Report by the Local Government and Social Care Ombudsman

Transcription

1 Report by the Local Government and Social Care Ombudsman Investigation into a complaint against Cornwall Council (reference number: ) 19 April 2018 Local Government and Social Care Ombudsman

2 The Ombudsman s role For 40 years the Ombudsman has independently and impartially investigated complaints. We effectively resolve disputes about councils and other bodies in our jurisdiction by recommending redress which is proportionate, appropriate and reasonable based on all the facts of the complaint. Our service is free of charge. Each case which comes to the Ombudsman is different and we take the individual needs and circumstances of the person complaining to us into account when we make recommendations to remedy injustice caused by fault. We have no legal power to force councils to follow our recommendations, but they almost always do. Some of the things we might ask a council to do are: apologise pay a financial remedy improve its procedures so similar problems don t happen again. Section 30 of the 1974 Local Government Act says that a report should not normally name or identify any person. The people involved in this complaint are referred to by a letter or job role. Key to names used Ms D - The complainant G - The complainant s son School Z - The secondary school where G was enrolled 2

3 Report summary Education Council: SEN Provision and EHC Plans Ms D complains about transfer of a statement into an Education, Health and Care (EHC) Plan, delay in completing an Annual Review of the EHC Plan, and delay in amending the EHC Plan. There was fault in the way the transfer review was carried out. The Council delayed completing the Annual Review of the EHC Plan. Having decided to amend the EHC Plan the Council then severely delayed issuing an amended EHC Plan. Ms D experienced a prolonged period of uncertainty and suspense as to the Council s final decision on G s special educational needs and appropriate provision and setting to meet needs. Prolonged delay also meant Ms D was not able to appeal to tribunal about G s EHC Plan until January Finding Fault found causing injustice and recommendations made. Recommendations The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended) In addition to the requirements set out above, we recommended, and the Council has agreed, to: apologise to Ms D in writing for the faults we have identified; pay Ms D 1,000 to acknowledge the distress and frustration caused by severe delay completing the Annual Review and amending an EHC Plan for G; review how it audits compliance with time frames for EHC Plan processes; and ensure appropriate action is taken on casework where there is significant overrun of statutory time frames. 3

4 The complaint 1. The complainant (Ms D) complains about the following matters: a transfer review process for Ms D s son (G) was carried out incorrectly; the Council failed to complete the November 2015 Annual Review of G s EHC Plan in a timely way; following a decision to amend G s EHC Plan the Council severely delayed issuing a final amended EHC Plan; and the Council failed to put in place an alternative education package for G during a period when he was not able to attend school. Legal and administrative background The Ombudsman s role 2. We investigate complaints about maladministration and service failure. In this report, we have used the word fault to refer to these. We must also consider whether any fault had an adverse impact on the person making the complaint or the person on whose behalf the complaint was made. We 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 26(A)(1), as amended) Special educational needs and disability code of practice: 0 to 25 years 3. When considered necessary, a council will arrange education for a child or young person up to the age of 25 with special educational needs (SEN) under an EHC Plan. This specifies the nature of the learning difficulty, provisions, outcomes and placement. Statutory guidance on EHC planning and assessment is provided in Special educational needs and disability code of practice: 0 to 25 years January 2015 (the Code). 4. The local authority SEN Team must review EHC Plans every 12 months starting on the date the plan was first made. Annual Review is a multi-stage process and involves input by the school the child attends as well as the local authority. A key purpose of Annual Review is to assess the continuing effectiveness of the EHC Plan. The final stage of the Annual Review process is the local authority decision whether to continue, change or end the EHC Plan. Annual Review of an EHC Plan might also result in the local authority decision to carry out statutory reassessment with a view to issuing a new EHC Plan based on fresh assessment from relevant professionals. 5. Paragraph of the Code says: within four weeks of the review meeting, the local authority must decide whether it proposed to keep the EHC Plan as it is, amend the plan, or cease to maintain the plan, and notify the child s parent or the young person and the school or other institution attended. If the plan needs to be amended, the local authority should start the process of amendment without delay. 6. Paragraphs and of the Code say if the local authority decides to amend the EHC Plan it must consult with the parent or the young person and allow them to make representations on the proposed changes. Paragraph of the Code says: if the local authority 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. If the local authority decides not to make the 4

5 amendments, it must notify the child s parent or the young person, explaining why, within the same time limit. 7. The parent or young person can appeal to the Special Educational Needs and Disability (SEND) tribunal against a final amended EHC Plan. Paragraph of the Code says when sending the final amended EHC Plan, the local authority must notify the child s parent or the young person of their right to appeal. Statutory guidance on conversion of statements of SEN into EHC Plans 8. Since September 2014 councils have been under a duty to convert existing statements of SEN into EHC Plans. The process by which statements are transferred to an EHC Plan is called transfer review. The government publishes statutory guidance for councils on conversion of statements into EHC Plans. The statutory guidance in force at the time of the complained about matter was Transition to the new 0 to 25 special educational needs and disability system: statutory guidance for local authorities and organisations providing services to children and young people with SEN August 2014 (Transition). It is this version of the statutory guidance which is referred to in the paragraphs below. 9. Paragraph 6.5 of Transition says as part of the transfer review local authorities must ensure the child s parents or the young person are invited to a meeting. Paragraph 6.5 of Transition says at least two weeks notice of the date of the meeting must be given. Paragraph 6.5 of Transition says in the case of a child or young person attending a school, the local authority can require the head teacher to arrange and hold that meeting. 10. Paragraph 6.6 of Transition suggests two frameworks for the transfer review meeting. One framework is a meeting similar in structure and purpose to the Annual Review meeting under the former SEN system, a meeting to which a range of relevant professionals are invited to consider the progress of the child or young person and the future provision required. The other framework is a meeting between the local authority and the child s parents or young person to discuss the draft EHC plan. Paragraph 6.6 of Transition suggests the Council has overall responsibility for planning the meeting whichever format it takes: The precise purpose of the meeting will vary depending on the point during the transfer review that the meeting takes place. It is for local authorities to determine who should attend the meeting to ensure it achieves its purpose. 11. Paragraph 6.3 of Transition says a transfer review will require them [the local authority] to undertake an EHC needs assessment under section 36 of the Children and Families Act This involves considering existing advice and assessments and commission of new assessments when considered necessary. Paragraph 6.7 of Transition suggests when deciding whether fresh assessment is necessary the Council must consider how recently existing advice was provided and must consult with parents and young people on sufficiency of existing advice and assessment. Thus paragraph 6.7 of Transition says the local authority must not seek any advice required for an EHC needs assessment if such advice has previously been provided for any purpose and the person providing that advice, the local authority and the child s parents or the young person are satisfied that it is sufficient for the purposes of an EHC needs assessment. Paragraph 6.6 of Transition says in many cases much of the assessment information contained within the statement of SEN is likely to remain accurate. Paragraph 6.7 of Transition says additional assessments can be conducted where needed. 12. Paragraph 6.1 of Transition says the process of EHC assessment and EHC plan development must be carried out in a timely manner. Paragraphs 6.4, 6.7 and 5

6 6.8 of Transition say other than in exceptional circumstances set out in legislation the council must complete a transfer review within 14 weeks of the notification to the parent or young person that they are carrying out a transfer review. The transfer review finishes when the council issues the finalised EHC Plan. How we considered this complaint 13. We have produced this report following the examination of relevant files and documents. We have considered Ms D s and the Council s comments on the draft report. What we found What happened 14. G has SEN (social, communication and learning difficulties associated with autistic spectrum disorder). The Council had arranged G s education under a statement of SEN since he was four years old. G attended a mainstream primary school and was due to start secondary school in September The Council sent Ms D a letter dated 29 October 2014 notifying her of arrangements we will be making to transfer your child s statement to an Education, Health and Care Plan. The letter said the transfer review will be completed within 14 weeks of the date of this letter. The letter referred to a transfer review meeting whose purpose was to provide an opportunity to review your child s progress and to collate all relevant information to assist in drawing up the new EHC Plan. 16. A transfer review meeting took place in G s primary school on 26 November The primary school s SEN co-ordinator (SENCO), Ms D and her partner (G s father) attended the meeting. 17. The primary school s headteacher submitted a transfer review report to the Council in December The headteacher signed and dated the report 17 December The Council issued a draft amended statement of SEN for G on 31 December The Council sent a cover letter inviting Ms D and her partner to make representations and indicating it was the Council s intention to name a local mainstream school (School Z) as G s secondary phase school in Part 4 of the final amended statement. 19. The Council issued a final amended statement of SEN on 6 February School Z was named in Part 4 as the school G will attend from September The Council issued a Final EHC Plan on 23 March The Council sent Ms D a cover letter dated 23 March 2015 stating Ms D s right of appeal to tribunal. 21. G started at School Z in September Ms D sent a letter dated 22 September 2015 to a senior manager in the SEN team. The letter expressed unhappiness with School Z s understanding of G s EHC Plan and the way it was implementing provisions specified in section F of the Plan. Ms D also said she had lost confidence in the SEN case officer responsible for G s EHC Plan. 23. On 4 November 2015 Ms D told the Council she was concerned about inaccuracies and gaps in a report School Z forwarded to her in preparation for G s 6

7 Annual Review. Ms D also said there were gaps in G s EHC Plan. Ms D said she had lost confidence in the SEN case officer responsible for G s EHC Plan. 24. The SEN case officer sent Ms D an on 5 November The named health professionals linked to School Z. The case officer said section G (health provision) of the EHC Plan was empty because there is no request for outcomes/provision in section G or any documents from health. The case officer said she would attend the upcoming Annual Review meeting. 25. The SEN team senior manager sent Ms D a letter dated 5 November The letter said Ms D and others could propose changes to the EHC Plan at the Annual Review meeting and the SEN team would consider these and amend the EHC Plan as required. The letter said parents had formal appeal rights in relation to the Council s final decision on whether to amend an EHC Plan. The letter said School Z had forwarded relevant and detailed information to the local authority and parent in preparation for G s Annual Review. The letter did not uphold Ms D s complaint about G s casework officer. 26. During a telephone conversation with G s casework officer on 6 November 2015 Ms D expressed concern about School Z s ability to meet G s SEN. Ms D said the Council had not carried out the transfer review process (conversion of G s statement into an EHC Plan) correctly. Ms D asked the Council to provide copies of the Council s education files on G and his brother. Ms D sent the casework officer an on 9 November 2015 laying out her understanding of what was said during the telephone conversation. 27. G s casework officer sent Ms D an on 17 November 2015 with information about how to request documents and information from the Council. 28. An Annual Review meeting was held in School Z on 18 November (The original plan was to hold a meeting on 14 October but Ms D was unable to attend on this date.) 29. On 24 November 2015 School Z s SENCO sent the SEN casework officer draft Annual Review Forms for G and a copy of a draft action point letter. On 26 November 2015, the SEN casework officer sent School Z s SENCO an saying all looks OK with the forms and suggesting minor amendments. 30. At the beginning of December 2015 Ms D received School Z s completed Annual Review Forms and an action point letter dated 30 November Ms D sent the SEN team a letter dated 30 December Ms D said School Z s report/record of the Annual Review meeting was not accurate. Omissions and inaccuracies in the record of the meeting included failure to record the school openly admitted that none of the provision detailed within the EHC plan had been put in place. 32. On 13 January 2016 Ms D submitted a complaint to School Z s headteacher and governors. The complaint concerned School Z s transition arrangement for G and his brother, School Z s management of Annual Review, implementation of aspects of G s EHC Plan, communication between school and home, and an alleged comment made by School Z s headteacher about pupil swearing. The Council (School Improvement Team) on behalf of School Z investigated the complaint in early February Taking into account the Council investigator s findings School Z did not uphold the complaint. 33. G stopped attending School Z on 27 January Ms D was concerned G s physical and mental health would deteriorate if G were to continue attending 7

8 School Z without appropriate support. Ms D said she lacked confidence in School Z s ability to meet G s needs and implement certain provisions specified in G s EHC Plan. Ms D was particularly concerned about poor understanding of G s needs on the part of certain Teaching Assistants and the SENCO and G experiencing difficulty adapting to support from several Teaching Assistants as opposed to one or two. Ms D said she planned to educate G at home. 34. Ms D educated G at home from 27 January 2016 which she says was a stop-gap measure as School Z was not providing suitable education. Ms D says she bought learning materials for G and arranged for a tutor to provide English lessons on a private basis. School Z kept G s name on the admission and attendance registers. From 27 January to 15 June 2016 all G s attendances were registered as Code B ( educated off-site/approved educational activity ). 35. Ms D says during the first six months of 2016 she arranged for G to be assessed by a consultant paediatrician, occupational therapist, physiotherapist, and educational psychologist. Ms D also initiated a referral to Child and Adolescent Mental Health Service (CAMHS) and the Autistic Spectrum Disorder Team. Ms D was concerned the EHC Plan did not contain up-to-date information about G from health professionals and the educational psychologist. 36. The Council received School Z s finalised report on the Annual Review meeting and associated action plan on 4 February Ms D sent the SEN team a letter dated 21 February The letter said Ms D had not received any paperwork from you regarding my son s Annual Review held on 18 November. I have also not received any response to the letters I sent regarding the Annual Review paperwork. I would appreciate if you could let me know what is happening with regard to these matters. 38. School Z s headteacher sent Ms D a letter dated 1 March 2016 expressing concern about G s continued absence and inviting Ms D to a meeting to discuss a reintegration plan for G. 39. G s General Practitioner sent School Z a letter dated 3 March 2016 describing G s symptoms (high anxiety and tics/vocalisations caused by anxiety) and suggesting without appropriate support G should not attend school. The letter said while we are waiting for further input from CAMHS and possibly from the Autistic Spectrum Disorder Team, I would be grateful if you could consider allowing mum to continue to tutor D from home. 40. On 15 March School Z made an informal request for the advice and input of the Education Welfare Service about G s attendance pattern since January An Education Welfare Officer visited Ms D at home on 12 April The Education Welfare Officer and SEN team took the view G s non-attendance was caused by a breakdown in the relationship between Ms D and School Z and the situation was retrievable if School Z were to put in place a suitable reintegration plan. Council officers believed School Z could meet G s needs if certain adaptations were made. Council officers said G s academic ability meant placement in a local authority special school or Area Resource Base was not suitable. 42. The Education Welfare Officer recommended Ms D participate in Team Around the Child meetings as a multi-agency forum for discussing concerns and coordinating services to support G and the family. Ms D agreed to participate. The Education Welfare Officer also recommended Ms D attend a meeting at School Z to discuss G s reintegration. 8

9 43. On 21 April 2016, the Council issued a draft amended EHC Plan for G. Section I of the draft Plan named School Z and referred to a mainstream school for pupils of secondary school age as the appropriate educational setting for G. 44. The Council sent a cover letter dated 21 April 2016 stating Ms D s right to make representations on the draft EHC Plan. The letter said: We note the comments and concerns you have made about the review paperwork and suggest that you discuss those with the SENCO at School Z. 45. Ms D sent a letter dated 3 May 2016 in response to the draft EHC Plan. Ms D requested a meeting with SEN team staff to discuss changes. 46. On 6 May 2016, the SEN team agreed to consider making further amendments to the draft EHC Plan. 47. On 11 May 2016 Ms D attended a meeting at School Z to discuss G s phased return to School Z. Attendees included Ms D, Ms D s partner, School Z staff and the Education Welfare Officer. The meeting discussed a range of issues including the following: the way in which School Z delivered Teaching Assistant support for G and the need for adaptations if G were to be successfully reintegrated; Ms D s view the EHC Plan required revision and health-related provisions should be included in an amended EHC Plan; need for an up-to-date assessment of G by an Educational Psychologist; and need to initiate Team around Child Meetings. 48. Ms D also met a Teaching Assistant at School Z on 18 May 2016 to discuss reintegration. Ms D remained unsure about whether G could be successfully reintegrated in School Z. 49. Ms D sent the Council a formal complaint letter dated 24 May The letter said the following. The Council had not carried out an EHC needs assessment when converting G s statement into an EHC Plan in the period November 2014 March The SEN Team failed to request advice and reports from health professionals when putting together the EHC Plan for G. Ms D had been obliged to approach various health professionals herself and initiate referrals to secure up-to-date information about G. The Council issued an EHC Plan without seeking Ms G s comments and representations by issuing a draft Plan. School Z had failed to implement the provisions specified in G s EHC Plan. School Z had not complied with the Code of Practice on the Annual Review process. The SEN Team had failed to acknowledge and respond to two letters Ms D had sent. The Council had failed to complete the Annual Review process in a timely way. When issuing a draft amended EHC Plan in April 2016 the Council failed to follow the Regulations and statutory guidance. The combined failings of the Council and School Z were responsible for a deterioration in G s health and wellbeing. 9

10 50. The Council issued a complaint response in a letter dated 1 June The letter made the following points. The process of transferring statements of special educational needs to Education, Health and Care plans has, in some cases, not been as robust as the Code of Practice envisaged. The Council could transfer a statement without carrying out an EHC needs assessment where up-to-date information was available. Issue of a draft EHC Plan was unnecessary when the parent had been given a recent opportunity to comment on a draft amended statement. Notwithstanding this, the authority has recognised that a draft EHC plan should be issued and comment invited in all cases, before a final plan is issued. This change has recently been implemented. The Council apologised for the omission. The Council had consulted with Ms D about secondary school placement for G. The Annual Review completed at the beginning of 2014 involved consultation with Ms D about G s secondary school placement. The Council offered a further consultation opportunity on G s secondary school placement when asking for Ms D s representations and comments on the draft amended statement issued on 31 December Under the SEN Code of Practice health partners are not under a duty to attend Annual Review meetings. Ms D should complain directly to School Z about failure to put in place provisions specified in the EHC Plan which it was the school s responsibility to deliver. Notwithstanding this the SEN team would liaise with School Z about Ms D s concerns if Ms D agreed to this. The Council had no record of receiving Ms D s letters dated 30 December 2015 and 21 February The Council was satisfied the proposed amendments in the draft EHC Plan of 21 April 2016 were clearly expressed and supported by evidence. Ms D could escalate her complaint to stage G began attending School Z from 16 June The attendance register records G as present in school for 12 sessions from 16 June 2016 to 21 July G also attended a number of educational visits/trips in this period. School Z marked G s other attendances between 16 June and 21 July as Code B. 53. Ms D sent a letter dated 20 August 2016 to the Council s Chief Executive asking the Council to investigate and respond to her complaint about G at stage 2. The Council sent a letter dated 23 August 2016 saying the following: Thank you for your letter of 20 August regarding your request to progress your complaint to stage 2 of the complaints procedure. The Chief Executive has noted your concerns and has passed your letter to the Complaints Manager, Corporate Director for Education, Health and Social Care, for consideration. 54. Ms D has told us from June 2016 onwards she continued to seek advice and assessments about G from professionals including a CAMHS consultant psychologist, occupational therapist, physiotherapist and paediatrician. Ms D has told us the CAMHS consultant in September 2016 diagnosed Tourette s Syndrome in relation to G. 10

11 55. Since September 2016 the following has happened. In the autumn term 2016 and the spring and summer terms of 2017 G attended School Z on a reduced timetable. School Z recorded G on the attendance register as being educated off site (Code B) for approximately half of all available sessions. Ms D says she continued to educate G in the family home for part of the school day. Physiotherapy and occupational therapy inputs were timetabled into the school day from September With the agreement of Ms D the Council put in place a Common Assessment Framework (CAF) process. This involved multi-agency (Team Around the Child meetings) in September and November An Early Support Plan was issued for G. In the autumn term 2016 Ms D continued to express dissatisfaction at Team Around the Child meetings and directly to the SEN team about the education G was receiving at School Z. Ms D made further enquiries about placements in specialist units (Area Resource Base) attached to mainstream secondary schools. Ms D also expressed concern about an upcoming Annual Review meeting and whether School Z would administer it correctly. In the autumn term 2016 the SEN team and Ms D further discussed amendments to G s EHC Plan. The Council issued a proposed amended EHC Plan on 6 December The Council issued a final amended EHC Plan on 12 January An Annual Review meeting was held in School Z on 25 January A Council officer chaired the meeting. The Council decided the EHC Plan should be further amended. Following further discussion with Ms D and with Ms D s agreement the Council decided on 22 May 2017 to carry out statutory re-assessment with a view to issuing a new EHC Plan. Ms D has told us she is still waiting for the Council to finalise the EHC Plan. The Council allocated a place for G at a maintained school specialising in the education of children with complex learning difficulties and disabilities. G started attending the school in September Ms D says G is making good progress in the school and is on a full-time timetable. Analysis Transfer review conversion of statement into an EHC Plan 56. There is evidence of fault in the way the Council carried out a process of converting a statement into an EHC Plan. 57. The transfer review meeting of 26 November 2014 is reasonably understood as a meeting similar in purpose to Annual Review with the added dimension of planning for issue of an EHC Plan. Paragraph 6.6 of Transition indicates this is a meeting to which a range of relevant professionals are invited to consider the progress of the child or young person and the future provision required. There is no evidence a range of professionals including a representative of the SEN team attended or were invited to the transfer review meeting. We note paragraph 6.6 of Transition suggests the Council is responsible for strategic planning of the transfer review meeting: It is for local authorities to determine who should attend the meeting to ensure it achieves its purpose. 11

12 58. The evidence for the March 2015 EHC Plan was drawn to a significant degree from historic assessment carried out in The Council does not appear to have considered the continuing relevance or otherwise of assessments and advice professionals submitted to the SEN team in There is no evidence the Council consulted with Ms D about sufficiency of existing advice and assessment. It is likely, if the Council had discussed sufficiency of existing assessments with Ms D, she and her partner would have requested a full scale EHC needs assessment. 59. The Council omitted the Draft Plan stage. Issue of a Draft EHC Plan is a statutory requirement. This stage gives the parent or young person an opportunity to make representations about the proposed EHC Plan and have these properly considered before Plan finalisation. A parent also has the right at this stage to state a preferred school. Sharing the EHC Plan in draft provides an opportunity for parents to shape the EHC Plan at a critical stage in its formation. 60. The Council has suggested omission of the draft stage did not create significant injustice for Ms D since the Council had consulted with Ms D three months earlier on a proposed amended statement of SEN containing similar provisions to those specified in the EHC Plan. The Council also consulted with Ms D on the school which was named in the EHC Plan - the Council sent Ms D a proposed amended statement cover letter in December 2014 indicating an intention to name School Z. 61. We note the Council, when issuing the final EHC Plan in March 2015, drew attention to Ms D s statutory right of appeal to the SEND tribunal. There was therefore a means of redress for Ms D in relation to perceived weaknesses in the transfer review. However, if the Council had shared the EHC Plan in draft with Ms D it is possible she would have made representations on certain matters she later raised with the Council such as absence of any information in section G of the EHC Plan, and the Council s failure during G s final year in primary school to commission fresh assessments and advice from professionals. Issue of a draft EHC Plan is a necessary procedural step and Ms D understandably lost some confidence in the SEN team when she became fully aware of the error in In our view issue of an amended statement of SEN during a period when a transfer review was in progress created unnecessary confusion for Ms D and directed attention away from transfer review. Significant delay in completing Annual Review of G s EHC Plan 63. Paragraph of the Code says within four weeks of the review meeting, the local authority must decide whether it proposes to keep the EHC plan as it is, amend the plan, or cease to maintain the plan, and notify the child s parent or the young person and the school or other institution attended. This is the final stage of the review process. The Council delayed making a decision about whether to keep or amend G s EHC Plan following the Annual Review meeting of 18 November The Council should have completed the review process and decided whether or not to amend the EHC Plan by mid-december 2015 or early January 2016 at the latest. Instead the Council made the decision on 21 April 2016 which was four months later than it should have done. The delay involved was significant. 64. The Council says School Z failed to promptly write and forward a report on the Annual Review meeting and the Council s failure to complete the Review within the required time frame is attributable to School Z s failings. The Council says it chased School Z for the Annual Review paperwork and School Z sent its finalised 12

13 report and recommendations on 4 February 2016 which was much later than it should have done. 65. However, section 20(10) of the Special Educational Needs and Disability Regulations 2014 and the Code suggest a council is under a strict duty to make a decision about the effectiveness of the EHC plan and whether to amend it within a four week time frame. We note a SEN team representative (G s casework officer) was present at the Annual Review meeting and would have been aware of the views and recommendations made by participants. We note on 24 November 2015 School Z s SENCO sent G s casework officer draft Annual Review Forms for G and a copy of a draft action point letter. 66. Delay in completing the Annual Review process created injustice for Ms D. Delay left Ms D in a state of prolonged uncertainty and suspense as to what the outcome would be. The outcome of Annual Review was a decision to amend the EHC Plan. If this decision had been made in mid-december 2015 or the beginning of January 2016 the Council would have been in a position to issue an amended EHC Plan for G as early as February or March Ms D has told us about the frustration and distress caused by the delay. We note Ms D sent the SEN team a letter dated 21 February The letter said Ms D had not received any paperwork from (the SEN team) regarding my son s Annual Review held on 18 November. I have also not received any response to the letters I sent regarding the Annual Review paperwork. I would appreciate if you could let me know what is happening with regard to these matters. Severe delay issuing a final amended EHC Plan 68. Paragraph of the Code says when a Council decides an amendment is necessary it must issue the amended EHC plan as quickly as possible and within 8 weeks of the original amendment notice. As opposed to eight weeks the Council took around eight months to issue a final amended EHC Plan. The Council says it delayed issuing an amended EHC Plan because Ms D made representations in relation to a draft amended EHC Plan and it wanted to carefully consider her representations before finalising the Plan. 69. However, the fact Regulations and the Code give parents (or a young person who is old enough to have left school) significant consultation rights in relation to the draft EHC Plan and the Council is under a duty to carefully consider representations by parents does not mean councils can exceed the statutory time frame for finalisation. In this case the overrun was not trivial. It amounted to six months. Further it followed on from a previous process in which significant delay by the Council was involved. We note the final amended plan of January 2017 incorporated a minor amendment to the original EHC Plan. The Council should have issued an amended EHC Plan for G much earlier than it did. 70. The consequence of delay in finalising a proposed amended EHC Plan was a period of prolonged suspense and uncertainty for Ms D as to the Council s final view on G s SEN, appropriate provision and education setting. Prolonged delay also meant Ms D was not able to appeal to tribunal about the EHC Plan until January If the Council had issued an amended final EHC Plan promptly Ms D and her partner would have been able to take stock of the situation in the early months of 2016 and decide next steps which might have included request for statutory re-assessment or appeal to tribunal. 71. Ms D told us the Council s delay in finalising an EHC Plan in the period June 2016 to January 2017 caused her frustration and upset. Ms D said due to demands 13

14 associated with G being on a part-time timetable, and extra demands associated with parenting two other children with additional needs, she did not have the time or energy to send the Council chaser letters/ s about delay and the frustration she was experiencing. 72. Ms D told us she was very unhappy with the proposed amended EHC Plan of 6 December 2016 and the final amended EHC Plan of 12 January Ms D told us at the time the final EHC Plan was issued an Annual Review meeting was imminent and, as opposed to appealing to the SEND tribunal, she decided to use the Annual Review meeting to point out the inadequacies of the final EHC Plan and to request major amendments to ensure G received a suitable education in line with his SEN. We note Ms D proposed significant amendments to sections A, B, C, E, F, G and K of the EHC Plan in the months following the Annual Review meeting of 25 January Failure to properly investigate Ms D s complaint under the Council s corporate complaints procedure 73. On 20 August 2016 Ms D asked the Council to investigate her complaint at stage 2 (the final stage) of the Council s corporate complaints procedure. The Council acknowledged Ms D s request for complaint escalation in a letter dated 23 August There is no evidence the Council completed a written stage 2 complaint response and sent Ms D a copy of this. We note Ms D raised this matter in her original statement of complaint to us. Failure to investigate the complaint at stage 2, or to give Ms D a valid explanation for any decision which may have been made not to further investigate the complaint, caused Ms D additional frustration. Alternative education 74. We have considered whether the Council was under a duty to put in place an alternative education package placement in a medical needs related pupil referral unit (PRU) or provision of one to one home tuition - when G was not attending School Z between 27 January 2016 and 15 June The Council was not under a duty to put in place an alternative education package for G. This is because Ms D did not make a formal request for G s placement in a PRU or for local authority provision of a tutor to teach G at home. Ms D told School Z she was willing and able to efficiently educate G at home. School Z classified this arrangement as approved educational activity. Conclusions 75. There was fault in the way transfer review was carried out. The Council then delayed completing Annual Review of the EHC Plan. Having decided to amend the EHC Plan the Council then severely delayed issuing an amended EHC Plan. Delays completing Annual Review and amending the EHC Plan meant Ms D was left in a state of limbo for many months. Ms D experienced a prolonged period of uncertainty and suspense as to the Council s final decision on G s SEN and appropriate provision and setting to meet needs. Prolonged delay also meant Ms D was not able to appeal to tribunal about G s EHC Plan until January We note delay occurred during a period when Ms D was very dissatisfied with School Z and when G was being educated off-site and then on a part-time timetable. Ms D is left with uncertainty that, if the Council had acted without fault, education outcomes for G in his first two years of secondary education would have been better and G would have started attending a school in line with parental preference and his SEN significantly earlier than September

15 Recommendations 76. The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended) In addition to the requirements set out above, the Council has agreed to: apologise to Ms D in writing for the faults we have identified; pay Ms D 1,000 to acknowledge the distress and frustration caused by severe delay completing the Annual Review and amending an EHC Plan for G; review how it audits compliance with time frames for EHC Plan processes; and ensure appropriate action is taken on casework where there is significant overrun of statutory time frames. We welcome the fact that the Council has accepted our recommendations and has taken prompt action to implement them. Decision 77. We have completed our investigation into this complaint. There was fault by the Council which caused significant injustice to Ms D. The Council should take the action identified in paragraph 76 to remedy the injustice. 15