Summary: There was fault by the Council in complaint handling for which it has already apologised. We do not uphold a complaint about the Council changing the EHC plan in a way not intended by the Tribunal’s order.

The complaint

1. Mrs X complained Surrey County Council (the Council) changed her daughter Y’s Education, Health and Care (EHC) Plan in a way that did not reflect a Tribunal’s decision. She also complained the Council did not respond to her complaint.
2. Mrs X said the Council’s actions caused a loss of provision for Y and avoidable time and trouble for her as well as the cost of private reports.

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The Ombudsman’s role and powers

3. The law says councils should have a reasonable opportunity to investigate and respond to a complaint before we investigate (Local Government Act 1974, section 26(5))
4. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
5. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
6. Some complaints about Education, Health and Care Plans (EHC plans) may be within our remit depending on the complaint. We cannot resolve disputes about SEN provision or placements. But we can investigate a complaint about an EHC plan if:
• The action relates to an administrative function of the council
• The action is taken by or on behalf of the council.

• Mrs X’s complaint is about the Council’s administrative functions following a Tribunal and about complaint handling. So we can investigate it.

7. 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.
8. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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)

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How I considered this complaint

9. I considered Mrs X’s complaint to us, correspondence between Mrs X and the Council and documents described later in this statement.
10. I discussed the complaint with Mrs X. I took into accounts comments from both parties on a first draft of this statement
11. 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

12. Children with special educational needs may have an Education, Health and Care (EHC) plan. Councils are the lead agency for carrying out assessments for EHC plans and have the statutory duty to secure special educational provision in an EHC plan. (Children and Families Act 2014, Section 42)
• The Special Educational Needs Code of Practice 2015 (the Code) is statutory guidance which councils should have regard to. I have summarised relevant paragraphs below:
• A council must seek advice from the child’s parent, their school, healthcare professionals involved, an educational psychologist, and from anyone else the parent has reasonably requested (paragraph 9.49)
• SEN provision must be detailed and specific and should normally be quantified, for example, in terms of the type, hours, frequency of support and level of expertise (paragraph 9.69)
• 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)
• 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).

What happened

13. Y is currently in Year 7 and has SEN. The Council issued Y’s final EHC plan in July 2020. The plan set out 17 hours of support a week from a teaching assistant for individual, paired and small-group intervention. Mrs X appealed the contents of the plan to the SEND tribunal.
14. There was an annual review in the autumn term of 2020 and from this, the Council issued a draft amended EHC plan in November 2020. The draft plan said ‘32.5 hours of support from a teaching assistant for individual, paired and small group intervention.’ The draft plan did not give any date from which the teaching assistant (TA) provision was to start.
15. Mrs X and the Council attended mediation in November 2020. The parties used the working document process to try and agree the EHC plan before the Tribunal hearing. (The working document is a version of the EHC plan that has the parties’ amendments marked out on it, highlighting any areas of disagreement and agreement.) The working document that the Tribunal saw said the parties agreed that Y’s SEN provision would be ‘1 to 1 teaching assistant for 32.5 hours a week’. Although no dates were specified for the start of the placement or the provision, Section I said the placement would be a secondary special academy.
16. The Tribunal heard the case at the end of March 2021, noting the Council had already agreed the parents’ preferred placement. At the start of April, the Tribunal ordered the following amendments to Y’s EHC plan in favour of Mrs X:
• The parents’ suggested wording: ‘a laptop with appropriate software will be provided to complete homework at home’
• Removal of the Council’s occupational therapy (OT) provision and substitution of the independent OT’s provision.
• A recommendation that Section D stated “no social care needs have yet been identified through formal assessment”
• Section H should read “a full social care needs assessment needs to be undertaken without further delay along with a carer’s assessment’
17. The Tribunal’s order did not say anything about when the SEN provision would start. Mrs X told me she did not raise the issue of TA provision because she assumed the Council intended for it to start immediately. She told me had she been aware the intention was for the additional provision to start with Y’s transfer to secondary school, she would have raised this during the working document process and with the Tribunal.
18. Following the Tribunal’s order, the Council issued an amended EHC plan at the end of April. Mrs X complained to the Council. She said the Council had removed provision that had already been agreed before the Tribunal hearing, inserted incorrect wording in Section A and added that provision would not start until September 2021. The Council said it would not respond to Mrs X’s concerns as a complaint and instead it intended to treat Mrs X's email as 'a request for a service.’
19. Mrs X had to chase officers several times by sending emails in May and June. Officers promised her a response, but this was not forthcoming. (She did receive one response in May saying the Tribunal did not provide a clean copy of the working document with the order).
20. At the end of June, Mrs X complained to us. We noted the Council already had a reasonable opportunity to respond to the complaint and had declined to respond formally through its internal complaints’ procedure, despite Mrs X trying to complain on at least three occasions. So we accepted the complaint for investigation.
21. At the start of July, a service manager from the Council’s tribunal team wrote to Mrs X. The letter was not described as a complaint response. The letter said:
• He was sorry for poor communication, for the delay and for not updating her
• The tribunal officer added ‘from September 2021’ to Section F because the dedicated TA support of 32.5 hours was agreed for secondary school only as it was mainly for assistance with moving around the school building. The original EHC plan had 17 hours of TA support in primary school and this continued. It was never intended that the revised provision would start in primary school.
• The Council agreed the changes to reflect the Tribunal’s order and would send her a fresh plan with the changes.
22. Mrs X told me that the Council had made most of the changes to Y’s EHC plan but that the final version she had received contained information in Section A that appeared to have been copied and pasted from a much older draft version of the plan. She wanted Section A to contain the most up-to-date version of key information about Y. The Council sent an amended version of the EHC plan on 1 July.
23. The Council told me the SEN provision on the working document was to start once Y moved to secondary school and as the placement named on the working document was a secondary school, it was clear that the provision would not start until Y started secondary school.

Was there fault and if so, did this cause injustice requiring a remedy?

24. The Tribunal did not determine the issue of whether the SEN provision in the working document should start immediately or when Y moved to secondary school because Mrs X did not raise it. Mrs X assumed provision would start in Year 6 whereas the Council intended it to start after the transfer to secondary school in year 7. Having considered the working document, which names Y’s secondary placement, the Council was clear that the provision it was agreeing would start only when Y started secondary school. So I do not uphold this aspect of Mrs X’s complaint.
25. The Council’s complaint handling was poor and this was fault. It should have dealt with Mrs X’s complaint about changes to the EHC plan post-tribunal through its formal complaints’ procedure. The Council should only have treated it as a service request if it was in a position to deal with the request immediately. The Council accepted in its correspondence at the start of July that there had been poor communication and delay in responding and apologised for this. My view is this is an appropriate action and nothing further is required
26. Mrs X suggested the Council’s fault caused her a financial loss because she had to incur costs of commissioning independent specialist advice for the Tribunal. This was an action she was entitled to take, but as the Council had already arranged and provided its own advice in line with paragraph 9.49 of the Code, I am not critical of the Council. While Mrs X was entitled to get independent advice, I do not see there are grounds for me to recommend the Council reimburses her the cost as I see no fault by the Council.

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Final decision

27. There was fault by the Council in complaint handling for which it has already apologised. I do not uphold Mrs X’s complaint about the Council changing the EHC plan in a way not intended by the Tribunal’s order. I completed my investigation.

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Parts of the complaint that I did not investigate

28. Mrs X raised a further matter in August 2021 about Y’s secondary school not being able to provide some of the SEN provision specified on Y’s EHC plan. I do not consider the Council has been given a reasonable opportunity to respond. The dispute arose after Mrs X’s complaint to us and Mrs X told me she is seeking to resolve it with the school. If the school is not able to deliver all of Y’s SEN provision, Mrs X needs to make a formal complaint to the Council. Once the Council has responded, Mrs X can come back to us if she is unhappy and we will consider an investigation.

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Investigator's decision on behalf of the Ombudsman