Summary: Mrs B complains the Council has not arranged for her son, C, to attend a specialist provision in line with his Education, Health and Care Plan. Mrs B says consequently, C does not want to attend school and she has to take him home at lunchtimes. The Ombudsman has found fault with the Council for a delay in issuing C with an Education, Health and Care Plan and not making purposeful efforts to identify specialist provision. The actions of the Council have caused Mrs B and C injustice and the Ombudsman has recommended actions the Council should take to remedy this injustice.

The complaint

1. Mrs B complains the Council has not arranged for her son, C, to attend specialist provision in line with his Education, Health and Care Plan (EHCP).
2. Mrs B says consequently, C does not want to attend school and she has to take him home at lunchtimes.

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What I have investigated

3. I have investigated whether the Council delayed issuing an EHCP and made purposeful efforts to identify specialist education provision for C.
4. I have not investigated whether C missed any provision because of the Council’s actions. The final section of this statement contains my reason for not investigating this part of the complaint.

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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 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)
6. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended). SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
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.

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How I considered this complaint

9. I considered:
• Mrs B’s complaint and the information she provided;
• documents supplied by the Council;
• relevant legislation and guidelines; and
• the Council’s policies and procedures.
10. Mrs B and the Council had an opportunity to comment on a draft decision.

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What I found

Legislation and Guidance

Education Health and Care Plans and Provision

11. 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.
12. Section I states 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 EHCP, the type of school or other institution to be attended by the child or young person).
13. Parents and young people can appeal to the tribunal about the special educational provision specified and the school or other institution or type of school or other institution (such as a mainstream school/college) specified in the plan or that no school or other institution is specified (SEND Code of Practice 2015).
14. We cannot direct changes to the sections about education or name a different school. Only the SEND tribunal can do this.
15. When sending the final amended EHCP, the local authority must tell the child’s parent or the young person of their right to appeal and the time limit for doing so (SEND Code of Practice 2015).
16. Councils are responsible for making sure the arrangements in the EHCP are in place.

Council’s complaints procedure

17. I have set out below some key points from the policy.
18. Stage 1 – The responsible service responds to the complaint. The aim is to provide a full response within 10 working days.
19. Stage 2 – This stage deals with two types of complaint: those that have not been resolved at Stage 1 and those that are complex and need detailed investigation. The Council aim to provide a response within 20 working days.

What happened: Education, Health and Care Plans and Provision

20. Mrs B’s son, C, presents as having learning difficulties and is working at least two years below what is expected for a child of his age.
21. This chronology includes key events in this case and does not cover everything that happened.
22. C attends School D, a mainstream school.
23. In October 2017 the Council issued C’s final EHCP. The Council wrote in section I, “A specialist centre attached to a state funded mainstream school”. The letter sent by the Council to Mrs B with C’s EHCP told her about her right of appeal to the SEND tribunal and the time limit for doing so.
24. The Council consulted School E, a specialist school for children with language disorders and School F a mainstream school with a designated Learning and Additional Needs (LAN) Centre in October 2017. School E could not offer C a place. Mrs B visited School F and declined the place it offered C because of the time it would take him to get to and from school.
25. The Council consulted School G in December 2017; it could not offer C a place.
26. In January 2018, School H, a special school for children with learning and additional needs, offered C a place from September 2018. Mrs B declined this place because she did not want C to attend a school in that area and asked for C to remain at School D. The Council agreed 32.5 hours of funding a week to support C at the school.
27. The Council reviewed C’s EHCP in October 2018. In section I of the review form it said C’s education provision was, “mainstream – awaiting placement in specialist setting”. The Council review decided that since C’s 2017 plan his needs had changed and his current provision and placement was not suitable.
28. In May 2019, the Council consulted with Schools F and G. Neither school could offer C a place. School G commented, “Parents, school and the Local Authority representative agreed that, because of the changes in C’s emotional needs and his high levels of anxiety, he would be more appropriately placed within a specialist setting rather than in a specialist unit attached to a mainstream school.”
29. Mrs B met with the Council in June 2019 and asked it to consult with two schools, School J and School M.
30. In July 2019, the Council consulted two schools in a neighbouring county. School I, a special school for children who have a wide range of learning needs and disabilities, and School J a primary school for children who have learning difficulties and additional needs.
31. The Council says it also consulted Schools K, a specialist school for children with communication challenges and associated difficulties, and L, an independent specialist school for children with social, emotional, behavioural and mental health needs and social communication difficulties. There is no record of this or of the Council consulting with School M; an independent boys’ school.
32. Throughout this period, C has attended School D. Mrs B praises School D for the efforts it has made to try to meet C’s needs. However, Mrs B says because C has to attend education provision that is not suitable for his needs, he does not want to go to school. Mrs B says she had to stop working in July 2018 because of C’s school absence and having to bring him home for lunchtimes.

What happened: Complaint procedure

33. Mrs B complained to the Council in January 2019. The Council responded to Mrs B five months later in June 2019. The Council states the delay was because the SEN team had staff shortages. It has apologised for the delay and created a new position of Quality Manager to avoid this situation happening again.
34. By the time the Council had responded to Mrs B, she had made a complaint to the Ombudsman. Given the time it took for the Council to issue its stage 1 complaint response, the Ombudsman used its discretion and investigated the case before the Council’s complaint procedure was completed.

Analysis

35. When a Council names a type of provision in section I this should only be as an interim measure while it makes purposeful efforts to identify a school place. Between October 2017 and 2018, the Council consulted with four schools. Two of these schools offered C a place; both these placements were declined by Mrs B.
36. When the Council sent Mrs B the final ECHP in 2017, it told her of her right of appeal to the SEND tribunal. If Mrs B was unhappy the Council had not named a school, she could have appealed to the SEND tribunal.
37. In October 2018, the Council reviewed C’s EHCP. It decided C’s needs had changed since the last EHCP, and his placement and provision were not suitable. The Council should have issued a new EHCP. It did not. The Council says this is because it has not identified an education provider. Not issuing a new EHCP following C’s EHCP review in October 2018 is fault.
38. The Council should have issued an EHCP naming the type of provision in section I as an interim measure while it looked for a permanent placement. This would have given Mrs B the right of appeal to the SEND tribunal. Because a new EHCP was not issued, Mrs B was denied her right of appeal. This is fault.
39. Following the review meeting in October 2018, there is no evidence of the Council consulting with potential education providers until May 2019, some seven months later. The Council did not expand its search to other local authorities until July 2019, almost two years after C’s EHCP identified the need for specialist provision. The Council’s delayed action to find suitable education provision for C is fault.
40. This delay has contributed to C not being provided with suitable education provision since October 2018. Mrs B says C does not want to go to school, is often absent and she has to bring him home at lunchtimes. Mrs B says she has had to stop working as a result.
41. These faults are particularly disappointing as delay and failing to name a school in a final EHCP were two of the issues highlighted in the Ombudsman’s 2017 focus report, ‘Education, Health and Care Plans: our first 100 investigations’. In this report, the Ombudsman provided Council’s with advice about how to get things right; this does not appear to have been taken on board by the Council.
42. The Council took five months to respond to Mrs B’s stage one complaint; its aim is to respond within 10 working days. The delay in responding to Mrs B’s complaint is fault.

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Agreed action

43. Within one month of the final decision, the Council will:
• Apologise to Mrs B and C.
• Pay Mrs B £100 for the delay in responding to her complaint.
44. Within two months of the final decision, the Council will:
• Issue a new final EHCP for C.
• Train special educational needs staff on the EHCP procedure, including timescales.
• Review policies and procedures to ensure EHCP duties and timescales are met.
• Review commissioning arrangements to ensure there is enough specialist provision in place and present these findings to the relevant Council scrutiny committee.
45. The Council should provide the Ombudsman with evidence that the above recommendations have been completed.

Parts of the complaint that I did not investigate

46. I have not investigated whether C missed provision from October 2018 onwards. The Ombudsman cannot assess the impact of any delay on provision or recommend a remedy until the case has been decided by the SEND tribunal.
47. Once the Council has issued a new EHCP, Mrs B can appeal to the SEND tribunal. Mrs B can then return to the Ombudsman so any loss of education provision as a result of Council fault can be investigated.

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Final decision

48. I have completed my investigation and uphold Mrs B’s complaint. Mrs 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