Summary: The Ombudsman has not seen any evidence to suggest Mrs C was told a change of school would be considered outside of the EHCP process. However, the Council were at fault for not responding to Mrs C’s correspondence and that this led to distress. The Council has agreed to make a payment to Mrs C to remedy this distress.

The complaint

1. The complainant, whom I shall refer to as Mrs C, complains about how the Council handled the annual review process for her twin daughters Education and Health Care (EHC) Plans. I shall refer to the twins as ‘the twins’ or F and G. Mrs C says:
• She was told on several occasions, that her request for her twins be transferred to a different special school, would be considered by a panel, but this did not happen.
• The Council delayed dealing with her complaints about the matter, leading to distress.

Back to top

The Ombudsman’s role and powers

2. 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)
3. The law says we cannot normally investigate a complaint when someone can appeal to a 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)
4. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
5. 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

6. As part of the investigation, I have:
• considered the complaint and information provided by Mrs C; and
• considered information provided by the Councils; and
• communicated with Mrs C about her complaint.

Back to top

What I found

EHC assessments and plans

7. Children with complex needs might need an Education, Health and Care (EHC) plan. Councils are the lead agency for carrying out assessments for EHC plans and the statutory duty to ensure special educational provisions in the EHC plan is made available.
8. Councils must review an EHC Plan every twelve months. Reviews must focus on the child’s progress towards targets in the Plan and on what changes might need to be made to help the child achieve those outcomes. Councils can require a school to convene and hold a review meeting on their behalf. The Special Educational Needs and Disability Code of Practice says reviews are generally most effective when led by the school. The council must be invited to attend a review meeting.
9. Section I of the final plan is where the name and type of school is recorded. Parents have the right to request a particular school to be named in the plan, which will then be considered by the Council.
10. Councils must decide whether to maintain the EHC Plan in its current form, amend it, or cease to maintain it within four weeks of the review meeting. The council should issue the final EHC Plan or decide not to amend the EHC Plan at all as soon as practicable and within eight weeks of the date it sent the plan to the parents/young person with the proposed amendments.
11. Decisions to amend or cease a plan can be appealed to the SEND Tribunal.

What happened

12. Mrs C has twin daughters, whom I shall refer to as F & G, currently aged seven. They are both diagnosed as having autism and are therefore children with Special Educational Needs (SEN). The twins have been subject to EHC Plans since 2017, when they started a mainstream infant school which I shall refer to as School A.
13. In May 2018, the Council carried out an annual review for the twins EHC Plans. It recorded that Mrs C was considering resourced provision for both twins for Key Stage 2 of their education, which would start in September 2019. However, at the time of the review there was no record made of any request to change the provision for either of Mrs C’s daughters.
14. The Council wrote to Mrs C informing her of the outcome of F’s review, stating that no changes were being made and she would remain at School A. The Council explained that if Mrs C disagreed with the contents of the EHC Plan, she could appeal to SEND.
15. No such letter was sent regarding G’s review, until after Mrs C complained to the Council. This letter was subsequently sent in September 2019.
16. Mrs C and the Special Educational Needs Coordinator (SENCO) at the twin’s school, subsequently contacted the Council on numerous occasions between November 208 and March 2019 asking that the twins be transferred to a special school, which I shall refer to as School B.
17. Mrs C says the Council told her that her request would be heard by the school allocations panel in February 2019. However, after this date Mrs C was told the request was not considered by the panel. Mrs C complains that the Council’s failure to consider the transfer, resulted in the twins missing a place at School B.
18. In its response to Mrs C’s complaint, the Council said that it accepted that it did not respond to either Mrs C’s or the SENCO’s correspondence about a change of school place and apologised for this. However, the Council said that a change of school place can only be considered under the EHC Plan review process, or by appealing to SEND.
19. In March 2019, a further review was carried out of the twins EHC Plans. During this review it was recorded that Mrs C requested that the twins be transferred to School B, due to concerns over their needs and high levels of distress.
20. In June 2019, the Council wrote to Mrs C informing her that the twins EHC Plans would not be amended, and therefore the named school would remain. The Council explained that if Mrs C disagreed with the contents of the EHC Plans, she could appeal to SEND.
21. On 2 April, after being unable to resolve her complaint at stage 1, Mrs C submitted a complaint at stage two of the Council’s complaints process. The Council said she would receive a response by 18 April, however it responded on 29 April. The Council apologised for this delay.
22. On 13 May, Mrs C requested her complaint to be progressed to stage 3 of the Council’s complaints process.
23. Having not received a response after 12 days Mrs C contacted the Council again for an update. The Council responded, apologising for the delay and said it would provide a response by 11 June.
24. Mrs C clarified the points of her complaint on 23 June and received a stage 3 response on 31 July.

Analysis

25. The Council delayed issuing G’s EHC Plan review outcome letter from May 2019, which is fault. However, no changes were made to the plan and no requests were made for any changes, so I do not conclude that this fault caused Mrs C or her twins an injustice.
26. Mrs C says after the May 2018 review, the Council told her on several occasions that her request for a change of school for her twin daughters would be considered by a panel and its failure to do so has meant they have missed out on a school place.
27. I have seen no evidence, in the documents I have reviewed, that the Council confirmed to Mrs C it would consider a change of school placement by panel, rather than the EHC Plan review process. I am therefore unable to conclude that the Council were responsible for the twins missing out on a place at School B.
28. The Council do however accept that it did not respond to Mrs C’s or the SENCO’s correspondence about a change of school place. It says if it had have done, it would have informed her that the correct place to request such a change is during the review process.
29. Although I cannot say that the Council’s failure to respond to correspondence led to her twins missing out on a place at School B, I do consider that it has led to a significant amount of uncertainty and distress to Mrs C. Although the Council has apologised for this, I consider it appropriate for it to also offer a payment to remedy this distress.
30. Injustice such as distress is difficult to remedy, so we often seek a symbolic amount to acknowledge the impact of fault on a complaint. The Ombudsman’s remedy guidance says that any remedy should reflect the circumstances of the case, including the severity of the distress and the length of time involved. It says payments are often between £100 and £300.
31. In this case, due to a number of correspondence being ignored over a number of months, and because it would have been relatively easy for the Council to explain to Mrs C that her request needed to be made at the EHC Plan reviews, I consider a payment of £200 to be satisfactory.
32. After Mrs C became aware that her request would not be heard by a panel, a further review of the twins EHC Plans took place. Although Mrs C requested, they be transferred to School B, the Council made the decision they should remain at School A.
33. The Council wrote to Mrs C informing her of its decision, and that she could appeal to SEND. I will not investigate this matter further, as Mrs C had the opportunity to appeal the decision at this stage.
34. Mrs C also complained about the Council’s handling of her complaint. Although, I do accept that there were delays at both stage 2 and 3, these were relatively short delays and the Council did apologise.
35. I therefore do not consider that Mrs C suffered any significant injustice due to these delays, and therefore do not propose making a finding of fault in relation to complaint handling.

Agreed action

36. The Council has agreed that, within 1 month of my final decision, it will offer Mrs C a payment of £200 to remedy the destress caused by its failure to respond to her correspondence about her twins change of school.

Back to top

Final decision

37. I have upheld this complaint with a finding of fault leading to an injustice.

Back to top

Investigator's decision on behalf of the Ombudsman