The Ombudsman's final decision:
Summary: The complainants alleged that the Council delayed in completing annual reviews of their daughter’s Education, Health and Care Plan, and failed to deal properly with their request for a reassessment. We find fault by the Council. The Council has agreed the recommended ways to remedy the resulting injustice. We have therefore completed our investigation and are closing the complaint.
- The complainants, who I refer to as Mr and Mrs X, complained that the Council failed to deal properly with their concerns about their daughter’s (Child B’s) Education, Health and Care (EHC) Plan. In particular, the complainants say that the Council:
- failed to complete two annual reviews (July 2020 and February 2021) and act on the review recommendations;
- delayed in carrying out a reassessment after the July 2020 and February 2021 annual reviews;
- having agreed to a reassessment in February 2021, the Council delayed in carrying out this reassessment and it has only recently issued a final amended EHC Plan;
- failed to respond to their concerns about Child B’s College’s (College Y’s) inability to meet Child B’s needs even though the Council was aware of their concerns;
- failed to respond to their concerns that College Y was acting discriminately to Child B;
- failed to look into their concerns about College Y, even though it said that it would; and
- delayed in agreeing transport to Child B’s new college placement (College Z) and did not agree to this until the October 2021 half term.
What I have investigated
- I have looked at events since July 2020 to February 2022. Matters, which I cannot investigate, are set out in the last paragraph of this statement.
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)
- We cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
- SEND is a Tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
- When investigating complaints, if there is a conflict of evidence, the Ombudsman may make findings based on the balance of probabilities. This means that during an investigation, we will weigh up the available evidence and base our findings on what we think was more likely to have happened.
- 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 made enquiries of the Council and I have spoken to Mr and Mrs X on the telephone.
- I issued a draft decision statement and have taken into account their further comments when reaching my final decision.
What I found
- A child with special educational needs may have an Education, Health and Care Plan (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. Section F sets out the specified special educational provision required.
- Where a council maintains an EHC Plan for a child or young person it must secure the specified special educational provision for the child or young person. (Section 42 (1 & 2) of the Children and Families Act 2014)
- Councils oversee delivery of EHC Plans through annual reviews, whether by attending meetings themselves, or by reviewing the school’s records of meetings. The Special Educational Needs and Disability Code of Practice January 2015 (the Code) says reviews must be undertaken in partnership with the child and their parent.
- EHC Plans must be reviewed, as a minimum, every 12 months. The review must consider whether the stated outcomes and supporting targets in the Plan remain appropriate. 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.
- Parents and young people can request councils provide a personal budget for special educational provision in an EHC plan and request direct payments. The request must be made when the draft EHC plan is being prepared, reviewed or re-assessed. (The Special Educational Needs (Personal Budget) Regulations 2014 Section 4(1))
- A personal budget is an amount of money identified by the Council to deliver provision set out in the EHC Plan. Councils are under a duty to prepare a budget when requested.
- The Code (9.186) says that there may be occasions when a reassessment becomes necessary, particularly when the child or young person’s needs have changed. The Code says (9.187) that councils must agree a reassessment if the parent, or the school or the local clinical commissioning group (CCG) request this unless there was a reassessment six months ago.
- The council can also refuse a reassessment if it considers it is unnecessary. Councils must tell parents/carers its decision within fifteen days of the request. Councils must tell parents/carers of the right of appeal to the SEND Tribunal.
- If the decision is to reassess, councils must issue a final amended EHC Plan within fourteen weeks of that decision.
Facts of this complaint
- Mr and Mrs X moved into the Council’s area in February 2019. Child B is the eldest of three children. The previous council transferred responsibility for her EHC Plan to the Council. At this stage, Child B’s EHC Plan noted that she had difficulties in her attention span, academic development, and organisational skills.
- In September 2019, Child B started on a vocational introduction course at her local post 16 College, College Y.
- There was an annual review in July 2020. On 4 August, the Council sent to Mr and Mrs X an amended draft EHC Plan. The complainants asked for certain amendments.
- On 20 August 2020, Mr and Mrs X asked for new assessments from the Educational Psychologist (EP), the Occupational Therapist (OT) and Speech and Language Therapist (SALT). The complainants say that the last assessments were some four/five years old and Child B’s needs had changed during her adolescence.
- On 11 November 2020, the Council emailed Mr and Mrs X explaining that it had spoken to College Y, and it had indicated that Child B was doing well and that new assessments were not required. It does not seem that the Council told Mr and Mrs X of their right of appeal against the Council’s decision.
- Mr and Mrs X were dissatisfied. They say that the Special Educational Needs (SEN) case officer suggested they requested an early review so that they could ask for the reassessments again. At this stage, Mr and Mrs X were also asking for a change of placement.
- In January 2021, the Council issued a further draft amended EHC Plan incorporating some of Mr and Mrs X’s requested amendments.
- In February 2021, there was an annual review. Mr and Mrs X explained that there had been little progress in Child B’s development, and they again asked for a reassessment. The Council did not agree to this, but I cannot see that they were told of this in writing or of their right to appeal.to the SEND Tribunal.
- In March 2021, Mr and Mrs X made a complaint about the Council’s refusal to reassess and about the failures in the annual review system. In May 2021, the Council upheld the complaint, saying that neither the July 2020 and the February 2021 annual reviews had been formally completed.
- The Council also agreed the reassessments.
- In June 2021, the Council wrote to Mr and Mrs X about their concerns regarding the service and level of provision provided to Child B by College Y. The Council said that it was aware College Y was investigating their concerns and it would be prudent for the Council to investigate in conjunction with College Y and to report back its findings.
- Mr and Mrs X say that the SEN case worker was asked to carry out this investigation. But they consider that she did not do so.
- The reassessments of Child B concluded that Child B has a diagnosis of Developmental Language Disorder (DLD), combined with hearing loss, sensory difficulties and high levels of anxiety. It appears that the reassessment implied that Child B’s needs were more severe that had been specified.
- In September 2021, Mr and Mrs X decided to move Child B from College Y to a different College, College Z. They applied for free school transport from the Council. The Council explained that, as their application was late, there would be a delay in considering this. This is because the Council was deciding ‘on time’ applications first.
- In October 2021, Mr and Mrs X arranged for Child B to attend College Z. They say that College Z is more responsive to Child B’s needs, and she has been making progress in a way that she was not when at College Y. The complainants say that College Z provides learning support assistants and Child B is undertaking a level one course in independent living.
- The Council agreed free school transport, but this did not start until after the October 2021 half term.
- On 4 October, the Council wrote to Mr and Mrs X about their concerns regarding College Y. The Council said that the SEN case officer was concentrating on resolving their concerns by looking at an alternative placement and progressing the reassessment.
- The Council told Mr and Mrs X that they would have to pursue College Y’s complaint process and they could appeal to the SEND Tribunal if they considered College Y had discriminated against Child B.
- On 26 October 2021, the Council issued a draft amended EHC Plan, taking into account the information obtained from the reassessments. The final amended EHC Plan was issued in February 2022.
- Mr and Mrs X will now be appealing to the SEND Tribunal about the content of the final EHC Plan.
The Council’s SEN improvements
- The Council has had an improvement plan since 2019. It recognises that delays are detrimental to children and young people with SEN and frustrating to parents/carers. It says that there has been an unprecedented increase in requests for assessments and the issue of EHC Plans.
- The Council recognises that its annual review system needs improvement. But it seems, based on this complaint, that the Council is still struggling to complete annual reviews in a timely manner.
- Moreover, a very recent Court case [EWHC 493] has stated that councils should issue an amended final EHC Plan within twelve weeks of the annual review meeting. This now clarifies the timescales which councils should adhere to when dealing with annual reviews.
- The Council will need to consider this judgement for future annual reviews. But the judgement, as I understand it, is not retrospective.
Complaint (1); failures in the annual reviews of July 2020 and February 2021
- The Council issued a draft amended EHC Plan on 4 August 2020. The final EHC Plan should have been issued within eight weeks of this date, 4 October 2020. But, instead, the Council issued a further amended draft EHC Plan, which was then never finalised.
- The annual review of February 2021 was also not completed properly. It was not until February 2022 that a final EHC Plan was issued.
- I recognise that the Council accepts fault on this complaint. I also recognise that the Council wants to work with parents/carers and incorporate their requested amendments, if considered appropriate. But this should not be at the cost of meeting the statutory timescales.
- The delays in completing the final EHC Plans after the annual reviews are excessive and my view is that this amounts to fault, as accepted by the Council.
Complaints (2) and (3): delay in agreeing and undertaking the reassessment
- The Council had fifteen days to agree, or not, to a reassessment request. If a council refuses this, parents/carers have a right of appeal to the SEND Tribunal.
- The Council has failed to tell Mr and Mrs X of this right of appeal, both in August 2020 and February/March 2021. That is a significant omission.
- Once the Council agreed to reassess in May 2021, it then exceeded the statutory timescale of fourteen weeks to issue a final EHC Plan.
- My view is that these actions amount to fault.
Complaints (4) (5) and (6): failure to deal with Mr and Mrs X’s concerns about College Y
- The Council said that it would carry out an investigation alongside College Y’s own investigation, and report back. It seems that the Council did ask College Y for its views, and the Council appeared to be satisfied that College Y had provided appropriately for Child B.
- In October 2021, the Council wrote to the complainants, explaining this and how they could pursue a discrimination claim against College Y. While I accept that the Council’s investigation appeared to rely solely upon College Y’s account of Child B’s progress, it seems that the Council wanted to try to resolve the issue by pursuing Mr and Mrs X’s preferred alternative placement, College Z.
- I accept that, from Mr and Mrs X’s perspective, the Council’s investigation into College Y seems rather half hearted. However, to their credit, Mr and Mrs X used their initiative to look for a placement which they thought would meet Child B’s needs better and they resolved the problem themselves.
- But I do not consider I can conclude the Council has been at fault. Spending time on resolving the concerns about the placement took priority and, moving Child B to College Z, has been beneficial to her.
- Mr and Mrs X also consider that College Y has discriminated against Child B. I cannot investigate this aspect of the complaint because the complainants could have appealed to the SEND Tribunal, and I am satisfied the Council told the complainants of this option.
Complaint (7): delay in providing free school transport to College Z
- The Council gave priority to the applications received on time. The Council had the discretion to do this and therefore I do not find fault.
- However, but for the earlier delays, already identified, I consider it is likely Child B could have started at College Z at the beginning of September 2021 and the complainants would have made a transport application on time.
What injustice has been caused?
- The Council’s faults have caused avoidable time and trouble, frustration and distress to Mr and Mrs X. They also asked for a reassessment of Child B’s needs in August 2020, and again in February 2021, but the Council failed to tell them of their right of appeal to the SEND Tribunal against the Council’s refusal.
- On the balance of probability, I consider that, if Mr and Mrs X had been aware of this right of appeal, they would have used it. As they said, they were concerned about Child B’s lack of progress, they had good reason to believe that her needs had changed and that it was important her EHC Plan reflected her specific needs and provision as she approached adulthood.
- These failures mean that Mr and Mrs X have had lost opportunities to obtain fresh assessments sooner. On the balance of probability, it is likely the Council would have agreed the reassessments back in August 2020, if the complainants had appealed. I base this on the fact that, when the complainants complained, the Council did agree the reassessments.
- In terms of the complaint about inadequate educational provision to Child B, when at College Y, I cannot reach a finding about this because College Y’s actions are outside the Ombudsman’s jurisdiction. The Council considered the concerns but decided to focus on arranging an alternative placement as Mr and Mrs X had requested. And, I have not found fault here.
- But it is the case that the above failures and delays have, on the balance of probability, meant that Child B could have moved to College Z sooner.
- So, overall, but for the faults, it is likely the present situation with Child B at a more suitable placement with updated assessments could have happened sooner.
How the Ombudsman remedies injustice?
- The Ombudsman’s guidance on remedies makes the following points:
- for injustice such as distress, harm or risk, the complainant cannot usually be put back in the position they would have been, but for the fault. Therefore, we usually recommend a symbolic payment to acknowledge the impact of the fault;
- there must be a clear and direct link between the fault identified and the injustice to be remedied;
- distress can include uncertainty about how the outcome might have been different;
- where the avoidable distress was severe or prolonged, up to £1,000 may be justified but we may recommend more in exceptional cases;
- where there has been a loss of education, the Ombudsman recommends between £200 to £600 per school month.
- Within one month of the date of the final statement, the Council will:
- apologise to Mr and Mrs X for their avoidable distress, time and trouble and frustration and make a symbolic payment of £1,000;
- make a symbolic payment of £500 for the missed opportunities to appeal to the SEND Tribunal against the refusal to reassess;
- make a symbolic payment of £1,500 to recognize that Child B could have had the updated assessments and a more suitable placement sooner. The complainants can use this for Child B’s educational benefit as they see fit; and
- in respect of transport to College Z, the complainants would have made an application on time, but for the faults. I do not know whether the complainants took Child B to College Z before the Council agreed free transport. If they have, the Council should reimburse them its normal mileage rate for that period. If not, the Council should make a symbolic payment of £500 to recognize that Child B was not able to start at College Z at the beginning of the college year, to be used for Child B’s educational benefit; and
- ensure SEN case officers are aware of the right of appeal if a reassessment is refused.
- I consider there has been fault causing injustice. The Council has accepted the recommended ways to remedy the injustice. Therefore, I have completed my investigation and am closing the complaint.
Parts of the complaint that I did not investigate
- The Ombudsman cannot consider the complaint about College Y acting discriminately because Mr and Mrs X had an alternative remedy to the SEND Tribunal.
- The Ombudsman cannot investigate the internal management within schools. So, I have not investigated College Y’s actions.
Investigator's decision on behalf of the Ombudsman