Summary: Mrs X complains the Council have not dealt with her son Y’s Special Educational Needs (SEN) properly. The Council did not complete an annual review properly, delayed responding to Mrs X’s complaint and did not fully complete recommendations arising from its complaint response. Mrs X had her right of appeal delayed, received a late complaint response and did not receive the full remedy agreed in the Council’s complaint response. The Council should apologise, pay Mrs X £400 for distress and uncertainty, provide an action plan and refer this decision to the Cabinet Member responsible.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains the Council have not dealt with her son Y’s Special Educational Needs properly because it:
• 1. incorrectly enforced the naming of a department not a school in section I of an Education, Health and Care (EHC) Plan.
• 2. failed to provide her truthful information during consultation processes between April 2022 and September 2022.
• 3. named a school that may not have the experience or training to fully meet Y’s needs and fully deliver Section F of his EHC Plan.
• 4. failed to hold an urgent EHCP annual review following the safeguarding issues raised with the Council and inappropriate support for Y at his school.
• 5. failed to provide alternative education provision November 2022 onwards.
• 6. failed to deliver Section F provision in Y’s in EHC Plan when absent from school due to anxiety related to safeguarding incidents in school and re-traumatising of his past trauma.
• 7. used unethical practices when undertaking administrative and submission of documents following orders of co-production from the tribunal.
• 8. failed to consider on a case by case basis, the exceptional circumstances when undertaking decisions since September 2022.
• 9. missed opportunities to keep Y safe within an educational placement by not completing a safeguarding investigation.
• 10. didn’t investigate all of her complaint and there were delays; and
• 11. delayed the implementation of short breaks provision as per a Tribunal Order.
2. Mrs X says Y missed educational provision and special educational needs provision and suffered distress.

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The Ombudsman’s role and powers

3. 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)
4. When considering complaints, 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.
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)

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What I have and have not investigated

6. I have investigated the following parts of Mrs X’s complaint about how the Council has dealt with her son’s SEN:
• Part 1 relating to consultation with the school only.
• Part 4 relating to the EHC Plan annual review process only.
• Part 10.
7. I have not investigated the following parts of Mrs X’s complaint for the reasons outlined below:
• The remainder of parts 1,2,3,4 and 6 because they are outside of the Ombudsman’s jurisdiction as Mrs X had a right of appeal.
• Parts 5 and 7 because they are outside of the Ombudsman’s jurisdiction due to caselaw.
• Part 8 because I am investigating the annual review process and other matters are outside the Ombudsman’s jurisdiction as referred to above.
• Parts 9 and 11 because they are already being considered by the Council as part of a separate complaint.

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How I considered this complaint

8. I spoke to Mrs X about her complaint and considered documents she provided. I made enquiries of the Council and considered its response and the supporting documents it provided.
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

Law, guidance and policies

EHC Plans

10. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document 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 their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.

Annual Reviews

11. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
12. The school (or, for children and young people attending another institution, the local authority) must prepare and send a report of the meeting to everyone invited within two weeks of the meeting. The report must set out recommendations on any amendments required to the EHC plan, and should refer to any difference between the school or other institution’s recommendations and those of others attending the meeting. (SEN Code paragraph 9.176) 
13. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
14. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
15. Where the 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 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.
16. If the council decides to continue to make amendments, it must issue the amended EHC plan as quickly as possible and within 8 weeks of the original amendment notice.

Jurisdiction

17. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
18. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
19. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
20. We cannot investigate the council’s conduct during an appeal. This includes anything a complainant could have raised with the tribunal at any stage of the appeal, or which the tribunal has considered on its own initiative, or which could have been a part of the tribunal’s deliberations in resolving the appeal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)

The Council’s complaints process

21. The Council will try to resolve complaints informally within 5 working days.
22. At stage one the Council will talk to complainants about their concerns and record them in a complaint resolution plan. It will agree a timescale for investigating the complaint and provide a written response.
23. At stage two the Council will work with complainants to find out why their complaint hasn’t been resolved. It will identify any gaps in the investigation. Any gaps will be shared with the Executive Director of the service. They will then decide if a review of the complaint will be undertaken. A review is not another investigation, but will look at providing complainants with an answer to the complaints they feel remain unanswered.

What happened?

24. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
25. Mrs X appealed to SEND Tribunal about her son Y’s EHC Plan in 2022. The Tribunal decision was issued in September and the Council issued a final EHC Plan in October. The EHC Plan named School A.
26. Mrs X asked for a review of Y’s EHCP. The annual review for Y was delayed.
27. Mrs X complained to the Council.
28. The annual review was held in February 2023.
29. The Council responded at stage one of its complaints procedure in August 2023. Mrs X asked to escalate her complaint to stage two in September. The Council partially upheld Mrs X’s complaint and proposed a remedy.
30. The Council issued an amended final EHC Plan in January 2024.

Analysis

31. School A was a satellite of School B and then School C.
32. I have seen copies of the final EHC Plans and cover letters issued in October 2022 and January 2024.
33. The Council says it has a case management system (‘The Hub’), which was used by Mrs X and Y’s school. This includes all relevant professional advice, the EHC Plan documents, and the correspondence related to the issuing of the plan.
34. The Council says Y’s school were aware that it would issue a new version of the EHC Plan following the tribunal decision. The Council also says a final version of the EHC Plan was issued (October 2022) to Mrs X and this was also shared with Y’s school, who continued to maintain they were able to meet his needs. The Council also says, “The communication during this time will have taken place via telephone calls which were not stored at this time, due to the nature of other children being part of the overall conversations.”
35. The Council says the plan was updated on the Hub and was accessed by both Mrs X and Y’s school, alongside the letter that was automatically generated.
36. I have considered the following evidence:
• A screenshot of the Hub provided by the Council. This shows Y’s primary placement as being School C and his secondary placement being School A from September 2022. The information on this screenshot dates it to January 2024. However, it therefore cannot definitively show that it was actually updated with this information in September 2022.
• A screenshot from the Hub provided by the Council showing Y’s Annual Review decision date of 24 March 2023. This screenshot does not contain details of a named school. This shows the Council considered that changes to Y’s EHC Plan were considered necessary at this time.
• An email from Mrs X to the Council stating, “We wish that is formally recorded that following the Tribunal in summer 2022 our son has never been enrolled by the Barnsley Council in the West Riding itself, but instead his hub and attendance was showing [School B] and [School C].”
• A screenshot from the Hub provided by Mrs X which shows Y’s current education setting to be School B as secondary placement, but also shows his education setting to be School A as primary placement. This screenshot names individuals who the Council says would have been named in the Hub in September 2022.
• A screenshot from the Hub provided by Mrs X which shows Y’s current education setting to have been later updated to School C as secondary placement.
• Mrs X says staff from Y’s school stated they were not able to access Y’s EHC Plan on the Hub following the Tribunal and were using an old outdated copy of Y’s EHC Plan.
• An email from Mrs X to Y’s school in January 2023 about the forthcoming annual review of Y’s EHC Plan. This shows Mrs X was able to access the Hub and that Y’s school had uploaded information to it relating to the Annual Review.
• An email from Mrs X to the Council in June 2023 asking why Y’s current placement, (then School A), had been removed from the Hub.
• An email from School A to the Council in October 2023, which shows it informed the Council it was unable to meet Y’s needs
37. The evidence above shows:
• the Hub initially showed Y’s education setting to be School A as the primary placement and School B as the secondary placement.
• The Council later updated the information on the Hub about Y’s education setting to show School C as Y’s primary placement and School A as the secondary placement.
• The Council has further updated the information on the Hub about Y’s education setting in January 2024 to reflect the fact that School A/School C could not meet his needs and he was no longer on roll there.
38. On the balance of probabilities, Y’s school was able to access the EHC Plan through the Hub in October 2022. This is not fault by the Council.

Annual Review meeting

39. The Council says:
• “The annual review was initiated in December 2022, following parental requests, with the intention of holding the review meeting in January, following the collation of professional advice.
• In December Y’s school shared their annual review contributions, Mrs X was in disagreement with the content of their contributions, this led to tensions between Y’s school, the original date was cancelled due to open complaints about the school and a [safeguarding] investigation.
• The meeting was subsequently adjourned due to the scheduled conflict resolution which would have informed the EHC Plan process, and any further decision made regarding his EHC Plan.
• The annual review was then re arranged once it had been agreed via the conflict resolution plan, that the School was to convene and virtually host the annual review meeting, and as such a new date was set. The local authority collaborated with Mrs X which led to a new date for the annual review being set.”
40. I have seen a copy of the dispute resolution outcome. This supports the Council’s statement. The annual review meeting was held within the time limit agreed in the dispute resolution outcome.
41. The decision was taken to amend Y’s EHC Plan. This decision was taken within the time limit agreed in the dispute resolution outcome.
42. The Council has not provided a copy of minutes of the Annual Review meeting. When asked to do so it provided an annotated copy of the EHC Plan issued in October 2022.
43. A draft amended EHC Plan was issued in May 2023, over nine weeks after the review meeting was held.
44. A final EHC Plan was issued by the Council in January 2024, approximately 11 months after the review meeting was held.
45. The Council says it shared and uploaded to the Hub a notice providing details of proposed amendments and copies of evidence to support proposed changes to Y’s EHC Plan in March 2024, over a year after the annual review itself and two months after the final EHC Plan was issued.
46. The Council did not provide Mrs X with information about changes to Y’s EHC Plan that it is required to. This is fault by the Council. Mrs X suffered uncertainty and distress.
47. The Council has commented on the annual review timescales saying:
• the first draft amended plan following the annual review was produced and shared with the family 6 weeks following the decision to amend Y’s EHC Plan;
• there have been five versions of the EHC Plan between May 2023 and January 2024;
• three planned amendment meetings were then held – these being on the 13th, 19th and 25th of July 2023;
• the reasons for the delay between May and October were that the family continued to contest the content of the 5th May version, asking for V15 of the Tribunal to be used rather than V17 of the Tribunal of which the Local Authority had been ordered to use;
• it did not finalise the plan as section I was still in dispute, and continued to work with the family to consult and identify suitable settings so that section I could be concluded;
• it did not intentionally deny the rights of this family to appeal, but instead continued to work with the family to try and reach agreement for a co-produced plan; and
• it is aware of the statutory timeframes for annual reviews, and also the requirement to co-produce with families and make all attempts to try and seek resolve where dispute exists. On reflection the Local Authority could have finalised the plan and not made as many attempts to co-produce. The delay was not by disregard to the timeframe but moreover with the full intention of trying to work with the family and responding to their requests.
48. Mrs X disagrees with the Council’s views. She says the Council refused several times to finalise Y’s EHCP and give her the right to appeal despite formal requests being made.
49. The Council should have issued the amended final EHC Plan for Y by 19 May 2023. This is fault by the Council. Mrs X was delayed from acquiring and, if she wished, being able to exercise her appeal rights in respect of the amended EHC Plan by 36 weeks. Mrs X and Y suffered distress and uncertainty.
50. Mrs X has now appealed the final EHC Plan the Council has issued. I cannot assess any injustice that may have been caused by this delay until the outcome of the Tribunal hearing is known. I cannot therefore investigate this further. Mrs X may make a further complaint to the Ombudsman when the Tribunal hearing has been held and this is able to be considered.

Complaint handling

51. The Council’s stage 1 complaint response explained the issue of naming School A in Y’s EHCP and accepted should have been clearer.
52. The Council’s stage 1 complaint response accepted four recommendations, which were:

1. For the Council to ensure the recommendations inform an action plan of learning from this investigation that they share with [Mrs X]. This will detail what will be done, by who and by when.

2. For the Council to make sure that the EHCP contains accurate information in respect of sections I and K.

3. Offer an apology to [Mrs X and Y] for any failings found as part of this investigation.

4. Consider a financial remedy using the Local Government and Social Care Ombudsman’s guidance for any fault found and considering the time and trouble taken to bring this complaint.

53. The Council’s stage 1 complaint response said:
• it identified learning around named provision and would amend practices to prevent this happening again within four weeks;
• that Y’s EHC Plan would be addressed following the review in progress;
• that the Council apologised for the confusion around the naming of Y’s education provision; and
• offered Mrs X £100 in respect of the delay to dealing with her complaint at stage 1.
54. The Council accepted its stage one complaint response was delayed. It offered a financial remedy of £100 for the delay in its stage one response itself.
55. The Council’s stage two response says, “The process of a stage 2 review is not intended to re-investigate a complaint, nor should the review consider new information not covered by the original complaint and resulting investigation. The intention of a stage 2 review, therefore, is to allow for further, independent scrutiny of the investigation itself; whether in the view of the reviewer, the investigation was conducted sufficiently thoroughly and if, on balance, the council’s response to your complaint provided a reasonable judgement and if necessary, appropriate redress.”
56. I have seen a report of the actions taken by the officer who completed the stage two complaint review. This included:
• Reviewing information submitted by Mrs X in response to the stage 1 investigation.
• Clarification of the process for stage 2 review with the Customer Feedback Team, including establishing which elements of Ms X’s submission represented new points of complaint and not therefore subject to stage 2 review.
• Meeting with the investigating officer to establish the process they had followed and which items of information, evidence and records, including individuals they had spoken with, had been considered as part of the initial investigation.
• Meeting with the Head of Service SEND & Inclusion to corroborate that all relevant items of information, evidence and records had been made available to the original investigating officer. This included checking that all aspects of Ms X’s original complaint had been considered and responded to.
• Returning my initial response from the stage 2 review to the Customer Resolution Team, including follow-up discussion to ensure the review had been completed in accordance with corporate policy.
• Findings consolidated with input from other individuals to address additional points raised by the complainant in relation to the council’s Management of Customer Feedback policy.
• Draft response reviewed by Customer Resolution Team prior to submission to the Executive Director, Children’s Services.
57. The stage two review:
• accepted that the Council was less than clear about the status of Y’s school that was named in his EHC Plan and apologised for this;
• Restated that there were elements of Mrs X’s complaint which the Council could not consider, as there was an alternative route for those matter to be challenged;
• Acknowledged the delay in responding to Mrs X’s complaint at stage 1 and re-stated the offer of a financial remedy of £100.
58. On the balance of probabilities, with the exception of the delay to the stage one response, the Council acted in accordance with its complaints procedure. I consider that delay to be fault by the Council. I consider the remedy offered by the Council in respect of this is appropriate.
59. Mrs X says the Council has not ensured that sections I and K of Y’s EHC Plan have been addressed.
60. The Council’s stage 2 complaint response provided no further clarification about this in November 2023.
61. The annual review process was significantly delayed and not concluded until January 2024. Mrs X has now appealed to SEND Tribunal.
62. The Council significantly delayed completing one of the recommendations it agreed to as a result of the delays to the EHC Plan annual review process. I consider this to be fault by the Council. Mrs X did not suffer any additional injustice as a result because by itself this would not result in any changes to provision, and I have considered the issue of delays to the annual review process already in paragraphs 39 to 50 above.

Action by the Council

63. In response to a previous Ombudsman investigation, the Council said it had:
• Invested in a digital EHC Hub which ensures all stakeholders understand the statutory annual review timescales and expectations
• Appointed a dedicated EHC Co-ordinator; and
• Ensured training is offered around annual review expectations and EHC Plan writers have regular supervision withy phase managers to monitor timeliness.
64. My investigation shows that despite this action, the Council is failing to ensure that annual review timescales are met.

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Agreed action

65. To remedy the outstanding injustice caused by the fault I have identified, the Council has agreed to take the following additional action within 4 weeks of this decision:
• Apologise to Mrs X and Y for the injustice caused to them by the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings;
• Pay Mrs X and Y a total of £400 to recognise the distress and uncertainty caused to them by the Council’s failings within the Annual Review process;
• Share a copy of this decision with staff in the relevant department to consider the lessons that can be learned from this case;
• Provide an action plan showing how the Council will meet the statutory annual review timescales when dealing with any EHC Plan annual reviews in future; and
• Refer this decision, the action plan and the lessons learned outcomes to the relevant Cabinet Member and Scrutiny Committee.
66. The Council should provide us with evidence it has complied with the above actions.

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Final decision

67. I have found fault by the Council, which caused injustice to Mrs X. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman