Summary: Ms X complained the Council delayed in reviewing her son’s Education, Health and Care Plan, misled her about her appeal rights and the provision that could be made and failed to ensure all the specified provision was made. There was fault by the Council which caused injustice. The Council will apologise, make a payment to Ms X and carry out service improvements.

The complaint

1. I refer to the complainant as Ms X. She complained the Council:
• failed to review and amend her son’s (Y) Education, Health and Care Plan (EHCP) in adequate time for his transition from primary to secondary school;
• delayed issuing the revised final EHCP in 2022;
• failed to name her preferred school in the EHCP;
• gave her false information about how to appeal the decision not to offer a place at the preferred provision;
• failed to ensure the provision specified in the EHCP was made;
• delays with dealing with and responding to her complaints
2. Ms X said the Council’s failings caused loss of education and provision to Y. She said he also missed out on having the agreed bespoke transition before he started secondary school. Ms X said the matter caused her significant distress, time and trouble, affected her work and that her appeal rights to the SEND Tribunal were frustrated.

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The Ombudsman’s role and powers

3. 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)
4. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
6. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
7. 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

8. I considered the complaint and documents provided by Ms X and spoke to her. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Ms X and the Council and considered their comments.
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

Summary of relevant law and policy

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 special educational needs and provision 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. The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
12. Where a child is transferring to a new phase in their education the EHC plan should be reviewed. The Regulations require that when the transfer is to secondary school it should be completed by 15 February.
13. 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)
14. 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.

Summary of the key events

15. The Council issued an EHCP in September 2021 for Y which named a mainstream primary school. He was due to transfer to secondary school in September 2022. Ms X wanted him to attend the resourced provision in the local mainstream school. I will refer to this as the RP at school G. The RP had said that it could meet Y’s needs when the Council consulted but the unit was oversubscribed and it was considered Y’s needs were not compatible with the needs of the other children who would be attending the unit. The Council intended to name a RP at a different mainstream school, but Ms X said that would not be suitable as they would not be able to get Y there or to attend to Y’s personal care needs. The Council named school G on the EHC plan in May.
16. There was contact between the school, the Council and Ms X over the rest of May and June. Ms X was concerned that time was running out for any transition arrangements for Y to help his move to the new school.
17. Y started at school G in September 2022 on a reduced timetable. In November Ms X complained to the Council. The main element of her complaint was that she considered the school was not making the provision specified in the EHC plan.
18. The Council responded to the complaint in January. It suggested there could be an early annual review. Ms X escalated her complaint to the second stage and the Council responded in February. It accepted some failings and said it would audit whether the school was making the necessary provision. I refer to that further below.
19. By April Y had stopped attending school.
20. The Council issued a draft EHC plan in April. And a final in June which named school G. Ms X appealed to the tribunal against that decision.

Analysis

Issuing a final EHC plan in 2022

21. As Y was moving to secondary education the amended EHC plan should have been issued by 15 February – it was issued on 6 May. The Council commented it intended to name the resourced provision at a different mainstream school but this was against the wishes of Ms X who considered that only school G would be suitable, as it was within walking distance. At the time, Y would not travel in a car and only Ms X or husband could attend to Y’s personal care needs. The Council needed to consult school G. It accepted there was delay in doing that. It has also accepted there was poor communication with Ms X over this period. It apologised for these failings.
22. The Council was not been able to say when it consulted the RP at school G for a place for Y. There was delay by the Council over this period. It should have been in a position to issue a final EHC plan by 15 February and so should have issued a draft naming the new provision eight weeks before. The Council did not ensure it could do so and that is fault.
23. Where there has been fault we have to consider what that has meant for the complainant. Because the final statement was not issued until May that meant there was less time for a planned transition for Y to school G. This was particularly important because of his needs. This was exacerbated because the school did not consider it could meet Y’s needs. It wrote to the Council in mid-May setting out its position and requesting a meeting. There was some transition planning in July which meant a reduced timetable was agreed for Y in September. I consider, on the balance of probabilities, that if the EHC plan had been issued when it should that there could have been a better transition for Y to school G. However, I cannot say whether that would have made any difference to the ultimate success or failure of the placement. But the uncertainty and stress this caused to Ms X is an injustice that requires some remedy.

Making the provision specified in the statement

24. It was agreed Y would start on a reduced timetable but by November Ms X was concerned about the hours he was attending, and the educational provision being made while he was there. The Council responded to the complaint in January, a delay of three weeks. Ms X was not satisfied with the response and escalated it to the next stage. Again there was a delay by the Council in responding. It accepted school G was struggling to make the specified provision but it was doing all that it could. The Council recognised there had been a failure to keep Ms X adequately informed about what was happening. It agreed to assess the adequacy of the provision through an audit by a specialist officer.
25. The outcome of the audit was that in some areas provision was being made, in others it was only partly made and in some it was the school’s view it was unable to make the provision because it was specialised and they did not have the resources or expertise.
26. It is the Council’s responsibility to ensure the provision specified in an EHC plan is made. In responding to the complaint the Council acknowledged that more could have been done to assess the suitability of the education provided. However, it considered school G was best placed to work directly with Ms X to understand what type of work, and in what format, Y was ready for.
27. The Council cannot delegate the duty to make provision to a third party. Here the Council knew from its contact with school G that it considered it could not make the provision. That was from the time the EHC plan was issued. The Council did not have evidence to support its view that the school was making the provision when that was counter to all the school was saying. The Council should have acted to ensure the school was making the provision or making other arrangements for the provision to be made.
28. The failings by the Council on this point meant Y did not receive the provision specified in his EHC plan for the time he was at school G. By the time of the audit in March 2023 Y was limited in the amount of time he was attending and the subjects he was accessing which meant that a full assessment could not be made of how the provision was made. But the audit identifies areas where there was none of the specified provision being made because the school considered that the provision was not something it could offer. That included:
• use of the Zones of Regulation approach for supporting the development of emotional understanding. School staff will access relevant training and implement this using a classroom / whole-school approach;
• Use of calming and regulatory activities within the classroom daily, such as yoga or mindfulness-based activities adapted for use with children and young people;
• Engagement in a therapeutic intervention which focuses on supporting children and young people to develop an understanding of self-based on narrative principles;
• Interoception intervention to support Y’s understanding of his emotions and how they affect his body;
• Y to work through ‘The Ideal Self’ to enable staff to provide the provision needed for Y to move towards his ‘ideal self’;
• Support to work through strategies such as Energy Accounting in preparation for transition to new routines and / or activities;
• Various forms of specific support around Y’s toileting issues.
29. There were other areas such as speech and language therapy where the school was waiting for an assessment and capacity to deliver the interventions.
30. This shows that Y was not, and had not, received some of the provision specified in the EHC plan.
31. The only way of providing a remedy for this is by the way of a payment to reflect the loss of provision to Y. I make a recommendation on this below.

Naming school G and access to the Resourced Provision

32. An issue in this complaint has been about access to the resourced provision at school G. Ms X wanted Y to attend the RP and the Council consulted the school specifically for him to attend that unit. As explained above, a place was not available there and the Council’s intention was to name resourced provision at another mainstream school. In response to Ms X’s wishes it did not do that and instead named school G.
33. A parent has the right of appeal to the tribunal over the provision named on a EHC plan. Ms X did not appeal against the naming of school G in Y’s EHC plan in May 2022 because she was satisfied the school would be able to make the provision specified in the statement. In reaching that view she had a conversation with a senior officer of the Council. They had said it would not be possible to appeal that the RP had not been specifically named in the EHC plan because it was all part of the same provision within school G. She was also reassured by his comments about the school being able to call upon the RP to meet Y’s needs, if it considered it needed to do so.
34. Ms X considers she was misled by the Council on this point. Although she accepts it is the case that she could not appeal the section of the EHC plan that named school G she could have appealed part F that dealt with the provision needed for Y as that did not specifically name the RP. Also, she was unaware at this stage that the school was saying it could not make provision. So she considers the officer’s assurances on the point were not well founded.
35. There is no recording of the conversation. It was referred to in correspondence between the Council and the school. Ms X had contacted the school and referred to the conversation. She said the officer had categorically stated the Council would expect the school to allow Y to access parts of the RP in order to meet his specific needs as outlined in his plan (and any subsequent reviews). This was because the RP was part of the wider school and not recognised as a separate institution. The school raised this with the officer. It said the RP did support young people within the mainstream setting but the RP was separate for admissions and it had been decided that Y was not suitable for the particular cohort within the RP. The officer replied. He said he had explained (to Ms X) that the school would have the duty to make the provision specified in the EHC plan and it was for the school to decide how best to do that within the total resources available to it. He stated Y’s needs were not at a level where the council would normally look to resourced provision. I do not consider this statement is logical as the Council was intending to name other RP provision in the EHCP which indicates that was the provision it considered Y needed.
36. The information the Council gave to Ms X on the possibility of an appeal and provision by the school was lacking. The Council knew the school strongly considered it could not make the specified provision and at this point there was no plan in place as to how it could. The Council should also have provided more detail about the appeal position and that while it was not possible to appeal against the naming of the school Ms X could appeal part F as the RP was not referred to specifically in how the provision should be made. Therefore the information the Council gave to Ms X at this point lacked detail and transparency to such an extent as to be fault.
37. Had Ms X known the school’s position and the reality of access to the RP I consider, on the balance of probabilities, she would have been likely to appeal to the tribunal. As I say above, where someone has a right of appeal we would not normally consider the complaint as the appeal is the most appropriate way to address it. I considered whether I should make an exception here and consider the details around the provision named in the statement. I decided I should not. There are two factors in my decision. When Ms X realised she could make an appeal against part F she could have lodged an out of time appeal. Although I understand from Ms X she was not aware that this was a possibility. But, most significantly, we could not come to any view on what the outcome of any appeal might have been. I am not, therefore, going to consider this point further or make any recommendations for remedy as I cannot say the fault I am finding caused injustice.

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Recommended action

38. The Council should
• apologise to Ms X in line with our guidance on making an effective apology. It should also make a payment to her of £3000 which is to reflect the loss of education to Y for the autumn and winter terms 2022/23. It should make a further symbolic payment of £500 to reflect the injustice the faults I refer to above had on Ms X. It should do this within one month of the final decision;
• provide clear information that is available to schools, parents and officers on the difference between a place in a mainstream school and in the associated resourced provision. This is to ensure all parties understand the distinction between them both in terms of the support provided and entry requirements;
• disseminate the learning from this complaint to officers on the importance of supplying factual information in relation to any appeal rights.
39. The Council should provide us with evidence it has complied with the above actions. The first bullet point should be completed within one month of the final decision and the second two within two months.

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Final decision

40. There was fault which caused injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman