Summary: the Council was at fault in failing to follow proper processes when amending Y’s Education, Health and Social Care plan before issuing the final amended version. This caused injustice in the form of avoidable frustration and time and trouble but did not mean that Y’s father, Mr G, could not have appealed to the Tribunal by the original deadline for this.

The complaint

1. The complainant, whom I shall refer to as Mr G, complains that the Council has failed to comply with statutory guidance in its handling of the transfer of his son, Y, to the secondary stage of his education under the Education, Health and Social Care Plan (EHC Plan) process. Specifically he says it wrongly:

1. issued an amended “Final EHC plan” altering Y’s education placement from September 2019 on 12 March 2019 following an annual review meeting in January 2019 without undertaking the proper process for consulting, inviting representations and issuing a draft Plan first;
2. failed to meet the 15 February deadline for completing amendments to the EHC Plan in the year of transferring to secondary school provision;
3. failed to ensure that its letters to Mr G and Y’s school dated 4 February 2019 arrived promptly. They did not in fact arrive until 12 March and 8 March respectively. In addition, the amended final EHC plan included a named school in the version sent to the school and did not name a school in the version sent to Mr G; and
4. failed to properly consider Mr G’s request for Y to remain at Q School before amending the EHC Plan to name another school.

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The Ombudsman’s role and powers

2. A child with special educational needs 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 education, or name a different school. Only the tribunal can do this. The Council is responsible for making sure that arrangements specified in the EHC plan 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.

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. A child with special educational needs 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 education, or name a different school. Only the tribunal can do this.
4. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), 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)

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How I considered this complaint

6. I discussed the complaint with Mr G and considered the information he provided with his complaint. I made written enquiries of the Council and took account of all the information before reaching a draft decision on the complaint.
7. I gave the Council and Mr G the opportunity to comment on my draft decision and took account of their comments before I reached my final decision.
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.

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What I found

What should have happened

9. A child with special educational needs 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.
10. Parents may apply to the First Tier Tribunal to challenge some council decisions regarding an EHC Plan. These decisions include where a council refuses to assess, where it declines to issue an EHC plan following an assessment and where a parent disputes the school named on the EHC plan, for example.
11. We have no jurisdiction to investigate a complaint where a parent has appealed to the First Tier Tribunal from the date the appeal right arises until the appeal is completed. We cannot consider matters that have been put before the Tribunal.
12. In most cases prospective appellants to the Tribunal will need a mediation certificate before they can proceed with an appeal to the Tribunal. Usually this means that the individual undertakes mediation, and if the mediation does not settle all of the points in dispute, they are issued with a certificate confirming they took part in mediation. Alternatively the prospective appellant can speak to a mediation advisor, and be issued with a certificate confirming they do not want to participate in mediation. After this they can proceed to submit an application to the Tribunal. The appellant then has either two months from the date of the issue of the final EHC plan or one month after the issue of the mediation certificate (whichever is the later) to appeal to the Tribunal.
13. If an EHC assessment leads to a decision to issue a Plan the Council has a duty to issue it and to ensure the provision in the Plan is put in place.
14. Statutory guidance on Special Education Needs provision states that EHCPs must be reviewed at least once every 12 months. The guidance says that the Council’s decision following the review meeting must be notified to the child’s parent or the young person within four weeks of the review meeting.
15. Paragraph 9.179 of the statutory guidance says an EHC plan must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education, to allow for planning for and, where necessary, commissioning of support and provision at the new institution. It goes on to say the review and any amendments must be completed by 15 February in the calendar year of the transfer at the latest for transfers into or between schools.
16. The statutory guidance goes on to detail from paragraph 9.193 how amendments to an existing EHC plan should be carried following a review, or at any other time a local authority proposes to amend an EHC plan other than as part of a re-assessment.
17. Paragraph 9.194 says that where the council proposes to amend an EHC plan, it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. It says the child’s parent should be informed that they may request a meeting with the council to discuss the proposed changes.
18. Paragraph 9.195 confirms the parent must be given at least 15 calendar days to comment and make representations on the proposed changes, including requesting a particular school or other institution be named in the EHC plan.
19. Paragraph 9.196 says that after receiving any representations from the child’s parent, if the council decides to continue to make amendments, it must issue the amended EHC plan as quickly as possible and within 8 weeks of the original amendment notice.
20. Paragraph 9.78 of the guidance says the child’s parent or the young person have the right to request a particular school, college or other institution of a particular type to be named in their EHC plan. These include a maintained school and any form of academy or free school (mainstream or special), a non-maintained special school or an independent school or independent specialist colleges (where they have been approved for this purpose by the Secretary of State and published in a list available to all parents and young people).
21. Paragraph 9.79 goes on to say that if a child's parent makes a request for a particular school in these groups the local authority must comply with that preference and name the school or college 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.
22. Efficient education means providing for each child or young person a suitable, appropriate education in terms of their age, ability, aptitude and any special educational needs they may have. Where a local authority is considering the appropriateness of an individual institution, 'others' is intended to mean the children and young people with whom the child or young person with an EHC plan will directly come into contact on a regular day-to-day basis.
23. Paragraph 9.80 says the local authority must consult the governing body, principal or proprietor of the school or college 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 or college a copy of the draft plan.

What happened

24. Y is diagnosed with autism, has an EHC plan and was attending a non-maintained special needs school up to July 2019. This school was named on the EHC plan that was issued in 2017 and I understand he has been a pupil there since 2016. An annual review took place in June 2018.
25. The Council says it wrote to Mr G, and other parents in the same position, in mid-August 2018 to advise him about the process for identifying secondary school placements for children with an EHC plan who were due to transfer to secondary school in September 2019. It did so as Y was due to transfer to secondary school in September 2019. The letter advised Mr G that schools arranged open evenings for prospective pupils and says it enclosed a list of these. It went on to say that when Mr G had decided which school he wanted Y to attend he should complete an “expression of interest form” which it enclosed and that he should return this by 15 October 2018. It went on to say that as part of this process it would send Mr G a draft EHC plan which would be updated from the most recent annual review. It provided information about who he should contact at the Council if he needed advice on the process and finally advised that the final EHC plan naming the secondary school for September 2019 would be issued by 15 February 2019.
26. The Council proceeded to issue a draft amended EHC plan in September 2018. The cover letter sent with this asks for any comments on the draft to be provided in 15 days and confirms that Section I of the form is blank ie a school is not named, and asked Mr G to put forward the school he was interested in. It asked that if he was interested in an independent or non-maintained school for Y that he name this in the next 15 days.
27. In late October Mr G returned the form to the Council by email stating what his preferred secondary place for Y was. He expressed a preference for Q School which was the school Y was currently attending and which also provides secondary level education. The Council confirmed it had received this in late October.
28. The Council says it consulted with Q School and also with Z School which is the Council’s maintained special school. Z School contacted Q School to arrange to visit the school in order to complete an assessment in order that it could properly consider whether it could meet Y’s needs in order to respond to the consultation and offer a place. Q School did not agree to this telling Z School that Mr G had not consented and so a visit/assessment/observation could not go ahead. Based on information provided to us by an organisation Mr G consulted about the SEN provision, the reason Mr G had not consented was because he did not know why Z School wanted to see his son, having not been told either by the Council or Z School.
29. A further annual review of the EHC plan took place on January 2019. The Council then issued the final EHC plan on 4 February 2019 in order to meet the 15 February deadline for EHC plans for children due to transfer to secondary school in September 2019. The Council says it sent this by post. The final amended EHC plan I have seen named Q School until July 2019 and Z School from September 2019.
30. Q School sent the paperwork related to the January annual review to the Council on 7 March.
31. Mr G says he did not receive the final EHCP until 12 March. The Council says it is confident that it was posted to Mr G using the usual postal service on 4 February and says it cannot explain why Mr G did not receive it until 12 March. The Council also says that it has not been advised by any other parents sent an EHC plan for the transfer process on the same day, that this problem occurred.
32. The Council says it did not comply with Mr G’s request for Q School as it considered Y’s needs could be met in Z School and so to name Q School would not be compatible with ensuring the efficient use of resources. It clarified that the annual cost of a place at Q School is around £75,000 and a place at Z School is around £40,000. As it believed Z School could meet Y’s needs it therefore named Z School.
33. The Council says there were further conversations between Mr G and the Council and, following these, the Council re-issued the final amended EHCP in mid-April.
34. Mr G submitted a complaint to the Council by email on 18 March and the Council responded on 1 April. Within this response the Council confirmed that the deadline to submit an appeal to SEND tribunal was 4 April (as there is a two month deadline following the issue of the final EHC plan) but the Council confirmed it would agree to an extension if Mr G submitted a late appeal. Mr G replied on 2 April asking to escalate the matter to stage 2 of the complaints procedure.
35. Mr G visited Z School in early April but did not consider it suitable for Y. A meeting then took place with an officer from the SEN team around 9 April, after which Mr G contacted the Council again. The Council provide its response to the stage 2 complaint on 24 April. This refers to issuing the correct version of the final EHC plan around 12 April.
36. Mr G exercised his right of appeal to the SEN Tribunal in mid-August 2019. As I understand it the Tribunal is due to consider the appeal around December 2019.

Was the Council at fault and did this cause injustice?

Fault

37. Whilst I can see that the Council pursued a course of action intended to ensure it produced a final EHC plan naming which secondary school Y would be attending by the February deadline, I am concerned it did not follow the process as provided for in the relevant legal regulations as confirmed in the statutory guidance. Specifically I am concerned that:
• It did not comply with the requirement that the draft should be issued, comments invited on amendments and a final EHC plan issued within a further 8 weeks;
• At no point did the Council tell Mr G why it had not agreed to name the school he had asked for, nor did it discuss the school it named with him until it issued the final EHC plan. In its guidance note for parents, the Council says it will tell parents the reason if it does not name a school; and
• It did not give the Council the opportunity to consider the notes of the annual review meeting which had taken place only eight working days previously. It was in fact some weeks before the school issued the notes of that annual review meeting.

I consider these failings amount to fault.

38. Whilst I do not dispute Mr G’s assertion that he did not receive the final EHC plan until 8 March, I do not have evidence that it was not sent on 4 February as the Council says it was. I cannot say with any certainty that the reason for the delay was fault by the Council. It is possible, for example, that the delay was the result of a batch of post being delayed by the mail service. Such a problem would explain why both Mr G and Q School both received it late.
39. Mr G also alleges that he received a version of the final EHC plan that did not name Z School. The Council says this was not the case and suggests that he mixed up the draft and final versions. What does seem clear is that the correct version was sent to the School and that Mr G was aware that his preferred school was not named by 12 March.

Injustice

40. In considering injustice, I must focus on the injustice caused by the identified fault.
41. In relation to the plan issued on 4 February, I have detailed my concerns about this in the section above on fault. However, I am not clear these faults caused the injustice claimed by Mr G. I accept that the delay of just over a month in him receiving the final EHC plan delayed his right of appeal to the Tribunal but he did receive it in time to submit an appeal and to speak to the mediation service within the two month deadline of 4 April. He chose not to do this then and submitted a complaint to the Council instead. It was his right to do this but the Council had clearly told him of his right of appeal in the covering letter he received in March. As I have said above I do not have sufficient evidence to reach a clear decision that the delay in Mr G receiving the EHC plan in February was the result of fault by the Council.
42. Had Mr G appealed by 4 April it seems likely that any Tribunal hearing would have been heard in time for the new school year. In the event the Council re-issued the final amended EHC plan around mid-April. Had he appealed immediately then it may still have been the case that the Tribunal would have considered the appeal by the beginning of the school term in September. However, Mr G did not appeal until mid-August which was four months after the EHC plan was reissued and this has resulted in it not being heard until December. So, even if I had decided there was fault by the Council around the issuing of the EHC plan in February I would not consider that would have resulted in the delay in the matter going before the Tribunal.
43. Mr G has asked me to consider asking the Council to continue to provide education for Y at Q School until the end of the Autumn tern in December. I have explained to Mr G that we have no jurisdiction to consider Y’s school placement as this is a matter before the Tribunal for consideration. This is because we have no jurisdiction to investigate a complaint where a parent has appealed to the First Tier Tribunal from the date the appeal right arises until the appeal is completed. There are therefore no grounds on which I can ask the Council to continue providing he placement at Q School.
44. I do think that the failure by the Council to follow the proper process for amending the final EHC plan and to explain its reasons for not naming his preferred school caused Mr G injustice in the form of avoidable frustration and time and trouble.

Agreed action

45. The Council will apologise to Mr G and pay him £200 to recognise the injustice caused by its failure to follow the proper process to amend the final EHC plan and to explain its reasons for not naming his preferred school. It will do this within one month of the date of the final decision on the complaint.
46. In addition, within two months of the date of the final decision on the complaint, the Council will provide me with evidence to demonstrate how, in future, it will ensure that it:
• adheres to statutory timescales for amending and re-issuing existing EHC plans including those where a child is due to transfer to secondary school;
• tells parents the reasons if it is not naming a preferred school;
• considers whether it could find a way to ensure that parents receive final EHC plans where these have been posted, for example, by also emailing a copy, to avoid the situation that arose with Y’s plan, in other cases.

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Final decision

47. The Council was at fault in failing to follow the proper processes when amending Y’s EHC plan before issuing the final amended version. This caused injustice in the form of avoidable frustration and time and trouble but did not mean that Mr G could not have appealed to the Tribunal by the original deadline for this.

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Investigator's decision on behalf of the Ombudsman