The Ombudsman's final decision
Summary: Miss B complained about the actions of the Council in respect of her daughter C’s Education, Health and Care Plan (EHCP). We found the Council delayed in ensuring the Annual Review took place on time but given that C was residing in a secure unit ordered by the Court we do not think the outcome could have been different for C during this period. The Council has since carried out a full reassessment of C’s needs and she has moved to a new placement. This process is ongoing.
The complaint
Miss B complained about the actions of Suffolk County Council (the Council) in respect of her daughter’s Education Health and Care Plan (EHCP). She says it is not fit for purpose and the Council delayed in ensuring an annual review was carried out. This has caused her distress and frustration.
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) A child with special educational needs may have an EHCP. This sets out the child’s needs and what arrangements should be made to meet them. The EHCP 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.
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.
EHCPs must be reviewed annually. If the decision is to carry out a reassessment the Council should complete the whole process within 20 weeks of the request.
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 have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided.
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.
What I found
Miss B’s daughter C has been accommodated by the Council since January 2019, initially in a children’s home and foster care until she was moved to a secure unit in a different part of the country. She has special educational needs and has had an EHCP since 2019.
An Annual Review took place in September 2020. C moved back to Suffolk in early 2021 but the move was not successful, and she went back to a secure unit in February 2021. The court made an order authorising the move which was to be reviewed on a regular basis.
In May 2021 the Council issued an amended final EHCP for her to continue at the secure unit. In November 2021 Miss B complained that the EHCP was wrong. The Council responded in early December 2021. It said there had been some delay in arranging the annual review due to the secure unit cancelling appointments. It said C’s EHCP could not be updated until C returned to Suffolk.
At a child in care review meeting on 7 December 2021 the Council said the placement was meeting C’s needs but noted that the EHCP needed reviewing and/or amending. The court extended the secure accommodation order until March 2022.
In January 2022 the secure unit held an annual review. Miss B attended. She made it clear that she wanted a full reassessment of C’s needs. The Council proposed issuing an amended EHCP without a reassessment. It issued the draft EHCP on 27 January 2022 and the Council took initial steps to find a new placement for C with a view to her leaving the secure unit.
Miss B escalated her complaint to stage two of the complaints procedure and on 18 February 2022 the Council agreed to investigate the complaint. In March 2022 the court extended the order for C to stay in secure accommodation and Miss B complained again to us.
We asked the Council to complete stage two of its complaints procedure but the Council declined on the basis that there was ongoing court action.
On 16 March 2022 the Council agreed to carry out a full reassessment of C’s needs and sent out report requests. At the end of March 2022, a placement in Suffolk assessed C and offered her a place. C moved there in May 2022.
In June 2022 the Council issued a draft EHCP. It said the delay in doing so was due to a delay in obtaining the education psychology assessment.
Analysis Miss B had a right of appeal to the SEND Tribunal if she wished to challenge the EHCP issued in May 2021. I accept the situation was complicated by the fact C was in a secure unit ordered by the court, but it is not an issue I can investigate.
The annual review should have been held by September 2021; it was not held until January 2022, four months late. This was fault which caused Miss B frustration and to submit a formal complaint. However even if the annual review had been held sooner, I do not consider the outcome for C would have been different: the court was responsible for deciding how long C should remain in the secure unit which was providing all her needs including educational. Until the court decided she could move back to Suffolk to a non-secure placement it was unlikely the Council could achieve the change Miss B wanted.
Although the Council initially proceeded to issue a draft amended EHCP, in March 2022 it agreed to carry out a full reassessment, in accordance with Miss B’s wishes. This coincided with the arrangements for C to leave the secure unit and move back to Suffolk. I have not found fault with the process here.
The Council has issued the draft EHCP within 14 weeks so will exceed the timescale of 14 weeks from the date of the agreement to reassess to issue the final EHCP. But this process is ongoing, and it is too soon to reach any conclusions on it.
Final decision
Subject to further comments by Miss B and the Council, I intend to complete my investigation into this complaint as I am unable to find fault causing injustice in the actions of the Council towards Miss B.
Investigator's decision on behalf of the Ombudsman