The Ombudsman's final decision:
Summary: Mrs X complained the Council delayed finalising C’s Education and Health Care plan and delayed allocating a secondary school place for him. She has also complained about poor communication and poor complaints handling. The Council is at fault. It should pay Mrs X £1,500 for the injustice caused.
- Mrs X complained about the Council’s delay in transferring her son, C’s, Statement of Special Educational Needs to an Education, Health and Care plan (EHC plan) between September 2015 and October 2017. Mrs X also complained about the way the Council decided which school was suitable for her son and the delay in allocating a place for him. She complained the Council sent an early draft of C’s EHC plan that she had not seen to her second choice of school, which meant it made a decision about whether it could meet C’s needs based on inaccurate information. The Council agreed to fund private maths tuition for C until staff at his new school could be trained to provide it but Mrs X says it delayed in reimbursing her for these costs and in arranging the staff training. Mrs X complains about the Council’s poor communication with her and its ineffective complaints handling.
- I have considered Mrs X’s complaints relating to the delay in transferring C’s statement to an EHC plan, the delay in allocating a secondary school place, the disclosure of an early draft of the EHC plan, the reimbursement of maths tuition costs and arranging of training for staff at C’s school, the Council’s communications with Mrs X and its handling of her complaint.
- I have not investigated Mrs X’s complaints about the Council’s consultations leading to its allocation of a school place for C, its decisions about which professionals to commission reports from for the EHC plan, and delays by the Council in finalising the EHC plan following the withdrawal of the appeal to the Special Education Needs and Disability Tribunal (SEND). I have set out my reasons for not investigating these issues at the end of this statement.
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)
- Councils have responsibility for completing EHC plans for children who have special educational needs that mean there is a need for special educational provision. The EHC plan is a legal document which sets out a description of a child's needs. It says what education, health and social care support will meet those needs. We cannot change an EHC plan; only the Tribunal can do that.
- The law says we cannot normally investigate a complaint when someone can appeal to a tribunal such as the Special Educational Needs and Disability Chamber of the First Tier Tribunal (the 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)
- 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 spoke to Mrs X about the complaint and considered the information she provided.
- I have considered the information the Council provided.
- I have considered the special educational needs and disability code of practice (January 2015), special educational needs and disability: managing the September 2014 changes to the system (October 2016), and our guidance on remedies.
- I gave the Council and Mrs X the opportunity to comment on my draft decision. I considered their comments before making a final decision.
What I found
- The purpose of an EHC plan is to make special educational provision for children with special educational needs and disabilities. Councils are responsible for deciding whether an EHC plan is needed and for preparing the EHC plan. The EHC plan should set out the specific support that is to be provided. It will usually name either a specific school or a type of school that can meet the child’s needs. The EHC plan will usually be reviewed annually.
- The statutory guidance says the EHC plan “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”. It also says “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”. A key transfer includes transferring from primary to secondary school.
Transfer from statement of special educational needs
- Prior to 1 September 2014 children who needed extra support in school were issued with a statement of special educational needs (statement). Statutory guidance sets out the arrangements for transferring from a statement to the new EHC plan. The council must carry out a transfer review (an EHC assessment). Usually the transfer review meeting replaces the annual review of the statement. Councils should issue an EHC plan within 18 weeks of the transfer review meeting.
Delay in finalising the EHC plan
- C had a statement of special educational needs (statement) in December 2014. When this was reviewed in September 2015 Mrs X said she was keen to convert the statement to a new EHC plan by Easter 2016 in preparation for making an application for a secondary school place.
- The Council has no record of what happened after the review meeting in September 2015 until it wrote to Mrs X on 24 October 2016 to tell her there would be a transfer review meeting on 8 November 2016
- The transfer review meeting went ahead in November 2016 and a draft EHC plan was issued on 11 March 2017. The Council issued the final EHC plan on 19 April 2017. Mrs X says the Council had not made the agreed changes before it issued its “final” version. She lodged an appeal to the SEND tribunal on 2 May 2017. The Council agreed to make changes to the EHC plan on 13 September so Mrs X withdrew the appeal. However, the Council did not issue a revised final plan until 31 October 2017. In its stage 2 complaint response on 5 March 2018 it said it “was unclear why this was not progressed earlier” and apologised that this was “not progressed in a timely manner”.
- The Council says it had a significant turnover of management and frontline staff in its SEN team, at the same time as it was making changes to its processes following the SEN reforms and experiencing an increase in workload due to the need to transfer statements to EHC plans. “This has meant that over the last four years Sheffield City Council has not always performed at an acceptable standard”. It has apologised to Mrs X for its delay in completing C’s EHC plan.
- One of the changes the Council agreed was to pay for specialist maths tuition for C and to arrange training for staff at his new school so that he could receive this support in school. Until staff at C’s school had received training Mrs X had to take C out of school and drive him to a specialist centre for maths tuition. This involved a 35-mile round trip for Mrs X, which took her three hours (two hours for C – one hour of travel and one hour for tuition).
- The staff at C’s school were trained across two days in May and June 2018. The school delivered the specialist maths tuition after the second day’s training in June. This means Mrs X had to take C to the specialist centre for two terms. The Council says it could not arrange the staff training until the EHC plan was finalised in October 2017. It says the training was more complicated to arrange that it had expected because it involved two full days of training four weeks apart. It was difficult for the school to release staff for this training because of the nature of the student cohort and the original dates had to be postponed because the school had too many staff absent on the dates agreed.
Allocation of a secondary school place
- C was due to transfer to secondary school in September 2017. Mrs X expressed a preference for a place at School 1. Her second preference was school 3. The Council had a duty to name a school for C by 15 February 2017. The naming of a school for C is intrinsically linked to the EHC plan because part of the process involves deciding which school is suitable to meet a child’s needs.
- On 1 March 2017 Mrs X complained to the Council because it had failed to respond to her communications and failed to allocate a secondary school place for C. She sent a copy to her MP. On 8 March 2017 Mrs X emailed the Council again. She said she had not had a response to her email of 1 March and had not had any official notification of a school place for C. However, she understood the Council had allocated a place at school 2. She set out the reasons she considered school 2 would not meet C’s needs.
- The Council issued a draft EHC plan on 11 March 2017. This named school 2. Mrs X suggested changes to the EHC plan. The Council emailed Mrs X on 31 March 2017 to say the suggested changes would be made but the named school would be school 2.
- On 11 April 2017 Mrs X wrote to her MP expressing concern that school 2 was allocated without consultation and the head teacher had said the school could not meet C’s needs. She pointed out that C’s transition to secondary school needed careful planning because of his special educational needs. The MP raised these concerns with the Council. On 12 April 2017 Mrs X complained to the Council. She said school 2 could not meet C’s needs and she would not send him there. However, until she had a final EHC plan she could not start the appeal process.
- The Council wrote to the MP on 28 April 2017. It said the EHC plan was completed on 19 April 2017. It said it had named school 2 after consultation but in view of Mrs X’s concerns it had now allocated a place at her preferred school, school 1. The Council says it has a letter on file dated 28 April 2017 telling her it had allocated a place at her preferred school but the actual letter is dated 24 July 2017. The Council is unable to confirm when this letter was sent.
- Mrs X says she did not receive a letter from the Council in April or May 2017 about a school place. She says the Council officer who was dealing with the EHC plan was not aware that a place had been allocated at school 1 when she contacted Mrs X on 2 May 2017. It is clear the junior school were not aware (see paragraph 29 below). Further, Mrs X says she was in discussions with school 3 about its suitability for C throughout the summer term.
- Mrs X says school 1 called her on 5 July 2017 to tell her a place had been allocated and to arrange a last-minute visit to the school for C. She says the Council called her to confirm this on 7 July 2017. The Council wrote to confirm a place was allocated at school 1 on 24 July 2017. In its stage 2 complaint response on 5 March 2018 the Council accepted there were a number of late decisions that were not communicated quickly enough. It said it had a number of tribunal cases and was working with schools to progress the placements requested.
- Mrs X says C’s complex needs meant he needed extra support in transferring to secondary school. However, she says the delay in confirming a school place for C meant he had fewer visits to his new school than his peers going to mainstream schools. Where other children with special educational needs had five or six visits of increasing length so they could get to know the school and staff could get to know them, C only had one visit. The other children were invited to a Fun Day at the school in the summer term but C missed out in this because the place was allocated late. The other children at his junior school all knew where they were going and the school was focussing on preparing them for their move but C could not picture what was happening next. School 1 was not the nearest school to C’s home and was in an area he was not familiar with. He knew no pupils at the school. The visits would have given him chance to get to know the area and start to make some new friends.
- I have seen an email from the Special Educational Needs Co-ordinator at the junior school to the Council on 21 June 2017 explaining that she wanted to be able to carry out bespoke transition for pupils such as C with very complex needs and expressing her concern that with only four weeks of term left she had not been able to create this support package for C. The delay in allocating the place also meant that the junior school could not begin sharing information with the secondary school and Mrs X could not begin discussing C’s needs with it.
Consultations with school 3
- Mrs X has complained the Council sent an early draft of C’s EHC plan to school 3, which was her second preference for C. She says she had not seen a copy of the draft at this point. She says school 3 decided it could meet C’s needs on the basis of this early draft but this was inaccurate. She says when it was given accurate information, school 3 said it could not meet C’s needs.
- The Council says it is common practice to consult with non-preferred schools in case the parent’s preference cannot be met. It has not been able to provide copies of the documents it shared with school 3 but said it is standard practice to share the EHC plan.
Communication and complaints handling
- Mrs X says the Council consistently failed to respond to her emails. For example, the EHC plan should have been completed and a school named by 15 February 2017. Mrs X contacted the Council on 17 February, 22 February and 27 February for an update but got no reply or call back. She complained on 1 March but there was still no reply so she complained again on 8 March. The Council responded on 31 March. It apologised for the lack of communication. It sent exactly the same letter again on 5 April 2017 but signed by a different Council officer.
- Mrs X contacted her MP in mid April 2017 because the EHC plan had not been finalised and the named school (school 2) could not meet C’s needs. The Council replied to the MP on 28 April 2017. The Council says it prepared a letter for Mrs X at the same time but it is unclear if this was sent. Mrs X says she did not find out that a place had been allocated at school 1 until school 1 contacted her on 5 July 2017. The Council wrote to Mrs X on 27 July in response to Mrs X’s email of 12 April. It apologised for the delay in responding, the fact that responses were duplicated, and the delay in completing the EHC plan.
- In September 2017 the Council agreed to changes to the EHC plan, as a result of which the tribunal appeal was withdrawn. As part of this it agreed it would reimburse Mrs X for the cost of the specialist maths tuition for C. In its response to my enquiries dated 31 July 2018 the Council accepted it was not as clear about this as it could have been. This meant Mrs X had to keep emailing about reimbursement because she did not know who to contact about this or what the process was. Council records show it did not start reimbursing her until February 2018 when it paid her for the period from September 2017 to February 2018. It made two further payments in early May to cover the period February to May 2018. The poor communication about reimbursement meant Mrs X was out of pocket for longer than she should have been. Mrs X’s email dated 29 November 2017 states she was then out of pocket by £504. By mid February when the Council made its first payment this would have risen to £752.
- Mrs X made a formal complaint on 13 December 2017. The Council replied on 29 January 2018. It apologised for not replying sooner and for the time it had taken to finalise C’s EHC plan. In response to concerns about the consultation process, it said it had undertaken a block consultation with school 2 but had not consulted with school 3.
- On 8 February Mrs X asked for her complaint to be escalated to stage 2. The Council replied on 5 March 2018. It accepted it should have named a school for C by 15 February 2017. It said it named school 2 in good faith. It said there were discussions with school 1 in January 2017 but it had no record of these so it could not explain why school 1 could not offer a place at that point. It recognised the stage 1 response was not completed within the timeframe. It recognised the service was “not always getting it right” and said was working hard to ensure improvements were made.
- The Council delayed in finalising the EHC plan. It should have done so by 15 February 2017. It sent a final EHC plan on 19 April. This was a delay of 9 weeks. This is fault. This fault meant a delay before Mrs X could appeal to the SEND tribunal.
- The Council also accepts it delayed in finalising the plan after agreeing the changes needed with Mrs X on 13 September. It issued the revised final EHC plan six weeks later on 31 October 2017. This is further fault.
- This fault contributed to a delay in arranging for staff at C’s school to have specialist maths training. This meant Mrs X had to take C to a specialist centre for maths tuition for two full terms, which meant a three-hour round trip for her.
- This fault also meant that when C started secondary school, the school was working with a working document instead of a final EHC plan. It does not appear that C suffered an injustice as a result because the school worked hard to support him.
Allocation of a secondary school place
- The Council should have named a school for C by 15 February 2017. It did not do so until 19 April 2017. This fault is linked to the delay in finalising the EHC plan for which I have already made a finding.
- The Council subsequently agreed to offer a place at school 1, Mrs X’s preferred school in late April 2017. It told the MP it had decided this but it appears not to have told anyone else (including the schools) until early July 2017. Mrs X found out on 5 July when school 1 called her. This delay in telling Mrs X it had allocated a place at school 1 is fault. This fault caused unnecessary worry and uncertainty for Mrs X. It also meant Mrs X and school 1 were unable to prepare properly for C’s transition to secondary school. This meant C had fewer visits to his new school than peers going to a mainstream secondary school. C has complex needs so he needed more support for his transition than his peers. His needs were not met.
Consultations with school 3
- The Council consulted with school 3. This was Mrs X’s second preference for C. It was not fault for the Council to consult with school 3.
- The Council is unable to demonstrate what information it shared with school 3. It says it sent Mrs X a draft EHC plan at the same time it sent it to school 3. Mrs X says she had not seen the draft EHC plan at that point. She says it was an early draft and was inaccurate. The Council has not sent me evidence that it sent the draft to Mrs X before or at the same time it sent it to school 3. On a balance of probabilities, I consider the draft EHC plan was sent to school 3 without Mrs X having seen it and had an opportunity to comment on it. This is fault.
- It is unclear whether the consultations with school 3 led to any delay in allocating C’s school place. However, the fault did cause avoidable distress to C.
Communication and complaints handling
- The Council accepted there were failings in communication, which in March 2017 it said was due to the office being very busy. It has also accepted it failed to provide adequate information to Mrs X about how she could get reimbursement for the specialist maths tuition it had agreed to pay for.
- It did not respond to the complaint at stage 1 within its timescales and its response contained inaccurate information because it said it had not consulted with school 3 but in its replies to me it confirmed it had done so.
- In its stage 2 response it did acknowledge failings in the service for which it has apologised. It was unable to provide full explanations for all the issues raised because it did not have complete records. It is not clear whether it considered any other remedy for the failings identified. Given the length of delays and the impact of this on C, who was moving from primary to secondary school at the time, it should have considered whether a payment or other remedy (such as additional support for C) was appropriate.
- The poor communication and failings in its complaints handling are fault. This fault added to the avoidable distress caused to Mrs X. It also meant she was out of pocket for the cost of specialist maths tuition for longer than she should have been.
- The Council will, within one month of the date of the final decision:
- Apologise to Mrs X for the delay in finalising the EHC plan and allocating a secondary school place for C, and for its poor communication and complaints handling.
- Pay Mrs X £1,500 to reflect the injustice caused.
The Council has made changes to its processes following an earlier public report from the Ombudsman that should prevent reoccurrence of the faults identified.
- I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice.
Parts of the complaint that I did not investigate
- I have not investigated Mrs X’s complaints about the Council’s consultations leading to its allocation of a school place for C, its decisions about which professionals to commission reports from for the EHC plan, and delays by the Council in finalising the EHC plan following the withdrawal of the appeal to the Special Education Needs and Disability Tribunal (SEND). This is because these aspects of the complaint are all intrinsically connected to the appeal lodged with the SEND tribunal and are therefore outside our jurisdiction. We cannot normally investigate where someone could appeal or has lodged an appeal with the SEND tribunal. This is the case even where the appeal was withdrawn following agreement between the parties as happened on this occasion.
Investigator's decision on behalf of the Ombudsman