Summary: Mrs X complained that the Council failed to deal properly with the annual review of her son’s Education Health and Care Plan. There was delay and other fault in the process. The Council has agreed to apologise to Mrs X and make a payment to recognise the delay in her son starting at the school named in the Plan.

The complaint

1. Mrs X complained that the Council:
1. delayed in holding an Annual Review of her son's Education Health and Care Plan and failed to follow the Annual Review process properly;
2. delayed in arranging a school placement; and
3. failed to communicate with her properly.
2. As a result she says her son has been out of school for too long and she has been educating him at home.

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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 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)

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How I considered this complaint

5. I discussed the complaint with Mrs X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I considered relevant law and guidance on provision for special educational needs. I shared my draft decision with the Council and the complainant and considered their responses.
6. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I found

7. A child with special educational needs (SEN) 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. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ sets out the process for carrying out EHC assessments and producing EHC Plans. This says:
• Councils must review an EHC Plan at least every 12 months. The first review must take place within 12 months of the date when the EHC plan was issued, and then within 12 months of any previous review.
• As part of the review the council must ensure there is a meeting.
• Where the child or young person does not attend a school or other institution the council must arrange the meeting. It must invite the child’s parent or the young person, an SEN officer from the council, and representatives from the health service and social care. It may invite others where relevant.
• The council must seek advice and information about the child or young person from all those invited before the meeting. It must send the information received to all those invited at least two weeks before the meeting.
• The council must write to the child’s parent or the young person within four weeks of the review meeting to say whether it proposes to keep the EHC Plan as it is, amend it or end it.
• If the Plan needs to be amended the council should start the process of amending it “without delay”. It must:
1. send the child’s parent or the young person a copy of the EHC Plan with details of the proposed amendments and any evidence it has supporting the amendments;
2. tell them of their right to ask for a particular school or other placement to be named in the Plan and advise where they can find information about placements available;
3. give the parent or young person at least 15 days to make representations on the proposed changes or request a particular school.
• If the council decides to amend the EHC Plan following the representations it must issue the final amended EHC Plan within eight weeks of the original amendment notice. It must tell the parent or young person about their right of appeal.

(Special Educational Needs and Disability Regulations 2014, regulations 18-22)

What happened

9. Mrs X has a son, Y, now aged 11, who has a diagnosis of Attention Deficit Hyperactivity Disorder, some autistic traits and some physical health conditions. Y had a statement of special educational needs which converted to an EHC Plan issued in January 2017. Mrs X educated Y at home from November 2014 following his permanent exclusion from primary school as she did not consider the alternative school the Council offered was suitable. In around November 2015 she started formal ‘elective home education’ with the agreement of the Council.
10. In early August 2017 Mrs X contacted the Council to ask about options for school places for Y. At the end of August the SEN Casework Manager, Officer B, replied apologising for the delay and saying he had been advised to speak to the Educational Psychology Service about possible options.
11. After doing so he wrote to Mrs X in early September 2017 offering a meeting with an Educational Psychologist (EP) and explaining some of the provision available for children with social, emotional and mental health (SEMH) needs.
12. Mrs X replied on 24 November 2017 saying she would like the EP to contact her directly to arrange a meeting. In early December 2017, after speaking to the EP, Mrs X wrote to the Council to say she did not wish her son to meet the EP until she knew more about the type of placements available.
13. In early February 2018 Mrs X contacted the Council to ask when the Annual Review meeting of her son’s EHC Plan would take place. She said she had sent many emails but had not received a reply. Officer B replied, apologising for the delay and offering dates later in February for the Annual Review meeting.
14. I am not clear why the meeting did not take place on those dates. It was held on 6 April 2018. The record of the meeting shows that only Officer B and Mrs X were present. They discussed Y’s condition, his needs, and the education and other activities Mrs X and Y’s father were providing. Mrs X said Y’s needs were as set out in the existing EHC Plan, although she was concerned he may be dyslexic. She and officer B discussed possible placements. The Council’s view was that a residential specialist school for SEMH needs would be suitable. Mrs X did not agree. Officer B advised that Y should see the EP for an assessment. Mrs X agreed this may be worth considering. Officer B said he would refer Y’s case to the local management team panel (‘the Panel’) to consider placements.
15. Following the meeting Mrs X submitted medical reports about Y’s health conditions.
16. At the beginning of May 2018 the Panel met to consider a suitable school placement for Y. It decided Y needed an EP assessment to help decide the most appropriate type of provision. Around two weeks later Officer B told Mrs X the decision.
17. The EP carried out an assessment and produced a report at the end of May 2018. Officer B sent Mrs X a copy of the report and said it would be considered by the Panel.
18. The Panel considered the report on 12 June 2018. It decided a mainstream placement would be appropriate for Y and Mrs X should be asked about her school preferences.
19. Mrs X wrote to Officer B on 22 June 2018 saying she had still not had a decision about Y’s EHC Plan following the Annual Review meeting or an update on possible school places.
20. On 11 July 2018 when Mrs X had not heard any more she made a formal complaint to the Council about these delays. She referred to the need to find a suitable placement from September.
21. Officer B wrote to Mrs X on 21 July 2018 saying the Council would be consulting School 1, the nearest mainstream school, and would update her when he had more news.
22. The Council replied to Mrs X’s complaint on 25 July 2018. It apologised for the delay in moving the case forward and said understood Officer B had now contacted her and ‘agreed a plan of future actions’ with him. It said the Area Manager would follow this up to ensure there was no further delay.
23. The Council consulted School 1 on 1 August 2018 and informed Mrs X, saying it was expecting a response in the week beginning 20 August.
24. I am not clear when School 1 responded to the consultation but the evidence shows that School 1 contacted Mrs X and she arranged a visit for Y on 10 September.
25. On 25 September 2018 Mrs X contacted the Council as she had heard no more about Y’s EHC Plan following the Annual Review meeting. By this time Officer B had left the Council and been replaced by Officer C who replied informing her of a meeting the following day to discuss Y’s transition to School 1. Mrs X confirmed she would be attending but again pointed out she had not received an amendment notice or the EHC Plan following the Annual Review meeting.
26. Officer C wrote to Mrs X following the meeting at School 1 at the end of September 2018 to confirm the arrangements for Y to start at the School. She also apologised that Mrs X had not received a letter following the Annual Review meeting and said she would ensure one would be sent out.
27. The Council replied to Mrs X’s email in early October 2018. It set out the history of events and said the Council intended to name School 1 in Y’s EHC Plan from 29 October 2018.
28. In mid-October Mrs X wrote back to the Council to say she had still not had a letter following the Annual Review meeting. She said she had not received a copy of the amended EHC Plan or confirmation of Y’s start date at School 1.
29. The Council sent Mrs X a draft amended EHC Plan on 16 October 2018. It asked her to comment by the end of the month and say which school she wanted named in the Plan.
30. The Council also replied to Mrs X’s email saying she should have received the draft EHC Plan by now and the Council would speak to School 1 about staffing arrangements for Y.
31. When Mrs X received the draft Plan she made comments on it within three days and asked for some amendments. She said she wanted 1:1 support from a Teaching Assistant included in the Plan. The Council replied that “this is not something we do”.
32. The Council issued the final amended EHC Plan on 21 November 2018, naming School 1. Y started at School 1 in December 2018.

Analysis – was there fault causing injustice?

Annual Review and school placement

33. Y’s first final EHC Plan was issued in January 2017 and so the Annual Review meeting should have been held by January 2018. It did not take place until April 2018. The delay in holding the meeting is fault by the Council.
34. As Y was not attending school but was being home educated, it was the Council’s responsibility to arrange the meeting, invite the participants and seek information in advance of the meeting. The Council says it did not invite anyone other than Mrs X as no other professionals had been involved with Y recently. It still had a duty to invite health and social care professionals but I cannot say their absence made a difference to decisions made as Mrs X did not indicate that Y’s needs had changed, other than wishing to have a school place.
35. The Council was also at fault in failing to send the notice of its intention to amend the EHC Plan within four weeks of the Annual Review meeting, despite Mrs X chasing the Council several times. It should have sent the notice within four weeks and then sent the amended draft and final EHC Plans as quickly as possible and within eight weeks of the notice. If the Council had met the required timescales it would have issued the final EHC Plan by the end of June 2018.
36. The Council accepts it failed to issue the notice to amend the EHC Plan by 4 May 2018 as it should have done. It recognises there was delay in completing the Annual Review process and issuing the final EHC Plan. It says one reason for the delay was that it needed new EP advice which was not available until the end of May 2018. It also says there were significant workload pressures within the SEN assessment team. This was because of staffing shortages and the large volume of transfers from statements of SEN to EHC Plans.
37. In response to the Ombudsman’s enquiries the Council has apologised for this delay. However it says the delay did not affect Y’s education as the parents were home educating him and had not expressed a preference for any school place. It accepts the delay caused frustration for them.
38. I do not consider the Council was at fault for deciding it needed an EP assessment in order to inform the decision about what type of education provision was suitable for Y. Y had been out of the school system for over three years and had not had a recent assessment. It needed an up-to-date picture of his needs. The Council had suggested an EP assessment as early as September 2017, when Mrs X first started asking about possible school places. Mrs X did not respond for over two months and then declined. If Mrs X had agreed to an assessment then, this would have avoided some of the delay following the Annual Review meeting as the report would have been available for the meeting. The decision about the type of provision suitable for Y could then have been made earlier.
39. But even allowing for the delay caused by the need to obtain an EP assessment, I consider there was further avoidable delay after this point. After considering the report the Panel decided in mid-June that a mainstream placement would be suitable. Yet the Council did not consult School 1 for another six weeks, by which time the summer break had started.
40. The Council says Mrs X did not express a preference for a school and this caused delay. I have not seen evidence that the Council formally asked her to say which school she preferred until it sent her the draft EHC Plan in October 2018. This is despite that fact that the Panel in June 2018 decided it should do so. As the Council has not provided evidence of an earlier request I find that the failure to follow up on the Panel’s decision is fault. Although the Council is required to ask about school preferences when sending out the draft EHC Plan, the delay in issuing the draft Plan resulted in delay in asking about her choice of school.
41. In my view if the Council had taken steps to amend the EHC Plan without delay after obtaining the EP report, as required, it would have been able to issue the draft EHC Plan and consult School 1 before the end of the summer term. Mrs X would then have known the Council was proposing to name School 1 in the final EHC Plan and would have been able to make the arrangements to visit the School. It seems likely the Council would have been able to issue the final EHC Plan and Y would have been able to start at School 1 from the beginning of term in September 2018.
42. So, based on the evidence I have seen, I find that Y missed out on the opportunity to start school for three months. I agree with the Council that the impact of the delay was mitigated by the fact that Y was receiving home education. But he still missed out on the social and other educational opportunities that being in a school with other children offers. I consider that this is an injustice which the Council should remedy.

Communications

43. Mrs X also complained about poor communication. It is clear from the above history that there were several occasions when the Council either failed to or delayed in responding to Mrs X. This caused frustration for Mrs X.
44. In my view the Council was also at fault for saying that including 1:1 support in an EHC Plan ‘is not something we do’. It is of course possible for an EHC Plan to include such support if the Council agrees it is required to meet the child’s SEN needs. Mrs X’s remedy if she thinks Y should have 1:1 support included in the Plan is to appeal to the SEND Tribunal. But the Council should review this statement as it is not clear what it means or why it was made.

Agreed action

45. The Council has agreed that within one month of the decision on this complaint the it will take the following action to remedy the injustice to Mrs X and her son:
• Write to Mrs X directly to apologise for the frustration caused by the faults in the way it handled the review of Y’s EHC Plan and its failings in communications.
• Offer her an apology and a payment of £150 per month to recognise the missed opportunity to start at the school placement from the beginning of term. In recommending this figure I have taken account of the Ombudsman’s remedies guidelines and the fact that Y was receiving home education. Y missed three months of school, so the total amount will be £450.
• Review its statement about including 1:1 support, explain the reasons for it, and ensure relevant officers are aware of the correct position relating to support required in an EHC Plan.

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Final decision

46. I have found that the Council was at fault in the way it dealt with the annual review of Y’s EHC Plan. I am satisfied with the action the Council has agreed to take to remedy the injustice caused and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman