Summary: Mr X complains about the way the Council handled the process of amending his daughter’s education, health and care plan in preparation for transfer to secondary school. We found several failings in the process. In recognition of the injustice caused, the Council has agreed to make a payment to Mr X.

The complaint

1. Mr X complains that the Council:
• failed to retain Annual Review documentation in accordance with SEN Regulations;
• failed to take into account parental preference for a specialist school resulting in a delay in taking the case to the Panel;
• failed to consult his preferred specialist school at the beginning of the process alongside mainstream schools;
• provided misleading and inadequate information to the Panel held on 24 January 2022 which influenced its decision;
• failed to inform him of the right of appeal against the panel's decision;
• issued a draft EHCP which contained errors and omissions;
• submitted incomplete and inaccurate information to the Panel held on 14 March 2022;
• delayed in issuing a final amended EHCP;
• failed to properly communicate with him; and
• delayed in providing a full response to his complaint.
2. Mr X says these failings caused himself and his wife distress and uncertainty and they were put to time and trouble in pursuing matters with the Council.

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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. 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.
6. 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

7. I have considered all the information provided by Mr X, made enquiries of the Council and considered its comments and the documents it provided.
8. Mr 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

Legal and administrative background

Education, health and care plans

9. A child with special educational needs (SEN) may have an Education, Health and Care plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
10. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
11. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHCP or about the content of the final EHCP. 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 EHCP has been issued.

Annual reviews

12. The annual review of an EHCP considers whether the provision remains appropriate and whether progress is being made towards the targets in the Plan.
13. Within four weeks of the review meeting the Council must notify the parents and the school whether it intends to maintain the plan, amend the plan or cease to maintain it. There is no timeframe for how long the council can take to do the amendments, but this should happen “without delay”. Once the amended plan is ready it must be sent to the parent with an amendment notice. The Council must issue the final plan within eight weeks of the amendment notice.

Key transfers

14. An EHC plan must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education, to allow for planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year of the transfer at the latest for transfers into or between schools. The key transfers are:
• early years provider to school
• infant school to junior school
• primary school to middle school
• primary school to secondary school, and
• middle school to secondary school

Key facts

15. Mr X’s daughter, C, has a complex developmental disability. She was attending a mainstream primary school with one-to-one support. She was due to transfer from primary school to secondary school in September 2022.
16. On 26 October 2021 there was an annual review of C’s EHCP at the school. Mr X stated that his parental preference was School B, a special school. The school sent the annual review documents to the Council on 12 November 2021.
17. On 3 December 2021 the Council consulted three mainstream secondary schools. The same day it issued a draft EHCP. It informed Mr and Mrs X that it would not be taking C’s case to the SEN panel to request specialist provision because her learning levels were too high and the application would be rejected. Mr and Mrs X argued that all the evidence from the professionals who contributed to the annual review pointed to the need for specialist secondary provision. On 17 December 2021 the Council reviewed its decision and agreed to take the case to panel.
18. In January 2022 the Council received responses from two of the schools consulted stating they could not offer C a place.
19. On 24 January 2022 the SEN panel considered Mr X’s request for specialist provision. It declined specialist provision because it considered C’s learning levels were not low enough to require specialist provision. It considered that, if she were to attend a specialist school, she would not be in a peer group with a matching academic ability to hers.
20. On 25 January 2022 the Council issued a final EHCP naming a mainstream school. However, this was withdrawn after Mr and Mrs X raised concerns that there were omissions and incorrect statements and the plan included almost none of the recommended amendments in the annual review. The case manager apologised for sending the final EHCP in error and said she would start the process again.
21. On 1 February 2022 the Council consulted School B, another special school and a mainstream school.
22. On 4 February 2022 the Council issued an amended draft EHCP. It also sent Mr X the consultation responses from the mainstream schools. It said it had consulted School B and another specialist provision and was waiting for responses.
23. After some further amendments were made, Mr and Mrs X broadly agreed with the amended EHCP on 10 February 2022.
24. In early March 2022 School B confirmed it could offer C a place. The other schools consulted said they could not do so.
25. On 14 March the SEN panel considered the case again. The panel declined specialist provision.
26. The notes from the panel show the panel discussed C’s needs and the fact that she was working six months to a year behind her peers. The panel noted that she displayed less anxiety in smaller groups and struggled with age-appropriate conversations and in navigating the playground. The panel noted Mr and Mrs X preferred a specialist school and that all the mainstream schools consulted had refused a place. The panel considered that a mainstream school could be challenging for C but that her learning levels were not far behind her peers. It considered that, although she may do well in a special school, she was coping in mainstream and a mainstream school should be able to manage her health needs by making reasonable adjustments.
27. On 16 March 2022 the Council issued a final EHCP naming a mainstream school. Mr X says he did not receive the final EHCP until 30 March 2022. He appealed to the SEND Tribunal against the placement named in the plan and about the content of the EHCP.
28. On 6 April 2022 Mr X complained to the Council about various issues concerning the transfer process. The Council responded to some of the issues raised on 9 May 2022. It explained that the legal team would respond to the other issues.
29. On 7 June 2022 the SEND Tribunal ordered by consent that the Council would issue an amended EHCP naming School B from September 2022.
30. The following day the Council issued a final EHCP naming School B.
31. On 27 July 2022 the Council responded to the remaining issues set out in Mr X’s complaint. It apologised for the delay in providing a full response.
32. In September 2022 C started at School B

Analysis

Failure to retain annual review documentation

33. The Council accepts it does not hold C’s annual review documentation for 2019 and 2020. I find it is at fault in failing to retain these important documents.

Delay in issuing a final amended EHCP

34. The SEN code of practice: 0 to 25 years (‘the Code’) says that, within four weeks of a review meeting, the Council must decide whether it proposes to keep the EHCP as it is, amend the plan or cease to maintain the plan and must notify the child’s parents and the school of its decision. I have seen no evidence that the Council did this. This was fault. Mr X says he did not know what the Council’s decision was until he received a copy of a draft EHCP on 25 January 2022, 13 weeks after the annual review took place. This caused him and his wife uncertainty.
35. The final amended EHCP was issued on 16 March 2022. The Code says that, in a phase transfer year, the review and any amendments to the EHCP must be completed by 15 February in the calendar year of the transfer at the latest. I find the Council was at fault in failing to meet this deadline. This caused Mr and Mrs X further distress and uncertainty.

Parental preference

36. Mr X says the Council failed to take into account his preference for a specialist school and failed to consult his preferred school at the beginning of the process alongside mainstream schools. He says this resulted in a delay in taking the case to panel.
37. In its response to Mr X’s complaint, the Council accepted it had not taken into account that there was a parental preference for a special school. It accepts the case should have been taken to panel for a decision irrespective of evidence suggesting mainstream was the most appropriate setting to meet C’s need. Failure to do so caused Mr and Mrs X additional distress. It also resulted in a delay in taking the case to panel.
38. The Council also accepted that School B should have been consulted at the beginning of the process alongside mainstream schools. It apologised for failing to do so and explained that the process has been reviewed and the associated learning was rolled out across the service in April 2022.
39. The Council also acknowledged that, although it is entitled to consult with additional schools outside of the parental preference, it did not inform Mr and Mrs X about the additional consultations as it should have done. This was further fault and meant that Mr and Mrs X were unaware of actions taken by the Council in relation to their child’s future education.

The SEN Panel held on 24 January 2022

40. Mr X says the Council provided misleading and inadequate information to the panel.
41. The panel request for specialist provision set out a summary of C’s needs and her current school’s view that a specialist setting would be most appropriate for her. It also set out her parents’ view that her needs could only be met in specialist provision. However, the request did not include any of the information received from mainstream schools in response to the consultation. This was fault and meant the panel did not have all relevant information when reaching its decision. I cannot say whether the panel’s decision would have been any different if it had been given this information but, given that the panel considered the matter again in March 2022 and reached the same decision, I find on a balance of probabilities, that this would not have been the case.
42. Mr X says he was not informed of a right of appeal against the panel’s decision. The Council has explained that, because this is an internal panel, there is no appeal process. However, it accepts parents should be informed of the reasons for the panel’s decision to enable them to provide any further information that could be considered by the panel.
43. I find the Council was at fault in failing to explain to Mr and Mrs X the reasons for the panel’s decision. This caused them distress and uncertainty. However, they did not lose the opportunity to have the decision reviewed because the case was considered by the panel again in March 2022.

Errors and omissions in the draft EHCP

44. Mr X says the EHCP issued in January 2022 contained errors and omissions and bore no relation to what was agreed at the annual review. The Council accepted this and restarted the process.
45. I find the Council was at fault in issuing a final EHCP without consulting Mr and Mrs X on the proposed amendments. This only caused a short delay as a revised draft decision was issued a few days later. However, it caused Mr and Mrs X uncertainty and confusion.

The SEN panel held on 14 March 2022

46. Mr X says the Council submitted incomplete and inaccurate information to the panel. He says there was no mention of the two specialist schools that had been consulted on the panel request form and, although there was reference to two other schools that had been consulted, no detail was provided.
47. The Council accepts this. But it says the more important consideration for the panel was the mainstream schools’ reasons for stating they could not meet C’s needs.
48. The information to the panel summarised C’s needs and Mr and Mrs X’s’ views. It also set out the responses from the mainstream schools. I find the Council was at fault in failing to include the responses from the specialist schools. This meant the panel did not have all the information before it when reaching a decision. This causes Mr and Mrs X uncertainty as to whether the decision would have been any different if all the information had been available.

Communication

49. Mr X says the Council failed to properly communicate with him.
50. The Council says the SEND team has a limited amount of time to work on each case given the significant rise in the number of EHCP’s in its area. It says Mr X’s case manager responded to most of his emails but accepts she missed opportunities to fully explain the progress of the case to Mr X. This was fault and the Council has apologised for this.

The Council’s response to Mr X’s complaint

51. The Council accepts there was a delay in providing a full response to Mr X’s complaint. This was fault and caused Mr and Mrs X additional frustration.

Conclusion

52. In responding to Mr X’s complaint, the Council accepted it was at fault in failing to comply with the SEN Regulations and the Code in completing the review of C’s EHCP. It also accepts the case manager missed opportunities to fully explain progress of the case to Mr and Mrs X. It apologised and offered a payment of £300 in recognition of the distress and time and trouble Mr and Mrs X were caused.
53. C started School B in September 2022 at the beginning of Year 7. So, she did not miss out on any educational provision because of the Council’s failings. However, Mr and Mrs X suffered distress and uncertainty and they were put to time and trouble in pursuing matters with the Council.
54. While I am pleased the Council has already accepted many of its failings and offered a remedy for the injustice caused, I do not consider the remedy goes far enough in view of my findings above. So, I have made recommendations below.

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Agreed action

55. The Council has agreed that, within one month, it will pay Mr and Mrs X £500 (including the £300 already offered) in recognition of the distress and inconvenience they suffered.
56. The Council has also agreed that, within three months, it will:
• review its processes to ensure that, in future, it retains annual review documentation; and
• issue a written reminder to relevant staff to ensure the Council acts within the timeframes set out in the SEN Code of Practice and to ensure all relevant evidence is provided to the SEN panel and the reasons for the panel’s decision are given to parents.
57. The Council should provide us with evidence it has complied with the above actions.

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Final decision

58. I find fault causing injustice.
59. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

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Investigator's decision on behalf of the Ombudsman