Summary: The Council was at fault for delays in amending and then finalising Mrs X’s son’s education, health and care plan after an annual review. The delays caused Mrs X distress and uncertainty about education provision for her son. The Council has apologised for the delays and has agreed a financial remedy to properly recognise her injustice.

The complaint

1. Mrs X complains about the level of service the Council provided, and how long it took, after a review of her son’s education, health and care plan (EHCP). She says the Council’s inconsistent communications and delays caused avoidable distress and uncertainty about the future provision of her son’s education.
2. I refer to Mrs X’s son as Y.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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.

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How I considered this complaint

6. I spoke to Mrs X and considered the information she provided.
7. I considered the Council’s comments and the documents it provided.
8. I considered the code of practice which contains guidance for organisations supporting young people with special educational needs or disabilities (SEND).
9. I considered the Ombudsman’s guidance on remedies.
10. 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

11. Mrs X says in 2012, a SEND tribunal recommended Y should stay at a named school for education provision until the end of the academic year in which he turns 19 years of age. This meant he would remain there until July 2022 unless there were any decisions otherwise.

What should have happened

12. The SEND code says within four weeks of a review meeting, a council must tell the child’s parent of its decision to maintain, amend or discontinue the EHCP. It also says if a council decides to amend the plan, it should start this process without delay.
13. The code says the child’s parents have a right to request a particular school which the council must agree to unless it would be unsuitable or could not be accommodated.
14. The code also says where a transfer to a post-16 institution is to take place, a council must amend the EHCP at least five months before the transfer.

What happened

15. Before Y’s annual EHCP review in October 2020, the Council identified that its records were inconsistent about the date Y was due to finish at his school. One record said he would finish when he turned 19 (November 2021), while the other said this would happen at the end of the academic year after he had turned 19 (July 2022).
16. The Council intended to deal with this conflicting information through the review process and said it would issue an amended EHCP if needed.
17. The Council was present at the review and Mrs X told the Council she preferred Y to remain at his school until July 2022. In November 2020, the Council asked the school to complete the record of the review and in December the school sent the Council the review meeting notes.
18. In January 2021, the Council sent Mrs X a letter asking for education provision preferences for the next academic year. Mrs X says this letter caused her further concern, because she read from the letter that her son would be moving educational placements in September 2021, even though she had told the Council during Y’s review that she wanted him to remain in his existing school. Mrs X says the letter suggested the Council was not properly considering her views. She told the Council, again, that she wanted Y to remain in his school.
19. The Council told Mrs X this was a generic letter and it had been sent as part of an annual process, to parents of all children who were over sixteen years of age.
20. In June 2021, the Council wrote to Mrs X telling her it was proposing amendments to the EHCP and asked her to provide further information for the draft amended plan. Mrs X wrote back and told the Council her preference remained for Y to stay at his school until July 2022.
21. Later that month the Council wrote back with a draft amended EHCP.
22. The Council then held an internal placement meeting which confirmed Y could remain in his school until July 2022 and finalised his EHCP in July 2021.
23. The Council apologised to Mrs X for the delays in finalising the EHCP and explained this was due to a council officer leaving their role.

My findings

24. The SEND code says a council should tell parents within 4 weeks of an EHCP review what it intends to do. If it intends to amend the plan it should then do this without delay. The Council did this in June 2021 – eight months after the review. This is fault.
25. I have not seen a copy of the ‘preferences’ letter the Council sent in January 2021. However, the Council has provided a copy of the letter it used for the current annual process. Although I can see why Mrs X would feel that this letter did not help clarify what was happening with Y’s future education, the Council was not at fault for sending parents a generic letter asking them to confirm their preferences for the upcoming school year.
26. The SEND code says when a council decides whether it will maintain or amend the EHCP, it should begin the process of making the amendments without delay.
27. The Council sent Mrs X a letter about this in June. It then sent Mrs X a draft EHCP for comment later that month.
28. The Council’s delay meant after the review in October 2020, Mrs X did not get confirmation about Y’s school provision for the next academic year until July 2021. This was very late, and likely caused both Mrs X and Y distress and uncertainty.

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Agreed action

29. Within six weeks of this decision, the Council has agreed to:
• Make a payment of £100 to Y to recognise the uncertainty he experienced about his education provision.
• Make a payment of £100 to Mrs X to recognise her time and trouble, and the avoidable distress she experienced.

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Final decision

30. The Council was at fault in the time it took to review and amend Y’s EHCP and agree his education provision.

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Investigator's decision on behalf of the Ombudsman