Summary: We upheld Miss X’s complaint about a delay in identifying and agreeing a college placement for her daughter Miss Y. There was also an unacceptable delay in amending Miss Y’s Education, Health and Care plan and poor communication. The Council will make payments to both and take other action described in this statement.

The complaint

1. Miss X complained for her daughter Miss Y about Surrey County Council (the Council). She said the Council:
• took too long to identify and agree an alternative college placement for Miss Y after an emergency annual review in November 2020; took too long to consult with colleges and to agree funding
• took too long to amend and finalise Miss Y’s Education, Health and Care (EHC) plan
• failed to respond to her contacts.
2. Miss X said this caused her avoidable time and trouble and Miss Y avoidable distress and meant she lost out on a year of education. Miss X said during the year Miss Y was out of education, she became anxious and her social skills and learning took a step back.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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

5. I considered Miss X’s complaint to us, the Council’s responses to the complaint and documents in this statement. I discussed the complaint with Miss X
6. 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

7. A child 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 education, or name a different school. Only the tribunal can do this.

8. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
9. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance called the Special Educational Needs and Disability Code of Practice (the SEN Code)
10. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
11. Where a council proposes to amend an EHC plan, the law says 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)
12. The SEN Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
13. 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 EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
14. For young people moving between post-16 institutions, the review process should normally be completed by 31 March where a young person is expected to transfer to a new institution in the new academic year. However, transfers between post-16 institutions may take place at different times of the year and the review process should take account of this. In all cases, where it is proposed that a young person is to transfer between one post-16 institution and another within the following 12 months, the council must review and amend, where necessary, the young person’s EHC plan at least five months before the transfer takes place. 
15. 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 EHC plan. The right of appeal is only engaged when the final amended plan is issued.

What happened

16. I have taken the key events from the Council’s final complaint response in March 2022 and from documents described in this section including the annual review record and versions of Miss Y’s EHC plans.
17. Miss Y was 16 in September 2020 when she began attending College A. The placement broke down within the first half term because the college could not meet her social and communication needs. Miss Y stopped attending. College A held an emergency annual review in November. A caseworker from the Council’s SEN team attended the review meeting along with Miss X and college staff. The review form said Miss Y had made progress in English and Maths and was working towards Grade 4 in both subjects (she already had a Grade 2 in Maths and a Grade 3 in English.) The review form also said the SEN case worker would send a formal consultation to School B and would update Miss X. Miss X told me the case worker agreed to identify another placement for Miss Y.
18. The Council received the review documents in January 2021 after prompting College A. An SEN caseworker sent a request for a change of placement to the Council’s placements panel. The panel agreed a change of placement was appropriate.
19. The caseworker consulted with School B in the middle of February.
20. Miss X chased the Council for an update in April. School B responded to the consultation in May, declining a place for Miss Y. A different caseworker consulted with five other schools/colleges in May.
21. In June, Miss X asked the SEN team to consult with one school/college and the caseworker did. The caseworker also consulted with two other schools/colleges.
22. At the start of July, the caseworker made an application to Miss Y’s current placement. The Council agreed funding in the last week of August, Miss Y secured a place and started attending in September 2021.
23. The Council replied to Miss X’s complaint at the end of September. It upheld her complaints, apologised for delays and for poor communication. The response went on to say:
• The Council did not accept a link between the delays and Miss Y missing education
• Miss X could contact College A for catch up sessions if she thought this was appropriate.
24. In the middle of October, the Council issued a draft amended EHC plan. Miss X responded with comments the next day and the Council issued a final plan five days later naming the current placement which is a package of work experience and training.
25. Miss X escalated her complaint. The Council acknowledged this and agreed to provide a further response, but it failed to do so and so she complained to us at the start of March 2022.
26. The Council did respond to Miss X’s complaint at the end of March although Miss X did not receive a copy of the letter until we shared it with her. The Council upheld her complaints finding the following faults:
• It did not tell Miss X whether it intended to cease, maintain or amend Miss Y’s EHC plan within the statutory timeframe
• The draft EHC plan was sent 11 months after the review took place. This was not in line with paragraph 9.176 of the SEN Code which says the amendment process should start without delay.
• Consultation with College B did not happen for four weeks after the panel met. This was an unacceptable delay.
• Consultation with College B was not followed up between February and May There was a ‘lethargic approach’ to making consultations and to following them up.
• The draft EHC plan was not available when the consultations were sent out. The EHC plan should have been amended if a change of placement had been agreed and sent to the colleges for consultations
• Miss Y was removed from the roll of College A at the end of November (she had stopped attending in the middle of October). The Council has a duty in line with national guidance to identify young people not in education employment or training and to satisfy itself they have in place appropriate support mechanisms to enable them to return to education or training as soon as is reasonably possible (Participation of Young People in Education, Employment or Training.)
• The Council could have liaised with College A to see what other options were available to support Miss Y while a new placement was sought.
• There were gaps in communication where Miss X was not kept informed. The records indicate this was because there were several caseworkers and the case was held on duty.
• The SEND service was currently attending training in the annual review process. Staffing in the team had begun to stabilise following COVID-19 and the Council was recruiting more staff
• It was offering Miss X £150 to reflect her time and trouble and Miss Y £500 to reflect Miss Y’s avoidable distress.

The impact on Miss Y

27. Miss X told me that College A told Miss Y not to come back and she sat in her room on her own for a year. Miss X told me she feels Miss Y regressed socially because she was on her own and Miss Y kept asking ‘what’s wrong with me, why won’t any schools have me?’ Miss X said it was difficult for Miss Y to understand she hadn’t done anything wrong and she thought it was all her fault. Miss X went on to say Miss Y’s current placement is purely vocational and does not have any provision for functional Maths and English. She feels Miss Y could have achieved Grade 4 at GCSEs if College A or the Council had offered some provision in the previous school year.

Was there fault?

28. There was fault by the Council. I note the Council identified fault and upheld most parts of the complaint in its second complaint response.
29. I have summarised my findings of fault below:
• The first complaint response placed the responsibility on Miss X to contact College A and did not offer any help or assistance in sorting out some other educational provision for Miss Y.
• There was an unacceptable delay in responding to the complaint at the second stage
• When College A broke down, the Council failed to take timely action on the case including failing to comply with the timescales in the SEN Code for reviewing and amending Miss Y’s EHC plan set out in paragraphs 10 to 14 of this statement
• It failed to consult with schools and colleges in a timely manner and did not chase up outstanding consultation responses promptly
• It did not respond to Miss X or keep her updated on the little progress that had been made in consultations
• It did not take steps to secure or arrange the specified educational provision in Miss Y’s EHC plan in line with Section 42 of the Children and Families Act 2014. Of course, once College A broke down, the placement named in Section I of the EHC plan was no longer available for Miss Y. But the Council failed to liaise with College A to see if any provision could be made available for Miss Y or seek alternatives to enable her to make progress in Maths and English or other subjects, such as one-to-one tuition or on-line provision.

Did the fault cause injustice?

30. I note Miss Y had already achieved Grade 2 and 3 in Maths and English GCSE at school and College A’s annual review indicated she was working towards Grade 4 in those subjects. Miss Y therefore missed a chance at improving her grades because of the Council’s failure to arrange any provision between October 2020 and September 2021.
31. The Council’s actions also delayed Miss Y’s right of appeal to the SEND tribunal as one can only appeal a final EHC plan. The fault I have identified also caused Miss X avoidable distress and time and trouble chasing up the SEN team and complaining.

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Agreed action

32. I note the Council has already apologised and offered payments of £150 and £500. My view is that these payments do not fully reflect the injustice to Miss X or Miss Y. I recommend the Council pays Miss Y £2400 which is the cost of 40 weeks of English and Maths tuition (one hour a week of each subject for the school year at £30 an hour, which is the rate a private tutor known to the family charges). The Council should also pay £250 to Miss X to reflect the avoidable distress and inconvenience to her. The Council needs to make these payments within a month of my final statement. I am pleased the Council has accepted these recommendations.
33. The delays appear to have been caused by staff shortages in the SEN team, which the Council is addressing through recruitment. The Council has also arranged training for the SEN team in the annual review process. This will reduce the risk of the same thing happening again.
34. The Council will review its arrangements for responding to complaints to see if further staffing resources are needed in the complaints team or in other service areas if staff there are responsible for complaint handling. It will report back to us with the outcome of the review within three months of my final decision.

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Final decision

35. We upheld Miss X’s complaint about a delay in identifying and agreeing a college placement for her daughter Miss Y. There was also an unacceptable delay in amending Miss Y’s Education, Health and Care plan and poor communication. The Council will make payments to both and take other action described in this statement.
36. I have completed the investigation and shared a copy of this statement with OFSTED in line with our information sharing agreement.

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Investigator's decision on behalf of the Ombudsman