Summary: Ms X complains the Council failed to find her son Y a suitable school placement, failed to offer appropriate education and then delayed making the school available for him to attend. Ms X complains the Council delayed making necessary changes to Y’s Education, Health and Care Plan (EHCP). The Council has accepted it was at fault in delaying making the school available. It has apologised and taken suitable action including providing a tutor. We found fault as the Council also delayed issuing an amendment to the EHCP. The action taken by the Council has remedied any injustice caused to Ms X and Y, so we have completed our investigation.

The complaint

1. The complainant whom I shall refer to as Ms X complains the Council failed to find her son Y, a suitable school placement, failed to offer appropriate education and then delayed making the school available for him to attend. Ms X complains the Council also changed caseworkers with no notice and delayed making necessary changes to Y’s EHCP.
2. Ms X says the time out of school has impacted on Y’s learning and caused distress to him and the family.

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What I have investigated

3. I have investigated Ms X’s complaints about the Council’s actions in finding a school placement for Y, the education offered and delay in making the school available for him to attend. I have also considered Ms X’s concerns about delays in amending Y’s EHCP. I have explained within the statement my reasons for not investigating Ms X’s concerns in 2017 and where she has the right to appeal to the SEND Tribunal.

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The Ombudsman’s role and powers

4. 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.
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. (Local Government Act 1974, section 26(6)(a), as amended). SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
6. 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)
7. 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)
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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How I considered this complaint

9. I have read the papers submitted by Ms X and spoken to her about the complaint. I considered the Council’s comments on the complaint and the supporting documents it provided.
10. Ms 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

Relevant law and guidance

Special educational needs

11. A child with special educational needs may have an Education, Health and Care (EHCP) plan. This sets out the child’s needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHCP are put in place and reviewed each year.
12. Some children and young people may require an EHC needs assessment for the council to decide whether an EHCP is necessary. When carrying out an EHC needs assessment, councils must gather advice and information from relevant professionals such as educational psychologists.
13. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision, the school named in their child's plan, or the fact that no school or other provider is named. The EHCP 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.

Annual reviews

14. The annual review of an EHCP considers whether the provision remains appropriate and whether progress is being made towards the targets in the EHCP. Schools are responsible for convening a review. They must invite a local authority SEN officer and a local authority social care representative. The Code says councils must attend the review when requested to do so. (SEND Code of Practice 2015, paras 9.173 & 9.176)
15. Following the review, the school must send a report of the meeting to everyone invited within two weeks. The report must set out recommendations on any amendments required to the EHCP.

EHC plan timescales

16. The Code says that within four weeks of the review, the council must decide whether it proposes to keep the EHCP as it is, amend the plan, or cease to maintain the plan. It must then tell the child's parent and the school its decision.
17. If the plan needs to be amended, the council should start the process without delay. It must send the child's parent a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. The parent must be given at least 15 calendar days to comment on the proposed changes.
18. If the council decides to continue to make amendments, it must issue the final amended EHCP as quickly as possible and within eight weeks of the amendment notice.
19. Parents can appeal to the SEND Tribunal about EHC needs assessments and the special educational element of an EHCP. Before they do so, they must consider whether to go to mediation. The Regulations set time limits for local authorities to implement any agreements made at mediation. If mediation has agreed to amend the EHCP, the local authority must issue the amended EHCP within five weeks.

Elective Home Education

20. Elective Home Education is a term used to describe a choice by parents to provide education to their child at home or in another way they desire, instead of sending them to school full time. When a parent decides to EHE they are agreeing to be responsible for the education of their child and any costs involved.
21. Where a parent withdraws a child with an EHCP from school to home educate them then the Council no longer has an obligation to provide the special educational provision in the EHCP. This is because the parents are deemed to be making their own suitable alternative arrangements.

Background information

22. Y has several medical conditions and uses a self-propelled wheelchair for mobility. Because of Y’s medical conditions the school he attends needs to be fitted with a hoist to enable him to be lifted twice a day to help him with personal care. Y also need trained teaching assistants to help care for his needs.
23. Y’s final ECHP issued on June 2016 states he is to undergo surgery within the next 12 months to help with his medical conditions. The EHCP stated Y’s educational needs could be met in a mainstream school rather than a specialist school. Y attended a mainstream primary school but needed significant support.

Events in 2017

24. Ms X deregistered Y from the school in July 2017 as she decided to Electively Home Educate (EHE) him. An EHE officer visited Y in September 2017 and considered the education being provided was satisfactory.
25. The Council held an annual review of Y’s EHCP in November 2017 as there was no school involved to do so. Ms X mentioned a possible return to school for Y to a specialist setting in the future. The annual review recommendation was to maintain the EHCP with no suggested changes as the Council considered EHE still suitable.

My assessment

26. As the Council carried out an annual review and issued a decision on the outcome, it was open to Ms X to have appealed against the Council’s decision if she disagreed with Y remaining in EHE. I consider it would have been reasonable for Ms X to exercise her right of appeal to the Tribunal who could have considered whether EHE was appropriate provision from Y. Because of this I do not consider there are grounds for us to consider this part of Ms X’s complaint.
27. In addition, this part of Ms X’s concerns relates to matters in 2017 which are over 12 months ago. It was open to Ms X to have complained to us before now if she was unhappy with the Council’s response to her request for Y to return to school in 2017. So, I do not consider there are grounds for us to exercise discretion to investigate these matters now.

Events in 2018

28. In January 2018, the Council held a further review of Y’s EHCP. Ms X requested Y return to school and had visited a school I will refer to as Oak Special School. The meeting discussed another school I will refer to as Beech School but considered it unsuitable on accessibility grounds due to being on split levels unless it had adaptations. The meeting notes record Ms X did not feel Beech School could met Y’s needs. The Council considered there was insufficient evidence to name a special school and with Ms X’s understanding EHE continued to be named in Y’s EHCP as his educational provision. The Council finalised and issued a first amended plan saying Y’s needs could be met in a mainstream primary school but Ms X chose to EHE.
29. Ms X contacted the Council in February 2018 requesting Y attend Oak Special School. The Council considered Y did not meet the criteria for a special school such as Oak School. So, in April 2018, the Council asked Ms X to consider mainstream schools and state her preferences so it could consult for a place for Y. The Council asked its property team to provide a list of schools which already had suitable adaptations for wheelchair users and access to ceiling hoists to meet Y’s medical needs.
30. Ms X told the Council in June 2018 she had visited schools and requested Y attend Beech School as her preference. The property team gave the education team a list of schools with adaptations in place. Property officers visited Beech School and advised it would cost the Council about £30,000 to adapt the site.
31. In July 2018, the Council consulted with three schools from the Property Service list and identified one that could possibly meet Y’s needs. Ms X said she did not want a place at the school. The Council identified another school in August 2018, but Ms X did not consider it suitable.
32. The Council consulted with six further schools in September 2018 about offering a place to Y. Some schools did not consider the consultation request gave current information so asked for updated educational advice before deciding if they could meet Y’s needs.
33. The Council arranged for an educational psychologist to see Y to assess his educational needs to update them. The Council says during September to December 2018 there was limited availability of an educational psychologist which delayed it allocating Y’s case and setting an assessment date. Y was also in and out of hospital making it difficult to set the assessment date.
34. In responding to Ms X’s complaints, the Council explained the information in the EHCP remains the same until it is requested to be removed in the Annual Review. So, it will contain historical information based on any assessments which were completed at the time the plan was created. It says it is not usual practice to add further information to an EHCP that is more than 12 months old unless it can be proved that it is still relevant. This was why the Council asked for new assessments to update the plan in September 2019.

My assessment

35. The Council carried out a further review in January 2018 and issued a decision on the outcome. It was open to Ms X to have appealed against the Council’s decision if she disagreed with Y remaining in EHE. I consider it would have been reasonable for Ms X to exercise her right of appeal to the Tribunal who could have considered whether EHE was appropriate provision from Y. Because of this I do not consider there are grounds for us to consider this part of Ms X’s complaint.
36. The documents show between February and September 2018 the Council and Ms X were discussing which schools may be suitable. Ms X visited schools and did not state a preference until June 2018 so the Council could not consult with schools until then. The Council also offered places at some schools, but Ms X did not accept these. So, while it took time in 2018 for the Council to start consulting schools, I cannot say it was due to any fault by the Council.
37. The schools requested the information on Y’s educational needs be updated. The information was last reviewed in January 2018 and it was not considered it needed updating at that point. So, I do not consider the need to assess Y again was fault by the Council. It was open to Ms X to have raised any concerns about the information on Y’s needs during the annual review if she considered it required updating.
38. It is unfortunate the request for an updated needs assessment coincided with the lack of availability of an educational psychologist and then Y being in and out of hospital. So, while there was a delay in carrying out the assessment, I cannot say it was fault by the Council.

Events in 2019

39. An educational psychologist arranged to see Y in January 2019. Ms X cancelled the appointment, and the educational psychologist rearranged the date. The assessment took place in March 2019. The assessment report in April 2019 said Y’s needs could be met in a mainstream school. Ms X requested Y attend either Oak Special School or Beech School. The Council noted these were parental preferences for schools.
40. The Council held an annual review of Y’s EHCP in May 2019. The notes of the meeting report Ms X expressed concerns about Y attending a mainstream school. The meeting looked at Beech School again which Y could possibly attend with some reasonable adjustments. The notes say Ms X requested the Council consult with Oak Special School and Beech School. Ms X later contacted the Council to say she had changed her mind and wanted to withdraw the request for Beech School. Ms X said she only wanted Oak Special School. The Council arranged a visit.
41. Ms X declined to sign the annual review documents as she did not consider it contained the up-to-date information from the education psychologist.
42. Ms X and Y visited Oak Special School. Ms X reported Y struggled with the school environment there, so she asked he attend Beech School. The Council considered the EHE was suitable for Y during this time and it was seeking a school placement at Ms X’s request. But as it was finding it difficult to find him an educational placement and it could not offer a suitable school to meet Y’s needs, it agreed to fund a tutor for Y. This was for two hours a day.
43. In July 2019 Council officers visited Ms X to explain the difficulties it was experiencing finding a placement for Y. Property officers visited Beech School to view the site and discussed meeting Y’s needs with the school. The school agreed a placement and the Council agreed to schedule adaptations to help Y access the school.
44. The Council noted Ms X’s reluctance to sign off the annual review and added further information to the amended EHCP. Ms X agreed the amendment. The Council issued a second amended EHCP in August 2019 saying Y’s needs could be met at Beech School, a mainstream primary school.
45. The Council sent the adaptation works to Beech School out to tender and planned for their completion in the Autumn term 2019 so Y could start school in September 2019. But there were still some works outstanding in September 2019 including installing a hoist which delayed the Council training staff to use it.
46. Council officers visited Ms X at home to discuss what was needed for Y to attend Beech School. The Council agreed to increase Y’s tuition to three hours a day from 17 September 2019 until Y started school in the mornings from 23 September 2019. This was because it had not completed the adaptations and staff training. The Council said it would continue to fund a tutor for two hours each afternoon until all the equipment was in place and staff completed the medical training.
47. The Council confirmed it would carry out an annual review in November 2019 to ensure the EHCP was up-to-date and look to consider Y’s move to secondary school in September 2020. The Council issued a third amended plan in September 2019 naming Beech School as Y’s educational provision. The Council advised Ms X of her right of appeal if she disagreed with the EHCP.
48. The Council confirmed Y started at Beech School on an adapted timetable with input from a tutor in the afternoons in September 2019. The Council completed staff training between October and November 2019. It decreased the tutor time as Y increased being in school and he attended full time in January 2020.
49. In responding to Ms X’s complaints, the Council acknowledged it took some time to secure a school placement for Y. This was because of many complexities. These included the Council being unclear on Ms X’s preferences for a mainstream or special school setting as it changed at times, difficulties in establishing the most suitable schools due to Y’s significant and complex medical needs. It was also due to the time taken to do the education psychology assessment, Y’s availability due to medical appointments, lack of up-to-date educational advice and some staff changes. The Council apologised to Ms X.
50. The Council says it was seeking a school placement at Ms X’s request and not because it considered EHE was unsuitable.
51. The Council confirmed the main reason for amending Y’s EHCP in August 2019 was to name Beech School as Y’s educational provision. It accepts the amended plan did not include the updated information from the education psychologist’s assessment in March 2019. The Council says it could not make changes to Y’s health needs as it received no updated health needs in August 2019.
52. The Council updated the health information in October 2019 to include more current advice from the Community Children’s nursing service. The Council told Ms X it would amend further once it received advice from occupational therapist, the speech and language service or community nurse as part of Y’s annual review due in November 2019.
53. The Council recognised there had been a change of staff working on Y’s case. It explained it will always try to avoid making changes to key workers when possible to ensure consistency with case handling. But there are times when it must make changes to key workers such as when an officer leaves their position. The Council apologised to Ms X it did not clearly communicate with her about changes to workers and for the concern it caused her.
54. The Council confirms it has set up a new procedure to ensure adaptations needed in schools where children present with accessibility needs will be conducted in a timely manner. This will involve Council officers, property services and occupational therapy.
55. The Council acknowledged the time taken for Y to return to school had taken longer than anticipated. It considered the situation could have been handled differently with better communication between parties. The Council says it has reviewed its processes to ensure it progresses such matters in a timelier manner and it communicates any delays to the parent or carer. The Council acknowledged the delays and the time taken by Ms X to progress her concerns. The Council offered Ms X a time and trouble payment of £150.

My assessment

56. The documents show it did take some time for the assessment in early 2019 but again I cannot say it was due to fault by the Council as Ms X rearranged the assessment date. There is also evidence Ms X was still unsure about her school choice for Y and changed her mind about which school she preferred which added to the time taken to find a placement.
57. The Council acknowledged that while it was parental choice for Y to return to school it was finding it difficult to place Y. The Council decided to appoint a tutor to support Y while it found a placement which I consider is suitable action for it to take.
58. The Council accepted there were delays in carrying out the adaptation works to Beech School and they were not completed by the start of September 2019. I consider this was fault by the Council and caused an injustice to Y as it delayed his return to school once the placement had been agreed. But the Council increased Y’s tutor time to acknowledge the delay while it completed the adaptation works and staff training. Because of this I consider the Council’s decision to continue and increase the tutor time has limited any injustice to Y and Ms X to warrant us pursuing this issue any further.
59. The guidance requires the Council to issue an amendment within eight weeks of the amendment notice. The documents show this did not happen after the annual review in May 2019. Ms X disagreed with annual review as it did not contain all the up-to-date information from educational psychologist. The Council has accepted it did not include this information. If there was a disagreement about annual review and its content the Council could have issued the amendment so Ms X could have appealed. Because of this I consider it fault by Council as it did not issue the annual review decision within the timescales required and allow Ms X a right of appeal.
60. But the documents show the Council acted and updated the amendment as Ms X requested to overcome her disagreement. The documents show the Council was also arranging the placement at Beech School she requested. Because of this I consider there is limited injustice caused to Ms X to pursue the matter further.
61. The Council has acknowledged it changed staff working on Y’s case. It has accepted there was not always clear communication in this case and apologised to Ms X. It has also offered her £150 for her time and trouble in pursuing her concerns. I consider the apology and £150 is suitable action for the Council to take, along with providing the tutor to support Y.
62. The Council has now set up a new procedure to ensure deals with requests for schools for a child with mobility issues in a timelier way. Because of this I do not consider I can achieve anything further for Y and Ms X.

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Final decision

63. I am completing my investigation. The Council was at fault for delaying Y’s start at Beech School and issuing an amendment to his EHCP. But the Council’s apology, provision of a tutor and offer of £150 as time and trouble payment is a suitable remedy in this case.

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Investigator's decision on behalf of the Ombudsman