Summary: Mr and Mrs X complained about the Council’s handling of an early annual review of their child’s (Y’s) Education, Health, and Care Plan. We find avoidable delay and poor communication by the Council which caused Mr and Mrs X uncertainty, frustration and distress. The Council has already instigated measures to prevent recurrence which is a partial remedy. It should also apologise and make a symbolic payment to reflect injustice caused to Mr and Mrs X.

The complaint

1. Mrs X complains on behalf of herself and Mr X, about the Council’s:
1. Handling of their request for an early annual review of their child’s (Y’s) Education, Health and Care (EHC) Plan.
2. Consultations with schools.
3. Delay in commissioning an Educational Psychologist’s (EP) report.
4. Failure to provide documents to a SEND tribunal.
5. Data breach.
2. Mrs X says Y missed special educational provision which affected his academic development and mental well-being and caused them avoidable uncertainty, distress and negatively impacted their family.
3. Mr and Mrs X want the Council to accept it did not follow the EHC review process, apologise and review its procedures to prevent recurrence. They also want the Council to pay compensation for Y’s missed special educational provision and their legal costs.

Back to top

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. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’)).
6. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
7. The courts have established that if someone has appealed to the SEND 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)
8. 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.
9. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
10. 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)
11. 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.

Back to top

What I have and have not investigated

12. I have investigated:
• 1 (a), 1(b) and 1(c) between March to July 2022. Matters after this date are outside our jurisdiction, for the reasons set out at paragraphs 6 and 7 (above).
13. I have not investigated:
• 1 (d) because this relates to the Council’s engagement with the SEND Tribunal, which is outside our jurisdiction, for the reasons set out at paragraphs 6 and 7 (above).
• 1 (e) because Mr and Mrs X may raise this with the Information Commissioner’s Office (ICO) which is the most appropriate body to address their complaint as explained at paragraph 10 (above) There are no good reasons for us to investigate.

Back to top

How I considered this complaint

14. I considered information provided by Mrs X and discussed the complaint with her. I also considered the Council’s complaint responses and the relevant law and guidance.
15. Mrs X and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

Back to top

What I found

Law, Policy and Guidance

Education, Health and Care (EHC) Plans and annual reviews

16. A child with special educational needs (SEN) 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.
17. The Department for Education publishes statutory guidance, the SEND Code of Practice (‘the Code’), which sets out the duties of councils. The Code says:
• Councils should arrange for EHC Plans to be reviewed at least every 12 months;
• If a child attends a school, a council can ask the school to carry out the review;
• if the EHC Plan needs to be amended, a council should start the process of amendment without delay.
18. A request can be made for an early review (sometimes referred to as an emergency or interim review) of an EHC Plan if there is a change of circumstances, such as a change in need or the current EHC Plan is no longer meeting needs. The council does not have to agree to this request and there is no statutory right of appeal of this decision. In the event the Council accepts a request to review, the Code does not stipulate any duty on the Council to obtain any further psychologist’s reports as part of its early review process.

School consultation

19. The child’s parent or the young person has the right to request a particular school, be named in their EHC plan. This may include a maintained school and any form of academy or free school (mainstream or special), a non-maintained special school as well as independent school. (Sections 33 and 39 of the Children and Families Act 2014 and paragraph 9.78 SEND Code)
20. If a child’s parent or a young person makes a request for a particular school the local authority must comply with that preference and name, the school or college in the EHC plan unless:
• it would be unsuitable for the age, ability, aptitude or SEN of the child or young person, or
• the attendance of the child or young person there would be incompatible with the efficient education of others, or the efficient use of resources.

Ombudsman’s Principles of Good Administrative Practice

21. The LGSCO’s Principles of Good Administrative Practice says we expect councils to act fairly and proportionately and to be open and accountable. This includes:
• Making timely decisions within a reasonable period or keeping users informed of any delays;
• Explaining clearly the rationale for decisions and recording them; and
• Keeping proper and appropriate records.

What happened

22. Mr and Mrs X’s child (Y) has had an EHC Plan since 2019, which provided for 21 hours of special one-to-one support in a mainstream school.
23. Mr X said Y’s education was disrupted by the COVID-19 pandemic. She explained Y struggled to attend and participated less in class. Mrs X said Y also found it difficult to engage appropriately with peers and teachers and had to be taught separately in another room by himself. Mrs X was therefore very concerned about Y’s academic development and mental well-being.
24. In mid-March 2022, Mrs X asked the Council for an emergency annual review. She believed Y’s EHC Plan ought to be amended with a specialist educational setting which could better support Y’s needs. Mrs X provided evidence to the Council from Y’s school and other independent professional agencies which were helping Y at the time.
25. Mrs X has provided us copies of emails with the Council which show:
• A SEN caseworker (‘the caseworker’) initially refused Mrs X’s review request and said it was unclear and there was no supporting documentation.
• Mrs X provided further evidence and an explanation of why the previous documents met the criteria. She also asked for information about her appeal rights.
• The caseworker then informed her a panel would further consider her request in April. Mrs X then sent further emails without response from the caseworker.
26. Mrs X said she lost confidence in the caseworker and made direct enquiries with the Council. Mrs X said another Council officer informed her there was no record of a panel in April. Mrs X said she felt misled that her request had not been considered as promised.
27. In mid-May the caseworker informed Mrs X the review panel had agreed to consult with maintained specialist schools. And if a place was not found for Y, the Council would consider specialist independent schools.
28. Mrs X understood this meant the Council had agreed to amend Y’s EHC Plan. However, the records indicate the Council was just exploring the possibility of an alternative setting for Y and had not yet decided to amend the Plan.
29. In mid-July, the Council informed Mrs X it was no longer considering a specialist school for Y and would maintain his EHC Plan with support in his current school. Mrs X appealed the Council’s decision to the SEND tribunal.
30. Mrs X has clarified that Y continued to receive the special educational provision in his previous plan throughout her complaint. However, it was difficult to manage his behaviour and he was not benefiting from the mainstream setting.
31. In November, the Council undertook Y’s scheduled annual review. It then obtained an EP report and decided to amend Y’s EHC plan to a specialist setting. It consulted with School A and named it in Y’s final amended EHC Plan.
32. The Council and Mrs X then concluded the SEND appeal by consent on the basis School A would be named in Y’s final amended EHC plan.
33. Y started at School A in February 2023 and Mrs X said he was better supported.
34. Mrs X was unhappy with Council for not considering her views and amending Y’s EHC Plan in May 2022. She believed Y could have started at School A at that point. Mrs X believed the Council delayed providing Y with educational provision between May 2022 and February 2023.

Mrs X’s complaint

35. Mrs X complained to the Council about various issues, including the matters she has raised with us.

The Council’s complaint responses

36. In response, the Council:
• Apologised for the delay and miscommunications between March and May 2022.
• Accepted correct processes were not followed between Mrs X’s review request and the panel meeting in May 2022, and the panel did not have all of Mrs X’s supporting information.
• Explained it had to consult several schools to determine which setting should be named in Y’s EHC Plan. It apologised if Mrs X felt excluded from the decision-making process and was not offered relevant information at the time.
• Apologised for delays in sending out consultation letters after the May panel and for consulting a school which did not take children Y’s age.
• Apologised for not sending Mrs X outcome letters after each Council consultation decision as this was not standard Council practice.
• Accepted its communication with Mrs X leading up to the final EHC Plan in July 2022, was poor and it should have discussed the final EHC Plan with her before issuing.
37. The Council said it would take the following actions to prevent recurrence:
• Undertake a training session with the SEND team regarding the importance of effective communication and providing clear explanations to parents regarding the EHC Plan reviews and school consultation processes.
• Provide further training to caseworkers about the annual review and SEND tribunal processes to address any gaps in knowledge so they are clear about their role, and to avoid unnecessary delays.
• Make efforts to stabilise its team and workforce so Y and other children did not experience several changes in key workers. This would improve its services to children and families.
38. Unhappy with the Council’s response to her complaint, Mrs X approached the Ombudsman.

Back to top

Analysis

1(a) Mr and Mrs X’s complaint about the Council’s handling of a request for an early annual review of their child Y’s Education, Health, and Care (EHC) Plan.

39. The law as set out at paragraph 18 (above) says the Council does not have to accept a request for an early EHC review. However, in certain circumstances, where there is a clear need or a breakdown in the educational setting it may exercise discretion. The evidence shows the Council’s SEN caseworker initially refused Mrs X’s request. They later informed Mrs X her request would be considered further at a panel in April 2022. The evidence provided by Mrs X strongly indicates the caseworker failed to send Mrs X’s request, include the supporting information and it was not reviewed until mid-May. This avoidable delay in processing Mrs X’s request is fault and inconsistent with the Ombudsman’s principles of good administrative practice, which requires Council’s to make timely decisions and keep service users informed about any delays. After the panel the caseworker’s outcome email was also unclear about whether the Council had agreed to amend the plan (paragraphs 27 and 28). Overall, these faults caused Mr and Mrs X uncertainty and distress about whether their request was being properly managed, the actual outcome and the potential impact on Y’s education.
40. The May 2022 panel decided not to amend Y’s EHC plan but consult maintained specialist schools. This is a decision the Council is entitled to reach exercising its professional judgment. However, I note the Council accepted in its complaints response that the panel did not have key supporting evidence provided by Mrs X. The Council also accepts there was delay, miscommunication and its processes were not followed between March and May 2022. These admitted failings amount to fault which meant this was a missed opportunity to address Y’s educational needs at an earlier stage. This caused Mr and Mrs X avoidable uncertainty and distress about the outcome, the continued delay in arranging suitable special educational provision for Yand the impact on his academic development.

1(b) Mr and Mrs X’s complaint about the Council’s consultation with schools

41. The available evidence does not detail the Council’s school’s consultation process. However, the Council has explained it approached multiple schools and accepts one of them did not meet criteria due to age. It also apologised for not keeping Mrs X fully informed about the process and involving her in the decision making. I find the Council’s overall consultation efforts were consistent with the guidance set out at paragraphs 19-20 (above) but there was poor communication with Mrs X during this period as accepted by the Council. This caused Mr and Mrs X avoidable uncertainty and frustration about the delay in arranging Y’s special educational provision.

1(c) Mr and Mrs X’s complaint about delay in commissioning an Educational Psychologist (EP) report.

42. Mrs X said the Council should have obtained an EP report after she made her early EHC Plan review request in May 2022. However, the Code as explained at paragraphs 17 and 18 (above) does not mention any statutory duty on the Council to obtain such reports during an early EHC Plan review. Councils are under a duty to obtain specialist reports during EHC needs assessment, re-assessments, and the annual review process. Based on the evidence, I therefore do not find fault in the Council’s decision to wait until Y’s annual review in November 2022, before obtaining an EP report. The Council decided to amend Y’s EHC plan to name School A at this point also. However, in my view the Council should explained the limitations of the early EHC review process to Mr and Mrs X from the outset and maintained better communication throughout. The Council also accepts this position in its final complaint response. The failure to do so is fault which caused Mr and Mrs X avoidable uncertainty and frustration about the lack of the EP report and the impact on Y’s access to special educational provision.

Back to top

Agreed action

43. Mrs X said she wanted the Council to reimburse her legal costs, but the Ombudsman is unable to make such orders. Mrs X should have addressed this issue with the SEND tribunal which considers legal costs orders.
44. The Council has already set out appropriate measures it will take to prevent recurrence (paragraph 37). This is a partial remedy but does not reflect the full extent of injustice to Mr and Mrs X. Within one month of my final decision, the Council should also:
• Write to Mr and Mrs X and apologise for its:
1. Failure to explain the early EHC Plan review process and its limitations and any uncertainty caused.
2. Avoidable delay in processing their early EHC Plan review request for child Y, any miscommunications and failing to explain the outcome clearly and any uncertainty and distress caused.
3. Failure to ensure the EHC Plan review panel had relevant supporting documentation provided Mrs X and any uncertainty and distress they consequently experienced about the decision outcome.
4. Poor communication with Mr and Mrs X during the school consultation process and addressing their queries about delays in commissioning Y’s educational psychologists report.
• Pay Mr and Mrs X £200 to reflect their avoidable frustration, uncertainty, and distress.
45. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

46. I find the Council at fault which caused Mr and Mrs X avoidable uncertainty, frustration, and distress. The Council has already instigated measures to prevent recurrence which is a partial remedy. It should also apologise and make a symbolic payment of £200 to Mr and Mrs X for the faults identified in this statement and injustice caused to them.
47. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman