Summary: Miss V has complained the Council wrongly named a mainstream educational placement for her son’s Education and Health Care Plan. The Ombudsman does not have jurisdiction to investigate this part of the complaint as Miss V has appealed to a statutory tribunal. However, the Ombudsman has identified some communication faults by the Council which has caused Miss V distress and has suggested a way for the Council to remedy this.

The complaint

1. The complainant, who I refer to as Miss V, complains about the way the Council managed naming an educational placement for her special educational needs (SEN) son. Specifically, Miss V complains the Council:

• named a mainstream educational placement which was not suitable for her child’s needs and was contrary to the expectation it established.
• failed to communicate with her on the subject of naming an educational placement and provided misleading information.

2. Miss V believes these alleged faults by the Council have delayed her child being able to attend school when he was due to start in September 2020. Further, Miss V says she must now pay nursery costs for a lengthy period until the Council names a suitable educational placement. She also says she cannot increase her employment hours to full-time, meaning she is incurring financial loss.
3. As a desired outcome, Miss V wants her preferred educational placement for her son, for the Council to revise its communication processes, to remedy the alleged faults and provide compensation for her financial loss.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended).
6. In the Court of Appeal case of R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407, it was found that if someone has lodged an appeal to a tribunal, the Ombudsman cannot investigate any matter which is connected to the matters under appeal. This means that if a person disagrees with the placement named in an EHCP, we cannot seek a remedy for lack of education after the date the appeal was submitted.
7. 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).
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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How I considered this complaint

9. I have reviewed Miss V’s complaint to the Ombudsman and Council, including supporting information. I have also considered the responses of the Council, applicable legislation and policy guidance. Both Miss V and the Council both received an opportunity to comment on a draft of my decision before reaching a final view.

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What I found

Background

10. An EHCP is for children and young people aged up to 25 who need more support than is available through special educational needs support. An EHCP identifies educational and health needs and sets out the support to meet those needs (including, but not limited to, the provision of a specialist educational setting).
11. Councils are not required to provide exactly what parents request, but they should be able to explain clearly why they consider a suggested provision meets the assessed needs of a child. They must also take steps to ensure the view of the child is properly recorded and considered when planning provision for them. In cases where a council has been unable to find a suitable school placement within the time frame, they have a duty to provide appropriate alternative education. We can look at delay in issuing an EHCP, including whether the Council has failed to make purposeful efforts to identify a school place.
12. The First-tier Tribunal (Special Educational Needs and Disability) (Tribunal) is responsible for handling appeals against local authority decisions about special educational needs. This includes a refusal to assess a child’s educational, health and care needs and create an EHCP.

Chronology of events

13. In June 2019, Miss V made an application to the Council for a EHCP assessment for her son. In October 2019, the Council reached a determination that it should issue an EHCP and name a specialist school.
14. In November 2019, the Council issued Miss V a final EHCP which set out that her son would attend a specialist school placement. Miss V says the Council told her it would name the specialist school by April 2020.
15. Between November 2019 and February 2020, Miss V sought to contact the Council’s SEN team several times to find out what progress had made in securing a specialist educational placement for her son. Also, in November 2019, Miss V asked the Council to consult a specific specialist school which she considered suitable for her son’s needs. The Council has accepted it did not respond to Miss V on all occasions and has apologised for these failings.
16. In April 2020, the Council began a consultation process with schools to decide a placement which could meet Miss V’s son’s needs.
17. In May 2020, the Council named a non-specialist educational placement for her son to start in September 2020. The Council admitted that it was wrong to tell Miss V that a specialist education placement was required in the first instance, and it apologised to her for the error.
18. In July 2020, Miss V made an appeal to the Tribunal about her son’s final EHCP and the Council’s determination that he attends a mainstream educational setting. The Tribunal hearing is scheduled for December 2020.
19. At present, Miss V’s son is in nursery waiting the decision by the Tribunal to decide which school he should be placed at.

My findings

Named educational placement

20. By law, I cannot investigate a complaint where the complainant could or has appealed to the Tribunal about to the contents of an EHCP. After becoming aware the Council named a mainstream school for her child, Miss V made an appeal to the Tribunal in July 2020. So as Miss V’s complaint is about naming an educational placement and whether a specialist educational setting is required for her son, I am cannot investigate this. The restriction I describe in paragraph five therefore applies.
21. In addition, following the case of R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman), I cannot by law investigate a lack of education after the date of an appeal to the Tribunal because of Miss V disagrees whether this should be a specialist or mainstream educational placement.
22. However, this restriction does not prevent me from identifying faults in the EHCP process, particularly about communication failings and recommending actions to remedy any causal injustice.

Misleading information and expectations

23. In October 2019, the Council agreed to issue a final EHCP for Miss V’s son and to name a specialist school placement. Further, it outlined in the final EHCP that Miss V’s son would start at a specialist placement in September 2020.
24. It is my view the Council named a specialist educational placement as it believed at the time this was most suitable for Miss V’s son’s needs. However, in May 2020, the Council cited an error and told Miss V that it had instead named a non-specialist mainstream school for her son to attend. Though the Council has apologised, it is my view the Council’s initial determination created a legitimate expectation for Miss V that her son would start his education on-time and further, that only a specialist educational setting would be suitable for his needs.
25. On this basis, I consider the Council to be at fault for providing misleading information to Miss V. This created confusion and an expectation that only a specialist educational placement would be suitable for her son’s needs.

Failure of communication

26. Between November 2019 and February 2020, Miss V sought to contact the Council by telephone and email five times to find out which specialist educational placement her son would be attending. In December 2019, Miss V also asked the Council to consult her preferred specialist school to enable a start date for her son in September 2020, as outlined in the final EHCP.
27. The Council has admitted that on neither of the occasions Miss V sought to contact the Council did it respond to Miss V. The Council has apologised to Miss V and, on this basis, I consider the Council to be at fault for failing to communicate with her in a timely and reliable manner.

School consultation delays

28. For the purposes of naming a placement in an EHCP, the Council should consult with schools to decide which can best meet the needs of a child. Though Miss V asked the Council to consult her preferred specialist school in December 2019, due to a failure of communication (identified above), the Council only did so in April 2020. The Council reported that it consulted one specialist and one mainstream educational placement, though both said they could not meet the needs of Miss V’s child. The Council later named the mainstream school for Miss V’s child to attend.
29. The Council did accept it did not action Miss V’s original request in December 2019 which led to further delays in securing a suitable provision for her son and a second final EHCP. Because of this, I consider the Council to be at fault for failing to consult and identify a suitable school in a timely manner. However, because of the restriction I describe in paragraph five, I cannot seek a remedy from the Council for any missed education resulting from the identified fault.

Injustice

30. Because of the Council failing to communicate with Miss V and delaying in consulting potential educational placements, Miss V’s expectation that her son would begin his education in September 2020 at a specialist placement was dashed. I cannot decide whether a specialist placement should be named for Miss V’s son as the Tribunal will decide this. Further, I cannot by law seek a remedy from the Council for any loss of education associated with the fault.
31. However, regardless of this jurisdictional point, Miss V says the faults has caused her deep distress and impacted negatively on her mental health. In my view, I consider that Miss V has suffered an injustice following a prolounged period of uncertainty and distress for which I consider a financial remedy is appropriate. I recognise that Miss V asks for the continuing nursery costs for her son and other financial losses. But because these are associated with a loss of education, I cannot by law seek a remedy from the Council for the reasons I have already outlined above.

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Recommended action

32. To remedy the injustice identified above, I recommend the Council take the following actions:

• within one month of this final decision, the Council should pay Miss V £400 as a distress payment resulting from communication faults and giving misleading information which raised her expectations over a prolonged period.
• within three months of this final decision, the Council’s SEN team should undertake a review of its communications strategy and identify and implement measures to ensure timely and accurate communications and consultations with both customers and educational placements.

33. The Council have accepted my findings and recommendations in full.

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Final decision

34. The Council were at fault in the way it communicated and consulted over Miss V’s son’s EHCP and educational placement which resulted in distress. I cannot decide which educational placement is suitable for Miss V’s son as this matter is reserved for the jurisdiction of the Tribunal.

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Investigator's decision on behalf of the Ombudsman