Summary: Mr X complained that the Council failed to put in place the support in his grandson’s Education Health and Care Plan, and failed to deal with his complaint properly. The Ombudsman finds there was no failure to arrange the provision. Mr X’s daughter decided not to send her son to the school named in the Plan while she appealed. There was some delay in the complaint handling but the Council has apologised for this. This is a sufficient remedy.

The complaint

1. Mr X complains on behalf of his daughter about the way the Council dealt with his grandson’s Education Health and Care (EHC) Plan. He complains that the Council:
1. Failed to obtain up-to-date assessments and failed to consult the parents when considering a change of school placement;
2. Cancelled funding for the place at his grandson’s school when it named a new school in the final EHC Plan and would not allow the child to continue at the previous school pending his parents’ appeal about the named placement;
3. Failed to put in place the support set out in the EHC Plan during the period of the appeal;
4. Failed to follow up on a promise made in September 2016 to investigate problems with the original EHC assessment;
5. Used inaccurate costings when deciding which was the appropriate school to name in the EHC Plan.

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What I have investigated

2. I have investigated the following complaint:
3. Mr X complains on behalf of his daughter that the Council:
1. failed to put in place the support set out in his grandson’s Education Health and Care Plan while she was appealing about the named placement. As a result he says his grandson missed out on education and therapies he should have had.
2. failed to deal adequately with his complaint.
4. I explain at the end of this statement why I have not investigated the other parts 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. 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)
7. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
8. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (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’))
10. Caselaw has established that where someone may appeal or has appealed to the SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC Plan we cannot seek a remedy for lack of alternative education after the date of the final EHC Plan. (R (on the application of ER) v The Commissioner for Local Government Administration [2014] EWCA Civ 1407).

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How I considered this complaint

11. I discussed the complaint with Mr X and considered the information he provided. I considered the information the Council provided in response to my enquiries. I considered relevant law and guidance on Education Health and Care Plans. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Education Health and Care Plans

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 education, or name a different school. 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.
14. If a child’s parent or a young person asks for a particular education placement to be named in the EHC Plan the council must agree with that request unless:
• it would be unsuitable for the age, ability, aptitude or SEN of the child or young person, or
• admitting the child or young person would be incompatible with the efficient education of others, or the efficient use of resources.
15. The local authority must consult the school or college concerned and consider their comments very carefully before deciding whether to name it in the EHC Plan. Where a school is named in an EHC Plan it must admit the child.
16. Local authorities have a duty to ensure the special educational provision set out in an EHC Plan is arranged. (Children and Families Act 2014 section 42)

Council’s complaints policy

17. Under the Council’s complaints policy it will:
• acknowledge a complaint within three working days
• investigate and respond to the complaint within 20 working days
• if the complaint is more complex and may take longer to investigate, advise the complainant and explain why this is and when it is likely to respond.
18. The complaints policy does not apply where there is a right of appeal to a tribunal to address the concern.

What happened

19. Mr X’s daughter, Ms Y, has a son, K, aged 15. K has speech, language and communication difficulties and learning difficulties. He has an EHC Plan.
20. K was attending an independent specialist school, School 1, but after concerns about the running of the school the Council offered parents the opportunity to ask for a change of placement. Ms Y asked for a change of placement in December 2018. At that time the support set out in K’s EHC Plan included various teaching strategies as well as the following therapies to be provided each week:
• a speech and language therapy session with a qualified therapist
• a 1:1 session for psychological support either with an Educational Psychologist or a school counsellor
• a 45-minute session with an experienced Occupational Therapist.
21. Ms Y looked into alternative school placements and identified one she considered suitable. This was School 2, an independent specialist school. She asked the Council to name this school in K’s EHC Plan.
22. The Council consulted School 2 and another school it considered suitable, School 3, a maintained specialist school. In response to the consultation both schools confirmed they would be able to meet K’s needs. Ms Y told the Council she did not want School 3 named in her son’s EHC Plan. However the Council advised her it would be amending the EHC Plan to name School 3 as the placement. This was because it considered both schools could meet K’s needs but School 3 would represent a better use of resources. It said this meant it would give notice to School 1 to end the placement there and K would be placed on roll at School 3.
23. On 1 February 2019 the Council issued a final amended EHC Plan naming School 3. It did not send a copy of the final Plan to School 3.
24. Ms Y visited School 3 on 4 February and told the School it had been named in K’s EHC Plan. School 3 was not aware of this and contacted the Council about it on 10 February. The Council confirmed its decision and asked the School to contact Ms Y to arrange a start date for K after the February half-term.
25. Ms Y appealed to the SEND Tribunal on 19 February 2019. She did not disagree with any of the provision in the EHC Plan, only the named placement.
26. On 26 February Ms Y sent an email to the Council saying K had no start date at any school and funding had ended for him at School 1. She said School 3 could not meet his needs and her son was now out of school. When the Council contacted School 3 it said it had contacted Ms Y during the half-term break to make the arrangements but she had made it clear she would not be sending K to School 3. The School said it did not want to allocate a place for K as Ms Y had no intention of sending him there. But it considered it could meet his needs and would support the Council in the appeal.
27. The Council wrote to Ms Y on 28 February to confirm it had discussed the position with School 3 and it had confirmed it could meet K’s needs. It also said its therapy commissioning service had confirmed all the therapies set out in K’s EHC Plan could be provided at School 3.
28. Ms Y did not send K to School 3.
29. The Tribunal hearing took place in June 2019. Ms Y’s appeal was successful and the Council issued an amended EHC Plan naming School 2, as directed by the Tribunal. K started at School 2 in September 2019.

History of complaint

30. In February 2019 Mr X made a complaint to the Council on behalf of Ms Y disagreeing with the proposal to name School 3 in his grandson’s EHC Plan. He asked the Council to allow K to stay at School 1 pending the outcome of the appeal. Otherwise he said there would be no option but to educate K at home.
31. The Council responded in March saying the issue he had raised was a matter for the tribunal rather than the complaints process.
32. Once the appeal process was over Mr X made a complaint again in late June 2019. He referred to events in 2016, and questioned the Council’s decision to name School 3 in the EHC Plan. He also said when he had asked for K to stay at School 1 the Council told him this would involve double funding of a school place and so it was not an option. But he said this was not the case as K was never placed on roll at School 3 and so there would not have been any double funding. He asked why the Council did not allow K to return to School 1. He disputed costings as discussed at the Tribunal hearing.
33. The Council received the complaint on 2 July and responded on 16 July, saying most of the issues had been dealt with through the appeal process. Regarding the double funding issue the Council said it believed School 3 had placed K on roll but it later emerged it had not, although it was holding a place for him during the appeal process.
34. There was further correspondence during July and August. The Council said it would not comment further as all the issues had been dealt with through the appeal process. On 9 August Mr X wrote to the Council again with the same issues. The Council says it did not receive his letter until 29 August after he had sent it again.
35. Mr X wrote again on 19 September pursuing the same issues including the events of 2016. He also said the Council had not properly addressed why K could not have stayed at School 1. He said K lost 17 weeks of education and support as a result.
36. The Council replied on 30 October, apologising for an administrative error which meant his complaint in September had not been passed to the right people which led to the delayed response. The Council repeated its previous position and said this was its final response.
37. Afterwards Mr X asked for copies of K’s case records on behalf of his daughter. He saw a copy of an entry from mid-January 2019 in which an officer in the SEND team said the Council would need to keep K at School 1 until it issued the final EHC Plan when the appeal concluded. Mr X’s view was that K should have remained at School 1 and would then have received the support set out in his EHC Plan.

Analysis – was there fault causing injustice?

EHC Plan provision

38. Once a council has issued a final EHC Plan it is under a duty to arrange the provision in the Plan. The Council confirmed to Ms Y that all the therapies had been arranged to take place at the school named in the Plan. However Ms Y decided not to send K to that school while she appealed for a different placement. Once a school is named the Council would expect the child to attend that school, even if the parent is appealing. There was no obligation on the Council to provide education elsewhere unless the child was out of school because of agreed medical reasons. This was not the case here. The Council complied with its duty to arrange the provision, and K would have received the support if he had attended School 3.
39. I cannot consider the Council’s decision to name School 3. It is not for the Ombudsman to say which school is suitable for a child. That is a matter for the Tribunal. Also, because of the law and caselaw referred to in paragraphs 8 and 10 above, I cannot consider the matter of alternative provision once Ms Y appealed.
40. Mr X has referred to the document he has seen saying K should have been allowed to stay at School 1 and the point made about K not being placed on roll at School 3 to support his view that K should have been able to stay at School 1 while Ms Y was appealing for another school. However this is not the case. The Council is right to say that once a school is named in an EHC Plan from a certain date, funding for the place at the previous school should end from that point. It has confirmed the officer who suggested otherwise was mistaken and it has raised the issue with them. The Council has accepted it was not aware at first that K was not on roll at School 3. Once it knew it asked School 3 to make arrangements to admit K. Any error here would not have prevented K starting at School 3. He did not start at School 3 because Ms Y decided not to send him there. The place available for him, the therapies were arranged and he could have attended if Ms Y had sent him there.
41. The Council had the power to take enforcement action to ensure Ms Y sent K to School 3. But it has explained that it does not consider it appropriate or in the public interest to prosecute parents in these circumstances. Nor would Mr X or Ms Y have wanted it to do so.
42. So, for the reasons given, I do not find the Council at fault in failing to provide the education and support set out in K’s EHC Plan.

Complaint handling

43. The correspondence I have seen shows there were delays on two occasions in responding to Mr X’s complaints. One occurred because the Council did not receive his letter, and the second as it failed to pass the complaint on to the relevant person. The Council responded to the complaints and apologised for the delay. Overall I consider the Council’s response was satisfactory. It confirmed it could not deal with most of the issues raised under the complaints policy as they were considered through the appeal process. This is an appropriate response. I do not consider there was significant fault in the Council’s complaint handling causing an injustice to Mr X or requiring any further remedy. The apology is sufficient.

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Final decision

44. I do not uphold this complaint as I have not found that the Council failed to arrange the provision set out in Mr X’s grandson’s EHC Plan, and I find no significant fault in the complaint handling justifying any further remedy.

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Parts of the complaint that I did not investigate

45. I did not investigate parts a) and e) of the complaint as these are both matters bound up with the appeal to SEND. Mr X has complained about lack of up-to-date assessments which resulted in the Council deciding to name a school in the EHC Plan the parents disagreed with. They used their right of appeal against this decision and so the matter is outside the Ombudsman’s jurisdiction. Similarly the dispute about costings was part of the decision about the named school. It was dealt with as part of the appeal to the SEND Tribunal and is outside the Ombudsman’s remit.
46. I did not investigate part d) of the complaint because the complaint is late. It concerns a promise the Council made in September 2016. Mr X did not raise the issue with the Council again until February 2019. This is more than two years after the events he complained about. I consider he could reasonably have complained to the Council and then to the Ombudsman before twelve months had passed. So this part of the complaint is outside the Ombudsman’s remit.

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Investigator's decision on behalf of the Ombudsman