Lincolnshire County Council (21 001 744)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 07 Dec 2021

The Ombudsman's final decision:

Summary: Mr and Mrs X complained the Council delayed finalising amendments to Ms Y’s Education, Health and Care plan and failed to tell them its intention to cease the plan. They say this meant it did not progress her transfer to a new school and Ms Y was out of education for a year. They also say the Council has not provided the provision in Ms Y’s plan. The Council was at fault for failing to cease Ms Y’s plan when it meant to and for delays in sending the amended plan. This caused Mr and Mrs X and Ms Y avoidable frustration and uncertainty. The Council has agreed to apologise, make symbolic payments, and send the Ombudsman an action plan detailing how it will reduce its annual review backlog.

The complaint

  1. Mr and Mrs X complained on behalf of their adult daughter, Ms Y. Mr and Mrs X said the Council:
      1. delayed amending Ms Y’s 2019 Education, Health and Care (EHC) plan after an annual review meeting in October 2019;
      2. failed to tell them its intention to cease Ms Y’s EHC plan until July 2020 and so did not progress her transfer to a new school;
      3. did not deliver the provision set out in Ms Y’s EHC plan while they appealed to the tribunal about her plan; and
      4. had not agreed to arrange day provision at Ms Y’s new school while her intended residential placement was not possible.
  2. Mr and Mrs X say the failures hindered Ms Y’s educational progress and meant they had to reduce their working hours to support her, causing financial loss.

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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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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How I considered this complaint

  1. I have considered:
    • all the information Mr and Mrs X provided and discussed the complaint with them;
    • the Council’s complaint responses and the supporting documents it provided; and
    • the relevant law and guidance.
  2. Mr and Mrs X 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

Relevant law and guidance

  1. The responsibilities of councils towards children and young people with special educational needs (SEN) are set out in the Children and Families Act 2014 and associated Regulations and statutory guidance, the SEND Code of Practice 2015 (The Code).
  2. If an assessment finds the child has a need for special educational provision, the council must prepare an Education, Health and Care (EHC) plan.
  3. Councils must review an EHC plan within 12 months from the date the plan was made (meaning the date the plan was finalised). They must then review the plan every 12 months after this as a minimum. If the council wants to amend or cease the plan, it must tell the parent within four weeks of the review. An annual review is not complete until the council has sent its decision notice on whether it intends to continue with the plan, amend it, or cease the plan. If it has notified the family of its intention to amend the plan, it must make any amendments to the plan “without delay” and send them, along with an amendment notice to the parent. It must then issue the final EHC plan within eight weeks.
  4. The SEND Tribunal is a tribunal that considers special educational needs and disability discrimination. (The Special Educational Needs and Disability Chamber of the First Tier Tribunal (‘SEND’))
  5. Parents and young people have a right of appeal to the SEND Tribunal if they disagree with the special educational provision, the school named in their child's plan, or the decision to cease the plan. Parents can only appeal once the Council issues the final EHC plan or has sent a decision notice that it intends to cease the plan.
  6. Caselaw has established that where someone has appealed to the SEND Tribunal, the Ombudsman cannot consider the consequences of the issue appealed. We also cannot consider the effects of any issue ‘inextricably linked’ to the issue appealed. This applies from the date the appeal right arose to the date of the appeal is completed. This means there are periods where someone may have experienced injustice which are not remedied by the Tribunal and cannot be remedied by the Ombudsman.

What happened

  1. Ms Y has an EHC plan and attended school at a specialist post-16 college (School A). In September 2019, the Council carried out an annual review. None of the educational outcomes suggested extended beyond the end of the 2019/2020 school year. The review noted the School would support Ms Y to explore ‘post-college’ options by July 2020. The Council sent Mr and Mrs X its decision to continue Ms Y’s plan with some amendments in October 2019. Ms Y continued at School A for the 2019/2020 school year.
  2. Mr and Mrs X repeatedly contacted the Council about their plans for Ms Y to transfer away from School A to a new school for the 2020/2021 school year. Their preferred choice at the time was School B, another specialist placement.
  3. In May 2020, the Council confirmed it was preparing the amendment notice and would consult with the school of their choice.
  4. In May/June 2020, the Council sent Mr and Mrs X its amendment notice and draft EHC plan. None of the education outcomes extended beyond the end of the 2019/2020 school year. The plan named School A. The Council told me the delay in issuing the draft EHC plan after the October annual review was due to a backlog of annual reviews.
  5. Mr and Mrs X responded with suggested amendments to the plan, including that Ms Y would begin at School B from September 2020.
  6. In late July 2020, the Council issued a new final EHC plan. It continued to name School A. However, Ms Y’s placement at School A had been intended to last for two years, from 2018-2020. There was therefore no educational provision in place for Ms Y at School A from September 2020. The same day, the Council verbally told Mr and Mrs X of its intention to cease Ms Y’s EHC plan.
  7. Mr and Mrs X were unhappy and complained to the Council in early August. They said Ms Y was due to transfer to School B by September 2020 and they were unhappy it had not progressed the transfer. As there was no provision in place for Ms Y at School A in September 2020, she was now out of education.
  8. A day after Mr and Mrs X complained, the Council sent them notification of its decision to cease Ms Y’s EHC plan.
  9. The Council responded to Mr and Mrs X’s complaint in mid-August 2020. It said:
    • in October 2019 it should not have told them it was going to continue Ms Y’s EHC plan with amendments. It should have said it would cease the plan;
    • Mr and Mrs X could appeal its decision to cease Ms Y’s plan; and
    • it would remind its staff to monitor and be aware of plans that were likely to cease at annual review.
  10. Mr and Mrs X remained unhappy and asked the Council to consider their complaint further. The Council responded in October to say:
    • it was now too late to cease the plan so it would maintain Ms Y’s plan until July 2021. This would give it time to prepare for Ms Y’s transition out of education;
    • it noted Mr and Mrs X had appealed to the SEND Tribunal;
    • it had completed staff training on timescales for people leaving education and had spoken to Ms Y’s caseworker specifically.
  11. In November 2020, the Council issued an amended final EHC plan based on its decision to maintain Ms Y’s plan until July 2021. The plan named School A again, but at different campus. The educational provision was different to that in the July 2020 plan and was geared towards preparing Ms Y for leaving education in July 2021.
  12. By April 2021, Mr and Mrs X and the Council had come to an agreement. The Council agreed to issue a final EHC plan for Ms Y that named a residential school (School C), which was now the family’s preference rather than School B. She would start attending in September 2021. Her new plan contained different educational provision to that in the July 2020 and November 2020 plans. Mr and Mrs X and the Council asked the Tribunal to make a consent order that finalised their agreement. The Tribunal considered the plan and agreed to do this.
  13. Mr and Mrs X remained unhappy about some aspects and complained to the Ombudsman. They said:
    • the Council delayed sending Ms Y’s amended final EHC plan in 2019;
    • Ms Y had missed out on a year of education from September 2020 which could have been residential, and therefore more beneficial to her;
    • the Council did not supply the provision in Ms Y’s July 2020 EHC plan while the appeal process was ongoing. Mr and Mrs X said that meant they had to teach Ms Y themselves which meant they had to reduce their working hours, causing financial loss; and
    • the Council was not offering suitable provision at the time of their complaint. Ms Y was not able to attend School C as a resident due to the COVID-19 pandemic. Mr and Mrs X said they wanted the Council to agree that Ms Y could attend School C during the day but it had not engaged with their suggestion.
  14. Mr and Mrs X have since told me the Council has agreed to their proposal to offer Ms Y day provision until she can stay at School C full time.

Findings

2019 annual review

  1. In October 2019, the Council sent Mr and Mrs X it’s decision to amend and maintain Ms Y’s EHC plan. The Council has accepted it actually planned to cease Ms Y’s plan so should have sent confirmation of that intention, and they would have had a right of appeal against that decision. This error was fault. The Council has taken suitable action to prevent the fault occurring again by carrying out staff training.
  2. The Council may have said it meant to cease the plan, but the information it gave to Mr and Mrs X at the time was it intended to amend the plan. The Council did not send Mr and Mrs X its amendment notice and the draft plan until May/June summer 2020. The Code says amendments should be made “without delay”. This significant drift was fault and meant the Council delayed issuing the final EHC plan and giving Mr and Mrs X their appeal rights before the start of the September 2020 academic year.
  3. The educational outcomes recorded in Ms Y’s annual review ended in July 2020 and clearly indicated the Council's intention that she would leave education at that point. However, throughout the 2019/2020 school year, the Council's contact with Mr and Mrs X suggested it would continue maintaining Ms Y’s EHC plan and support a move to a new educational placement. This caused Mr and Mrs X avoidable frustration and Ms Y uncertainty when they became aware the Council actually planned to cease the plan after July 2020.
  4. Mr and Mrs X feel the Council fault contributed to the fact that Ms Y did not transfer to a new school in September 2020 and was out of education for a year. I consider, on the balance of probabilities, that had the Council acted without fault, it would have issued the decision to cease notice and final EHC plan by November 2019. Mr and Mrs X could then have appealed this decision in time to try to arrange a placement for Ms Y in September 2020. However, the Tribunal makes judgements based on information available at the time. I cannot say what decision it would have made so cannot say it would have agreed continuing the EHC plan and placement at School C was in Ms Y’s best interests. In any case, it appears that the family’s desire for a place at School C was after the start of the September 2020 term.

Loss of provision

  1. Mr and Mrs X say the Council did not supply the provision set out in Ms Y’s July 2020 EHC plan while the appeal was ongoing. This plan named School A. Caselaw has made it clear that we cannot consider the consequences of matters that were considered at Tribunal. This applies from the date the appeal right arose to the end of the appeal. Mr and Mrs X’s appeal addressed the educational provision in Ms Y’s plan as well as where she should study. I therefore cannot investigate whether the Council offered the provision in Ms Y’s July 2020 EHC plan as it is a consequence of the matters considered at appeal.
  2. Mr and Mrs X also complained the Council did not engage with their efforts to allow Ms Y to attend School C in some way while a residential placement is not possible, due to COVID-19 restrictions. They have since confirmed the Council has agreed Ms Y can attend School C during the day until she can begin the residential placement. As the situation has been resolved, I will not make a finding on the matter.

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Agreed actions

  1. Within one month of the date of my final decision, the Council will:
    • apologise to Mr and Mrs X for the frustration caused by the faults identified in this decision. The letter should include an apology to Ms Y for the uncertainty the faults caused her;
    • pay Mr and Mrs X £200 as a symbolic gesture to recognise the impact the fault had on them; and
    • pay Ms Y £200 to recognise the uncertainty the fault caused her.
  2. Within three months of the date of my final decision, the Council will send the Ombudsman an action plan detailing steps it will take to reduce its backlog of annual reviews.

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Final decision

I have completed my investigation. I have found fault causing injustice and made recommendations.

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Investigator's decision on behalf of the Ombudsman

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