Summary: Ms X complained the Council delayed in finalising her son’s Z’s, Education, Health and Care Plan. She said this caused her and Z distress and Z missed out on the special educational provision he needed. The Council was at fault when it took 36 weeks too long to finalise Z’s EHC Plan. This caused Ms X frustration because it delayed her appeal rights to the Tribunal. The Council has agreed to pay Ms X £150 and provide evidence of actions already taken to ensure it is meeting the statutory deadlines for Education, Health and Care Plans.

The complaint

1. Ms X complained the Council:
• agreed to make amendments to her son, Z’s draft EHC Plan, wait for a trial place at Ms X’s preferred school and wait for professional reports but then failed to do any of these; and
• delayed or failed to consult with relevant professionals, in particular an educational psychologist, when drafting Z’s EHC Plan.
2. Ms X said these faults resulted in the Council delaying issuing Z’s EHC Plan. She said this caused her and Z significant distress. In addition, she said the school Z attended during the EHC Plan process was unable to meet his special educational needs, causing Z additional distress.
3. Ms X also made a number of complaints about the actions of the school Z attended.

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What I have investigated

4. I have investigated the complaints in paragraph 1. I have not investigated Ms X’s complaints about the school Z attended because the Ombudsman does not have the jurisdiction to look at the actions of schools.

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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. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
7. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
8. Caselaw has established that where someone may appeal to SEND, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the contents of an EHC Plan or the type of educational placement it specifies, we cannot seek a remedy for lack of education after the date of the final EHC Plan. But, where there has been a delay in issuing an EHC Plan, the Ombudsman may consider whether any additional provision ordered by the Tribunal could have been made sooner but for the council’s delay. (R (on the application of ER) v The Commissioner for Local Government Administration [2014] EWCA Civ 1407).
9. 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)
10. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
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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How I considered this complaint

12. I spoke to Ms X and considered her view of her complaint.
13. I made enquiries of the Council and considered the information it provided. This included copies of Z’s EHC Plan, complaints correspondence and other communications between Ms X and the Council.
14. I considered the relevant statutory guidance including the Special Education Needs Code of Practice 2015 and the Education Act 1996.
15. I wrote to Ms X and the Council with my draft decision and considered their comments before I made my final decision.

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What I found

The law and statutory guidance

Education, Health and Care Plans

16. A child with special educational needs may have an EHC Plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. The Ombudsman cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
17. The Council must respond to all requests for an EHCP. It must decide whether an assessment is needed within six weeks of receiving the request.
18. If the Council decides to proceed with an EHC Plan, it has a duty to request information from certain professionals. These include:
• the current educational placement;
• health care professionals with a role in relationship to the child’s health;
• an educational psychologist (EP); and
• social care professionals.
19. These professionals must provide the information requested within 6 weeks.
20. The whole process from the point of request to the Council issuing the final EHCP must take no more than 20 weeks.

Jurisdiction

21. The Ombudsman has no jurisdiction where a parent has appealed to the Tribunal to investigate events from the date the SEN appeal right arises until the appeal is completed. Any loss of education or fault during this period which is a consequence of the decision being appealed is out of jurisdiction, even if this means the injustice will not be remedied.
22. In this case, Ms X’s appeal rights arose on 29 April 2019 when the Council finalised Z’s EHC Plan. Ms X’s appeal related to the special educational provision and educational placement named in Z’s EHC Plan. Therefore, I cannot look at complaints relating to these matters from this date because they are inextricably linked to her appeal. I can only look at events up to that date.
23. Sometimes where a parent approaches us after a successful appeal, we can say that, but for fault, the appeal would have happened earlier and remedy injustice for the earlier delay. We cannot remedy delay that occurs during the Tribunal process.

Background

24. Z has a number of conditions and is under the care of a specialist doctor for his main disorder. He used to attend a mainstream primary school but was then electively home schooled from Year 4. In September 2018, when Z entered Year 7, he began to attend secondary school, School M.
25. In September 2019, Ms X removed Z from School M. In November 2019, Z began to attend School P.

What happened

26. In May 2018, after a consultation with Z’s specialist doctor, Ms X asked the Council on the doctor’s advice to assess Z for an EHC Plan.
27. The Council agreed to assess Z’s needs. On 30 May 2018, the Council requested advice and information from a number of professionals including the Council’s children’s social care team, a consultant community paediatrician, a Speech and Language Therapist (SaLT) and an educational psychologist (EP). It also asked Ms X to comment.
28. Ms X provided comments for Z’s EHC Plan. She did not name Z’s current school, School M as her preferred choice. Instead, she named School B. The Council consulted with School B which said it was full and could not accept Z.
29. The Council issued a proposed draft EHC Plan on 31 August 2018. At this stage it had not received any information from the EP or the SaLT.
30. In September 2018, Z began to attend School M. This was the mainstream secondary school closest to Ms X’s address.
31. Ms X complained to the Council on 30 October 2018. She said that despite Z’s medical reports stating what support he needed, he was not receiving any special educational needs provision. She said the Council had failed to carry out checks to ensure Z was receiving the support he needed in school.
32. Ms X responded to the draft EHC Plan on 1 November with a number of amendments. On 16 November 2018, she emailed the Council and asked it to wait to finalise Z’s EHC Plan until it received the EP’s report.
33. On 7 November, the Council received a report from Z’s specialist doctor.
34. The Council replied to Ms X’s complaint in November 2018. It said it had received Ms X’s amendments but she had not specified which school she preferred. The Council asked Ms X to complain to the school if she was unhappy with the provision Z was receiving. It provided Ms X with the details of the relevant SEN Officer for her to contact if she remained unhappy.
35. In December 2018 and January 2019, the Council received information from the EP and Z’s specialist doctor. The Council also received information from a SaLT which the specialist doctor had referred Z to. Ms X also sent the Council new information about her views on Z’s EHC Plan.
36. In January 2019, the Council consulted with an occupational therapist (OT).
37. Ms X wrote to the Council in February 2019. She strongly disagreed with the EP’s report which she thought was inaccurate. She asked for amendments to be made. The Council also agreed to request a new EP report.
38. In March 2019, the Council held a meeting with Ms X to discuss Z’s EHC Plan. Ms X was supposed to be accompanied by a parental supporter. However, the supporter was ill and had to go home. The meeting went ahead and Ms X made a number of amendments to Z’s EHC Plan. These were marked up in yellow and green on a copy of Z’s draft EHC Plan.
39. The Council said that at the meeting Ms X confirmed School B remained her preferred educational placement. Because the school had said it did not have the capacity to accept Z, the Council said it could direct the school to take him. The Council says Ms X agreed to this course of action. Ms X says she agreed to wait for Z to attend a trial placement at School B before the Council directed it to take Z.
40. Following the meeting, the Council sent School B a direction letter to accept Z. The school said it could admit Z from September 2019. The Council took no further action to confirm a placement at School B.
41. On 16 April 2019, the Council issued Z’s finalised EHC Plan. This showed Z was academically either average or above average for his age. Because of a number of errors in the Plan, the Council reissued an amended finalised EHC Plan on 29 April 2019. The Plan named School M, Z’s previous mainstream school. On this date, Ms X’s appeal rights were triggered. Because Ms X went on to appeal both the provision and the school placement named in the EHC Plan, I cannot look at events after this date or any possible injustice.
42. Ms X informed the Council her preferred school for Z was now School P. In November 2019, before the Tribunal hearing, the Council agreed to name School P on Z’s EHC Plan.

My findings

Delays in issuing Z’s EHC Plan

43. The law says the process from the point of request for an EHC Plan to the Council issuing the final Plan must take no more than 20 weeks.
44. The Council received a request for an EHC Plan in May 2018. Although it consulted in a timely manner with professionals, the Council took no follow up action when some failed to respond. As a result, it did not receive responses for 7 to 8 months.
45. I cannot say that if the Council did chase the professionals for the information requested, they would have provided it within the required timescales. However, its lack of oversight of the situation led to drift in the process.
46. There is no evidence the Council consulted with Z’s specialist doctor at that time, even though his condition was likely to affect his schooling. The Council’s delay in consulting with this professional was not in line with the statutory guidance and is fault. However, because the Council did not receive responses from the other professionals until around the time it received the specialist doctor’s report, this did not result in any significant impact on events.
47. I accept that Ms X provided comments three times between January and March 2019 and also requested a new EP report. This caused delays in the process. However, the Council had the option of issuing a final EHC Plan without Ms X’s express agreement to the content. This would then have allowed her to appeal any outstanding issues.
48. As a result of letting the matter drift, it took around 56 weeks for the Council to finalise Z’s EHC Plan which is substantially longer than the statutory guidance of 20 weeks. This is fault.
49. When we identify fault, we look to identify any injustice this fault caused. In doing so, our aim is to put the person back in the position they would have been in had the fault not occurred.
50. The fact Z required special educational provision is not in question. However, the evidence demonstrates that from September 2018 to April 2019, Z continued to attend school and his educational attainment remained consistent and above average. Ms X was concerned with the actions of the school and said it failed to take appropriate steps to protect Z from bullying but these were the responsibility of the school and not the Council. I cannot investigate the actions of the school.
51. Furthermore, I cannot say, even on balance, that if the Council had met the statutory deadlines, it would have made the same decision to agree to Ms X’s preferred placement at School P. This is because I cannot say if, or to what extent, it believed the delays created any increased needs it felt it should consider. I also cannot say that if the case had gone to Tribunal earlier, it would have named School P.
52. However, Ms X is left with uncertainty over whether Z may have attended School P earlier had the delays not occurred. Her appeal rights were also delayed because of the Council’s fault.

March 2019 meeting – amendments to the EHC Plan and agreement to direct School B

53. Ms X complained the Council failed to action amendments she suggested at the meeting in March 2019. I have seen copies of the green and yellow amendments made by Ms X and her parental support worker and Z’s finalised Plan. The amendments have been incorporated. There was no fault in the Council’s actions.
54. The Council and Ms X disagree what happened at the meeting in March 2019. Ms X said the Council agreed for Z to attend on a trial basis before directing the school. The Council says Ms X agreed for it to direct the school straightaway.
55. I cannot know what was agreed at the meeting in March 2019. However, it is unlikely Ms X or Z were caused an injustice. This is because Z did not attend School B because Ms X decided it would not be suitable because it was full. I will not investigate this matter further.

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Agreed actions

56. Within one month of the date of the final decision, the Council has agreed to pay Ms X £150 to acknowledge the uncertainty and frustration caused by the Council’s faults.
57. Within three months of the date of the final decision, the Council has agreed to provide evidence of the actions it is taking to ensure EHC plans are being completed within the statutory timescales.

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Final decision

58. There was fault leading to injustice. The Council has agreed to my recommendations. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman