Summary: Mrs X says the Council has failed to issue her son, Y’s final Education, Health and Care Plan in line with the statutory timescales. Mrs X also says the Council failed to liaise with her preferred school and gave incorrect information about being unable to contact the school. Mrs X says this case her and her family distress. We have found fault in the actions of the Council for delaying in issuing the Education, Health and Care Plan and delaying in contacting Mrs X’s preferred school. The Council has agreed to apologise to Mrs X, pay her a financial payment and complete service improvements.

The complaint

1. Mrs X says the Council has failed to issue her son, Y’s final Education, Health and Care (EHC) Plan in line with the statutory timescales. Mrs X also says the Council failed to liaise with her preferred school and gave incorrect information about being unable to contact the school.
2. Mrs X says this case her and her family 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 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. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
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. 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. 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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How I considered this complaint

9. I have considered the information provided by Mrs X and the Council. I also discussed the complaint with Mrs X on the phone.
10. Both Mrs X and the Council were invited to provide comments on my draft decision. Any comments received have been reviewed before a final decision was issued.

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What I found

11. 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.
12. 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) 
13. 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.
14. 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.

What happened

15. In May 2023 the Council completed an annual review of Y’s EHC Plan. As part of the review Mrs X said she would prefer Y to go to a particular school. The council sent a consultation to this school in July 2023.
16. The school responded at the end of July 2023 to say it was oversubscribed and so could not offer a place to Y.
17. The Council wrote to Mrs X in mid-August 2023 to say it had received the annual review report for Y. The Council said it would be amending Y’s EHC Plan to reflect the details in the review paperwork. The Council also said Mrs X’s preferred school could not accept Y and told her it would not be naming a school in Y’s amended EHC Plan. The Council told Mrs X she could appeal this to the SEND Tribunal.
18. A further review took place in late October 2023.
19. The Council said its aim was to name a school in Section I when it issued the draft EHC Plan. However, the Council could not find a placements by the time it issued a draft amended EHC Plan in late November 2023. Therefore, Section I remained without a placement named.
20. The Council continued to try to find a placement for Y and in early 2024 sent further consultations to several schools.
21. The Council also contacted Mrs X’s new preferred placement for Y in late February 2024. The council emailed the school to ask for a secure email address to forward a consultation to.
22. The Council told Mrs X in early March 2024 the website of her preferred school was down, and it was trying to find a way to contact them. The Council also said it was not able to get through on the school’s phoneline.
23. The Council did not get a response to its email in February and sent a further email in late March 2024 to the school.
24. Mrs X emailed the Council in mid-April 2024 to say she had contacted her preferred school. She said she had been told its website had not been down and it had not had any issues with its phonelines.
25. The council sent a consultation to Mrs X’s preferred school in mid-April 2024 and replied to Mrs X to show it had been trying to contact it.
26. The Council issued a final amended EHC Plan for Y in late April 2024. This did not name a placement in Section I.
27. Mrs X’s preferred school responded to the Council in May 2024 to say it could not meet Y’s needs.
28. The Council sent further consultations to multiple schools in May, June, July and reconsulted with Mrs X’s preferred school in August but was not successful in finding a placement for Y.
29. A placement was found for Y in August 2024, but the school withdrew the offer shortly after.
30. The Council sent further consultations in August and September 2024.

Analysis

31. Y’s annual review took place in May 2023. The Council wrote to Mrs X and told her it could not name her preferred school in August 2023 and said had the right to appeal this. The letter also said the Council would be amending Y’s EHC Plan to reflect the details in the annual review. I cannot see the Council issued an amended plan which is fault.
32. Y’s annual review took place in late October 2023. The Council said it was aiming to name a placement in Section I in the final EHC Plan. However, it could not find a placement for Y.
33. The Council issued a draft plan in November 2023 but did not issue a final plan until April 2024. This is outside of the statutory timescales and is fault.
34. There has been around six months of delay in issuing Y’s final EHC Plan when you consider the time taken for the review process. This is a significant period and would have caused Mrs X distress and her right to appeal has also been delayed.
35. The Council has shown it has consulted with around 25 schools in order to try to secure a placement for Y and has not been able to do so. Mrs X says the Council did not consult with her preferred school after the October 2023 annual review. Mrs X says the Council were not ruthful in the reasons for not being able to contact the school.
36. The Council has shown it did attempt to contact Mrs X’s preferred school in February and March 2024. However, it has accepted there was a delay in following this up and has apologised for this.
37. When the school was consulted it responded to say it could not offer Y a place due to his emotional dysregulation. Therefore, I cannot say that had the school been consulted any sooner it would have given a different response.
38. We are aware the Council is working to improve its SEN service, so I have not suggested any service improvements.

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Agreed action

39. Within one of a final decision the Council should:

• Write to Mrs X to apologise for the faults identified.
• Pay Mrs X £500 in recognition of the distress caused to her.
• In writing, share this decision with relevant team colleagues to ensure appropriate learning from the investigation.

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 in the actions of the Council for delay in issuing Y’s final EHC Plan and for delay in consulting with Mrs X’s preferred school.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman