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Hampshire County Council (21 004 080)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 05 May 2022

The Ombudsman's final decision:

Summary: Miss X complains about the management of her son’s Education, Health and Care Plan in a transition year. We find fault with the Council for consultation delays, failing to meet a statutory deadline and poor communication. The Council will apologise, make additional payments to Miss X and her son for distress, time and trouble and implement service improvements set out in this statement.

The complaint

  1. Miss X complained the Council:
  • Delayed consulting preferred schools following her son’s (B’s) annual review.
  • Failed to complete B’s Education, Health and Care Plan (EHC Plan) and name a school by the statutory deadline.
  • Communication with Miss X was poor throughout the process.
  • Failed to provide alternative educational provision.
  1. Miss X says B did not start secondary school in time and missed specialist education. She says she also experienced psychological distress from the uncertainty and trying to resolve the situation with the Council.

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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 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 a copy of the final decision statement of this complaint with Ofsted.
  3. 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)
  4. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
  5. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.

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How I considered this complaint

  1. I spoke to Miss X, made enquiries of the Council and read the information Miss X and the Council provided about the complaint
  2. Miss X and the Council had an opportunity to comment on my draft decision. I carefully considered all the comments I received before making a final decision.

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What I found

Relevant law and guidance

  1. Children with special educational needs may have an EHC Plan. Councils are the lead agency for carrying out assessments for EHC plans and have the statutory duty to ensure special educational provision in an EHC Plan is made available. (Children and Families Act 2014, Section 42)
  2. 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.
  3. The Special Educational Needs Code of Practice (the Code) is statutory guidance which councils should have regard to. I have summarised relevant paragraphs below:
      1. There must be a review of an EHC Plan at least every year. The review considers the appropriateness of the EHC Plan and whether any changes are needed, including any changes to the education placement (paragraph 9.166)
      2. Within four weeks of the review meeting, the local authority must decide whether to keep, cease or amend the EHC Plan and must notify the parent and the school. If amendments are needed, the local authority must start the amendment process without delay (paragraph 9.176)
      3. Where the local authority proposes to amend an EHC Plan it must send the current EHC Plan and a notice setting out proposed amendments and give the parent at least 15 calendar days to comment. It must issue an amended plan as quickly as possible and within 8 weeks of the original amendment notice. (paragraphs 9.184- 9.186)
      4. The local authority must review and amend the EHC Plan in sufficient time before a child moves between key phases of education to allow for planning and commissioning of support and provision at the new institution. (paragraph 9.179)
  4. 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. (paragraph 9.179)

What happened

  1. B has special educational needs (SEN). In May 2020 he was found to have complex needs due to difficulties with emotional regulation, tolerance of social situations and learning. B was placed on an EHC Plan.
  2. In September, B moved into Year 6 – a transition year at his primary school (School P). Miss X felt B needed time to prepare for future changes. She therefore wanted a suitable secondary school settled quickly.
Annual review
  1. B’s EHC Plan annual review took place with Miss X at the end of September, and she selected School N as her preferred choice. She had researched School N and mentioned the family moved to her address because it was close to this school. The plan was to consult with School N and confirm B’s place.
Post-annual review period
  1. School P did not send a copy of B’s annual review record to the Council until the last week in October. This was because it had initially tried to send the record via an online portal without realising paper copies were still being used. On further enquiries, the Council informed School P about the correct method and the record was sent. The Council began consulting schools on 18 November and contacted School N on 20 November. This was nearly two months after Miss X confirmed her preferred school.
  2. At the end of November, School N informed the Council it did not have spaces. It said B might not be suitable without a further assessment visit as it could not offer him an appropriate peer group. The Council did not inform Miss X of the outcome.
  3. The Council consulted one other school around this time in November and sought an update in January 2021 without response.
Communications with the Council
  1. Miss X became worried about progress and emailed the Council in the middle of November. B’s caseworker sent a short email response to advise B’s EHC Plan would be maintained and amended by the phase transfer date (15 February 2021).
  2. Miss X felt there was further lack of progress until she emailed a newly allocated caseworker in the middle of February. The caseworker said B’s case was a priority. However, Miss X did not receive an update about School N or what the Council was doing to meet the phase transfer deadline.
  3. In late February, Miss X decided to call School N herself. It informed her that the Council knew they did not have a space back in November. Miss X found the news distressing.
  4. In March, Miss X sent a further email to the Council seeking an update and expressing frustration. She suggested an alternative school (School O) and asked the Council to send B’s file to the school for consideration. She asked for an acknowledgement but did not receive a response.
  5. In March, Miss X also sent emails to the Council’s Children’s Services Directors outlining the problems. She mentioned further delay would risk the place at School O. She also contacted her MP who emailed the Council’s Chief Executive.

Miss X’s complaints

  1. Miss X continued to send further complaint emails to the Council in March about the delays, the Council’s lack of response and seeking an update about the consultation with School O.
  2. The Council did not make the School O referral to the Placement Commissioning Team (PCT) till the end of March. The PCT did not make the onward school referral till the middle of April because of the Easter holiday. In the middle of April, School O told the Council it did not have any spaces. The Council again failed to update Miss X.
  3. In April, Miss X sent another email complaining that it had been a month without an update from the Children’s services. She reminded the Council to send the paperwork to School O and to contact School N to ask if any places had become available since the last consultation.

The Council’s responses

  1. The Council’s complaint response in the middle of May:
  • Apologised to Miss X for not responding to her and for poor communication.
  • Rejected Miss X’s suggestion of four-month delays in contacting schools N and O. It said the School N consultation was within two months and School O progressed within 20 days of Miss X’s suggestion. It clarified the outcome of the consultation with School N had no connection to timing.
  • Accepted delays had occurred, and it had missed the statutory deadline (15 February) for the final amended EHC Plan and apologised for this failure.
  • Assured Miss X that School N had put B on the waiting list and an immediate update was due. Further school consultations were promised and B’s EHC Plan would be finalised by 14 May with the ‘type’ of provision. This would allow Miss X to appeal to the SEND tribunal if necessary.
  • Assigned Miss X a dedicated Council officer for contact and queries.
  1. Miss X responded the same day saying she did not accept the Council’s version of events as School N had told her it had spaces. She felt the Council’s consultation delay meant B missed out on a place. She said the same issue had arisen with School O.
  2. In May, Miss X sent a further email stating there had been no progress since the Council’s previous communication. She said the Council had again misled and ignored her and its approach was offensive. She mentioned the caseworker promised to call her within 48 hours of a previous enquiry in January. But never did, instead sending her two emails with no progress. She escalated her complaint.
  3. On 17 June the Council responded. It:
  • Apologised for consistent poor communication. The case worker and her manager were both on sick leave at same time. During this period others had assumed their duties, but confusion arose about who was responding to Miss X.
  • Explained the failure to call Miss X back in January was because the caseworker went on sick leave after the conversation. The team did not know about the call arrangement.
  • Explained new staff were being trained to address the case backlog. The Council expected an improvement in response time and case progression.
  • Did not uphold Miss X’s complaint that it had delayed in applying for either School N or O. School N was approached again to re-consider but was now full until 2022.
  • Accepted there has been significant delay in securing school and the statutory deadline (15 February 2021) had not been met for the final amended EHC Plan.
  • Advised the SEN services team were consulting with all specialist schools within reasonable distance. The SEN locality team had contacted the PCT to request these referrals and the SEN Services team would be completing the referrals for maintained provision directly.
  • If a school was not found in time for September 2021, the Council would arrange an interim package of support including home tutoring.
  • Council had an IT issue so was unable to the issue final EHC Plan naming the type of school. Once the issue was corrected, this would be actioned as a priority.
  • Accepted the Council had failed duty to keep Miss X informed and carry out action it promised to do, it apologised and offered Miss X a £300 payment for her time and trouble.
  1. Miss X accepted the time and trouble payment but explained the complaint was to secure B a school place which had not happened.
  2. In the middle of July, Miss X emailed the Council again saying she was worried about how she would manage work, if she had to remain at home with B in September. The Council responded Miss X had now used its complaints process and signposted her to the Ombudsman. Miss X had already complained to us before she received the Council’s response.
  3. The Council issued B’s final EHC Plan at the end of July.
  4. The Council has provided evidence which show it consulted Schools N, O and another between November 2020 and April 2021 and 9 other schools between May and November 2021. B was accepted and started at one of these latter schools at the end of November 2021. Miss X told me that she believed the Council delayed consulting School O because it could not locate B’s file which was with a staff member on sick leave.
  5. The Council confirmed B remained on his primary school roll during school consultations. He therefore continued to attend the primary school and the Council increased support funding from 30 to 44.5 hours in the Autumn term whilst consultations continued. The Council ensured the funding was sufficient to provide support akin to him being in a full time equivalent secondary school. This continued until B’s transfer at the end of November.
  6. Miss X told me B found it all very difficult being without his peers. She said he was spending time with children in lower years and kept asking her about when he would be going to secondary school like his previous classmates. Miss X said she found these conversations distressing and B had become visibly upset many times.

Analysis – Was there fault by the Council causing injustice?

  1. i) The Council delayed consulting preferred schools following B’s annual review

School N

B’s annual review was at the end of September, but the Council did not receive a copy of the review record until the end of October. This was because there was some confusion by School P about where and how to send the record which delayed the process. This first delay was not the Council’s fault, as it was down to School P.

  1. However, the Council took a further month before starting consultations with School N in the last week of November. This amounts to fault although it is not possible to conclude on a balance of probability if the timing alone impacted the availability of places. This is because School N queried whether it was suitable for B and said it would need to have an assessment visit before it could consider him for a place.
  2. However, the Council did not inform Miss X of the outcome of consultation with School N. This was fault which resulted in her sending emails seeking updates, causing avoidable distress and time and trouble.

School O

  1. Miss X told the Council about School O in in the second week of March. The Council explained it did not make the PCT referral until the end of March and the PCT did not make the onward referral until the middle of April. School O then said it no longer had spaces.
  2. The Council has not provided a valid reason for taking three weeks to deal with Miss X’s request. Miss X told me the file was with a sick staff member and could not be located. She said School O told her it still had capacity and the Council should have acted sooner. There is no further evidence to support Miss X’s statement, but I have no reason to doubt her account of what School O said to her about there being places. In this period Miss X was proactive and reaching out to schools to help B herself. The Council’s delay on this occasion was fault which may have impacted B’s chances of securing a place. This caused Miss X continued distress and frustration as she was undertaking a lot of enquires to find B a school place.

Other schools

  1. The Council provided evidence which show it only consulted Schools N, O and another between November 2020 and April 2021 which was not satisfactory. After Miss X complained the Council improved its approach and made continuous efforts to find B a suitable secondary school placement. This included a follow up with School N as well consulting 9 other schools. B was accepted and started at one of these latter schools at the end of 2021.

ii) The Council failed to finalise B’s EHC plan by the statutory deadline date.

  1. The Council had a duty to finalise B’s EHCP by 15 February 2021 as set out in paragraph 13 above. But this did not happen until late July 2021- almost 6 months late and still only provided the school type without actually naming the school.
  2. The Council’s failure to complete the process within the statutory timescale was clear fault. The statutory deadline ensures children have adequate preparation time to adjust to the changes and plan provisions, it gives parents a right of appeal to the SEND Tribunal and gives clarity about the SEN provision the Council will arrange.
  3. Paragraph 9.179 of the Code also required the Council to review and amend the EHC Plan in sufficient time before a child moves between key phases of education to allow for planning and commissioning of support and provision at the new institution. B remained at his primary school until a short while before transfer to a specialist school at the end of November. He therefore missed out on a smooth transition and suffered avoidable distress because he did not move up to secondary school at the same time as his friends. Miss X reported B found the time difficult.
  4. B was therefore denied the opportunity to settle into his new school at the same time as others who started in September 2021. The initial few weeks of the first term at a new school are vital for the child to become familiar with new surroundings, new teachers, in establishing a routine and possible new friendships. By starting at the end of November, B missed out on this. The delay also caused Miss X the continued stress of not knowing if a place would be secured in time for her son.

Post annual review- other faults

  1. Paragraph 9.176 of the Code required the Council to send a formal notification within four weeks of the annual review meeting. This did not happen and was fault. I do not consider the email exchange in November to be a formal notification. Paragraphs 9.184 to 9.186 also required the Council to complete the process of amending and issuing the EHC Plan, including giving Miss X time to comment, within eight weeks of an amendment notice. This process did not happen within time and was also fault which caused Miss X avoidable uncertainty and distress.

iii) Communication with Miss X was poor throughout the process

  1. Paragraphs 22-32 of this statement set out many occasions when Miss X was left without an important update or there was a delay in responding to her emails. The Council’s response times, and communication fell below our expected standards of service. This was fault which caused Miss X unnecessary stress, time and trouble in repeatedly contacting the Council. The Council already accepted this in its complaint response, apologised and paid Miss X £300 for this aspect as well as her time and trouble. This is a partial remedy, but does not fully reflect the uncertainty, distress and time and trouble.

iv) The Council failed to provide adequate alternative educational provision

  1. The Council confirmed B remained on his primary school roll during school consultations. He continued to attend the primary school with additional funding to meet his needs. This was not an ideal situation for B, but I accept the Council took necessary steps to ensure he continued to be in an educational setting with a specialist package of support. This continued without interruption until a place came up at the end of November 2021. The Council also clarified that this allowed Miss X to continue to work. I do not find fault with the Council in relation to this.

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Agreed actions

  1. Within four weeks from the date of our final decision the Council has agreed to:

Write to Miss X and apologise for all the faults identified in the previous section.

• Pay Miss X a further £150, to reflect the distress and frustration, caused by its delay in completing the review process and poor communication.

    • Pay B £500 for avoidable distress. This payment reflects the loss of a smooth transition and opportunity to establish himself at his new secondary school in the first term.

• Undertake a review of its system for managing staff caseloads during absences and provide us with a summary of the processes adopted.

  1. Within two 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 maintain effective communication with service users during the transfer review process.

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Final decision

  1. I find fault by the Council which caused injustice. The above recommendations are a suitable way to remedy the injustice.
  2. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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