Summary: There was fault in the Council delaying finalising an Education, Health and Care plan. There was also fault in how the Council referred to Ms X’s daughter during the consultation period with education providers, and for delays in responding to Ms X’s complaint. These faults have caused Ms X and her daughter an injustice and the Council has apologised. It has now agreed to take further steps to fully remedy this injustice.

The complaint

1. Ms X said the Council took too long to finalise an amended Education, Health and Care plan (EHCP) after it carried out a review in December 2021.
2. Ms X also said the Council wrongly referred to her daughter by her assigned birth name during the EHCP consultation process. Ms X said the Council was unresponsive after she made a complaint about this.
3. Ms X said the delays in finalising her daughter’s EHCP delayed her appeal rights and this caused her distress about future provision.
4. Ms X also says because the Council wrongly referred to her daughter, who was male at birth, by the wrong name, this caused her daughter significant anxiety.

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What I have and have not investigated

5. I have chosen to exercise my discretion to investigate the elements of Ms X’s complaint relating to delays in issuing an amended EHCP. The Council has not responded to that, but these matters are closely linked to the remainder of Ms X’s complaint. Therefore, it would not be reasonable to ask her to go through the Council’s complaint process again.
6. I will not investigate the Council’s decision not to name an institution. This was a matter which Ms X could have appealed to the SEND tribunal if dissatisfied. The law allows us not to investigate matters which could have been raised at a tribunal.

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The Ombudsman’s role and powers

7. 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)
8. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply (Local Government Act 1974, section 26(5))
9. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
10. 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)
11. 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

12. I read the complaint and discussed it with Ms X. I also considered the information she sent to me.
13. I read the Council’s responses to Ms X’s complaint and the correspondence it had with Ms X.
14. I considered the special educational needs and disability (SEND) code of practice, which councils have a duty to follow.
15. Ms 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

What should have happened

Education, health and care plans

16. The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
17. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
18. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.

Principles of good administrative practice

19. In 2018, the Ombudsman published a document setting out principles of good administrative practice and what we expect to see from Councils.
20. This document recommends councils explain and respond to any delays proactively. It also recommends councils deal with people helpfully, promptly, and sensitively, taking account of their personal circumstances.

Corporate complaints procedure

21. The Council’s complaint procedure has two stages. At the initial stage it says a complaint will be acknowledged within five days of when it was made and normally responded to after an investigation within 10 working days. If a complaint is escalated to stage 2, the Council then says it will normally respond within 20 working days.
22. Our guidance on effective complaint handling for local authorities says while a complaints process should be tailored to consider each complaint on its own merits, Councils should be open and transparent in keeping the complainant updated on timescales for resolving their complaint.

Background

23. Ms X told me her daughter (Miss C) was assigned male at birth and legally transitioned in 2021. She also told me Miss C was living with a mental health condition and these factors made her vulnerable.

What happened

24. The Council carried out a review of Miss C’s EHCP in early December 2021. Miss C was due to transition out of a school setting to a further education (FE) college in the academic year due to start in September 2022.
25. Ms X said the Council was late in telling her it decided to amend Miss C’s EHCP and she returned the proposed amended EHCP to the Council in early February.
26. At the same time, Ms X provided the Council with the relevant document which confirmed Miss C’s legal change of name. Ms X also identified amendments within the EHCP relating to Miss C’s previous name and pronouns.
27. The Council acknowledged Ms X’s suggested amendments and change of name.
28. Ms X contacted the Council in late March to check on progress and when she did not hear back, she then sent it a pre-action letter (judicial review) in early April.
29. The following day, the Council sent out a set of documents including the draft amended EHCP and a cover letter to numerous FE colleges.
30. Ms X then contacted the FE colleges and became aware the Council had sent out documents using Miss C’s assigned at birth name.
31. The cover letter sent by the Council dated in April, under ‘name of pupil’, refers to Miss C using a previous name (Miss C’s birth name). Miss C is repeatedly referred to by that name in the remainder of the letter.
32. Ms X said this confirmed her daughter’s gender transition, to others who may handle the documentation, and who would not need to know this.
33. In mid-May, Ms X wrote to the Council and complained. She said she was concerned her daughter’s private information had not been sensitively handled, and this had occurred because the Council had hurriedly sent out consultations in response to Ms X’s pre-action letter.
34. The Council acknowledged Ms X’s complaint after she followed it up in late-May.
35. After this, Ms X recontacted the Council on six occasions before the Council gave her a substantive update in October. In November, the Council met with Ms X and Miss C to discuss their concerns.
36. In the meeting, Ms X reiterated her complaint about EHCP deadlines. Miss C also highlighted how the disclosure of sensitive information had caused her anxiety.
37. The Council apologised for disclosing sensitive information in the cover letters and told Ms X what steps it had taken to prevent this happening again.
38. The Council also wrote to Miss C and Ms X with a written apology for disclosing sensitive information and for the delays in responding to her complaint.

My findings

Education, health and care plans

39. After the Council has received comments from parents on an amended EHCP, it has a maximum of eight weeks to issue a final EHCP. The Council ought to have issued a final EHCP by late March and Ms X said this did not happen until late April.
40. This is late and was fault. That fault caused an injustice because it will likely have caused Ms X concern about the future education provision for Miss C and delayed Ms X’s appeal right.
41. Ms X raised her concerns about timeliness of Miss C’s EHCP in her meeting with the Council in November. The Council has not provided her with a response to this aspect of her complaint. I have recommended a remedy for this injustice.

Principles of good administrative practice

42. The Council acknowledged Ms X’s suggested amendments in Miss C’s draft EHCP and the legal change of name. It was not fault that the Council did not amend historical documents that pre-date when it was aware of the name change.
43. It was at fault, however, not to have taken care to minimise those who would have access to sensitive information about Miss C, because it unnecessarily used inaccurate information in cover letters.
44. This fault caused Miss C an injustice, because it likely contributed to an anxiety she had about entering further education outside of her previous residential setting. This was partly because she would be unsure of others who were now aware of her previous identity.
45. The Council has apologised to Ms X and Miss C. I have also recommended further actions the Council should now take to fully remedy this injustice.

Corporate complaints procedure

The Council did not comply with its policy in relation to the review stages and timescales. The Council has apologised, and this is an appropriate remedy.

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Agreed action

46. Within six weeks, the Council has agreed to:
• Apologise to Ms X for the delays to finalising Miss C’s EHCP.
• Pay Miss C £200 for the avoidable distress it caused her by sharing sensitive information.
47. Within twelve weeks, the Council has agreed to:
• Confirm the steps it has taken to change its processes for altering names of people who have gone through gender transition.
• Ensure that all staff who may deal with sensitive information about transgender children are adequately trained on how to do so.
• Write to the education providers who received the inaccurate information to tell them that any documents it incorrectly shared with Miss C’s previous name should now be deleted.
48. The Council has agreed to provide us with evidence it has complied with the above actions.

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Final decision

49. There was fault with the Council’s actions.

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Investigator's decision on behalf of the Ombudsman