Summary: Ms X complained about the Council’s handling of the annual review process for her daughter’s education, health and care plan and her request for a personal budget for her special educational needs. We found the Council failed to keep to statutory timescales during the review process. It also delayed in responding to Ms X’s request for a personal budget and her complaint. In recognition of the injustice caused, the Council has agreed to issue a personal budget statement, apologise to Ms X and make a payment to her.

The complaint

1. Mrs X complains about the Council’s handling of the annual review process for her daughter’s education, health and care plan and her request for a personal budget for her daughter’s special educational needs. In particular, she says the Council failed to:
• keep to statutory timescales;
• properly communicate with her;
• respond to her request for a personal budget; and
• properly investigate her complaint.

Back to top

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. 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)
4. 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)
5. 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.
6. 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.

Back to top

How I considered this complaint

7. I have considered all the information provided by Ms X, made enquiries of the Council and considered its comments and all the documents it provided.
8. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Legal and administrative background

Education, health and care plans

9. A child with special educational needs (SEN) may have an education, health and care plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections which include:
• Section B: The child or young person’s special educational needs
• Section F: The special educational provision needed by the child or the young person
• Section I: The name and/or type of school.
10. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.

Education, health and care plan reviews

11. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
12. Within four weeks of a review meeting, a council must decide whether to maintain, amend or discontinue the EHCP and notify the child’s parent and school of its decision. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
13. Where a council proposes to amend an EHCP, it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
14. The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
15. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHCP as soon as practicable and within eight weeks of the date it sent the EHCP and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
16. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHCP. The right of appeal is only engaged when the final amended plan is issued.

Key transfers

17. An EHCP must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education, to allow for planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year of the transfer at the latest for transfers into or between schools. The key transfers are:
• early years provider to school
• infant school to junior school
• primary school to middle school
• primary school to secondary school, and
• middle school to secondary school.

Personal budgets

18. A personal budget is an amount of money that allows parents or young people to have some involvement in arranging provision. The Act says councils must offer a personal budget to most parents or young people who wish to receive them.

Key facts

19. Ms X’s daughter, C, is six years old. She has complex medical needs. She received her first EHCP in June 2020 which records her extensive physical and educational support needs.
20. C had been attending nursery since June 2020 and was due to transfer to primary school in September 2021.
21. In November 2020 the Council consulted Ms X’s preferred setting, School A, on whether it could meet C’s needs. The school responded stating, “our main concern would be around keeping [C] safe, and we questioned whether the dynamics of the other pupils at [School] currently would make [it] the best setting for [C]”. The school also stated in a separate email that it would try to minimise times where C could get knocked over by other pupils but could not eradicate this risk completely. It said that, overall, it could meet C’s needs but careful consideration would be needed to ensure it could make the necessary adjustments to keep her safe.
22. In February 2021 the Council issued a final EHCP naming School A from September 2021.
23. On 16 March Ms X wrote to the Council saying C was still shielding because of COVID-19 and was about to undergo surgery. As a result, she had missed months of nursery and was unlikely to be able to attend for the summer term. So, Ms X was considering deferring C’s start at school for a year and asked how this would affect her place at School A. The Council did not respond.
24. On 6 April Ms X wrote to the Council again saying she had decided to defer C’s start at school until September 2022. She acknowledged the Council may not be able to hold her place at School A and said she would re-apply for the placement in the autumn. She said she was aware School A had some concerns around larger children inadvertently knocking C over and this would be an increased concern if she was still recovering from surgery. The SEN officer responded the same day.
25. An annual review was held in July 2021. Ms X requested a place at School A for September 2022. The nursery sent the documentation to the Council on 16 July.
26. In December the Council consulted School A for a place for C for September 2022.
27. In January 2022 the Council sent Ms X a draft amended EHCP. It apologised for the delay in sending this following the review meeting in July 2021.
28. Ms X raised concerns about the delay and said the EHCP did not reflect C’s current needs or provision. She said the Council was making decisions for September without having the full picture. Ms X also requested a personal budget (‘PB’) as she was concerned that adequate funding was not in place.
29. A risk assessment was completed in preparation for C returning to nursery following her surgery. It recorded C’s physical mobility challenges, health conditions and recommendations from her parents and physiotherapist.
30. On 1 February 2022 School A contacted the Council with concerns about C’s physical condition and asked for an EHCP review to be held before a decision on placement was made.
31. A further annual review was held on 11 February.
32. On 14 February Ms X spoke to an SEN officer. The officer’s notes of the conversation show they agreed the Council would not name a school placement in section I of the EHCP for the time being, despite the statutory deadline requiring a school placement to be named by 15 February. This was because C’s parents were considering alternative placements and the Council was considering the information gained at the recent review meeting to decide on an appropriate placement.
33. On 24 March the Council sent School A the latest EHCP and the annual review report and asked it to treat this as formal consultation for a placement.
34. The following day the Council sent C’s parents a copy of a draft amended EHCP. It said it had considered the recommendations of the annual review and amended the plan to reflect the agreed changes.
35. Ms X replied saying she had concerns about the provision in the draft EHCP. She said much of the provision recommended by professionals and family had been ignored. She also pointed out that the health and social care sections of the plan had not been completed.
36. The Council agreed to meet with C’s parents to discuss the proposed changes
37. School A responded to the consultation in April saying that C and her parents had visited the school and C’s vulnerability was highlighted by one of the pupils accidentally knocking/grabbing her. It said C would require constant monitoring to ensure her safety and that placing her at the school would put her at risk. The school considered C needed a specialist setting and a high level of one-to-one support for the entire day. It said it was not able to meet her needs.
38. The Council received further guidance on C’s medical care needs and advise on mobilisation from her paediatrician and physiotherapist.
39. On 25 April Ms X made a complaint to the Council.
40. A few days later the Council sent Ms X a further amended EHCP naming School A.
41. On 30 April Ms X wrote to the Council saying she had not received a response to her email in January 2022 requesting a PB statement for C.
42. On 3 May Ms X told the Council she did not agree with the EHCP and did not consider School A to be a suitable setting for C. She said, if the Council insisted School A was the only option, it should issue a final EHCP so she could appeal to the Tribunal as soon as possible.
43. The Council remained of the view that School A was a suitable placement and issued the final EHCP naming the school on 10 May.
44. C’s parents met with the Council to discuss the situation. They said they would not be sending C to School A for safety reasons and asked what provision could be put in place while a suitable placement was identified. The Council agreed to consider the possibility of C attending a mainstream school with support.
45. Ms X asked the Council to consult School B, a mainstream primary school, for a placement for September 2022 and another specialist school, School C, for a place for September 2023. The Council did so.
46. The Council agreed that, if School B offered C a place, it would amend the EHCP to name School B and would oversee the transition planning to ensure there was an enhanced transition through the summer term of 2022. It would ask the school to complete an annual review in the first half of the Spring term 2023 to consider whether to continue with the placement or transfer C to a specialist provision and start transition planning if appropriate.
47. School B confirmed a place for C from September 2022. The Council amended C’s EHCP to reflect the change in placement in June 2022.
48. On 31 May 2022, having received no response to her complaint, Ms X asked that her complaint be escalated to stage 2 of the Council’s complaints procedure. The Council agreed to this request. There was a detailed investigation by an independent investigating officer. The stage 2 response was issued on 17 August 2022.

Analysis

Failure to keep to statutory timescales

49. The stage 2 investigation found the Council was at fault in that, although it received the annual review documentation on 19 July 2021, it did not issue a draft amended EHCP until 20 January 2022. It also found the Council was at fault in that it told Ms X a school placement would be agreed by 15 February 2022 but this was not finalised until 9 May 2022.
50. As C was transferring from nursery to primary school in September 2022, the Council should have completed the review and issued a final amended EHCP by 15 February 2022. Although Ms X agreed during a telephone conversation on 14 February 2022 that the Council would not name a school placement in section I of the EHC plan at that time because alternative options were being explored, the statutory duty to issue a final EHCP by 15 February in a transfer year is absolute and the Council’s failure to do so was fault.
51. The Council accepted at stage 2 that there had been delays in the process. However, Ms X considers the Council did not provide a genuine apology or recognise the impact of the delays. She says that, because of the delays, C was unable to attend a specialist provision for the academic year beginning September 2022 because all places had been allocated by the time she was considered. She also says the situation caused her distress and anxiety and she had to take three months off work. I cannot comment on the suitability of the placement attended by C in September 2022. Only the Tribunal can consider the suitability of a placement.
52. Ms X says the Council contributed to the delays in the process by unnecessarily contacting all professionals individually following the annual review process to ‘triple check’ they stood by comments made in the annual review meeting.
53. The Council says officers contacted professionals to seek clarity on points raised in the review report because some professionals did not provide a report for the review. Officers wanted to seek clarity to ensure they fully understood C’s needs so the correct provision and placement could be secured. I find no grounds to criticise this. Officers were entitled to seek clarification if they considered this was necessary.

Lack of communication

54. The stage 2 investigation considered “significant communication” between C’s parents and the Council between 21 January 2021 and 19 May 2022. It did not uphold Ms X’s complaint about lack of communication. It found there were delays in responding to some of her communications but found that it was clear from the records that staff tried to provide detailed information in their responses as quickly as possible but were not always able to do so,
55. I agree with the stage 2 findings. I have seen no evidence of excessive delay in responding to Ms X’s correspondence apart from the Council’s failure to respond to her email 16 March 2021. However, when she sent a further communication on 6 April 2021, the officer responded the same day.
56. Ms X says it took the Council over 18 months to tell her that School A had raised concerns about her safety.
57. The Council says that, following consultation with the school in November 2020, meetings were held with C’s parents and the school at which the school’s concerns about C’s safety and the cohort of children at the school were discussed. The Council says it is common for schools to raise concerns about meeting a pupil’s SEN and it will work with the school to understand their concerns and how they can be managed in the best interests of the child to ensure the placement is successful.
58. I am satisfied Ms X was aware of the school’s safety concerns from at least the beginning of April 2021. On 6 April 2021 she told the Council she was aware that School A had some concerns about C’s safety and children knocking her over.
59. Ms X is concerned about how the Council decided School A was safe for C despite the school and her parents repeatedly stating that it was unsafe.
60. The Council followed the usual procedure in consulting the school and considering the information it provided when deciding whether to name it in the EHCP. The school initially said it could meet C’s needs, despite having some safety concerns. It was not until April 2022 that it said it could not meet her needs.
61. Whether a school is suitable is a matter for the professional judgement of officers taking into account all the information including the views of the school and the parents. If the parents do not agree with that judgement, they can appeal to the Tribunal.

Personal budget

62. Ms X requested a PB for her daughter’s SEN as part of the EHCP review process in January 2022.
63. The Council accepts it received her request on 26 January but this was not followed up by the caseworker. This was fault.
64. On 30 April 2022 Ms X sent an email asking why the Council had not provided the PB. The Council says it then took action to obtain information to produce the PB statement. The SEN caseworker sent an email to Ms X on 25 May 2022 saying she was still waiting for information and would send the PB shortly. On 17 June 2022 the Council confirmed the PB statement would be sent the following week. However, it accepts there is no evidence this was done. It says this was because of an administrative error and has apologised for this.
65. The stage 2 investigation report incorrectly found that a PB was shared with C’s parents on 25 May 2022. Following receipt of the stage 2 response, Mrs X contacted the Council saying a PB had still not been provided, contrary to what was stated in the stage 2 report. The Council says this was raised with officers in the SEN team but, on checking the file, they saw that a PB statement had been completed and assumed it had been sent out. This was further fault.
66. The delays in issuing a PB statement have caused C’s parents distress and put them to the inconvenience of repeatedly chasing up the matter with the Council.

Failure to properly investigate Ms X’s complaint

67. Ms X made a stage 1 complaint on 25 April 2022. The Council did not respond. This was fault.
68. Ms X asked the Council to escalate her complaint to stage 2 of its complaints procedure on 31 May 2022. The stage 2 response was issued on 17 August 2022.
69. The Council’s complaints process in place at the time stated that a stage 2 investigation will normally take between 20 and 40 working days to complete. But, in exceptional circumstances or if the complaint is complex, it may agree a new timescale with the complainant.
70. The response in this case took 60 working days. The Council has explained that the delay was caused by lack of capacity in the Inclusion and SEND teams. It says that, to rectify this, additional staff have now been recruited.

Conclusions

71. The Council accepted the conclusions of the stage 2 investigation. The head of service apologised for failing to meet statutory time scales. She explained that the Council was reviewing its processes and procedures and some changes were being implemented.
72. The Council has confirmed that it has recruited several SEND officers and a speech and language therapist and is now recruiting further SEND officers. It has put in place parent carer engagement workshops to promote co-production of EHCP’s and is completing training for the SEND team.
73. I am satisfied with the service improvements the Council is making. However, I consider it should provide a personal remedy for the injustice caused to C’s parents in addition to the apology it has already made.

Back to top

Agreed action

74. The Council has agreed that, within one month, it will:
• issue a personal budget statement;
• send a written apology to C’s parents for its failure to comply with statutory timescales, the delay in issuing a personal budget and the delay in responding to their complaint; and
• make a symbolic payment of £500 to C’s parents in recognition of the distress caused by the delays.
75. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

76. I find the Council was at fault in that it:
• failed to meet statutory timescales for reviewing C’s EHCP;
• delayed significantly in issuing a personal budget statement; and
• delayed in responding to Ms X’s complaints.
77. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

Back to top

Investigator's decision on behalf of the Ombudsman