that once the Council agreed to assess it should follow the Code. The Code says information and advice must be sought from:
• the parents,
• the school attended by the child (which must be provided after consultation with a person qualified to teach children with visual impairment),
• a health professional,
• an educational psychologist,
• social care, and
• any person the parent requests, where the council considers it reasonable to do so.
52. When the final EHC plan was issued, it incorporated information and advice from all of the required parties. The social care and educational psychology advice had been updated somewhat but the health advice was based on the old reports Ms F had provided.
53. The Council does not have to seek up to date advice or assessment where an assessment has been carried out recently and if the parent, school and relevant experts agree the findings are sufficient for an EHCP. It may also have been entitled to consider whether it was reasonable to ask health and social care professionals to assess M whilst he was overseas.
54. The Council says that Ms F agreed for it to use the old reports in their meeting in June 2022. Ms F considers they were to be used to inform the establishment of interim support. It is unclear if she agreed for them to be used in the assessment.
55. However, I can make no finding on this point. This is because I consider it reasonable for Ms F to have appealed to the SEND Tribunal if she considered M’s SEND needs, provision and health and social care in the final EHC plan were insufficient, following a failure to seek up to date information and advice. The Tribunal has the power to order new assessments and Ms F went to mediation and later appealed, so I find it reasonable for her to have appealed about these matters.
56. The law says we cannot investigate a complaint when someone can appeal to a tribunal about the same matter. Nor can we seek a remedy for any lack of provision after the date the appeal was engaged. So, I make no finding about whether the EHC plan was incomplete.
57. The Code says if the child is vision impaired, the educational advice “must be given after consultation with a person who is qualified to teach pupils or students with these impairments”. This means it was for M’s former school to consult with such a person. I cannot comment on the advice provided by M’s former school as we cannot investigate what happens in schools and M’s school was not in England.

c) Delayed issuing a cover letter with the final plan.

58. The Council failed to issue the cover letter with the final EHC plan. This is fault and caused a three-week delay of Ms F’s opportunity to appeal. The Council has already apologised for this, which is an appropriate and proportionate remedy for the injustice caused, in line with our guidance on remedies.

d) Failed to put all the SEN support specified in the plan in place – in particular, Down’s syndrome specific support and literacy training.

59. The October 2022 EHC plan said M was to have one-to-one teaching assistant support, SALT, OT, trained staff and a writing app. As I have said in paragraph 49, this was put in place and I do not find fault.

f) Failed to progress her complaint in a timely manner at stage two.

60. When the Council issued its stage two response in January 2023, it overlooked Ms F’s complaint about the EHC plan. There was therefore a significant delay in it issuing its final response, which is fault and caused Ms F time and trouble.

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Agreed action

61. Within a month of my final decision, the Council has agreed to apologise to Ms F and pay her £200 to acknowledge the time and trouble caused by the delay in responding to her complaint.
62. The Council should provide us with evidence it has complied with the above actions.

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Final decision

63. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman