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Gloucestershire County Council (21 000 535)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 03 Dec 2021

The Ombudsman's final decision:

Summary: Mr X and Ms Y complained about failings in the EHC Plan Annual Review process and delay in determining their application for school transport. They also complained the Council failed to investigate their complaint in an independent or objective manner. The Council’s failure to issue a decision within four weeks of the annual review, and its amendment of the plan without first obtaining evidence to support the proposed changes amounts to fault. As does the delay in processing Mr X and Ms Y’s application for school transport. This fault has caused Mr X and Ms Y an injustice.

The complaint

  1. The complainants whom I shall refer to as Mr X and Ms Y complained the Council:
    • Failed to complete their son’s EHC Plan Annual Review within the required timeframe, causing delay to their right of appeal;
    • Failed to properly review the health and social care aspect of their son’s EHC Plan and wrongly struck out all health and social care provision from the plan without evidence;
    • Failure to respond to an information request in a timely manner;
    • Delayed in considering and issuing a decision on their application for school transport; and
    • Failed to investigate their complaint in an independent or objective manner.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
  4. 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

  1. As part of the investigation, I have:
    • considered the complaint and the documents provided by Mr X and Ms Y;
    • made enquiries of the Council and considered the comments and documents the Council provided;
    • Mr X and Ms Y and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Special Educational Needs

  1. 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. Councils are responsible for making sure that arrangements specified in the EHC plan are put in place.

Annual reviews

  1. The annual review of an EHC plan considers whether the provision is still appropriate and whether the child is making progress towards the targets in the plan. The SEND Code of practice says: “The first review must be held within 12 months of the date when the EHC plan was issued, and then within 12 months of any previous review, and the local authority’s decision following the review meeting must be notified to the child’s parent or the young person within four weeks of the review meeting”.
  2. If the plan needs to be amended, the council should start the process without delay. It must send the child's parent a copy of the existing (non-amended) plan and an accompanying notice with details of the proposed amendments. This should include copies of any evidence to support the proposed changes. The parent must be given at least 15 calendar days to comment on the proposed changes.
  3. If the council decides to continue to make amendments, it must issue the amended EHC plan as quickly as possible and within eight weeks of the amendment notice.
  4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.

What happened here

  1. Mr X and Ms Y’s son Z has had an EHC plan since 2016. Mr X and Ms Y’s complaints stem from the annual review process in 2020. At the annual review meeting on 14 October 2020 and Mr X and Ms Y requested several amendments to the plan. They contacted the Council on 17 November 2020 as they had not received the Council’s decision on whether to amend, cease or leave the plan as it was.
  2. Mr X and Ms Y noted the Council should have notified them of its decision by 11 November 2020 and asked the Council to notify them of the decision as soon as possible. They also asked the Council to send them any proposals for amendment.
  3. As they did not receive a response, the following week Mr X and Ms Y made a formal complaint. They complained the Council was in breach of the Special Educational Needs and Disability Regulations 2014, and that the Council’s delay was frustrating their right of appeal to the SEND tribunal. Mr X and Ms Y again asked the Council to send notification of its decision and any proposals for amendment within five working days.
  4. The SEN officer, Officer 1, contacted Mr X and Ms Y on 27 November 2020 and apologised that they had had to chase the outcome of the review. Officer 1 noted the main request from the review was for an additional night’s boarding at Z’s school. They confirmed the Head of Service would make a decision on this request by 4 December 2020. Officer 1 asked Mr X and Ms Y to provide suggested amendments to Y’s plan, and they would then issue an amendment notice highlighting the changes to be made.
  5. Mr X and Ms Y were unhappy with this approach and asked the Council to follow the correct process by notifying them of the decision and issuing an amendment notice with the proposed amendments. They would then provide their written comments during the 15 day consultation period. Following which they expected the Council to issue a final EHC plan within the statutory timescale.
  6. Mr X and Ms Y also asked the Council to escalate their complaint to stage two of the Council’s complaint procedure. They considered the Council’s failure to meet the statutory timeframe was a systemic problem as they had made the same complaint following Z’s previous annual review.
  7. The Council advised that Officer 1’s email of 27 November 2020 was not intended as a formal response to their complaint and apologised for any confusion. It confirmed Officer 1 would respond to Mr X and Ms Y’s complaint formally by 4 December 2020. Mr X and Ms Y disputed this and asked for their complaint to be passed to stage two.
  8. The Council maintained its position, and Officer 1 responded to Mr X and Ms Y on 4 December 2020, upholding their complaint. Officer 1 acknowledged Mr X and Ms Y should have received notification of the Council’s decision by 11 November 2020 and apologised that the Council did not send this. They also acknowledged this frustrated their ability to exercise their statutory right of appeal.
  9. Officer 1 also sent Mr X and Ms Y an amendment notice on 4 December 2020. Officer 1 noted that the amendment notice may need revising before the plan was finalised. These revisions would include updated views from Mr X, Ms Y and Z, and updated information from social care as to the support being offered. Officer 1 explained they had struck out the social care provision as it was relevant to last year and may no longer be accurate. Officer 1 was waiting to confirm what social care had been agreed and would then include details in the plan.
  10. On 7 December 2020 Mr X and Ms Y made a second complaint about a further breach of the Special Educational Needs and Disability Regulations 2014. When amending the EHC plan, the Regulations required the Council to provide a copy of the plan together with a notice specifying the amendments and copies of any evidence used to support the amendments. Mr X and Ms Y complained the Council had struck out the social care provision and health provision without any evidence, while waiting for confirmation of agreed support from social care. They made a subject access request (SAR) for copies of the evidence relied on in amending the health and social care provision in Z’s EHC plan.
  11. Mr X and Ms Y also made representations on the amended plan.
  12. As they were not satisfied with Officer 1’s response to their first complaint, Mr X and Ms Y asked the Council to progress their complaint to stage two. They reiterated their concerns that the Council’s breach of duty was a systemic problem and that the Council had failed to implement changes or learn lessons from their previous complaint.
  13. Mr X and Ms Y asked the Council to;
    • report the ongoing systemic breach of the law affecting SEN children to the Children and Families Overview and Scrutiny Committee;
    • Advise them what tangible changes it will make to its practices to ensure the repeated failure does not reoccur;
    • Ensure there was not a knock on effect to the remaining timescales of Z’s EHC plan review process;
    • Commit to follow the law for Z’s annual review in terms of process and timescales for 2020 and in future years;
    • Stop frustrating their right of appeal; and
    • Pay compensation for their time and trouble.
  14. The Council responded to Mr X and Ms Y’s second complaint on 8 January 2021. It noted that Officer 1 had attempted to secure information about the social care provision prior to the annual review on 14 October but this was unsuccessful. The Council considered more could and should have been done to promptly secure the information so that it could have been considered at the review.
  15. The Council acknowledged some aspects of the specified provision was removed without evidence to support this. It confirmed this should not have happened and apologised.
  16. Again, Mr X and Ms Y were not satisfied by the Council’s response and asked for this second complaint to progress to stage two of the complaints process. They were concerned the Council had failed to take an integrated view of education, health and social care, and the need to involve health and social care professionals. Mr X and Ms Y also noted the Council had not provided the evidence from social care and was in breach of the General Data Protection Regulations timeframes for responding to their SAR.
  17. The Council issued an amended final EHC plan on 27 January 2021. This included the majority of Mr X and Ms Y’s requested changes and reinstated the information that had been struck out.
  18. The Council confirmed Officer 2, a senior manager would respond to both of Mr X and Ms Y’s complaints at stage two. Mr X and Ms Y questioned Officer 2’s independence as they had been involved in Z’s EHC plan. The Council was satisfied Officer 2’s independence was not compromised. And that they would take an objective view and not seek to defend or deflect failures in service.
  19. Officer 2 responded to the first complaint on 12 February 2021 and considered the outcomes Mr X and Ms Y had requested. Officer 2 did not consider it necessary to report the details of Y’s case to the Children and Families Overview and Scrutiny Committee. They explained it already reported failings in various performance reports which was sufficient, and the committee did not review individual cases. Breaches in the law were addressed through the complaints process and reflected in the annual report which the Council published.
  20. In relation to the changes the Council would make, Officer 2 stated the Council was recruiting three additional members to the SEN casework team to respond to the continued growth in requests for EHC plans. This would enable the service to have increased capacity to implement a change programme. The Council was also reviewing the findings of an internal evaluation. Officer 2 also confirmed the Council was committed to meeting its statutory duties.
  21. Officer 2 responded to the second complaint about the EHC plan review process on 22 March 2021. Officer 2 noted the stage 1 investigation of this complaint concluded that only parts of the provision should have been amended and the removal of other aspects was in breach of the Regulations. They also noted the Council had apologised for this error. All social care provision that had been struck out had been reinstated in the final amended plan and left unchanged pending a social care review.
  22. In addition, Officer 2 confirmed they could not identify any health care provision that that been struck out of the Health needs or Health provision sections of Z’s EHC plan. They noted some aspects of the provision were delivered by health professionals but appeared in the Social Care section of Z’s EHC plan. This provision had been reinstated in the final amended plan.
  23. Mr X and Ms Y are not satisfied by the Council’s responses and remain concerned about Officer 2’s role in investigating their complaints. They feel the outcomes of their complaints have been compromised by Officer 2’s involvement. They are also concerned the Council has not set out any tangible changes it will make to ensure it learns from its mistakes or to prevent the same breaches of duty happening again.
  24. In addition to complaints about the EHC Plan review process, Mr X and Ms Y also complain about the way the Council handled their application for school transport. In December 2020 Mr X and Ms Y made an application for transport to Y’s new school from September 2021. As they did not receive a response, Mr X and Ms Y chased the Council in January 2021 and asked the Council to provide a copy of its SEN transport policy. Mr X and Ms Y then made a complaint in February 2021 as they had still not heard from the Council.
  25. On 12 February 2021 the Council confirmed Z was eligible for transport assistance. The Council also responded to Mr X and Ms Y’s complaint on this issue on the same day. It apologised that their original application was not acknowledged and for any inconvenience this caused. The Council was unable to locate their chasing email in January 2021 and apologised that this had also gone unanswered.
  26. In response to my enquiries the Council has again acknowledged that following the annual review, it did not send a decision regarding Z’s EHC plan within the required timeframe. It states this delay was due to the capacity in the casework team at that time. The Council states it has since recruited three additional team members to assist in dealing with the increased caseload.
  27. The Council states the delay did not prevent Mr X and Ms Y from appealing against the contents of the review. It also notes that Mr X and Ms Y did not appeal to SEND Tribunal regarding the content of the amendment notice or the final plan.
  28. In relation to the Health and Social Care provision on Z’s plan the Council states that any Health provision is specified in section G of an EHC plan and requires the agreement of the Clinical Commissioning Group. It states there has never been a health provision specified in section G of Z’s plan. The Council accepts that it removed Social Care provision from Z’s plan without obtaining evidence. This provision was subsequently reinstated. The Council states that the support given to Z was at no stage reduced. The plan provides for extensive support including a residential placement at an independent school, along with a social care payment to support his needs.
  29. The Council also acknowledges there was a delay in processing Mr X and Ms Y’s application for school transport, but it does not consider they have been disadvantaged in any way.
  30. The Council does not accept it failed to investigate Mr X and Ms Y’s complaint in an independent or objective manner, or that it breached its complaints policy. It notes that Officer 2’s involvement in Z’s EHC plan was minimal and a proportionate line manager response. The Council states its corporate complaints policy does not state that a manager who has provided operational support should not investigate.
  31. In terms of service improvements, the Council states it has secured short term resources to address the delays in service. In the longer term the Council is working to develop a digital process to secure improved methods of contribution from parents, young people, and professionals in the development of the plan. It intends to make it a simpler, transparent, and more efficient process to develop, complete and share plans. The Council has secured the financial investment to develop digital process but does not have a clear timeframe to go live.
  32. In response to the draft decision Mr X and Ms Y have reiterated their concerns that the Council has not followed the correct legal process and has breached the Special Educational Needs and Disability Regulations 2014. They assert this has had a significant impact on their family in having to remind, chase and correct the Council. And that the Council has not learnt from mistakes in a previous annual review.
  33. Mr X and Ms Y also maintain Officer 2 should not have been involved in the complaint process given her involvement in the initial decision making.

Analysis

  1. Legislation and Government guidance set out a clear procedure and timeframe for carrying out an annual review of an EHC plan. The Council acknowledges it did not issue a decision within four weeks of the annual review, and that it struck out provision in section H of Z’s plan without first obtaining supporting evidence. These failures to comply with the legislation amount to fault.
  2. The Council was also at fault for the delay in processing Mr X and Ms Y’s application for school transport.
  3. However, I do not consider the Council was at fault in the way it responded to Mr X and Ms Y’s complaints. I recognise there was some confusion regarding the status of Officer 1’s email of 27 November 2020, but the Council clarified its position and issued a formal response on 4 December 2020. Mr X and Ms Y are concerned about Officer 2’s impartiality given her involvement in Z’s EHC plan. The documentation shows Officer 2 had only limited involvement in approving a weekly boarding placement at Z’s new school and in asking Officer 1 to clarify Z’s ongoing social care support.
  4. Officer 1 advised Mr X and Ms Y of Officer 2’s involvement in an email of 19 August 2020 and confirmed they had asked for a social care update and suggested an officer from social care to attend the next annual review. There is no evidence Officer 2 was involved in the delay in sending out a decision following the review or suggested the provision in section H of Z’s plan should be struck out. In the circumstances I do not consider there was an impediment to Officer 2 carrying out the stage two investigations.
  5. Mr X and Ms Y believe the Council obstructed them in obtaining evidence to support their complaints by failing to respond to their SAR within the prescribed timeframes. Their concerns about the delay in responding to their SAR are a matter for the Information Commissioner's Office rather than the Ombudsman.
  6. Having identified fault, I must consider whether this fault has caused Mr X and Ms Y a significant injustice. Mr X and Ms Y have been put to time and trouble; and have experienced frustration and disappointment with the Council’s failings. This is exacerbated by their experience of similar problems with the annual review process the previous year, leading to a loss of confidence in the Council.
  7. I recognise that Mr X and Ms Y were concerned that their rights of appeal were frustrated by the delay, but also note that they did not ultimately exercise these rights.
  8. Mr X and Ms Y are keen to avoid similar problems with future annual reviews. The Council has taken action to address the issue of delays caused by a large workload by recruiting additional staff. It is also in process of developing a digital process to improve the efficiency of the development, completion and sharing of plans. It is currently unclear when this will be in place, but once implemented this should improve the service.

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Agreed action

  1. The Council has agreed to apologise to Mr X and Ms Y and pay then £200 in recognition of the time and trouble; and frustration and disappointment the failings in the annual review process have caused them.
  2. The Council should take this action within one month of the final decision on this complaint.
  3. To improve services for other children and young people, the Council has agreed to provide reminders/training to ensure that staff understand the Council’s duty:
    • to comply with the timescales set out in the Code for carrying out reviews, issuing decisions after annual reviews, and amending plans; and
    • where it proposes to amend a plan, to send the parent or young person a copy of the existing plan and a notice providing details of the proposed changes, with copies of any evidence to support the proposed changes.
  4. The Council should provide evidence to the Ombudsman of its compliance with these service improvements within two months of the final decision on this complaint.

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Final decision

The Council’s failure to issue a decision within four weeks of the annual review, and its amendment of the plan without first obtaining evidence to support the proposed changes amounts to fault. As does the delay in processing Mr X and Ms Y’s application for school transport. This fault has caused Mr X and Ms Y an injustice.

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Investigator's decision on behalf of the Ombudsman

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