Summary: Mrs B complained about the way the Council dealt with her son’s Education, Health and Care (EHC) Plan. There was fault by the Council in failing to consult schools when Mrs B said she no longer wanted to educate her son at home. This led to delay in issuing a final EHC Plan with a named placement, which delayed the right of appeal. The Council has agreed a remedy for the loss of educational support and the impact on Mrs B of having to educate her son at home for longer than necessary.

The complaint

1. The complainant, referred to here as Mrs B, complains about the Council’s handling of her request made in October 2017 for an Education, Health and Care Plan (EHC Plan) for her son, Y. Mrs B says the Council:
• significantly delayed issuing the Plan and did not issue a final EHC Plan until February 2019;
• did not promptly consult suitable schools which meant when the Council finally consulted suitable schools there were no places available;
• failed to provide alternative provision for Y during the Council’s preparation of the EHC Plan after she told the Council she did not want to home educate Y;
• delayed naming a school in Y’s EHC Plan even though she had requested a school placement and not elective home education; and,
• named a school in the final EHC Plan of February 2019 which cannot meet Y’s needs.
2. Mrs B says because of fault by the Council: Y’s education and development have suffered; Y’s two autistic brothers have suffered because of the resources the family has put into Y’s education; she had to stop working to home educate Y; the physical and mental health of her and her husband has been affected; and she has paid for reports and representation to appeal the final EHC Plan.
3. Mrs B said she would like the Council to offer a suitable school place or agree an Education Other Than at School budget until one is found. Mrs B would also like compensation for the financial loss suffered by the family.

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What I have investigated

4. I am investigating all Mrs B’s complaints apart from her complaint about the school named by the Council in the final EHC Plan (fifth bullet point above). I will address this complaint in the ‘Parts of the complaint that I did not investigate’ section at the end of this statement.

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The Ombudsman’s role and powers

5. 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)
6. 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)
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. 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)
9. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))

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How I considered this complaint

10. I have considered Mrs B’s complaint and the supporting information she sent. I have also made enquiries to the Council and have considered the information sent by the Council in response. I have considered relevant law and guidance on provision for special educational needs. I shared my draft decision with the Council and the complainant and considered their responses.
11. 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

Legal background

12. 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. We cannot direct changes to the sections about special educational provision (Section F), or name a different school or other setting (Section I). Only the Tribunal can do this.
13. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. The guidance says:
• Where a local authority receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment.
• The whole process from the date of the request until the final EHC Plan is issued must take no more than 20 weeks, unless certain exceptions apply.
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.
• Where a parent or the young person asks for a particular school, the local authority must consult the school concerned and consider their comments very carefully before deciding whether to name it in the EHC Plan. The school should respond within 15 days.

What happened

14. Mrs B has a son, Y, who has a diagnosis of Autism Spectrum Disorder and has difficulties with co-ordination, sensory processing and social skills. In early 2016 Mrs B decided to take Y out of his primary school. This was because she did not consider the school was meeting his needs. Since then Mrs B has been educating Y at home. Mrs B gave up her full-time job to do this.
15. On 12 September 2017 Mrs B asked the Council for an EHC needs assessment for Y. The Council agreed to do a needs assessment in October, within the six- week deadline for a decision. The Council started the assessment, consulting relevant professionals including Y’s previous school.
16. Mrs B asked the Council to name a school in Y’s EHC Plan. The Council did not consult any schools during this period.
17. In February 2018 the Council sent Mrs B a draft EHCP. Mrs B received this on 22 February. The Council said in the draft Plan that Mrs B wanted Y to attend a school.
18. On 1 March the Council sent Mrs B an email allowing her more time to comment on the draft Plan.
19. On 2 March Mrs B sent the Council her comments on the draft Plan. Mrs B told the Council she wanted a special school to be named in the Plan. I will refer to this school as School A. Mrs B added that Y had recently been diagnosed with another condition. On the same day the Council says it sent Mrs B the final Plan. In Section I of the Plan the Council said: ‘The parent has made alternative arrangements under s7 Education Act 1996 to provide education other than at school’.
20. Mrs B says she did not receive the final Plan at this time. On 16 March she sent an email to the case officer checking the officer had received her comments on the draft version of the Plan. Mrs B also said she had some further information about a dyslexia assessment for Y she wanted to provide. The case officer replied by saying “I was ready to send the plan again but will now incorporate the new information and send on to you”.
21. On 16 May Mrs B sent an email to her case officer saying she was still waiting for the report from Y’s dyslexia assessment, but she wanted the Council to issue Y’s edited Plan so he could get a school place as soon as possible. The case officer replied by saying they had just printed Y’s Plan to send to School A, which said it had not received the Plan before.
22. The Council then consulted School A. Later that month Mrs B sent the Council reports on Y’s dyslexia and dysgraphia assessment.
23. In mid-June Mrs B asked the Council for an update.
24. In early August Y had a speech and language needs assessment.
25. On 6 August the case officer told Mrs B she would consult further schools and take the case to panel after the summer break.
26. In early September Mrs B asked the Council to issue the final EHC Plan as soon as possible as she wanted Y to be in school. The Council provided her with the EHC Plan of 2 March and told her this was the final Plan. Mrs B says there was no letter with this Plan telling her about her right of appeal. The Council says there is no evidence it sent her this letter.
27. On 23 October Mrs B sent an email to the Council asking if the September 2018 Plan was the final version. The Council replied by saying the draft Plan could be amended.
28. On 24 October School A responded to the Council’s consultation by saying it could not offer a school place for Y.
29. On 29 October Mrs B asked the Council for the name and contact details for the officer now responsible for the Plan. Mrs B outlined the changes she wanted the Council to make to the Plan.
30. On 12 November Mrs B asked the Council to provide details about mediation because the Council did not provide this when it sent the Plan to her in early September. On the same day the Council sent an email to Mrs B saying it had made amendments to the Plan and had sent it by post to Mrs B. The Council also sent consultation letters to nine schools. The Council said this puts the Plan back in ‘draft document/working document’. Mrs B did not receive the version sent by post, but collected a copy from the Council office on 19 November. Section I of this version of the Plan said home education by parents.
31. On 19 December 2018 Mrs B again asked the Council to tell her who her new case officer was. Mrs B said she had been waiting to be assigned a new caseworker since September. The new caseworker responded to Mrs B later that day.
32. Mrs B put in a complaint to the Council during this period.
33. On 7 January 2019 the Council consulted School A again.
34. The Council sent a new draft Plan to Mrs B on 16 January.
35. The draft Plan was then considered by the Council’s placement panel which directed a named school to be included in Section I of the Plan, School B.
36. Mrs B did not consider this school was suitable and asked the Council for a personal budget to deliver Y’s education. This Council’s placement panel refused this request and confirmed it wanted to name School B.
37. The Council sent a further draft Plan to Mrs B on 31 January.
38. On 15 February 2019 the Council issued the final Plan, naming School B. The Council told Mrs B she had a right of appeal to SEND.
39. In March Mrs B complained to the Ombudsman. She also put in an appeal to SEND against the school named in the Plan as she considered it could not meet Y’s needs. She asked for a place at an independent specialist school for pupils with autism, School C. Her appeal included a request for extra support including Occupational Therapy (OT).
40. The Council sent Mrs B its final response to her complaint on 15 March. The Council accepted some fault including that it did not identify and offer a school place for Y in the EHC Plan of March 2018 when Mrs B said this was what she wanted at the initial needs assessment in late 2017. The Council apologised and offered Mrs B £500 in recognition of this error. Mrs B did not accept the Council’s offer which she did not consider reflected the injustice her family had suffered because of fault by the Council.
41. In response to my enquiries the Council said:
• A final EHCP was in place from 2 March 2018. The Council took 24 weeks to produce the Plan, which is slightly over the statutory timeline of 20 weeks.
• The Council informed Mrs B of her right of appeal when the final Plan was issued in March 2018. Mrs B did not put in an appeal at the time.
• The Council did not consult Mrs B’s chosen school until May 2018. There is no formal record of the parents request for a school place, but it is clear it was the parents’ intention to return Y to school once an EHCP was in place. The Council should have consulted with integrated resource provision in March 2018.
• The Council did not receive a response to its consultation of Mrs B’s chosen school, School A, made in May 2018, until 24 October 2018.
• The Council could not make a decision about placement at School A without the school responding to the consultation and offering a school place.
• Some of the school responses to consultations fell outside the 15-day timescale for a response. The Council has put revised processes in place to ensure that consultations are followed up in a timely manner.
• There are gaps in the information which make note of a request for alternative provision during the drafting of the EHCP, so regrettably the Council cannot comment on why it was not pursued or provided at this time. The Council should have consulted with a range of providers in March 2018 and then offered a placement, regardless of the parent’s view, if they had said they wanted Y to return to school. The Council has provided further training and guidance to ensure this does not happen in future, particularly where parents indicate they no longer want to home educate.
• It is clear the family had requested a school placement rather than home education at the early meetings but regrettably there is no evidence this was followed up in a more timely manner.
42. Mrs B’s appeal hearing took place in late December 2019. The Tribunal issued its decision in January 2020. It ordered the Council to name Mrs B’s preferred school, School C, in section I of the EHC Plan. The final EHC Plan following the Tribunal decision also includes extra support including a key worker, therapeutic help, OT sessions and advice to staff, a structured social skills programme, and help with dyslexia.
43. Mrs B says because of fault by the Council: Y’s education and development have suffered; Y’s two autistic brothers have suffered because of the resources the family has put into Y’s education; she had to stop working to continue to home educate Y; the physical and mental health of her and her husband has been affected; and, she has paid for reports and representation to appeal the final EHC Plan.

Analysis – was there fault causing injustice?

44. The first four complaints are bound up together. The Council has accepted it did not consult schools when it should have done even though there was evidence Mrs B told the Council she no longer wished to home educate her son. This resulted in delay in issuing a final EHC Plan naming a school. Mrs B wanted the Council to provide another school placement, or a budget to enable her to provide education other than at school. The Council did not agree to do this, at first because it considered she was home educating by choice and it delayed in seeking a school place. Later, in January 2019, the placement panel decided not to name ‘Education Other than at School’ in the EHC Plan with a budget. It named School B instead. This is a decision which carried a right of appeal and so I cannot investigate it.
45. I find that there was fault by the Council which caused Y and Mrs B a significant injustice. I do not consider the financial remedy offered by the Council puts right this injustice.
46. The Council accepts the family had requested a school placement rather than home education at the early meetings in late 2017. But the Council did not consult any schools before issuing a final Plan on 2 March 2018. Instead, in Section I of the Plan the Council said: ‘The parent has made alternative arrangements under s7 Education Act 1996 to provide education other than at school’.
47. We would not normally investigate a complaint about what a council has stated in Section I of an EHC Plan. This is because the parent can appeal to the SEND Tribunal. In this case I have decided to exercise discretion and investigate this part of the complaint for the following reasons. Mrs B says she did not receive a final Plan in March 2018. As evidence she points to the fact that she was still asking about amendments to the draft Plan around that time. She was still asking the Council to send a final Plan in September 2018. But even if the Council did send a final Plan in March 2018, despite what it says I have not seen any information to show it sent Mrs B a covering letter telling her it was the final plan and she could put in an appeal against it. In response to Mrs B’s complaint the Council said its records do not show whether it gave Mrs B further rights of appeal after telling her it would send another version of the EHC Plan in March 2018. This is evidence of fault.
48. Also, the Council accepts it was at fault for not consulting schools and not naming a school in Section I of the Plan in March 2018.
49. Mrs B was left uncertain about the status of the Plan throughout this period. The Council re-sent the 2 March 2018 Plan to Mrs B in early September. But, again I have not seen a covering letter telling Mrs B this was the same Plan which it had sent in March. Mrs B then had to ask the Council to clarify whether this Plan was a final Plan. Mrs B was only told that the Plan had gone back to draft stage in November 2018 when the Council shared the Plan with nine schools.
50. So, I do not consider it was reasonable to expect Mrs B to have put in an appeal to SEND between March and November 2018. The Council acted relatively promptly after the Plan was assigned to a new case officer in late November 2018. The information does not suggest there was further fault or delay by the Council before it issued the final Plan in February 2019.
51. If the Council had acted without fault it would have consulted schools after deciding to do an assessment of Y’s needs in late 2017. It would have then named a school in Section I of the Plan. The Council would have also sent a covering letter with the final Plan making it clear this was the final Plan and Mrs B could put in an appeal. Mrs B would have then been able to appeal to the SEND Tribunal if she did not consider the school was suitable for Y.
52. I consider it was reasonable for the Council to have issued the final Plan without fault by 2 March 2018. This is slightly longer than the statutory 20 week timescale because it was not straightforward finding a suitable school for Y. It is clear some schools, particularly School A, took longer than expected to reply to the Council. But, I am satisfied if the Council had done the same consultations in late 2017 that it did in late 2018 it is more likely than not it would have identified a school it considered to be suitable for Y by 2 March 2018. If it had done so and Mrs B had not agreed with the named school, she could have appealed then.
53. The Council did not issue a final Plan naming a school and informing Mrs B of her right of appeal until 15 February 2019.
54. So, I consider that fault and delay by the Council has delayed Mrs B being able to challenge the Plan by almost one year, and therefore delayed the final outcome of the appeal. This has in turn delayed Y starting at a suitable school with extra support.
55. This loss of education warrants a remedy. The Ombudsman cannot consider the impact of any delay after the date of a final EHC Plan in cases where we consider it reasonable to expect the parent to use their right of appeal, or where they have appealed. This means I can only recommend a remedy for loss of education up to February 2019.
56. During this period Y was not deprived of education altogether, as Mrs B was educating him at home. She provided some of the teaching herself. She also arranged tutors for Y in core subjects and enrolled him with alternative education groups and organisations. But she says there were difficulties with some of this provision as it was not always suitable for Y and she had to withdraw him. Also Y did not have access to the specialist resources of the school that was finally named. The delay also meant he missed out on access to the extra support eventually included in the EHC Plan following her successful appeal.
57. Also Mrs B had to pay for the education she arranged, she could not work full-time and she and her family experienced unnecessary distress and anxiety. Mrs B was already working part-time and paying for Y’s home education from when she first withdrew him from school in 2016. But the situation continued for longer than necessary because of the fault by the Council.

Agreed action

58. To remedy the injustice caused the Council agreed to take the following action within one month of the decision on this complaint.
• Apologise to Mrs B for the faults identified and the impact on her, Y, and her family.
• Make a payment of £200 per month to recognise the lack of school placement and special educational support from the beginning of March 2018 to mid-February 2019. Excluding school holidays this is a period of ten months, making a total of £2,000. The Ombudsman’s guidelines recommend payments for loss of education ranging from £200 to £600 per month. In recommending a figure at the bottom of the range I have taken into account that Y was receiving some education but not the full support he would have had without the fault. I have also considered it in the context of the rest of my recommendations. The payment should be used for the benefit of Y’s education.
• Reimburse Mrs B for any reasonable expenses incurred during this period in providing home education for Y, based on evidence provided.
• Pay Mrs B the £500 already offered to recognise the inconvenience, distress, and anxiety of having to home educate Y for longer than she wished and her loss of opportunity to work full-time during this period.
• Pay her £250 to recognise her time and trouble in pursuing her complaint.
59. I also recommend that the Council take the following steps.
• Provide the Ombudsman with details of the improvements in procedures it says it has made.
• Explain how it proposes to ensure it sends out information about the right of appeal with the final EHC Plan and records that it has done so.

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Final decision

60. I have found fault by the Council causing injustice. I am satisfied with the action the Council has agreed to take to remedy the injustice caused and so I have completed my investigation.

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Parts of the complaint that I did not investigate

61. I have not investigated the complaint that the Council named a school in the final EHC Plan of February 2019 which could not meet Y’s needs. This is because Mrs B appealed to the SEND Tribunal to challenge this section of the Plan. This means we cannot investigate this part of Mrs B’s complaint. I also cannot consider any delays during the appeal process or expenses associated with the appeal.

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Investigator's decision on behalf of the Ombudsman