Summary: The Council was at fault for delays in finalising an Education, Health and Care plan for Mrs X’s daughter. The delays meant Mrs X was denied her appeal right and was left with the uncertainty of future education provision. There was also fault in the Council not delivering suitable provision when it was aware Mrs X’s daughter was not able to go to school. The Council has already apologised for delays and has agreed to pay Mrs X a financial remedy to properly recognise the injustice.

The complaint

1. Mrs X complains that the Council delayed finalising an Education, Health and Care plan (EHCP) for her daughter (Y).
2. Mrs X says the Council also failed to arrange suitable education provision during the time Y was unable to go to the school named in her existing EHCP.
3. Mrs X said the delays in finalising Y's EHCP, and lack of suitable education caused her and Y distress and uncertainty about education provision.

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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 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 spoke to Mrs X and considered the documents both she and the Council sent.
8. I considered relevant law and guidance.
9. Mrs 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

What should have happened

10. A child with special educational needs may have an 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 Special Educational Needs and Disability (SEND) tribunal can do this.
11. Within four weeks of a review meeting, a council must notify the child's parent of its decision to maintain, amend or discontinue the EHCP. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
12. Where a council proposes to amend an EHCP, the law says it must send the child's parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
13. The SEND Code states if a council decides to amend the plan, it should start the process of amendment "without delay". (SEN Code paragraph 9.176)
14. Following comments from the child's parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHCP as soon as practicable and within eight weeks of the date it sent the EHCP and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
15. 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 EHCP. The right of appeal is only engaged when the final amended plan is issued.
16. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. (Education Act 1996, section 19).

What happened

17. The Council finalised an EHCP for Y in June 2021. In that EHCP, the Council named School A, a secondary school, as being the school Y would transition to, from September 2022 onwards.
18. The Council held an annual review for Y's 2022 EHCP, in mid-February and Mrs X asked for Y to go to a different school.
19. In early May, the Council told Mrs X it intended to amend Y's EHCP. In late May the Council sent Mrs X a copy of the proposed amendments. There was no school named in the proposed amendments.
20. Mrs X contacted School A in early June to discuss Y's provision and the school told her they did not believe they could meet Y's specific needs as outlined in the EHCP.
21. Mrs X said the school had told the Council this following the 2021 final EHCP, but she was unaware this was the case.
22. Mrs X then contacted the Council, now concerned about Y's provision for September onwards.
23. Mrs X followed up her contact with the Council during July and August to resolve Y's provision from September because she was concerned School A could not meet Y's needs. Mrs X was not able to get a satisfactory response.
24. In early August, Mrs X made a complaint to the Council that they had not issued a final EHCP after the annual review in February.
25. Mrs X discussed Y's provision directly with the school during September. She also asked the Council to fund provision for Y during the time she was not in school.
26. Mrs X then made another complaint to the Council in early October that Y was not in school, and they had not provided alternative education.
27. The Council wrote back to Mrs X and apologised it had not finalised Y's EHCP. The Council told Mrs X the delays were because it was trying to find an agreeable placement for Y with Mrs X.
28. The Council told Mrs X her preferred school (School B) did not have space for Y to start in September 2022. It said until the matter could be resolved, Y should have been going to School A.
29. The Council agreed to speak to School A to ensure it provided some provision to Y. The school provided a tutor for Y in October.
30. Mrs X asked for a stage two review of her complaints, partly because of the amount of provision that the school were providing, and in December the Council wrote back to her.
31. The Council reiterated its apology that it had not issued a final EHCP. It also acknowledged the provision the school were providing amounted only to an equivalent of two days per week.
32. In early January 2023, the Council finalised Y's EHCP and named School B as being Y's secondary school.
33. The Council provided information it is working to place Y at School B but cannot confirm a start date.

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My findings

34. After an annual review, the Council should make a decision about its intentions within four weeks. Having held a review meeting in mid-February, the Council did not update Mrs X on its decision to amend Y's EHCP until early-May. This was late, for which the Council was at fault.
35. After a council sends a copy of proposed amendments to the parents of a child with an EHCP, it should then issue a final EHCP within eight weeks. The Council sent Mrs X a copy of the proposed amendments in late May, but it did not finalise the EHCP until early January 2023. This was very late and was also fault by the Council.
36. The Council told Mrs X it delayed issuing an EHCP because it was trying to find a suitable placement for Y. Nonetheless, the legislation places a responsibility on the Council to act within certain timescales.
37. If the Council acted in line with relevant legislation, it could have finalised Y's EHCP in May. This would have given Mrs Y her right to appeal if the Council had maintained its position about sending Y to School A.
38. The Council eventually decided to send Y to School B and this followed a discussion it had with Mrs X and School A. On balance, I find this is a decision the Council could have made earlier and minimised the disruption to Y's education.
39. When it became apparent to the Council that Y was not able to attend School A, it took steps to ensure the school provided some provision. However, it later acknowledged this amounted to an equivalent of two days education per week. Mrs X says this is the extent of the provision that Y was currently receiving when she complained to us.
40. The Council did not assess the provision School A were providing Y from September onwards after Mrs X contacted them in August. It would have been aware of a concern both by Mrs X and the school. This was fault by the Council.
41. The Council then took steps to ensure School A were sending some provision in October when Mrs X followed this up. It acknowledged this did not amount to full time provision. This, again, was fault by the Council.
42. The fault in not initially assessing or ensuring the provision being provided to Y was sufficient has caused an injustice, because Y has missed educational provision. The Council should now offer a financial payment to remedy this injustice.
43. The fault in the Council delaying Y's final EHCP has caused an injustice which caused Mrs X distress and uncertainty. The Council has apologised for this and that is an appropriate remedy. The Council had been in contact with Mrs X to resolve a suitable placement for Y.

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Agreed action

44. Within four weeks of the date of my decision, the Council has agreed to;
45. Pay Mrs X £1600 to recognise the injustice to Y.
46. Review the level and suitability of Y's provision until they start at School B.
47. The Council has agreed to provide us with evidence it has complied with the above action.

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Final decision

48. There was fault by the Council.

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Investigator's decision on behalf of the Ombudsman