Summary: Mrs X complained about failures in the Council’s handling of her request for a change of placement for her son, Y. The Council was at fault for a delay in finalising an annual review carried out in May 2022, failings in its handling of the change of placement request, and failures in sharing information with Mrs X. It will apologise, make a symbolic payment, and use the learning from this case to make improvements to its services.

The complaint

1. Mrs X complained about the Council’s failure to:
• hold an annual review of her son, Y’s, Education Health and Care (EHC) plan after his primary school told it in November 2022 that it could not meet Y’s needs, despite parental requests to arrange one and promising to do so; and
• share information about consultations with alternative schools prior to naming a new school in Y’s amended EHC plan in February 2023.
2. Mrs X said the lack of an annual review meant the Council was consulting with alternative schools without a full and up-to-date understanding of Y’s needs, which put his new placement at risk.
3. Mrs X also said Y was left in a school that he knew he would have to leave without any information or certainty about where he would go. This caused avoidable distress to him and his family.

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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. The law says we cannot normally investigate a complaint when someone can appeal 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 appeal. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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.
7. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
8. 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)
9. 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 have and have not investigated

10. This investigation covers the period from May 2022, when the Council first became aware of concerns, to February 2023 when it issued an amended plan following a change of school.
11. It was for the Council to decide which alternative educational setting to consult before deciding which school to name in Y’s amended EHC plan after Mr and Mrs X asked for a change of placement. Where a parent is unhappy with the school named, they can appeal to the SEND Tribunal. However, I have considered whether the Council provided Y’s parents with sufficient information about this to enable them to participate in the decision-making process.

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How I considered this complaint

12. I considered:
• the information Mrs X provided and spoke to her about the complaint;
• the information the Council provided in response to my enquiries;
• relevant law and guidance, as set out below; and
• our guidance on remedies, available on our website.
13. 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

Relevant law and guidance

14. 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.
15. The Children and Families Act 2014, section 19, says councils must have regard to the following:
1. the views, wishes and feelings of the child and their parent;
2. the importance of the child and their parent participating as fully as possible in decisions;
3. the importance of the child and their parents being provided with the information and support necessary to enable participation in those decisions; and
4. the need to support the child and their parent in order to facilitate the development of the child and to help them achieve the best possible educational and other outcomes.
16. Councils must have regard to statutory guidance: The Special educational needs and disability code of practice: 0 to 25 years (the Code), which says:
• the child’s parent has the right to request a particular school to be named in the EHC plan (para 9.78);
• the council must comply with that request, except in limited circumstances such as where the child’s attendance there would be incompatible with the efficient use of resources (para 9.79);
• the council must consult a school before deciding to name it in an EHC plan (para 9.80) and advice from the school will contribute to the development of the plan (para 9.82);
• EHC plans should be used to actively monitor the child’s progress towards their outcomes and must be reviewed as a minimum every 12 months (para 9.166);
• reviews must be carried out in partnership with the child and their parent, and must take account of their views, wishes and feelings (para 9.168);
• in most cases the review will be held and led by the school (para 9.175);
• an EHC plan may need to be amended where changes are needed but where a full review or re-assessment is not needed (para 9.193); and
• an EHC plan must be kept securely but may be disclosed, in the interests of the child to their school or other agencies referred to in the plan as making educational, health or social care provision (para 9.212)

What happened

17. Y, who has autism, lives with his parents, Mr and Mrs X. He had an Education Health and Care (EHC) plan and was attending school 1, a mainstream primary school.

Delay in finalising annual review held May 2022

18. Mrs X said an interim review was arranged by school 1 because of concerns about Y’s anxiety and his educational achievement. She understood that officer 1, a Special Educational Needs and Disabilities (SEND) Improvement officer, visited school 1 to inform the review meeting. Officer 1 did not attend the review meeting but did visit the school and spoke to Mrs X by telephone after the review meeting had taken place.
19. Following discussions at the annual review meeting, school 1 asked the Council to increase the funding available to support Y and suggested amendments to his EHC plan. The Council should have told Mrs X its decision within four weeks of the review, which was by 7 June. It did not issue a notice proposing to amend the plan until 28 June. The draft amended plan it sent at that point did not include all the changes discussed and there was no change to the support hours specified.
20. Mrs X complained. The Council telephoned her to discuss her concerns. Mrs X said she was worried school 1 could not meet Y’s needs and its Special Educational Needs Coordinator (SENCO) was leaving at the end of term, which meant there was a risk that progress made on developing the support package for Y would be lost.
21. The Council spoke to Mrs X in early July. It accepted there was a delay in issuing the amendment notice, partly because of two changes in case worker for Y, and its failure to action the request for additional support hours, for which it apologised.
22. The Council agreed the request for additional support hours and issued an amended plan on 14 July. It confirmed the additional funding was effective from 7 July. On this basis Mrs X withdrew her complaint.
23. The records show no further action to finalise the EHC plan between mid-July and early November 2022. On 4 November, a further draft amended EHC plan was issued.

Change of placement request

24. On 18 November, Mrs X asked for a change of placement. She enclosed a letter from school 1 explaining that, although the additional support discussed at the review was in place, Y’s anxiety had increased, and his needs had changed. It said it could not meet his needs. Mrs X said she wanted Y to attend school 2, an independent school, which had provided some taster sessions for Y, and said it could meet his needs.
25. On 25 November, the Council said that, in line with the Code, it would ask school 1 to carry out a further review to consider the change of placement and any further changes needed to Y’s EHC plan. In the meantime, the current draft plan would be finalised.
26. In response, Mrs X said she “strongly insisted” the plan should not be finalised with school 1 named as the placement, since it had said it could not meet Y’s needs. She also did not want a further review before the Council consider the change of placement request, in view of the delays with the May 2022 review.
27. On 5 December 2022 the Council agreed to consider the change of placement request without school 1 arranging a further review meeting. On 7 December, the Council issued the final amended EHC plan, which still named school 1 because a change of placement had not yet been agreed. It also consulted with school 2, which confirmed it could meet Y’s needs and set out the costs of the provision.
28. On 14 December, the Council’s panel considered the change of placement request, but it was not satisfied there was sufficient evidence that school 1 could not meet Y’s needs. It said school 1 should be asked to arrange a review meeting to gather further information.
29. It transpired that the panel had not seen all the evidence Mrs X had sent to the Council when it considered the case. Mrs X also said the change of placement request form was “grossly inaccurate” and requested various amendments. The panel considered an amended request form and additional evidence on 11 January 2023, at which point it agreed a change of placement.

Consultation with alternative schools

30. As mentioned, the Council consulted with school 2, the parents’ preference in December 2022. On 25 January, after the panel agreed a change of placement, it consulted three further schools, all of which said they could not meet Y’s needs. Mrs X said the type of school consulted was not appropriate, but I note it was in line with the panel’s recommendation.
31. When consulting the four schools, the Council shared Y’s EHC plan dated 7 December 2022. Mrs X complained this was not appropriate because that plan no longer accurately reflected Y’s needs, and because she had not consented to the Council sharing with other schools, apart from school 2.
32. Mrs X says that, despite numerous requests, the Council would not share any information with her about the consultations, which she said meant it prevented her from fully participating in decisions about Y’s schooling. Mrs X said she also contacted her MP, who did not receive a response from the Council, and a local councillor, who raised her concerns with officers.
33. The Council issued a final amended EHC plan for Y, naming school 2, on 13 February 2023.
34. Mrs X made a further formal complaint on 2 March, and the Council responded on 3 April. Its response set out the schools it consulted and the outcome of those consultations.
35. In response to my enquiries, the Council said:
• it usually shares information about consultations with parents on request; and
• it provided the information requested in the complaint response in this case to bring a prompt and effective conclusion to Mrs X’s concerns.

Officer 1 visits – May and December 2022

36. As mentioned in paragraph 18 above, officer 1 visited school 1 in May 2022.
37. Mrs X said she understood the purpose of the visit was to inform an emergency annual review arranged for the same month. Officer 1 did not contribute to the annual review meeting but spoke to Mrs X by telephone after it had taken place. Mrs X said officer 1 told her the high proportion of children with high support needs in Y’s year group was “unsustainable” and that strategic changes needed to be made.
38. The Council said the visit was to give school 1 advice about meeting the needs of the high number of children with SEN in Y’s year group. It said no written record was added to Y’s file because the visit did not include an individual assessment of his needs or whether and how they were being met.
39. Mrs X asked for a written record of the visit and when she was not sent a record, she complained. During the complaint process, the SEND team became aware of the telephone discussion between Mrs X and officer 1. The Council therefore and asked officer 1 to make a record of the visit for Y’s case file. The record was added in January 2023.
40. Officer 1 made a further visit to school 1 in early December 2022. A record of this visit, added to Y’s case file on 11 January 2023, said the head teacher had explained the steps school 1 had taken to meet Y’s needs since the summer. It stated school 1 considered Y “would benefit from a more specialist setting” and recorded that Mrs X had expressed a preference for school 2.
41. Mrs X made a subject access request and obtained copies of the records. She then challenged the accuracy of the records and complained about the delay in recording the May 2022 visit. She said the head teacher disputed the account of the discussion with them in December 2022. She also identified officer 1 had told the Council’s panel that Y’s needs could be met through a “resource provision”, but she had not been aware of that advice.
42. In response to her further complaint, the Council:
• accepted that records should be made as soon as possible after the action/correspondence has taken place;
• explained the late record of the May 2022 visit was an agreed action following the earlier complaint;
• agreed to add a note to the record to show Mr and Mrs X did not agree it was accurate, and provided evidence it had done this; and
• said its SEND team would contact the head teacher to establish if they wanted any corrections to be made to the record in question.
43. In response to my enquiries, the Council:
• provided its case file for Y, which showed it had added a note that Mr and Mrs X had challenged the accuracy of the record of the visit in May 2022;
• provided a copy of its email to the head teacher on 4 April 2023. It said the head teacher had not responded so it had not made any change to the record of the discussions in December 2022;
• confirmed the change of placement request forms dated 5 and 21 December both made reference to officer 1, but no reports from officer 1 were shared with the panel.
44. From my review of the records, I note:
• the SEND team asked for feedback from officer 1 on 16 November because school 1 was saying it could not meet Y’s needs;
• officer 1 replied on 17 November. She said she believed Y’s needs could be met through a resource provision placement for pupils with Austism Spectrum Disorder, which would allow him to build up successful access to a mainstream classroom; and
• the change of placement forms record officer 1 recommending a “resource provision”, but no reasons were given for this view and there was no reference to a report from them.

Additional information

45. Y was not out of school during the period under investigation (May 2022 to February 2023). He remained at school 1 until moving to school 2 and continued to attend school 1, apart from the days he attended taster sessions at school 2. However, Mrs X said he knew for several months that he would need to move and had no certainty about where he would go. She said this badly affected his self-esteem and he found the uncertainty particularly difficult because of his autism.

My findings

Annual review – May 2022

46. The Council should have issued its decision to amend Y’s EHC plan within four weeks of the annual review and issued a final amended EHC plan within eight weeks. It accepts it failed to do so, which was fault.
47. This caused frustration for Mrs X, who was put to avoidable time and trouble pursuing the Council. It did not cause an injustice to Y because school 1 provided the additional support discussed at the review meeting, despite the fact Y’s plan had not been finalised.
48. The Council told me it is committed to improving its timeliness in completing reviews and is currently reviewing its processes.

Change of placement request

49. The normal approach when a school says it can no longer meet a child’s needs is to arrange an emergency review. This allows all parties to consider the reasons the school says it cannot meet their needs. They can discuss the type of placement needed, consider whether any further assessments are needed, and discuss any changes that may need to be made to the child’s EHC plan. This in turn, means the Council then has an up-to-date EHC plan for consultations, if needed.
50. In this case, the previous annual review had not been completed. The Council’s view was that the review needed to be completed, by issuing a final amended EHC plan, before a review could be arranged to consider the change of placement. Mrs X said she did not want another review meeting, but nor did she want a final amended plan issuing that named school 1, which could not meet Y’s needs, and that did not reflect Y’s increased needs. It was not necessary to complete the earlier review before arranging a new one and the Code (at paragraph 9.193) allows for changes to be made to an EHC plan without a full review or reassessment. They key point here was the Council needed full and up-to-date information about Y’s needs.
51. The Council issued a final amended EHC plan in December 2022, which gave Mrs X review rights, which she exercised. It used that plan when consulting with alternative schools because it was the latest plan available. As it had agreed to consider the change of placement request without holding a further review meeting, it did not have all the information it would usually have either to consider the change of placement request or consult with schools. It also failed to provide the panel with all relevant information it did have when the panel first considered the request in December 2023.
52. On balance, therefore there was fault in the Council’s handling of the request, which meant the decision to agree a change of placement was delayed by a further month. This caused uncertainty for Mrs X and for Y, who finds managing uncertainty difficult. However, it did not put the placement at school 2 at risk since Mrs X had shared information with the school and Y had attended taster sessions so school 2 was not relying on an out-of-date plan. Not did it cause a delay in Y moving since carrying out a review would have added to the overall time taken, and the consultation period could have taken up to 15 working days, although did not do so in this case.

Consultation with alternative schools

53. Since school 2 is an independent school, it was appropriate for the Council to consider whether this was compatible with the efficient use of resources, and it therefore consulted other schools. It was for the Council to consider which schools to consult. It did not need Mrs X’s consent to consult, nor to share Y’s latest EHC plan with those schools.
54. The Code is clear that councils should be involving parents in decision-making, which involves sharing the information relevant to those decisions. Mrs X specifically asked the Council to tell her which schools it was consulting and the outcome of those consultations. The Council did not share this information until its complaint response in early April 2023. It has not explained why it could not do so in January 2023 when it carried out the consultations. The failure to share this information until after Mrs X complained was fault.
55. This fault caused Mrs X some frustration, and she was put to avoidable time and trouble making a further complaint. However, the Council did agree to name school 2 in Y’s amended EHC plan, which was the outcome Mrs X wanted.

Officer 1 visits to school 1

56. There is a conflict of evidence about the reason for officer 1’s visit to school 1. However, even if the original purpose was to give guidance to school 1 in relation to the whole year group, officer 1 clearly considered whether and how Y’s needs were being met as part of that visit and spoke to Mrs X afterwards about that. On this basis, officer 1 should have made a record of her observations in Y’s case record. The failure to make a contemporaneous record was fault.
57. Officer 1 made a further visit to school 1 in December 2022 and discussed the steps school 1 had taken to meet Y’s needs. A record was made of these discussions, but not until 11 January 2023. It is not good practice for there to be such a delay in making a record and this increases the risk of inaccuracies. However, given this period included the Christmas holiday period, this is not sufficient to amount to fault.
58. Officer 1 also shared their views with the SEND team about the type of placement that would be appropriate for Y in November 2022. Officer 1’s view, although not their reasons for reaching it, was included in both change of placement forms, and this appears to have informed the Council’s decision about the type of school to consult. Neither the views shared by officer 1 nor the change of placement form were shared with Mrs X, which meant she did not have the opportunity to challenge this before the panel considered the request in December 2022. This lack of openness was fault. This caused frustration for Mrs X, who felt she was prevented from engaging fully in decision-making for Y and contributed to the delay in agreeing the change of placement.

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Agreed action

59. Within one month of the date of the final decision, the Council will:
• apologise to Mrs X for the long delay in finalising the annual review in May 2022, the failings in its handling of the change of placement request, its delay in sharing information about its consultations with other schools, the failure of officer 1 to make a record of their visit to school 1 in May 2022, and the failure to share information that its panel would consider in December 2022; and
• pay her £500 as symbolic payment to reflect the frustration, uncertainty, and avoidable time and trouble caused to her, and the additional uncertainty suffered by Y.
60. Within three months of the date of the final decision, the Council will
• provide us with details of its review of its process for carrying out EHC plan reviews, including the steps it has taken and is taking to ensure that reviews are finalised within statutory timescales;
• share this decision with officer 1 and the Inclusion Quality team to ensure that where officers carrying out visits to support schools make observations about specific pupils with SEND, a record is made for the pupil’s SEND case file without delay;
• share this decision with its newly appointed SEND training manager to ensure that the learning from this case is shared with all relevant staff and included in the Council’s rolling training programme, as appropriate. As a minimum this should ensure the Council either arranges a review or ensures by some other means that it has full and up-to-date information about a child’s needs before considering a change or placement request or consulting with alternative educational settings.
61. The Council will provide us with evidence it has complied with the above actions.

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Final decision

62. I have completed my investigation. I found fault causing personal injustice. I have recommended action to remedy the injustice and prevent recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman