Summary: Miss X complained about the Council’s delays in finalising her son’s Education, Health and Care Plan in 2019 and in sourcing a new school for him. We have found the Council to be at fault because it took too long to find a new school and in the way it handled Miss X’s complaints. Miss X and her son suffered avoidable frustration and distress because it took over a year to find a suitable school. To remedy the injustice caused by this fault, the Council has agreed to apologise, make a payment to Miss X and review its procedures.

The complaint

1. Miss X complains about the Council’s delay in issuing her son’s final Education, Health and Care Plan and the subsequent delay in sourcing a new school for him. She also complains about poor communication from the Council. She says this has severely impacted her son’s education and that it has had a physical and emotional effect on the family.

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What I have investigated

2. Paragraph six (below) applies to this complaint. I have exercised discretion to investigate Miss X’s complaint back to September 2019 when her son’s Education Health and Care Plan was first finalised as the issues have been ongoing since this time.
3. In addition to the original complaint made by Miss X, it became apparent during my investigation that the Council had not provided Miss X with a stage two complaint response as promised. I have exercised discretion to investigate this issue.

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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 an organisation’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)
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
7. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

8. I have considered all the information Miss X provided and discussed this complaint with her. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
9. Miss X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

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What I found

10. A child with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
11. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
12. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHCPs. The guidance is based on the Children and Families Act 2014 and the Special Educational Needs Regulations 2014. It says:

• the process of assessing needs and developing EHCPs “must be carried out in a timely manner”. Steps must be completed as soon as practicable;
• the whole process from the point when an assessment is requested until the final EHCP is issued must take no more than 20 weeks (unless certain specific circumstances apply); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHCP.

What happened

13. Miss X has a school-aged son, Y, who has an EHCP. When his EHCP was first finalised in late September 2019, it was 14 days over the statutory timescale.
14. The Council says this delay was due to the draft plan being issued during the summer holidays and that it was promptly finalised once the schools returned. In its stage one complaint response, the Council later apologised for this delay. Y’s plan named a local mainstream secondary school.
15. Y’s annual EHCP review was completed one year later, in accordance with statutory guidelines.
16. In November 2020, Y’s school submitted his EHCP annual review documentation to the Council. This advised Y’s needs could not be met within a mainstream environment.
17. Later in November 2020, a request for a change of placement to a special school went to the Council’s EHCP Governance Board (the Panel). The Panel requested additional evidence from Y’s school and delayed the decision.
18. The case returned to the Panel in February 2021. A decision was again delayed as the Panel requested additional evidence from Y’s school.
19. In March 2021, the case was returned to the Panel for a third time and a change of placement to a learning and additional needs school (LAN) was agreed.
20. Six weeks later, at the end of April 2021, the Council sent consultation letters to nine potential LAN schools.
21. By the end of the first week in June 2021, seven of these schools had responded to advise they had no space for Y. The case officer had by this point already requested approval to approach non-maintained independent (NMI) schools.
22. Over seven weeks after this approval request, and towards the end of July 2021, the senior leadership team at the Council gave agreement to consult with the NMI providers.
23. Almost two weeks later, and into the 2021 school summer holidays, the Council sent consultation letters to a further three NMI schools.
24. Two of the schools consulted responded in early September 2021 to advise they were unable to meet Y’s needs.
25. At the beginning of the autumn term, the third school assessed Y to decide if it could meet his needs. By mid-October 2021, it had responded to the Council to advise two other students had received funding and it no longer had capacity for any more students. Miss X says Y was offered a place but that the Council delayed in responding to the school and available places were then given to the other children. This meant Y’s offer was withdrawn.
26. Miss X made a stage one complaint to the Council. It responded late in October 2021. In its letter, the Council:
• admitted to, and apologised for, the original delay in finalising Y’s EHCP. It stated the delay did not adversely affect provision;
• listed the number of schools consulted (as mentioned above);
• explained it was currently in consultation with a school who had a place and were considering Y;
• promised to update Miss X on a weekly basis;
• advised Miss X of her right to appeal the content of the EHCP to the Special Educational Needs and Disability Tribunal if she wished; and
• advised Miss X of her right to escalate her complaint to stage two of the Council’s complaints procedure.
27. Over ten weeks after the last school had responded in mid-October, and in the middle of the school Christmas holidays, the Council sent further consultation letters to three NMI schools.
28. The Council attributed this delay to a changeover in the team processing the information and the new team subsequently prioritising consultations for the most vulnerable children. Y was not included.
29. By the end of January 2022, one school had responded to say it had no space and one school offered Y a place.
30. This place was accepted by Miss X and Y in March 2022. He started there in April 2022. Miss X has since commented that both her and Y are happy with the school and the provision offered. She has also said communication from the Council has improved since a new case manager was allocated.

Stage two complaint process

31. Following the stage one complaint response in October 2021, Miss X asked her complaint to be escalated to stage two, as signposted.
32. In November 2021, the Council completed a “review at the second stage of the complaint process”. The Council agreed that parts of the initial stage one response lacked detail. It offered to:
• refer the complaint back to the education service;
• mediate; and
• in exceptional circumstances, offer an investigation by a council officer independent of the education service.
33. The Council said it would ask the education service to send an additional, more detailed response by late November 2021.
34. Three weeks into December, a Council officer, independent of the education service, emailed Miss X. She advised she intended to complete a more in-depth investigation. She said this would normally be concluded within 20 working days, but that due to the time of year it may take longer.
35. By early April 2022, and despite requests to the Council, Miss X had still not received the promised investigation response. She was advised that the officer who had emailed in December would shortly be leaving the Council’s employment. The Council promised to appoint an external consultant to investigate instead.
36. At this point, Miss X complained to the Ombudsman.
37. Currently, the Council has still not provided Miss X a stage two complaint response or investigation as originally promised.
38. The Council has provided the Ombudsman with evidence to explain the reason for some of this delay and how it intends to improve the situation going forward.

Analysis

Delay

39. Miss X complains of the initial delay in issuing Y’s EHCP. Whilst the 14-day delay would no doubt have been frustrating, it is my view that this would not have had a significant impact on the provision delivered to Y in the coming months.
40. In any case, the specific circumstances mentioned in bullet point two of paragraph 12 above, apply here. If a school is closed for at least four weeks, this creates an exemption from the 20-week deadline as the submission of information from the school may be delayed. The Council’s explanation for the delay is reasonable and I find no fault here. Under this exemption, the Council had a duty to inform Miss X that there would be a delay in issuing Y’s EHCP. The Council did not do so. This is fault. However, any injustice arising from this issue alone is not significant enough to warrant a remedy.
41. Despite the EHCP annual review being carried out on time in September 2020, the Council did not receive documentation from the school until November 2020. The Council has confirmed it has no evidence to show that it chased the slow delivery of this paperwork. In a previous stage one complaint response to Miss X dated March 2021, the Council had advised the reason for this delay was due to the school gathering more information. It is unclear on what this information was, or its importance.
42. The EHCP review was especially important as it stated that Y’s needs could no longer be met in mainstream education. The Code stipulates that schools should send review documentation to the Council within two weeks of the review meeting. The Code also states the councils should notify parents of its decision following the review, within four weeks of it taking place.
43. Therefore, the wait of almost seven weeks to receive the paperwork meant that Y’s case was not taken to panel for the first time until eight full weeks after his review had taken place. It is my view this delay was avoidable, does not follow the Code and would have added to Miss X’s frustration.
44. Although the Council is not responsible for the school sending the review documentation late, it should have a system in place to monitor this and in turn avoid delays. This did not happen in this case and is fault. I have made recommendations to remedy this below.

The Panel

45. Y’s case was referred to the Panel three times before it agreed to a change of placement for him in March 2021. The Panel requested extra information and the school would have needed time to gather this. Miss X was kept informed of the outcomes of each panel meeting. Whilst this wait would have caused Miss X and her son Y worry and frustration, there was no fault here.

Consultation

46. There is no timescale set out in the Code for the Council to begin the consultation process. However, in this context of finding a special school, time is of the essence. As part of my enquiries, I asked the Council why there was a six-week delay in starting the consultation process. The Council acknowledged the delay but failed to explain it. In my view, six weeks was too long in the circumstances of this case and I find the Council to have acted with fault by not starting the consultation process more quickly.
47. After the consultation letters had been sent out and within a few weeks of being asked, seven of the nine LAN schools approached had confirmed they had no space for Y. The Council has provided no evidence that the remaining two schools replied or were subsequently chased for a response.
48. Despite most of the LAN schools having replied, when the case officer requested permission to send consultation letters to NMI schools instead, the senior leadership team at the Council took over seven weeks to agree. The Council has not provided an explanation for this delay. The case officer’s request was approved at the end of the summer term as schools closed for the holiday period. Had action taken place more quickly, further delay could have been avoided. This is fault. It would have further added to the distress and frustration Miss X suffered and prolonged the search for a new school for Y.
49. After this permission had been granted, the Council delayed a further 13 days in sending three new consultation letters out. At this point, it was around two weeks into the school summer holidays of 2021. Schools would inevitably not reply quickly. This further delay is fault.
50. The third school assessed Y at the beginning of the autumn term 2021 and offered him a place. Miss X says the Council was too slow to respond. The Council has no information on file regarding the offer of an assessment or the result of it. The Council has been unable to provide further detail on why the school withdrew the offer and any of the timescales involved. On balance, it seems likely the Council acted too slowly. This is fault and prolonged the search for a new school.
51. At this point, Y was still attending mainstream school and it was more than a year since his review stated mainstream education was no longer suitable for him. After the first round of three NMI schools had confirmed they could not offer a place, the Council took more than ten weeks to send further consultation letters to other NMI providers.
52. The Council said this delay was due to a changeover of processing teams and prioritisation of other children. I find this lack of action and Y’s case not being a priority to be unacceptable. This delay is fault.
53. During this time, Miss X had lodged a stage one complaint with the Council. It said it would keep Miss X updated on a weekly basis, but it has no evidence to prove this happened. When the Council did send the consultation letters out, it was by that time the middle of the school Christmas holidays. This delay and lack of communication would have further added to the distress and frustration Miss X and her son Y suffered. This is fault.

Injustice to Y

54. The Panel agreed in March 2021 to move Y to a special school. Y was still in mainstream education during the search for a new school. Miss X says she felt the schoolwork during this time was too difficult for Y and she spent a considerable amount of her own time at home working with him to try and help him make suitable progress.
55. It is clear to me that the provision available for him in mainstream education was unsuitable and it was not until 13 months later in April 2022 that Y started to attend his new special school.
56. I acknowledge that the Council did make efforts on numerous occasions to consult with a variety of schools in the hope of finding Y a suitable placement. However, it is still the case that there were multiple and avoidable delays in the process.
57. To remedy this injustice and in line with the Ombudsman’s Guidance on Remedies, I have made a recommendation below.

Stage two complaint process

58. After almost four months of waiting for the Council to start its stage two investigation, Miss X decided to complain to the Ombudsman as nothing had happened, despite the Council’s promises otherwise.
59. Miss X and her son Y had already suffered numerous delays in the process of finding him a new school. It is my view that this additional delay was unacceptable and was fault. The Council denied Miss X the chance to have a stage two review, despite saying several times that it would soon be started. Whilst the Council acknowledged to Miss X the frustration this would have caused, these assurances led to nothing. I have made a recommendation below to remedy this injustice.

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Agreed action

60. To remedy the injustice caused by the faults I have identified, the Council has agreed to take the following action within four weeks from the date of this decision:
• apologise to Miss X and her son Y;
• pay Miss X £200 to acknowledge the time and trouble taken to make her complaint;
• pay Miss X £2600 (£200 per month) in recognition of the 13-month period of unsuitable provision Y experienced; and
• take action, at a senior level, to address the delays experienced by Miss X and review its complaints’ handling processes linked to education-related complaints. The Council should provide a report to the Ombudsman to confirm what it proposes to do.
61. These payments are in line with the Ombudsman’s Guidance on Remedies.

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Final decision

62. I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.

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Investigator's decision on behalf of the Ombudsman