Summary: There was fault and delay in the way the Council responded to a request for a change of placement made at annual review. This led to a one-year delay in Y starting her new residential school and meant her parents had to provide a high level of care and home education for a year longer than would otherwise have been the case. The Council will apologise, make a financial payment, and make service improvements to address the injustice caused.

The complaint

1. Mr X complains on behalf of himself, his wife, and his daughter, whom I shall refer to as Y. Mr X complains the Council delayed in completing the 2019 annual review of Y’s Education, Health and Care (EHC) plan and in responding to a request to change Y’s placement. Mr X says this delayed Y being able to return to a school. Mr X says this meant he and his wife were placed under extreme stress due to Y’s care and home education needs. During the period of delay Mr and Mrs X were subjected to high levels of aggression by Y because he says the needs of Y and the family were not met by education and social care services.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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.
5. 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

6. I have considered information provided by Mr X and the Council including:
• Y’s EHC plans
• Special educational needs (SEN) documentation for Y
• Children’s social care documentation for Y
• Complaint correspondence
• Expert reports and consultations with schools.
7. I have considered relevant law and guidance including:
• The Children and Families Act 2014 and accompanying Regulations and Code of Practice (‘The Code’)
• The Children Act 1989
• The Chronically Sick and Disabled Person’s Act 1970
• The Breaks for Carers of Disabled Children Regulations 2011
• ‘Working together to safeguard children’ Statutory Guidance.
8. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
9. 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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What I found

EHC process and request to change school

10. Y has SEN and the Council maintained an EHC Plan for her. An EHC plan must be reviewed by the Council at least every twelve months.
11. Y was removed from mainstream school by her parents in June 2018 to be home educated. It was noted by the Council’s social care team in 2018 that Y was often violent to parents, her sibling and at school.
12. An annual review meeting was held on 23 October 2019. Mr and Mrs X requested the EHC plan be amended to name a special school placement.
13. Where a child with an EHC plan is not attending a school, the Code says the Council must prepare and send a report to everyone who attended the review meeting within two weeks. The report must set out recommendations on any amendments to the Plan and any difference between the Council’s recommendations.
14. The Council sent the report to Mr X on 25 November, which was over two weeks later than the timescale in the Code.
15. Within four weeks of the meeting the Council must decide whether to amend the plan, cease the plan or keep the plan the same. It must notify the parent of its decision including their right to appeal a decision not to amend or cease the plan to the SEND Tribunal.
16. If the Plan needs to be amended the Council should start the process of amendment without delay. It must send the parent or young person a copy of the existing plan and an accompanying notice providing details of the proposed changes. The Council must allow at least 15 calendar days for comments by the parent and young person and issue the amended EHC plan as quickly as possible and within eight weeks of the original amendment notice.
17. The child’s parents or a young person have the right to request a particular school including a maintained special school or an independent school approved by the Secretary of State. The Council must comply with this request unless the school would be unsuitable for the age, aptitude or SEN of the child, or the attendance of the child at the school would be incompatible with the efficient education of other children or the efficient use of resources.
18. The Council must consult the school concerned and consider any comments received before deciding whether to name the school in the EHC plan. Settings must respond to consultation requests within 15 days.
19. Parents can also make representations for independent schools not on the approved list and the Council must consider their request but is not under the same conditional duty to name the school in the Plan.
20. At any time, a Council can decide to carry out a statutory reassessment of the child’s needs if it considers this is necessary. The process for reassessment is the same as for a first assessment. The overall maximum timescale from the decision to reassess to the issuing of any amended final EHC plan is fourteen weeks, however the Council should aim to complete the process as soon as practicable.
21. Following Y’s annual review meeting in October 2019, the Council says Mr X agreed the annual review report in May 2020. It is not a requirement for the parent to agree the report so this would not have delayed other steps being taken.
22. The Council says Mr X agreed to continue to home educate Y until an agreed placement was found.
23. There were multi-agency meetings in 2020, but no progress with Mr X’s request for a new placement until July 2020. This was fault. The Council should have decided whether to amend the Plan within four weeks of 23 October 2019 and then proceeded to amend the plan and consult schools without delay. The Council delayed taking any action for seven months.
24. In mid-July 2020 a request for a residential school placement for Y went to the Council’s placement panel. The panel rejected the recommendation and instead decided that Y should undergo a statutory reassessment.
25. The Council’s view was that Y did not require a residential placement for educational reasons, but it intended to seek further evidence if it was merited for other reasons including the impact of Y’s behaviour within the home.
26. The statutory reassessment should have been completed with fourteen weeks of 16 July 2020, by 22 October 2020.
27. The final EHC plan naming a residential school placement was issued on 31 March 2021. This meant the reassessment took five months longer than the statutory timescale. This was fault. If the decision to reassess had been correctly made seven months earlier, the timescale to complete it would have been by March 2020, a year earlier.
28. There were several reasons for delay. The Council does not appear to have started the reassessment until September, despite the panel decision being in mid-July. The Council also did not start to consult schools until December 2020 after it had obtained up to date reports although parents provided three suggested schools in September. The Council also says that the parent’s preferred school had a longer than usual assessment process and sometimes parents were sometimes difficult to contact. It says that there was a shortage of school places and that even if it had consulted earlier this does not mean a place at the preferred school would have been available.
29. I acknowledge that the process is often longer with residential schools and the need for joint funding can also complicate the process. I also acknowledge that the Council considered it needed updated reports before it could prepare a draft plan and consult. However, this was a reason to start the process immediately in July (especially given there had already been delay between November and July), not wait until late September to start seeking assessments. Further, the decision to carry out a reassessment rather than just amend the Plan had already provided the Council with extra time (fourteen weeks rather than eight weeks to amend the Plan).
30. The Council had evidence from an educational psychologist on 30 October 2020 supporting a residential school placement. It should not have taken an additional five months to finalise the EHC plan so Y could start her new school. This was fault.
31. The Council has acknowledged in its reply to my enquiries that it did not follow the correct process to amend the EHC plan in that it never issued an amendment notice.
32. Mr and Mrs X did not have a right of appeal between the 2018 annual review and the issue of the final EHC plan in March 2021. This is fault as the expectation is that parents will have the opportunity to challenge the EHC plan annually.
33. The Council did uphold aspects of delay and poor communication on its part within the local complaints process but did not offer a financial remedy. The Council points to Y’s needs being met at her previous school and it being a parental decision to remove Y to home educate her until a placement they were happy with was agreed.

Social care

34. Social care assessed the family in 2018 due to risk of family breakdown under child protection processes. Social care accepted at that time that both Y and her sibling were often violent to parents, each other and to staff in school. The outcome was that the case was stepped down from child protection to child in need (CIN). Mr and Mrs X were offered a CIN assessment but declined social care involvement and instead successfully pursued a residential school placement for Y’s sibling.
35. In April 2019 Mr X requested a parent carer needs assessment (PCNA). Children’s social care (CSC) offered a children and family (C&F) assessment. The Council told Mr X the C&F assessment would encompass carers needs and it would not do a separate carer assessment. CSC closed the file in May 2019 when Mr X declined to go ahead. Mr X says this was because social worker visits had an adverse effect on Y and there was a risk Y would be violent to parents after such a visit. It is also clear the previous child protection proceedings had made Mr and Mrs X wary of social care involvement.
36. In Summer 2020 the Disabled Children’s Team (DCT) of CSC was asked to get involved to assess the need for a residential school. Mr X initially declined the assessment as the Council told him social workers could not advise on education placement and because of his previous experience with social care.
37. In September and December 2020 Mr X requested ‘respite’ support for himself and Mrs X as the family was ‘in crisis’ due to Y’s level of aggression to parents.
38. In October 2020, the Council received the EP report which recommended residential school to avoid family breakdown. Following this, Mr X was persuaded that for a residential placement to be named on Y’s EHC Plan would require social care involvement.
39. The C&F assessment was completed in December. The Council decided Y did not meet the criteria for DCT and her needs could be met through universal services (she attended various activities already) and via a new education placement. It was recommended Mr and Mrs X access parent training to manage Y’s behaviour. The Ombudsman cannot question professional judgments where there is no fault in the assessment process and so cannot question this decision. (Local Government Act 1974, section 34(3), as amended).
40. A further multi-agency meeting was held in January 2021 and at that point the Council reversed its decision and agreed to name a residential school placement jointly funded by social care and education. It says it did this for pragmatic and holistic purposes to prevent the breakdown of the family unit, rather than on the grounds of Y’s educational needs.
41. The Children and Families Act 2014 (Section 97) introduced a legal right for parents who care for disabled children to have a separate parent carer’s needs assessment (PCNA). The right was inserted into the Children Act 1989 (after section 17ZC). Local authorities must assess whether a parent carer has needs for support and if so, what those needs are, when:
• It appears to the authority the parent carer may have needs for support, or
• The authority receives a request from the parent carer to assess their needs for support, and
• The disabled child is cared for and the family are persons for whom they may provide or arrange services under Section 17 of Children Act 1989.
42. The Act says that a PCNA must include an assessment of whether it is appropriate for the parent carer to provide, or continue to provide, care for the disabled child, in the light of the parent carer’s needs for support, other needs and wishes.
43. The Council has acknowledged in its response to a draft of this decision that while it is usual practice to carry out a combined assessment for the child and the carers, it cannot have a blanket policy. It says it would make decisions on a PCNA on a case-by-case basis. It says potentially as the family had had an assessment in 2018, a further assessment may not have been justified even though the parents considered there had been a change in circumstances. However, the family had declined a child in need assessment in 2018 when the case was stepped down from child protection.
44. The Council told me the legislation requires it to ‘involve’ the child in the PCNA (s.17ZD(12)). Mr X was against visits to the home because this led to his daughter becoming dysregulated. I understand that when Mr X later agreed to the assessment his children were assessed virtually. It would therefore seem that a similar ‘remote’ approach could have been suggested when Mr X requested a PCNA in April 2019, rather than refusing to assess his needs as a carer at that time. I also note that there may have been sufficient information available to the Council from the previous assessment. I do acknowledge that COVID-19 has led to changes in the use of virtual meetings than may have been common in 2019.
45. I cannot speculate what the outcome of a PCNA may have been or whether it would have led to respite being provided to Mr and Mrs X. It is likely the assessment would have reached the same finding of that in December 2020 that needs should be met via a new education placement outside the home.

Injustice

46. I find there was delay by the Council in completing the 2019 annual review, the reassessment and in naming a school. This delayed Y starting her new school by one year.
47. Y was home educated and so did not miss out on education, as this was provided by her parents, although I acknowledge that a specialist residential school would have provided Y with access to a wider range of professionals to support her needs. The injustice was largely to her parents who missed out on the respite a residential school placement would have brought, who provided extra care, and who struggled with Y’s aggression to them throughout this period.
48. Mr and Mrs X were denied a right of appeal to challenge the contents of Y’s EHC plan, including the named placement between 2018 and 2021. The Ombudsman considers the loss of appeal rights to be an injustice.
49. Mr X says that his wife missed out on paid work due to home educating Y for an extended period.
50. Where the Ombudsman finds fault that causes injustice, we seek to put a person back in the situation they would have been in had the fault not occurred. When we recommend a payment, it is often a modest, symbolic amount. It is not our role to assess economic losses or award compensation. We also expect complainants to mitigate their loss.
51. It was Mr and Mrs X’s choice to remove Y from school and home educate her and to continue to do so while a placement of their preference was agreed. The Council’s view before and after the reassessment was that Y’s educational needs could be met via a day placement and such a place could have been provided sooner. Y now attends school on a 38 week placement so is home for 14 weeks per year, this will limit parental ability to work in any event.
52. I consider it is too speculative to link Mrs X’s loss of earnings to the Council’s fault. Mrs X was home educating before the events of this complaint and it is clear Mr and Mrs X were focussed on securing a residential school place as the way of meeting her and their needs. I do acknowledge that if Y had started at her school one year earlier that this would have freed Mrs X from caring responsibilities during that period and she may have chosen to work.

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Agreed action

Within 4 weeks of my final decision

53. The Council will apologise to Mr and Mrs X and Y for the faults identified by my investigation and the local complaint process.
54. The Council will make a financial payment to Y of £1000 to acknowledge the impact on her of the delay at starting at her school. The payment should be made in Y’s name and paid into a savings account in her name but supervised by parents.
55. The Council will make a financial payment to Mr and Mrs X of £2000 to acknowledge the impact of the fault on them; the distress, additional care, loss of appeal rights and uncertainty set out above.

Within 8 weeks of my final decision

56. The Council will review its EHC processes to ensure:
• Decisions after annual reviews are made promptly and the correct decision letters informing of appeal rights are issued.
• Requests for change of school are dealt with promptly, with schools consulted as early in the process as possible.

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Final decision

57. I have completed my investigation. There was fault and delay in the way the Council responded to a request for a change of placement made at annual review. This led to a one-year delay in Y starting her new residential school and meant her parents had to provide a high level of care and home education for a year longer than would otherwise have been the case.

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Investigator's decision on behalf of the Ombudsman