Summary: Mrs X complains the Council has not dealt with her son’s education and Special Educational Needs (SEN) properly. The Council did not meet statutory timescales, delayed ensuring educational provision was available, provided a late right of appeal and did not handle Mrs X’s complaint properly. Mrs X suffered avoidable distress and time and trouble. The Council should pay Mrs X £1400 for avoidable distress, £100 for time and trouble and provide guidance to staff.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains the Council failed to deal with her son Y’s Education/SEN properly because:
• There were delays in Education Health and Care (EHC) Plan timescales following an annual review.
• It failed to consult education placements properly.
• It did not provide alternative education from September 2023 to Jan 2024.
• It failed to deal with her complaint until she complained to the Chief Executive.
2. Mrs X says her right of appeal was delayed, her complaint response was late, Y has missed educational and SEN provision and they have suffered avoidable distress and uncertainty.

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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. Our role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
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. 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)
7. 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

8. I have investigated that part of Mrs X’s complaint about how the Council has dealt with delays, consultations and complaints about her son’s education.
9. Mrs X received her right of appeal from the Council in September 2023, allowing a late appeal to SENDIST to go ahead. As per paragraphs 21 to 23 above, this period of time from September 2023 is out of the Ombudsman’s jurisdiction. I have therefore not investigated the part of Mrs X’s complaint regarding alternative education.

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How I considered this complaint

10. I spoke to Mrs X about her complaint and considered documents she provided. I made enquiries of the Council and considered its response and the supporting documents it provided.
11. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law, guidance and policies

12. 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. 
13. 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.
14. The school (or, for children and young people attending another institution, the local authority) must prepare and send a report of the meeting to everyone invited within two weeks of the meeting. The report must set out recommendations on any amendments required to the EHC plan, and should refer to any difference between the school or other institution’s recommendations and those of others attending the meeting. (SEN Code paragraph 9.176) 
15. 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) 
16. 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.
17. The parent or young person must be given at least 15 calendar days to comment and make representations on the proposed changes, including requesting a particular school or other institution be named in the EHC plan. (SEN Code paragraph 9.195)
18. Following representations from the child’s parent or the young person, if the local authority decides to continue to make amendments, it must issue the amended EHC plan as quickly as possible and within 8 weeks of the original amendment notice. (SEN Code paragraph 9.196)

Alternative education

19. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
20. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
21. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
22. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])

Limits on jurisdiction

23. 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)
24. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
25. 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.

The Council’s complaints process

26. Stage one - investigation and resolution. The Council will agree a timescale for investigating the complaint, between 10 to 65 working days, produce a complaint resolution plan and provide a full written response.
27. Stage two - complaint review. The Council will work with the complainant to find out why they feel their complaint hasn't been resolved. They'll also help identify any gaps in the investigation. The Council will then decide if a review of the complaint will be undertaken. If a review is undertaken it may take between 10 and 30 working days depending on how complex the complaint is. If a review is not undertaken the Council will explain why in writing.

What happened?

28. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
29. In October 2022 an annual review of Y’s EHC Plan was completed.
30. The Council completed a final EHC Plan for Y in February 2023. This did not include a named educational placement from September 2023, when Y was about to make a key phase transfer to secondary education.
31. The Council undertook consultations with schools from February 2023.
32. In April 2023 Mrs X complained to her MP. A few days later she sent her complaint letter to the Council. In mid-April Mrs X asked the Council to treat the issues raised in her letter to her MP as a formal complaint.
33. Mrs X did not receive any response to her complaint and chased this with the Council’s Chief Executive in early May 2023.
34. In June 2023 Mrs X attempted to appeal to the SEND tribunal about the failure to name an educational placement in Y’s EHC Plan.
35. In July Mrs X told the Council she could not access the letter advising her of her right of appeal. The Council did not contest her late appeal request.
36. The Council’s Stage 1 complaint response partially upheld Mrs X’s complaint.
37. The Council consulted schools including Mrs X’s preferred placement, which was unavailable because it was full.
38. Mrs X made a stage 2 complaint in August 2023, expressing dissatisfaction with the Council’s stage 2 complaint response.
39. In September 2023, Mrs X successfully submitted an appeal about the February EHC Plan.
40. Mrs X met with the Council in October 2023 where actions were agreed regarding the lack of education provision, Y’s EHC Plan and Mrs X’s complaint.
41. In November 2023, Mrs X again asked the Council to escalate her complaint to stage 2 of its complaints process.
42. In January 2024 the Council and it sent its stage 2 complaint response to Mrs X and Y began to receive tuition/
43. Mrs X complained to the Ombudsman in June 2024.
44. Mrs X has confirmed the Tribunal outcome named a placement other than her preference and the Tribunal decision is under appeal.

Analysis

Delays

45. The Council accepted in its stage 1 and stage 2 complaint responses that there were delays to the EHC Plan process and upheld her complaint about this.
46. After the annual review in October 2022, the Council issued Y’s final EHC Plan on 14 February 2023. This was a delay of 9 weeks over the statutory deadline. This is fault by the Council. Mrs X should have received the final EHC Plan and been able to exercise her right of appeal earlier.
47. One of the schools the Council consulted in February 2023 responded saying it could meet Y’s needs. The Council accepts that not naming this school in Y’s EHC Plan caused further delay in ensuring provision was made for Y from September 2023. This is fault by the Council. The Council’s stage 2 complaint response agreed and upheld that the lack of a placement had a negative impact on Y’s mental health.
48. As per paragraph 9 above, the Ombudsman is prevented from considering the period of time from September 2023 onwards. During the period of time within the Ombudsman’s jurisdiction, Mrs X and Y were subject to uncertainty and distress about Y’s education after September 2023.
49. The Council says Mrs X was able to access Y’s 14 February 2023 EHC Plan and the covering letter outlining her appeal rights, from its electronic hub.
50. Mrs X says she was unable to access the appeal rights letter and the Council had to provide another copy for her, which delayed her appeal regarding Y’s EHC Plan.
51. The Council did not contest Mrs X’s late appeal request.
52. A Tribunal order in March 2023 found that Mrs X struggled to exercise her rights of appeal because of the lack of a decision letter and that the Council failed to comply with Tribunal directions.
53. On the balance of probabilities, Mrs X had difficulty obtaining the letter advising of her appeal rights and as a consequence, her appeal was delayed until September 2023, a period of seven months. This is fault by the Council. Mrs X would have had the opportunity to appeal at an earlier point in time.

Consultations

54. Mrs X says the Council did not consult with her preferred choice of school placement (School A) properly, and had it done so her son may have been able to access her preferred placement in time for it to be named in his EHC Plan for September 2023.
55. The Council says:
• “Records indicate that the EHC Coordinator began the consultation process on 29th November 2022 and conducted further consultations (following the ORG decision) from 20th January 2023 to 27th February 2023.
• The consultations included local mainstream settings, which were like for like in terms of they type of setting he was in at the time, this is the usual process that the LA follow, alongside this the LA also consulted with setting that have resourced provisions.
• At this time the LA did not immediately consult with [School A] independent non maintained setting, The Local Authority has an obligation to manage the efficient use of resources. Out of borough schools come with high associated costings, in reaction to 9.84 in the SEND Code of Practice 2015; must ensure that this does not constitute to unreasonable public expenditure.
• However, it was not until the 14th February 2023- the day before key phase transfer deadline that [School A] was cited as parental preference.”
56. In its complaint responses the Council said:
• “The consultation with settings, including resource provision and parental preference, took place from the 20th January-27th of February 2023. The local authority acknowledges that this is late for place planning and led to increased uncertainty about [Mrs X’s son’s] school placement.
• It upheld the part of her complaint about poor communication as it ‘recognised communication [about consultations] could have been better.
• There was an absence of full and appropriate information sharing regarding the education options available which led to confusion about the availability of some options.
• Direct face to face liaison identified suitable options and this should have been made available to Mrs X some time beforehand.
• It apologised for the inconvenience and delays in reaching a conclusion [concerning the naming of a school placement.] and said it will review its procedures so that full sharing of information takes place once parental discussion becomes apparent.
57. There was a disagreement between Mrs X and the Council about the appropriateness of a mainstream school placement for Y.
58. The Council did consult with School A, after it had issued Y’s final EHC Plan in February 2023. On the balance of probabilities Mrs X would have asked the Council to consult with School A at an earlier point in time.
59. It is not possible to say whether Y would have been offered a place at School A had the Council consulted with it earlier. The Council contends that even had this been the case, it would not have named School A in Y’s EHC Plan.
60. I agree with the Council that this caused inconvenience and delay. This delay has already been identified in paragraph 46 above. The injustice caused has already been identified in paragraphs 47 and 48.

Complaints Handling

61. The Council did not respond to Mrs X’s initial complaint until three weeks after she made it, and only after Mrs X had chased the Council through its Chief Executive. This is fault by the Council. Mrs X’s complaint response was delayed by one month.
62. In August 2023 Mrs X responded to the Council stage 1 complaint response expressing dissatisfaction with it. The Council offered to meet with Mrs X and a meeting was held in early October 2023. In November, Mrs X told the Council she wanted to continue with her complaint at Stage 2. The Council agreed to complete a review at stage 2 with a stated deadline in January 2024. Mrs X received a stage 2 complaint response within the stated timescale. This is in accordance with the Council’s complaints procedure. This is not fault by the Council.

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Agreed action

63. To remedy the outstanding injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this decision:
• Pay Mrs X £1400 for the avoidable distress caused by the delay to the EHC Plan review, the delay in ensuring provision was available for Y and the delay to her right of appeal.
• Pay Mrs X £100 for her time and trouble in respect of making her complaint.
• Provide guidance to staff about recording and responding to complaints according to its complaints process.
64. The Council should provide us with evidence it has complied with the above actions.

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Final decision

65. I have found fault by the Council, which caused injustice to Mrs X. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman