Summary: Ms C complains the Council delayed in completing an Education Health and Care (EHC) plan, failed to communicate and take follow up actions, and to provide support identified in an EHC Plan. The Council is at fault for failing to provide services identified in an EHC Plan and in its general communication with Ms C. To remedy the complaint the Council will apologise to Ms C, make a symbolic payment and service improvements.

The complaint

1. Ms C complains the Council failed to provide her son, D with suitable education which has resulted in him having no education for over a year. The Council also:
1. failed to communicate properly and take responsibility for completing tasks;
2. delayed in taking agreed action;
3. delayed in assessing D;
4. failed to provide support to D while he was not at school;
5. failed to follow court instructions.
2. Ms C says these failures have affected both hers and D’s mental health and she has had to step in to meet D’s educational needs.

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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. 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.
5. 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)
6. 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)
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)
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 have and have not investigated

9. The law says we cannot investigate late complaints unless we decide there are good reasons. I have exercised the Ombudsman’s discretion and decided to investigate EHC Plan matters from August 2022. This is when Ms C approached the Council for an EHC Plan. I have used this as a start date because the EHC Plan process was ongoing, and evidence is easily available to make a decision on delays in the EHC Plan process.
10. I have not considered matters from September 2023 as this is when Ms C appealed to the SEN tribunal. We cannot investigate a matter if someone has appealed to a tribunal about the same matter or it overlaps with an appealed matter.
11. The Ombudsman does not usually consider complaints where there is a right of appeal. I have decided to use the Ombudsman’s discretion to look at two periods where there was a right of appeal as follows:
• from January to April 2023 – this is because Ms C did not receive a decision letter until 17 March 2023 when she chased the Council. She therefore could not appeal before this date. By 17 March the Council was preparing an amended EHC plan so it would not be reasonable to expect Ms C to have appealed between 17 March and 4 April as a revised plan was imminent.
• April to September 2023 – this is because Ms C had a legitimate expectation from the Council’s actions that it would resolve matters and she would receive the support she considered D needed. On this basis it was not reasonable to expect her to appeal earlier. Ms C appealed as soon as the mediation failed which further evidences that she would have taken this action had the Council not acted as it did.
12. The Ombudsman cannot consider matters related to court proceedings. In this complaint Ms C says the Council failed to follow Tribunal orders. Compliance with such orders is a matter for the Tribunal. The Ombudsman does not have the power to intervene.

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How I considered this complaint

13. I spoke with the complainant and considered information she provided as part of her complaint. I made enquiries of the Council and considered its response. I also considered:
• Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’);
• Children and Families Act 2014;
• Special Educational Needs Regulations 2014;
• complaint correspondence;
• D’s Education Health and Care plans and support plans;
• appeals to the SEND tribunal;
14. Ms C and the Council had an opportunity to comment on two draft decisions. I considered any comments received before making a final decision.

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What I found

What should have happened

15. 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 council can do this.

Timescales and process for EHC assessment

16. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following:
• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks.
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply).
17. Councils must arrange for a child’s parents or the young person to receive information about mediation as an informal way to resolve disputes about decisions that can be appealed to the tribunal. Parents need to consider mediation and get a ‘mediation certificate’ before they can appeal to the tribunal. They do not have to agree to attend mediation.

Maintaining the EHC Plan

18. 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)  
19. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
20. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
21. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example:
• delays in the process before an appeal right started;
• where there is support in an EHC Plan that is not being delivered to the child or young person and we decide the cause is not connected to the appeal; and
• alternative education when the reason the child or young person is not attending education is, in our view, not connected to or is not a consequence of a matter that was, or could have been, part of an appeal to the tribunal.

What happened

22. D started a secondary school which I will call ‘School A’ in September 2021. He stopped attending in June 2022. Ms C says this was because the stress of going to school was affecting his mental health. Ms C asked for an EHC needs assessment on 4 August 2022. The Council agreed to assess on 28 September and issued a draft EHC Plan on 21 December. The Council issued a final EHC Plan on 1 January 2023 but did not send Ms C a decision letter until 17 March after she contacted officers.
23. The EHC Plan did not name a school but said the setting should be a Local Authority mainstream school. It also set out provision that D should receive. The Council then consulted with various schools all of whom said they could not meet D’s needs. Once the Council received responses from the schools it issued an amended final EHC Plan on 4 April 2023 naming School A as a suitable school for D. On 5 April an email from School A said it would support D at home and in an offsite specialist unit.
24. Ms C says she was concerned the assessment did not fully reflect her views and those of D. Ms C did not think School A could meet D’s needs and entered mediation.
25. Ms C says during mediation the Council assured her D would not be returning to School A and in the interim he would have the provision he needed. The Council accepts it did not put a tutor in place for D until 12 September after Ms C chased officers. Ms C appealed to the Tribunal on 25 September after the Council told her School A was a suitable school and there was no alternative school.
26. In its complaint response the Council accepts it did not ensure D received the provision set out in Section F of their plan. It apologised and said senior leaders had reminded individual officers and the SEND Team about the “standards and expectations around communication and delivering on our statutory duties to ensure practice changes with immediate effect”.
27. It also accepted that through the mediation the Council did not follow through on agreed actions, report outcomes and communicate effectively. There was also a delay in finishing the process. The Council apologised for these errors and said that it had used the complaint as part of its staff training to “raise and remind of service standards and how to better communicate with families.”
28. Ms C says throughout the whole process the Council has miscommunicated, not kept agreements, and delayed. This has caused her time, trouble and frustration and caused D to miss education. This has affected his emotional and mental health.

Is there fault causing injustice?

EHC Plan process

29. I have considered whether there was delay by the Council in issuing the EHC Plan using the statutory timescales. I have found there was an overall delay of 10 days in the Council completing an EHC Plan. The Council should have issued the final plan on 22 December 2022 but issued it on 1 January 2023. This is fault. The Council in its complaint response apologised for the delay and I consider this is suitable to remedy this part of the complaint.
30. Ms C complains the EHC Plan did not include all her views and that of D. There is evidence the Council consulted Ms C and D and provided a draft EHC Plan for comments which was then amended. There is therefore no procedural fault. The Ombudsman is unable to consider the contents of an EHC Plan. This is a matter for the Council and Tribunal, and I cannot consider this further.

Provision of education as set out in the EHC Plan

31. There is no evidence the Council sent out a decision letter to Ms C with the first final plan. This was fault and meant Ms C did not have the means to appeal at that time. The Council did not name a school but promptly took action to contact schools to find appropriate provision for D. For the reasons set out at paragraph 11 above although Ms C could appeal at the time I consider on balance she had a reasonable expectation the Council would amend the final plan and find a suitable school.
32. The Council has accepted it did not provide education set out in Section F of the final plans in January and amended in April to include a school. The failure to provide this support is not in line with the Council’s duty under section 42 Children and Families Act and is fault. It also did not make provision for a school that it had agreed to.
33. These faults resulted in D not receiving education he should have done from January 2023. Ms C had to provide additional support for D at home and delayed her appeal because of assurances provided by the Council.
34. The Council has apologised and made service improvements. While the Ombudsman welcomes proactive action, I do not consider this adequately remedies D’s loss of education and its effect on Ms C.

Communication with Ms C

35. In its complaint response the Council has accepted it did not always
• update and communicate actions it was taking;
• take actions during the mediation that it had promised.
36. The Council has apologised and made service improvements. While the Ombudsman welcomes this action, I do not consider this adequately remedies Ms C’s frustration, time and anxiety the Council’s failures caused her.

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Agreed action

37. There was fault in the Council’s actions which caused injustice to Ms C and D. I consider the following actions are suitable to remedy the injustice caused and to improve future practise.
38. Within one month of the final decision the Council will:
1. apologise to Ms C for the failure to properly communicate with her and carry out actions it agreed to;
2. pay £3400 a symbolic payment for two terms of missed education for D. This is in line with our remedies guidance Guidance on remedies - Local Government and Social Care Ombudsman. In reaching this amount I have considered D’s deteriorating mental health, age and year group.
3. make Ms C a payment of £350 for the frustration and the time and trouble she has had in chasing the Council for actions it agreed to take, frustrating the appeal rights and for delays in updates on actions.
39. Within two months of the final decision the Council will:
1. Provide evidence of the actions the Council has agreed to take at paragraphs 26 and 27. This includes:
1. reminding staff about the Council’s duty to provide services in section F of an Education, Health, and Care (EHC) plan;
2. reminding staff about the importance of effective communication and carrying out agreed actions.
40. The Council should provide us with evidence it has complied with the above actions.

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Final decision

41. I have found fault which has caused D and Ms C injustice. I consider the actions above are suitable to remedy the personal injustice and improve services for others. I have ended my investigation and closed the complaint on this basis.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman