Summary: Mrs F complains the Council delayed notifying her of its decision not to issue an Education, Health and Care Plan for her daughter. The Council has accepted there was a delay and has already apologised. This is a suitable remedy for the injustice caused.

The complaint

1. Mrs F complains the Council delayed notifying her of its decision that an Education, Health and Care Plan for her daughter was not necessary. Mrs F says this meant she lost the opportunity to appeal to the Tribunal, her daughter did not have a suitable school place and she had to give up work to home school.

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The Ombudsman’s role and powers

2. 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)
3. 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. (Local Government Act 1974, section 26(6)(a), as amended)
4. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
5. 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)
6. 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

7. I spoke to Mrs F about her complaint and considered the Council’s response to my enquiries and:
• the Special Educational Needs and Disability Code of Practice 2015 ("the Code")
• the Special Educational Needs and Disability Regulations 2014 (“the Regulations”)
• the School Admissions Code 2014
8. Mrs F 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

Special educational needs

9. A child with special educational needs may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
10. A parent can ask a council to carry out an assessment if they think their child needs an EHC plan. If the council refuses, the parent can appeal to the SEND Tribunal.
11. Where the SEND Tribunal requires the council to make an EHC needs assessment the council must start the process within two weeks. following the assessment, if the council decides not to issue an EHC plan, they must notify the parent within 10 weeks of the SEND Tribunal’s order. The Regulations say that councils are exempt from complying with this timescale if it is impractical to do so because it has requested advice from a school the week before the school summer holiday.
12. Parents have a further right to appeal to SEND about the council’s decision not to issue a plan. Appeals should be made within two months of the council’s decision. The Tribunal Judge may allow an extension if there are special circumstances which prevented the appeal being made in time and it is fair and just to do so.

What happened

13. Mrs F’s daughter, J, has physical disabilities. Mrs F asked the Council to assess her EHC needs but it refused. Mrs F appealed to SEND which ordered the Council to assess J on 27 June 2019.
14. J left her independent primary school in July 2019 at the end of Year 6. She was offered a place at School X, a mainstream state secondary school in another council area, for September 2019 admission. Mrs F did not consider School X to be suitable as it was too far from their home. She asked the Council for an alternative. The Council said immediate placements could be offered at two other schools closer to home, but Mrs F did not consider them to be suitable for J. The Council also offered to provide transport to School X but Mrs F did not respond.
15. As part of the EHC needs assessment, the Council asked J’s primary school for advice on 2 August 2019. On 10 September 2019 Mrs F told the Council she would be home educating J.
16. Following the EHC needs assessment, on 21 November 2019 the Council decided an EHC Plan was not necessary for J. It says it issued a notification letter to Mrs F on 11 December 2019.
17. Mrs F complained to the Council on 21 December 2019 that it had not yet formally notified her of its decision, meaning she was unable to appeal. She also complained she had been forced to state that J was electively home schooled because the Council had not offered a suitable school place.
18. The Council replied to Mrs F’s complaint on 24 January 2020. It said following the multi-agency statutory assessment panel’s decision on 21 November 2019 to decline to issue an EHC plan its normal practice was to call parents and post the decision on its portal. The Council apologised this had not happened. The Council did not agree that Mrs F had been forced to home school J.
19. Mrs F remained dissatisfied and complained to the Ombudsman. She said the Council had not provided her with any appeal or mediation information and she had not been able to use mediation due to the date on the letter from the Council. Mrs F said the Council had not offered J a school place; a place had been offered by a neighbouring council for a School X, which was 20 miles away and unsuitable.
20. The length of our investigation was affected by the coronavirus pandemic. Following her contact with us, Mrs F made a late appeal to SEND. Her appeal was not upheld in September 2020.

My findings

21. When we contacted the Council it accepted it had no evidence it had sent the EHC plan notification letter and it sent this to Mrs F on 5 March 2020.
22. The order to assess was made by SEND on 27 June 2019, this meant notification should have been issued by 5 September 2019. However, the Council did not need to meet this deadline as it had sought advice from J’s primary school during the school summer holiday. It made its decision not to issue the plan in November 2019 and says it issued a letter on 11 December 2019. There is no evidence this was received. Mrs F raised the matter in her complaint of 21 December and the Council has accepted it could not say for sure the letter was sent until we made contact in March 2020. This is fault.
23. The delay caused an injustice to Mrs F as it meant she lost her opportunity to appeal to SEND in early 2020. However, the injustice is lessened as the Tribunal accepted her late appeal. I must also consider that the Tribunal did not uphold her appeal, so there was no injustice caused to J by the hearing being held late. The Council has already apologised for not issuing the letter and I consider this a suitable and proportionate remedy for the injustice caused.
24. Mrs F complains the Council did not offer J a suitable school place. J was offered a place at School X by another council. I understand Mrs F did not wish to send J to School X, but that is not evidence it was an unsuitable school and I note School X was one of her preferences. The Council processes all school applications for its residents. If parents apply for schools outside their Council’s area the other local authority will advise whether a place in their school can be offered. There was no fault by the Council.

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Final decision

25. There was fault by the Council. I am satisfied the actions the Council has already taken remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman