Summary: There was a delay in an assessment for an Education and Healthcare (EHC) plan because of a quarantined email but there is not enough information to determine what happened and if there was fault. The Council issued an EHC plan within 20 weeks. The fact that it did not name a school was not fault and Mr X appealed the contents of the EHC plan to a tribunal.

The complaint

1. The complainant, who I shall call Mr X, complains the Council did not tell the sender of a quarantined email that the Council department had not received the email. Mr X says that this delayed the EHC plan needs assessment.
2. Mr X also complains there were delays identifying a suitable school during the EHCP process. Mr X said that these delays meant that his child did not start school until October, so missed a month of provision while he remained at nursery.

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The Ombudsman’s role and powers

3. 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 can consider the other sections of an EHC plan. We do this by checking the Council followed the correct process, and took account of all relevant information, in deciding what to include. If we find fault affected the outcome, we may ask the Council to reconsider. We will not usually substitute our judgement for the judgement of professionals.
5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. 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, section 34(3), 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)

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How I considered this complaint

7. I read the papers put in by Mr X and discussed the complaint with him.
8. I considered the Council’s comments about the complaint and any supporting documents it provided.
9. 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

Quarantined Email

10. A school emailed the Council in June 2019, with a request to assess Mr X’s child’s needs for an EHC plan. It was later found out the email went into quarantine by the Council’s email system so was not received.
11. In its response to Mr X’s stage 3 complaint, the Council said the school’s email of June 2019 was responded to with an automatic email message to say the email was in quarantine and she could forward it or resend it. The school have said that they do not remember receiving this. Unfortunately, the school did not chase this up. This was possibly because the decision to assess, made after 6 weeks, would have happened in the school holidays.
12. In response to my enquires, the Council said that ‘the receipting user is always sent an email advising them an email has been received and has been quarantined and will advise the reason why. This comes from security and they will need to ask them to release the email if they were expecting the email’. The Council only retains quarantined emails for a year, so there is no way to know for sure what happened in this case.
13. I have looked at all the information there is available. There is not enough evidence to decide what happened so I cannot reach a view on this point. There is no evidence a quarantined email was received by the Council as the events complained about happened too long ago. I am also not able to investigate why the school did not follow up when it did not receive an acknowledgement from the Council, as schools are outside the Ombudsman’s jurisdiction. As part of the assessment process, the school and parents would have expected to be asked for comments.

Delays identifying a school

14. The Council received a request for an EHCP needs assessment on 16 October 2019 from the school. The Council issued the final EHC plan on 28th February 2020, within 20 weeks. There is no evidence of fault in the time taken to issue the final plan.
15. Mr X complains the Council issued the final plan without naming a school. Mr X appealed the final plan, but a placement was agreed before the appeal. His child started at his school in October 2020. This was not Mr X’s preferred school as this school said it could not meet Mr X’s child's needs. Mr X explained that his child stayed at Nursery until the place at the new school place was available, which did mean that they missed a month of the provision in the EHC plan.
16. I understand that Mr X would have preferred the EHC plan to have named a school in February 2020. Parents can request the Council name a particular setting on the plan. Councils must comply with the request unless it would be unsuitable for the age, ability, aptitude or SEN of the child, or the child’s attendance there would be incompatible with the efficient education of others (that is, other children the child will come into regular contact with), or the efficient use of resources.
17. Councils must consult with the parents’ preferred setting and the setting has 15 days to respond. In this case, the Council issued the EHC plan without a named school and carried out the consultation afterwards. The law does allow the Council to name a type of school in a final plan and this decision carries a right of appeal to the Tribunal. While I appreciate this was not ideal for Mr X, we would criticise a Council for not issuing an EHC plan within 20 weeks as the parents do not have a right of appeal until the Council issues the EHC plan. So, I am not convinced that naming a type of school caused injustice to Mr X.
18. Mr X appealed against the EHC plan and during this time the Council consulted with Mr X preferred schools. Two of these schools said they could not meet Mr X’s childs needs but one did, the school which Mr X’s child now goes to. I have not seen evidence of significant delay by the Council that caused injustice to Mr X.

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Final decision

19. I have completed my investigation. This complaint is not upheld as there is no evidence of fault.

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Investigator's decision on behalf of the Ombudsman