Summary: The Council was at fault for failing to properly decide
Mrs B’s son’s special educational needs provision for over a year. This meant he was in an unsuitable placement for a full academic year. The Council also failed to answer Mrs B’s complaint. It has agreed to apologise and make payments totalling £3,350 to recognise Mrs B’s injustice (and that of her son).

The complaint

1. The complainant, whom I refer to as Mrs B, complains about how the Council issued an education, health and care (EHC) plan for her son – whom I refer to as C. She also says C did not receive the right special education needs provision.
2. Mrs B also complains that the Council failed to properly answer her complaints. She says she has spent over £10,000 on solicitors’ fees to persuade the Council to meet its legal obligations.

Back to top

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. 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)
5. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
6. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe the fault has not caused injustice to the person who complained, or the injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended)
7. 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)
8. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

Back to top

How I considered this complaint

9. I spoke to Mrs B about her complaint. I considered information from Mrs B and the Council.
10. I considered the Ombudsman’s publication, ‘Guidance on good practice: remedies’.
11. I wrote to Mrs B and the Council with my draft decision and considered their comments.

Back to top

What I found

What should have happened?

12. The special educational needs and disability (SEND) code of practice says the whole process of EHC assessment and plan development – from when an assessment is requested, or a child is brought to the council’s attention – should take no more than 20 weeks.
13. The code also says that, if a council wants to amend an EHC plan, it should send an amendment notice to the child’s parents, and should issue the amended plan within eight weeks of sending the notice.

What happened?

14. In late 2017 Mrs B asked the Council to assess whether C – who attended a mainstream school – should have an EHC plan. The Council refused.
15. In January 2018 Mrs B appealed against the Council’s refusal to assess C, and, in March, the Council conceded. It began its assessment of C.
16. On 6 June 2018 the Council issued C’s final EHC plan. However, it said it had only issued the final plan to meet the statutory timescale. It said it would re-open C’s assessment immediately. It explained Mrs B’s right of appeal to the SEND Tribunal. She did not exercise that right.
17. In the following month the Council issued two draft amended plans. It also consulted several schools (including Mrs B’s preferred school) to find out if they could meet C’s needs.
18. In late July C’s school told the Council it could not deliver the provision in his EHC plan unless the Council provided extra funds. The Council agreed to increase the funding, and says the school confirmed, on the telephone, that this meant it could meet C’s needs. Although there are records showing that the Council arranged this telephone call with the school, there is no record of the call itself.
19. At the end of August the Council issued another amended draft EHC plan. The plan did not name a school for C to attend.
20. On 12 September C’s school held a meeting with Mrs B. Emails sent between Mrs B and the school suggest the school had changed its mind about whether it could meet C’s needs.
21. Later in September C’s school wrote to the Council and said it could not meet C’s needs. It said it had neither the physical environment nor the expertise to deliver the provision set out in his EHC plan.
22. There are no records showing how the Council responded to the school on this point. It issued no further draft plans, or a final plan, in 2018. C remained at his existing school – which had not been named in the draft plans issued since July.
23. In November Mrs B complained to the Ombudsman. We forwarded the complaint to the Council and asked it to respond at stage 1 of its complaints procedure.
24. The Council told Mrs B it would respond to her complaint by 10 December. It did not do so.
25. On 18 December C’s school held an emergency annual review meeting, and asked that his EHC plan be amended.
26. On 21 December – after receiving an email from Mrs B asking when she would receive a response to her complaint – the Council said it would respond in the new year. However, in January 2019, it told the Ombudsman that it would not be able to respond within any set timescale because of staffing pressures.
27. In January 2019 the Council did, however, agreed to amend C’s EHC plan. It issued an amended final plan on 9 April, naming Mrs B’s preferred school (for C to start in September 2019).

My findings

28. Although the Council told Mrs B about her right of appeal after issuing C’s EHC plan in 2018, it immediately reopened the assessment.
29. Because of this, it was reasonable for Mrs B not to exercise her appeal right (as the Council’s actions suggested it was intending to change the plan).
30. When the Council stopped amending the plan in September 2018, it was too late for Mrs B to appeal. For this reason, I will not exclude Mrs B’s complaints about the 2018 EHC plan from my investigation.
31. I will consider each part of Mrs B’s complaint in turn, below.

The Council’s consultations before September 2018

32. Mrs B says the Council failed to properly consult her, or her preferred school, before deciding C should stay at his existing school. She also says she doubts that C’s school said it could meet his needs.
33. The Council says C’s school confirmed, in July 2018, that it could meet his needs with increased funding. It appears that there are no records proving the school said that – which was fault by the Council. But it is likely, in my view, that it did say it, because correspondence between Mrs B and the school suggests it changed its mind two months later.
34. Although Mrs B feels the Council did not consult her preferred school, its records show that it did – and it did so having considered her views about C’s placement. However, it decided (in July 2018) he should stay at his existing school.
35. I will consider the suitability of C’s school later in this decision statement. However – as far as the consultations the Council conducted before September 2018 go – I have not seen evidence of fault. The Council’s fault during this process was its record-keeping, as set out above.

The June 2018 EHC plan – and subsequent amendments

36. By issuing an EHC plan in June 2018 before immediately reopening the assessment, the Council has effectively admitted that the plan was unsuitable, and its decision to issue it was simply to circumvent statutory timescales.
37. This meant the plan – which was, in law, the standard which the Council had to meet – did not fully address C’s needs (nor did the Council intend it to). Yet it was still formally in place until the Council issued a new plan.
38. The SEND code says that, when a council proposes to amend a plan, it should send a notice of amendment and issue the new plan within eight weeks. If the Council had issued a new plan which did address C’s needs within this time period, it is likely that his injustice would have been fairly limited.
39. However, the Council was not close to meeting this timescale. It issued three draft amended plans between June and August 2018. In mid-September C’s school told the Council it could not meet his needs. However, the Council took no substantive action to progress the EHC assessment or the amendments to the plan until January 2019.
40. The Council finally issued a new plan in April 2019, which named Mrs B’s preferred school. However, from June 2018 to April 2019 the plan which was legally in force was the June 2018 plan – which, by the Council’s own admission, did not fully address C’s needs. The draft amended plans issued in 2018 were not finalised and therefore were not in force.
41. This means that, after the Council started its EHC assessment in March 2018, it failed to properly finalise C’s plan until April 2019. Given that councils should complete EHC plans within 20 weeks of a parent requesting an assessment, this was a significant delay, and was fault by the Council.

C’s special educational needs provision and placement

42. I am unable to make a definite decision on whether the provision set out in C’s June 2018 EHC plan was delivered. The Council says it was, and Mrs B says it was not. There is not enough evidence to show me exactly what was or was not delivered, or when.
43. However, given that C’s school told the Council in September 2018 that it could not deliver his EHC plan, it seems unlikely that his needs were being met in that environment.
44. Although the Council says different – and, contrary to what the school said, claims C’s needs were being met at the school in September 2018 – it had neglected to name the school in the three draft amended EHC plans it had issued in the preceding three months.
45. When, later in the academic year, the Council did a full review of C’s needs and (belatedly) issued a final amended plan, it named not only a different school, but a different type of school – an independent special school. Given that the June 2018 plan cannot be considered a genuine final plan (as set out above), the Council’s first proper decision about C’s placement was in April 2019, and was that he needed a different type of school to the one he already attended.
46. I see no reason to conclude that, if the Council had made that decision in a timely manner (by September 2018 instead of in April 2019), it would have decided that mainstream education was suitable for C. The delay to the decision meant he remained in an unsuitable placement for the entire 2018/19 academic year.
47. This caused a significant injustice to C. The Council should apologise, and should also make a symbolic payment to recognise his injustice.

The Council’s lack of response to Mrs B’s complaint

48. After receiving Mrs B’s complaint (via the Ombudsman) on 22 November 2018, the Council told her it would respond by 10 December. However, by mid-January 2019 – over a month after the proposed deadline – it decided it could not set a deadline for its response because of staffing issues.
49. This meant Mrs B never received a response to her complaint. This was fault by the Council.
50. Mrs B’s injustice was limited because the Council agreed to amend C’s EHC plan shortly after saying it could not respond to her complaint. The amendment process led to the Council naming Mrs B’s preferred school on the plan, which was broadly the change Mrs B had been seeking.
51. However, the Council’s failure to respond did cause some injustice to Mrs B in the form of uncertainty, and she did not receive the answers she wanted from the Council. It should apologise for this failure.

Mrs B’s solicitors’ fees

52. The Ombudsman does not recommend that councils reimburse complainants’ legal fees as a matter of course, as complaints procedures do not generally require legal representation to negotiate.
53. However, we can recommend that people receive financial remedies for legal fees if we decide it was reasonable for them to instruct a solicitor.
54. In my view, Mrs B’s use of legal representation was justified. The Council had failed to do what it was supposed to do, and it was not unreasonable for her to believe that she needed the help of a solicitor to try and change that.
55. Mrs B says she has accrued over £10,000 in solicitors’ fees. However, much of that figure is for matters since February 2019, and is related to school transport provision, which is not within the scope of my investigation. The fees charged between October 2018 (when Mrs B first instructed a solicitor) to late January 2019 (when the Council agreed to amend C’s EHC plan) were around £5,000.
56. I have reviewed the invoices Mrs B received during that period. However, I am unable to confidently explain which fee led to which outcome, and I am, of course, unable to say whether the fees were reasonable or necessary.
57. Because of this, I am not prepared to recommend that the Council pay Mrs B the full amount she was charged by successive solicitors. However, the Council should pay her a token amount to recognise that she felt the need to instruct solicitors, that she felt this because of the Council’s own failings, and that she has spent a significant amount of money on solicitors’ fees while trying to persuade the Council to meet its legal obligations.

Back to top

Agreed actions

58. The Council has agreed to apologise to Mrs B for its failure to keep records showing its conversation with C’s school in July 2018, and for the significant delay amending and finalising C’s EHC plan.
59. The Council has agreed to make a payment of £1,850 to Mrs B, on behalf of C, to recognise the injustice caused by its failure to properly finalise C’s EHC plan for over a year.
60. The Council has agreed to make a further payment of £1,000 to Mrs B to recognise that, because of its failings, she felt the need to instruct solicitors.
61. The Council has agreed to make a further payment of £500 to Mrs B to recognise the time and trouble she spent pursuing matters over the course of a year.
62. These actions should be completed within six weeks of this decision statement.

Back to top

Final decision

63. The Council was at fault for failing to properly finalise C’s EHC plan for over a year. It also failed to answer Mrs B’s complaint. The agreed actions remedy her, and C’s, injustice.

Back to top

Parts of the complaint that I did not investigate

64. I did not investigate Mrs B’s complaint about a delay to an occupational therapy report which the Council requested as part of its 2019 EHC assessment. The alleged delay did not directly lead to a significant delay in the EHC plan being issued, so there was no injustice to Mrs B or C.
65. I did not investigate Mrs B’s complaint about a manager from a different school observing C in class in October 2018, which she thought was unnecessary as the school could not meet his needs. Given that the Council made no efforts to name that school on C’s EHC plan, I do not consider this observation to have caused C an injustice significant enough to justify further investigation.

Back to top

Investigator's decision on behalf of the Ombudsman