Summary: the Council was at fault in its handling of Mr A’s request for an early review of X’s Education, Health and Care Plan, in delaying taking action following the reviews in July and September 2019 and in further delaying before starting to consult alternative school provision for X after the SEN panel agreed to this in October 2019. The Council will apologise and make a payment to Mr A to recognise the injustice these faults caused.

The complaint

1. The complainant, whom I shall refer to as Mr A, complains that the Council delayed in taking appropriate action with regard to his son, X’s, special educational needs after the mainstream school he was attending, and which was named on his Education, Health and Care Plan, was increasingly unable to meet his needs. The effect of this delay was that X did not start attending a special needs school and receiving the specialist support he needed until February 2020 several months later and only after the school said it could no longer educate X. Mr A is also dissatisfied that the Council upheld his complaint about this but failed to take appropriate action to recognise this or put things right.
2. Mr A says this caused X and the family distress, meant that X missed out on suitable education that met his needs and put him at risk as he absconded from school several times and was found by the police.

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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 Mr A and considered the written information he provided with his complaint. I made written enquiries of the Council and considered all the information before reaching a draft decision on the complaint.
6. Mr A and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
7. 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

What should have happened

8. A child with special educational needs 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.
9. We can consider the other sections of an EHC plan. We do this by checking the Council followed the correct process, and took account of all relevant information, in deciding what to include. If we find fault affected the outcome, we may ask the Council to reconsider.
10. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
11. EHC Plans must be reviewed at least every 12 months. The review of an EHC Plan considers whether the provision remains appropriate and whether progress is being made towards the targets in the Plan. A parent may ask for an early review if, for example, they believe that their child’s needs have changed or the plan is no longer meeting the child’s needs. There is no right of appeal against a refusal to carry out an early review but a parent could instead request a re-assessment of needs if they considered they had changed.
12. In practice the review process includes the review meeting and the Council’s decision following the meeting. Parents have a right of appeal to the SEN Tribunal if they disagree with the decision to maintain, cease or amend the Plan at the end of that process.
13. The Council has a two stage corporate complaints procedure. Its policy stages that it will only consider a complaint at stage 2 the complainant needs to provide credible new information or provisions of information that calls the original finding into question.

Background

14. X is currently nine years old. He has a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD), Autism and, amongst a range of other needs, significant difficulties around social and communication issues.

What happened

15. X’s first EHC plan was issued in September 2018. He attended the school named on that EHC plan which was a mainstream primary school.
16. The Council says that in March 2019 Mr A asked for a review of the Plan and said that X need to move to a special needs school. In May X ran away from school heightening concerns about the school’s ability to manage his behaviour and keep him safe.
17. The Council arranged an “interim review” for June 2019 but the Council says this did not take place due to a communication problem in the Council’s SEN team and the lack of availability of member of the Council’s SEN team to attend the meeting. By this time X’s primary school had started to express concerns about the placement and the head teacher told the Council that X had run away from school and was “having meltdowns” describing X as being “in crisis”.
18. A further “interim review” meeting was arranged for July and the Council says this took place. The record of this meeting shows that the school provided information about X’s behaviour and the difficulties school staff were having dealing with this. The outcome of the meeting was that the head teacher was to contact a special needs provider for further support/provision for X in school, the school would provide a report and complete the necessary review paperwork detailing what support had been provided to X and why they could no longer meet X’s needs together with evidence from professionals who knew X. The meeting agreed that the matter would then be put to the SEN panel for additional funding for an increase of 7.5 hours a week support for X in school together with a request for a change of placement.
19. The Council confirms this meeting decided that the Council would increase the amount of support for X from 25 to 32.5 hours a week (an additional 7.5 hours a week) and seek a specialist placement and that until that placement could be found additional support would be sought from an alternative provider. The Council’s records show that the Council was chasing up the paperwork from this meeting in August in order to get agreement to fund the additional 7.5 hours a week support for X and would not agree this until the paperwork was received.
20. The annual review took place in early September 2019. Again, a request for a specialist placement was made due to concerns in X’s current placement. X was described as being “very violent” requiring three members of staff to “restrain” him and that he was constantly at risk of running away. The school reported it could not cope with him any longer. A suggestion was made for a joint placement between X’s mainstream primary school and an alternative provision placement (this suggestion was rejected as not possible four days later). The additional 7.5 hours of support were agreed and put in place from September 2019.
21. In late September the Council’s SEN panel refused to agree to a specialist placement for X due to lack of evidence to support the request. The evidence was supplied to the panel and around a month later, in late October, it agreed to a change of placement to a specialist school. Mr A named a school he would prefer for X, which I will refer to as Q School.
22. At the end of October the Council issued a final EHC plan detailing 25 hours support for X a week (in its comments to me it says this was an error and it should have been 32.5 hours a week). It did not name a school in section I of the plan stating instead that provision would be in a specialist placement which was to be confirmed.
23. In late November the Council formally consulted seven special needs schools including Q School.
24. By mid-December three of the schools agreed to X visiting. One of these three was Q School. The remaining schools were either unable to offer a place or had not replied to the consultation despite the Council chasing these up.
25. By mid-January one of the three schools who offered a visit offered X a place. The Council chased up Q School who queried the funding level but went on to offer a place to X at the end of January. Mr A threatened to complain about the delay in finding a placement in late January.
26. Mr A visited Q School at the beginning of February and accepted the place there for X. X began attending Q school after the February half-term in 2020.
27. The EHC plan was amended to name Q School in draft form in mid-February and final form in early March 2020.

Mr A’s complaint to the Council

28. Mr A complained to the Council about X’s school placement in June 2019.
29. The Council provided a prompt response to this complaint at stage 1 of its corporate complaints procedure. This outlined what action the Council would take to move the situation forwards.
30. In mid-March Mr A submitted a fresh stage 1 complaint about poor and delayed communication regarding X’s special educational needs and placement and said that it was only his asking about making a complaint in January that resolved the delays in finding X a new placement. The Council’s locality SEN manager’s investigation and findings on this in April concluded that:
• he upheld the complaint about unsatisfactory communication by the SEN team stating the Council was in the process of restructuring its SEN team and ensuring there were sufficient staff in post and agreeing to remind staff at the next SEN management meeting that staff should provide regular and accurate information to parents; and
• he acknowledged and apologised that it took too long from the annual review in September 2019 to February 2020 for X to move school. The officer acknowledged that Mr A’s suggestion of making a complaint in late January prompted the Council to take immediate action then to chase up school responses to consultation requests and that led to an offer of a place by Q School at the end of January. Again the officer reassured Mr A that changes and improvements were being made to the SEN service in the context of a requirement to take action following an Ofsted and CQC inspection in 2018. He said that improving customer service and communication with parents formed part of these improvements and this was supported by increased staffing.
31. In its comments to me the Council has listed a number of improvements it has made to the provisions of its SEN services. These include:
• the appointment of an interim Annual Review Team to increase capacity with processing annual reviews;
• regular oversight and case management of annual review and change of placement cases by the three SEN Locality Managers and the Annual Review Team Manager;
• the introduction of new processes for change of placement/consultations;
• weekly SEN panel meetings;
• improving tracking of deadlines;
• a new staff training programme to ensure that the legislation and guidance in the SEN Code of Practice is understood and followed; and
• an increased number of permanent SEN staff with increased management oversight.

Was the Council at fault and did this cause injustice?

32. Mr A asked for a review of the EHP plan in March 2019. This was initially arranged for June but did not go ahead then due to a mix up which meant a representative from the Council was unable to attend. So it was four months after Mr A requested the meeting that it took place. The Council does not have to agree to arrange a review when a parent requests this but in this case there is no suggestion that the Council refused to do so but it did not do so promptly. I am unclear as to the status of the “interim review” but in any event it seems clear that no effective action was taken on the recommendations/outcome of the July meeting until the “Annual Review” took place in September and this appears to be the result of a lack of paperwork and evidence to support a request for extra hours support and a change of placement. On balance therefore, I do not consider the Council took prompt action to arrange an effective review before the requirement to conduct a review by 12 months even though Mr A had requested this. Even after the review in September the correct information was not presented to the panel to enable it to reach a decision on a specialist placement in late September and so the matter was returned to that panel with the relevant evidence in late October. I therefore consider there was fault in relation to the review process. Specifically:
• a review could reasonably have been arranged in April which was one month after Mr A requested this. This did not in fact take place until July. I therefore consider there was an avoidable delay in arranging this meeting of three months between April and July. I cannot definitely say what outcome an earlier review may have reached but it seems reasonable to believe that an earlier decision may have been reached to seek the additional support and a new placement that was the outcome of the July Review. I therefore consider the delay caused injustice in the form of avoidable uncertainty and frustration during this period;
• there was no apparent action taken as a result of the July review meeting until the September review: the additional 7.5 hours was not put in place until September and the change of placement was simply repeated at this further review meeting. The delay amounts to fault in the form of further avoidable frustration and uncertainty but as most of the period in question covered the school summer holidays there are no grounds for me to conclude that there was any significant impact on the education provision to X as schools were closed;
• there is no real evidence that any effective action was taken until the review in September which effectively meant that Mr A’s request for an early review was not properly acted upon despite concerns expressed by him and the School later on; and
• there was further delay following the September review in the correct paperwork being provided to the panel to enable it to reach a decision on a change of placement so the panel did not reach a decision on this until late October. Had the correct paperwork been provided promptly I consider the September Panel could have reached this decision so I consider there was avoidable delay of one month in reaching the decision to seek an alternative placement for X.
33. The Council had agreement to start seeking specialist school places from end of October. It did not start to consult other schools until late November. I see no reason why it could not have done so more promptly following the October decision and I consider this amounts to fault that caused injustice by delaying the possibility of securing an alternative school place more quickly. A place at Mr A’s preferred school was secured by late January. Whilst I recognise that it was Mr A chasing the matter up in January that the Council agrees was the catalyst for securing the placement in late January I do not consider that a period of two months between starting consultations and securing a placement at the preferred school, particularly given that period covered the Christmas break, is unduly delayed and I do not therefore consider that amounts to fault.
34. I am concerned by the Council’s referral to an “interim review” that did not appear to have the status of a formal review in this case. The requirements are simply that a formal review must be completed at least once every 12 months. The evidence suggests that the Council provisionally arranged a proper review to take place 12 months after the EHC plan was issued (or presumably since the last review) but considered reviews between these times to be “interim reviews” which did not appear to have the status of a proper review. In its response to my draft decision the Council confirmed that it no longer uses interim reviews and reviews that are needed more quickly than a 12 month review are arranged as an equivalent formal review which simply takes place earlier than 12 months. This accords with the relevant requirements.
35. The Council has already accepted that its communications with Mr A should have been better. I accept its findings in this respect.
36. There are no grounds for me to conclude that the Council failed to take action to improve its SEN services further to Mr A’s complaint or to take action to put things right. The Council upheld the complaint and provided him with details of the action it was taking to improve its SEN services.

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Agreed action

37. Within one month of the final decision on this complaint the Council will:
• apologise to Mr A for the fault identified above;
• pay Mr A £250 to recognise the avoidable frustration and uncertainty caused by the delay in arranging a review between April and July and in completing the agreed actions following the July review in August;
• pay Mr A a further £150 for the further frustration caused by the delay in providing the correct paperwork to the panel to start seeking a new placement between September and October;
• pay him a further £150 to the lost opportunity to have possibly secured a new school placement for X more quickly had the Council started its consultations with alternative schools more promptly after the decision was reached in October.
38. In its response to the draft decision the Council has already confirmed that it no longer uses interim reviews and that any review needed before the 12 month time limit is simply an earlier formal review.

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Final decision

39. The Council was at fault in its handling of Mr A’s request for an early review of X’s EHC plan, in delaying in taking action following the reviews in July and September 2019 and in further delaying before starting to consult alternative school provision for X after the SEN panel agreed to this. The Council will take the agreed action to remedy the injustice these faults caused.

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Investigator's decision on behalf of the Ombudsman