Summary: Mr E complained how the Council managed his son’s special educational needs and education provision. He says the Council failed to send a final Education, Health and Care plan within statutory timescales. He also says the Council failed to put any provision in place for his son and it failed to consult with his chosen educational setting. We find the Council was at fault for its communication with Mr E and the delays in issuing the final Education, Health and Care plan. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Mr E complained how the Council has managed his son’s (F) special educational needs and education provision. He says the Council failed to send a final Education, Health and Care (EHC) plan within statutory timescales. He also says the Council failed to put any provision or support in place for F and it failed to consult with the private nursery or the school. He adds the Council’s communication was poor and it failed to consider the need for a neuropsychological assessment in a timely way.
2. Mr E says F has missed out on a year of educational provision. He also says the matter has been extremely stressful for him and his family.

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What I have and have not investigated

3. The courts have said where the period out of education coincides with an appeal about an EHC plan and there is a link between them, the period from the date on which the appeal right arises until the appeal is heard is outside the Ombudsman’s jurisdiction. Mr E exercised right to appeal to the SEND Tribunal about the content of F’s EHC plan. Therefore, I have not investigated what educational provision and support the Council provided to F after 21 January 2022 as it is linked to the matters raised in his appeal.
4. I have also not investigated the Council’s failure to consider the need for a neuropsychological assessment in a timely manner. Mr E raised this issue in his appeal to the SEND Tribunal through a costs application and therefore it is out of the Ombudsman’s jurisdiction. This is the case even if the application did not or could provide a remedy for the injustice claimed.

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The Ombudsman’s role and powers

5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
6. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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)
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
9. 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)

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How I considered this complaint

10. I considered information from Mr E. I made written enquiries of the Council and considered information it sent in response.
11. Mr E 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

Relevant law and statutory guidance

12. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. Section F sets out the special educational provision needed by the child or young person. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
13. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out in an EHC plan has not been provided or where there have been delays in the process.
14. Statutory guidance ‘Special Educational Needs and Disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC needs assessments and producing EHC plans. The Code is based on the Children and Families Act 2014 and the SEND Regulations 2014. It says:

• Where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;
• The process of assessing needs and developing EHC plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable; and
• The whole process from the point when an assessment is requested until the final EHC plan is issued must take no more than 20 weeks.

15. The statutory guidance confirms there are exceptional circumstances where it may not be reasonable to expect councils to comply with the time limits and these include:

• Where appointments are missed by the child.
• When the child is absent from the area for at least four weeks.
• When the school is closed for at least four weeks.

16. If a child’s parent or a young person makes a request for a particular nursery, school or post-16 institution the local authority must comply with that preference and name the school or college in the EHC plan unless:

• It would be unsuitable for the age, ability, aptitude or special educational needs of the child or young person, or
• The attendance of the child or young person there would be incompatible with the efficient education of others, or the efficient use of resources.

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 (or the decision not to name a placement) 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 chronology provides an overview of key events and does not detail everything that happened.
19. Mr E’s son, F, has special educational needs.
20. Mr E wrote to the Council on 8 June 2021 and asked it to carry out an EHC needs assessment for F. F was two years old at the time. Mr E asked the Council to speed up the process to support F starting nursery in September.
21. Mr E wrote to the Council on 14 July and asked for an update. He said he was trying to put matters in place for F for September. He said the nursery (Nursery A) would need additional funding to meet his needs.
22. The Council wrote to Mr E on 19 July and said it would assess F. It said it was applying an exception to the 20-week timescale because of the school holidays.
23. The Council’s special educational needs panel agreed to issue an EHC plan for F on 15 September.
24. The Council phoned Mr E on 23 September. It said it would write an EHC plan for F, but it would not agree to his request to fund a neuropsychology assessment.
25. Mr E emailed the Council after the phone call and asked for information on the panel’s decision making and any minutes of the meeting.
26. Mr E emailed the Council on 27 September and said he was unhappy with the delay. He said F had not been able to start Nursery A with his peers. He repeated his request for the panel’s written decision and explained why he thought a neuropsychological assessment was necessary.
27. The Council responded and said a member of the team was working on F’s draft EHC plan.
28. Mr E complained to the Council about the delay on 12 October. He also said it had ignored his request to speed up the process so F could attend Nursery A.
29. The Council responded to Mr E’s email. It said it wanted to arrange a draft planning meeting to discuss the draft EHC plan. It also said there was nothing to prevent F’s start at nursery. It said it would ask an officer to contact him and discuss placement options. It said its intention was for F to be offered a placement at its early support nursery when he turned three.
30. Mr E responded to the Council’s email and said he wanted to send F to Nursery A for up to two days over the course of the academic year. He said for F to attend he needed the provision in place.
31. The Council spoke to Mr E on 15 October about the support that could be provided to help F’s transition. Mr E explained he had approached Nursery A and it was awaiting the outcome of the final EHC plan to understand G’s needs.
32. The Council issued F’s draft EHC plan on 20 October. Mr E sent in detailed comments in response. He also said he wanted F to attend a school (School A) in September 2022. He asked the Council to name it in the plan.
33. The Council emailed Mr E on 27 October to provide him with an update. It also said an officer was going to discuss matters with a neurosurgeon at a local hospital. Mr E responded and asked if the Council was not accepting the advice he had sent from a consultant neuropsychologist. The Council did not respond to that point.
34. Mr E emailed the Council on 18 November and said it had failed to comply with the statutory 20-week timescale. He said it had failed to provide him with any updates. He asked it to escalate his complaint to the next stage of the process. The Council responded and said an officer would contact him to speak about the issues. It said if he remained dissatisfied after an officer had spoken to him, it would progress matters within its complaints procedure.
35. The Council updated Mr E later that day and said it was waiting for confirmation about a neuropsychological assessment for F.
36. Mr E decided to pay for a private neuropsychological assessment for F as the statutory timescale to finalise his EHC plan had passed.
37. Mr E emailed the Council on 10 January 2022 and said it told him it would issue an updated draft EHC plan for F on 6 December, but it had failed to do so.
38. The Council issued a revised EHC plan for F on 11 January. Mr E responded on the same day with his comments.
39. Mr E emailed the Council on 13 January and asked it to issue a final EHC plan for F within the next seven days.
40. The Council sent Mr E a copy of F’s final EHC plan on 20 January without any amendments. It did not name a specific educational setting but said he should attend mainstream provision.
41. Mr E appealed to the SEND Tribunal about the special educational provision listed in F’s EHC plan, as well as the educational placement. He also made a costs application to the SEND Tribunal for the neuropsychological assessment he obtained.
42. The Council consulted with School A in April.
43. Mr E sent a detailed complaint to the Council in May about how it handled F’s special educational needs provision. He said it failed to issue F’s EHC plan within the statutory timescales, it failed to consult with Nursery A and its communication was poor. He also said it failed to provide with him minutes of the panel meetings and it did not answer his question about whether it would accept the advice of the consultant neuropsychologist.
44. The Council agreed to name School A in F’s EHC plan during the SEND Tribunal proceedings.
45. The Council responded to Mr E’s complaint. It said due to it being the summer holidays it applied an exception to the 20-week timescales. It said it could not get advice from key professionals until September 2021. It said it had not received any requests from Mr E for the minutes of the meetings, but it would attach them with its response. It also said an officer called Nursery A to make some initial enquiries on 18 October 2021. Nursery A did not return the call and Mr E did not address it further, so it assumed it was no longer an option. Finally, it said it communicated with him appropriately.
46. Mr E emailed the Council and said he was dissatisfied with its response. He said it was wrong for it to apply an extension of the timescales as F was not of school age. He also said it should not have assumed he no longer wanted to proceed with Nursery A, and it failed to respond to reasonable questions.
47. The Council issued its final response to Mr E’s complaint. It accepted it should have not applied the exception as F was not of school age. It apologised for its mistake. It said Mr E did not ask it to consult with Nursery A when he responded to F’s draft EHC plan. It also apologised for not providing further detail on why it did not accept the advice of the consultant neuropsychologist.
48. The SEND Tribunal issued its final order 11 August. It ordered the Council to amend F’s EHC plan in line with the working document.
49. F started School A in September.

Analysis

50. The Council had until 26 October 2021 to issue F’s final EHC plan. It failed to meet this deadline as it did not issue his EHC plan until 21 January 2022. This is a three-month delay, which is fault.
51. The Council applied an exception to the 20-week timescale when it wrote to Mr E. However, it now accepts it was wrong to apply this as F was not of statutory school age.
52. The Council’s delay caused Mr E frustration and uncertainty about F’s educational provision. It also delayed his appeal rights to the SEND Tribunal.
53. With regards to the consultation with Nursery A, Mr E said in his communication from July, September, and October 2021 he wanted F to attend to Nursery A. The Council also phoned Nursery A in October 2021 to make some initial enquiries. Therefore, it is clear the Council had enough information that Mr E was keen for F to attend Nursery A. Its failure to pursue this option further or clarify with Mr E whether he wanted it to consult with Nursery A is fault.
54. However, I also agree with the Council that when Mr E responded to the F’s draft EHC plan, he asked the Council to name School A (for F to attend from September 2022 onwards) and not Nursery A. Therefore, I do not consider it was unreasonable for the Council to assume Mr E no longer wanted it to pursue Nursery A.
55. Mr E says the Council’s delay in issuing F’s EHC plan and the failure to consult with Nursery A means F has missed out on a year of educational provision.
56. It is speculative whether consultation with Nursery A or the Council issuing F’s EHC plan sooner would have altered the outcome. The Council may have decided it was not appropriate to name Nursery A in F’s final EHC plan, especially as it said its intention was for F to attend an early support nursery when he turned three. However, I do acknowledge the Council’s faults leaves Mr E with uncertainty of whether F may have been able to attend Nursery A before starting School A in September 2022, or whether he would have been able to attend School A sooner. This is an injustice which the Council needs to remedy.
57. Mr E also says the Council failed to consult with School A and name it in F’s final EHC plan until he appealed to the SEND Tribunal. Councils must comply with a parental preference and name it in an EHC plan unless it considers it would be unsuitable for the age, ability, aptitude or special educational needs of the child or young person, or the attendance of the child or young person there would be incompatible with the efficient education of others. The Council offered no explanation for failing to consult with School A before issuing F’s EHC plan, which is fault. However, when a Council names a school that a parent considers unsuitable, the parent has a right of appeal against that decision. Mr E used his right of appeal. This was the correct route to challenge the Council’s decision not to name School A.
58. With regards to the Council’s communication with Mr E, he repeatedly asked in his emails for copies of the panel’s decision making. The Council failed to respond and did not provide it until June 2022 when it responded to Mr E’s complaint. This caused Mr E frustration and put him to time and trouble repeating his requests for information.
59. Mr E asked the Council to finalise F’s EHC plan within the next seven days on 13 January. The Council interpreted this to mean he did not want it to make any amendments. This was not the case as Mr E had already issued his response to F’s revised EHC plan and suggested several amendments. If the Council considered no further amendments were necessary, it should have explained why in the cover letter with the final EHC plan. Its failure to do so was fault, which left Mr E with the impression the Council did not want to work collaboratively with him to resolve the issues.
60. The Council also accepted it should have provided further detail on why it did not accept the advice from the consultant neuropsychologist. It apologised for this when it responded to Mr E’s complaint. I agree with the Council’s findings on this point and its failure to provide clarity caused Mr E further frustration.

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Agreed action

61. To address the injustice caused by fault, by 17 March 2023 the Council has agreed to:

• Apologise to Mr E.
• Pay Mr E £500 to recognise his uncertainty and frustration.

62. By 14 April 2023:

• Issue written reminders to relevant staff to ensure they are aware of the statutory timescales when it receives a request for an EHC needs assessment.

63. The Council should provide us with evidence it has complied with the above actions.

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Final decision

64. There was fault by the Council, which caused Mr E an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman