Summary: Ms X complained the Council failed to finalise an Education, Health and Care Plan (EHCP) for her daughter, Y, within statutory time limits. She also complained about poor communication. We find the Council at fault for missing deadlines and for inadequate communication. We recommend the Council apologises, makes a payment to recognise the avoidable uncertainty and time and trouble, and takes action to avoid recurrence.

The complaint

1. Ms X complains the Council failed to finalise Y’s transition EHCP within statutory time limits. Ms X also says the Council’s communication was poor and it failed to act on the findings of an independent investigating officer. Ms X says this caused uncertainty for her and Y and meant her right of appeal was delayed.

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What I have investigated

2. I have investigated the delays in issuing Y’s EHCP and the Council’s communication with Ms X.
3. I have not investigated whether the Council is at fault for not naming Ms X’s preferred school, or for the provision set out in Y’s EHCP. I have explained why at the end of this statement.

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The Ombudsman’s role and powers

4. 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)
5. The SEND tribunal considers special educational needs. We cannot investigate a complaint when someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended) However, we may investigate whether there may have been a delay in the process which led to the tribunal.
6. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC Plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
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. I spoke to Ms X about her complaint and considered information she provided. I also considered information received from the Council.
10. Ms X and the Council had an opportunity to respond to a draft decision, and I considered any comments before making a final decision.

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What I found

Relevant law and guidance

11. A child with special educational needs (SEN) may have an 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.
12. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (the Code) sets out the process for EHCPs. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:
• Councils must review EHCPs at least annually
• Councils have four weeks from the review meeting to decide whether to maintain or amend the EHCP.
• They must present proposed changes to parents and give them at least 15 days to comment.
• Following representations from the child’s parent, if the council decides to continue to make amendments, it must issue the final EHCP as quickly as possible and within 8 weeks of the original amendment notice.
• Where the young person is due to transition from primary to secondary education, the council should review the EHCP and issue a final amended plan by 15 February at latest, before the transition in September.

What happened

13. Y has special educational needs and was due to move into secondary education in September 2021. Y’s EHCP was reviewed ahead of this transitional period on 19 October 2020. At this time, the Council identified it needed updated advice from an Educational Psychologist (EP), but due to a human error, it did not request this until 18 December.
14. Due to capacity issues, the EP could not issue a report immediately. As a result of this, the Council missed the deadlines to issue a notice to amend within four weeks, and a final amended EHCP within eight weeks, meaning by 13 January 2021. The Council also missed the deadline of 15 February 2021 to issue Y’s transition EHCP.
15. The EP issued their report on 23 April.
16. On 12 May, the Council issued a Notice to Amend Y’s EHCP, taking account of Ms X’s views and those of the EP. Ms X responded to the Council to point out aspects of the EHCP she felt were no longer relevant.
17. On 26 May, Ms X contacted the Council to chase an amended EHCP.
18. On 1 June, the Council issued a second Notice to Amend and began consulting with schools to see who could offer a place to Y. This included the school (school A) Ms X had identified as her preference.
19. On 7 June, Ms X asked for more time to respond to the second Notice to Amend as she wanted to seek advice before she gave her comments.
20. On 24 June, one of the consulted schools (school B) responded to explain they could not meet Y’s needs. The following week, school A told the Council it could meet Y’s needs.
21. On 9 July the Council spoke to school B. It explained school A was the only school to agree it could meet Y’s needs and what the cost of this would be. The Council asked if school B would reconsider its position if the Council provided funding to cover extra 1:1 support. School B replied on 16 July. It explained, with 1:1 support funded and in place, it would be able to meet Y’s needs.
22. On 16 July, the Council issued Y’s finalised EHCP naming school B.
23. Ms X appealed to the SEND Tribunal on 16 September. As she did not feel school B was an appropriate setting for Y, Ms X did not send her to school when the term began, opting instead to await the result of her appeal.
24. Although the Council felt a suitable offer of education was in place with school B, it agreed to continue with the provision from Y’s previous EHCP while she was out of school. However, due to a deterioration in Y’s mental health, by 28 October the Council agreed school B was no longer a suitable setting for Y.
25. Ms X complained to the Council in December 2021. She said:
• The Council had failed to finalise Y’s EHCP within statutory time limits;
• Communication had been poor, and she had often been ignored;
• The Council delayed referring Y for an updated EP’s report for two months;
• Y had missed free school meal vouchers since September 2020.
26. Ms X also brought her complaint to the Ombudsman at this time.
27. In January 2022, the Council and Ms X agreed to name school A on Y’s EHCP. The SEND Tribunal approved a consent order on 26 January and Ms X’s appeal came to an end.
28. On 1 March, the Council issued an amended EHCP, naming school A. Y’s provision remained the same otherwise.
29. The Council passed Ms X’s complaint onto an Independent Investigating Officer who discussed the complaint with Ms X and issued a report with their findings:
• The Council missed the statutory time limits to issue Y’s EHCP. This was down to human error and a lack of capacity in the Educational Psychology service;
• Ms X often had to chase the Council for answers to her complaints and concerns without responses;
• Although Ms X did have monthly communication with the SEND co-ordinator, this was mainly instigated by Ms X. Given the significant delays in issuing Y’s EHCP, it would have been good practice for the SEND co-ordinator to update Ms X proactively;
• The Council should have effective systems and processes in place to ensure EP reports are completed on time;
• As she was not in a school setting, Y had missed her free school meal entitlement since September 2020. The Council not providing funding put Y’s family at a disadvantage.
30. To remedy the identified fault, the Independent Investigating Officer recommended the Council:
• Apologise to Ms X;
• Compensate Ms X for the loss of free school meals.
• Consider a financial remedy for Ms X’s time and trouble and to recognise the impact of the delay in finalising Y’s EHCP;
• Review its processes so children who get free school meals were not disadvantaged where they are not in a school setting.
31. The Council wrote a letter to Ms X in June 2022 with a copy of the Independent Investigating Officer’s report. The Council explained it had accepted the findings of the report and considered the recommendations. The Council apologised for all upheld aspects of the complaint and acknowledged there were delays in responding to communications and requests of support. It explained it had:
• Approved funding for extra staff to improve both communication and timeliness;
• Engaged with Warwickshire Parent Carer Voice on how to improve communication with parents and carers;
• Established a project to improve how the Council and schools work together to improve the EHCP review process;
• Commissioned external training on complaint handling;
• Offered £437 to Ms X to cover the missed free school meal provision (made up of £2.30 per day for 190 days).
32. The Council said it had continued to provide Y with education and so it would not offer any further financial remedies.
33. Ms X has said she did not receive this letter.
34. In response to a draft decision, the Council has explained its project is currently underway to improve a number of services in its special educational needs department, including the EP service. It has said a final decision on the proposals of the project is due in May 2023 with any implementation coming in September 2023.

Analysis

Delays in finalising Y’s EHCP

35. The Council was at fault for not finalising Y’s EHCP by 13 January 2021, in line with the statutory time limits, or by 15 February 2021 which is the deadline for issuing a final EHCP in a transition year as set out in the Code. This fault meant Ms X could not bring an appeal to the SEND Tribunal until July 2021, six months later than if the EHCP had been finalised by 13 January 2021. This would have caused both Ms X and Y considerable distress and uncertainty.
36. Ms X believes finalising the EHCP on time would have meant Y was placed in her preferred school sooner. While I cannot find the Council at fault for naming school B initially, as this would be for the SEND Tribunal to consider, I do find the delay has caused further uncertainty for Ms X and Y. I say this because, had the EHCP been finalised on time, it is likely Ms X would have appealed to the SEND Tribunal at that stage. The SEND Tribunal prioritises transition cases for early hearings so I think it is more likely than not Ms X would have had an answer to her appeal before the start of the school term.
37. I cannot say what the outcome of the appeal would have been, but it would have given Ms X and Y some clarity about where she would be attending school. As there was uncertainty, Ms X opted to keep Y out of school until the appeal was complete which meant she did not start the school year with her peers at a key transitional phase.
38. Although Ms X opted to keep Y out of school pending the outcome of her appeal, the Council continued to fund provision from her previous EHCP to ensure she was still receiving education. I find the Council took suitable action to mitigate some of the injustice identified above.
39. The Council was required to secure provision in Y’s amended EHCP at school B. Ms X chose not to send Y to school B pending the outcome of the appeal. That was a matter for her. Although the Council was not required to, it did continue to secure provision on the previous EHCP. This allowed for some education for Y given Ms X’s decision not to send her to school B.
40. The Council has explained it has now agreed funding for extra staff to prevent recurrence of the delay I have identified. It has also explained it has begun its project to improve its EHCP review process and EP service. I find this is suitable action.

Communication

41. Ms X has said the communication from the Council was poor and she often went long periods without updates and had to chase responses. This is supported by the information available to me and the Independent Investigating Officer’s report. My view is there was fault in communication.
42. The Council has accepted there were issues with its communication and agreed to work with the Warwickshire Parent Carer Voice to improve this going forward. I find this is a suitable action to prevent recurrence.
43. However, the fault in communication would also have caused Ms X further distress and uncertainty at a time when she was already worried about the EHCP process.

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Agreed action

44. To remedy the injustice identified above, I recommended the Council:
45. Within one month of my final decision:
• Provide Ms X and Y with a written apology for failing to meet statutory deadlines during the EHCP review process and for the level of communication received.
• Pay Ms X £500 to recognise the distress and uncertainty caused by the delay and poor communication.
46. Within three months of my final decision:
• Provide evidence of the outcome of the Council’s engagement with Warwickshire Parent Carer Voice showing how this will improve communication with parents and carers going forward.
47. The Council has now agreed to these recommendations.

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Final decision

48. I find fault with the Council for failing to ensure Y’s EHCP was finalised on time. I also find fault with the way the Council communicated with Ms X.
49. The Council accepted my recommendations and I have completed my investigation.

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Parts of the complaint that I did not investigate

50. Ms X complained the Council failed to name her preferred school on Y’s EHCP. She believes the Council’s decision here was based on costs, rather than what was in Y’s best interests.
51. I have not investigated this element of Ms X’s complaint as I am not able to say what provision or educational setting should be named in an EHCP. Concerns about provision or named schools are for the SEND Tribunal and Ms X appealed this decision.

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Investigator's decision on behalf of the Ombudsman