Summary: Mrs X complains the Council was at fault in the way it carried out an assessment and prepared an Education Health and Care Plan for her son as it took too long and did not consult with her. We have found no evidence of fault in the way the Council considered these matters so have completed our investigation.

The complaint

1. The complainant whom I shall refer to as Mrs X complains there were failings in the way the Council carried out an assessment and prepared an Education Health and Care Plan ( EHCP) for her son Y from September 2017 onwards. In particular Mrs X says:
• The Council failed to follow the SEND Code of Practice 2015 especially regarding timescales.
• The Council failed to consult with her on the draft and final EHCP and she was not given the opportunity to discuss the plan in detail or to make the amendments to the plans she highlighted.
• The Council asked her to approach and source a school placement for Y when it is the Council’s responsibility to do so.
• The school Y attended following the final EHCP decided it could not take Y after agreeing a placement but was told by the Council it could not change its mind. Mrs X says an email in May 2018 between the Council and the school confirms this and led to Y being placed in unsuitable educational provision.
• The Council delayed in communicating with her and carrying out the SEND Tribunal’s recommendations.
• The Council caused significant delay and obstruction in identifying a suitable school for Y during the Tribunal hearings.
• The Council’s delays at the Tribunal proceedings caused her to incur extra costs as she needed to use an advocate.
• The Council delayed completing the EHCP after the Tribunal’s order in October 2019, providing the provision agreed and carrying out Y’s annual review in November 2020.
2. Mrs X says the Tribunal proceedings took over a year to complete causing distress to Y, herself and all the family. And impacted on Y’s health, well-being and caused a deterioration in his academic ability.

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What I have investigated

3. I have exercised discretion to investigate the complaints raised by Mrs X about matters from 2017 to June 2018 even though this is more than 12 months ago. This is because we have accepted Mrs X’s personal circumstances prevented her from complaining to us sooner.
4. The final part of the statement explains my reasons for not investigating Mrs X’s concerns about the EHCP and issues during the Tribunal hearing over the EHCP. I have also not investigated Mrs X’s concerns about matters after the Tribunal hearing.

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The Ombudsman’s role and powers

5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. 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)
8. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
9. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
10. We have no jurisdiction where a parent has appealed to the SEN Tribunal from the date the SEN appeal right arises until the appeal is completed. Any loss of education or fault during this period which is a consequence of the decision being appealed is out of jurisdiction, even if this means the injustice will not be remedied.
11. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
12. 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

13. I have read the papers submitted by Mrs X and discussed the complaint with her. I considered the Council’s comments on the complaint and the supporting documents it provided. I considered relevant law and guidance on special educational needs.
14. Mrs 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

Education, Health and Care Plan (EHCP)

15. A child with special educational needs (SEN) may have an EHCP. This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the SEND Tribunal can do this.

Appeals

16. Parents have a right to appeal to the SEND Tribunal if a council refuses to carry out an assessment. Or they disagree with the special education provision, or the school named in the child’s EHCP.

Assessments

17. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:
• Where a local authority receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment.
• The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable.
• The whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply).
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.
18. The statutory guidance confirms that there are exceptional circumstances where it may not be reasonable to expect councils to comply with the time limits and these include:
• where appointments are missed by the child.
• the child is absent from the area for at least four weeks.
• exceptional circumstances affect the child or their parent.
• the school is closed for at least four weeks.

Background to the complaint

19. Y has been diagnosed with Autistic Spectrum Disorder (ASD). In 2017 Y was attending his final year at a mainstream primary school which had an Enhanced Mainstream Setting (EMS). A school with an EMS provides support to children with ASD.
20. In October 2017 Mrs X and Y’s school asked the Council to carry out an assessment of Y’s needs for an EHCP. This was because of Y’s ASD diagnosis and his transition to secondary school in September 2018. The Council agreed to the assessment. It wrote to Mrs X explaining its decision and the proposed 20-week timescale to issue the EHCP. The Council said if it intended to apply an exception to the timescale it would tell Mrs X.
21. The Council consulted with professionals over Y’s needs and sent the parents view form to Mrs X to complete. The Council told Mrs X in January 2018 it intended to issue a draft EHCP naming mainstream provision for Y and asked Mrs X to express preferences for three schools she wished Y to attend.
22. Mrs X says the Council did not involve her in the initial assessment process other than to answer a brief telephone call and complete a parents views form for the draft EHCP. Mrs X says the Council told her she would be responsible for sourcing a suitable placement for Y and had little support to do so. Mrs X asked the Council to consult with three schools I shall refer to as Oak School, Ash School and Beech School.
23. The Council formally issued a draft EHCP on 12 February 2018 to Mrs X naming mainstream provision for Y at secondary school. The Council told Mrs X she had 15 days to respond with any comments. The draft plan did not name any schools in Section I. The Council explained it had left the section blank so Mrs X could fill in her choice and it was currently consulting the three schools she expressed a preference for.
24. Ash School confirmed it could offer Y a placement if the Council recommended a mainstream school with support. Oak School responded it may not be able to meet Y’s needs. The documents do not record the response from Beech School.
25. At the end of February 2018 Mrs X asked for extra time to respond to the draft EHCP. Mrs X said she had been unable to meet with an advice and support service to discuss the EHCP. Mrs X also referred to difficulties with adverse weather restricting travel.
26. The Council agreed to apply an exception to the timescales for completing the EHCP due to exceptional personal circumstances affecting the child/or his parents. It wrote to advise Mrs X of the exception. Mrs X advised she needed until 19 March 2018 to send her comments for the final EHCP to be issued. Mrs X submitted concerns about the proposal for Y to attend a mainstream school with support, the lack of Occupational Therapy provision and lack of 1 to 1 support.
27. In April 2018, the Council told Mrs X it had completed the consultations with her three preferred schools, and it could offer Y a place at Ash School her second preference.
28. The Council issued a second Draft EHCP on 3 May 2018 due to the amendments Mrs X requested to the original draft EHCP. This was 27 weeks after the Council received the EHCP assessment request for Y. Mrs X says she was surprised to receive a second draft as she was expecting the Council to issue a final plan. The Council says it issued a second draft rather than issue a final plan to give Mrs X an opportunity to consider the amendments made. The Council advised Mrs X it had left section I blank again so there was still no named school placement.
29. Mrs X says she consulted with Ash School again as Oak School with an EMS felt it could not meet his needs. Mrs X says Ash School did not have such a setting and felt it could offer Y a placement. Mrs X alleges the SEN officer at Ash School then had reservations over how it could meet some of the needs and provision in the draft EHCP.
30. On 14 May 2918 Mrs X asked the Council for an extension to the 15 days given to reply to the second draft. Mrs X said she had been unable to consult with a support service. The Council agreed to extend the response date to 28 May 2018. Mrs X sent her comments on 25 May 2018 and expressed a preference for Y to attend Ash School.
31. Officers tried unsuccessfully to contact Mrs X to discuss the amendments made to the EHCP after receiving her comments. So emailed Mrs X explaining why it added, changed, or did not include the requested amendments. The Council issued the final EHCP on 11 June 2018, 33 weeks after the request for an assessment. The Council named Y’s current primary school as his placement and then Ash School from September 2018. The Council explained Mrs X’s appeal rights to the SEND Tribunal.
32. Mrs X raised concerns with the SEN Officer at Ash School in July 2018 about Y starting at the school. The Council confirmed there was a transition plan for Y as part of the EHCP to attend the school. The Council planned an early review of the EHCP in the Autumn school term after the half term holiday. Y started at Ash School in September 2018.
33. Mrs Y appealed to the SEND Tribunal at the end of September 2018 saying she wanted Y to attend Oak School, her first preference. In October 2018 Mrs X asked to extend the deadline for her to send further information to the Council and Tribunal on her points of appeal. This was allowed until 9 November 2018. The Council sent the working documents for the appeal to Mrs X in December 2018. Mrs X needed to pay for the service of an advocate to represent her due to her personal circumstances during the appeal. The Council chased Mrs X’s advocate for a response to the documents in March 2019.
34. Mrs X submitted an independent educational psychologist report on Y as part of her appeal. The Council disagreed with the comments made so arranged for its own educational psychologist to carry out an up-to-date assessment of Y in July 2019. The educational psychologist advised the Council Y now needed to attend a specialist school. This was because Y’s behaviour at school deteriorated after Christmas 2018, and he was displaying challenging behaviour.
35. Mrs X and the Council looked at two specialist schools I will refer to as Elm School and Willow School. Mrs X wanted Y to attend Elm School . Y needed to attend several assessment days for both schools. Mrs X alleges the Council delayed in signing the safeguarding consent forms for Y to attend the assessment days and this had a negative impact on Y.
36. Ash School confirmed it could not continue to meet Y’s needs owing to an increase in his behaviour. Elm School said it could not offer Y placement.
37. The Tribunal made orders to the Council and Mrs X to submit any extra information by September 2019 so a hearing could go ahead in October 2019. The Council agreed Y could attend Willow School. Mrs X says the Council conceded the appeal to avoid going to a more expensive Tribunal hearing on the basis she would not claim for costs. The Tribunal issued a consent order for Y to go to Willow School starting on 21 October 2019 and struck out the hearing date agreed for 23 October 2019. There was no order about costs as Mrs X agreed not to make a claim for costs. The Council issued a final EHCP as part of the SEND Tribunal hearing on 28 November 2019.

The Council’s comments on the complaint

38. The Council says it followed the statutory assessment process in this case and was on track to issue the final EHCP within the 20-week timescales. The Council issued a draft EHCP within the timescales but there were difficulties in meeting the timescales after that. This was because Mrs X asked for more time to consider the draft plan. The Council issued an exception to the timescales due to the exceptional personal circumstances affecting the child or his/her parent as allowed in the SEN code of Practice.
39. The Council confirms it consults with parents throughout the assessment process and asks for their preferences or thoughts on provision at the beginning of the assessment. It also asks when it issues the draft EHCP because it will recommend a type of provision.
40. The Council recommends parents engage fully in the transition process. And if they prefer to contact the schools to make an informed decision, it often includes visiting the school site and speaking to staff. The Council says it would not ask a parent to ‘source’ a school as that is the Council’s responsibility.
41. The Council comments on Mrs X’s allegation Ash School changed its mind about taking Y but told it could not do so by the Council. The Council says Ash School was Mrs X’s second preference for Y and named in the final EHCP in June 2018. Before it issued the final EHCP Mrs X visited Ash School and told the Council the school raised concerns there were no funding bands on the draft EHCP for the school. The Council told Mrs X that when school are consulted, they would request the funding needed from the Council to support the child which can vary between schools. The Council contacted Ash School to explain the draft EHCP did not name a school and the banding was at a draft stage.
42. Ash School replied raising a concern about the response to consultation by Oak School believing this school had been consulted separately and with more information. Ash School said it had responded in December 2017 and not been formally consulted. The Council told Ash School it had sent the consultations out at the same time in February 2018, and it had been formally consulted with the same information. The Council sent Ash School a copy of the consultation letter and the school’s response received in March 2018. The school’s response said it could meet Y’s needs with a specific amount of funding and transition plan in place. The Council agreed to the funding suggested by Ash School.

My assessment

43. The documents provided show the Council asked Mrs X for her views through the parents form for the draft EHCP as required. The Council considered her comments on the draft EHCP and issued a second draft, as it is entitled to do, because of the number of amendments suggested by Mrs X. So, the Council consulted further with Mrs X and gave her another opportunity to comment. The Council tried to contact Mrs X and discuss the amendments before issuing the final EHCP. But as it could not contact her it emailed Mrs X to explain changes or why it had not included her suggested amendments.
44. I do not consider there has been fault by the Council in its consultation with Mrs X as the evidence shows the Council consulted with Mrs X during the process of issuing the EHCP. Ultimately it is the Council’s decision on the content of the final EHCP. Once it is issued then Mrs X could appeal as she disagreed with the content.
45. The evidence provided shows the Council was aware it should progress the EHCP within 20 weeks and it advised Mrs X of the timescale it set out to achieve this. The Council confirms it was meeting the timescale until it issued the draft EHCP, and Mrs X asked for more time to respond due to difficulties in accessing support services. The Council agreed to Mrs X’s request and considered it meet the exceptional circumstances allowed under the regulations where it may not be reasonable to expect councils to comply with the time limits. The Council issued an exception to the timescales and advised Mrs X of its decision.
46. The documents show the Council completed the final draft as soon as it could . This took the Council 33 weeks from the date of the request for an assessment making it 13 weeks over the required timescale. I do not consider the time taken by the Council to be fault in this case although it is over the 20-week timescale. This is because the Council was responding to Mrs X’s request for more time to comment on the draft EHCP.
47. The Council says it does not expect a parent to ‘source’ a school placement as it is the Council’s responsibility to do this. But it does recommend a parent to be involved in expressing a preference for a school which may involve the parent visiting the school and talking to staff there. The documents show Mrs X accepted that involvement and visited the schools she wished to be considered for Y.
48. There is no evidence of fault by the Council as the documents provided show the Council consulted with the schools Mrs X expressed a preference for and secured a placement at Ash School for Y. This was one of the school Mrs X chose during the EHCP process.
49. The Council says Ash School did not change its mind about offering Y a placement. This is supported by the evidence provided which shows some confusion by the school over when it was consulted. But the school was satisfied it could provide a placement for Y in its consultation response.
50. I do not consider there is evidence of fault by the Council in dealing with the consultation response from the school. If Mrs X has concerns about the school’s confusion, then it is a matter for her to pursue directly with Ash School. As paragraph 11 explains we cannot investigate complaints about what happens in schools.

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Final decision

51. I have completed my investigation. I have found no evidence of fault by the Council in the way the Council carried out an assessment and prepared an EHCP for her son Y.

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Parts of the complaint that I did not investigate

52. As paragraph eight explains we cannot consider complaints where a complainant has been to a Tribunal. So, I cannot look at the concerns about the EHCP Mrs X has raised and been considered by the Tribunal.
53. I did not investigate Mrs X’s concerns about the alleged actions of the Council causing a delay during the tribunal hearing. This is because Mrs X exercised her appeal rights to the SEND Tribunal. The Courts have held that, when an appeal to the SEND Tribunal is made, we have no jurisdiction to consider related issues from the date appeal rights became available to the point at which the SEND Tribunal issues its decision. So, I cannot look at any issues Mrs X raises once she had the right of appeal to the Tribunal from June 2018 until the end of the hearing in October 2019. This includes Mrs X’s concerns about the costs she incurred as they would have been a matter for the Tribunal.
54. I did not investigate Mrs X ‘s complaints the Council delayed in completing the EHCP after the Tribunal’s decision in October 2019 as it was not completed until November 2019 and has not provided the provision agreed. Mrs X also complains the Council delayed in carrying out the Annual Review from November 2020. I consider these complaints to us are premature and Ms X needs to complain to the Council first and complete the Council’s complaints procedure. Once Mrs X has done so and if she remains unhappy with the response, she can complain to us about these matters

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Investigator's decision on behalf of the Ombudsman