The Ombudsman's final decision:
Summary: There was avoidable delay in the way the Council dealt with a transfer of a SEN statement to an EHC Plan.
- Mrs X complains that the Council:
- issued a draft EHC plan without having assessed her son (referred to in this statement as Y).
- when she challenged the lack of assessment, the Council issued a final EHC.
- in or around February 2017 the Council agreed to start a new assessment with a view to issuing an amended EHC. However, Mrs X complained there was confusion about who to consult and what information was required. She complains the Council has since delayed issuing a revised EHC.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- I considered the information Mrs X provided and the complaint she made. I asked the Council for information, I considered the information it provided and its response to Mrs X’s complaint. I sent my draft decision to both parties to enable them to comment before I made a final decision.
What I found
- The relevant government guidance at the time the EHC Plan was issued was “Special education needs and disability: managing the September 2014 changes to the system” version four. It states:
- “5.6 To transfer a child or young person from a statement of SEN to an EHC plan, a local authority must undertake a Transfer Review. This will require them to undertake an EHC needs assessment under section 36 of the 2014 Act…”
- The guidance says a local authority must have regard to the code of practice () when undertaking the assessment.
- The SEN Code (Special educational needs and disability code of practice: 0 to 25 Years) says:
- Para 9.46 states “The local authority must gather advice from relevant professionals about the child or young person’s education, health and care needs, desired outcomes and special educational, health and care provision that may be required to meet identified needs and achieve desired outcomes.”
- Para 9.40 states “The whole process of EHC needs assessment and EHC plan development and EHC plan development, from the point when an assessment is requested…until the final EHC plan is issued, must take no more than 20 weeks” Para 9.42 provides that in exceptional circumstances it may not be reasonable to expect the timescales to be met. One of these is where ‘exceptional personal circumstances affect the child or his/her parent.
The Council’s Transfer Review Process
- The Transfer Review (EHC Needs Assessment) meeting should gather and have access to sufficient information to enable the LA to write a draft Education, Health and Care Plan (EHC) and to issue the draft plan to parents/young people for consultation, however there may be occasions when additional advice needs to be sought from involved professionals. The Local Authority must finalise an EHC plan, where one is needed, within 20 weeks of the Transfer Review (EHC Needs Assessment) meeting.
- In July 2016 a transfer review meeting took place, involving Mrs X, several teachers and the School’s SEN Co-ordinator (SENCo).
- The Council received a review report. The Council says the report did not identify that any other assessments were required. In October 2016, in response to the review report, the Council told Mrs X it would transfer Y’s SEN statement to an EHC.
- On 6 October Mrs X wrote to the Council. She told the Council that since the review meeting, Y had been experiencing difficulties. She sent an updated family statement confirming this. Mrs X sought a full new assessment to take account of the difficulties Y was having.
- On 11 November the Council sent a draft EHC plan. I understand this was based the SEN statement and the discussion at the transfer review meeting.
- On 18 November Mrs X asked for 15 days longer to respond. The Council says it received no further comments at the end of this period. It says officers attempted to speak to an adviser it understood Mrs X had engaged, but the adviser was unavailable so it issued a final EHC plan on 22 December.
- In January 2017 Mrs X complained that the Council had failed to act in accordance with the government guidance about transitioning from Special Education Needs (SEN) statements to an Education, Health and Care (EHC) plan. She said this was because:
- the Council had not obtained the required advice and information. The only advice the Council obtained was from the school.
- Issuing a final plan was inappropriate because she had told the Council Y’s needs had changed significantly since Mid 2016 when the transfer review meeting took place.
- Mrs X noted Y’s statement had not been amended since 2013, so there was all the more need to update the information within it. The Council confirmed the statement had not changed since 2013. (The Council noted some amendments were proposed following a review in November 2015 but these were not made).
- The Council accepted the EHC plan it issued in December 2016 did not include all the advice that Mrs X wished to be included.
- The Council appears not have properly considered the comments and information Mrs X provided in October 2016. The failure to do so before issuing a draft EHC was fault.
- I recognise the Council allowed Mrs X further time and received no more comments before issuing the final statement in December 2016. However, it seems evident Mrs X had explained in October that Y’s needs and behaviour had changed, and the November 2016 EHC was based on out of date information. It is also accepted that Y’s SEN statement had not been amended since 2013.
- The failure to seek more information to properly understand Y’s needs before issuing the final statement was also fault.
- The Council did respond appropriately to Mrs X’s complaint. I say this because it recognised there was a need to review the statement and it then met with Mrs X and with other professionals and obtained more information to enable a further EHC plan to be issued.
- However, it took the Council from 19 July to 22 December (22 weeks) to issue the original statement which did not include up to date information about Y’s needs. I recognise that a small part of this time was to allow Mrs X more time to comment. It then took from 2 February to 26 July (24 weeks) to obtain information and issue a fresh EHC plan.
- The Council should have obtained all the relevant information and issued the EHC plan within 20 weeks of the original transfer review meeting. So, even allowing for some additional time for Mrs X’s comments, it took around twice the time it should take to issue Y’s EHC plan.
- Y’s EHC statement provides evidence that Y’s behaviour and needs had changed and that they had become more difficult to manage. So, it seems to me there was around 20 weeks of avoidable delay in producing the EHC plan and establishing the school placement to be included in the EHC statement. I could not conclude that the changes in Y’s behaviour were caused by the fault I have identified, but the delay in establishing the support Y needed at a time when his behaviour was deteriorating, exacerbated the impact upon Y and the family. This warrants a remedy.
- Within six weeks of my final decision, the Council should apologise to Mrs X and pay her £500 to recognise the time and trouble she was put to in bringing her complaint and the distress caused to Y and the family by the delay, during the period concerned.
- Subject to further comments by Mrs X and the Council, I intend to complete my investigation and close my file.
Investigator's decision on behalf of the Ombudsman