The Ombudsman's final decision:
Summary: Mrs Y complained the Council failed to complete the review of her son’s Education, Health and Care Plan within the statutory timescale, failed to arrange special educational provision and delayed a personal budget payment. We have found fault by the Council in failing to meet the statutory timescale for the review, and delay with the personal budget payment. The Council has agreed to remedy these faults by apologising, making a payment to reflect Mrs Y’s time and trouble and a service improvement.
- The complainant, who I am calling Mrs Y, complains about the way the Council dealt with her son, who I am calling Z’s, Education, Health and Care Plan (EHC Plan) and provision for his special educational needs.
- Mrs Y says the Council failed to:
- complete the phase transfer review of Z’s EHC Plan within the statutory timescale.
- arrange special educational provision in Z’s plan.
- make a personal budget payment in time for the appointment of a teaching assistant required from April 2021
The Ombudsman’s role and powers
- 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)
- 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)
- 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.
How I considered this complaint
- I spoke to Mrs Y, made enquiries of the Council and read the information Mrs Y and the Council provided about the complaint
- I invited Mrs Y and the Council to comment on a draft version of this decision. I considered their responses before making a final decision.
What I found
What should have happened
Education, Health and Care Plan (EHC Plan)
- A child with special educational needs may have an EHC Plan. This sets out the child’s needs and arrangements for meeting them.
- Councils have a duty to arrange the special educational provision set out in an EHC Plan. (Children and Families Act 2014 section 42)
Moving to a new phase of education with an EHC Plan
- Regulation 2 of the SEN and Disability Regulations 2014 (the Regulations) defines what is meant by “new phase of education”. This includes a transfer from primary to secondary school.
- The Regulations require a Council to review a child’s EHC Plan before a phase transfer takes place and set out the timescales for the review.
- Where a child is transferring from primary to secondary school, Regulation 18 requires their EHC Plan to be reviewed and amended before 15 February in the calendar year before they move setting.
- The Special Educational Needs and Disability code of practice issued in 2015 (the Code) provides (at 9.179) an EHC Plan must be reviewed and amended in sufficient time prior to a child moving between phases of education, to allow for planning and, where necessary, commissioning of support and provision at the new institution.
- The Code also provides (at 9.195) the parent must be given at least 15 calendar days to make representations on any proposed changes to the EHC Plan.
Personal budget payments
- A personal budget is an amount of money identified by the Council to deliver the provision in an EHC Plan, where the parent is involved in securing that provision.
- A Council may make a direct payment to a parent to allow them to contract, purchase and manage the services themselves.
- I have set out a summary of the key events below. It is not meant to show everything that happened.
- Z has special educational needs (SEN). He has a diagnosis of Autistic Spectrum Disorder (ASD) as well as other conditions. He has an EHC Plan.
- Z has been unable to attend school since 2019. His EHC Plan named the primary school at which he remained on the roll, although his SEN provision was provided as Education Otherwise Than At School (EOTAS). Z’s plan specified he would be taught by a named teacher employed by his named school.
- Z’s Plan also specified, as part of his EOTAS programme, he would attend a Forest School two hours a week, and spend at least two hours, one afternoon a week, on activities relating to his interest in engineering and mechanics. Arrangements had been made for Z to attend a workshop for engineering activities one afternoon a week.
December 2020 – Z’s issues with the workshop
- On 7 December Mrs Y told the Council’s SEN service manager, by email, Z was refusing to go to the workshop that day and hadn’t attended the previous week. She wasn’t sure why he didn’t want to go but thought he might be unhappy about the workshop fumes. Mrs Y asked if they could swap the workshop for engineering kits Z could work on until other options were available once current Covid-19 restrictions had ended.
- The officer replied the same day. She suggested they talk and asked whether they could get some information about why Z was refusing to go to the workshop. A call was arranged for 16 December so that Mrs Y, the officer, and the school could discuss the position.
- The officer also referred to the phase transfer review scheduled for 1 February 2021. Z was in year six and due to transfer to secondary school in September 2021.
January 2021 – discussions about an alternative activity and the review
- The SEN officer contacted Mrs Y about the review arranged for 1 February 2021. She said this didn’t leave much time before the deadline of 15 February for completing the review and EHC Plan. The officer asked for Mrs Y’s views about the next step in Z’s education.
- In her reply, Mrs Y said they would like Z to stay on the roll at his current primary school, with the school continuing to take the lead with Z’s EOTAS programme for a while longer. This would allow time to see what difference the new health support in place for Z would make.
- The officer confirmed Z’s school had agreed to continue the existing provision in the short term. There would need to be another review later in the year.
- With regard to the workshop, Mrs Y said this was still closed due to the current restrictions. And as they weren’t sure how Z would react to the fumes when it re-opened, she asked if Z could have more time at the Forest School instead of the engineering activities in the meantime. The officer asked Mrs Y to check the Forest School’s availability for extra sessions.
- Z started additional sessions with the Forest School, on 29 January, in place of the workshop activity.
February to April 2021 - the phase transfer review
- The phase transfer review took place on 1 February. The review notes say the workshop would stop providing the engineering activity part of Z’s provision for the moment, and the Forest School provision would increase instead. Mrs Y wanted to keep the workshop as an option if Z was able to cope with the fumes.
- The Council sent Mrs Y the draft revised EHC Plan on 10 February. This proposed continuing Z’s current EOTAS programme, with an increase to the Forest School provision in place of the workshop for the time being, Z would not transfer to secondary school as yet, and there would an annual review in the summer term. The Council referred to the need to finalise the Plan by the deadline of 15 February. It said any amendments discussed and agreed could be made after this date.
- Mrs Y told the Council they would consider the draft and reply within the 15 days allowed for parents to make representations about an EHC Plan.
- Mrs Y provided her comments about the Plan on 24 February. She and the Council then continued to discuss the proposed changes until the end of March. It was agreed Z’s current school would continue as his named school until September 2021.
- The final EHC Plan was issued on 12 April.
Personal budget for a teaching assistant
- Z’s EHC Plan included provision for 15 hours a week of support by a teaching assistant. This support was being provided by a teaching assistant employed by the school. In April 2021 the teaching assistant left the school. The Council agreed a personal budget for Mrs Y to employ their own teaching assistant for the period from 25 April to 30 July 2021.
Mrs Y’s complaint
- In April 2021, Mrs Y complained to the Council about a number of issues relating to Z’s EHC Plan and SEN provision, including a failure to comply with the statutory timescale for the phase transfer review and to provide engineering activities.
- In May 2021 Mrs Y complained about issues relating to their personal budget payments, including the failure to pay for the teaching assistant.
- In its final responses the Council:
- accepted the statutory timescale for the review had not been met. It said it was not clear whether Mrs Y had agreed to an extension of the timescale. It accepted it should have clarified the position.
- said, about the provision of engineering activities, the period concerned – from December 2020 to January 2021 – covered the Christmas period. It had acted within a reasonable timeframe to find alternative provision for this activity.
- accepted there had been a delay with the further personal budget payment for the teaching assistant from April. It apologised for this.
- Mrs Y complained to us in June 2021.
- I understand from Mrs Y’s email to the Council of 25 August 2021, they received a personal budget payment from the Council for teaching assistant hours of 6 hours a week instead of 15 hours a week. This left a shortfall of £1,677 which they had to cover. This balance was paid to Mrs Y on 1 September.
Analysis – was there fault by the Council causing injustice?
The phase transfer review
- The Council did not comply with the statutory requirement to carry out the phase transfer review and complete Z’s amended EHC Plan by 15 February.
- I consider the failure to do so was not because Mrs Y exercised her right to comment within the 15 days allowed for parents to make representations on a plan. It was because the phase review had not been scheduled early enough to allow the process to be completed by the 15 February.
- I understand the Council was concerned to ensure the most up-to-date information was available for the review. But I consider it was still required to ensure there was sufficient time to follow the proper process for completing the review and Plan, including allowing parents time to make representations and any amendments, within the statutory timescale.
- I consider the Council’s failure to complete the process within the statutory timescale was fault by the Council. Z’s final revised EHC Plan was not issued until 12 April, nearly two months late. The delay caused Mrs Y frustration, time and trouble.
- The provision for the engineering activity specified in Z’s EHC Plan was in place in December 2020. Mrs Y told the Council about Z’s issues with the workshop on 7 December. The Council responded immediately to Mrs Y’s concern.
- The reason for Z not wanting to attend the workshop was not clear. I do not consider it was unreasonable for the Council to suggest discussing this with Mrs Y and the school before agreeing to any changes to this part of the provision. And in January 2021 the Council agreed to Mrs Y’s request to increase Z’s Forest School provision in place of the engineering activity for the time being.
- Based on the evidence I have seen, I do not consider there was fault by the Council in the way it responded to Mrs Y’s requests to change this part of Z’s specified provision.
Personal budget payment
- I understand Mrs Y employed a teaching assistant to support Z for 15 hours a week from 25 April to July 2021. The Council agreed to include this cost in their personal budget payment.
- The Council has accepted there was a delay in making the payment to Mrs Y to cover the full cost of the teaching assistant. I consider this was fault by the Council. I note it has apologised for this delay and the outstanding balance was paid on 1 September. But I consider the delay caused Mrs Y avoidable frustration, time and trouble chasing the outstanding payment.
- To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:
- Apologise to Mrs Y for failing to comply with the statutory timescale for the phase transfer review process.
- Pay Mrs Y £250 to reflect the upset, time and trouble caused by its delay in completing the review process and making the outstanding personal budget payment. This figure is a symbolic amount based on the Ombudsman’s published guidance.
- And within three months from the date of our final decision, the Council has agreed to:
- share the learning from this decision with its SEN officers and remind them of the need to allow sufficient time to complete the proper process for a phase transfer review within the statutory timescale; and
- provide us with evidence it has done this.
- I have found fault by the Council causing injustice. I have completed my investigation on the basis the Council will carry out the above actions as a suitable way to remedy the injustice.
Investigator's decision on behalf of the Ombudsman