Summary: There was a delay in issuing Y’s amended Education, Health and Care Plan which caused his mother Mrs X avoidable uncertainty about whether the Council would continue to fund the provision the next school year. The Council will apologise and pay her £150.

The complaint

1. Mrs X complained about Surrey County Council (the Council). She said it failed to follow the statutory annual review process from November 2020, including failing to issue her son Y’s Education, Health and Care Plan (EHC Plan) by the appropriate deadline during a transfer year. Mrs X said the Council’s failings caused significant avoidable uncertainty.
2. Mrs X also complained about matters in 2018 and 2019 including:
• a failure to assess Y’s needs properly or provide him with education and OT provision
• a failure to meet relevant statutory deadlines.

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What I have investigated

3. I investigated the complaint in paragraph one. My reasons for not investigating the complaints in paragraph two are at the end of this statement.

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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. If we are satisfied with a council’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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How I considered this complaint

6. I considered Mrs X’s complaint to us, the Council’s response to the complaint and documents set out in this statement. I discussed the complaint with Mrs X.
7. 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

8. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. (Education Act 1996, section 19). We refer to this as EOTAS (education otherwise than at school).
9. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance. I have summarised key parts below:
• Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
• Where a council proposes to amend an EHC plan, 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)
• If a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
10. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.
11. An EHC plan must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education such as from primary to secondary school, to allow for planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year of the transfer at the latest for transfers into or between schools.

What happened

12. Y has autism and ADHD. He has an EHC Plan, Y’s EHC Plan specifies he receives EOTAS. This includes tuition at home, occupational therapy and psychotherapy. Mrs X also receives a personal budget which she uses to fund educational activities in the community to support Y’s learning.
13. Mrs X received and commented on a draft amended EHC Plan in October 2020 which had no significant changes to the existing provision. Mrs X’s preference was EOTAS should continue.
14. There was an annual review in November 2020 attended by Y’s education providers, Mrs X and the SEND case officer. Mrs X received the paperwork before the review and commented on Y’s targets.
15. The Council has not provided me with any correspondence to Mrs X advising her about any proposed amendments to the EHC Plan following the annual review meeting or any correspondence or draft EHC Plans sent following the annual review meeting. Mrs X said in her complaint that she had received an email from the SEND team on 16 February 2021 confirming Y’s EOTAS provision would continue.
16. The Council issued Y’s final amended EHC Plan in June 2021. Mrs X emailed the SEND case officer saying Section I of the EHC Plan should be blank and quoted case law supporting this. The Council issued a second final Plan with Section I blank. Mrs X pointed out that the Council should have provided a decision within four weeks of the annual review. She also said the final plan should have been issued by 15 February and so was four months late.
17. Mrs X complained to the Council about the issues I am investigating. I have summarised its response below:
• It accepted it did not meet the deadlines for transfer or amending the EHC Plan following the annual review. This was because the Council was searching for potential school placements
• It did not issue a draft amended plan or notice of amendment following the annual review. This caused the family uncertainty
• Case officers would be getting training about the transfer and annual review processes. They also received training on annual reviews in June 2021
• Case managers discussed timescales in monthly supervision sessions.

Findings

18. Y’s annual review meeting took place at the end of November 2020. So the Council should have informed Mrs X within four weeks of its decision to maintain, cease or amend the plan. It should then have sent a notice of proposed amendments to the EHC Plan without delay: these failings were not in line with the law and guidance described in paragraph nine which was fault causing Mrs X avoidable confusion and uncertainty about whether Y’s education package would continue.
19. I note the Council sent a draft EHC Plan in October 2020 for Mrs X’s comments, but this was before the annual review meeting in November. The law and guidance in paragraph nine indicates the amendment notice/draft amended plan should be sent following the annual review not before. As such, I do not consider the Council can rely on the October draft amended plan to say it complied with law and guidance.
20. Because Y was moving from primary to secondary stage education, the Council should have issued his final amended EHC Plan by 15 February 2021. It did not do so until June. This four-month delay was fault, which again caused avoidable uncertainty about whether or not the EOTAS package would be continuing the next school year. It also delayed Mrs X’s rights of appeal which were not possible until the Council issued the final plan.

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Agreed action

21. Mrs X confirmed to me that Y’s EOTAS package continued with no significant changes and she accepted there had been no loss of provision. However, I consider the Council’s failure to follow the correct procedure and to comply with the relevant timescales caused avoidable uncertainty. To remedy this injustice, the Council will, within one month of my final decision:
• Apologise
• Make Mrs X a symbolic payment of £150.
22. I note SEND case officers were due to have training on the issues giving rise to this complaint. I am satisfied this reduces the risk of recurrence.

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Final decision

23. There was a delay in issuing Y’s amended Education, Health and Care Plan which caused his mother Mrs X avoidable uncertainty about whether the Council would continue to fund the provision. The Council will apologise and pay her £150.
24. Subject to comments, I intend to complete the investigation.
25. I have shared a copy of this statement with Ofsted in line with our information sharing agreement.

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Parts of the complaint that I did not investigate

26. I did not investigate the complaints in the second paragraph of this statement or about matters before November 2020 because they are late. I have taken into account Mrs X was focussing on the SEND tribunal hearing, but that finished in Summer 2020 and I consider it was reasonable for her to complain to us shortly after this, but she left it until November 2021 with no reason. This means I consider matters in 2018 and 2019 are out of time.

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Investigator's decision on behalf of the Ombudsman