Summary: Mrs X complained about the way the Council issued her son, Z, with an Education, Health and Care (EHC) Plan, the information it provided her about her appeal rights to the Tribunal and its refusal to provide transport to Z’s play programme. The Council was at fault when it delayed in carrying out a needs assessment and failed to provide clear information about Mrs X’s appeal rights to the Tribunal. This caused Mrs X uncertainty that Z may have been able to start at his special school earlier if the faults had not occurred. Mrs X also lost her chance to appeal. The Council has agreed to make Mrs X a financial payment and make service changes. The Council was not at fault in the time it took to finalise Z’s EHC Plan, its consideration of Mrs X’s preferred school or its decision not to pay for transport to Z’s play programme.

The complaint

1. Mrs X complains the Council:
1. delayed the process to issue her son, Z, with an Education, Health and Care (EHC) Plan;
2. refused to name her preferred special school on Z’s Plan and instead named a mainstream school;
3. misinformed and delayed in telling her that Z could not attend her preferred special school, which meant she lost her right to appeal;
4. has provided Z with a place at a play programme once a week but has failed to provide transport for him; and
5. refuses to pay for 1:1 support so Z can attend the school’s before and after clubs.
2. Mrs X says that as a result, Z’s needs are not being met and he feels excluded at school. In addition, Mrs X says she and her husband have had to use annual leave to support Z.

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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. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as SEND Tribunal in this decision statement. (The Special Educational Needs and Disability Tribunal (‘SEND’))
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)
6. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as schools. (Local Government Act 1974, sections 25 and 34A, 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 considered Mrs X’s view of her complaint.
10. I made enquiries of the Council and considered the information it provided. This included copies of Z’s EHC Plan,
11. I considered the relevant statutory guidance, including the Special Education Needs Code of Practice 2015 and the Education Act 1996.
12. I wrote to Mrs X and the Council with my draft decision and considered their comments before I made my final decision.

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What I found

Education, Health and Care Plans

13. A child with special educational needs (SEN) may have an 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. The Ombudsman cannot direct changes to the sections about education or name a different school. Only the SEND Tribunal can do this.
14. Councils have a duty to ensure the special educational provision in an EHC Plan is met.
15. Certain people have a specific right to ask the council to carry out an EHC needs assessment for a child or young person between the ages of 0 and 25. These include the child’s parent.
16. The Council must respond to all requests for a child to have a needs assessment within 6 weeks of one being requested. The Council must state whether it intends to go ahead or not with the assessment. If the council decides not to carry out a needs assessment it must inform the parent of their right of appeal to the Tribunal.
17. If the Council decides to proceed with an EHC Plan, the whole process for finalising an EHC Plan must take no longer than 20 weeks.
18. If a parent makes a request for a particular school, the council must comply with that preference and name the school in the EHC Plan unless:
• it would be unsuitable for the age, ability, aptitude or SEN of the child; or
• the attendance of the child would be incompatible with the efficient education of the other children, or the efficient use of resources.

School admissions

19. Children and young people with EHC Plans do not have their placements determined through the general school admissions process. Instead, the child or their parent will express a preference for a school during the EHC Plan process. Any school named in a child’s EHC Plan cannot refuse that child a school place.

What happened

20. In 2018, Z was diagnosed with autism. At the time he was of pre-school age and attended nursery. Z was due to begin primary school in September 2020.
21. In December 2018 a multi-disciplinary meeting was held to consider a report on Z and assess his development. The report stated “It is expected that we will need to request an Education, Health and Care Assessment in Autumn 2019 in readiness for him starting school”.
22. On 26 September 2019, Mrs X emailed the Council and asked why it had not started the process to assess Z for an EHC Plan. Mrs X expressed concern that Z’s EHC Plan would not be finalised before the middle of January 2020. This was the deadline for submitting school applications for children starting primary school in September 2020.
23. A Council officer responded on 1 October 2019. They agreed Z required an assessment but said he would not need his Plan to be in place until he started school in September 2020. The officer advised Mrs X that they were supportive of an application for an EHC needs assessment.
24. The officer also said “There is no guarantee of a special school place so we always advise parents to complete the admissions process for mainstream school alongside the EHC Assessment… if you want him to have a special school place he will need an EHCP in place”.
25. On 14 January 2020, the Council received from Z’s nursery a request to carry out a needs assessment to determine if Z needed an EHC Plan. On 11 February, the Council began Z’s needs assessment.
26. On 14 April 2020, the Council consulted with a mainstream school (School M). The Council enclosed Z’s draft EHC Plan.
27. On 15 April 2020, the Headteacher of School M replied and said the school had already offered Z a place at the school and added him to its allocation list.
28. On 17 April 2020, the Council sent Mrs X a copy of Z’s final EHC Plan. This named School M as Z’s placement. The covering letter provided information about how Mrs X could appeal to the Tribunal about the contents of the Plan, including the named school.
29. Mrs M wanted Z to attend a special school. The Council told her placements at special schools were decided by a Council Panel.
30. On 1 May, Mrs X expressed a preference for specialist School P. The Council sent a consultation to School P on 5 May. School P refused to offer Z a place on the grounds it would be incompatible with the efficient education of the other children.
31. A Council Panel meeting was held on 20 May 2020. The Panel minutes state “[School P] – no capacity, can meet need. Offered a place at [School M] for Sept 2020”.
32. The Council emailed Mrs X with the outcome of the Panel meeting on 11 June 2020. This said Z had not been offered a place at School P. It said “The advice is for a careful transition to be planned for [School M] in September 2020. If we find that the transition and placement is not working we can hold an early review of his plan and discuss placement again”. The Council copied the Headteacher of School M into this email.
33. On 12 June 2020, the Headteacher at School M emailed the Council, copying in Mrs X. The email indicated the school may not be able to meet Z’s needs.
34. A meeting was held on 29 June 2020 which included attendance from School M, Z’s nursery, representatives from the Council Early Years team and Mr and Mrs X. The notes recorded “All professionals and parents in the meeting agreed that [Z] requires specialist provision in order to meet his needs”.
35. On the same day, Mrs X complained to the Council about the issues outlined in paragraph 1 of this decision statement.
36. On 7 July 2020, the Council responded to Mrs X. It said it had finalised Z’s EHC Plan within the statutory timescales. It also said “Local Authorities are required to consult with parents’ preferred school but they do not have to name it in the plan if to do so would not be an efficient use of resources... The way in which the LA establishes this is to consult with a local mainstream school to see if they can meet the special educational needs of the child”.
37. The Council said it had consulted with Mrs X’s preferred specialist school, School P, which was full. It had also consulted with School M, a mainstream school, which had said it could meet Z’s needs. The Council concluded by saying “Some weeks after [Z’s] plan has been issued, the Headteacher of [School M] has been in contact with his SEN Officer to express concerns about meeting [Z’s] needs… The LA has services and resources available to support the school and following receipt of the minutes of the meeting held on 29th June, the SEN Officer will be able to provide advice to the school on the next steps for supporting [Z]”.
38. Mrs X expressed a preference for School S at the end of July. The Council consulted with the school in August. School S responded to say it could meet Z’s needs but it would not offer him a place because it would be incompatible with the efficient education of the other children.
39. Mrs X remained unhappy and complained again to the Council. She said her preferred placement was at special school S but the Council had consulted with special school P. She also said the Council failed to tell her she could appeal Z’s final EHC Plan and the Panel’s decision not to name her preferred placement. She said “playing on the fact that I did not know the law, the Local Authority misled and failed in their duty to provide [the] necessary support and information”.
40. The Council responded and said School S was Mrs X’s initial preferred placement and she informed the Council of this by email in April 2020. However, the Council she then sent a text in May and asked to change her preferred placement to School P. The Council consulted with both schools but neither offered Z a place.
41. The Council apologised for not informing Mrs X of the outcome of the Panel meeting in line with its policy timescales of 10 days. It said that the Panel decisions were not appealable to the Tribunal but the final or final amended Plan was and it had informed Mrs X of this when it sent her Z’s final EHC Plan. The Council said if School M felt it could not meet Z’s needs, it should request an early review of his Plan.
42. Mrs X remained unhappy and complained to the Ombudsman. During my investigation, in November 2020, the Council issued a further final amended EHC Plan and Mrs X appealed to the Tribunal. The appeal was resolved before the hearing when the Council agreed to name School S on Z’s EHC Plan with a start date of September 2021.

My findings

The process to issue Z with an Education, Health and Care Plan

43. Mrs X, as Z’s parent, had a right to request a needs assessment. She informed the Council in September 2019 of her wish for an assessment. The Council should have put Mrs X in touch with the appropriate team within the Council, who would have taken this as a formal request, decided whether to carry one out and notified Mrs X of its intentions within six weeks, together with her appeal rights. The Council failed to do this and this is fault.
44. It is likely that if the Council had accepted Mrs X’s request for a needs assessment in September 2019, Z’s Plan would have been finalised around December/January, allowing Mrs X to appeal to the Tribunal earlier if she was unhappy with the school named in the Plan. However, I cannot know when the Tribunal would have heard Mrs X’s case, nor whether the Council would have conceded and named School S at that stage. Therefore, I cannot say, even on the balance of probabilities, there is a direct link between the Council’s delay and when Z began at School S. However, Mrs X has been left with the uncertainty that Z may have missed the opportunity to start at School S a year earlier.
45. Z has not been caused an injustice. The Council named School M on his EHC Plan and up to the time when the events of this complaint began, Z was attending that placement. If Mrs X believes the Council failed to ensure Z received the provision in his Plan before he started at School S, she can complain to the Council about this and then come to the Ombudsman if she remains unhappy.
46. Mrs X believes if the Council had acted in a timelier manner, Z’s EHC Plan would have been in place by the time of the school admissions deadline in January of that year. She thinks that as a result, she would have been able to apply to School S during the general admissions process.
47. Because Z has an EHC Plan, his placement is determined through the EHC Plan process and not the general school admissions process. Therefore, it was not time critical for the Council to finalise Z’s Plan before January 2020. Even if it had done so, Mrs X would not have been able to apply to School S through the general school admissions process. Instead, she would have expressed a preference for School S as part of the EHC Plan process.
48. The Council began the EHC Plan process in January 2020 when it received a request for a needs assessment from Z’s nursery. The Council completed the process and issued Z’s final EHC Plan in April 2020, within the statutory timescales and before he started at school in September 2020. There was no fault in the Council’s actions.

Naming Mrs X’s preferred special school on Z’s Plan

49. If a parent makes a request for a particular school, the council must comply with that preference and name the school in the EHC Plan unless:
• it would be unsuitable for the age, ability, aptitude or SEN of the child; or
• the attendance of the child would be incompatible with the efficient education of the other children, or the efficient use of resources.
50. The Council consulted with both of Mrs X’s preferred choices, School P and School S as well as School M. Schools M and S said they would not offer Z a place because it would be incompatible with the efficient education of the other children. There was no fault in the way the Council consulted with the schools.
51. I cannot investigate Mrs X’s complaint about the school named by the Council on Z’s EHC Plan. This is because we cannot direct changes to section which names the school placement. Only the tribunal can do this.

Council misinformed Mrs X and delayed in telling her that Z could not attend her preferred special school, which meant she lost her right to appeal

52. The Council says that it informed Mrs X of her appeal rights to the Tribunal in the letter which accompanied Z’s final EHC Plan in April 2020. This is true. However, at the same time, her request for a special school placement was still underway via the Panel process. It is understandable, therefore, why Mrs X did not feel she could or should appeal until she knew the outcome from the Panel meeting. The Council subsequently failed to inform her in a timely manner, and in line with its own procedures, of the Panel outcome. As a result, Mrs X lost her opportunity to appeal. The Council’s failure to provide clear information and to meet its own deadlines is fault.
53. As a result, Mrs X lost the chance to appeal to the Tribunal. I cannot say what would have happened if she had done so. However, Mrs X is left with the uncertainty that is she had appealed earlier, School S may have accepted Z earlier than it did.

Transport to Z’s play programme and attendance at the school’s before and after clubs

54. The Council has a duty to ensure the provision in a child’s EHC Plan is being met. Z’s Plan did not contain provision linked to a placement in a play programme or the school’s before and after school clubs. There are arrangements Mrs X would have to make separately and privately. Therefore, the Council did not have a duty to provide transport to or from the play programme or provide 1:1 support so Z could attend the school clubs. There was no fault in the Council’s actions.

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Agreed actions

55. Within one month of the date of the final decision the Council has agreed to pay Mrs X £300 for the uncertainty it caused her by the faults identified in this decision statement.
56. Within three months of the date of the final decision the Council has agreed to:
• review its procedures to make sure that all requests for an Education, Health and Care needs assessment are dealt with in line with the statutory guidance;
• review the information it provides parents to clarify the position with appeal timescales if they are awaiting a decision from the Council’s Panel on a special school placement; and
• remind staff of the importance of providing parents with the outcome of Panel meetings within ten days of the meeting.

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Final decision

57. There was fault leading to injustice. The Council has agreed to my recommendations. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman