Summary: Miss X complains the Council have not dealt properly with education provision for her son Y. The Council is at fault because it didn’t ensure SEN (Special Educational Needs) provision was made, an annual review was not held properly and it issued an amended EHCP too late. Y missed SEN provision and Miss X’s appeal right was delayed for over three months. The Council has agreed to pay Miss X £2,000 and provide guidance to staff.

The complaint

1. Miss X complains that the Council has not properly dealt with education provision for her son Y because:
• She had to pay boarding fees while waiting for a Tribunal hearing in 2019;
• A CFA assessment was completed late, and included recommendations for provision which were not included in Y’s EHCP
• The named provision in Y’s EHCP is not appropriate
• Y missed Occupational Therapy and Speech and Language Therapy SEN provision listed in his EHCP;
• The annual review of Y’s EHCP in 2020 was not completed properly because professionals were not invited to the review meeting;
• The annual review of Y’s EHCP in 2021 was not completed properly because no notice was given about the review meeting.
• There was a delay to Y’s final EHCP being issued; and
• Alternate education provision has not been made whilst Y has not attended school.
2. Miss X says she has had to give up work to care for Y, has had to pay tutoring costs and boarding fees, and Y has missed out on special educational needs provision and education.

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What I have investigated

3. I have investigated that part of Miss X’s complaint about how the Council has dealt with Y’s SEN provision, EHCP process and alternate education provision. The final section of this statement contains my reasons for not investigating the rest of the complaint.

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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. 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)
7. 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

8. I spoke to Miss X about his complaint and considered documents he provided. I made enquiries of the Council and considered its response and the supporting documents it provided.
9. Miss 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

Law, guidance and policies

10. When holding an annual review of an EHCP, the child’s parents or young person, a representative of the school or other institution attended, a local authority SEN officer, a health service representative and a local authority social care representative must be invited and given at least two weeks’ notice of the date of the meeting. (SEN Code of Practice para 9.176)
11. The school (or, for children and young people attending another institution, the local authority) must prepare and send a report of the meeting to everyone invited within two weeks of the meeting. The report must set out recommendations on any amendments required to the EHC plan, and should refer to any difference between the school or other institution’s recommendations and those of others attending the meeting. (SEN Code of Practice para 9.176)
12. 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 he plan, and notify the child’s parent or the young person and the school or other institution attended. (SEN Code of Practice para 9.176)
13. If the plan needs to be amended, the local authority should start the process of amendment without delay. (SEN Code of Practice para 9.176)
14. If the local authority decides 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 amendments, it must notify the child’s parent or the young person, explaining why, within the same time limit. (SEN Code of Practice para 9.196)
15. 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 and the time limit for doing so, of the requirement for them to consider mediation should they wish to appeal, and the availability of information, advice and support and disagreement resolution services. (SEN Code of Practice para 9.198)
16. 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.
17. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC Plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).

What happened?

18. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
19. An annual review was held of Y’s EHCP in May 2021.
20. The Council notified Miss X of its intention to amend Y’s EHCP.
21. Miss X and the Council communicated with each other about changes to Y’s EHCP. Much of this communication centred around Miss X’s view that she was unhappy about Y’s proposed placement.
22. The Council consulted with a number of other educational placements.
23. Y’s final amended EHCP was issued at the end of October 2021.
24. In November 2021, Miss X appealed to SEND Tribunal concerning Y’s named educational placement in his EHCP.

Analysis

Missed SEN provision

25. The Council accepted in its stage two complaint response that:
• there was a delay in setting up SALT and OT provision in March 2020; and
• there were gaps in Y’s educational provision from May 2021 until September 2021.
26. The Council provided evidence to me showing that Y’s school has met its obligations regarding involvement of an Occupational Therapist between 2019 and October 2020.
27. This is fault by the Council. Y missed SEN provision in 2020 and in 2021.

2021 Annual Review

28. The Council accepts that Y’s annual review undertaken in 2021 was not undertaken properly and upheld this part of her complaint in its stage one complaint response. This is fault by the Council. Miss X was not able to participate in the annual review properly. However, this did not cause any significant injustice to Miss X because the Council took account of her views when amending Y’s EHCP.

Final EHCP delay

29. The Council accepts that Y’s final EHCP was not issued within the statutory deadlines. It says it was trying to work with Miss X in accordance with her views and wishes. The Council should have issued Miss X her right of appeal and then tried to work with her alongside this in parallel. This is fault by the Council.
30. The Council sent the original amendment notice to Miss X on 27 May 2001. Y’s final EHCP should therefore have been issued by 22 July 2021. Y’s final EHCP was actually issued on 29 October 2021. Miss X’s right of appeal was delayed by three months and one week.
31. Miss X’s Tribunal appeal has now been determined. The Tribunal outcome included
• that Y’s curriculum ought to be delivered flexibly by a variety of means, to include 1:1 support, small group and whole class teaching.
• provision concerning breaks and access to resources to support emotions will be included in the cognition and learning segment of Y’s EHCP.
• That Y’s educational placement was unable to meet his SEN and the parental preference must be named in Y’s EHCP.

Alternate education provision

32. Miss X has appealed to SEND Tribunal. For the reason outlined in paragraph 16 I am unable to consider any matter regarding alternative provision after 29 October 2021, when she received her right of appeal.
33. Miss X made her view clear as part of the annual review process that she did not think Y’s school was able to meet his needs. However, there is no evidence showing that Y’s school recorded they were unable to meet his needs.
34. Records show the Council considered the situation in July. Its view was that it expected Y to return to school and for any concerns to be raised directly with the school in the first instance. However, it also recorded that, “Parents also have the opportunity to follow the mediation/disagreement and appeal process if they are not happy with the final EHC Plan.” This was factually incorrect as the Council did not issue Y’s final EHCP until October 2021.
35. Miss X was clear she did not want Y to return to his current school.
36. In August the Council emailed Miss X telling her about progress with consultations with other schools, with current school continuing provision until a placement could be named.
37. Worksheets were sent home from school for Y to complete in September 2021.
38. It is clear that provision at his current school was available for Y. The Council considered the circumstances in July and August and decided provision at his current available school place was appropriate. Provision was available for Y but Miss X did not want him to go to that school. This is not fault by the Council.

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Agreed action

39. To remedy the outstanding injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this decision:
• Pay Miss X £700 in respect of missed SEN provision;
• Pay Miss X £1,300 in respect of the delay to her Tribunal appeal; and
• Provide guidance to staff to ensure that final EHCP documents together with a right of appeal are issued in the correct statutory timescales.

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Final decision

40. I have found fault by the Council, which caused injustice to Miss X. I have now completed my investigation.

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Parts of the complaint that I did not investigate

41. I have not investigated that part of Miss X’s complaint about boarding fees because this is both a late complaint and is out of the Ombudsman’s jurisdiction, as it relates to education provision whilst awaiting Tribunal.
42. I have not investigated that part of Miss X’s complaint about a CFA assessment and recommendations, because this is both a late complaint and is out of the Ombudsman’s jurisdiction as it is under appeal to Tribunal.
43. I have not investigated that part of Miss X’s complaint about the named provision in Y’s EHCP because this is out of the Ombudsman’s jurisdiction as it is under appeal to Tribunal.
44. I have not investigated that part of Miss X’s complaint about the annual review of Y’s EHCP in 2020 as this is both late and was not included in her complaint to the Council. The Council has not had an opportunity to consider it.

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Investigator's decision on behalf of the Ombudsman