Summary: Miss X complained about delays in her son, Y’s, Education and Health Care plan annual review and how the Council tried to move Y to another school. The Council was at fault for failing to review Y’s plan. This caused Miss X and Y frustration and delayed attempts to transfer Y to a new school. It has agreed to apologise, make symbolic payments and review how it monitors and responds to the outcomes of annual reviews.

The complaint

1. Miss X complained the Council:
1. attended Y’s 2019 annual review with an out-of-date Education and Health Care (EHC) plan;
2. delayed sending consultations to schools;
3. sent the out-of-date EHC plan and supporting information to schools;
4. refused to attend two meetings to discuss Y’s transfer to a new school;
5. failed to communicate with her in a timely way;
6. delayed in responding to her complaint;
7. did not progress Y’s move to mainstream education ready for the start of year nine; and
8. proposed to cease Y’s EHC plan after Y turned 16.
2. Miss X said this meant Y was not able to move to mainstream education and complete a full range of GCSE’s. She said this has harmed his future and caused both of them distress and frustration.

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What I have investigated

3. I have investigated points (a) to (f). The final section of this statement contains my reasons for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
7. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. 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)
8. 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.

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How I considered this complaint

9. I have considered:
• all the information Miss X provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the Council’s policies, relevant law and guidance and the Ombudsman's guidance on remedies.
10. Miss 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 guidance

Education and Health Care plans

11. The responsibilities of councils towards children and young people with special educational needs (SEN) are set out in the Children and Families Act 2014 and associated Regulations and statutory guidance, the SEND Code of Practice 2015 (the Code).

12. Councils prepare Education, Health and Care (EHC) plans for children with needs for special educational provision. Councils must review an EHC plan within 12 months from the date the plan was made (meaning the date the plan was finalised). They must then review the plan every 12 months after this as a minimum. Following an annual review, the Council must decide whether it wants to amend the plan, maintain it without changes or cease it. The Council must send a notice of its decision within four weeks of the annual review. If the Council proposes to amend the plan, the notice should:
• detail the proposed changes (usually in the format of a new draft EHC plan);
• tell them of their right to ask for a particular school or placement to be named in the plan; and
• give the parent 15 working days to comment.

The draft must not name a school or type of school.

13. If the parent requests a different school placement the council must consult with that school by sending the draft EHC plan.
14. The council must issue the new final EHC plan within eight weeks of the date of the amendment notice.
15. The purpose of a review is to ensure plans remain relevant to the needs of the child. Councils should carry out re-assessments if the child’s needs change significantly. Re-assessments are more thorough and time consuming than a review.
16. Parents have a right of appeal to the SEND Tribunal if they disagree with the councils assessment of their child’s special educational needs, the special educational provision their child needs or the school named in their child's plan. Parents can only appeal once the Council issues the final EHC plan.

Complaints

17. The Council has a three-stage complaints process. At its ‘pre-complaint’ stage, it will try to resolve the issue immediately. It will respond formally at stage one within fifteen working days and at stage two within twenty working days.

What happened

18. At the time of the matters complained about, March 2019, Y had had an EHC plan for several years and was in year 9 at a specialist school (School A) for children with complex needs.
19. At Y’s 2018 annual review, School A noted ‘the EHCP [EHC plan] does require revision’. Miss X confirmed she wanted Y to remain at the specialist school.
20. In late March 2019, School A held Y’s annual review. At the review, Miss X became aware Y’s EHC plan included information about Y that made his needs appear greater than they were. The Council had not updated Y’s EHC plan since 2016. Miss X was unhappy and asked for a second annual review.
21. In its response to my enquiries, the Council said the plan was out of date because School A did not realise it could amend it. The Council acknowledged it should have monitored School A.
22. The Council arranged Y’s annual review. It initially planned the review for early June, but cancelled it due to an issue at School A. The Council offered Miss X dates in mid-June and early July, but Miss X said she was not able to confirm a date until late June. She gave the Council some dates in early July.
23. In mid-July, the Council held another annual review, which Miss X attended. The following week it sent Miss X an amendment notice and draft plan. The plan named School A as Y’s placement. Miss X asked it to consult three mainstream schools.
24. In late July, the Council sent the consultations and gave Miss X a copy of the information it sent. This included the amended draft EHC plan, a speech and language report from 2019 and a recent progress report from School A. One of the schools, School B, responded to say it could arrange a meeting with Miss X to discuss the placement.
25. Miss X was unhappy. She said the Council sent out of date information to the schools and did not agree with the draft plan. She said the plan contained out of date information. In response, the Council recalled the consultations in mid-August.
26. In late August, the Council issued Y’s final EHC plan. The plan named School B. Miss contacted the Council to say she was unhappy the plan still contained out of date information and was not amended as she asked. She was also unhappy the Council had named School B before she had held a meeting with it.
27. In early September, Miss X asked the headteacher of School A and Y’s caseworker at the Council to attend a meeting along with Y’s teacher and the caseworker’s line manager. She wanted to resolve whether Y would stay at School A or move to mainstream as soon as possible. One week later, School A responded to say Y’s caseworker did not have capacity to attend a meeting.
28. In September, the Council sent new consultations. In mid-December, the Council issued a new version of Y’s EHC plan, which still named School B. Miss X responded the same day to say she would consider School B but felt Y may need to stay at School A given the delay in arranging the transfer.
29. In late January 2020, School B contacted Miss X to arrange Y’s transition to the school. In early February 2020, School B told the Council Miss X had refused to arrange taster sessions for Y until professionals involved with Y held a meeting. Y’s caseworker responded to offer two dates.
30. Miss X later decided a transfer to mainstream would not benefit Y partway through year 10 and so asked the Council to name School A in his plan. The Council amended Y’s plan, who stayed at School A for the remainder of his secondary education.

Communication

31. Miss X said Y’s caseworker’s communication with her was inadequate. She felt the caseworker often ignored her or responded late. Council records show it accepted there had been ‘various levels of communication’ with Miss X. I have reviewed records of the Council’s communication with Miss X which supports the Council's view. Part of this was due to a breakdown in the relationship between Miss X and Y’s caseworker.
32. In its complaint response, the Council apologised for failing to communicate with Miss X consistently. It said a member of staff would be Miss X’s primary point of contact in future and would liaise with Y’s caseworker on her behalf. The Council also told me it was restructuring the SEN department and this would improve its communication.

Complaints

33. Miss X was unhappy with the Council's actions and complained. In mid-November 2019, the Council sent a stage two written response.
34. Miss X complained to the Ombudsman in March 2019. As Miss X had not completed the Council's complaints procedure, we asked her to finish its process before we would consider her complaint. The Council sent a further stage two response in late May 2020. It said it had decided to reassess Y’s needs to update his EHC plan.
35. Miss X replied to say she remained unhappy. The Council sent its stage three response in early December 2020. It said:
• the issues with the annual review in March 2019 meant it had not completed the review process in the statutory timeframe, which delayed attempts to move Y into mainstream education; and
• the delay in responding to Miss X’s complaint was due to hiring issues with staff. It said its communication was also affected by the COVID-19 pandemic and apologised.
36. The Council told me that the reason for its delay was because it had a high number of temporary staff in the SEN team from mid-2020. Once it had restructured the department, it would hire more permanent staff. In the meantime, it had put measures in place to make sure managers are monitoring progress of complaints. It also said that when someone complains now, they are allocated an advisor and told their details. It records learning from complaints and checks it is acting on that learning.

My findings

EHC plan review

37. Records from 2018 show School A recognised Y’s EHC plan was out of date and in need of amendment. The Council holds ultimate responsibility for deciding whether any changes to a child’s EHC plan are necessary and for implementing those changes. The Council did not do this, which was fault. This meant it attended Y’s March 2019 annual review with an EHC plan from 2016 and had to rebook the meeting. This caused Miss X and Y frustration as it delayed Y’s final EHC plan and attempts to transfer Y to a new school.
38. The Council agreed to rebook Y’s annual review so it could consider more up to date information. The meeting was initially booked for early June 2019, but was then delayed due to matters outside of the Council's control. Once Miss X confirmed dates she could attend, the Council promptly arranged the review for mid-July. Any delays were not down to Council fault.
39. However, the Council was at fault for failing to consider whether the change in Y’s needs required a re-assessment of his EHC plan. Y attended a specialist placement and Miss X hoped they would move to a mainstream school. She felt Y no longer needed the extensive support at School A and would benefit more in mainstream education. This, and the fact the Council had not updated Y’s EHC plan in three years should have triggered consideration of whether a review was suitable or if a re-assessment was more appropriate. This did not cause Y an injustice because Miss X had the right to appeal to the SEND Tribunal if she disagreed with the Council's assessment of Y’s needs.
40. Following the annual review in mid-July, the Council issued its decision to amend Y’s EHC plan the following week. It sent the final decision in late August, around four weeks later. The Council acted within the timescales set by the Code; there was no undue delay, so it was not at fault.
41. However, I note the draft plan the Council sent in July 2019 named School A. The Code states councils must not name a school in a draft EHC plan. It can only do so in a final plan. This was fault. It did not cause Y an injustice as Miss X was still able to ask the Council to consult with three mainstream schools.

Transfer

42. Miss X complained about how the Council consulted with schools for Y’s move to mainstream education. She felt the Council's actions meant some schools may not offer Y a place. The law says the Ombudsman cannot usually investigate where someone has the right to appeal to a Tribunal. The SEND Tribunal considers which schools are suitable for a child and can direct a council to name that school. The Ombudsman cannot do this. I can see no reason to exercise discretion to investigate how the Council consulted with schools after it issued the August 2019 plan. I will therefore only investigate how the Council consulted in the period before the date of the plan.
43. The Council sent the first set of consultations within two weeks of issuing the draft plan in July 2019. I do not consider this to be an undue delay so the Council was not at fault.
44. The Code states councils must send the child’s draft plan to schools as part of a consultation. We would expect any additional information a council sends to be appropriate and relevant. In July 2019, the Council sent a 2019 speech and language report and a recent school report. The documents provided up to date information on Y’s needs. The Council was not at fault.
45. Miss X was unhappy with the draft plan the Council sent. She felt it was still out of date. The purpose of the draft plan is to allow parents to comment and suggest amendments. The draft plan will not always be as a parent wishes. If a council is consulting with schools to see if they will accept a child, it must use the draft plan. The Council was not at fault.
46. Miss X complained Y’s caseworker did not agree to attend a meeting with School A in September 2019. Y’s caseworker said she did not have capacity to attend. SEN officers have significant caseloads so while it may have been beneficial to have the meeting, I do not find the Council at fault for refusing to attend.
47. Miss X also said Y’s caseworker refused to go to a meeting with Y’s prospective school in early 2020 and that this prevented the transfer from progressing. Records show the Council worked with School B in January and February 2020 to arrange a suitable time for the meeting. It was not at fault.

Communication and complaints

48. The Council has accepted it failed to consistently communicate with Miss X in a timely way. It has taken suitable steps to prevent this fault from occurring again including allocating Miss X a member of staff to act as liaison between her and Y’s caseworker.
49. The Council took almost three months to respond to Miss X’s second stage two complaint from March 2020. Miss X requested a stage three response in late May 2020 and the Council responded in early December 2020, almost five months later. The Council says the delays were because it had high number of temporary staff and was affected by COVID-19. I have considered this but still find the Council was at fault for the significant delay. I welcome the action the Council has taken to prevent the fault occurring again.
50. The Council apologised to Miss X for its failure to communicate consistently with her and the delays in responding to her complaints. However, I am not satisfied its apology is a sufficient remedy for the frustration and time and trouble the faults caused Miss X. I have therefore made a further recommendation in paragraph 40.

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Agreed action

51. Within one month of the date of my final decision, the Council will:
• apologise to Miss X and pay her £300 to recognise the injustice the faults identified in this decision caused her;
• pay Y £200 to recognise the uncertainty the delay caused.
52. By March 2022, the Council will:
• remind School A of its role and responsibilities in the annual review process, including that it is able to suggest amendments to a child’s EHC plan; and
• review how it monitors the outcomes of annual reviews and identifies whether changes to an EHC plan are needed. If the review identifies any actions the Council should take, it should do those within three months of the end of the review.
53. Some of the fault I identified did not cause Miss X or Y an injustice. However, I am concerned the fault may cause other people injustice in the future, so I have made recommendations to prevent that occurring. By March 2022, the Council will:
• remind staff they must not name a school in a child’s draft EHC plan; and
• remind staff that a significant change of circumstances, including movement from a specialist to mainstream setting, or an out of date EHC plan should prompt consideration of whether to reassess the EHC plan.

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Final decision

54. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.

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Parts of the complaint that I did not investigate

55. I have not investigated point (g) of Miss X’s complaint because it is late. This is because the law says 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). Miss X says the Council agreed Y should move to a mainstream school for year nine and that she chased its progress on this at the start of year nine. She says it did not take any action. I consider it reasonable for Miss X to have complained about this issue at the time so I have not exercised discretion to investigate it.
56. I have also not investigated point (h). This is because Miss X has not complained to the Council about this issue. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply (Local Government Act 1974, section 26(5)). It is reasonable to expect Miss X to complain to the Council first. She can then complain to the Ombudsman if she remains dissatisfied. Further, if the Council decides to cease Y’s EHC plan, Miss X will have a right of appeal to the Tribunal which the Ombudsman typically expects complainants to use.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman