Summary: Mrs X complained the Council failed to commission an Educational Psychology (EP) report for her son, Y, as part of his Education, Health and Care (EHC) Plan review. Mrs X also complained the Council refused to investigate her complaint. We find fault with how the Council communicated with Mrs X and its refusal to consider her complaint. We recommend the Council apologise to Mrs X and make a payment to recognise the uncertainty caused.

The complaint

1. Mrs X complains about the Council’s decision not to commission an EP report for Y when reviewing his EHC Plan. As a result, Mrs X says she incurred the cost of paying for one herself. Mrs X also complains the Council refused to investigate her complaint.

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The Ombudsman’s role and powers

2. 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)
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Sta ndards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
5. 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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How I considered this complaint

6. I spoke to Mrs X about her complaint and considered information she provided. I also considered information received from the Council.
7. Mrs X 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 policy

8. A child with special educational needs (SEN) may have an 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.
9. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (the Code) sets out the process for EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.
10. If a Council decides to assess or reassess a child’s EHC Plan needs, it must gather information from relevant professionals. The Council must send a draft EHC Plan to the child’s parents, giving them 15 days to respond and express a school preference, and consult with the relevant school before naming it on the EHC Plan. The Council should amend any draft plans as quickly as possible and tell the parent of their right to appeal to the SEND Tribunal.
11. The maximum timescale for an assessment or a reassessment is 14 weeks from the decision to assess, or reassess, to the issuing of the final EHC Plan.
12. Once an EHC Plan is in place, councils must review it at least every 12 months.
13. The Code says schools must provide the Council with any recommended amendments to the plan within two weeks of a review meeting. The Council then has four weeks to decide whether to amend the plan, keep it as it is, or end it and tell the child’s parents. If the Council decides to amend the plan, it should do this without delay. The Council must give parents 15 days to give views on any amended plans and issue a final EHC Plan as quickly as possible. In any event, the Council should issue a final EHC Plan within eight weeks of notifying a child’s parents that it intends to amend their EHC Plan. It must also tell the child’s parents of their right to appeal to the SEND Tribunal.

What happened

14. Y has SEN, which is supported by an EHC Plan. In the school year 2021/22, Y was attending school in year 4.
15. At this time, Y’s EHC Plan provided for 30 minutes of individual and 60 minutes of group Speech and Language Therapy (SALT) weekly, and a differentiated curriculum with small group learning. It also provided for 12 30-minute Occupational Therapy (OT) sessions per term.
16. In November 2021 Mrs X emailed the Council to explain she had been looking at secondary schools for Y but they had asked for his EP report. Mrs X said Y’s EP report was now more than five years old and she was concerned it was out of date.
17. In December 2021 Y’s school held a meeting to plan for his transition to secondary school. The school recommended Y attend a specialist school, catering for children with Autism and associated speech and language difficulties.
18. Mrs X emailed Y’s school in January 2022, copying in the Council. Mrs X asked for the paperwork for Y’s upcoming EHC Plan annual review. She also said she could not comment on Y’s next steps at the meeting as he had not seen an EP since he was a toddler and his needs had changed since then. Mrs X asked the school to arrange for an EP to reassess Y.
19. Y’s school responded to Mrs X to explain it did not typically offer an EP assessment for transition or information purposes, but she was free to source one privately if she wished to.
20. Y’s EHC Plan was reviewed in February 2022 and the Council wrote to Mrs X to notify her it intended to amend this.
21. Mrs X emailed the Council in April 2022. She said much of Y’s EHC Plan was out of date and needed to be amended. Mrs X attached a copy of Y’s last EP report but explained his main educational need had changed since then. Mrs X explained she had not been able to get a Council EP assessment so had commissioned a private assessment, to take place in May 2022. Mrs X said she would like the EP’s findings to be added to Y’s EHC Plan.
22. In May 2022, Mrs X told the Council what amendments she felt were needed for Y’s EHC Plan and the Council provided a copy of an amended plan, inviting comments.
23. Following this, Y was assessed by the EP Mrs X had commissioned, at a cost of £1,538.80 to herself.
24. The Council issued a final amended plan in June 2022 and notified Mrs X of her right to appeal to the SEND Tribunal. The provision in the final EHC Plan mirrored the provision of the previous plan but with the SALT sessions increased to 45 minutes each time.
25. Mrs X emailed the Council in July 2022. She said Y’s school could not get an EP report, so she had commissioned one herself and felt this showed Y’s needs were different to what has being provided for. Mrs X explained she felt the Council should have Y reassessed by an EP and a Speech and Language Therapist as part of an emergency review. She explained her EP report was currently in draft form, but she felt the recommendations should be implemented immediately.
26. In September 2022, Y’s school sent invitations for his annual review, which was set for 29 November 2022.
27. In October 2022 the Council asked Mrs X to confirm her secondary school preferences for Y so it could arrange consultations. Mrs X responded that day listing nine schools she thought could meet Y’s needs but explained she was still exploring options so did not yet have a preference.
28. Mrs X then sent the final EP report to the Council.
29. Y’s EHC Plan annual review took place on 29 November 2022.
30. In December 2022, the Council asked Mrs X for her school preference so it could consult with it. Mrs X named two schools she currently had an interest in.
31. In January 2023 Mrs X complained to the Council and asked it to reimburse her the cost of the EP assessment. Mrs X sent the Council a copy of the email she had sent in January 2022 asking for a new EP assessment for Y. Mrs X explained the SEND Code of Practice (9.187) said the Council must conduct a re-assessment of a child or young person’s EHC Plan if a request is made by the child’s parent. She also forwarded her email from July 2022 asking the Council to commission EP and SALT reports and carry out an emergency review. Mrs X pointed out it had been more than eight years since Y had last seen a Council EP and she paid for a private one as the Council had ignored her requests.
32. In February 2023 the Council wrote to Mrs X to explain it would not retrospectively reimburse the cost of an EP report she had commissioned. It said there was no statutory requirement for a new EP report ahead of transition to secondary school and it had not received any requests from Mrs X to update Y’s EP report.
33. Mrs X responded to the Council asking it to progress her complaint to the next stage of its complaint process. Mrs X said she had asked for an EP to reassess Y multiple times, but this was never acknowledged. She explained the Council had accepted Y’s primary needs had changed since his last EP report but had not sought professional evidence of this.
34. In February 2023, the Council issued a final EHC Plan for Y, naming a specialist secondary school. The provision in this plan mirrored the previous plan.
35. The Council wrote to Mrs X later in February 2023 to say it said it could not progress her complaint to the next stage of its complaints process. It said it had treated her email of January 2023 as an enquiry about the assessment costs which is an operational decision, rather than a complaint.
36. Mrs X then brought her complaint to our service.
37. In response to our enquiries, the Council has said:
• It does not have any records of Mrs X requesting a new EP assessment for Y until after she had commissioned her own report. Mrs X asked Y’s school to update his EP advice, but did not request a re-assessment of need from the Council so there was no statutory duty to make a decision in line with the SEND code of practice.
• Assessments are based on need, and it is not uncommon for a child to only see an EP as part of their statutory assessment as other professionals are best qualified to comment on their needs.
• Y had regular access to therapists at his school who contributed to his EHC Plan reviews, and indicated he was making good progress towards his outcomes. As the therapists did not suggest further support or advice was needed, it was not necessary to seek an additional EP report.

Analysis

38. There is no statutory duty for the Council to get updated EP reports for children with EHC Plans outside of the initial EHC needs assessment or reassessments. I can appreciate that Mrs X had concerns about the length of time since Y had been assessed by an EP, but this is not enough for me to find the Council at fault.
39. The Council does not appear to have received a request for a new EP assessment until after Mrs X had already commissioned one herself. Mrs X has provided an email she sent prior to this, but it was addressed to Y’s school rather than the Council. I could not find the Council at fault for failing to respond to Mrs X’s request when this was actually made to Y’s school.
40. While Mrs X told the Council Y had been seen privately by an EP and asked for a new Council EP report in July 2022, I have seen no evidence she ever asked for his EHC needs to be fully reassessed. I could not find the Council at fault for not making a decision on whether to reassess Y’s needs if it has not received a request. And I would not expect the Council to commission its own EP report just two months after a private EP had seen Y.
41. The Council has confirmed Y’s EHC Plan reviews were based on the input from professionals who were involved in his education, as well as considering the EP report Mrs X provided. I find no fault with how the Council gathered information to review Y’s EHC plans.
42. While I do not find fault with the Council for not commissioning a new EP report or for the information it relied on when assessing Y’s EHC Plan, I find fault with how it has communicated with Mrs X. I say this because it does not appear to have answered all the concerns she brought to it or explained why it did not feel Y did not need a new EP assessment or emergency review. This is fault and would have caused uncertainty to Mrs X when she was already distressed, which is injustice.
43. When Mrs X complained to the Council about its decision not to commission a new EP report for Y, it refused to investigate saying this decision was operational rather than procedural. It is unclear what the Council means by this, and I can see no reason why it could not investigate a complaint about a decision not to commission an EP report. Failure to do so is fault and would have caused further uncertainty for Mrs X which is injustice.

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Agreed action

44. To remedy the injustice identified above, the Council has agreed to carry out the following actions within one month:
• Provide Mrs X with a written apology for injustice identified above
• Pay Mrs X £150 to recognise the distress and uncertainty caused by the failure to respond to her concerns and her complaint
45. The Council should provide us with evidence it has complied with the above actions.

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Final decision

46. I find fault with the way the Council communicated with Miss X and with how it handled her complaint. I do not find the Council at fault for not commissioning a new EP report for Y.
47. The Council has agreed to my recommendations, and I have ended my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman