Summary: The Council gave flawed advice that a transition review to name a post-16 placement would be completed earlier than usual due to the complainant’s anxiety. This raised expectations and caused disappointment and distress when the advice was reversed. The Council will apologise, pay £150 to acknowledge the distress caused, and make service improvements.

The complaint

1. Ms X complains the Council failed to implement an outcome agreed via an internal complaint investigation to name her daughter’s next (post-16) education placement immediately in her Education, Health and Care (EHC) plan.
2. Ms X also complains of delay by the Council taking seven months to issue a final EHC plan after an annual review in January 2022.
3. Ms X says delay and poor communication has caused unnecessary distress to her daughter, who struggles with anxiety and uncertainty.
4. Ms X says she has also been put to additional time and trouble chasing the Council to do what it had promised.
5. Ms X says the fault affected her daughter’s health, levels of anxiety, and as a result her attendance at school.
6. The outcome Ms X sought by bringing her complaint to the Ombudsman was:
• For the Council to acknowledge it failed to issue a final EHC plan naming her daughter’s post-16 placement as promised.
• For the Council to acknowledge it had failed to consult any specialist placements, only mainstream ones, except for her parental preference, when it had acknowledged in 2019 her daughter required a specialist setting.
• For the Council to be ordered to name her preferred placement.
• For the Council to include alternative therapy in her daughter’s EHC plan to address stress-induced migraines.

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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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
9. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)

10. The Ombudsman should not conduct an investigation which might trespass in any way on the jurisdiction of Tribunals. (R V Local Commissioner For Administration for the North and East of England ex parte Bradford Metropolitan City Council [1979] QB 287)

11. 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

12. I have considered information provided by Ms X and the Council including:
• Complaint documents
• The complete file held by the Council’s special educational needs (SEN) team for Ms X’s daughter.
13. I have considered relevant law and statutory guidance about EHC plans and annual reviews.
14. I have considered the Ombudsman’s Guidance on Remedies.
15. I have also spoken to Ms X by telephone.
16. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
17. 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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What I found

Relevant law and guidance

18. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan 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.
19. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
20. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
21. Where a council proposes to amend an EHC plan, the law says 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. (Section 22(2) Special Educational Needs and Disability Regulations 2014)
22. The Act and Regulations do not specify the time period to amend the plan, but in R(L,M and P) v Devon County Council [2022] the Judge found the Regulation which requires the Council to notify the parent of its decision within four weeks of the meeting and the Regulation which sets out the process for amending the plan must be read together. This means Councils must both notify the parent of a decision to amend, and what the proposed changes are, within four weeks of the annual review meeting.
23. 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)
24. The overall period for amending a plan after a review meeting should be no more than twelve weeks.
25. 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.
26. For young people moving from secondary school to a post-16 institution or apprenticeship, the review, and any amendments to the EHC plan, including specifying the post-16 provision and naming the institution, must be completed by 31 March in the calendar year of the transfer. (Section 18(1) Special Educational Needs and Disability Regulations 2014)

Chronology of events

27. The following is a summary of key events. It does not include everything that happened.
28. The Council held an annual review meeting in January 2022 to review Ms X’s daughter’s EHC plan.
29. Ms X complained to the Council it had not advised her of its decision within four weeks of the meeting. The Council acknowledged it had not met this deadline. It upheld the complaint and apologised.
30. The Council notified Ms X of its decision to amend the plan eight weeks after the meeting.
31. The Council issued the amended final plan in July 2022.
32. The Council’s complaint response noted Ms X had raised concerns about the timescale for post-16 transition in a telephone call during the complaint process. Ms X requested a transition review in early September because her daughter was anxious about her post-16 placement. The Council’s complaint officer said they had contacted the SEN team and an early transfer review meeting had been requested.
33. At the transfer review meeting in early September, the SEN officer advised the case would go to panel in mid-September and post-16 consultations begin immediately afterwards. The officer said they would inform Ms X of the panel outcome. Ms X says the officer told her settings would have fifteen days to respond after the case had been to panel.
34. The minutes of the meeting noted that Ms X’s daughter had anxiety, was suffering from migraines and was under consideration for further medication.
35. In September, Ms X chased the Council about the panel outcome as she wanted to arrange a taster session at her parental preference school. The Council replied it was not proposing to consult schools at that time as its approach was to start consultations (for all students) in November and it would invite her to submit her preferences then.
36. Ms X complained the Council was not honouring an agreement to name the post-16 placement early. The Council apologised Ms X had been provided with inaccurate advice at the review meeting but said it would make a placement decision in line with the statutory 31 March 2023 deadline. The Council explained it did not start consultations until November because this allowed for more realistic consultations to take place once predicted grades from mock exams are available. The Council said consultations would go out, including for Ms X’s preference school, that term.
37. The Council did acknowledge due to staff sickness it had failed to update Ms X regarding the panel decision and consultations as originally promised. The Council apologised. The Council was however clear it could not commit to naming a post-16 placement by December as Ms X had requested.
38. A new SEN officer began work amending the EHC plan in October. Ms X says the amended plan should have been finalised within twelve weeks of the September review meeting. The Council did issue an amended plan in December, but this named the current school, not the next placement. Ms X registered an appeal with the SEND Tribunal.
39. Ms X’s parental preference setting offered a place in early December. As this was a residential independent placement the Council continued to consult other local options. The Council informed Ms X in December that its policy was to approach all local provision before residential would be approved.
40. Due to the Christmas holidays some consultation responses were delayed until January.
41. The Council issued an amended final plan naming the parental preference post-16 placement in February 2023. Ms X then withdrew her appeal.

Scope of investigation

42. I have not investigated matters which Ms X appealed to the SEND Tribunal. Ms X initially wanted the Ombudsman to order the Council to name a specific placement and provision. This is not within the Ombudsman’s gift. Our role is to look at administrative matters. As Ms X has used an alternative remedy to the Tribunal about the contents of the EHC plan, including the type of placement, we have no jurisdiction to look at these matters. This applies even though Ms X later withdrew her appeal.
43. I have considered only Ms X’s complaints of delay, flawed advice and poor communication.

Analysis

Fault

44. There was some delay in updating the EHC plan after the January 2022 review. This process should have been completed within twelve weeks. However, as Ms X’s daughter remained in the same placement, I have not seen evidence this delay caused a significant injustice.
45. The Council did agree in July to hold an early review meeting. It did not state at that time this meant a post-16 placement would be named early. However, I find that this was the impression given, because amended EHC plans should be issued within twelve weeks of a review meeting. By holding the review meeting in early September, the Council raised Ms X’s expectations the EHC plan would also be amended to include the post-16 placement within twelve weeks of early September. This did not happen. The plan was reissued in December naming the current pre-16 placement.
46. The Council acknowledged some delay in keeping Ms X informed after the panel due to staff sickness and apologised. I consider an apology is a satisfactory remedy for the injustice caused.
47. At the review meeting in September 2022, a Council officer told Ms X the case would go to panel and then immediately out for consultations, which again raised her expectations.
48. When Ms X complained about delay in consultations, the Council quickly acknowledged the advice given at the meeting was an error. It apologised promptly and corrected its advice to set out the timescale it intended to work to (of 31 March). It was clear with Ms X that it would not consult until November and would not name a placement until it had exhausted local options.
49. Ms X is correct to say the Council did not acknowledge that by calling an early review meeting it had also, by implication, misled her that an amended final EHC plan would be issued naming the next placement shortly thereafter.
50. The Ombudsman cannot interfere with Council policies or decisions where they are made without fault. The Council has given reasons why consultations needed to wait until November and why it had to continue consulting other provision after Ms X’s preference had offered a place. It was entitled to make these decisions. Its error was in its flawed advice, not its approach.
51. I have not found evidence of further poor communication. There was a high level of communication between Ms X and the Council. I find this was largely driven by Ms X and her understandable desire to secure a placement as early as possible. However, much of this correspondence was not necessary to the Council’s work. Its position was that it would name a placement once all local consultations had been completed and this is what it did.

Injustice

52. Between July and September 2022, the Council wrongly raised expectations a post-16 placement would be named earlier than was usually the case. We would not usually recommend a symbolic payment for moderate disappointment or simple inconvenience. However, in this case I am satisfied the impact on Ms X’s daughter did amount to distress. Ms X’s daughter struggled with anxiety and related migraines, which was the reason why Ms X wanted the placement named early. I am therefore satisfied that a symbolic remedy payment by the Council to acknowledge the distress caused is merited. It is however too speculative to say Ms X’s daughter’s health and school attendance were affected by the distress from the flawed advice, rather than other factors.
53. I find that once the Council had corrected its error and apologised, it was not responsible for Ms X’s time and trouble in continuing to raise the matter. This was largely Ms X’s choice.

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Agreed action

Within four weeks of my final decision:

54. The Council will apologise to Ms X and her daughter again to acknowledge the period of raised expectations was from July to September and not just after the meeting in September.
55. The Council will pay Ms X’s daughter a symbolic payment of £150 to acknowledge the frustration, distress and disappointment caused by the flawed advice.
56. The Council will share learning from this complaint with its SEN staff so that early reviews are only offered in appropriate circumstances and where there is a genuine intention to complete the review (which includes follow up actions) within a faster timeframe. While it may be appropriate to hold early meetings about transition to explore options, staff should be careful not to raise expectations that decisions about placement will be made outside the Council’s usual timescale.

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Final decision

57. I have completed my investigation. There was some delay and flawed advice which led to frustration and raised expectations. I am satisfied the agreed actions set out above represent a satisfactory remedy for the injustice caused. The complaint is upheld.

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Investigator's decision on behalf of the Ombudsman