Summary: Mr X complained the Council failed to act when his child’s school terminated the placement at short notice. He also complained about procedural errors and delay in finalising his child’s amended Education, Health and Care Plan. The Council was at fault. There were errors in its contractual arrangements with the school which affected decision making and caused uncertainty. There were also errors in the EHC Plan process and in its complaints handling. The Council has agreed to apologise to Mr X, pay him £250 as an acknowledgement of the distress and uncertainty caused and review its procedures.

The complaint

1. Mr X complains the Council failed to act when his child’s school terminated the placement at short notice, against the terms of the contract. He also complains about errors during the Education, Health and Care Plan (EHC Plan) review process and delay in issuing his child’s amended plan. Mr X says the way the placement ended caused him and his child distress and affected his child’s mental health. He wants the Council to accept it should have acted to ensure the school fulfilled its contractual obligations, apologise to him and his child for its errors and review its procedures.

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The Ombudsman’s role and powers

2. 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)
3. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
4. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
5. 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.
6. 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

7. I read Mr X’s complaint and spoke with him about it on the phone.
8. I made enquiries of the Council and considered information it sent me. I also considered information provided by Mr X.
9. Mr X and the Council had the opportunity to comment on the draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care Plans

10. Some children and young people with special educational needs and disabilities will have an Education, Health and Care Plan (EHC Plan). The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs.
11. After an EHC Plan is finalised, councils have a duty to ensure the special educational provision set out in the Plan is delivered. This duty is set out in the Children and Families Act 2014 and is non-delegable.
12. A council must review a child’s EHC Plan at least every 12 months. If the council considers it needs amending, it must send the child’s parents notice of its decision to amend within 4 weeks of the review meeting. It then must start the amendment process without delay and send the child’s parents a copy of the existing plan and the proposed amendments. The parent must be given at least 15 days to comment on the proposed amendments. If the council decides to continue with the amendments, it must issue the amended EHC Plan as quickly as possible, and within 8 weeks of the date the Council sent the parents the existing plan at its proposed amendments.
13. If a person disagrees with the content of an EHC Plan or an amended EHC Plan, they have a right to request mediation or to appeal to the Special Educational Needs and Disability Tribunal (SEND).

Pupil registration requirements

14. The law requires all schools in England, including independent schools, to have an admission register, listing all the children that attend that school. Regulations say where a child’s attendance at a school is arranged by the local authority, the child should not be removed from the admission register without the authority’s consent, or if the authority refuses to give consent, without direction from the Secretary of State.

The Council’s policy on contract arrangements for children placed in independent schools

15. The Council has a contract arrangement for each child it places at an independent school. This contract is renewed with the school each academic year. It uses the National Schools Contract as a framework for these arrangements. Each contract sets out the arrangements for the child’s education and care and ensures clarity about the terms of the agreement for both the Council and the school.
16. The contract says where a child has been in a placement for more than one academic term, either party must give at least 6 weeks’ notice to terminate the placement.

What happened

17. Mr X’s child, Y, has Special Educational Needs (SEN). In 2018, Y had an EHC Plan and attended school A, which was named in their plan. School A is an independent school for children with SEN. For academic year 2018-19, a signed contract was in place between the Council and school A for Y’s placement.
18. In 2019, the Council changed its system for managing contracts. The new system was electronic and required two signatories from the contracted parties. The Council wrote to school A in March, asking it to provide details of two people who would act as signatories on Y’s contract for academic year 2019-20.
19. School A did not provide any signatories. The Council says over the next 6 months it made several phone calls to the school and the school’s head office to ask them to complete and return the signatory form, but school A did not respond.
20. Y returned to school A in September 2019 for the new school year. Although school A had not signed the contract, it was named in Y’s EHC Plan and the school was delivering Y’s provision. School A was invoicing the Council for Y’s provision and the Council was paying the invoices. The Council says there was a presumed contract in place.
21. The Council chased the school for the contract signatories again in October and November, but the school did not provide them.
22. During the autumn term, Y and their parents decided school A was not meeting Y’s needs. They discussed alternative placements with the Council and Y attended a trial session at their preferred alternative placement. Mr X discussed Y’s ongoing education with school A and the Council. There was agreement to work towards Y moving to an alternative educational placement in early 2020.
23. In December 2019, school A held an EHC Plan review meeting. On the morning of the meeting, school A rang the Council and said it was terminating Y’s placement with immediate effect. The Council says school A did not tell it the reason for this decision. The Council persuaded school A that Y should be allowed to stay until the end of term – a further 4 days. School A agreed to this. School A wrote to the Council to give formal notice and said Y could not return to school A in January 2020.
24. The Council accepted the school’s decision. Mr X says the Council should have done more to insist the school honoured the 6-week notice period set out in the contract.
25. Mr X told the Council he was concerned Y now had no educational placement from January 2020. He asked the Council to put provision in place and detailed what his and Y’s preferred provision would be.
26. In January 2020, Mr X complained to the Council. He said he was concerned about how Y’s placement at school A ended and asked the Council to explain the reasons the school gave it for terminating the placement. He asked the Council to arrange provision for Y at their preferred provider and said this provision should be named in Y’s EHC Plan.
27. The Council responded to his email. It said as school A was an independent school, it was entitled to serve notice on a placement at any point. It said it was aware of the urgency and that educational provision for Y needed to be put in place. It said it was working towards this by consulting with providers including their preferred provider. It said it would need to amend Y’s EHC Plan, but the best time for this would be once Y had settled into their new provision.
28. After receiving further information Mr X was satisfied that the Council was making progress to address his concerns and put provision for Y in place. He asked it to put his complaint on hold.
29. The Council met with Mr X mid-January and the preferred provider. The provider agreed it could meet Y’s needs. The Council agreed it would amend Y’s EHC Plan.
30. The Council arranged the educational provision and Y started in late January.
31. In February, Mr X told the Council he wanted to proceed with his complaint. He said the way Y’s placement ended at school A was unlawful and discriminatory. He requested information about the reasons the school gave for terminating the placement so suddenly, and reassurance that the Council did not agree to this. He also complained Y’s EHC plan had not been updated for two years.
32. The Council responded to his complaint. It said the school had rung the Council on the morning of the EHC plan review meeting and told it that it was terminating Y’s placement. It said the Council’s consent for this was “not sought nor given”. It said Mr X should ask school A for the reasons for this decision.
33. Mr X was unhappy with this response and escalated his complaint to stage 2.
34. In April, the Council issued sent Mr X a copy of the existing plan and the Council’s proposed amendments. Mr X requested some amendments to the draft plan.
35. Mr X requested documents from the Council through a subject access request. He asked it to pause its stage 2 complaint investigation until after it had completed his request and he had seen the documents. The Council provided Mr X with the requested documents at the end of May.
36. The Council issued the final amended EHC Plan in June 2020. Mr X was unhappy with the content and requested mediation.
37. With Mr X’s agreement, the Council started the stage 2 investigation into his complaint. It advised him they may be delay in allocating and responding to his complaint due to COVID-19.
38. At the end of July, it wrote to Mr X to apologise for ongoing delay in responding to his complaint. It apologised again for ongoing delay in mid- August and early September.
39. In mid-September 2020, the Council provided Mr X with its stage 2 response. It said as school A was an independent setting, it had the right to terminate Y’s placement without consulting the Council. It said it partially upheld his complaint about errors in the EHC process and accepted it should have sent Mr X formal notification within 4 weeks of the December review meeting that it intended to amend Y’s EHC plan.
40. Mr X was unhappy with the Council’s response and brought his complaint to us.
41. In its response to our enquiries, the Council said that when the school told it that it was terminating Y’s placement in December 2019, it accepted this decision. It said the school did not tell it the reason for its decision. It said as the school had failed to provide the required contract signatories, it was difficult for it to enforce the terms of the contract, and this was why it did not act to enforce the six week notice period at the time. It said it has since reviewed its procedures to ensure this situation cannot happen again.
42. It said it had upheld that it should have given formal notice that it planned to amend Y’s EHC Plan in January 2020 but said it did tell Mr Y of its intentions in an email in early January and at the mid-January meeting. It said delay in issuing the final amended plan was caused by delay in receiving a social work report from another local authority. It did not receive this until April 2020, despite chasing the social worker for this. It said it sent Mr X notice of its proposed amendments to Y’s plan as soon as it could after it received this report.

Analysis

43. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. The Council has provided a different account of events to us than it did in its complaint response to Mr X. It told Mr X that as school A was an independent school, it had the right to terminate Y’s placement without notice. In its response to our enquiries, it said there should have been a signed contract in place for Y’s provision, but as school A had failed to provide signatories, the Council did not feel able to enforce the 6-week notice period set out in the contract. Although these answers are different, as the evidence is the contract was not signed by the school, on balance I consider the version of events provided to us more likely to be correct. Further investigation would not change the course of events or achieve anything further.
44. When Y returned to school A in September 2019, there was no signed contract between the council and school A for Y’s placement. The Council says it had been chasing the school for signatories since March 2019, but I have seen no evidence that it reviewed the situation prior to September 2019 or considered whether it needed to take further action such as seeking advice from its legal team.
45. By December 2019, the Council had still not ensured the school signed the contract nor had it taken further action to address the situation. The failure to ensure Y’s placement at school A was supported by a contract was against Council policy and was fault. This left Y’s placement vulnerable and meant the Council felt unable to challenge the school’s actions.
46. I cannot know whether the course of events would have been different, had the Council challenged school A’s decision and tried to enforce a six week notice period in December 2019. However, the lack of signed contract has caused Mr X and Y avoidable uncertainty about whether Y’s placement could have ended differently. Y started at an alternative educational placement in January 2020, so the decision for the placement at school A to end in December did not lead to a significant loss of education. However, the uncertainty around the contractual arrangements and the reasons why the Council did not challenge the school has caused Mr X and Y avoidable uncertainty and distress.
47. The stage 2 investigation upheld that the Council did not issue a formal notice of its intention to amend Y’s EHC Plan within four weeks of the EHC review meeting, as set out the statutory guidance. I have also seen no evidence it sent a formal notification and agree with this finding that the failure to do this is fault.
48. Although it did not issue a formal notice, the Council told Mr X in an email in early January that it intended to amend Y’s EHC Plan. In line with the statutory guidance, it should have started the amendment process without delay and then sent Mr X a copy of the plan and its proposed amendments. It did not send Mr X a copy of its proposed amendments until April. Although the Council says the delay was caused by the need to await a social work report from another local authority, statutory guidance says the process should happen without delay. The delay in finalising the plan caused Mr X ongoing frustration and uncertainty and delayed his right to request mediation about the content of the plan.
49. The Council’s explanation to Mr X in its complaint response about the reasons it did not challenge the school’s decision to terminate the placement differs from information provided to us. The complaint response provided to Mr X contained inaccurate information which is fault. This has added to Mr X’s confusion and uncertainty.

Agreed action

50. Within one month of the final decision, the Council will:
• Write to Mr X to apologise for the identified faults in its contract arrangements, the delay in finalising the amended EHC Plan and the inaccurate information in its complaint response to him.
• Pay Mr X £250 to acknowledge the uncertainty and distress caused by the faults.
51. Within three months of the final decision the Council will:
• Provide evidence of the review of its contract procedures it refers to in its enquiry response to us and explain how it now ensures all children who the Council places in independent schools have a contractual agreement in place, signed by both parties.
• Review its EHC Plan procedures to ensure that plans amended after EHC Plan reviews are amended without delay and in accordance with the statutory requirements.

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Final decision

52. I have completed my investigation. I have found fault and the Council has agreed action to remedy the injustice caused and improve its services.

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Investigator's decision on behalf of the Ombudsman