Summary: The Council delayed finalising Ms X’s child, Z’s, Education, Health and Care (EHC) Plan in 2023, failed to make sufficient efforts to find Z a placement in a specialist school and relied on a mainstream school which said it could not meet Z’s needs to provide their education. As a result, Z has not received all the education in their EHC Plan for four terms and this continues to date. To recognise the period of missed education and the uncertainty caused, the Council has agreed to apologise, pay Ms X £7,200, and pay her £2,000 for each additional term this academic year that Z continues not to receive the education in their Plan. To prevent reoccurrence of fault the Council has also agreed to carry out service improvements.

The complaint

1. Ms X complains the Council:
1. delayed finalising her child, Z’s, EHC Plan;
2. failed to make sufficient effort to find Z a specialist school placement; and
3. failed to provide the special educational need (SEN) provision in Z’s EHC Plan including access to a teaching assistant.
2. Ms X said the Council’s faults have caused Z to miss out on specialist full-time education and SEN provision for longer than necessary. Ms X said these faults have also caused her and Z distress.

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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. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. 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.
7. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
8. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
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)
10. 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 have and have not investigated

11. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
12. Any events before December 2022 are therefore only referred to in this decision for context. I have not investigated or come to findings on events that happened before this date, as these events happened more than twelve months before Ms X complained to the Ombudsman and there is no good reason that these matters were not raised with us earlier.

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How I considered this complaint

13. I considered the information provided by Ms X and the Council.
14. I considered the relevant law and guidance as set out below.
15. I considered our Guidance on Remedies
16. I considered all comments made by Ms X and the Council on a draft decision before making a final decision.

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What I found

Law and guidance

EHC Plans

17. 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.

Provision in EHC Plans

18. The EHC plan is set out in sections which include:
• Section B: The child or young person’s special educational needs. 
• Section F: The special educational provision needed by the child or the young person.  
• Section I: The name and/or type of school. 
19. We cannot direct changes to the sections about education, or name a different educational setting. Only the SEND Tribunal can do that.
20. Councils are responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.

Reviewing EHC Plans

21. The Statutory Guidance: Special Educational needs and disability code of practice: 0-25 years (“the Code”) says:
• EHC plans must be reviewed as a minimum every 12 months (para 9.166);
• reviews should include reviewing the special educational provision made for the young person to ensure it is being effective in ensuring access to teaching and learning, and good progress (para 9.167);
• within four weeks of the review meeting the council must decide whether it proposes to keep the EHC plan as it is, amend the plan or cease to maintain it, and notify the child’s parent or young person and the educational setting (para 9.176);
• if the plan needs amending, councils should start the process of amendment without delay (para 9.176);
22. Within twelve weeks of the annual review meeting, the final, amended EHC plan must be issued. R (L, M and P) v Devon County Council [2022] EWHC 493 (Admin)

What happened

Background

23. Ms X’s child, Z, has a neurodevelopmental condition and due to this, can exhibit some challenging behaviour. Z has an EHC Plan.
24. Z’s July 2022 EHC Plan (the Plan that was in force at the beginning of this complaint period) said Z should attend a mainstream primary school, School A, from September that year, with a range of special educational needs (SEN) support in place.
25. Section F of Z’s EHC Plan listed the SEN support Z would access. This included;
• Speech and language therapy sessions;
• Teaching in small groups and at some times through one-to-one support - the exact amount of one-to-one support hours needed by Z per week is not clear but is generally recommended to support certain activities rather than throughout the school day;
• Staff to provide additional support around communication, language and socialising through specialist games, activities and learning systems; and
• Access to quiet, distraction free areas to minimise Z’s anxiety.
26. Ms X said during this time, Z often did not have access to a teaching assistant so Z’s attendance dropped significantly.
27. School A had problems since Z started in recruiting a teaching assistant with the right experience to work with Z and who was able to work with Z on a regular, long-term basis.
28. When a teaching assistant was not available, several times Ms X went into school herself to support Z with their lessons as they were struggling without the one-to-one support.

Key events

29. The Council held an annual review of Z’s EHC Plan in January 2023. This noted that Z’s attendance at School A was at 35% due to Z struggling with the demands of the mainstream school environment. School A said it could no longer meet Z’s needs.
30. The Council and Ms X agreed that a change of school and a move to specialist provision would likely be needed . Ms X said, at that time, her preference was a specialist primary school, School B.
31. The Council sought approval from an internal panel for Z to begin attending a specialist placement. This was approved in early March and two weeks later, the Council began consulting specialist schools using the last in force EHC Plan and Z’s annual review notes. It contacted four, which included Ms X’s preferred school.
32. By 19 April 2023, the Council should have finalised Z’s EHC Plan following the January 2023 annual review. It had not done this yet and was still at draft stage.
33. All four schools consulted by that time said they could not meet Z’s needs, except School B, which did not respond by the deadline. This was Ms X’s preferred school. The Council chased School B for a response and it came back in late May 2023. It said it could not give an answer to the consultation due to the EHC Plan being out of date.
34. The Council consulted two more specialist schools in late April but they either had no space or could not meet Z’s needs. It consulted one more in early June that could not meet their needs.
35. The Council then did not consult any specialist schools again until late July, when it consulted eight. Most of those schools consulted did not have space and a few said they could not meet Z’s needs.
36. In August the Council consulted two other schools which said they could meet Z’s needs but Ms X had concerns regarding their record with safeguarding and declined these. This school then went on to say that it also could not meet Z’s needs. The Council consulted no additional schools for Z between then and December 2023, when my investigation period ends.
37. Between January and July 2023, Z attended School A for approximately three hours per day and later on in the academic year stopped attending altogether. Z exhibited distress about attending school and Ms X acted as their teaching assistant when none were available. No other education provision was put in place during this time.
38. The Council issued a final EHC Plan for Z in July 2023. In Section I it said Z needed a specialist school setting. It did not name a specific setting as it had not found one.
39. Ms X decided not to appeal the July 2023 EHC Plan to the SEND Tribunal, as she agreed Z needed a specialist setting.
40. Later in July, as a specialist placement still had not been found, the Council arranged some alternative provision for Z to begin in September 2023. This was equine therapy for two days per week with some education built into the activities. This placement provided SEN support but limited education. The Council said Z could access his education mainly from School A – a mainstream school - for the other three days each week despite this school having said it could not meet their needs and Z requiring a specialist placement according to their Plan.
41. In August 2023 Ms X made a formal complaint to the Council. She complained the Council had taken too long to find Z a specialist placement and said the fact the Council had consulted schools using an out-of-date EHC Plan had likely contributed to this.
42. The Council upheld the complaint, accepting that it used an out-of-date EHC Plan for consultations as it delayed finalising Z’s Plan. It offered Ms X £350 as a financial remedy for this.
43. Ms X complained to the Ombudsman in December 2023 as she was unhappy with the Council’s response and said the Council still had not found Z a specialist school placement.
44. At the time of writing, a specialist school placement has not been found for Z. They are still receiving two days a week of equine therapy from the same provider and are not receiving any education.

My findings

Complaint 1a) Delayed finalising Z’s EHC Plan

45. The Council should have finalised Z’s EHC Plan within twelve weeks of the January 2023 annual review meeting. The Council instead took 24 weeks and five days.
46. The Council said the reason for the delay was because it wanted to consider Ms X’s comments on draft versions of the EHC Plan and to seek input from the speech and language therapy service. However the statutory guidance expects that these actions will be completed within the given deadline. The Council’s delay in reviewing and finalising Z’s EHC Plan was fault.
47. Ms X decided not to appeal the final EHC Plan, so this delay did not cause her to miss out on accessing her appeal rights. However the delay did cause a period of frustration and uncertainty to Ms X.

Complaint 1b) Failed to make sufficient effort to find Z a specialist school placement

48. i) Consulting with an out-of-date EHC Plan:
49. Ms X complained that the Council consulted with an out-of-date EHC Plan and this contributed to the Council not finding Z a school. For the period of twelve weeks following the annual review, this is permitted as the Plan is under review during that time. The Council sent the most recent annual review notes, alongside the last in force EHC Plan, while consulting schools. However, the delay in finalising the Plan meant the Council consulted with an out-of-date EHC Plan for longer than it should have and beyond the given twelve weeks. This was fault.
50. However I do not consider that this specific fault caused Z to miss out on a school place. Only School B responded negatively to the earlier consultation as a direct result of the Plan being out of date, the others decided they simply could not meet Z’s needs or did not have space. However, a few months later, and still in time for Z to start at that school for the following year, School B reviewed the up-to-date EHC Plan and still said it could not meet Z’s needs.
51. Z’s needs did not significantly reduce between the July 2022 EHC Plan and the later July 2023 EHC Plan, so the outcomes of the consultations would, on the balance of probabilities, have been the same regardless of which EHC Plan was used.
52. Instead the following faults by the Council have contributed to the period Z has been without education.
53. ii) Number and range of placements consulted:
54. The Council should have consulted more schools than it did in 2023 and at times it allowed the matter to drift. It should have considered consulting independent schools when it became apparent that there was a lack of suitable specialist school places and there is no evidence it did. This was fault. This fault has contributed to the period Z has been out of education.
55. iii) Lack of specialist school places
56. The Code is clear that councils must keep the sufficiency of its educational provision under review. The Council said there is a shortage of specialist school placements locally and it is taking steps to increase these. However it should have planned for this increase before now.
57. The Council’s delay in finding Z a specialist school placement due to the lack of school places is fault. This fault has contributed to the period Z has been out of education.

Complaint 1c) failed to provide the education and SEN provision in Z’s EHC Plan

58. i) January – July 2023 – provision received
59. From the time of the January annual review, the Council was aware that School A could no longer meet Z’s needs.
60. From January to July 2023, Z received the speech and language therapy in their Plan, as the therapist was able to provide this from home. Z also attended School A on a very reduced timetable and without access to all the SEN provision their plan said they required.
61. The Council was aware from January that School A was no longer accessible to Z but did not put any alternative provision in place for Z during this time. This was fault. This fault contributed to the seven termtime months where Z did not receive a significant amount of the education and SEN provision required by their Plan.
62. ii) July 2023 – ongoing – provision received
63. Education and SEN provision stopped for Z as expected over the Summer holidays. After Z’s July 2023 EHC Plan was issued which said Z required a specialist school - as no specialist placement had yet been found – the Council decided to put in place some alternative provision. It arranged equine therapy for two days a week for Z beginning in September 2023. Z also continued to access the speech and language therapy in the EHC Plan as this was carried out at Z’s home.
64. From September, the Council said Z could access the education in his Plan at School A on the remaining three days, as the Council kept Z on roll there, but Ms X did not “wish to engage with this placement”.
65. The Council may have kept Z on roll but School A was not accessible to Z, as the school already said it could not meet Z’s needs and School A is a mainstream setting. Z’s EHC Plan says they require a specialist placement. The Council failed to provide the education in Z’s EHC Plan from September 2023 and continues to do so.
66. From September 2023 to date, Z has missed a further nine months of much of the provision in their EHC Plan. Z did not receive any education during this period and continues not to receive education as no placement has been found. I have recommended an ongoing remedy to recognise the injustice caused.

iii) Access to a teaching assistant

67. A key part of Ms X’s complaint is that Z did not have access to a teaching assistant at School A.
68. Z’s July 2022 EHC Plan did not state that Z required constant one-to-one support from a teaching assistant. However shortly after Z started at School A in September 2022 the school decided that Z had an increased need for one-to-one support. The school struggled to recruit a teaching assistant to this post long-term. As a result, Ms X often went into school to provide one to one support to Z in accessing their lessons, as they were struggling in a mainstream setting.
69. We cannot investigate what happens in schools, so I have not investigated or come to a finding on the issues the school had in sourcing a teaching assistant.
70. The Ombudsman can find fault with councils for failing to provide what is in Section F of EHC Plans but in this case, constant access to a teaching assistant was not a requirement of Z’s EHC Plan.
71. Ms X acting as Z’s teaching assistant was frustrating and inconvenient for her. However this was not the result of fault by the Council.

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Agreed action

72. Within one month of the date of the final decision, the Council has agreed to:
1. Apologise to Ms X for the injustice caused by the faults in this case;
2. Carry out an annual review of Z’s EHC Plan which can consider their current provision and needs (this EHC Plan should then be finalised within twelve weeks of the annual review meeting, informing Ms X of her appeal rights if she disagrees with the content of the Plan);
3. Pay Ms X £3,000 to reflect the two terms Z did not receive all the education and SEN provision in their EHC Plan, or have any alternative provision put in place, between January and July 2023. This figure reflects that some education was received during this time, albeit at a school which could not properly meet Z’s needs;
4. Pay Ms X £4,000 to reflect the two terms Z did not receive any of the specialist school education set out in their EHC Plan between September 2023 and approximately mid-April 2024. This amount per term is increased to reflect the fact no education was received at all, only equine therapy, and the cumulative impact of a second academic year of missed education;
5. Pay Ms X £2,000 for each further term in the 2023/24 academic year where Z does not receive the education in their EHC Plan; and
6. Pay Ms X £200 to recognise the frustration and uncertainty she was caused due to the Council’s delay in finalising Z’s EHC Plan.
73. Within three months of the date of the final decision, the Council has agreed to:
1. Set out to the Ombudsman what steps the Council is taking as part of its SEND sufficiency planning to increase its number of specialist school placements, including expected timeframes for this;
2. Outline what steps the Council is currently taking as part of its SEND improvement strategy to improve its timeliness in carrying out annual reviews and finalising EHC Plans and when it expects it will begin to see improvements in this area;
3. Remind SEND staff that EHC Plans must be finalized within twelve weeks of annual review meetings; and
4. Remind SEND staff that where a school has told the Council it can no longer meet a child or young person’s needs, it cannot rely on that school to continue providing the education in a person’s EHC Plan. Instead a suitable alternative education placement must be found for them.
74. We publish Guidance on Remedies which sets out, in section 3.2, our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended.
75. The Council should provide us with evidence it has complied with the above actions.

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Final decision

76. I have completed my investigation. I have found fault leading to injustice and the Council has agreed to apologise, pay a financial remedy, and carry out several service improvements.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman