Summary: The Council acknowledged it was at fault for the way it managed the process for amending and maintaining Y’s SEN statement and for the delay in transferring it to an Education, Health and Care plan. The Council has agreed to provide a symbolic payment to remedy the injustice caused to Y. It has also agreed to undertake the recommended service improvements.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains about the way the Council managed the process for amending and maintaining her daughter’s (Y’s) statement of special educational needs (SSEN), annual reviews and the delay in transferring Y from a SSEN to an Education, Health and Care plan (EHC plan).

Back to top

What I have investigated

2. I have investigated the Council’s complaint handling and considered the appropriateness of the remedy it offered to Mrs X for the faults it identified.

Back to top

The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, 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. Caselaw has established that where someone may appeal to the 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 contents of an EHC Plan or the type of educational placement it specifies, we cannot seek a remedy for lack of education after the date of the final EHC Plan. But, where there has been a delay in issuing an EHC Plan, the Ombudsman may consider whether any additional provision ordered by the Tribunal could have been made sooner but for the council’s delay. (R (on the application of ER) v The Commissioner for Local Government Administration [2014] EWCA Civ 1407).
6. 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)
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)
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

Back to top

How I considered this complaint

9. I considered Mrs X’s complaint and the information she provided.
10. I considered the Council’s replies to Mrs X’s complaints and the findings it made in its investigation.
11. Mrs X and the Council were given the opportunity to comment on a draft of this decision. I considered the comments from Mrs X and the Council before making a final decision.

Back to top

What I found

Relevant law and guidance

12. The Children and Families Act 2014 detailed the replacement of statements of special educational needs with Education, Health and Social Care Plans (EHC plans). All children with a statement were due to transfer from their existing statements to an EHC plan by April 2018. The maximum time for a council to conclude a transfer review to replace a statement with an EHC plan was 18 weeks following a two-week notice period.
13. Parliament issued statutory guidance on the transfer process. This stated that a statement could only be transferred to an EHC plan following a transfer review which comprised an ECH assessment. In conducting the transfer review the Council was required to:
• provide two weeks’ notice of the transfer review (assessment);
• undertake an EHC needs assessment;
• ensure that the child’s parents of the young person were invited to a meeting to contribute to the transfer review before the EHC plan was finalised
14. In relation to the meeting, the statutory guidance stated “The meeting should be used to consult or engage the child’s parents or the young person as part of the Transfer review. The precise purpose of the meeting will vary depending on the point during the Transfer review that it takes place. It is for local authorities to determine who should attend the meeting to ensure it achieves its purpose. For example, the meeting may take the format of an annual review meeting which contributes to the EHC needs assessment, to which a range of relevant professionals are invited to consider the progress of the child or young person and the future provision required. Alternatively, the meeting may take place between the local authority and the child’s parents or the young person to discuss the draft EHC plan”.
15. The statutory guidance also recognised that there were circumstances which would mean the timescales could not be met. These were where it was impractical to do so because:
• the council requested advice from a school or post-16 institution during a period beginning one week before any date on which that institution was closed for a continuous period of not less than four weeks from that date and ending one week before the date on which it re-opens;
• exceptional personal circumstances affected the child, the child's parents or the young person during that time period; or
• the child, the child's parents or the young person were absent from the local authority area for a continuous period of four weeks or more during that period.
16. The legal duty to carry out the EHC assessment is with the Council, it cannot delegate this to a school or college. An EHC plan cannot be issued unless the child or young person has been through the statutory EHC assessment process. Not every assessment will lead to a plan, sometimes the Council will decide needs can be met within the resources of local schools and through the “Local Offer”. A decision not to issue a plan has a right of appeal to the First Tier Tribunal (SEN Tribunal).
17. If the assessment leads to a decision to issue a Plan the Council has a duty to issue it in the format prescribed and within the timescales in the legislation (assuming none of the circumstances in paragraph 15 above apply) and Code of Practice, and to ensure the provision in the Plan is put in place. It must ensure the Plan is reviewed annually and implement any changes from the review.
18. The Council’s published complaints procedure says the Council has a two stage complaints procedure. At stage one a manager is asked to investigate and respond to the complainant within 15 working days. If the complainant is dissatisfied with the outcome at stage one they may ask for it be escalated to stage two of the procedure.

Jurisdiction

19. The Ombudsman has no jurisdiction where a parent has appealed to the SEN Tribunal to investigate events from the date the SEN appeal right arises until the appeal is completed. Any loss of education or fault during this period which is a consequence of the decision being appealed is out of jurisdiction, even if this means the injustice will not be remedied.
20. Sometimes where a parent approaches us after a successful appeal, we can say that, but for the fault, the appeal would have happened earlier and remedy injustice for the earlier delay. We cannot remedy delay that occurs during the Tribunal process.

What happened

21. Mrs X and her daughter, Y lived in a county north of London. The local authority in the area had issued Y a Statement of SEN (SSEN) before she started primary school.
22. Y was diagnosed with Autism Spectrum Condition (ASC) when she was three years old. When Y was aged nine (Year 4 at school), her family moved to the Surrey County Council area.
23. The previous local authority advised Surrey County Council of the family’s impending move on 16 May 2012. An annual review of Y’s SSEN on 21 June 2012 found Y still required 20 hours of support.
24. Y was admitted to her new primary school, School A in September 2012. The Council did not advise Mrs X it was adopting Y’s SSEN and it did not amend the name of the school she was now attending.
25. In October 2013, Y was seen by a Speech and Language Therapist (SaLT). Y’s SSEN was not updated with the SaLT’s recommendations.
26. Y was assessed by another SaLT in February 2014. The recommendation made was that Y had not been identified as needing ongoing support. Y’s SSEN was not updated with the information from this assessment. The Council says that at this point, it should have revised Y’s SSEN to acknowledge Y’s primary needs revolved around ASC.
27. In September 2015, Y started secondary school, School B.
28. On 6 November 2017, a transfer review meeting was held. The Council sought advice from its SaLT and School B as part of its EHC needs assessment of Y.
29. The advice from the Council’s SaLT was that Y no longer required speech and language support and it discharged her from its service. School B said it was providing Y with 12 hours of support and it would continue to do so.
30. In March 2018, the Council advised Mrs X that it had decided Y did not require an EHC plan and therefore it would not be issuing one to her. The Council concluded that provision could be delivered within the resources normally available in a mainstream school. At this point, Y was in Year 9.
31. In April 2018, Mrs X appealed the Council’s decision to not issue Y with an EHC plan.
32. Mrs X and the Council agreed to jointly instruct an Educational Psychologist (EP). The EP’s report (September 2018) supported the need for an EHC plan. The EP stated that Y was receiving 15 hours per week of teaching assistance, but it was highly recommended that this should be increased to 20 hours per week. The EP also said that it was imperative for Y to remain at School B as she was at a critical stage in her education and moving her to a maintained setting would not be advised.
33. The Council conceded the appeal and agreed to issue an EHC plan for Y. Mrs X submitted recommendations for amendments to the draft EHC plan, but the Council did not make any changes. The EHC plan also did not reflect the advice and recommendations from the jointly instructed EP. The Council was of the view that a placement at the nearest state-funded mainstream school was appropriate but as the parents had made their own arrangements for Y to be educated in an independent setting (School B) then the parents were responsible for any costs and transport. In the event Y’s parents were no longer able to fund Y’s placement at School B, the Council said it would place Y in a state-funded mainstream school.
34. The Council issued a final EHC plan for Y on 27 November 2018. It contained less hours of provision than previous and it did not name a school.
35. Mrs X lodged a second appeal to the SEN Tribunal in January 2019. Y had entered Year 10 at School B in September 2018 and was following her GCSE curriculum. Mrs X wanted Y to remain at School B as per the EP’s advice and for the Council to fund her placement for the remainder of her education.
36. The Council said it was willing to ‘maintain the status quo’ by continuing to pay for the SEN support and the parents to continue to pay the school fees and the SaLT. The Council agreed Y should not be moved during her GCSEs.
37. The Tribunal was of the view that the Council should attach a great deal of weight to the recommendations from the EP because he had the confidence of the parties in his joint instruction and had the opportunity to meet with and assess Y thoroughly. The EP recommended Y should be educated in classes of no more than 12 and explained that this was justified because of her distractibility, anxiety and social communication difficulties.
38. The Council agreed to amend Y’s EHC plan to reflect the EP’s report and recommendations. The Council agreed that School B could provide the provision Y required and that moving her to a mainstream placement at this time would not be compatible with the consistency in approach she requires and as specified in her EHC plan. The Council explained it had only opposed naming School B on the basis that it was incompatible with the efficient use of public funds but due to the circumstances it agreed that Y’s special educational provision could not be made in a mainstream school at this present time and the only school it could name was School B. It amended Y’s EHC plan with Mrs X’s agreement and issued it in June 2019.
39. Mrs X submitted a complaint to the Council in July 2019 about its lack of involvement with Y since moving to the area in 2012, failing to complete the transition process within the required timescales and adequately.
40. The Council sent its stage 1 complaint response to Mrs X on 6 May 2020. It had completed a review and found that it “had not always adhered with established practice and guidance”. The Council acknowledged it had failed to revise and update Y’s statement for five years and that it should have sought input from an EP during the transition process. The Council also acknowledged that it did not take heed of the advice from the jointly instructed EP and it did not appropriately amend Y’s EHC Plan.
41. The Council acknowledged there was evidence of fault that led to a significant amount of time and trouble for Mrs X. It also acknowledged the fault would have contributed to the anxieties of both Mrs X and Y. The Council offered Mrs X a financial remedy of £700.
42. Mrs X was unhappy with the Council’s response and the financial remedy. Mrs X stated that although the Council had accepted fault, it did not take into account loss of earnings and she was hoping for a figure nearer to £15,000.
43. The Council sent its stage 2 complaint response to Mrs X on 22 June 2020. It said it had considered the Ombudsman’s Guidance on remedies and its offer of £700 was in line with the guidance.
44. Mrs X remained unhappy with the Council’s response and brought her complaint to the Ombudsman.

Back to top

Analysis

45. The Council’s investigation of Mrs X’s complaint identified the following faults:
• Although the Council was advised that Y was moving to its area and that she had a SSEN, it failed to notify the parents it was adopting Y’s SSEN, it failed to amend the name of the school and it failed to update School A about Y’s SSEN;
• It did not conduct annual reviews of Y’s SSEN in 2013, 2014, 2016 and 2017;
• It failed to update Y’s SSEN for five years;
• It failed to update Y’s SSEN with the name of her secondary school, School B, when she began attending;
• It failed to obtain the relevant advice from professionals as part of Y’s EHC needs assessment. The Council did not obtain advice from an education psychologist and only relied on evidence from School B and the Council’s SaLT.
• Y was in year 9 at the time of the EHC needs assessment and the Council should also have obtained information and advice in relation to provision to assist Y in preparation for adulthood;
• No transition to adulthood assessment conducted when Y was in Year 9;
• The EHC plan did not include the advice from the jointly instructed EP; and
• The EHC plan did not name a school.
46. The Council’s complaint policy says it aims to respond to stage 1 complaints within 10 working days. In this case, the Council sent its stage 1 reply approximately nine months after it received Mrs X’s complaint. The Council says it had difficulties in finding an officer with the expertise to review this complaint. This was due to a restructure of the Council that took place in the middle of 2019 which left many positions vacant.
47. I appreciate the Council’s reasons for the delay and I acknowledge it did a thorough investigation of Mrs X’s complaints before it sent its stage 1 reply to her. However, the delay in responding to her complaint was significant. This is also fault.
48. To remedy the injustice caused by the faults it identified, the Council offered Mrs X £300 to acknowledge the time and trouble she had gone to in pursuing her complaints, £200 in recognition of the anxiety it caused her and £200 for Y in recognition of the anxieties she will have experienced while decisions were being made.
49. Although the actual injustice to Mrs X and Y cannot be remedied by a payment, I consider the symbolic amount offered to Mrs X of £500 is appropriate but the Council’s offer of £200 to Y is insufficient in acknowledging the significant impact of fault on her. I will now go on to explain my reasons for this.
50. Although the Council recognises the anxiety it caused to Y, it has failed to consider the provision Y has missed due to the fault since she moved into the area in 2012. This is likely to have impacted on not only Y’s education but potentially her development and life-chances. This is particularly so for a child with SEN, who is already educationally disadvantaged. The identified faults occurred during significant times in her education such as the transfer to secondary school and the period preparing for exams. Y was an already anxious child yet the fault by the Council has caused not only increased levels of anxiety but also great uncertainty over a significant period of time, significant stress and no doubt, frustration. I consider the Council should make an increased payment to Y to acknowledge this.

Agreed action

51. To remedy the injustice caused by the faults, the Council has agreed that within four weeks of this final decision, it will pay Y £700 as a symbolic payment for the avoidable distress. I have reached my view on this amount having taken account of the Ombudsman’s published guidance on remedies. This suggests that a remedy payment for distress is often a moderate sum of between £100 and £300. In cases where the distress was severe or prolonged, up to £1000 may be justified. I have also taken account of Y’s individual circumstances and the length of time the faults occurred.
52. To remedy the injustice caused to Mrs X, I consider the Council’s offer of £300 for time and trouble and £200 in recognition of the frustration and anxieties caused is a suitable remedy. The Council has agreed to make this payment of £500 to Mrs X within four weeks of this final decision.
53. The Council has also agreed that within three months of this final decision it will:
• review its procedures on adopting SSEN/EHC plans for children who have moved into its area and put measures in place to ensure it complies with statutory guidance; and
• ensure all relevant staff have received appropriate training on the statutory guidance and the relevant procedures on adopting SSEN/EHC plans for children who have moved into its area.

Back to top

Final decision

54. There is fault that caused injustice to Mrs X and Y. The Council has agreed to take action to remedy this injustice. I have now completed my investigation.

Back to top

Parts of the complaint that I did not investigate

55. I have not investigated the matters where the Council found it was at fault because they go as far back as 2012 and Mrs X first brought her complaint to us in September 2019. We cannot investigate late complaints unless we decide there are good reasons to. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. Additionally, much of the injustice Mrs X complains of was remedied by the SEND Tribunal.

Back to top

Investigator's decision on behalf of the Ombudsman