Summary: Ms X complained on behalf of Miss Y, her child, about the way the Council has dealt with her Education, Health and Care plan and educational provision since November 2020. The Council was at fault for the delay in issuing Miss Y’s amended Education, Health and Care plan after the annual review in November 2020. This has caused Ms X distress, uncertainty and put her to avoidable time and trouble. The Council has agreed to the recommendations set out in this decision to remedy the injustice its actions caused to Ms X and Miss Y.

The complaint

1. Ms X complains on behalf of her daughter, Miss Y. She says the Council failed to:
• follow the statutory timeframes following Miss Y’s Education Health and Care (EHC) plan review in October 2020;
• consider transport and transition into adulthood during the annual review it held in October 2020;
• review Miss Y’s EHC plan five months before she was due to transfer from one post-16 education provider to another; and
• consider Ms X’s complaint about the delays in the EHC annual review process under its corporate complaints procedure.
2. Ms X says that this has caused her distress and meant she had to spend avoidable time and trouble in chasing the Council for the updated EHC plan. She also says this frustrated Miss Y’s rights to appeal the content of her EHC plan to the Special Educational Needs and Disability (SEND) tribunal.
3. Ms X would like the Council to formally respond to her corporate complaint, as it should have from the beginning. She also wants the Council to remedy the injustice its faults have caused her and Miss Y.

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What I have investigated

4. I have investigated Ms X’s complaint about the Council’s handling of Miss Y’s EHC plan. There are parts of Ms X’s complaint I did not investigate, and I explain why at the end of this decision statement.

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The Ombudsman’s role and powers

5. 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)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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 this decision with Ofsted.
8. If we are satisfied with an organisation’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. As part of the investigation, I have:
• considered the complaint and Ms X's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
10. Ms X and the Council were invited to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Annual Reviews

11. The Department for Education publishes statutory guidance, the SEND Code of Practice, which sets out the duties of councils.
12. Councils must review an EHC plan at least every 12 months. The EHC plan review at Year 9 must include a focus on preparing for adulthood. This is called a transition review.
13. Within two weeks of the review meeting the Council must prepare and send out a report setting out any amendments to the EHC plan it is recommending.
14. Within four weeks of the review meeting, the Council must decide whether it will keep the EHC plan as it is, amend, or cease to maintain the plan. It must notify the child’s parent of its decision.
15. If the plan needs to be amended, the Council should start the process of amendment without delay.
16. The Council must send the draft EHC plan to the child’s parent and give them at least 15 days to give views and make representations on the content.
17. When changes are suggested to the draft EHC plan and agreed by the Council, it should amend the draft plan and issue the final EHC plan as quickly as possible, but within eight weeks of the date the Council sent the proposed amendments to the parents.
18. Where the Council does not agree with the changes suggested by the child’s parent it may still proceed to issue the final EHC plan.
19. In any case the Council must notify the child’s parent of their right to appeal to the SEND Tribunal and the time limit for doing so.

Preparation for adulthood

20. The Code gives detailed guidance on preparing for adulthood. This includes looking at higher education, training or employment. For young people with an EHC Plan, preparation should start in Year 9. Under the Care Act 2014 councils must carry out a social care needs transition assessment for the young person where there is likely to be a need for care and support after they turn 18. For young people with an EHC plan this planning should take place as part of the annual review process.
21. The Code says the local authority should ensure the transition to adult care and support is “well planned [and] is integrated with the annual reviews of the EHC plans”.

Council’s complaints procedure

22. The Council’s complaint procedure has two stages. The Council says it will acknowledge stage one complaints in two working days. It will respond to stage one complaints in 20 working days, but complex complaints may take up to 30 working days to respond to.
23. The policy says that if a complainant feels their complaint had not been resolved by the service, they can contact the customer complaints team to consider their complaint further.
24. The Council will respond to stage two complaints in 30 working days. Where the stage two complaint is of a complex nature, the Council might extend the timescale for response to a maximum of 40 working days.
25. Once the complaint has been through the two stage process, the corporate complaint procedure is completed and the Council should refer the complainant to the Local Government and Social Care Ombudsman.

What happened

26. In November 2020 the Council held an annual review of Miss Y’s EHC plan. Ms X told us that following that review she did not receive any correspondence form the Council and Miss Y did not receive any Special Educational Provision (SEN) named in her plan.
27. In October 2021 Ms X complained to the Council and said that it failed to:
• issue a final EHC plan for Miss Y following the annual review it held in November 2020;
• allow her to comment on Miss Y’s draft EHC plan;
• give her information about schools that Miss Y could attend;
• tell Miss Y about her appeal rights; and
• review Miss Y’s EHC plan in time for her transfer to another post 16 education institution.
28. This meant Miss Y did not have a plan showing her up to date needs and what provision she needed to support those. Additionally, she said the Council frustrated her SEND appeal rights.
29. Ms X asked the Council to apologise, pay remedies for all the faults and issue Miss Y’s final EHC plan within five working days.
30. At the beginning of November 2021, the Council emailed Ms X and:
• apologised for “significant administrative delay in the Council’s response following Miss Y’s Annual Review in November 2020”;
• accepted that following the review it should have sent a letter to Miss Y telling her it planned on maintaining her EHC plan, but it did not. It only did it in late October 2021;
• confirmed it wanted to involve Miss Y in the process and asked why she requested a reassessment of her needs; and
• asked if Miss Y raised any concerns about her provision with the educational provider.
31. In November 2021 Ms X asked the Council if its previous correspondence from early November was the Council’s stage one response to her complaint.
32. The following day the Council told Ms X that it did not consider her complaint under its corporate complaints system, and she should appeal to SEND Tribunal.
33. At the end of November 2021 Ms X complained to the Council again. She said that:
• she still wanted the Council to reply to her corporate complaint, for which the Council has already exceeded its timescales; and
• asked the Council to explain why it is refusing to address this under the corporate complaints procedure.
34. Ms X was not happy with the Council’s decision to maintain Miss Y’s EHC plan without making any changes to her Special Educational Needs (SEN) provision and in December 2021 she appealed the contents of the EHC plan to the SEND Tribunal.

Analysis

EHC plan annual review November 2020

35. The Council accepted that it was at fault for not following the statutory annual review procedure following the meeting it held for Miss Y’s EHC plan review in November 2020.
36. The Council said that within four weeks of the review meeting it should have told Ms X and Miss Y its decision to maintain Miss Y’s EHC plan, but it did not do so until late October 2021. This is fault.
37. The Council also failed to send a draft EHC plan to Ms X for her comments. This is fault.
38. The Council did not send Miss Y’s final EHC plan to Ms X until October 2021, when Ms X asked for this. This is fault.
39. This has caused Ms X and Miss Y avoidable distress and time and trouble in having to complain to the Council.
40. Furthermore, the delay in sending the final EHC plan to Ms X has frustrated her right to appeal the contents of the EHC plan to the SEND Tribunal. We consider it is more likely than not Ms X would have appealed the contents of the EHC plan earlier had the Council acted without delay. This caused Ms X avoidable distress in the way of uncertainty about what would have happened had the Council followed the statutory annual review timeframes.
41. Ms X also complained that Miss Y’s EHC plan did not contain any plans about her transition into adulthood. The SEN Guidance says that all reviews of EHC plan from Year 9 must include a focus on preparing for adulthood, including employment, independent living and participation in society. We have found fault with how the Council carried out the EHC plan review for Miss Y in November 2020, as it did not follow the statutory annual review process.
42. The Council’s records show that in November 2020 it did discuss future course options with Miss Y. The Council also recorded asking Miss Y about her aspirations for the future. Whilst this can be regarded as considerations of the transition into adulthood, the Council then maintained Miss Y’s EHC plan from previous year and did not record these discussions in Miss Y’s EHC plan. We consider this to be fault.
43. Ms X said that she felt Miss Y missed out on SEN provision. In December 2021 Ms X appealed the content of the EHC plan, and the provision from section F to the SEND Tribunal. Without having the Tribunals final decision about the provision that should have been included in Miss Y’s EHC plan I cannot say, even on balance of probabilities, what, if anything she has missed out on.
44. We also consider the Council was at fault for failing to carry out a transition social care assessment of Miss Y’s needs as set out in paragraph 25. During the January 2022 annual review for Miss Y the Council noted that its Adult Social Care team would carry out an assessment of Miss Y, but this should have been part of the 2020 annual review consideration. We cannot say what would have happened if the Council acted without fault and carried out this assessment sooner, but this further adds to Ms X’s uncertainty.

EHC plan review before transferring between educational providers

45. The Council told us that Miss Y changed her course in September 2021, but she did not change the educational provider. The course she began attending was still being delivered by the same college, albeit at a different campus.
46. In its response to Ms X, the Council accepted that the section I of Miss Y’s EHC plan should have reflected this but did not. This is fault.
47. The SEN Guidance says that any changes to section I of the EHC plan should be made five months before the young person begin to attend the new setting, in this case the new college campus.

Corporate complaints procedure

48. In November 2021 the Council told Ms X that it did not consider her complaint about the delays in the EHC plan annual procedure under its corporate complaints policy because she should take this matter to the SEND Tribunal.
49. Whilst it is true that Ms X’s complaint about the content of the EHC plan is for the SEND Tribunal to consider, the Council should have accepted and considered her complaint about the delays in EHC plan annual review process.
50. The Council did address Ms X’s other concerns, and apologised for the delay, but it did not do so by following its complaints procedure. It did not acknowledge her complaint and it did not issue a two stage response. Furthermore, the Council did not refer Ms X to the Local Government Ombudsman. These are all faults.
51. We consider these faults further contributed to Ms X’s frustration and put her to avoidable time and trouble in having to chase the Council for clarification of how it was considering her complaint, despite there being a clear procedure in place.

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Agreed action

52. The Council will take the following action within four weeks from the date of my final decision:
• apologise to Ms X and Miss Y for the faults I have identified. The Council should ensure that the apology to Miss Y is in a format suitable for her needs;
• pay Ms X £400 to recognise the anxiety and uncertainty caused by the delay in the review process and not including the planning for Miss Y’s future in her EHC plan;
• pay Ms X £300 to recognise the injustice arising from her frustrated appeal rights and the lack of consultation following the annual EHC plan review from November 2020; and
• pay Ms X £200 to recognise the time and trouble she has been put to in chasing a resolution and having to complain before the Council took any action about Miss Y’s EHC plan.
53. The Council will take the following action within three months from the date of my final decision:
• share this decision with the officers in its SEN department as well as the corporate complaints team and emphasise the difference between complaints challenging the contents of the EHC plan, and the Council’s delays in the EHC plan statutory procedure; and
• review its EHC plan annual review policy procedure to ensure that it follows statutory timeframes and includes a social care assessment for young people likely to need support after their 18 birthday.

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Final decision

54. I have found fault by the Council which caused Ms X and Miss Y an injustice. I have completed my investigation.

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Parts of the complaint that I did not investigate

55. I did not investigate Ms X’s complaint about the Council’s handling of her school transport request. This is because I considered this part of Ms X’s complaint to be premature, as at the time of my investigation the Council had not issued it final response yet.

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Investigator's decision on behalf of the Ombudsman