London Borough of Croydon (22 009 164)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 26 Apr 2023

The complaint
What I have and have not investigated
The Ombudsman’s role and powers
How I considered this complaint
What I found
Agreed action
Final decision

The Ombudsman's final decision:

Summary: We find the Council at fault for its failings to follow the Annual Review and Education Health and Care (EHC) needs reassessment timescales for the complainant’s (Mrs X) son (Y), its failings within Y’s key stage transfer and the way it handled Mrs X’s complaints. These faults caused Y and Mrs X injustice. The Council agreed to issue Y’s final Education Health and Care Plan (EHCP), apologise, make payments to recognise negative impact of the Council’s failings on Y’s education and make payments for Mrs X for distress and time and trouble spent on chasing up the Council’s responses. The Council also agreed some service improvements.

The complaint

Mrs X says the Council failed to:

Send her an amended EHCP for Y following the Annual Review in October 2021;
Adhere to the timescales for the key stage transfer;
Consult with schools of her preference during the key stage transfer.

Mrs X says the Council’s failings caused:

For Y - lack of progress and increased anxiety as well as toileting issues and difficulties with sleeping;
For Mrs X – delay in resolving contentious issues as she could not appeal, distress.

What I have and have not investigated

I have not investigated the content of any amendments proposed and made by the Council to Y’s EHCP as part of the EHCP reviews and key stage two transfer, including the school named in Section I of Y’s EHCP, as this can be appealed to the Tribunal.

The Ombudsman’s role and powers

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)
The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
The Ombudsman’s remit does not extend to making decisions on whether or not a body in jurisdiction has breached the Human Rights Act – this can only be done by the courts. But the Ombudsman can make decisions about whether or not a body in jurisdiction has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.
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)
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.

How I considered this complaint

I spoke with Mrs X and considered the information she provided.
I made enquiries with the Council and considered the information it provided.
I reviewed the Council’s Complaint Policy.
Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

What I found

Legal and administrative framework

Reviews

The Council’s duties on EHCP Annual Reviews are specified in Special Educational Needs and Disability Regulations 2014:

Councils must review an EHCP at least every 12 months;
Within two weeks of the review meeting the school must provide a report to the council with any recommended amendments;
Within four weeks of the meeting, the council must decide whether it will keep the EHCP as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school. If it needs to amend the plan, the council should start the process of amendment without delay;
Where a council proposes to amend an EHC plan, it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. The council must give the parents at least 15 days to give views on the proposed amendments;
When the parent suggests changes that the council agrees, it should amend the plan and issue the final EHCP as quickly as possible;
Where the council does not agree the suggested changes it may still issue the final EHCP;
In any event the council should issue a final EHCP to the parent and any school named within 8 weeks of sending proposed amendments to the parents or young person. It must also notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so. (SEND Regulations 2014 regulations 18-22)

There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. 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 EHC Plan has been issued.

Key stage transfers

An EHCP must be reviewed and amended in sufficient time prior to a child 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. (Statutory Guidance ‘Special educational needs and disability code of practice: 0-25 years’, 2015 paragraph 9.179)
When proposing to amend the child’s EHCP as part of the key stage transfer process the local authority must give the parent notice of their right to request a particular school or other institution specified in Children and Families Act 2014 Section 38 (3) to be named in the plan. The local authority must consult with the governing body, proprietor or principal of the school or other institution. (Children and Families Act 2014 Sections 38(2)(b)(ii) and 39(2))

EHC needs reassessment

Once a decision to carry out an reassessment has been taken the process is the same as for the first EHC needs assessment and drawing up of the EHC plan with the same timescales and rights of appeal. (Statutory guidance Special educational needs and disability Code of Practice: 0 to 25 years paragraph 9.191)

Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:

where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;
the process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable;
the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply); and
councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.

What happened

Background

Y has Autistic Spectrum Disorder (ASD), speech and communication difficulties and sensory difficulties. For the last few years he has attended a specialist unit attached to the mainstream school (School 1). In September 2022 he moved to the junior part of the school.
Since 2019 Y has had an EHCP. It was amended in February 2021.
Y has been receiving privately funded Speech and Language therapy (SLT) outside school since he was two.

Annual Reviews and key stage transfer

In the beginning of October 2021, when Y was in Year 2, the Annual Review was held for him. Y’s parents were concerned about the lack of satisfactory support for his speech and communication difficulties at School 1, which was his main barrier to learning. At the review meeting the Council agreed School 1 could not meet Y’s special educational needs (SEN). There were some amendments proposed to Y’s EHCP.
Mrs X asked the Council to consult with a special academy (School 2) for a place for Y from September 2022.
The Council consulted with School 2 for a place for Y in the second week of April 2022. After chasing School 2 the Council finally received its response in mid-July. School 2 said it could not offer a place as it was full.
In the second week of June 2022 the Council sent proposed amendments to Y’s EHCP to Mrs X. The Council issued Y’s final EHCP in the first week of September 2022 with School 1 named in Section I of the plan, however failed to send it to Y’s parents.
In the end of September 2022 Mrs X contacted the Council as she still did not receive a final EHCP for Y. She asked for the result of the consultation with School 2 and for the Council to consult also with another special academy (School 3).
In the beginning of October 2022 the Council carried out further school consultations with:

School 2 – response received in late November – the school was full and could not meet Y’s SEN;
School 3 – response received in the second week of October - could not meet Y’s SEN and full;
Two other special schools – could not offer a place as they were full;
Independent special school – did not offer a place.

The Council said when sending school consultation letters it also provided the schools with Y’s EHCP, the most recent reports and review documentation.
One day after sending school consultations the Occupational Therapy (OT) report was issued for Y. A week later a National Healthcare Service (NHS) Speech and Language Therapist (SLT) prepared a new report for Y’s Annual Review. It recommended increase in SLT provision for Y.
In the second week of October Mrs X received Y’s final EHCP issued in September.
Y’s Annual Review meeting took place in the third week of October 2022. Mrs X said she visited School 2 and School 3 and thought they were both suitable. The Council said it would send again consultation letters to these schools once Y’s EHCP was amended following the Annual Review. Mrs X asked for the Council to carry out Y’s EHC needs reassessment.
In November Y’s private SLT prepared an updated report, recommending increased package of support.
Following the Annual Review in October 2022 and Y’s needs reassessment, the Council sent Y’s parents proposed amendments to his EHCP in the second week of February 2023. The Council amended the plan using some of the finding of the private SLT report of November 2022 and included this document in Section K of Y’s EHCP.
In the beginning of March 2023 Mrs X told us she still did not receive a final EHCP for Y. She was still waiting for School 2’s opinion on its suitability for Y following Y’s observation in School 1.

Complaint process

In the beginning of June 2022 Mrs X complained to the Council about its failure to consult with the school of her preference and amend Y’s EHCP as part of the key stage transfer.
Having received no response Mrs X wrote to the Council again a month later. She raised the following issues:

The Council’s failure to involve her in the EHCP process;
Missed deadlines following the Annual Review in October 2021 and within the key stage transfer process;
Failure to issue a final EHCP after the Annual Review in October 2021, which deprived her of her appeal rights.

In the beginning of August and September Mrs X asked the Council for the updates on her complaint. In response to Mrs X’s email at the end of September the Council explained Y’s EHCP coordinator had been away for some time which posed some difficulties in finding out what had happened. The Council confirmed it sent proposed amendments to Y’s EHCP in June but did not follow this up. It undertook to consult with School 3 and provided Mrs X with the form for listing her amendments to Y’s EHCP. The Council closed Mrs X’s complaint.
In the beginning of October Mrs X contacted the Director of Children’s Services telling them of the lack of a final EHCP for Y and pointing out she was considering a judicial review.
The Council responded to Mrs X’s complaint in mid-November stating:

Its agreement for an Educational Psychologist (EP) to assess Y;
It was aware Y’s EHCP needed updating. This would happen once the EP advice and Annual Review reports were received;
It would consider asking School 2 to watch Y in School 1 to find out its suitability, however School 2 pointed out it was full.

Not satisfied with the Council’s response in the beginning of January 2023 Mrs X asked for her complaint to be considered at stage two.
In mid-February the Council apologised for the delay in providing its stage two response. The Council:

Accepted there were delays with school consultations as part of Y’s key stage transfer;
Recognised the EHCP sent during the key stage transfer consultations was outdated, but insisted it provided the schools with the up-to-date information on Y’s SEN;
Accepted there were delays after Y’s Annual Reviews in October 2021 and October 2022;
Offered a remedy payment of £100 for its failings within consultation with School 2 and £100 for the delays after Y’s Annual Reviews.

Analysis

Annual Review in October 2021 and key stage transfer

When reviewing Y’s EHCP in October 2021 the Council failed to:

Issue a letter within four weeks from the review meeting with the Council’s position on amending Y’s EHCP;
send to the parents proposed amendments to Y’s EHCP without delay;
issue a final EHCP within eight weeks from the date of sending to Mrs X proposed amendments to Y’s EHCP, i.e. by the beginning of August 2022;
consult with the school of parental preference for Y’s key stage two transfer;
complete key stage two transfer process and amend Y’s EHCP by 15 February 2022.

The Council’s failings listed in the paragraph above amount to fault. Some of them caused Mrs X and Y injustice. In particular:

The main injustice caused by the Council’s delays in proposing amendments to Y’s EHCP and finalising his EHCP as well as its failure to comply with the timescale for the key stage two transfer was depriving Mrs X of the possibility to exercise her appeal rights. This caused uncertainty and distress. Although School 2, which was parental preference for the key stage two placement for Y stated, when eventually consulted, it could not meet Y’s SEN, Mrs X did not have a chance to challenge the Council’s position when it refused to name School 2 in Y’s EHCP;
The Council’s failing to consult with the schools at the right time and comply with the timescales for the key stage two transfer caused injustice to Y and Mrs X by creating uncertainty about his education. During the Annual Review in October 2021 the Council agreed with the parents School 1 could not meet Y’s SEN. When failing to consult with alternative placement for Y’s key stage two the Council risked its chances of finding a suitable placement for Y. Two of the schools consulted by the Council in the autumn of 2022 did not offer Y a place stating they were full. If consulted before 15 February 2022 deadline, their position on the place available for Y might have been different;
Although for the reasons explained in paragraph five of this decision we cannot comment on the suitability of School 1 for Y, when considering injustice caused to Y and Mrs X by the Council’s failings it is important to recognise the overall agreement recorded during the meeting in October 2021 School 1 could not meet Y’s SEN. Any delays with consulting alternative placements and finalising Y’s EHCP while not addressing School 1’s difficulties in meeting Y’s SEN would, therefore, have negative impact on Y’s education and development. In view of worsening in Y’s anxiety, his toileting problems and sleeping difficulties, on balance of probabilities I find the Council’s failings to appropriately address his SEN contributed to this.

The Council’s failing to issue a letter with its position on the amendments to Y’s EHCP did not cause injustice as the Council expressed its intent to amend Y’s EHCP during the Annual Review meeting in October 2022 and Mrs X was aware of its position.
By not consulting at the right time with the school of parental preference for Y’s key stage two transfer, the Council failed to show it had due regard to Mrs X’s right to educate Y in accordance with her wishes under the Human Rights legislation.

Annual Review in October 2022 and EHC needs reassessment

During Annual Review in October 2022 Mrs X expressed her concerns about changes in Y’s SEN and asked the Council to reassess his needs. In mid-November, when responding to Mrs X’s complaint, the Council agreed to carry out reassessment of Y’s SEN. Therefore the final EHCP for Y following the reassessment of his needs should have been issued by the end of the third week of February.
Although the Council issued a draft EHCP in the beginning of February 2023, it failed to issue a final EHCP which is fault. In its response to Mrs X’s complaint of mid-February 2023 the Council apologised for the delays to the process following Annual Reviews in October 2021 and October 2022, however failed to put right the situation by completing the reassessment started in November 2022. This caused Mrs X further injustice by delaying again her appeal rights and increasing her frustration she could not challenge the Council’s position on Y’s placement. Considering 15 February 2022 as the date by which Y’s EHCP should have been amended and the key stage transfer process completed, due to the Council’s failings Mrs X could not in practice exercise her appeal rights for nearly 14 months.

Complaint handling

According to the Council’s corporate complaint policy the Council has 20 days to respond to the complainants at each stage. For many months the Council failed to respond to Mrs X’s complaint first lodged in June 2022. At the end of September it closed the case. Only after many emails from Mrs X and her correspondence with the Director of Children’s Services, the Council finally responded to her complaint in mid-November 2022.
The Council’s failure to address Mrs X’s concerns at stage one of the complaint process for many months is fault. It caused her injustice as was very distressing for her. She spent much time contacting the Council without any response and had to seek ways of escalating her complaint.
It took the Council over five weeks to respond to Mrs X’s stage two complaint. Although the Council exceeded 20 days when responding to stage two of Mrs X’s complaint, its delay was not significant enough to cause any injustice.

Agreed action

To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:

Apologise to Mrs X and Y for the injustice caused to them by the faults identified;
Pay Mrs X £200 a month to recognise the negative impact of the delays within the key stage transfer process, Annual Reviews and reassessment of Y’s needs. The total the Council should pay is £2000 for the period of 14 months from the mid-February 2022 till the mid-April 2023, excluding four months for summer holidays, half-terms, Christmas and Easter breaks;
Pay Mrs X £500 to recognise distress caused to her by the Council’s failing within its complaint process and to communicate with her effectively;
Pay Mrs X £300 to recognise time and trouble spent chasing up the Council’s response to her complaints.

The Council will provide the evidence that this has happened.

To remedy the injustice caused by the faults identified, we recommend the Council issue within two weeks of the final decision Y’s final EHCP amended following the reassessment of his needs with the advice on Mrs X’s rights to appeal.
We also recommend the Council within three months of the final decision:

Consider making improvements in monitoring Annual Reviews timescales by aiming at sending proposed amendments to EHCPs four weeks from the date of the Annual Review meeting and implementing checks whether the process has been completed within twelve weeks from the date of the meeting ;
Remind the front-line SEN staff of the details of the Council’s corporate complaints policy and in particular what constitutes a complaint, which should be passed to the complaints team and responded in line with the Council’s policy.