Summary: There was excessive delay in finalising an Education, Health and Care (EHC) Plan after annual review and in consulting schools when a change of placement was recommended. The Council will apologise, make a symbolic payment to acknowledge distress and uncertainty, and carry out service improvements.

The complaint

1. Mr X complains on behalf of his child, Y. Y has special educational needs (SEN).
2. Mr X complains about the Council’s handling of the annual review of Y’s Education, Health and Care (EHC) Plan in Summer 2023. Mr X says the Council:

• Delayed in providing a draft Plan.
• Provided a draft Plan that was full of errors, so a further meeting was required to correct these.
• Failed to provide the final Plan on time.
• Failed to consult with the parental choice of school.
• Failed to ensure Y received suitable education.
• Failed to complete actions agreed at stage one of the complaint process.

3. As a result of the alleged fault Mr X says Y was not able to move to a suitable school, missed out on special educational provision and their appeal right was delayed.

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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 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)
5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
6. We cannot investigate the consequences of a decision where the decision has been appealed to a tribunal. (R (on the application of ER) v the Commissioner for Local Administration, 2014)
7. 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.
8. 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.
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)

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What I have and have not investigated

10. I have investigated the above complaint issues except where these overlap with matters appealed to the SEND Tribunal. I explain this further below.

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How I considered this complaint

11. I have considered information provided by Mr X and the Council including:
• EHC Plans and SEN documents,
• Attendance records,
• Tribunal documents,
• Correspondence with schools, Mr X and the Council,
• Complaint documents.
12. I have spoken to Mr X by telephone.
13. I have considered relevant law and guidance including:
• The Children and Families Act 2014 (‘The Act’)
• The Special Education and Disability Regulations 2014 (‘The Regulations’)
• The Special Educational Needs and disability code of practice: 0 to 25 years (‘The Code’).
14. I have considered the Ombudsman’s Guidance on Remedies.
15. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
16. 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

Relevant law and guidance

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. 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. 

18. There is a right of appeal to the Tribunal against:

• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.

19. 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).

20. 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.

21. 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) 

22. Where the council proposes to amend an EHC Plan, the council must complete this process and issue an amended final Plan within twelve weeks of the review meeting.
23. Parents have a right to request particular types of setting are named in an EHC Plan (s.38(3) of The Act). These include a non-maintained special school or an independent special school approved by the Secretary of State under s.41 of The Act. Councils must name a setting of this type unless:
• The setting is unsuitable for the age, ability, aptitude or special educational needs of the child,
• The attendance of the child would be incompatible with the provision of efficient education for others, or
• The attendance of the child would be incompatible with the efficient use of resources. (S.39(4) The Act).
24. The Council cannot refuse to consult a non-maintained special school or s.41 school.
25. Parents can also request an independent setting not approved under s.41. Councils must take into account the general principle under s.9 Education Act 1996 that children should be educated in accordance with the wishes of their parents so far as that is compatible with the provision of efficient education and the avoidance of unreasonable public expenditure.

Key events

26. Y attended School A between 2021 and 2023.
27. The annual review of Y’s EHC Plan was held in Summer term 2023. The recommendation from the review meeting was for a change of placement.
28. Any final amended Plan following the review meeting was due by early Autumn 2023.
29. The Council did not issue a decision after the review but confirmed by telephone in Autumn 2023 its intention was to amend the Plan. The Council did not issue a decision letter until late 2023, the same time it issued an amended draft Plan. The draft Plan was several months late.
30. The case did go to the Council’s Governance Board after the review meeting for a decision about the request for a change of placement. The Board’s decision was to seek more information from the current school why needs could not be met there. The case then went back to the Board in early Autumn, when the Board confirmed a change of placement was appropriate. Mr X provided representations to the Governance Board in Autumn 2023 stating he considered Y required a curriculum that went beyond the usual school day.
31. The Council was aware in November 2023 that Y was not able to access lessons within the classroom at school and was mainly taught separately. Records show Y did have a high level of attendance.
32. Mr X says as well as a recommendation for a change of placement, amendments to wording about therapies were made. As the amendment of the Plan was delayed changes to the special educational provision were not made.
33. Mr X made a formal complaint in Autumn 2023, a month after the final Plan had been due.
34. In early 2024, the Council acknowledged delay at stage one of its complaint process. It accepted delay in completing the annual review and amended Plan and offered Mr X a £300 symbolic remedy to acknowledge the impact of this delay. Mr X considered this was not enough for the injustice caused and did not resolve that Y still did not have an amended final Plan or that schools had not been consulted.
35. Mr X and the Council met in mid-January 2024. Mr X says this was to go through errors in the Plan. Two further draft plans were issued.
36. The final Plan was not issued until Spring 2024, a delay of six months.
37. Mr X says the amended final Plan named School A, the current school, until an alternative placement could be found.
38. Mr X says it was only in Spring 2024 the Council started to consult schools, when this should have happened in 2023 when the Governance Board agreed a change of placement was appropriate. This delay meant that by the time consultations started all the schools were full.
39. Documents show Y attended an assessment at the parental preference school in Autumn 2023 and this school offered a place in late 2023. This was a s.41 school. However, the distance from this school meant Y would need to board weekly and the school charged separate fees for education and care. Y at that time received some support from social care.
40. Mr X says the Council failed to consult this school and he had to do so himself.
41. Mr X says it was only in Spring 2024 the Governance Board gave permission to consult non-local authority schools. Mr X was concerned the place at the parental preference school would be lost due to further delay.
42. After receiving the final amended Plan, Mr X appealed the contents of the Plan including the decision to name the current school in the EHC Plan. Mr X’s appeal is due to be heard shortly.
43. The Council’s response to the appeal was that it had consulted fifteen schools and had eleven negative responses. The Council confirmed the parental choice had made a formal offer.
44. The information I have seen confirms the Council did not consult any schools for six months after the Governance Board agreed a change was appropriate.

Analysis

Jurisdiction

45. Mr X has appealed the decision to continue to name the current school to the SEND Tribunal. As Mr X has used an alternative legal remedy to the SEND Tribunal, I cannot also consider the matter of school suitability. I also cannot consider disagreements about the wording of special educational provision or therapies in Section F of the EHC Plan. This is a matter which Mr X has or could have included in his appeal. (Local Government Act 1974, section 26(6)(a), as amended)
46. I cannot consider the period after Spring 2024 when Mr X gained a right of appeal which he has used.

Fault

47. There was excessive delay in completing the 2023 annual review. This was delayed by a period of six months, even though it was agreed Y needed to move to a different placement.
48. The Council failed to consult schools for a period of 9-10 months after the review meeting, despite a change of placement being requested and subsequently agreed. This was fault.
49. The Council was required to consult parental preference schools including s.41 independent schools. Failure to do so was fault.
50. The Council failed to provide reasons for failing to consult the parental preference school or explain its view on whether the school, that offered a place in late 2023, was suitable for Y, or if it was incompatible with the efficient education of others, or incompatible with the efficient use of resources.
51. The Council upheld delay in its stage one response but then continued to delay in issuing a final Plan and continued to delay in consulting schools.
52. There was poor communication in keeping Mr X informed after Governance Board decisions, sometimes information was not shared for a few months.

Injustice

53. Mr X’s appeal right was delayed by six months.
54. Mr X has the understandable frustration and uncertainty whether, but for this delay in finalising the Plan and consulting schools, a suitable place may have been secured for Y earlier. Y has remained in School A for a year following a recommendation that a change of placement was required. Had consultations started in Autumn 2023, instead of Spring 2024, it is more likely that schools consulted would have had places available. Many of the consultation responses indicate the schools were full by the time the Council consulted them late in the school year.
55. I cannot comment on whether the provision at School A suitable, or whether additional provision should have been secured; the suitability of School A is a matter which Mr X has now asked the SEND Tribunal to resolve, so I cannot comment on it.
56. Mr X has incurred distress, time and trouble as a result of the delays and poor communication.

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Agreed action

Within four weeks of my final decision:

57. The Council will apologise to Mr X for the faults identified in this decision statement.
58. The Council will pay Mr X £1000 for the distress, uncertainty, frustration, time and trouble caused by the delay in finalising the EHC Plan and consulting schools and the failures in communication.

Within eight weeks of my final decision:

59. The Council will ensure consultations are sent to parental preference schools and decisions with reasons are issued to parents in a timely manner in accordance with the requirements in the Act.
60. The Council will provide us with evidence it has complied with the above actions.

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Final decision

61. I have completed my investigation. There was excessive delay in finalising an EHC Plan after annual review and in consulting schools when a change of placement was recommended. This caused unnecessary distress, uncertainty, time and trouble. I am satisfied the agreed actions set out above are a satisfactory resolution to the complaint issues that I can consider. The complaint is upheld.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman