The Ombudsman's final decision
Summary: We upheld Mrs X’s complaint. There was a delay in completing the process of amending Miss Y’s Education Health and Care Plan and a failure to respond fully to the complaint. The Council will apologise and make symbolic payments to reflect avoidable distress and uncertainty.
The complaint
Mrs X complained for her daughter Miss Y that Staffordshire County Council (the Council) took until the end of August 2021 to issue an Education, Health and Care Plan (EHC Plan) following an annual review in November 2020. Mrs X also complained the Council did not respond fully to her complaint about this.
Mrs X said this caused avoidable frustration, time and trouble and a delay in appeal rights.
The Ombudsman’s role and powers
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) 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 a copy of the final decision statement of this complaint with Ofsted.
SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’)) 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. Parents must consider mediation before deciding to appeal. 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.
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)
How I considered this complaint
I considered Mrs X’s complaint, correspondence and emails from and to the Council and documents described in this statement. A colleague discussed the complaint with Mrs X on the phone.
Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Relevant law and guidance Children with special educational needs may have an Education, Health and Care (EHC) Plan. Councils are the lead agency for carrying out assessments for EHC plans and have the statutory duty to ensure special educational provision in an EHC Plan is made available. (Children and Families Act 2014, Section 42) The Special Educational Needs Code of Practice (the Code) is statutory guidance which councils should have regard to. We would normally consider breach of the timescales in the Code to be fault. Relevant paragraphs are: There must be a review of an EHC plan at least every year. The review considers the appropriateness of the EHC plan and whether any changes are needed, including any changes to the education placement. (paragraph 9.166) Within four weeks of the review meeting, the local authority must decide whether to keep, cease or amend the EHC plan and must notify the parent. If amendments are needed, the local authority must start the amendment process without delay. (paragraph 9.176) The local authority must send the current EHC plan and a notice setting out proposed amendments and give the parent at least 15 calendar days to comment. It must issue an amended plan as quickly as possible and within 8 weeks of the original amendment notice. (paragraphs 9.184- 9.186) For young people moving from secondary school to a post-16 institution, the review and any amendments to the EHC Plan – including specifying the post-16 provision and naming the institution – must be completed by 31 March in the calendar year of the transfer. (paragraph 9.180) What happened
Background
Mrs X has two daughters, Miss Y and another who both have EHC Plans. Mrs X complained about processes for reviewing and amending both daughters’ EHC Plans. This complaint is only about Miss Y.
The records indicate Mrs X sent a number of general emails and made calls expressing dissatisfaction with the SEND Team and also contacted her local councillor. She was not always specific about daughter she was referring to or about what she wanted to complain about.
Key events Miss Y attended a secondary school for pupils with SEN. She was in Year 13 in the school year 2020/2021. At the end of October 2020, Mrs X emailed the SEN team to say Miss Y wanted to attend College A from September 2021 and said the course Miss Y intended to do.
Miss Y’s school invited the SEN case worker to an annual review meeting which took place in November 2020. The SEN case worker did not attend. The school informed the case worker about Miss Y’s wish to change placement in 2021 and sent the SEN team the minutes of the annual review meeting at the end of November.
Mrs X emailed the SEN team at the start of January 2021 saying she and Miss Y had visited College A and wanted to study there from September 2021.
There was no response to Mrs X’s email and no progress on the case until May 2021.
A record of the Council’s SEN Assessment and Planning Service in May noted officers decided Miss Y could have eight hours of support from a learning support assistant.
At the end of May, the SEN case worker wrote to Mrs X saying the Council would be amending Miss Y’s EHC Plan to reflect the next stage of education ‘in due course’.
The Council sent a draft amended EHC Plan at the start of August 2021. It consulted with College A at the same time which responded saying Miss Y had applied, been accepted for a place and it could meet her needs.
Mrs X phoned the Council at the start of August asking why Miss Y’s case worker had changed. She was noted to be upset. Another worker phoned her back and then emailed to apologise about not telling her about the change of case worker which was because of staffing problems. Further emails went on to explain she had 15 days to comment on the draft EHC Plan after which the Council would issue a final EHC Plan to reflect the change of placement. Mrs X pointed out the annual review had taken place nine months ago and said she wanted to complain. The caseworker responded to say the Council would finalise the EHC Plan in the middle of August and she needed to provide her comments on the draft Plan by 18 August.
Mrs X called saying she was angry about the delay and wanted to make a formal complaint.
The Council issued a final EHC Plan in the middle of August naming College A. Mrs X said again on the phone that she wanted to complain. She was given a link to the complaints pages of the Council’s website. Mrs X had problems opening the secure email with Miss Y’s EHC Plan. So a case worker emailed her to say she had posted a copy first class post. Mrs X emailed to ask who she needed to contact to ask for changes to the EHC Plan. She was given the SEN case worker’s contact number.
The Head of SEND asked the case worker to contact Mrs X to resolve her concerns following an enquiry from Mrs X’s local councillor. The case worker emailed the Head of SEND to say she had spoken to Mrs X who was angry by the end of the call. The case worker noted she had told Mrs X: As college preferences could change, it was good practice to double check.
Case workers changed sometimes The EHC Plan was finalised after she had been given 15 days for comments on a draft plan.
The final EHC Plan was sent by post as she could not access the hub The Code did not specify a timeframe for amendments but said they should be completed as soon as possible and this was what happened, due to staff capacity.
Mrs X emailed the case worker at the start of September asking generally about amendments to the EHC Plan because Miss Y was starting college. Mrs X said several changes needed to be made and no-one had listened to her. But she did not specify those changes. The case worker replied saying the final Plan had already been sent to her, naming the college. She went on to say the course could be changed (as Miss Y did not get her grades) and they could then go through any information which needed changing. The caseworker confirmed the final EHC Plan was in place and the college had confirmed it could meet her needs and so everything was in place for Miss Y to start the following week.
Mrs X emailed the case worker at the start of September specifying in detail the parts of the EHC Plan that they wanted changing. The case worker said she would save Mrs X’s email and ensure it was actioned at the next annual review once Miss Y had settled into college. She provided a link to the complaints section of the Council’s website.
Mrs X emailed the complaints team saying she wanted to complain about her daughter’s EHC Plan following an annual review in November 2020. Mrs X did not say which daughter she was referring to.
The Council provided a brief response to Mrs X’s complaint in September saying it had finalised Miss Y’s EHC Plan and sent it to her by post and if she was unhappy with the plan she had a right to go to mediation and then to appeal. The Council signposted Mrs X to us. She complained to us in November 2021.
Events after Mrs X complained to us College A held an annual review at the start of January 2022. The Council considered the review paperwork the college sent and wrote to Mrs X at the start of February to say that there were no significant changes to Miss Y’s SEN indicated and so no changes to the EHC Plan were needed. The letter set out her rights of appeal to the SEND Tribunal. Information from the Council indicates there were more calls from Mrs X who was upset and angry and felt further changes needed to be made to Miss Y’s EHC Plan including a new diagnosis.
I asked the Council why it did not respond fully to Mrs X’s complaint and in particular why it did not identify and address the point about the delay in the EHC amendment process following the annual review in November 2020. The Council said “it was extremely difficult to communicate with Mrs X during this time and it was unclear as to the main aspect of her complaint, email correspondence was quite erratic and it appeared that the issue she was unhappy about was the EHCP still being incorrect, which would have ultimately been a matter for her to appeal. Mrs X was also stating at this point that she hadn’t received a complaint response to a prior issue, which caused further confusion. On responding to Mrs X, she sent emails in response to different matters which again caused confusion. The Council consider Mrs X did have an opportunity to clarify her complaint once this had been refused” The Council told me it had increased staffing in the SEN team since October 2021.
Was there fault?
As Miss Y was in a phase transfer year, moving from secondary school to a post-16 college, Paragraph 9.180 of the Code required the Council to complete the EHC Plan review and amendment process – including naming the institution and provision no later than 31 March 2021. As the Council did not issue Miss Y’s final EHC Plan until the last week of August, provisionally, this delay of almost five months was fault.
The Council also failed to keep to other relevant timescales in the Code and my provisional view is this additional delay was also fault. In particular: The Council should have decided whether to amend Miss Y’s EHC Plan within four weeks of the annual review (Paragraph 9.166 of the Code) so by the end of December 2020. It did not do so until the end of May 2021 when it wrote to Mrs X notifying her.
Following the letter to Mrs X at the end of May (which was already delayed as described in the last bullet point), the Council should have proceeded to send her a notice with proposed amendments to the EHC Plan. The Council sent a draft amended EHC Plan, but this was not until the start of August. Therefore, there was a delay which was a further failure to act in line with Paragraph 9.176 which requires the amendment process to proceed straight away.
The whole amendment process should have taken no longer than eight weeks to be compliant with Paragraphs 9.184 to 9.186 of the Code. Taking from the end of May to the last week in August was therefore not in line with the Code.
I note the Council’s view that some of Mrs X’s emails were hard to follow and so it was difficult to respond to her complaints effectively. However, the Council knows the statutory timescales set out in the Code and officers should have identified delay in its processes. As some of Mrs X’s emails were unclear, officers could have phoned her to seek clarity over which daughter and details of exactly what she was unhappy about. The failure to recognise the delay in the EHCP amendment process and its impact on Mrs X was poor complaint handling and was fault.
Injustice The fault I have identified caused Mrs X and Miss Y avoidable anxiety and distress and uncertainty about SEN provision for the following academic year.
Agreed action
Within one month of my final decision, the Council should: apologise to Mrs X and Miss Y for the failure to respond to the complaint fully and for the avoidable distress and uncertainty make them payments of £250 each to recognise the impact of the delay.
Final decision
I upheld Mrs X’s complaint. There was a delay in completing the process of amending Miss Y’s Education Health and Care Plan and a failure to respond fully to the complaint. The Council will apologise and make symbolic payments to reflect avoidable distress and uncertainty.
I have completed the investigation.
Parts of the complaint that I did not investigate I did not investigate complaints about the content of Miss Y’s EHC Plan, including the description of her SEN and the decision in February 2022 not to amend the Plan as it is reasonable for Miss Y to use her right of appeal to the SEND Tribunal.
Investigator's decision on behalf of the Ombudsman