Summary: Miss Y complained about the way the Council dealt with her child, Z’s education and Education Health and Care Plan. We have found fault by the Council, causing injustice, in failing to: properly consider alternative provision for Z in May 2022; complete Z’s transition review within the statutory timescales; and communicate about the amended EHC Plan. And with its poor complaint handling process and SENDIASS service failure. The Council has agreed to remedy this injustice by apologising, making a payment to recognise Miss Y and Z’s distress and service improvements.

The complaint

1. The complainant, Miss Y, complains about the way the Council dealt with her child, Z’s education and special educational needs provision, Education Health and Care needs assessment and Education, Health and Care Plan process. She says the Council failed to:
1. provide Z with a suitable education from January 2022, when they were no longer able to attend school, until March 2023;
2. issue an Education Heath and Care (EHC) Plan which was fit for purpose and in accordance with the law and statutory guidance;
3. complete Z’s transition review and issue a final EHC Plan naming their placement within the statutory timescale (by 15 February 2023); and
4. respond to her complaints within the required timescales and provide an adequate response.
2. Miss Y also complains the Council’s Special Educational Needs and Disabilities Information and Advice Service (SENDIASS) failed to support her to review and amend the first draft EHC Plan issued in August 2022. She had to pay a private consultant to do this.
3. Miss Y says:
1. because of the Council’s failures and delays:

• Z missed out on their education; and
• she was caused avoidable additional stress, upset, and additional time redrafting the EHC Plan and raising her concerns with the Council.
2. the Council’s offer of £250 for the poor complaint handling does not reflect the extent of upset and stress its failures have caused her. She also wants the Council to pay redress for the impact on Z of the missed education and the private consultant’s costs.

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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.
5. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. 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)
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

8. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)

Appeal rights

9. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
10. There is a right of appeal to the SEND Tribunal against the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified.
11. I have not investigated Miss Y’s complaint about the parts of the final EHC Plan issued in October 2022 for which she had a right of appeal to the Tribunal - the content of Sections B, F and I. And as Section E (outcomes) is linked to Sections B and F (needs and provision) a Tribunal can order consequential changes to outcomes to fit any changes it makes to needs and provision
12. I have investigated Miss Y’s complaint about the failure to name a school or type of school in the EHC Plan issued in February 2023. The Council promptly agreed to consult with schools and issue a further EHC Plan naming the school or type of school. So I consider it unreasonable to expect her to have used her right to appeal about this.

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How I considered this complaint

13. I spoke to Miss Y, made enquiries of the Council, and read the information Miss Y and the Council provided about the complaint.
14. I invited Miss Y and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

What should have happened

Special educational needs

15. A child with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and arrangements for meeting them.

The Education, Health and Care needs assessment process

16. The process for carrying out Education Health and Care (EHC) needs assessments and producing EHC Plans. Is set out in the Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’).
17. The Code says the following: 

• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks.
• 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. 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
• If the council goes on to issue an EHC Plan, 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).

Review of an EHC Plan before a key transfer

18. The council must review and amend an EHC Plan in enough time before a child or young person moves between key phases of education. This allows planning for and, where necessary, commissioning of support and provision at the new institution.
19. Where necessary the EHC Plan must be amended so that it names the school, or type of school or institution which the child will attend following the transfer. (Special Educational Needs and Disability Regulations 2014 regulation 18)
20. The Council must:
1. provide the child’s parent with notice of their right to request it secure that a particular school is named in the plan; and
2. give them at least 15 days from when the draft plan is served in which to:

• make representations about the content of the draft plan;
• request that a particular school is named in the plan; and
• request a meeting if they wish to make representations orally.

21. The review and any amendments must be completed by 15 February in the calendar year in which the child is due to transfer from primary school to secondary school.

Alternative provision

22. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
23. Suitable education means efficient education suitable to a child’s age, ability and aptitude and any special educational needs they may have. (Education Act 1996, section 19(6))
24. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)

Special educational needs & disability information advice and support

25. Councils must arrange for children and young people with special educational needs and disabilities, and their parents to be provided with information and advice about matters relating to their SEN or disabilities. This service (SENDIASS) must provide free impartial, confidential and accurate information, advice and support. (SEND Code of Practice 2014)

Trafford SENDIASS

26. The Council’s SENDIASS published service offer says this includes:

• assistance with understanding of policies and procedures;
• help with understanding and exercise of rights;
• help to prepare for meetings and accompany service users unable to advocate for themselves; and
• reviewing documents and forms completed by service users (eg EHC needs assessments requests, draft and final EHC Plans).

Council’s complaints procedure

27. The Council’s published complaints procedure has the following stages:

• Stage 1: a response should be issued within 20 working days from when the Council receives the complaint. If it is not resolved at Stage 1, the complaint can be progressed to Stage 2; and
• Stage 2: a final response should be issued within 10 working days of the complaint progressing to Stage 2.

What happened

28. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.

Complaint background

29. Z had been at their mainstream primary school for a number of years. Miss Y had concerns about Z’s anxiety being a barrier to school attendance and support for this from the school.
30. Z stopped attending school in January 2022. Miss Y said school had become too much for Z because of their anxiety.

January to April 2022

31. The school held a meeting with Miss Y and an Educational Psychologist (EP) to discuss a plan to help Z return to school. The EP’s report said Z’s high level of anxiety was impacting their attendance at school, Z was currently on a reduced timetable to help with this and set out strategies for the school and Miss Y to use to support Z’s return to school.

May 2022: Request for an Education, Health and Care needs assessment

32. On 4 May Miss Y asked the Council to carry out an Education Health and Care (EHC) needs assessment for Z. Miss Y says she told the Council in her request Z stopped attending school in January.
33. The school completed its response to the request on 16 June. It told the Council:

• Z had missed a substantial amount of in-school learning and had not been taught by their class teacher since the end of the autumn term 2021;
• high levels of anxiety were affecting their school attendance; and.
• Z was now struggling to access learning at home.

34. The Council told Miss Y on 16 June it would assess Z’s EHC needs.

August 2022: Decision to issue an EHC Plan

35. The Council decided, on 17 August, to issue an EHC Plan for Z.
36. It sent Miss Y the draft EHC Plan on 26 August, together with the EP, paediatrician and school reports.

September 2022: Miss Y’s complaint about the draft EHC Plan

37. Miss Y was unhappy with what was said in the Plan and the way it was set out. She complained to the Council and said she:

• did not agree with the content of the draft plan. It was not of sufficient quality and did not follow the SEND code of practice;
• was unhappy with quality of reports on which it was based, and that there were no sensory or speech and language assessments; and
• had been told the final plan would be issued on 20 September to comply with the statutory timescales. But this did not give her enough time to obtain any further information needed and submit her comments.

38. She said she knew she had the right to appeal the content of the plan but didn’t want any delays with Z’s provision at this stage (as they were due to transfer to high school in September 2023).
39. Miss Y also asked about alternative provision the Council arranged for children who could not attend school.

Miss Y’s complaint about SENDIASS

40. Miss Y also complained to the Council about SENDIASS’s response to her request for support with her comments on the draft EHC plan. She said:

• she had asked SENDIASS for help with the draft plan at the end of August. It told her she would have to suggest any amendments herself;
• a local SEN support group contacted SENDIASS on her behalf about her request for help with amendments to the plan but received no response; and
• she had to pay a private consultant to help her with amendments to the plan.

October 2022: Final EHC Plan

41. The Council agreed to allow Miss Y further time, to 6 October, to submit her comments and amendments to the draft plan.
42. It then issued Z’s final EHC Plan on 6 October and told her about her right to appeal to the SEND Tribunal.
43. Miss Y was unhappy with the final version of Z’s EHC Plan. The Council had some discussion with her about this.
44. In its response on 11 October the Council explained why it had finalised this version of the EHC Plan and said;

• now the plan was finalised, Miss Y could either accept or challenge its decision. Information about the Tribunal process was included in the covering letter sent with the Plan; and
• she could discuss the Plan further with a manager or through the mediation process but it could not predict whether any changes might be agreed.

November 2022: Council’s response to Miss Y’s complaint

45. In its response to Miss Y’s complaint the Council said:

• it understood there had been some contact and discussion about her proposed amendments to the draft plan;
• SENDIASS currently had reduced capacity, but their role is to offer guidance only, and not to redraft a plan; and
• if it was felt further needs assessments were required, an early annual review could be arranged and considered then.

46. Miss Y told the Council she was not satisfied with its response and asked about the next stage.

December 2022: Transition Review meeting

47. The Council held a transition review meeting about Z’s EHC Plan on 8 December. Z was due to move from primary to secondary education in September 2023. The Council confirmed Z’s final EHC Plan naming their placement had to be issued by 15 February 2023.
48. The notes of the meeting recorded:

• Z had been attending school on a reduced hours timetable since September as agreed with Miss Y;
• Z would benefit from a gradual transition to secondary school during the summer term; and
• there was some discussion about the type of secondary school suitable for Z. The Council did not refer to any particular schools. Miss Y suggested a small independent mainstream school.

49. SENDIASS attended the review meeting with Miss Y. It contacted the Council following the meeting and said it would be supporting Miss Y with the amendments to the EHC Plan.

December 2022/January 2023: Contact about amendments to the EHC Plan

50. Miss Y had meetings with a manager about her concerns with Z’s EHC Plan. She also shared details of two small independent schools she thought might be suitable for Z.
51. The manager told Miss Y they would share her concerns with the caseworker and ask to see the amended version following the transition review.
52. The Council’s records say a SEN caseworker held a co-production meeting with the EP about Z’s EHC Plan. Miss Y was not included in this meeting.

February 2023: The final amended EHC Plan

53. Miss Y told the Council Z had now been diagnosed with Autistic Spectrum Condition. She asked what was happening with the amendments to Z’s Plan and the deadline of 15 February for the final EHC Plan naming Z’s secondary school.
54. The Council sent Z’s final amended EHC Plan to Miss Y on 15 February, with notice of her right to appeal to the SEND Tribunal. The Plan did not name Z’s secondary school placement for September 2023.
55. Miss Y told the Council she had not seen this version of the plan before. She had not appealed the first plan because she thought it would be completely re-written after the transition review. This had not been done and the Plan should be re-written now.

February/March 2023: Miss Y’s further complaint

56. Miss Y complained again to the Council. She raised her initial concerns about the first EHC Plan and the delays and issues with the transition review process.
57. The Council acknowledged her complaint. It offered her a meeting to discuss her complaint. Miss Y declined this offer and asked for a written response within its complaint handling timescales.
58. Miss Y also contacted us about her complaint. We asked the Council to issue its response to Miss Y’s complaint.

March 2023: Draft amended EHC Plan

59. The Council sent Miss Y a draft amended EHC Plan on 20 March. It told her the 15-day consultation period ended on 4 April. And it would name Z’s secondary school placement in the final plan.
60. Miss Y told the Council she was going through the draft plan and asked it not to issue the final plan until she had confirmed she was satisfied with this.

April to June 2023: Discussions about the draft plan and Z’s placement

61. Miss Y made comments about the draft plan. And SENDIASS asked the Council not to finalise the plan until it had had the chance to discuss it with Miss Y.
62. In May the Council proposed consulting with Schools A & B as possible placements for Z. Miss Y was unhappy about this. She said she had visited these schools and did not consider they were suitable for Z. She asked the Council to consult with School C.
63. In June Miss Y told the Council she had been advised it was too late to apply for a place for Z at School C as it had completed its admission process and was now full. She asked the Council to consult with School D.
64. The Council consulted with School D about a place for Z for September 2023.

August 2023: Issue of Z’s final amended EHC Plan

65. The Council issued Z’s final amended EHC Plan on 1 August naming their placement for September 2023 as School D – other independent school. It sent this to Miss Y and told her about her appeal rights.

Council’s final response to Miss Y’s complaints

66. The Council said in its July 2023 stage 2 response to her complaints it had failed to:

• provide Z with an adequate education It did not know about Z’s absence from school until January 2023. It understood Miss Y and the school had agreed a part-time timetable and pastoral support plan for Z. 1:1 support had been provided and Z had attended virtually full-time this year;
• undertake EHC needs assessment adequately It had completed this properly within the timescale with time for her to consider the draft plan;
• consider parent and child views It had worked with her to consider her views and proposed amendments. It had agreed 1:1 support; and
• detail provision and name a placement by the deadline of 15th February 2023 It accepted there was some delay following the transition review due to officer illness and the placement wasn’t named by 15 February. This was due in part to the Council trying to ensure Miss Y agreed with the placement.

67. It accepted her initial (Stage 1) complaints to the Council had not been fully addressed at the time and it took longer than it should have done to complete the complaints procedure. It offered her £250 in recognition of the distress this caused her.

My view – was there fault by the Council causing injustice?

a) Failure to provide a suitable education from January 2022 to March 2023

68. The Council was not involved with the school’s discussions with Miss Y in January or the work from then until April to support Z’s return to school.
69. The Council didn’t know Z was attending school during this period. I don’t consider there was a failure by the Council to consider its duty to make alternative provision for Z from January to April 2022.
70. But it was told, when Miss Y asked it to carry out an EHC needs assessment in May, Z had not attended school since January.
71. In my view, it should have made enquiries about Z’s attendance issues at this stage and considered whether it should make alternative provision for Z. There is no evidence it did this.
72. The Council’s failure to consider its duty to make alternative provision for Z in May 2022 was fault.
73. Z had an EHC Plan in place from the autumn term 2022 setting out the support for their anxiety and regular attendance at school. The evidence I have seen shows the school provided the support in the Plan and worked with Miss Y to facilitate Z’s transition back to school.
74. I don’t consider the Council failed to arrange a suitable education for Z during the period from the autumn term 2022 to March 2023.

Impact of the failure to consider alternative provision for Z in May 2022

75. I can’t say what decision the Council would have made had it properly considered, in May, whether it had a duty to make alternative provision for Z. Or, if it had decided it did, whether it would have been possible to arrange and put in place suitable provision before the end of the summer term.
76. But the failure was a lost opportunity to consider its duty, causing Miss Y upset and uncertainty about what the outcome might have been.

b) Failure to issue a fit for purpose EHC Plan in accordance with the law

77. The Council was required, under the statutory timescales, to issue a draft plan by 22 August, allow Miss Y 15 days to comment and issue Z’s final EHC Plan by 21 September.
78. The Council issued the draft plan on 26 August, just outside this timescale. It told Miss Y it proposed issuing the final plan on 20 September. This gave her at least 15 days to comment.
79. At Miss Y’s request, it allowed her additional time to comment and issued the final EHC Plan on 6 October. But I don’t consider this short delay to the statutory timescale was fault by the Council causing injustice.
80. I have not investigated Miss Y’s complaint about the sections of the plan for which she had the right of appeal to the SEND Tribunal for the reasons set out in paragraph 11.
81. Miss Y was unhappy about the way the EHC Plan was written. But it included the separate sections (A – K) required as a statutory minimum. The Council also told Miss Y about her right to use its disagreement resolution arrangement or mediation procedure regarding concerns about the Plan.
82. I don’t consider the Council failed to produce a proper EHC Plan.

c) Failure to complete Z’s transition review within the statutory timescales

83. In my view, the Council failed to properly complete the transition review process within the statutory timescales. This is because it failed to:

• notify Miss Y, following the review meeting in December 2022, about the proposed amendments and her right to ask for a particular school to be named in the plan;
• send her a draft plan, allow her to request a meeting, ask for a particular school, and give her 15 days to comment, before issuing the final plan on 15 February 2023;
• name the school, or type of school Z would attend in September 2023 in the plan issued on 15 February;
• consult with any schools about Z’s placement for September 2023 before it issued the final plan on 15 February; and
• issue a final EHC Plan naming Z’s September 2023 placement until 1 August 2023.

84. The failure to complete the transition review within the statutory timescale was fault.

Communication failure

85. I also consider the Council failed to communicate clearly, or at times at all, with Miss Y about the process for amending the EHC Plan following the transition review meeting.
86. The information I have seen shows she was led to believe in her contact with the Council between December 2022 and February 2023, Z’s EHC Plan would be substantially rewritten, and she would be involved in this process.
87. The Plan was not rewritten and the Council’s communication failure about this was fault.

Impact of the failure to communicate and with the transition review

88. Miss Y lost the opportunity to comment on the proposed amendments, suggest other changes and request a particular school before the final EHC Plan was issued on 15 February. This caused her upset, frustration and uncertainty.
89. The failure to communicate caused Miss Y additional upset when she found out in February 2023 Z’s EHC Plan had not been rewritten as she had expected.
90. The delay of over five months in properly completing the transition review and naming Z’s placement, meant Miss Y and Z did not know until August 2023 which school Z would go to in September 2023.
91. Moving up to secondary school is a very important stage for any child. The delay and uncertainty caused them both considerable upset, particularly in view of Z’s anxiety about school. Z also lost the opportunity to complete work to help with the transition to their new school before the end of the school year.

d) failure to respond adequately to the complaint within the required time

92. Miss Y first complained to the Council on 7 September 2022. Under its complaints procedure, it should have issued its stage 1 response by 6 October. It did not do this until 11 November.
93. Miss Y complained again on 22 February 2023 about the transition review. The Council should have issued its Stage 1 response by 22 March, but it did not do this until 11 April. When Miss Y told it on 23 April she was not satisfied with its reply, the Council should have issued its final Stage 2 response by 9 May. It did not issue its final response until 19 July.
94. These delays were fault and caused Miss Y upset and uncertainty about the outcome of her complaints.

e) failure by SENDIASS to support Miss Y with the draft EHC Plan

95. The Council’s SENDIASS service says it will provide advice and support with reviewing documents and forms completed by service users (eg EHC needs assessments requests, draft and final EHC Plans).
96. I don’t consider this indicates its role extends to carrying out the type of detailed review and report proposing extensive redrafting and changes to a draft EHC Plan completed by Miss Y’s private consultant.
97. But SENDIASS failed to respond promptly or clearly to Miss Y’s requests for help with the draft EHC Plan issued in August 2022, and explain and offer the support it could provide.
98. This failure was fault which caused Miss Y upset and uncertainty about the support available to help her respond to the draft plan.

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Agreed action

99. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:
1. apologise to Miss Y for its failures to: properly consider alternative provision for Z in May 2022; complete Z’s transition review within the statutory timescales; and communicate about the amended EHC Plan. And for its poor complaint handling process and SENDIASS service failure. This apology should be in line with our guidance on Making an effective apology;
2. pay Miss Y £400 to reflect the upset, frustration and uncertainty caused by its failures. This is a symbolic amount based on our guidance on remedies; and
3. pay Miss Y £50, which should be used for Z’s benefit, to reflect the upset caused to Z by the Council’s delay in naming their secondary school. This is a symbolic amount based on our guidance on remedies
100. And within three months from the date of our final decision, the Council has agreed to:
1. remind its officers about:

• the procedures and timescales for completing transition reviews; and
• the timescales in its complaints procedure for complaint responses.
2. share the relevant learning from this decision with its SENDIASS service.

101. The Council should provide us with evidence it has complied with the above actions.

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Final decision

102. I have completed my investigation of this complaint and found fault by the Council causing injustice. The Council has agreed to take the above action to remedy this injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman