Summary: Ms X and Ms Y complained about delay by the Council in finding a school place for their son after agreeing his mainstream school was no longer suitable, and in issuing a final Education Health and Care Plan. There was delay caused by faulty consultation with schools and delay in carrying out a re-assessment of needs. The Council has agreed a suitable a remedy to recognise the loss of education, frustration, anxiety and distress this caused.

The complaint

1. Ms X and Ms Y complain that there was unreasonable delay by the Council in finding a school place for their son after agreeing his mainstream school was no longer suitable, and in issuing a final amended Education Health and Care Plan.
2. As a result they say their son was out of school for around 18 months and the family suffered distress and incurred unnecessary costs.

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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 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, sections 26(1), 26A(1) and 34(3), as amended)
4. 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)
5. 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)
6. 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. Once the person has appealed we have no discretion and cannot investigate. (Local Government Act 1974, section 26(6)(a), as amended)]
7. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
8. Caselaw has confirmed that if someone has lodged an appeal to the SEND Tribunal the Ombudsman cannot investigate any matter which is inextricably linked to the matters under appeal. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407). This means that if a person disagrees with the placement named in an EHC Plan we cannot seek a remedy for lack of education after the date the appeal was submitted.

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How I considered this complaint

9. I discussed the complaint with Ms X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I considered relevant law and guidance on provision for special educational needs. I shared my draft decision with the Council and the complainants and considered their responses.
10. 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.

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What I found

Education Health and Care assessments and Plans

11. A child with special educational needs (SEN) may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. Section I names the placement or type of placement the child is to attend. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
     
12. 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.

Reviews

13. Councils must review an EHC Plan at least every 12 months. The first review must take place within 12 months of the date when the EHC plan was issued, and then within 12 months of any previous review. They may carry out a review earlier.
14. The council must write to the child’s parent or the young person within four weeks of the review meeting to say whether it proposes to keep the EHC Plan as it is, amend it or end it.
15. If the Plan needs to be amended the council should start the process of amending it without delay. It must:
• send the child’s parent or the young person a copy of the EHC Plan with details of the proposed amendments and any evidence it has supporting the amendments
• tell them of their right to ask for a particular school or other placement to be named in the Plan and advise where they can find information about placements available
• give the parent or young person at least 15 days to make representations on the proposed changes or request a particular school.
16. If the council decides to amend the EHC Plan following the representations it must issue the final amended EHC Plan within eight weeks of the original amendment notice. It must tell the parent or young person about their right of appeal.

Re-assessments

17. Councils must carry out a re-assessment of a child or young person’s EHC Plan if the parents ask for it, unless there has been an EHC needs assessment in the previous six months.
18. Re-assessments must follow the same process as for a first EHC needs assessment. The maximum timescale for completing the re-assessment and issuing the final EHC Plan is 14 weeks from the decision to re-assess. (The Code paragraphs 9.191 and 9.192)

Requesting school placements

19. Parents have a right to request a particular council-maintained school and the council must agree to name it in the EHC plan unless:
• it would be unsuitable for the age, ability, aptitude or SEN of the child or young person, or
• the attendance of the child or young person there would be incompatible with the efficient education of others, or the efficient use of resources. In considering this point the council must consider whether there are reasonable steps the school could take to allow the child to attend.
20. Parents may also make representations for places at independent schools and the council must consider their request. The council is not under the same duty to name the school as with a maintained school. But it should do so provided this is “compatible with the provision of efficient instruction and training and does not mean unreasonable public expenditure”
21. The local authority must consult the school concerned and consider their comments very carefully before deciding whether to name it in the child or young person’s EHC plan, sending the school a copy of the draft plan. (The Code paragraphs 9.78-9.84)

Providing education

22. Councils have a duty to ensure the special educational provision set out in an EHC Plan is arranged. (Children and Families Act 2014 section 42)
23. Local authorities have a duty to arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such provision. (Education Act 1996, section 19) The provision should generally be full time unless it is not in the child’s interests.

What happened

24. Ms X and Ms Y have a child, C, now aged 13. He started having problems with anxiety and school attendance at the end of primary school in early 2017. He was receiving support from the Child and Adolescent Mental Health Service (CAMHS). He also had a Child in Need plan. The Council agreed to carry out an EHC assessment.
25. As part of the assessment CAMHS provided letters saying C:
• was prone to high levels of anxiety, aggressive outbursts and poor school attendance;
• had a ‘complex presentation which likely comprises’ Attention Deficit Hyperactivity Disorder (ADHD), Autistic Spectrum Disorder (ASD) with features of Pathological Demand Avoidance (PDA);
• needed “appropriate ASD/PDA school based strategies” to address these problems, which should be included in the EHC Plan.
26. The Council issued an EHC Plan for C in July 2017. This set out his special educational needs as emotional behaviour, ADHD, anxiety and some social communication difficulties. It did not include ASD. It named his placement from September 2017 as School 1, a mainstream secondary school. It provided for C to have access to teaching assistant time for 18 hours a week for individual, paired and small group work, tailored teaching strategies, help to reduce his anxiety and access to a mentor once a week.
27. C started at School 1 in September 2017 and attended for three weeks. During this time C experienced high levels of anxiety and made several attempts to leave the school grounds. Ms X and Ms Y and the School agreed there was a good level of support provided to encourage C to remain in school and engage in learning. However this proved unsuccessful. C did not return to School 1.
28. In October 2017 an Emergency Review meeting took place. Ms X and Ms Y asked for a change of placement. The Council agreed to look into this and in the meantime to offer alternative education. The record of the Review meeting summarises C’s main special educational needs as “autism (PDA sub-type), ADHD and ODD (Oppositional Defiance Disorder)”. It notes he was being assessed for PDA.
29. Following the meeting the Council made a referral to its alternative provision service, A2E, which offered C tuition at home. C did not engage with the tutors and after three weeks the family and the Council agreed not to continue with it.
30. The Council’s SEN ‘PRF’ Panel, which I will call the ‘Placement Panel’, considered the request for a change of placement on 8 November 2017. The Panel decided it was too soon after C’s move to secondary school to recommend a change. It agreed to increase the teaching assistant support for C at School 1 to 32 hours. It advised the School to seek advice from behaviour support services and consider ASD outreach.
31. In late November 2017 the Council issued a draft amended EHC Plan. This did not refer to autism or PDA. The covering letter invited the parents to say which school they wanted to be named in the final Plan.
32. In early December 2017 a Child in Need meeting agreed to ask the Placement Panel to review its decision and agree to a change of placement. Later in December the Panel agreed to seek a specialist Social Emotional and Mental Health placement.
33. The Council issued a Final EHC Plan in late January 2018. This included reference to C’s diagnosis of Autistic Spectrum Disorder with PDA sub-type as well as ADHD. It named School 1 as the placement.
34. The Council consulted three schools in January 2018. Two were SEMH specialist schools and one a school for pupils with special educational needs, in particular communication difficulties.
35. All three schools responded by the end of January 2018, declining to offer a place. Two of them said they could not cater for C’s needs relating to ASD and PDA. By contrast one said it was an ASD school which was not suitable for pupils with behaviour problems.
36. At the end of January 2018 the Council consulted another eight schools.
37. Also in January the Council arranged an on-line learning programme for C. This continued until mid-March 2018 when Ms X and Ms Y advised it was becoming too distressing for C.
38. Two of the schools the Council approached offered trial places. The schools indicated they could meet C’s needs. C attended but it was unsuccessful and he tried to leave the premises. Ms X and Ms Y did not consider the placements suitable as C did not feel comfortable there and did not wish to attend a specialist SEMH school.
39. Following a decision to consider independent schools in April 2018 the Council suggested consulting another three schools.
40. In mid-April 2018, following a discussion with Ms X and Ms Y, the Educational Psychologist wrote to C’s SEN caseworker to say the parents were asking for a re-assessment of C’s needs. They felt he needed to be in an ASD school, or a mainstream school with an ASD base, rather than an SEMH school as the placement Panel had decided. The EP reiterated that C had autism (PDA sub-type) ADHD and ODD.
41. The Council agreed to carry out a re-assessment of C’s EHC needs and asked the EP to produce an updated report by 26 June 2018.
42. Around the same time Ms Y wrote to the Council to express her frustration at how long it was taking to find a school place for C. The Council replied confirming the EP would do an assessment to ensure it was approaching appropriate schools. It said it would continue consulting schools with the existing paperwork unless Ms X and Ms Y preferred to wait for the assessment to be complete. The Council also offered to contact tutoring agencies, if they wished, so C could have some tuition in the meantime.
43. Ms X and Ms Y did not take up the offer of tuition at this point. Ms X says this was because felt it had not worked in the past and they did not think it would work any better now. The Council says Ms X and Ms Y asked it not to consult any more schools until the re-assessment was complete as it might result in an amended EHC Plan. They felt visiting schools that might not be suitable was distressing for C. They felt he was not “a typical SEMH or ASD child” and needed a school that would be able to deal with his anxieties, as this was his main barrier to learning.
44. Nevertheless the Council consulted another six schools in May 2018, some of which declined saying there were no vacancies or they were not suitable.
45. In mid-May 2018 Ms X and Ms Y identified a school they considered might be suitable for their son. This was School 18, an independent specialist school for children with ASD, social emotional difficulties and challenging behaviour. The Council consulted the School and it offered C a visit in mid-June 2018. The visit took place but although C took a tour of the school, he refused to meet any of the teachers. School 18 would not offer a place because of this and said he could try again in September. Ms X and Ms Y wrote to the Council saying they felt completely stuck and asking for advice about what to do next as their son had missed so much education.
46. In the meantime C had unsuccessful visits to some of the other schools consulted. Ms X and Ms Y did not consider these schools could meet his needs. Other schools replied to the Council declining to offer a place. In late June 2018 Ms X sent email to the Council to provide an update on the school visits. She also asked for information about SEN home tutor support. She did not receive a reply.
47. The EP completed her assessment in late June 2018, having spoken to the parents, the CAMHS psychiatrist working with C, and SEN staff at School 1. She concluded:

“[C] will need a learning environment where school staff have training or experience with meeting the needs of children with a diagnosis of ASD (PDA features), social emotional difficulties and challenging behaviour, including difficulties with school refusal.”

48. In early July 2018 the Placement Panel agreed to change the primary need to ASD for purposes of seeking a school placement.
49. During the rest of July Ms X and Ms Y were in correspondence with the Council explaining why they did not consider some of the other schools approached were suitable and saying that C was at times refusing to visit. They said “[School 18] seems to fit [C] more than any other school we have seen. It is not too ASD or too SEMH but seems to have good experience with a broad range of issues”.
50. They also asked if they could have a personal budget so they could employ a tutor at home who could provide some education while C was out of school and also help with his transition back to school. I am not aware of any reply to this request.
51. In September 2018 C attended an interview and taster days at School 18 which were successful.
52. On 9 October 2018 School 18 wrote to Ms X and Ms Y and to the Council offering C a place.
53. A week later the Council considered whether to agree to the placement at its NMI (non-maintained and independent) Moderation Panel.
54. Ms X and Ms Y were aware that the Council would be making a decision about whether to name the school at the Moderation Panel. Ms X wrote to the Council asking whether their detailed reasons for choosing School 18 had been put to the Panel. They said this was their preference after visiting 16 schools. They felt this was the only one where C felt safe and could overcome his anxiety enough to engage in learning. They asked the Council not to delay sending them the Panel’s decision. They said if did not agree they would appeal.
55. The Moderation Panel did not agree to the placement. The Panel was not clear whether the Council had fully explored all other placement options. The Council says this was because officers had failed to use the ‘robust response’ form that is part of its consultation process. The Panel felt it was not clear whether:
• the Council had asked schools previously consulted whether they could make reasonable adjustments,
• the EHC Plan needed updating,
• an Annual Review meeting had taken place,
• certain other schools had been approached,
• CAMHS had provided a full report.
56. The Council started re-consulting schools previously consulted. The consultation letter set out the potential reasons for not agreeing to admit a child and enclosed a form asking about any reasonable adjustments the school could make.
57. Ms X did not receive a reply to her email about the Panel decision and wrote to the Council again. By 20 November 2018 Ms X and Ms Y had still not received a reply or a copy of the minutes of the Moderation Panel. They wrote to the Council again. They said all they knew was that the decision about a school placement was being delayed further while the Council re-consulted schools which had previously said they could not meet C’s needs. They did not understand why this was happening.
58. The Council replied the same day. It confirmed the Moderation Panel had asked the SEN caseworker “to get robust responses from schools”. The Council said once it had received these the Moderation Panel could consider the placement request again.
59. Ms Y replied asking further questions about why the Council was approaching the same schools again when they had already said they could not meet C’s needs. She also asked why it was still approaching other unsuitable schools.
60. The Council replied to Ms Y’s email in early December 2018. It acknowledged the frustration she and Ms X had experienced and the lack of response to their emails. It said the Council had consulted a range of schools to try and identify one that could meet C’s needs. But it said C had said he did not wish to attend a specialist school, and the parents had declined offers. It confirmed it was now “revisiting some of the earlier consultations” and said it felt this was “appropriate to ensure that every possible opportunity is explored to identify a placement for [C]”.
61. At the end of November 2018 an Annual Review meeting took place. Shortly afterwards the Council issued a draft amended EHC Plan. My understanding is the Council intended to name the type of school it considered suitable in the final Plan, but not a particular school.
62. Ms X and Ms Y consulted a solicitor who wrote to the Council on their behalf. The letter said the school the parents had identified, School 18, was the only one that could meet C’s needs and that he would realistically attend. It said the Council should now issue the final EHC Plan so they could appeal if it did not name this placement. If it did not issue the Plan they would be considering legal action.
63. The Council issued a final amended EHC Plan in January 2019. This noted that the parents felt C needed specialist provision as he did not “entirely fit the profile for SEMH or ASD” schools. The EHC Plan did not name a specific placement but said in section I that C “needs access to a school with resources appropriate to meet his ASD needs”.
64. The following day Ms X and Ms Y submitted an appeal to the SEND Tribunal, as they wanted the EHC Plan to name School 18.
65. In March 2019 the Council agreed to name School 18 and the School agreed a start date in late April 2019. The Council issued the final amended EHC Plan naming School 18 in May 2019. C started at School 18 in late April 2019. He has not always been able to attend full-time because of his anxiety.

Analysis – was there fault causing injustice?

66. Ms X and Ms Y complain that the Council took too long to identify a suitable school place for their son and was out of education for 18 months.
67. I do not consider the Council was at fault in the way it responded to their request for a change of placement initially. It held an Emergency Review meeting, offered alternative provision for C at home once he stopped attending School 1, and referred the request to the Placement Panel. I cannot criticise the Panel’s decision not to approve a change of placement at that stage as the Panel considered the request, gave reasons for its decision and agreed to increase support at the School. The Council then issued the draft EHC Plan reasonably promptly after the Review meeting and invited Ms X and Ms Y to identify a school they considered suitable. It also agreed to the request to re-consider the decision about the placement at the Panel.
68. I have not seen minutes of the Placement Panel meeting held in December 2017. There may be fault in the decision-making as it is not clear why the Panel decided an SEMH school was the most suitable type of provision when the CAMHS evidence referred to autism as well as behavioural and emotional difficulties, although the draft EHC Plan at that stage did not.
69. Ms X and Ms Y had a right of appeal against the EHC Plan issued in January 2018 which continued to name School 1. I have exercised discretion to investigate events beyond this period. This is because I consider it reasonable for the parents not to have appealed at this point, given that they were aware the Council was seeking alternative school placements. Neither they nor the Council had identified another school Ms X and Ms Y considered suitable.
70. In my view the Council was at fault in restricting its consultations mainly to schools specialising in SEMH from January 2018 when the final EHC Plan had included autism with PDA features. However I cannot say that wider consultation with schools specialising in or including pupils with autism would have led to a suitable school being identified at this point. This is because one of the schools consulted initially did not agree to accept C on the basis of his autism. Also it was only when his parents identified a school covering both aspects of his special needs that they considered it a suitable placement.
71. I consider there was delay in issuing the final EHC Plan following the re-assessment of C’s EHC needs. The Council did not issue it until January 2019. It should have issued it within 14 weeks of agreeing to re-assess, which would have been at the end of July 2018. By this time the parents had identified a school they considered suitable, School 18. C would not have been able to start at the School immediately at that point even if the Council had accepted their preference. The School had not yet offered C a place because his first visit in June 2018 was not successful and he was due to try again in September.
72. However the flaws in the earlier school consultations which the Moderation Panel identified in October 2018 meant the Council was not in a position to agree to name School 18 in the EHC Plan. This led to a period of considerable delay while the Council re-consulted many schools it had approached before. The first round of consultations failed to ensure the schools addressed the question of whether they could take reasonable steps to be able to accommodate C’s needs. This was fault. If the Council had carried out the consultations properly, on balance it seems likely the Council would have been able to agree the placement at School 18 in October 2018, given that it eventually did so in March 2019.
73. This means C missed out on a school placement from 9 October 2018 to April 2019. However because of the law and caselaw referred to in paragraphs 6 and 8 above the Ombudsman cannot recommend any remedy for lack of education after the date when the Council issued the final EHC Plan in January 2019. This is because at this point Ms X and Ms Y had a right of appeal which they used. The lack of education is ‘inextricably linked’ to the appeal for their preferred school placement.
74. I have considered whether the Council was at fault in not providing any alternative education to C after the home tuition and online learning programme ended in March 2018. Ms X and Ms Y did not take up the Council’s offer of home tuition in April 2018. So the Council was not responsible for any lack of alternative education at this point. I consider that the Council was at fault for not replying to their requests in late June and July 2018. I do not know whether C would have engaged with any tuition offered, based on his previous experience. But there was a loss of opportunity to have the request considered.
75. The Council also had a duty to arrange the support set out in C’s EHC Plan. I recognise that this was difficult when C was not attending school. Also his high levels of anxiety and lack of engagement would have presented problems for providing any form of alternative education. It is unlikely he would have been able to cope with full-time education. Nevertheless he should not have been left without any offer of education at all from late June 2018 to January 2019.

Agreed action

76. The Council has agreed to take the following action within one month of the decision on this complaint.
• Apologise to Ms X and Ms Y for the failings identified.
• Make a payment to them of £200 for the loss of opportunity to have alternative education considered during July and September 2018.
• Pay them £600 per month for the three months between 9 October 2018 to the date in January 2019 when the final EHC Plan was issued, to recognise the lack of a place at School 18. This figure is based on the Ombudsman’s guidelines and reflects the fact that C received no education at all during this period. This is a total of £1,800. These payments should be used for the benefit of C’s education.
• Pay Ms X and Ms Y £250 to recognise the frustration caused by the inconsistent communications and the time and trouble involved in pursuing the complaint.
77. The Council has also agreed that within two months it will remind relevant staff of the statutory guidance on school consultations and the proper use of its ‘robust response’ form. The Council should provide evidence to the Ombudsman that it has carried out this action and a copy of any communication with staff.

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Final decision

78. I have found fault in the way the Council dealt with C’s EHC Plan. I am satisfied with the action it has agreed to take to remedy the injustice caused and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman