Summary: There was fault in the way the Council drafted an EHC plan and a four-month delay in naming a school for secondary transfer and in providing a right of appeal. This was fault, delayed a right of appeal and caused unnecessary uncertainty and distress. Recommendations for an apology, financial payment and service improvements are made.

The complaint

1. Ms X complains about the way the Council handled her child’s transfer to secondary school as it delayed in issuing a final Education, Health and Care (EHC) plan naming the school. Ms X says she was confused about how to appeal the placement (through the admissions process or EHC / Tribunal process) and complains about advice provided by the Council and delay in responding to her concerns. Ms X also complains about the suitability of the placement named by the Council, which she successfully appealed against.
2. Ms X complains the Council’s delay meant her child did not start at their preferred school, which the Council conceded during the appeal, until March 2021, instead of starting in September 2020. Ms X also complained she was forced to home educate between September 2020 and March 2021 and her child missed out on education.

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What I have investigated

3. I have investigated the period up to June 2020 only. I have not considered the suitability of the school named by the Council in the EHC plan or the period after June 2020, when Ms X complains about poor advice and communication. Ms X had a right of appeal in June 2020 about the placement, which she has used. This puts matters after June 2020, when the appeal right arose, outside the jurisdiction of the Ombudsman. We cannot provide a remedy for the period Ms X home educated.

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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 Local Government Act places restrictions on what we can investigate:
• 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)
• We cannot investigate a complaint if someone has appealed to a tribunal about the same matter or a matter which is inextricably linked to the appeal. (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’))
7. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
8. 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)

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How I considered this complaint

9. I have considered information provided by the Council and Ms X including:
• Consultations with schools
• The EHC plan
• Complaint documents.
10. I have considered relevant law and statutory guidance including:
• The Children and Families Act 2014 (‘The Act’)
• The Special Education and Disability Regulations 2014 (‘The Regulations’)
• The Special Educational Needs and disability code of practice: 0 to 25 years (‘The Code’).
11. 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.
12. 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

Chronology of events

13. Ms X’s child was identified as having special educational needs. In September 2019, when Ms X’s child was in Year 6, the primary school made a request to the Council to carry out a statutory assessment to see if an EHC plan was required.
14. The Council agreed to assess and decided to issue an EHC plan. A final EHC plan was issued within the twenty-week timescale specified in the Regulations and Code in January 2020. This named the current primary school but did not name the secondary school the child should attend from September 2020, although it did name a type of school. The Council said the Plan would be updated again once a school was identified.
15. During the EHC assessment process Ms X also made an application for secondary school through the usual school admissions process. This was appropriate as Ms X did not know whether an EHC plan would be issued.
16. The Code and Regulations say an EHC plan must be reviewed and amended in sufficient time before phase transfers, such as a transfer from primary to secondary school ‘to allow for planning for and, where necessary, commissioning of support and provision at the new institution’ with any amendments completed by 15 February in the year of transfer.
17. In March 2020 the Council consulted two schools, a mainstream school (School A) which Ms X had put on her secondary transfer school admissions form, and another school (School B) which was Ms X’s preference to be named on the EHC plan. School A said it could meet need in mid-March but School B did not reply until 17 June.
18. The Council issued the amended final EHC plan naming School A, the mainstream school, on 12 June 2020. Ms X had a right of appeal against this decision to the SEND Tribunal and the Council provided advice about how to appeal in the letter it sent with the EHC plan on 12 June.
19. School B replied to the Council’s consultation on 17 June confirming it could also meet need.
20. Ms X appears to have been confused about the appeal process and tried to appeal through the admissions team for a different school. Ms X also arranged for transition days at School B although this was not the school named in the Plan.
21. The Council has acknowledged via the complaint response that parents may find the process confusing and that it could have responded to Ms X’s correspondence in a timelier way. It also told me the admissions team should have signposted Ms X back to the SEN team when she spoke to them. The Council said it was difficult for staff to adjust to working and being supervised remotely during COVID-19 and this affected its normal level of service.
22. In August 2020 the Council explained it did not consider School B was suitable for the type of special educational needs Ms X’s child had and repeated its advice about how to appeal. Ms X said she had been told her child could attend School B and that expert advice obtained during the EHC needs assessment supported her child attend a smaller school.
23. When Ms X’s child did not start School A in September 2020, the school notified the Council and there was some consideration of enforcing attendance. Ms X then realised the correct process to challenge the placement and appealed to the SEND Tribunal in October. The final hearing was due to be heard in February 2021. To avoid enforcement action Ms X said she would home educate her child until the case was heard.
24. The Council conceded the appeal before the final hearing and agreed to name School B in the EHC plan. Ms X’s child started at their new school in March 2021.
25. In its response to the complaint and my enquiries the Council has acknowledged it missed the 15 February deadline for issuing an amended final plan naming a specific school and that there was some delay before the final Plan was issued in June, which it said was due to staffing issues due to COVID-19. The Council has also confirmed that the recommendation about attending a smaller school was wrongly left out of the EHC plan. This may have affected the case officer’s decision about the type of school Ms X’s child should attend and meant schools did not have all the information when they were consulted.
26. The Council’s own review of the complaint identified staff workloads may have been an issue and that it should perhaps have picked up on the high level of communication from Ms X as a sign of an unresolved problem. It has also identified clearer information could be given to parents about the different appeals processes. The Council apologised to Ms X but did not offer any other remedy.

Scope of investigation

27. Complainants cannot use two routes of redress (the Ombudsman and the Tribunal) for the same injustice. Once someone has appealed to the SEND Tribunal the Ombudsman is barred from also providing a remedy from the date the appeal right arose. In this case that was 12 June 2020. The injustice Ms X complains of is delay in naming her preferred school / a suitable school, but this is the same matter Ms X asked the Tribunal to determine.
28. The Ombudsman cannot investigate a complaint if someone has appealed to a tribunal, even if the tribunal or court has not provided a complete remedy for all the injustice claimed. The Court has noted that while this creates a situation where loss has been suffered and no remedy for the loss will be provided, Parliament must have contemplated that such situations would arise when it set out the Ombudsman’s powers (Local Government Act 1974, section 26(6)(a), R v the Commissioner for Local Administration ex parte PH, 1999)
29. Where there is a right of appeal to the Tribunal about a decision, the Court has decided the decision, and the consequences of it, are matters which are ‘inextricably linked’. (R (on the application of ER) v the Commissioner for Local Administration, 2014) This means where a Council names a school which a parent considers unsuitable, the parent appeals the choice of school and the child does not attend the school during the appeal period, the Ombudsman cannot investigate any loss of education during this period. The suitability of the school and loss of education are inextricably linked.
30. I have exercised discretion to consider the period up to June 2020. While Ms X had a right of appeal when the final EHC plan was issued in January, I am satisfied it was reasonable of her not to use it as she expected a further version of the plan naming a specific school to be issued shortly.
31. For the reasons above the scope of this investigation is from September 2019 to 12 June 2020.

Analysis

32. There was no delay in the EHC needs assessment, this was completed on time. However, given Ms X’s child was in Year 6 and the 15 February transfer deadline was almost immediately after the date a final EHC plan was due, the Council should have considered consulting secondary schools as well as the current primary school during the EHC needs assessment so both could be named in the January 2020 plan.
33. There was a four-month delay by the Council between February and June 2020 in naming a specific school. This was fault. The Council missed the phase transfer deadline. While COVID-19 will have disrupted services after March 2020, the Council should have issued the amended Plan by 15 February 2020, before COVID-19.
34. The purpose of the 15 February deadline is to allow time for parents to have their appeal heard before September. The delay therefore removed any prospect of Ms X’s child starting at their preferred secondary school in September 2020. I acknowledge that to meet this timescale would also have required Ms X to understand the appeal route she needed to use and to exercise the right promptly. It is not certain that an appeal would have been completed by September 2020, but this opportunity was lost.
35. Ms X’s child attended transition days at her choice of school and believed this was the school her child would be attending. This does not appear to have been due to any fault by the Council. Ms X and the school arranged these visits, not the Council.
36. The Council did correctly advise Miss Y of her right to appeal to the Tribunal in the letter that accompanied the final EHC plan on 12 June and gave this advice again in August. Ms X did therefore have the correct information to appeal in June and August.
37. The Council did omit relevant information from the EHC plan about the recommendation for a smaller school. It is possible if this information had been included Ms X’s choice of school may have been agreed by the Council sooner. It is also possible School A may have advised in March that it could not meet need on this basis and School B may have been named. This has caused uncertainty whether, but for this error, the outcome would have been different. This uncertainty is itself an injustice.
38. For the reasons given above I cannot provide a remedy to Ms X for the period she home educated. There was a school place available and while Ms X considered this school unsuitable, as she used her right of appeal to the Tribunal which considered the same matter, the Ombudsman cannot also provide a remedy for the same injustice.

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Agreed action

39. Within four weeks of my final decision:
• The Council apologise for missing the phase transfer deadline, which caused delay in the appeal.
• The Council pay Ms X’s child £500 for the uncertainty as to whether they may have been able to start at their preferred school sooner if there had been no error in the EHC plan.
• The Council pay Ms X £250 for her distress, the uncertainty and her time and trouble bringing the complaint.
40. Within eight weeks of my final decision the Council will review its processes to ensure:
• EHC assessments or reviews carried out in the year before a phase transfer are completed in line with the statutory deadlines
• professional recommendations are always included in the EHC plan.

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Final decision

41. I have completed my investigation. There was fault in the way the Council drafted an EHC plan and a four-month delay in naming a school for secondary transfer and in providing a right of appeal. This delayed a right of appeal and caused unnecessary uncertainty and distress.

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Investigator's decision on behalf of the Ombudsman