Summary: Ms B complains the Council delayed issuing a final education, health and care plan for her daughter. Ms B says because of the Council’s fault she had to subsidise her daughter’s school fees and pay for a legal representation. The Ombudsman has found fault with the Council. The Council has agreed to reimburse Ms B four weeks of C’s school fees and implement staff training.

The complaint

1. Ms B complains the Council delayed issuing a final education, health and care plan (EHCP) for her daughter.
2. Ms B says because of the Council’s fault she had to subsidise her daughter’s school fees and pay for a legal representation.

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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. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
5. The law says we cannot investigate a complaint if someone has appealed to a tribunal. However, we might investigate whether there may have been a delay in the process which led to the tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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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How I considered this complaint

7. I considered:
• Ms B’s complaint and the information she provided;
• documents supplied by the Council;
• relevant legislation and guidelines;
• the Council’s policies and procedures; and
• Ms B and the Council reviewed a confidential draft of this report and comments received were considered before the report was finalised.

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What I found

Legislation and statutory guidance

8. A child with special educational needs may have an EHCP. This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections:
• Section A: The views, interests and aspirations of the child and his or her parents or the young person.
• Section B: The child or young person’s special educational needs.
• Section C: The child or young person’s health needs which are related to their SEN.
• Section D: The child or young person’s social care needs which are related to their SEN or to a disability.
• Section E: The outcomes sought for the child or the young person.
• Section F: The special educational provision required by the child or the young person.
• Section G: Any health provision reasonably required by the learning difficulties or disabilities which result in the child or young person having SEN.
• Section H1: Any social care provision which must be made for a child or young person under 18 resulting from section 2 of the Chronically Sick and Disabled Persons Act 1970.
• Section H2: Any other social care provision reasonably required by the learning difficulties or disabilities which result in the child or young person having SEN.
• Section I: The name and type of the school, maintained nursery school, post-16 institution or other institution to be attended by the child or young person and the type of that institution (or, where the name of a school or other institution is not specified in the EHC plan, the type of school or other institution to be attended by the child or young person).
• Section J: Where there is a Personal Budget, the details of how the Personal Budget will support outcomes, the provision it will be used for and the arrangements for any direct payments for education, health and social care.
• Section K: The advice and information gathered during the EHC needs assessment must be attached. There should be a list of this advice and information.
9. The Ombudsman cannot direct changes to the sections about education or name a different school. Only the SEND Tribunal can do this.
10. In relation to an EHCP the following specific requirements apply:
• Local authorities must respond to a request for an EHCP needs assessment within 6 weeks from when the request was received, or the point at which a child or young person came to the local authority’s attention.
• When local authorities ask for information as part of the EHCP needs assessment, those supplying the information must respond within 6 weeks from the date of the request.
• If a local authority decides, following an EHCP needs assessment, not to issue an EHCP, it must tell the child’s parent or the young person within 16 weeks from the request for an EHCP needs assessment.
• If a child needs an EHCP, the local authority has 20 weeks from the date it received the request for the EHCP to be finalised.

(Department of Education and Department of Health and Social Care 2014 SEND code of practice: 0 to 25 years).

11. The local authority must name the school asked for by parents unless:
• the school or other institution is unsuitable for the age, ability, aptitude or special educational needs of the child or young person concerned; and/or
• attendance of the child or young person at the school or other institution would be incompatible with the provision of efficient education for others, or the efficient use of resources. (Children and Families Act 2014 s.39 (3/4))
12. If a parent asks for a place at an independent school, the local authority must consider the request. The local authority is not under the same conditional duty to name the provider but must consider the general principle in section 9 of the Education Act 1996 that children should be educated in accordance with their parents’ wishes, so long as this is compatible with the provision of efficient instruction and training and does not mean unreasonable public expenditure (Department of Education and Department of Health and Social Care 2014 SEND code of practice: 0 to 25 years).
13. If a local authority names an independent school or independent college in the plan as special educational provision it must also meet the costs of the fees (Department of Education and Department of Health and Social Care 2014 SEND code of practice: 0 to 25 years).
14. When sending the final amended EHCP, the local authority must tell the child’s parent or the young person of their right to appeal (SEND Code of Practice 2015).
15. Where there is a right of appeal to SEND about a placement decision, the Court has decided the decision, and the consequences of it, are matters which are ‘inextricably linked’ (R (on the application of ER) v the Commissioner for Local Administration, 2014).
16. If the SEND tribunal;
• asks a local authority to amend the special educational provision specified in an EHCP, the local authority must issue the amended EHCP within 5 weeks of the order being made.
• asks the local authority to amend the name of the school or other institution or the type of school or other institution specified in the EHCP, the local authority must issue the amended EHCP within 2 weeks of the order being made.
17. In 2017 the Ombudsman published a focus report ‘Education, Health and Care Plans: our first 100 investigations’.

Jurisdiction

18. The Ombudsman cannot investigate the actions of the Council or remedy any injustice experienced after the final EHCP was issued and Ms B could exercise her appeal rights. We can only investigate, and remedy injustice caused by the delay prior to this point.

What happened

19. This chronology includes key events in this case and does not cover everything that happened.
20. In June 2017, Ms B asked the Council to assess her daughter, C, for an EHCP.
21. Because of difficulties experienced by C in her mainstream primary school, in July 2017, her parents moved her to School D, an independent specialist provision.
22. In August 2017, the Council told Ms B there was not enough evidence to support a statutory assessment for an EHCP; this decision was made a week outside the timescale of 6 weeks. The Council told Ms B about her right of appeal to the SEND tribunal.
23. In February 2018, Ms B asked the Council again to assess her daughter for an EHCP. In April 2018, the Council agreed to assess C for an EHCP; this was within the timescale of 6 weeks.
24. In June 2018, Ms B complained she had not had a response from C’s case officer. The Council replied, apologised for communication difficulties and explained what would happen moving forward.
25. The Council issued a draft EHCP in June 2018. Section I (placement) was left blank. Ms B expressed a preference for C to attend School D. The Council sent consultations to C’s nearest maintained primary school and School D.
26. In July 2018, the Council held a co-production meeting. Ms B asked for amendments to the EHCP. Ms B and the Council agreed the final EHCP should not be issued until the Educational Psychologist sent its report. Ms B signed to say she was happy with the meeting.
27. The maintained primary school the Council consulted said it could not meet C’s needs.
28. Ms B had to tell School D if C was going to continue at the school in the autumn term by mid-July 2018. Ms B said she would not withdraw C from School D without a suitable alternative being in place. Ms B told the Council she had arranged for C to continue at School D in the autumn term. She said this was because the Council had not offered any other suitable options and schools could not be consulted because they were closed for the summer.
29. Ms B made a complaint to the Council because she had not been able to contact C’s SEN officer. The Council explained the officer was not in the office because of unforeseen circumstances.
30. In August 2018, Ms B made another complaint to the Council. Ms B said over 20 weeks had passed since she asked for C to have an EHCP. The Council apologised saying the delay was because of prolonged staff absence.
31. The Council issued C’s final EHCP in August 2018; this was 4 weeks after the deadline of 20 weeks. However, the Council did not name a school, or the type of school C should attend. The Council said School D had not responded to its consultations. In fact, School D replied in June 2018. Indeed, Ms B confirmed with School D in July 2018 that C would be attending in the autumn term. The letter sent with the EHCP told Ms B about her right of appeal.
32. The day after the Council issued the EHCP, it says School D responded that it could meet C’s needs. School D actually responded in June 2018.
33. In October 2018, Ms B appealed sections B, F and I of C’s EHCP.
34. The Council consulted with another maintained School. The School said it did not have a place for C and that early findings suggested it would not be able to meet her needs.
35. In November 2018, the Council agreed to name School D in C’s EHCP.
36. The Council and Ms B agreed for the appeal to be concluded by the issue of a consent order. In February 2019 the SEND tribunal ordered that:
• the parties agreed to School D and amendments to sections B and F;
• once the EHCP was issued, the appeal was concluded; and
• there would be no order for costs.
37. The Council amended and issued C’s final EHCP in March 2019; this was within the 2 weeks of the consent order being granted. The Council agreed to pay C’s school fees from the date of the consent order.
38. During this process, Ms B employed a legal representative.

Analysis

39. In June 2017, Ms B asked for C to be assessed for an EHCP. The Council’s response was delayed by a week which is fault. Given the delay was short, I have not considered it to have caused Ms B or C significant injustice. The Council decided not to carry out an assessment. It told Ms B about her right of appeal and if she had wished to challenge the decision, she could have appealed to the SEND tribunal. The Council responded to Ms B’s second request for an EHCP within the timescale of 6 weeks.
40. The Council said School D did not respond to consultations until August 2018. However, the letter sent to the Council from School D is dated June 2018. Although this fault did not cause injustice, it raises concerns about the Council’s record keeping.
41. The Council issued C’s final EHCP in August 2018; this was 4 weeks after the timescale of 20 weeks. Because of the delay, C’s final EHCP was issued during the school summer holidays preventing the Council from consulting other education providers. If the Council had issued C’s EHCP on time, Ms B could have enacted her appeal rights earlier and the case would have been resolved sooner. This delay is fault which caused injustice. Ms B had to pay for C’s school fees for 4 weeks longer than she would have without the delay.
42. In February 2019, the SEND tribunal issued a consent order that required the local authority to amend the name of the school in C’s EHCP. In these circumstances, the local authority needed to have issued the amended EHC plan within 2 weeks of the order being made, which it did.
43. Ms B employed a legal representative to support her with this process. This was Ms B’s choice. The Council are not liable for Ms B’s legal costs and the SEND tribunal’s consent order confirmed this.

Agreed action

44. Within two months of this decision, the Council will:
• Reimburse Ms B 4 weeks of C’s school fees.
• Provide staff training for its SEN team on statutory timescales.

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Final decision

45. I have completed my investigation and uphold Ms B’s complaint. Ms B has been caused an injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman