Summary: Ms X complained about delay in issuing her son’s Education Health and Care Plan following a review, and failure to communicate with her properly. The Ombudsman finds there was delay and poor communication. The Council has agreed a suitable remedy.

The complaint

1. Ms X complained that the Council:
1. delayed in issuing her son's final Education Health and Care Plan and in identifying a new school place for him following an Annual Review meeting in March 2019; and
2. failed to communicate with her properly throughout the process.
2. As a result she says her son was out of school for longer than necessary, and his anxiety increased. Also it delayed her right of appeal and caused her and her family confusion, distress and anxiety and meant she had to put time and effort into pursuing her complaint.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. Once the person has appealed we cannot investigate the matter. (Local Government Act 1974, section 26(6)(a), as amended)
6. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))

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How I considered this complaint

7. I discussed the complaint with Ms X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I considered relevant law and guidance on provision for special educational needs. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a 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

Education Health and Care Plans

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. 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.
    
10. A parent may appeal about the educational support and placement in the EHC Plan and about a decision not to amend a Plan following an Annual Review.
     
11. There is statutory guidance 'Special educational needs and disability Code of Practice: 0 to 25 years' which sets out the process for carrying out EHC assessments and issuing and reviewing EHC Plans.

Reviews

12. Councils must review EHC Plans at least every 12 months, but may carry out a review earlier.
13. The council must write to the child's parent or the young person within four weeks of the review meeting to say whether it proposes to keep the EHC Plan as it is, amend it or end it.
14. If the council decides not to amend the EHC Plan it must write to the parent or the young person with its decision and tell them about the right of appeal.

Consulting schools

15. Parents have the right to ask for a particular school to be named in the EHC Plan. The Council must agree to the request unless:
• it would be unsuitable for the age, ability, aptitude or special education needs of the child; or
• attending the school would be “incompatible with the efficient education of others or the efficient use of resources”.
16. Councils must consult the school and consider its comments very carefully before deciding whether to name it in the child’s EHC Plan.

Background

17. Ms X and her partner have a son, Y, now aged 13, who suffers from high levels of anxiety. Y has an EHC Plan. From September 2018, although his EHC Plan named a mainstream secondary school and he was on roll at School 1, he did not attend. Instead he received home tuition arranged by the Council. Ms X asked the Council for a specialist school placement for Y. During 2018 and early 2019 there were discussions with the Council, consultation with schools and school visits but the Council did not agree to name a specialist school in the EHC Plan.

Events from March 2019

18. At the Annual Review meeting on 22 March 2019 Ms X asked for a change of placement to a specialist school, School 2. The meeting agreed School 1 was no longer an appropriate placement and Y was “not ready to be included in a mainstream environment”. It recommended that the EHC Plan should be amended. The Council received the report from the Annual Review meeting on 1 April.
19. The Council considered the request for School 2 at the Local Management Team meeting at the end of April. It decided that as a previous consultation with School 2 had not been successful, the Council needed to obtain more up-to-date information from the tuition service before consulting the School again.
20. The Council received a report in early June but did not consider it was detailed enough to support a second referral to School 2.
21. On 25 June 2019 Ms X wrote to the Council to say she had not had any decision following the Annual Review in March. She received emails about changes of staff.
22. A few days later the Council asked for a more detailed report from the tuition service and when it received this it consulted School 2 on 1 July 2019. The same day the Council sent an email to Ms X to tell her it had consulted School 2 and would let her know the outcome.
23. On 4 July the Council received a response from School 2. The School said it could not meet Y’s needs and could not offer him a place. The Council referred the case to its Complex Casework Forum to consider a suitable placement. The Forum meeting took place on 9 August. It decided to have a further discussion with School 2 and obtain more information from the tuition service.
24. As Ms X had not heard any more from the Council by 28 August she sent an email asking for an update. She said it had been five months since the Annual Review meeting and she had not received a decision allowing her the right of appeal.
25. Ms X had further discussions with SEN officers involved in her son’s case. They told her School 2 had said Y did not meet their criteria as he did not have a diagnosis of autism. They also said they would contact another specialist school, School 3. School 3 agreed to assess Y to see if a placement there would be suitable for him.
26. The Council wrote to Ms X on 5 September 2019 with its decision following the Annual Review. The letter explained that School 2 had responded to the consultation to say it could not meet Y’s needs. It said the Annual Review report it had received from School 1 did not recommend any amendments to the needs or the provision in the EHC Plan. So the Council did not propose to make any changes to the Plan. It said it would continue to provide home tuition for Y and look for a special school placement. The letter offered Ms X the right of appeal.
27. During September and October 2019 Ms X visited School 3 with Y and he had observation and tuition sessions there.
28. In November and December 2019 there were unsuccessful attempts to arrange a mediation meeting to discuss Ms X’s concerns about finding an appropriate placement.
29. Ms X made a formal complaint to the Council in mid-November 2019. She set out the history of the difficulties she had had in pursuing her request for a specialist school place in 2018 and early 2019. She complained about the delays and lack of information about the decision not to name a specialist school following the Annual Review meeting in March 2019. She also complained about the arrangements for the tuition sessions while she was considering School 3. She said if the Council could not address her concerns through mediation she would appeal.
30. The Council replied in early December 2019. It apologised for the “apparent delays” in securing a long-term placement that could meet Y’s special educational needs. It explained it had had to cancel one mediation meeting because of staff sickness but would arrange another meeting as soon as possible. It explained that it would formally consult School 3 if Y’s level of engagement with the sessions improved.
31. Ms X appealed to the SEND Tribunal on 6 January 2020.
32. In February 2020 the Council agreed to consult the specialist school Ms X identified as suitable, School 4. This is an independent specialist school for pupils with social, emotional and mental health difficulties offering placements from Year 9 onwards. Following communication between Ms X, School 4 and the Council, School 4 offered Y a place from September 2020 when he would be moving to Year 9. Ms X withdrew her appeal and the Council issued a final amended EHC Plan naming School 4 in July 2020.

Analysis – was there fault causing injustice?

33. To meet the statutory timescales the Council should have written to Ms X with its decision as to whether to amend the EHC Plan within four weeks of the Annual Review meeting. So the deadline was 19 April 2019. The Council sent the notice saying it would not amend the EHC Plan and offering the right of appeal on 5 September, over four months late.
34. The Council has explained the reasons for the delay. It says it received the Annual Review paperwork a few days before the end of the spring term. The request for the change of placement had to go to the Local Management Team which normally meets every week, but may not be able meet as often during the school holidays. It said once the Team meeting took place at the end of April after the start of the summer term, there were delays in obtaining the information it needed from the tuition service. Then it says the Complex Casework Forum the case was referred to met during the school summer holidays. This meant it could not follow up on the decision to contact School 2 again until September 2019. So it says it wrote to Ms X in early September with the decision not to amend the EHC Plan to name School 2.
35. Nevertheless the failure to meet the required timescale is fault. Also there were periods when the Council could reasonably have taken action to progress matters more quickly despite the school holidays. For example it took nearly four weeks to seek further information from the tuition service after receiving the first report. If the Council had sent the notice in time with a decision not to amend the Plan to name School 2 without completing the consultation Ms X would have had to appeal. She would have been able to appeal earlier, but this would not necessarily have affected the outcome for Y. I cannot say that any appeal would have resulted in a place at School 2 as this School was saying it could not meet Y’s needs. Once School 2 had declined to offer Y a place, Ms X’s preferred school, School 4, was not able to take Y before September 2020 when he went into Year 9. Appealing earlier would not have made a difference to the start date.
36. Y continued to receive home tuition throughout the period of delay and Ms X is not complaining about lack of education during this time. The main change in the final amended EHC Plan issued in July 2020 is the named placement. So Y did not miss out on any additional special educational needs support he would otherwise have had while waiting for the final Plan.
37. However in my view the Council was at fault in failing to keep Ms X informed about progress and involve her in decisions. It did not tell her about the actions it was taking or the reason for the delays. It did not discuss the possibility of considering any other school placements or the option of issuing the decision following the Annual Review without having completed the consultations so she could appeal. It did not contact her until after she had chased the Council in late June and again in late August 2019 asking for updates. I do not know whether with better communication Ms X might have wished to consider other schools earlier or appeal earlier. But the lack of information led to unnecessary anxiety and concern and meant she had to put time and effort into following up matters with the Council.

Agreed action

38. The Council has agreed that within one month of the decision on this complaint it will take the following action:
• apologise to Ms X for the faults found; and
• pay her £250 to recognise the avoidable frustration and anxiety and time and trouble caused by the delays and poor communication.
39. The Council has also agreed that within two months it will take steps to ensure staff keep families informed of progress in the EHC process and explain the reasons for any delays. They should ensure they discuss the options with parents in case they wish to appeal before the consultation with schools is complete. The Council will tell the Ombudsman what action it has taken.

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Final decision

40. I have found fault by the Council causing injustice to Ms X. I am satisfied with the action the Council has agreed to take to remedy the injustice caused and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman