Summary: There was a seven-month delay in reviewing and amending Y’s Education Health and Care Plan which caused avoidable distress, frustration and a delay in appeal rights. Communication with Y’s mother Ms X was also poor. The Council will apologise, make a payment of £250. It will also provide evidence it has reviewed procedures and reimbursed Ms X’s travel expenses.

The complaint

1. Ms X complained the Council:
1. Missed deadlines for completing the annual review and amending her daughter Y’s Education, Health and Care Plan (EHC Plan)
2. Did not communicate with her;
3. Delayed agreeing funding for a school meaning Y lost a place;
4. Ignored advice of an Educational Psychologist (EP).
2. Ms X said this caused a loss of education for Y and caused them both avoidable distress, confusion, inconvenience and a delay in appeal rights.

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The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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 report.
6. 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)
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

8. I have investigated complaints (a) to (c). I have not investigated complaint (d) because the consequence of the alleged failure to include provision based on the EP’s advice is a matter which is or was appealable to the SEND Tribunal. It is or was reasonable for Ms X to appeal if she disagrees with the special educational provision on Y’s EHC Plan.

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How I considered this complaint

9. I considered the complaint to us, the Council’s responses to the complaint and documents described in this statement.
10. Ms 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

11. A child or young person with special educational needs may have an Education, Health and Care (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 their needs, education, or the name of the educational placement. Only the tribunal or council can do this.

12. When a council issues a final EHC Plan, parents have a right to appeal to the SEND Tribunal if they disagree with the council’s decision, or the content of the plan. They have two months to lodge an appeal.
13. Councils must secure special educational provision in an EHC Plan (Children and Families Act 2014, section 42)
14. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.

15. The council must review and amend an EHC Plan in enough time before to a child or young person moved between key phases of education. This allows 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 in which the child is due to transfer into or between school phases. The key transfers include primary school to secondary school.

What happened

16. Y is autistic. She has had an EHC Plan for several years. I have taken the key events from the Council’s stage two independent investigation report.
17. Ms X gave her preferred secondary placements during the annual review process at the beginning of 2023. The Council consulted with about 10 schools between January and March and received negative or no replies in all but one case (School A).
18. In March, a caseworker and Ms X spoke and Ms X was positive about School A as a secondary placement.
19. In May, Ms X emailed the caseworker and said she was taking legal advice about the Council not naming a placement for Y.
20. School A offered Y a place in the middle of May. A new caseworker made a referral to the Council’s funding panel. She said on the paperwork to the panel that School A only had one place for September and there was stiff competition for it from other councils.
21. At the end of May, the caseworker consulted with two other schools as the panel had requested.
22. In June, School A told Ms X and the Council it had filled the place. The caseworker apologised to Ms X.
23. Ms X complained to the Council at the end of June 2023 raising the same issues as in her complaint to us and other issues. She contacted us in July. We told her to wait for the Council’s response.
24. School A told the Council it could offer Y a place in Year Six in January 2024 (so she would have to repeat Year Six). Ms X agreed. The Council agreed funding on this basis and updated Y’s EHC Plan.
25. The Council issued Y’s final EHC Plan on 11 September 2023, naming School A from January 2024 and a package of alternative provision between September 2023 and January 2024.
26. Emails between the caseworker and Ms X indicate Y received a package of education including 15 hours a week of one-to-one mentoring and a placement at a farm between September and December 2023.
27. Ms X chased the Council’s complaints team for its response to her complaint on several occasions. The Council apologised for the delay in October and responded saying:
• It was sorry Ms X did not receive the service she was entitled to expect.
• There was a delay in approving funding for School A. This was due to the case officer being new in post and their manager being on leave.
• There was poor communication with School A and this resulted in the place going to another child
• The case officer put in place an alternative education package for Y until she could start at School A. This did not alter the fact she should have started in September 2023.
28. Ms X contacted us again after receiving the Council’s stage one response. We told her to escalate her complaint to stage two with the Council. Ms X did so. There was further delay by the Council which commissioned an independent investigator to prepare a report which was issued in April 2024. The independent investigator upheld most of Ms X’s complaints to the Council including those she has raised with us. The report recommended:
1. An apology;
2. Reminders to managers to ensure that financial processes ran alongside operational needs (meaning that funding decisions needed to be made in a timely manner so that the Council adhered to the timeframes in the SEND Code of Practice);
3. Reimbursement of Ms X’s travel expenses
4. Amendments to procedures to ensure appropriate cover when an officer was on leave.

Findings

The Council missed deadlines for completing the annual review and amending Y’s EHC Plan

29. Y’s transfer EHC Plan for her secondary placement should have been issued no later than 15 February 2023. It was not issued until September 2023. The delay of seven months was fault causing avoidable frustration, distress and a delay in appeal rights (which Ms X did not use).

The Council did not communicate with her

30. Communication with Ms X was poor with her having to chase the Council’s SEND and complaints teams for information and updates. The Council has accepted this in its complaint response and the independent report recommended an apology. This is a partial remedy.

The Council delayed agreeing funding for a school meaning Y lost a place

31. The Council has accepted it was at fault. Had it started the consultation and funding panel process sooner, Y would likely have had School A named on her transfer Plan and been able to start there in September 2024. The delay caused avoidable distress and travel expenses, but no loss of provision because the Council arranged equivalent provision in line with its duty under Section 42 of the Children and Families Act 2014 (mentoring and a farm placement).

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Agreed action

32. Within one month of my final decision, the Council will:
1. Apologise for the avoidable distress, uncertainty and delay in appeal rights and for the poor communication and make Ms X a payment of £250 to reflect this.
2. Provide evidence it has refunded Ms X’s travel expenses (for transporting Y to alternative provision between September and December 2023.)
3. Provide written evidence of the reminder to managers and review of procedures (see paragraph 28(b) and (d)).
33. The Council should provide us with evidence it has complied with the actions in the last paragraph.

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Final decision

34. There was a seven-month delay in reviewing and amending Y’s Education Health and Care Plan which caused avoidable distress, frustration and a delay in appeal rights. Communication with Y’s mother Ms X was poor. The Council will apologise, make a payment of £250 and take action described in this statement.
35. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman