Summary: Ms X complained about delay by the Council in issuing an Education, Health and Care Plan for her daughter. Ms X says because of this she has been asked to pay for her daughter’s school fees. We have found the Council at fault for the delay for which it has apologised. We have also found fault with the Council’s complaint handling for which the Council had agreed to apologise and make a symbolic payment for the injustice caused. We have found no other fault in the substantive issues Ms X complained about.

The complaint

1. Ms X says the Council provided reassurances at the time of a review of her daughter’s, Y’s, Education, Health and Care Plan (EHC Plan) that a placement and funding had been agreed for the suggested provision. She says she acted upon that by enrolling her daughter at the agreed school. Ms X says the Council delayed issuing the amended EHC Plan and, several months after the review, told her it would not be naming the school. She says there is now a debt for fees, and the school is pressing for payment. She also says the Council delayed in responding to her stage 2 complaint.
2. Ms X says this has caused the family significant distress and they cannot afford to pay the fees for the school.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), 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 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

7. I considered the information submitted by Ms X and discussed the complaint with her. I made enquiries of the Council and considered its response and the documents it provided.
8. Ms X and the Council had the opportunity to comment on my draft decision. I considered all comments before reaching a final decision.

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What I found

Education and health care plan (EHC Plan)

9. An EHC Plan is for children and young people aged up to 25 who need more support than is available through special educational needs support. An EHC Plan identifies educational and health needs and sets out the support to meet those needs (including, but not limited to, providing a specialist educational setting).
10. Councils are not required to provide exactly what parents request, but they should be able to explain clearly why they consider a suggested provision meets the assessed needs of a child. They must also take steps to ensure the view of the child is properly recorded and considered when planning provision for them. In cases where a council has been unable to find a suitable school placement within the time frame, they have a duty to provide appropriate alternative education. We can look at a delay in issuing an EHC Plan, including whether a council has failed to make purposeful efforts to identify a school place.
11. When an EHC Plan is maintained for a child or young person the local authority must secure the special educational provision specified in the plan. If a local authority names an independent school or independent college in the plan as special educational provision it must also meet the costs of the fees, including any boarding and lodging where relevant.
12. Local authorities must ensure that children, young people and parents are provided with the information, advice and support necessary to enable them to participate in discussions and decisions about their support.
13. The First-tier Tribunal (Special Educational Needs and Disability) (the SEND Tribunal) is responsible for handling appeals against local authority decisions about special educational needs. This includes a refusal to assess a child’s educational, health and care needs and create an EHC Plan.

EHC Plan annual review

14. The Annual Review of an EHC Plan considers whether the provision remains appropriate and whether progress is being made towards the targets in the Plan.
15. The ‘Special Educational Needs and Disability Code of Practice: 0 to 25 years’ (the Code) is statutory guidance. This means local authorities must follow the Code when making decisions about children with EHC Plans. The Code says: the first review must be held within 12 months of the date when the EHC plan was issued, and then within 12 months of any previous review, and the local authority’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 (and within 12 months of the date of issue of the EHC plan or previous review).
16. In practice the review covers not just the annual review meeting, but the Council’s decision to maintain, cease or amend the Plan following the meeting. Each of these three decisions carries a right of appeal to the SEND Tribunal.

What happened

17. Ms X’s daughter Y had an EHC Plan which named a specialist centre (Provision C) managed by the Council and located within an academy school (School D). Y was on roll at School D.
18. In December 2021 Provision C asked the Council whether School D would fund a placement for Y to attend School E while remaining on School D’s roll. The Council said it advised Provision C that it was possible, but the school would have to agree to the arrangement. The Council said it could insist that School D keep Y on roll but could not insist they facilitate a placement at School E. The Council further explained the special educational needs case review panel would then need to agree on funding. The Council advised Provision C that once School D had agreed to the placement it would need to submit costings for School E.
19. An annual review of Y’s EHC Plan was held on 12 January 2022. Y’s parents said they wanted their daughter to attend School E a self-managed provision. The Council did not attend the annual review. However, the review document stated the Council said if Y remained on roll at School D, School D could be funded for Y to attend School E. For this to happen Y had to be removed from Provision C and remain on roll at School D who would be responsible for ensuring her attendance at School E.
20. Provision C said in agreement with Y’s parents it “took a big step back and agreed that [Y] would indicate the lessons that she felt able to come into, and when, and would slowly try to build up relationships with staff and confidence in herself again. [Y] now attends around one lesson a day, usually Art or cooking, and has gone into PSHEE recently. She also does her reading in [Provision C] as she doesn’t feel able to access the group. Currently Anna’s attendance is 43% and we communicate daily with Mum as to what Anna will access each day. The family are exploring other options for Anna’s education”. Provision C said it met with Y’s parents regularly to review the situation and adapt the provision that was offered. It also acknowledged that there were lessons that Y had not accessed due to her anxiety.
21. Following the annual review Ms X placed Y at School E.
22. On 3 February the Council contacted School D and sought its views on the above proposal. The Council said “I thought it would be helpful to get your stand on this before submitting papers to the SEN case review panel”
23. School D responded said it had not been involved in any discussions and the proposal had come from Provision C. It said a decision would be made by the school principal.
24. On 15 March Ms X contacted the Council asking whether a decision had been made by School D. Three days later School D told the Council it did not agree to the proposal.
25. A week later, the Council informed Ms X of the decision but said it would still submit a request to the panel for a firm decision. Ms X asked if the Council would consider an alternative secondary school to facilitate the same proposal.
26. On 6 April the panel declined the proposal on the basis that School D was not in agreement. A week later the Council informed Ms X of the decision.
27. On 25 April Ms X contacted the Council and requested a placement for Y at School F with a view that it would fund School E. The Council told Ms X that the arrangement could only be facilitated with the full agreement of School F. It said it could not insist the school facilitates such an arrangement.
28. Ms X responded and said, “My understanding is that you had proposed this arrangement to [Provision C] in the first place, so we also pursued this option in good faith that this funding arrangement would be possible and approved so [Y] could attend before everything had been agreed at Panel”.
29. On 27 April the Council sent consultation papers to School F and four other schools as requested by Ms X.
30. On 28 April Ms X said School E was requesting payment. Ms X asked the Council for advice about payments for spring and summer terms.
31. On 5 May School F agreed to the proposal on the basis that Y would attend School E full-time, but she would be on its roll.
32. On 6 May Ms X contacted the Council again about payment of fees for School E from January. The Council spoke to Ms X and explained that funding at School E had not been agreed by the Council and she had placed Y at the School before a decision had been made. Ms X said she was assured that School D would have paid.
33. On 12 May Ms X made a formal complaint to the Council. She complained about the delay in completing Y’s EHC Plan. Ms X said this caused the proposed placement at School E funded by School D to fall through. Ms X said these faults meant she had to personally pay for Y’s education at School E and felt the Council should pay the fees from January until the end of the academic school year.
34. On 27 May the Council issued a draft amended EHC Plan naming School F.
35. On 31 May the Council responded to Ms X’s complaint. Ms X remained unsatisfied and escalated her complaint to stage two on the same day.
36. On 14 June the Council issued a final EHC Plan naming School F.
37. On 6 September the Council responded to Ms X’s stage two complaint. It agreed there had been a delay in issuing the final Plan. It apologised to Ms X for the delay but said that was not the reason why the proposed placement fell through. The Council explained that School D had to agree to the proposed arrangement but had declined to do so. Finally, the Council said it had not communicated to Ms X or School E that a formal decision had been made to agree funding for access via School D. It said Ms X had made the decision to place Y at the School without confirmation that it would be funded. The Council did not uphold the complaint.
38. As part of my investigation, I discussed the complaint with Ms X. Ms X confirmed that she had not received any confirmation in writing but placed Y at School E in good faith following positive discussions at the annual review.

Analysis

39. As explained in Paragraph 4 I cannot investigate the actions of the schools in this case. I can only investigate the actions of the Council.
40. The Council carried out an annual review of Y’s EHC Plan in January 2021, but did not issue a final amended Plan until June 2021. The Code says that where a council decides to amend an EHC Plan, it must notify the parent of this decision within four weeks of the review meeting. There is however no statutory timeframe for how long the Council can take to do the amendments, the Code simply says this should happen ‘without delay’. Once the amended plan is ready it must be sent to the parent with an amendment notice. The Council has to issue the final plan within eight weeks of the amendment notice.
41. The Council has acknowledged there was a delay in issuing the EHC Plan following the review.
42. Ms X said if the Council had issued the EHC Plan without delay it would have named School E. In response to my enquiries the Council said it would have named Provision C because without agreement from School D the placement and funding for School E could not be agreed. In response to my draft decision Ms X questioned the Council’s decision to name Provision C. She said that Provision C had stated at the annual review it could not meet Y’s needs.
43. The Council has acknowledged there were issues with Y’s attendance at provision C. But it maintains that in the absence of a new placement that had confirmed it could meet Y’s needs and a subsequent decision from panel, it would have named Provision C.
44. Ms X then chose to keep Y at School E despite knowing that School D had not agreed to the proposed arrangement. Ms X told me that as Y’s parent she would make the same decisions again.
45. Ms X says the Council should pay the fees for School E from January to July. It is clear the Council considered there was a possibility that School D could fund Y to attend School E. The arrangement was discussed at the annual review meeting, but nothing had been confirmed and any amendments to the EHC Plan had not been agreed. Following the meeting Ms X placed Y at School E and, while I do have sympathy with her reasons for doing so, it was her choice to make this arrangement. I have found no evidence that suggests the Council informed Ms X the placement and funding had been agreed. I have found no fault by the Council here.
46. I therefore do not find that Ms X and Y have suffered any personal serious loss, harm or distress by the Council’s delay in issuing the EHC Plan. The Council has apologised to Ms X for the delay, and I am satisfied with this.
47. There was a considerable delay by the Council in responding to Ms X’s complaint at stage two and I find this fault has caused her distress and uncertainty.

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Agreed action

48. Within one month of my final decision the Council will apologise to Ms X and pay her £100 for the distress and uncertainty caused by the delay in responding to her complaint.

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Final decision

49. I have found fault with the Council’s handling of Ms X’s complaint causing an injustice to Ms X. I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman