Summary: Mr B complained about the actions of the Council associated with the annual reviews of Education, Health and Care plans for his disabled children. We found there was fault by the Council in this matter, causing injustice for which the Council has agreed to provide a remedy we recommended.

The complaint

1. The complainant, whom I shall call Mr B, has two children with autism who have Education, Health and Care (EHC) plans. He complained that the Council delayed in issuing finalised EHC plans after a review, and failed to process a request for a change of named school for both children. Following this the Council failed to provide relevant information about the appeals process and failed to reply to emails. As a result of these failings, Mr B considers his children have missed out on places at the requested school which it is likely would have been available for them but for the delay, and have missed out on speech and language therapy provision which would have been available to them in that setting.

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What I have investigated

2. I have investigated the actions of the Council in this matter.

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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)
5. 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)
6. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
7. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
8. 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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How I considered this complaint

9. I considered all the information provided by Mr B about his complaint. I made written enquiries of the Council and took account of the information and evidence it provided in response.
10. I considered the relevant legislation and statutory guidance including the Special Educational Needs and Disability Code of Practice 2015 ('the Code').
11. I have had regard to the Ombudsman's guidance on remedies.
12. Mr B and the Council had an opportunity to comment on my draft decision. I considered all comments received before making this final decision.

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What I found

Legal and administrative information

13. The Children & Families Act 2014 and its associated regulations and guidance and the Special Educational Needs (SEN) Code of Practice govern Council’s responsibilities towards children with SEN.
14. An Education, Health and Care (EHC) plan is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health, and social care.
15. Councils must review EHC plans at least yearly. They should decide whether to amend the plan within four weeks of the annual review. If the Council decides an amendment is necessary, it must issue a final amended plan within eight weeks of the decision.
16. Complaints of delay in the EHC plan process are separate from disagreements about whether the council should issue a plan, or about the content of the plan, which carry rights of appeal to the Special Educational Needs and Disability Tribunal (SEND).

What happened in this case

Annual review in 2019

17. On 2 July 2019 EHC plan annual reviews were held for both Mr B’s children at the school they were attending, School X. The Council has not been able to confirm if it was invited to attend, but no representative attended. The record of the review noted Mr B’s views that speech was still an area of difficulty for the children, and he felt their needs in respect of speech and language therapy (SALT) were not being met. He requested a transfer to School Y and this was noted.

The Council’s actions after the 2019 review

18. The Code sets out that within four weeks of the review meeting the local authority must decide whether it proposes to keep the EHC plan as it is, amend it, or cease to maintain it, and notify the parent of that decision, of the right of appeal, and of timescales for doing so.
19. The Council failed to comply with that statutory requirement and that was fault.
20. The Council says that it did not receive the paperwork from the annual review from the school until 28 November 2019, and then only for one of the children. It says it then wrote to Mr B on the same day, setting out that no changes were proposed to the EHC plan, inviting him to make contact if he disagreed, and confirming the right of appeal to SEND. The Council failed to notice that a change of school had been requested: that was fault.
21. The Council has provided me with a copy of the letter, correctly addressed, although I have not seen evidence that the letter was sent and some of the Council’s communications with Mr B evidence some confusion about his address, even though the family had moved there in 2017 before the children began attending School X. Further information about this set out in paragraph 23 below. Mr B did not receive the letter of 28 November. Had he done so I am satisfied he would have contacted the Council, and ultimately progressed to appeal if necessary, because the letter referred only to one of the children and did not acknowledge his request for a change of school, and these were matters of considerable importance to him.
22. Having chased the school in February 2020 for an update, and having been advised enquiries were being made with the Council to find out what was happening about the request for a change of school, Mr B then contacted the Council on 4 March. In an email he set out his concerns that the school he had asked for at the review in July 2019 would be filling any available places: he had visited and had been told that the Council had not sent it any consultation in respect of the requested school places.
23. The Council replied the same day, saying that although the children attend School X which is a South Essex Special School, the family’s home address is in Chelmsford which falls under the Mid-Essex SEND Operations team. The Council said it seemed the move was recent and that the children’s cases may not yet have been transferred over to the relevant team. However, as noted above the family had lived at the address since 2017, so it was not a recent change; Mr B says the family do not live in Chelmsford and never have; and in any case whether the responsible team was the mid-Essex or South-Essex team, both teams are part of the same Council’s SEND operations.
24. The Council sent the consultation papers to School Y on 12 March 2020. The response timescale for consultation response is 15 days. Mr B chased the Council about this on 16 April, when it advised him that at a meeting with the school on 7 April it had been orally advised it was unable to offer a place as it was oversubscribed. The Council said School X was the closest suitable school. Mr B asked for details of the appeal process. But in response the Council said it would write following the annual reviews and this letter would give him the right of appeal. Mr B considered that he ought not to have to wait until after the 2020 annual review to appeal a decision made in April, and he continued to ask the Council for information about the appeal process, as well as about the process and stages involved in moving SEN schools, and for details of the Ombudsman if the issue could not be resolved. The Council’s SEND Operations Partner replied on 5 May saying it was seeking clarification and would respond as soon as possible: that was an inadequate response. The Council should at least have been able to provide him with information about the SEND appeals process and the Ombudsman at this point. By 1 June Mr B had received no further response and so chased this again. The Council’s reply did not answer Mr B’s questions. On 8 June that the Council spoke to Mr B on the telephone and advised him he would have an appeal right after the next annual review, and he could look in the Code for information about the appeal process. The Councils communications with Mr B were often poor, both in terms of response times and content, and that was fault.

Annual review in 2020

25. The 2020 annual reviews for the children were held on 23 June. Mr B again made clear that he wanted a change of school, to School Y. Following this the Council received the annual review paperwork form the school on 20 July, and on 31 July it wrote to Mr B saying the request for a change of placement to School Y had been noted and a further consultation had been sent to that school, although it understood the school did not currently have capacity to admit any further students and to do so would be incompatible with the efficient education of the pupils currently attending there. The Council said its view was view was that School X could meet the needs of both children and no changes to the EHC plan were proposed at this time.
26. Mr B corresponded further with the Council about this, in particular about the SALT provision for the children, and the Council asked the NHS Trust for some information about this.

Appeal to SEND and the outcome

27. On 10 September, the Council was advised Mr B had lodged an appeal with SEND. The appeals were listed for February and Mr B has now confirmed both children have secured places at School Y.

Analysis

28. The Code says that the local authority should provide a list of children and young people who will require a review of their EHC plan that term to all headteachers and principals of schools, colleges and other institutions attended by children or young people with EHC plans, at least two weeks before the start of each term. On that basis the Council should know when annual reviews are due.
29. The Council says that the Code only says it ‘should’ do this, not that it ‘must’. It says that this information was provided in previous academic years, but was ceased due to concerns about the reliability of the information held on the relevant database. It says there was a plan to put other measures in place, but it had not been possible to implement this, and staff in its SEND Operations Services are looking to address the issues on a county-wide basis.
30. The Council is correct insofar as the Code says this action should, rather than must, be taken. The expectation though is that statutory guidance will be followed unless there are clear and documented reasons for not doing so. The Council has said why it does not take this action currently, but it has not put in place a system to replace it. And, most significantly, the Code also says that within four weeks of the annual review meeting the Council ‘must’ decide what action it is going to take in respect of the EHC plan, and notify the parent accordingly. Without a system in place to inform when reviews are due, the Council cannot be certain of meeting compliance with this requirement of the Code. What happened in this case evidences the possible impact of such failings.

Injustice to Mr B

31. As a result of the identified failings in this case, Mr B’s right of appeal was delayed from 2019 to 2020. As noted above, the appeal has now been dealt with and Mr B’s children have places at the desired school. It is not possible to say with certainty whether the outcome of the appeal would have been the same had it been made a year ago, or the extent of any disadvantage to the children caused by the delay. The failings do however give rise to a justified sense of uncertainty about this.
32. In addition, Mr B has been put to considerable time and trouble seeking to have these matters progressed and resolved.

Agreed action

33. In recognition of the injustice identified above, I recommended that within four weeks of the date of the decision on this complaint, the Council:

• Issues Mr B with a formal written apology;
• Pays him £500 in respect of each of the two children; and
• Pays him £250 in recognition of time and trouble.

34. I also recommended that within three months of the date of the decision on this complaint, the Council reviews lessons learned from this complaint and draws up a plan, with timescales, which should include action to be taken to address the failings identified by this investigation in respect of EHC plan review timetables, to avoid recurrence.
35. The Council should provide evidence of the above actions to the Ombudsman.
36. The Council has agreed to my recommendations.

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Final decision

37. I have completed my investigation on the basis set out above.

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Parts of the complaint that I did not investigate

38. For the reason set out in paragraph 7, I did not investigate the actions of the school in connection with this matter.

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Investigator's decision on behalf of the Ombudsman