Summary: There is no fault in the way the Council dealt with the delivery of Mr X’s son’s Education Health and Care Plan.

The complaint

1. Mr X complains the Council has failed to ensure his son is receiving the support he is entitled to in his Education Health and Care Plan (EHCP).

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
3. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
4. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
6. If we are satisfied with a council’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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How I considered this complaint

7. I have considered information Mr X has provided to the Ombudsman. This includes his complaint and the Council’s response.
8. I have also considered the Council’s response to my enquiries and I have visited the Council’s offices to view the relevant files.
9. I have also considered the Council’s response to my enquiries and I have visited the Council’s offices to view the relevant files.
10. I have written to Mr X and the Council with my draft decision and given them an opportunity to comment.

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What I found

11. A child with special educational needs may have an Education, Health and Care plan (EHCP). This 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 education, or name a different school. EHCPs must be reviewed annually to ensure the provision is still meeting the child’s needs.
12. If a parent or carer is unhappy with a Council’s decision regarding provision in an EHCP they may appeal to SEND.
13. The Council is responsible for making sure that arrangements specified in the EHCP 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.

What happened

14. Mr X’s son, Y, has an EHCP. The EHCP said Y should attend School A. The School was named on Y’s EHCP following a successful appeal to Tribunal in September 2016.
15. In March 2017 the Council reviewed Y’s EHCP and wrote to Mr X explaining the outcome and that he could appeal the EHCP with Tribunal if he was unhappy.
16. In December 2017 staff at the School had to physically intervene when Y became violent. The School decided that Y should not attend after school club as a result of his behaviour. Mr X contacted the Council to advise it that Y had been excluded by the School.
17. The Council met with the School and Mr X in December 2018. The Council says actions were agreed at the meeting regarding the delivery of the provision in the EHCP.
18. Mr X commenced legal action against the School for disability discrimination.
19. The Council reviewed Y’s EHCP in March 2018. Mr X was unhappy with some of the advice given by professionals and requested that the review was put on hold until he was able to provide his own evidence about Y’s needs.
20. The Council wrote to Mr X on 4 June 2018 in response to his complaint. The Council explained it was awaiting information from him regarding Y’s needs. The Council said if Mr X did not provide this by the end of term it would issue the EHCP based on advice it had received and he would have an opportunity to appeal. The Council also said it was providing the School with sufficient funding to deliver the provisions set out in Y’s EHCP.
21. On 19 July 2018 the Council met with Mr X and the School to discuss the proposed EHCP. The Council said it would meet with Mr X and the School on a regular basis to discuss ongoing issues as it was only made aware of difficulties during the annual review process. Some amendments were made to the EHCP following the meeting and Mr X said that he was happy for Y to continue attending School A so long as it delivered the provision set out in the EHCP.
22. On the same day the Council issued a new draft EHCP with amendments made following the meeting. The Council said it had highlighted the amendments. The Council asked Mr X if he was happy to meet at the end of September to discuss Y’s progress.
23. Mr X replied on the same day to say he would review the amended EHCP and provide his comments the following week.
24. Mr X contacted the Council on 29 August 2018 to say he had not received any further correspondence from the Council regarding the EHCP.
25. The Council responded to Mr X on 30 August 2018 and said it was awaiting further information from an educational psychologist regarding Y’s wellbeing. The Council asked Mr X if he would prefer to wait for the educational psychologist’s advice or whether he wished for the Council to issue the final EHCP. The Council explained the delay is issuing the EHCP was due to school holidays.
26. Mr X e-mailed the Council on 1 September 2018 and asked it to issue the final EHCP so he could lodge an appeal with the Tribunal. Mr X said the Council had failed to issue the EHCP within the statutory timescale and had denied him his right of appeal.
27. The Council wrote to Mr X on 6 September 2018 to confirm the changes it had made to the EHCP. The Council said Mr X had requested it confirm the changes even though it was awaiting advice from an educational psychologist.
28. In November 2018 a court found the School had unlawfully discriminated against Y when it prevented him from attending after school activities.
29. On 28 November 2018 the Council wrote to Mr X to say there was a place available for Y at School B. Mr X’s solicitors wrote to the Council on the same day to confirm Mr X wanted to accept the place at School B and would withdraw his appeal with the Tribunal.

My findings

30. There is no fault in the actions of the Council. Where the Council has been made aware of issues with delivery of Y’s EHCP it has discussed this with Mr X and School A.
31. Mr X has mostly corresponded with School A about his dissatisfaction with the delivery of Y’s EHCP. The Ombudsman cannot investigate complaints about what happens in schools.
32. The Council is responsible for ensuring the EHCP provision is delivered. However, I would not expect the Council to carry out checks between annual reviews unless it was made aware of specific issues. The Council became aware of issues in December 2017 and it met with the School and Mr X to discuss this. The Council also became aware of issues during the annual review process in March 2018 and following discussions with the School and Mr X offered to meet to discuss progress once the new school year had commenced.
33. There is no fault in the time it took the Council to review Y’s EHCP in 2018. The Council allowed additional time for Mr X to provide his own evidence. When this was not forthcoming the Council gave Mr X a deadline and met with him and the School to discuss progress. Following this meeting the Council issued a revised draft EHCP and gave Mr X an opportunity to comment. The Council was then unable to progress the EHCP because of the summer break.

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Final decision

34. Subject to further comments by Mr X and the Council, I intend to complete my investigation as I have found no fault by the Council.

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Investigator's decision on behalf of the Ombudsman