Summary: Ms F complained about how the Council handled her son’s Education, Health, and Care plan process and her request for a change of school placement. The Council agreed it caused an 8-month delay in finalising his plan due to a human error and apologised to Ms F. This was fault. We found its apology was not enough to remedy the injustice this caused. The Council should make a symbolic payment to Ms F and review its process to ensure such unnecessary delays do not reoccur.

The complaint

1. The complainant, whom I shall refer to as Ms F, complained about how the Council handled her request for a change of school placement for her son (X). She said X is in the wrong placement, her views have been ignored and the Council have communicated poorly with her.
2. She said, as a result, she has experienced distress and uncertainty, and she had time and trouble to get her concern properly considered.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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)

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How I considered this complaint

6. As part of my investigation, I have:
• considered Ms F’s complaint and the Council’s responses;
• discussed the complaint with Ms F and considered the information she provided;
• considered the information the Council provided in response to my enquiries;
• considered the law and guidance relevant to the complaint.
7. Ms F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
8. 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

Education, Health, and Care Plans

9. A child or young person with special educational needs may have an Education, Health, and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.

Annual reviews

10. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
11. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
12. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
13. Where the council proposes to amend an EHC Plan, 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). Case law sets out this should happen within four weeks of the date of the review meeting.
14. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  

Reassessments

15. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
16. The council can refuse a request for a reassessment if less than six months have passed since a previous EHC needs assessment. It can also refuse a request if it does not think it is necessary, for example because it does not feel a child or young person’s needs have changed significantly.
17. The council must tell the child’s parent or the young person whether it will complete an EHC needs reassessment within 15 calendar days of receiving the request. If the decision is not to reassess, the council must also provide information about the right to appeal that decision to the tribunal.

What happened

18. Ms F has a son (X) who lives with her. He moved back into the Council’s area in 2021. X has special educational needs which is set out in his EHC Plan, and he receives support from services including the Child and Adolescent Mental Health Services (CAMHS) and behavioural therapy.
19. In April 2022 X started attended a new school. Although this initially started well, the placement broke down. He remained on roll with the school until March 2023.
20. In autumn 2022 an annual review was held to consider X’s EHC Plan and school placement. Ms F shared her view of schools which may be suitable for X which she wanted the Council to consult with. This included special schools.
21. The Council and Ms F discussed alternative educational provision, but as this would be online provision X felt it was better to wait until a school was found.
22. The Council consulted with several schools, including the schools Ms F had suggested. However, only one school (School Y) was able to offer X a placement. This was a special school.
23. Ms F and X visited School Y in early 2023. She told the Council they were happy with the school, but X did not want to stay at the school for the start at the 2023/2024 academic year. This was because he had concerns about class sizes and making friends at the setting. Ms F said they believed he should attend a mainstream setting from September 2023.
24. The Council issued X’s draft amended EHC Plan which listed School Y as his educational setting.
25. X started attending School Y in April 2023.
26. In May 2023 Ms F asked the Council for a change of school for X.
27. The Council told Ms F it had discussed her request with School Y. The school found X had transitioned well, listens well and was building relationships. It believed he was a good fit in the school as he was working to a high standard and progressing academically. The Council also said it had recently consulted several other schools, which could not meet his needs. It therefore refused her request.
28. Ms F disagreed the Council’s decision was in X’s best interest. She said it had not properly sought and considered her and X views before it made its decision. She believed X’s progress was due to his support from other services, but School Y was negatively impacting him. This was because it was a special needs school for children with complex needs, but X needed a mainstream school.
29. A month later, the CAMHS informed the Council X’s mental health had improved.
30. In Summer 2023 Ms F complained to the Council. She said its officer allocated to X’s case had failed to respond to her emails and calls, including a letter the CAMHS service had sent. She asked the Council to respond to her concerns and change its allocated worker.
31. In response the Council did not uphold Ms F’s complaint. It explained its allocated caseworker had been in regular communication with her, other professionals, and the school.
32. Ms F asked the Ombudsman to consider her complaint.
33. The Council has since realised it had failed to issue a final amended EHC Plan for X since March 2023. It apologised to Ms F and issued this in November 2023. It explained Ms F could either appeal her school placement disagreement to the SEND Tribunal or the Council could consider school placements as part of an annual review.
34. Ms F agreed the best way forward would be through the annual review process and for a new final amended EHC Plan to be issued.

Analysis and findings

The EHC plan process and school change request

35. The Council agrees it was at fault for its failure to finalise its draft EHC Plan for X in March 2023. This plan set out he should attend School Y. It was not until November 2023 the Council rectified its error and issued its final amended EHC Plan for X to Ms F. This was therefore fault.
36. Ms F also said the Council failed to consider her and X’s views when it listed School Y in his draft EHC Plan in early 2023.
37. The evidence shows the Council obtained and considered Ms F and X views about school placements before it issued its draft EHC Plan in early 2023. It also consulted with the schools she proposed, which included special schools. At the time, she was happy for X to attend School Y for the remainder of the 2022/2023 academic year.
38. However, after her visit to School Y and X attending the school, she told the Council the school would be unsuitable for X for start of the 2023 academic year.
39. I am satisfied the Council balanced Ms F and X’s views with information it had received from the School and the CAMHS services. It then decided X should remain at School Y as set out in his draft EHC plan. As there was no fault in the process the Council followed to reach its view, I cannot criticise the merits of its decision.
40. However, this does not change the fact that Ms F did not have her right to appeal to the SEND Tribunal available to her at the time. This was therefore a further opportunity for the Council to have realised its failure to finalise X’s EHC Plan.
41. While Ms F said X did not need a special school as his support from the CAMHS and therapy had been successful, I have not seen evidence she requested a reassessment of X. Her request was for a change of school placement. I have therefore not found the Council at fault for failing to issue a decision on a reassessment request.

Council’s communication with Ms F

42. Ms F said the Council communicated poorly with her since early 2023. However, based on the evidence available, I have not found the Council at fault for how it communicated with her.
43. In reaching my view, I was conscious:
• the Council sought Ms F’s views as part of the annual review for the early 2022 EHC Plan for X, informed her about its consultations with schools, and shared its draft EHC Plan with her;
• the Council acknowledged her request for a change of school placement and provided its response;
• Ms F received the Council’s acknowledgement of her complaint and its complaint response in line with its Complaints Policy;
• there is no evidence the Council had not blocked her emails or communication; and
• if the Council had not been at fault for its failure to finalise X’s EHC Plan in March 2023, I would not have expected the Council to provide any further responses to Ms F about this matter. This is because she should then have exercised her appeal rights to the SEND Tribunal.
44. Any issues with the Council’s communication were therefore related to its fault of failing to issue its final amended EHC Plan for X between March to November 2023.
45. In addition, I understand Ms F has decided to work with the Council to review and amend X’s EHC plan, rather than exercise her appeal right in late 2023. Once this process is completed, she will again have appeal rights to the SEND Tribunal if she disagrees with X’s school placement or the educational provision listed in his EHC plan.

Injustice

46. I cannot say whether the Council’s fault caused X an injustice. This is because I cannot say what the outcome would have been had Ms F been able to exercise her appeal rights to the SEND Tribunal.
47. However, I am satisfied the Council’s fault caused Ms F distress and uncertainty due to the loss of her right to appeal to the SEND Tribunal from March 2023 to November 2023. I found the Council’s apology was not enough to remedy the injustice this caused her.

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Agreed action

48. To remedy the injustice the Council caused to Ms F, the Council should, within one month of the final decision:
1. pay Ms F a symbolic payment of £500 to acknowledge the distress, uncertainty, and loss of appeal right its failure to issue X’s final amended EHC Plan caused her between March to November 2023.
49. Within three months of the final decision the Council should also:
1.  
2. review Ms F’s complaint against its existing processes and procedures to ensure delays or errors in completing the Education, Health, and Care plan process are identified and actioned swiftly, including when complaints are received. This is to ensure it provides parent or young people their right to appeal to the SEND Tribunal without unnecessary delay.
50. The Council should provide us with evidence it has complied with the above actions.

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Final decision

51. I have completed my investigation with a finding of fault by the Council which caused Ms F an injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman