Summary: Mr and Mrs X complain the Council delayed making changes to their daughter’s Education and Health Care Plan. The failure led to a lack of provision by the school and resulted in a worsening of their daughter’s health and absence from school. The Council were at fault. We recommended the Council make a payment to Mr and Mrs X and their daughter. The Council should take remedial action and also review whether other children were similarly affected.

The complaint

1. Mr and Mrs X complain the Council delayed making changes to their daughter’s Education Health and Care Plan (EHCP) following a review meeting in March 2018. They explained the existing EHCP only specified support should be provided up to their daughter’s 16th birthday. The changes were required to prepare for her transition to the sixth form. The EHCP had not been amended and issued before she began the sixth form in September 2018, aged 16.
2. Mr and Mrs X say the school stopped providing the support specified in the EHCP when their daughter started sixth form.
3. The failure to provide the support specified in the EHCP led to their daughter’s absence from school. Mr and Mrs X complain that as a result, the Council failed to ensure their daughter was receiving a suitable education. They say the lack of support and absence from school caused their daughter to be isolated from her peers and it worsened her mental health.

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What I have investigated

4. I have not investigated the school’s actions as part of this complaint. The reason for this is set out in the last section of this statement.

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The Ombudsman’s role and powers

5. 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)
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)
7. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)

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How I considered this complaint

8. I considered Mr and Mrs X’s complaint and the information they provided. I asked the Council for information and considered its response to the complaint.
9. Mr and Mrs X and the Council had an opportunity to comment on my draft decision. I considered the comments received before making a final decision.

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What I found

Background

10. Mr and Mrs X complain about the way the Council dealt with a review of their daughter’s EHCP. I have referred to their daughter, as Y in this statement.
11. Y’s existing EHCP was completed in January 2017. The plan explains that Y’s needs are associated with her diagnoses of anxiety, Autistic Spectrum Disorder (ASD) and motor dyspraxia. Y’s anxiety fluctuates and can be unpredictable. The plan notes that when Y’s anxiety is heightened, her health and school attendance is likely to be affected.
12. Y’s 2017 EHCP specified the support that she should receive. Amongst other things the plan states Y needs access to staff who understand her conditions. It states key staff should be available throughout the day to enable issues to be resolved as they arise, both in lessons and during unstructured times. It states key staff will allow her to build relationships, establish trust and build confidence in those supporting her learning.
13. The plan also says Y and her family will be supported to identify an appropriate to post-16 setting for continuing Y’s education and everyone should work together to ensure an effective and smooth transition.

Review of Y’s EHCP

14. A meeting took place to review Y’s 2017 EHCP in March 2018.
15. The notes from the meeting show what was discussed. Y highlighted a smooth transition to sixth form as one of the things that was important to her. She stated she needed familiar trusted support at school and freedom to use strategies to cope with anxiety, including walking and use of headphones. The notes from the school under “questions to answer” stated “KS5 funding required”.
16. A report prepared by the school ahead of the review meeting described Y’s progress for the year. It stated Y had built a good trusted relationship with a teaching assistant and she had confidence in that member of staff. It stated “[Y] will need support to identify how she can build trusted relationships with new staff in her post 16 setting…”
17. The report stated Y would “require an extended transition to help her build relationships with key staff in sixth form”.
18. The Council explained that Y attended an independent school. She chose to move to the sixth form at the school. The Council says, following the review, the school would usually inform the Council what the cost of Y’s placement would be. The Council would then agree this. Its commissioning team would then process the funding and draft a contract for the private school.
19. Mr and Mrs X say they had numerous meetings with school and were assured the plan agreed in March would be in place for Y. However, Y’s EHCP statement had not been amended by the time she returned to sixth form in September 2018.
20. Unfortunately, Y struggled in sixth form for a number of reasons. Mr and Mrs X say the school presented Y with a timetable that was different to what was expected following the March 2018 review meeting. In the previous year, Y worked almost exclusively with one teaching assistant. In the sixth form she was being expected to interact more and be part of a group, without the close support of someone who knew and understood her. Staff had also discussed with Y the possibility of her attending college which she was not expecting. She also found the removal of her phone, under new rules, difficult. She used this to play music, one of her coping mechanisms when she was anxious.
21. Mr and Mrs X told us they had been given the impression by the school that the teaching assistant Y trusted would be supporting her in sixth form. They say this did not happen. Mr and Mrs X raised the issue with the school. They noted Y’s EHCP required her to be supported by familiar staff. They stated Y did not know many of the other staff in the sixth form. So, when Y experienced problems she did not feel she could raise them. This led to anxiety.
22. After discussion with Mr and Mrs X about the issues, the school agreed a different timetable and agreed a list of points to address. However, it stated it could not provide 1-2-1 support for Y. After a period of absence Y tried to return to school but she still found things too difficult.
23. On 10 October, Mr and Mrs X contacted the Council. They explained the issues and stated the existing 2017 EHCP was no longer up to date. The outcomes and provision related to Key Stage 4. Y was now in sixth form in Key Stage 5 and her EHCP needed to be amended as quickly as possible.
24. The Council’s response on 16 October apologised that the changes were not made after the March 2018 review. The Council stated its assessment team had a significant backlog of EHCP amendments following reviews and Y’s case was sitting in that backlog. The Council acknowledged it needed to have a better way to identify priority cases such as Y’s, where she was moving into a new phase of education. It stated it had been unaware that Y was not attending school and had raised this with the school. The Council brought forward the next review of Y’s plan from December to November.
25. The Council sent an amended EHCP to Mr and Mrs X on 18 October.
26. A further review meeting was held in early November 2018. In follow up emails the Council stated some of what was discussed was contingent on funding; resources to enable Y to access a work placement or to visit a college. The Council agreed to liaise with the school about this. Mrs X noted that a plan for Y’s post-16 education was agreed at her Annual Review in March. It was agreed that to help Y to take the next steps, this year she would need to concentrate on her independence skills and work experience opportunities whilst also looking at suitable courses and visiting other post-16 placements and apprenticeships. If funding was needed for this it ought to have been resolved in March. They were concerned that at a late stage the school seemed unable to meet the needs identified back in March. I understand they separately raised concerns about the school’s actions with the governors.
27. In December Mr and Mrs X commented on the proposed revisions to the EHCP. I have not set out their concerns here. In December the Council stated it would finalise the ECHP to open up Mr and Mrs X’s right to appeal if they disagreed with the content. The final EHCP was sent on 2 January 2019.
28. Mr and Mrs X explained that because of the uncertainty around Y’s timetable and the support available, Y’s anxiety was heightened. Because Y was not familiar with the staff supporting her in sixth form, she had not felt able to address her concerns. She found it too difficult to attend school as a result. As Y’s social group is through school this also led to social isolation. Y was unable to attend school from the end of September 2018 to the end of February 2019.

Was there fault by the Council?

Delay in issuing a revised EHCP

29. The first part of Mr and Mrs X’s complaint is that the Council delayed making changes to their daughter’s EHCP following a review meeting in March 2018. Y was due to start sixth form in September 2018 so the review was also required to plan for a change to a new phase of education.
30. Paragraph 9.179 of the SEN Code of Practice states an EHC plan must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education. Paragraph 9.180 states that for young people moving from secondary school to a post-16 institution, the review and any amendments must be completed by 31 March in the calendar year of transfer.
31. The move between schools is an important moment for any child and especially those with SEN. This is why the Code says that advance planning for these moves is essential. The importance of everyone working together to achieve a smooth, effective transition to post-16 education was also stated in Y’s existing 2017 EHCP.
32. Where a council decides to amend the ECHP it must notify the parent of this decision within four weeks of the review meeting. There is no statutory timeframe for how long the Council can take to do the amendments. However, the Code says this should happen ‘without delay’.
33. There was clearly fault by the Council in Y’s case. The review of Y’s plan should have been completed by 31 March given Y was moving to another phase of education. However, there was significant delay well beyond 31 March, and well beyond the date that Y started sixth form in September 2018.
34. It was not until 19 October 2018 that a proposed ECHP was sent to Mr and Mrs X, and even then, this appears only to have been prompted by their complaint. A revised version of the EHCP was sent on 27 November after a further review meeting and a final amended EHCP was issued on 2 January 2019.
35. The Council told us it could not see evidence on its files to explain why the final statement was only issued in January 2019. However, it explained to Mr and Mrs X in response to their complaint that the delay was because of a backlog in the team responsible for dealing with changes to EHCPs.
36. This delay was significant and represents fault by the Council. It also raises questions about whether the backlog of EHCP amendments may have similarly affected other young people with special education needs in the Council’s area.

Lack of provision

37. As Mr and Mrs X have rights of appeal specifically to enable them to challenge the content of the EHCP when it was issued, I have not investigated whether the provision specified was suitable for Y.
38. In addition, I cannot investigate the actions of a school, so I am unable to investigate the elements of Mr and Mrs X’s complaint that refer to the school.
39. However, the SEN Code makes it clear that where young people are moving between specific phases of education, it is important to review their plan in good time. This is specifically to allow for planning, and where necessary, commissioning of support and provision at the new institution to happen before the term starts and to enable any phased introductions and work to help familiarise young people about what to expect. In Y’s case, it seems clear that the delay in following up the review meeting and the delay in issuing an amended EHCP significantly contributed to the problems that occurred when Y began sixth form in September 2018.
40. Y’s attendance at school had always been affected by her anxiety to a degree, but the Council’s fault was a significant contributory factor in the fact that Y was not able to attend school between the end of September 2018 and the end of February 2019. In this period she missed both education provision and the EHCP provision she was entitled to. The lack of support and absence from school caused Y to be isolated from her peers and it worsened her mental health.

Agreed action

41. Within four weeks of our final decision the Council should take the following action:
• Provide a written apology to Y for the failure to properly ensure her EHCP plan was reviewed and issued in good time for her move to sixth form.
• Make a payment of £2500 to Y. This is to recognise the period in which Y was less able to attend school and did not receive a suitable education or the support in her EHCP. It is also to recognise the distress and social isolation that being away from school caused her.
• Make a payment of £250 to Mr and Mrs X to recognise the time and trouble they were put to in following up the delayed EHCP with the Council and in bringing the complaint.
• The Council should provide us with details of how many other cases it has in the backlog of EHCP amendments, what action it has taken to reduce the backlog and what steps it has taken to prioritise the most urgent cases.
• The Council should provide the Ombudsman with confirmation of whether there are similarly affected children to Y, caused by the backlog of EHCP amendments and how it intends to remedy any injustice caused to them.

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Final decision

42. There was fault by the Council. I have now completed my investigation on the basis the Council has agreed to remedy the complaint as we recommended.

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Parts of the complaint that I did not investigate

43. I have not investigated the actions of the school. The Ombudsman does not have any jurisdiction to consider complaints about schools.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman