Summary: Mrs X complained the Council failed to finalise her daughter’s Education, Health and Care plan before she started secondary school. She said the Council also delayed putting funding in place for the school to recruit a teaching assistant for her daughter. The Council was at fault for poor communication and for failing to finalise Y’s EHC plan and funding before she started secondary school.

The complaint

1. Mrs X complained the Council failed to finalise her daughter’s (who I will call Y) Education, Health and Care (EHC) plan before Y started secondary school. The Council also delayed putting funding in place for the school to recruit a teaching assistant for Y.
2. Mrs X said she received proposed amendments to Y’s EHC plan from the Council in July 2022. She had questions, which she sent to the caseworker, but they did not respond.
3. Mrs X said Y missed a dedicated teaching assistant for a month (between September and October 2022), and missed out on the school’s first choice candidate.

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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. 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)
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. As part of the investigation, I considered the complaint and the information Mrs X provided.
8. I made written enquiries of the Council and considered its response along with relevant law and guidance.
9. Mrs 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

Legislation and guidance

10. A child with special educational needs may have an 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.
11. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.

Reviews

12. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
13. 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)
14. 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 within four weeks of the annual review meeting. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
15. 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)

Key transfers

16. 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. 

What happened

17. Y is hearing impaired. As a result, her expressive and receptive language is delayed. She will often mishear, misunderstand, and misinterpret language. At primary school, Y had input from the sensory support service for four sessions a week. This was a combination of individual and one to two sessions. She received band 4 funding from the Council as part of her EHC plan.
18. The Council issued an amended EHC plan for Y in February 2022. The plan was to reflect Y starting secondary school in September. However, the level of provision and funding remained the same.
19. The Council held a review of Y’s EHC plan on 17 June 2022 due to concerns about level of support needed. At the meeting, participants discussed amending Y’s EHC plan to reflect her current needs. This included one to one support from a teacher of the deaf, and full in class support from a teaching assistant.
20. The secondary school contacted the Council on 23 June 2022. It noted Y received band 4 funding, but she would need almost 100% support when she started secondary school. It said Y’s funding will need to reflect this.
21. The Council said it was waiting to receive post-review paperwork from Y’s primary school so it could amend her EHC plan. It said it would chase this up as it must respond to the review within four weeks (by 15 July 2022). It also said the secondary school will need to submit a costed provision map, specifying the support it will put in place.
22. The secondary school sent a provision map to the Council on 5 July 2022. The Council noted the costs were significantly higher than the band 4 funding Y was receiving.
23. The Council wrote to Mrs X on 7 July 2022 confirming its intention to amend Y’s EHC plan.
24. The secondary school emailed the Council on 18 July 2022. It said it had lined up a teaching assistant for Y but cannot employ them without knowing the Council will agree the funding. It needed to give an answer before the school term ended, or they would lose them. The secondary school also said Mrs X received an amended EHC plan for Y still showing band 4 funding.
25. The caseworker at the Council said they were awaiting approval of funding from a senior manager. The caseworker also said Y’s draft EHC plan had been amended and awaited proof reading. It would be sent to the family to review that week.
26. Mrs X complained to the Council on 12 September 2022. She said Y’s year 6 review was brought forward to June 2022 as her earlier EHC plan did not reflect her support needs for secondary school. Mrs X received amendments on 15 July but did not understand them, so she emailed the caseworker for help. She got no reply, so she emailed the Council’s Special Educational Needs and Disability (SEND) team. She still got no reply. Mrs X said Y was now in secondary school without her new EHC plan and without funding for the support she needs.
27. The secondary school contacted the Council on 13 September 2022. It was concerned funding was not yet in place for Y. The Council said it would be in touch with an update as soon as possible.
28. The secondary school chased the Council for an update on 29 September 2022.
29. The Council agreed increased funding for Y’s secondary school on 4 October 2022. It backdated the funding to the start of term in September.
30. The Council sent its complaint response on 12 October 2022. It said it was about to issue Y’s draft EHC plan and it had awarded her a bespoke funding package. It apologised for the time taken to reach this point. It said the school provided a costed provision map, and the SEND team should have acted on this more quickly.
31. The Council issued Y’s draft amended EHC plan on 12 October 2022.
32. Following comments from Mrs X, the Council issued a further draft amended EHC plan on 10 November 2022.
33. Mrs X asked her local MP to contact the Council on 11 January 2023 as, despite the upheld complaint about poor communication, she was still not getting responses from the Council. She said she emailed a Council casework manager on 9 December 2022 about amendments, then sent a further email on 16 December but did not receive a reply.
34. A senior Council officer emailed Mrs X on 24 February 2023, following their meeting the day before. They said they would get back to Mrs X about the information she sent.
35. The senior officer issued a further amended draft EHC plan on 14 March 2023. Mrs X thanked them for the changes and confirmed the plan could be finalised on 28 March 2023.

My investigation

36. Mrs X told me she was quite satisfied with the Council’s final complaint response. She is happy with final EHC plan, but she does not feel this resolves her complaint. She would like an explanation for why the Council ignored her emails between July and October 2022 and then again in December 2022. Mrs X wants the Council to make changes so others are not affected.
37. In terms of Y’s education, Mrs X told me the school identified a candidate to support Y before she started school in September 2022. Despite chasing the caseworker, the school did not hear back about funding and had to let the candidate go. The school received funding on 5 October 2022, by which time the most suitable candidates were already in placements.
38. Mrs X said the school found a very good candidate, but had to let them go due to other commitments. The school found a new teaching assistant, but there were issues with the support, and they had to let them go as well. Mrs X said things are going well with the current teaching assistant, which is her Y’s third of the school year.
39. Mrs X believes if Y’s EHC plan and funding were in place from the start of the academic year, she could have progressed more than she has.
40. The Council told me it issued Y’s amended plan on 10 February 2022 with £6,587 funding per year. It held a review on 7 June 2022 due to concerns about the level of support Y needed. The Council issued a letter on 7 July 2022 confirming its intention to issue a draft amended plan. However, it failed to do so before Y started secondary school. The school received funding from the Council in time for the start of term in September, but not enough. The Council agreed more funding on 4 October 2022 and backdated this. Unfortunately, due to the delay with funding, the school could not commit to employing a suitably experienced teaching assistant they had found.
41. The Council said it reviewed Y’s file when Mrs X complained. It concluded there was a lack of communication during July 2022 and the caseworker failed to respond to queries about the draft plan. The Council could not give reasons because the caseworker is on long term illness.
42. The Council said caseworkers now have regular timetabled supervision to mitigate the risk of this happening again.
43. The Council has also revised its Special Education Needs communication protocol, invested in new staff, produced a comprehensive induction plan, and a rolling programme of internal training and development.
44. In addition, the Council started an internal review of its SEND team, looking at capacity, roles and responsibilities, systems and processes, and work location. The report will inform its continual improvement.
45. The Council acknowledged delays agreeing a funding package with the school, which were unnecessary and avoidable. It apologised for any stress or anxiety this caused. It said, in accordance with revised working practices, it has assigned Y a dedicated case officer.

Analysis

46. While the Council did recognise the importance of finalising the EHC plan by February in advance of Y going to secondary school (which it did), the plan itself did not reflect her needs in a secondary school setting. It therefore had to be amended.
47. Following the review on 17 June, the Council wrote to Mrs X on 7 July confirming its intention to amend Y’s plan. That was within four weeks, in line with the relevant legislation. However, the Council should have issued Y’s amended EHC plan within eight weeks, or by 12 August. Its failure to do so was fault.
48. The Council sent a draft amended plan on 12 October 2022. More changes were needed, and the final plan was eventually agreed in March 2023. The Council was aware this was a key transfer for Y. It should have done more to maintain proper oversight of her EHC plan. Instead, it took a formal complaint and intervention from a senior manager to correct things.
49. However, while the Council did not finalise Y’s EHC plan until March 2023, it did agree increased funding with her secondary school in October 2022. That meant Y’s provision was in place from then. I still consider that took too long. The school gave the Council details of costs in July, and I have not seen evidence the school held up the process. I saw evidence the school chased the Council, stressing the importance of making a decision quickly so it could employ a teaching assistant it found for Y.
50. The Council has acknowledged the caseworker’s communication was poor, and the EHC plan and funding were not finalised in time for the start of the first school term in September. That was fault. This will have caused Mrs X worry and frustration, particularly at such an important transitional time in Y’s education, when she was about to start secondary school.
51. Mrs X said Y missed a dedicated teaching assistant for a month, and also missed out on the school’s first choice candidate.
52. The Council has acknowledged its delays meant the school could not secure the first candidate. Again, this will have caused Mrs X worry and frustration. However, I cannot say whether Y’s provision would be different or better if the school had secured its first choice candidate.
53. In summary, the Council has accepted it was at fault. It accepted the amended plan, and funding, were not in place when Y started secondary school. The Council also accepted the caseworker failed to respond to Mrs X.
54. Unfortunately, I cannot say why the Council, at times, did not respond to Mrs X. It could have been an oversight, or due to workload demands.
55. On the evidence seen, I am satisfied the Council took Mrs X’s complaint seriously and properly considered how it could improve. The Council provided me with details about the reviews it carried out and about new procedures in place to ensure staff are better trained and have more supervision and oversight to reduce the chance of similar issues happening again. The Council also confirmed some tangible improvements in terms of meeting assessment deadlines. I have therefore not made any service improvement recommendations to the Council, as I am satisfied it has taken matters in hand.

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Agreed action

56. Within four weeks of my final decision the Council will:
• Apologise to Mrs X for its poor communication, and for its failure to finalise Y’s EHC plan and funding before she started secondary school.
• Pay Mrs X £200 to recognise the avoidable distress these failings caused.
• Pay Mrs X £300, for the benefit of Y, for the one month missed teaching assistant provision.
57. The Council should provide us with evidence it has complied with the above actions.

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Final decision

58. I have completed my investigation. The Council was at fault for poor communication and for failing to finalise Y’s EHC plan and funding before she started secondary school.

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Investigator's decision on behalf of the Ombudsman