Summary: Mrs X complained the Council delayed in finalising her daughter, D’s, Education, Health and Care (EHC) Plan, failed to ensure D received educational provision in line with her EHC Plan, and did not respond to her complaints in a timely manner or respond to the points she raised. The Council delayed in finalising D’s EHC Plan and at times did not ensure she received the educational provision in her Plan. It also failed to deal with Mrs X’s complaints appropriately. These faults caused Mrs X and D an injustice. The Council has agreed to make them a financial payment and review its processes to ensure similar faults do not occur in future.

The complaint

1. Mrs X complained the Council:
• delayed in naming her preferred school on her daughter, D’s, EHC Plan;
• failed to provide D with a full-time education from May 2018 to January 2020; and
• did not address the complaints she raised in its response to her at stage 2 of the complaints procedures.
2. Mrs X said that as a result, D missed out on education at a key stage. Mrs X said it also caused the family distress. She was put to unnecessary time and trouble in complaining and chasing the Council and financial disadvantage because it affected the number of hours she could work.

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What I have investigated

3. I have only investigated the period from May 2018 to March 2019. I explain why I have not investigated beyond March 2019 in paragraphs 21 and 22.

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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. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
6. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
7. The Special Educational Needs and Disability Tribunal is a tribunal that considers special educational needs.
8. 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)
9. 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.

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How I considered this complaint

10. I spoke to Mrs X and considered her view of her complaint.
11. I made enquiries of the Council and considered the information it provided. This included D’s EHC Plans, complaints correspondence, the Tribunal consent order and D’s school reports.
12. I wrote to Mrs X and the Council with my draft decision and considered their comments before I made my final decision.

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What I found

The law and statutory guidance

Education, Health and Care Plans

13. A child with special educational needs may have an EHC Plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. The Ombudsman cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
14. Councils have a legal duty to ensure the special educational provision in section F of an EHC Plan is delivered from the date they issue a final Plan. This duty is non-delegable.
15. Councils should ensure an annual review of the child's EHC Plan is carried out at least every 12 months.
16. The council’s decision following the review meeting must be notified to the child’s parent or the young person within four weeks of the review meeting.
17. 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.
18. If the council 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.

Council’s duty to ensure a suitable education

19. Section 19 of the Education Act 1996 says “councils must make arrangements for the provision of suitable education at a school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless arrangements are made for them”.
20. The provision can be at a school or otherwise, but it must be suitable for the child’s age, ability and aptitude, including any special needs. The only exception to this is where the physical or mental health of the child is such that full-time education would not be in his/her best interests.

Jurisdiction

21. Caselaw has established that where someone may appeal to SEND, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the contents of an EHC Plan or the type of educational placement it specifies, we cannot seek a remedy for lack of education after the date of the final EHC Plan. But, where there has been a delay in issuing an EHC Plan, the Ombudsman may consider whether any additional provision ordered by the Tribunal could have been made sooner but for the council’s delay. (R (on the application of ER) v The Commissioner for Local Government Administration [2014] EWCA Civ 1407).
22. In this case, the Council issued D’s final amended EHC Plan on 14 March 2019. Therefore, D’s education and placement from that date is inextricably linked to the appeal and I cannot look at events or potential fault and injustice after that date. As a result, my investigation into the education D received when out of school covers the period from May 2018 to March 2019.

Council’s complaints procedures

23. The Council has a two stage complaints procedure. It has no timescales for stage 1. For stage 2 reviews of complaints, the Council says it will provide a written report within 30 days of the review request.

What happened

24. D, who is of secondary school age, has a diagnosis of autism and mental health conditions. She has an Education, Health and Care Plan (EHC Plan). She used to attend School 1.
25. In May 2018, School 1 held an emergency annual review meeting because D was struggling at school. It informed the Council that changes were needed to D’s EHC Plan. D moved to a part-time timetable of mornings only and School 1 introduced a number of measures to try to keep D in school. It was agreed D’s parents would not send her to school if she was too anxious. D’s remained on School 1’s role until 10 July 2018. Mrs X said that at this point they decided D was becoming too distressed to attend school any longer.
26. On 10 June 2018, D stopped attending School 1 as her parents felt this was no longer in her best interests. School 1 formally informed the Council it could not meet D’s educational needs.
27. On 14 June 2018, School 1 held an annual review meeting. It again recommended changes to D’s EHC Plan and notified the Council. Notes from the review meeting recorded Mrs X had considered three out of area educational placements, only one of which, School S, she considered was suitable and had places available. School S is a residential special school. Mrs X had previously asked the Council to arrange for its educational psychologist (EP) to see D. This was because she felt D’s needs had changed. She asked again for this to take place.
28. The Council issued a consultation letter to another school, School 2. This was a mainstream day school. Mrs X said the Council made this decision against her wishes.
29. Another review took place on 16 July 2018. The CAMHS Clinical Psychologist attended and again recommended that D needed an assessment by the EP.
30. School 2 refused to accept D and so the Council wrote and informed the school it was naming it on D’s EHC Plan which meant the school had to accept her.
31. D began at School 2 in September 2018 on a part-time transition basis which consisted of lessons in art, relaxation and vocational courses for young people with special educational needs and disabilities. D was taught on a 1:1 or 2:1 basis with two key workers. Her attendance was poor and D stopped attending on 11 October 2018.
32. On 31 October 2018, the Council issued a notice stating it was proposing to amend D’s EHC Plan. The notice stated the Council needed to make amendments to the Plan to reflect a change in D’s needs and outcomes and her placement at School 2.
33. On 14 November 2018, School 2 implemented a reintegration plan which consisted of one home visit and three community outings. The school was unable to make any progress and at the end of November 2018, it formally told the Council it was unable to meet D’s needs.
34. On 2 December 2018, a Council officer from the Special Educational Needs and Disabilities (SEND) Team emailed the EP to ask for their formal involvement in D’s case.
35. On 1 February 2019, the Council responded to queries from Mrs X’s MP. The Council said it believed School 2 could meet D’s needs and once she was back in school, it would arrange an EP assessment. The Council said it would not consider a placement at School S because it believed School 2 could meet D’s needs.
36. On 19 February, the Council’s Complex Needs Panel met to discuss D’s case. The Council said it was sourcing a tutor to work with D at a neutral venue because she was unable to access school due to anxiety. School S was discussed and the Council said that because D’s problems related to her mental health, a residential school was unsuitable. The EP supported a tutor for D and raised concerns that D might not understand what attending a residential school might entail. The Panel agreed CAMHS would need to support any decision about D attending School S before a placement there could be considered.
37. On 9 March 2019, D began attending a vocational centre (Centre V) three mornings a week, which then increased to four mornings. This had been found by Mrs X and proved to be successful for D.
38. The Council issued D’s final amended EHC Plan on 14 March 2019. This named School 2 as D’s educational placement. At this point Mrs X’s appeal rights to the Tribunal were triggered. She lodged her appeal with the Tribunal on 27 May 2019.
39. Following discussions prior to the Tribunal hearing, in September 2019 the Council agreed to name School S on D’s EHC Plan.
40. The Tribunal issued a consent order on 12 December 2019. This stated the Council and Mrs X had reached agreement on the wording of D’s EHC Plan and placement and so the appeal had ended.
41. D left Centre V in January 2020 when she began boarding at School S.

Mrs X’s complaints to the Council

42. On 6 March 2019, whilst the events outlined above were taking place, Mrs X complained to the Council. Mrs X stated she wanted a number of outcomes from the complaints process, including:
• the Council to issue D’s final EHC Plan; and
• an Educational Psychologist (EP) assessment to be carried out.
43. A Council officer responded by email to Mrs X’s complaint on 3 May 2019. The response included the following:
• the Council had issued D’s final EHC Plan on 14 March 2019; and
• the Council had arranged for an EP to assess D but Mrs X was unhappy with the one allocated, so the Council had identified another EP to carry out the assessment.
44. The Officer said that if Mrs X was unhappy with the response, she should ask the Council to look again at her complaint.
45. Mrs X was unhappy with the Council’s response and on 10 May 2019, asked for her complaint to be escalated. She said the Council had failed to respond to the fundamental issues she had raised which included:
• D had not received a full-time education since May 2018 and received no education between October 2018 and March 2019;
• D was now accessing a part-time placement at Centre V, but this had been withdrawn by School 2 and Mrs M had needed to involve her MP before it was reinstated;
• the Council had delayed finalising D’s EHC Plan and had named School M even though the school had said previously it could not meet D’s needs; and
• the Council failed to consult with an EP even though D’s needs had changed;
46. The Council acknowledged her complaint on 21 May and again on 21 June when the Council provided details of the investigating officer (Officer G).
47. Officer G contacted Mrs X and they agreed the wording of Mrs X’s complaint on 22 August. Mrs X heard nothing further despite chasing the Council for a response. After chasing again on 26 November 2019, Mrs X received a response from Officer G. The officer acknowledged the process to agree Mrs X’s preferred placement at School S had taken too long but “with regards to the time it has taken… this is due to the current systems and processes that have to be followed, which are dependent on a number of factors, including the agreement of different agencies and services”.
48. The officer said Mrs X could ask for her complaint to be considered at Stage 3 of the complaints process if she remained unhappy.
49. Mrs X contacted the Council’s complaints department and asked for her complaint to be escalated to stage 3 of the complaints process. The Council informed her on 2 December that stage 2 was the final stage of its complaints process. Mrs X complained to us.

My findings

Completion of the annual review process

50. The law says that when an EHC Plan requires amending following the annual review meeting, the Council must issue the notice to amend the Plan within 4 weeks.
51. School 1 held an annual review meeting in May 2018 and recommended amendments to D’s Plan. The Council issued the notice to amend on 31 October 2018, around 24 weeks later. This is 20 weeks longer than the law allows and constitutes a significant delay. This is fault.
52. Councils must then take no longer than 8 weeks after issuing the notice to amend, to issue the final amended Plan. The whole process must take no longer that 12 weeks from the date the review meeting was held.
53. The Council issued D’s final amended EHC Plan on 14 March 2019, around 19 weeks after issuing the notice to amend and 43 weeks after School 1 held the annual review meeting. These delays are significant and are fault.
54. Because the Council delayed in issuing D’s EHC Plan, Mrs X’s right to appeal to the Tribunal was also delayed. The fact Mrs X did appeal when she was finally able to adds to her injustice.
55. However, the fact the Council, when it did issue D’s final amended EHC Plan, named School 2, means that even if it had issued the Plan within the statutory timescales, it is likely it would still have named School 2. However, as I say above, it would have enabled Mrs X to have appealed earlier.
56. If Mrs X had appealed earlier, I cannot say the Council would have conceded at that time and agreed to name School S. I also cannot say what the Tribunal would have recommended if the case had gone to a hearing. Therefore, I cannot say there is a direct link between the delays in completing D’s EHC Plan and her starting at School S. However, Mrs X is left with frustration and uncertainty over what would have happened. The Council should make Mrs X a payment to remedy this.

Educational provision for D under s19 of the Education Act and in her EHC Plan

57. Section 19 of the Education Act 1996 says councils have a duty to make arrangements for the provision of suitable education at a school or otherwise than at school.
58. Councils must also ensure that the special educational support in an EHC Plan is provided.
59. D’s attendance at school during the summer term of 2018 was significantly affected by her anxiety. However the faults identified below were a significant contributory factor to the fact that D missed both education provision and the EHCP provision she was entitled to.

June 2018 to July 2018

60. In July 2018, D’s parents removed her from School 1. This was very close to the end of the school year. Therefore, I would not consider it practical for the Council to have provided a tutor, or other alternative education at this point. There was no fault in the Council’s actions.

September 2018 to March 2019

61. The Council decided School 2 could meet D’s educational needs. This was against Mrs X’s wishes who wanted D to attend School S, a private residential school.
62. Councils can name schools against a parent’s wishes. School S is an independent residential school. School 2 is a mainstream school. Although councils cannot make decisions based on cost alone, they are entitled to take cost into account because they have a duty to spend public money wisely. However, it is not for the Ombudsman to comment on the appropriateness of a school named in an EHC Plan. That is for the Tribunal to decide.
63. The Council and School 2 drew up a part-time transition plan to reintegrate D back into school. This failed and D stopped attending on 11 October 2018. The school worked with D to try to persuade her to return, but it was evident by the end of November that these plans had failed. Because previous events indicated there was a high expectation D would not return to school, and because the reintegration period was for a period of 6 weeks, I would have expected the Council to have prepared for the eventuality that the reintegration would fail and have contingency plans in place. There is no evidence it did so and this is fault.
64. D was without education for almost the whole period from mid-October 2018 to March 2019 when she began to attend Centre V. During this time D also did not receive the special educational provision in her EHC Plan. This caused an injustice to an already vulnerable child. Allowing for a period of time for the school to attempt to reintegrate D back into education, the Council should remedy the injustice caused to D from 1 December 2018.
65. One week after D started at Centre V, Mrs X’s appeal rights were triggered. The law says we cannot look at any injustice experienced beyond this date.

Council’s complaints handling

66. Mrs X made her initial complaint in March 2019. The Council responded in May 2019, around 8 weeks later. Although I would expect councils to respond more quickly than this at stage 1 of the complaints procedures, it is not a significant enough delay for me to say it was fault.
67. Mrs X asked for a review in May 2019. The Council provided a response in November 2019, around 21 weeks later. This is a significant delay and is fault.
68. The Council’s review response was poor. It did not address the issues raised by Mrs X. It also excused the delays in finalising D’s EHC Plan by stating some of the delays were caused by delays in getting “the agreement of different agencies and services”.
69. Although different services do feed into the EHC Plan process, the ultimate responsibility for issuing the Plan within the correct timescales remains with the Council. The Council therefore provided Mrs X with incorrect information. This is fault.
70. The faults identified above caused Mrs X unnecessary frustration. The Council should make her a payment to remedy this.

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Agreed actions

71. Within 1 month of the date of the final decision the Council has agreed to:
• Pay Mrs X £300 to remedy the frustration and distress she experienced in relation to the significant delays in her appeal rights to the Tribunal, D being out of education and the delays in dealing with her complaint and the poor response;
• Pay Mrs X £1,000 to be spent as she sees best on D for the education and/or the special educational provision in her EHC Plan which she missed for the periods identified in this decision statement; and
• Apologise to Mrs X and D for the faults I have identified and the injustice this has caused them.
72. Within 3 months of the date of the final decision, the Council has agreed to review its procedures to ensure it:
• takes the necessary action following review meetings to issue amendment notices and draft and final amended EHC Plans within the statutory timescales; and
• responds to complaints through its corporate complaints procedures in a timely manner.
73. The Council has agreed to provide evidence it has met these recommendations.

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Final decision

74. There was fault leading to injustice. The Council has agreed to my recommendations. Therefore, I have completed my investigation.

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Parts of the complaint that I did not investigate

75. The part of my investigation which looks at the education D received whilst out of school covers the period from May 2018 to March 2019. I explain why I did not investigate events after March 2019 in paragraphs 21 and 22.

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Investigator's decision on behalf of the Ombudsman