Summary: Mrs F complained the Council failed to manage the process of transitioning her son, Mr G, from a Statement of Special Educational Needs to an Education, Health and Care Plan. There is evidence of fault and the Council has agreed to apologise, to make a payment and to amend its procedures.

The complaint

1. The complainant, whom I shall call Mrs F complained about the Council’s transfer of her son, Mr G, from a Statement of Special Educational Needs to an Education, Health and Care Plan (EHCP) in line with legislation. In particular, she said the Council:
1. Delayed transferring Mr G from a Statement of Special Educational Needs to an EHCP in November 2015 and failed to properly follow the process for doing this;
2. Delayed issuing the final EHCP with appeal rights;
3. Failed to issue a legally compliant EHCP; and,
4. Delayed complaints handling and communicated with her poorly.

Back to top

What I have investigated

2. I have investigated Mrs F’s complaints except for complaint c). I explain why I have not looked at this at the end of the statement.

Back to top

The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended) In this case, I exercised discretion to consider matters from 2015 on the grounds the complaint was ongoing from then.
4. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
6. 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)

Back to top

How I considered this complaint

7. I considered the information provided to me by Mrs F and spoke to her on the telephone. I made enquiries of the Council and assessed its response. I sent a copy of my draft decision to Mrs F and the Council and took comments made into account before issuing a decision.

Back to top

What I found

8. Mrs F was informed a ‘conversion meeting’ would be held to change Mr G’s Statement of Special Educational Needs to an Education, Health and Care Plan on 6 October 2015 in accordance with the Children and Families Act 2014 and the Special Educational Needs and Disability Code of Practice: 0 to 25 years: (January 2015). This timing was appropriate as Mr G would be moving into post-16 provision in September 2016.
9. Including the notice period for the meeting, the Council had 20 weeks from the date of the letter to convert Mr G’s Statement to an EHCP. This means Mr G should have had a final EHCP by 23 February 2016.
10. He did not and this is fault. Mrs F was put to time and trouble trying to chase this up. There is no evidence of a draft EHCP being issued until 27 April. There is also no reference to a needs assessment before the EHCP was issued. The Special Educational Needs Regulations (2014) say the Council must seek:
1. advice and information from the child’s parent or the young person;
2. educational advice and information from the head teacher or principal of the school or post-16 or other institution that the child or young person is attending (or other appropriate person where this is not available);
3. medical advice and information from a health care professional identified by the responsible commissioning body;
4. psychological advice and information – from an educational psychologist;
5. advice and information in relation to social care;
6. advice and information from any other person the local authority thinks is appropriate;
7. where the child or young person is in or beyond year 9, advice and information in relation to provision to assist the child or young person in preparation for adulthood and independent living; and
8. advice and information from any person the child’s parent or young person reasonably requests that the LA seek advice from.
11. A needs assessment would only be considered unnecessary if all parties agreed the information in the Statement was up to date and appropriate to use for the EHCP. Given medical information dates from 2009 (apart from a very brief report from the community paediatrician in November 2012) I consider the Council’s failure to conduct a needs assessment is fault. This caused distress to Mrs F as she wanted Mr G to be appropriately supported post-16.
12. Mr G’s EHCP was finalised in July 2016, just before he transitioned to post-16 provision although, from the evidence provided to me, the Council was still consulting providers at this time. There is no evidence of advice and information being received in order for Mr G’s transition to adulthood to be considered. This is fault and caused further distress for Mrs F.
13. The Council accepts it finalised the EHCP without taking Mrs F’s comments into account even though it received them in May 2016. It was signed by an officer and not Mrs F. This is fault causing distress to Mrs F. She felt the Council was not working in partnership with her and failing to take her concerns seriously.
14. Further, the Council has accepted Mrs F did not receive a copy of the EHCP as the Council was using an old email address for her. It would have been aware of this later in the month given Mrs F was asking for a meeting about post-16 provision. There is no evidence it re-sent her a copy of the EHCP and covering letter, which would have allowed her to go to tribunal at this point. This is fault and it caused time and trouble for Mrs F trying to find out the status of the EHCP and how Mr G would be supported.
15. The Council says it agreed to have a meeting with the then education provider to discuss services for Mr G although I have no record that this changed Mr G’s EHCP in any meaningful way.

2017-2019

16. There is no record of an annual review of the EHCP in 2017. Although the Council is correct to say that it is usual for colleges to arrange reviews, it is a statutory requirement annual reviews are held. For one not to be held is Council fault and it caused distress for Mrs F as she had concerns about the EHCP and felt they should be addressed. This also meant Mrs F could not go to tribunal as she did not have a formal letter allowing her to do so.
17. There was an annual review on 28 March 2018. The Council received the paperwork on 11 April 2018 but did not send Mrs F notification until 16 July 2018. This delay is fault and it caused time and trouble for Mrs F given the concerns she had already expressed. There is no evidence the Council sent Mrs F a letter setting out her appeal rights at this point. This is fault and it caused distress as Mrs F was trying to go to SEND at the time.
18. Mrs F requested a meeting to discuss provision for Mr G in August 2018 but it was not arranged by the Council. This is fault causing additional distress and time and trouble to Mrs F. A third draft amended EHCP was sent out to Mrs F on 20 December 2018. I have no evidence a revised final EHCP has been sent to Mrs F. This is fault as Mrs F, and Mr G, have now been awaiting a revised final since May 2016, which is when Mrs F made substantive comments on the draft, which were not considered for the July 2016 EHCP. I understand Mrs F is going to tribunal, which puts this outside of the Ombudsman’s jurisdiction.
19. There was delay in the Council dealing with Mrs F’s complaints. The Council responded at Stage One in September 2017 and Stage Two in November 2017 but then failed to escalate to Stage Three. Mrs F had to come to the Ombudsman to ask the Council to do this and it responded at Stage Three in February 2019.
20. This delay is fault and it caused time and trouble for Mrs F. The officer who signed the EHCP in July 2016 responded to Mrs F at Stage One. Given this officer had been criticised by Mrs F, it would have been appropriate for the Council to consider whether they were the correct person to respond to the complaint. I consider this is fault causing distress to Mrs F.

Agreed action

21. For the Council to apologise to Mrs F and Mr G for the fault identified in this statement within a month of the date of my decision.
22. For the Council to make a payment to Mrs F of £300 for time and trouble and £300 for distress. I cannot say what services Mr G has missed out on until the tribunal has made a ruling. Mrs F is able to come back to us at that point for us to identify this. The Council should make this payment to Mrs F within two months of the date of my decision.
23. For the Council to use the learning from this complaint to improve its practice going forward. It should tell me what actions it intends to take within four months of the date of my decision.
24. For the Council to ensure that schools and colleges conduct annual reviews appropriately and that the Council sends paperwork to parents promptly, with their eligibility to appeal, when appropriate. The Council should consider this and let me know what actions it intends to take within four months of the date of my decision.

Back to top

Final decision

25. I have made a finding of fault leading to injustice. The Council has agreed actions to remedy that injustice.

Back to top

Parts of the complaint that I did not investigate

26. I did not investigate Mrs F’s contention that the EHCP was not legally compliant. The content of EHCPs is for the tribunal rather than for the Ombudsman.

Back to top

Investigator's decision on behalf of the Ombudsman