Summary: Mrs X complained that the Council failed to name a school in her son’s Education, Health and Care plan within legal timescales and delayed issuing the final plan. Mrs X said the delays denied her a right to appeal to the Tribunal, and caused her uncertainty, frustration, and stress. She also said it took time and trouble to resolve the problem, and had a significant impact on her and her family. We find the Council at fault, and this fault caused Mrs X and her son injustice. The Council has agreed to apologise and make a payment to Mrs X to reflect the injustice.

The complaint

1. The complainant, who I refer to here as Mrs X, complains that the Council failed to name a school in her son’s Education, Health and Care plan within legal timeframes, and delayed issuing the final plan.
2. Mrs X says the delay issuing the final plan denied her right to appeal to the SEND tribunal. She says the delays caused uncertainty, frustration, and stress. She says it took her time and trouble to resolve the problem, and it had a significant impact on her and the family.

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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. 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)
5. 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.
6. 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

7. I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
8. I considered the relevant legislation and statutory guidance, set out below. I considered the Ombudsman’s published guidance on remedies. I also considered Ofsted’s Special Educational Needs and Disability (SEND) inspection (published 14 July 2021) and the Council’s ‘SEND Improvement Update’ (dated October 2021).

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What I found

What should have happened

9. Under the Children and Families Act 2014, when an Education, Health and Care needs assessment is completed by a council and it shows a need for special educational provision, the local authority must prepare and maintain an Education, Health and Care (EHC) plan.
10. The government issued the Special Educational Needs and Disability Regulations (‘the Regulations’) in 2014 and the Special Educational Needs and Disability Code of Practice (‘the Code’) in January 2015. The Code provides statutory guidance on the law and the Regulations.
11. The Code says a council must review and amend an EHC plan in sufficient time before a child moves between key phases of education. This is to allow for planning and, where necessary, commissioning support and provision at the new educational placement. The Code says the review and any amendments must be completed by 15 February in the calendar year of the transfer – at the latest – for transfers into or between schools.
12. The key educational transfers are from primary to middle school, primary to secondary school, and middle to secondary school.

What happened

13. Mrs X’s son, S, has special educational needs and an Education, Health and Care (EHC) plan. He was due to start secondary school in September 2021.
14. In early February 2021, Mrs X confirmed with the Council the names of the three schools she preferred. By the end of February, all three schools told the Council they were not suitable for S’s needs.
15. In March, the Council asked Mrs X about a possible placement for S at six other schools. Mrs X questioned the suitability of these proposed schools, given S’s needs. The Council then suggested two other schools.
16. Mrs X complained to the Council. She said the Council had not named a school for S’s start in secondary school in September, and had missed the deadline of 15 February. She also complained about the suitability of schools the Council had suggested.
17. The Council agreed there was a delay in naming S’s school. It recognised there had been significant difficulties and delays in communication. It also recognised the delay was not acceptable and apologised.
18. The Council also upheld Mrs X’s complaint about the suitability of schools it suggested.
19. In April, the Council issued a final EHC plan naming a school that had not offered S a place.
20. In May, the Council consulted with another school (School A). In June, School A offered S a place to start in September.
21. In July, the Council issued a final EHC plan naming School A.
22. In August, the Council issued a further final EHC plan naming a different school.

Analysis

Failing to name a school and delays issuing the final EHC plan

23. The Council accepts that it did not issue S’s final EHC plan by 15 February 2021 as it should have. This is fault. The Council did not issue S’s final EHC plan (naming the right school) until July. This is a delay of four and a half months.
24. The Council says the reason for its delay was significant staffing issues. The Council says this impacted on its ability to meet the timescales set out in law.
25. I find the fault caused Mrs X and S injustice. The fault caused uncertainty, frustration, and avoidable distress. I find that the delay denied Mrs X an opportunity to appeal the named school at the SEND Tribunal before the start of term in September. I also find that Mrs X spent time and trouble trying to resolve the problem.
26. The Council, in its complaint responses, recognised that the delay was not acceptable and apologised.

Suggesting inappropriate schools

27. The Council accepts that it should not have suggested three of the schools it did suggest, based on S’s age, aptitude, and special educational needs. This is fault.
28. The Council says the staff member who suggested these schools no longer works for the Council. It says the records do not explain why it suggested these schools.
29. The Council recognises this was an error. It recognises this error caused Mrs X uncertainty and avoidable distress, which are injustice. I also find that Mrs X spent time and trouble chasing the Council to say these were inappropriate schools given S’s needs. This is also injustice.

Issuing final EHC plans naming the wrong school

30. The Council issued a final EHC plan in April, naming a school that had not offered S a place. This is fault.
31. The Council says this error was caused by incorrect information being recorded in its system.
32. I find this fault caused Mrs X injustice because it caused uncertainty. The Council has apologised for this error in its complaint response.
33. The Council also issued a final EHC plan in August, naming the wrong school. This is fault.
34. The Council says this error was caused by administrative oversight. It says the final EHC plan it issued in July, naming School A, was the correct EHC plan.
35. The Council recognises that this fault caused Mrs X uncertainty and avoidable distress. This is injustice.

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Agreed action

36. Within four weeks of this decision, the Council has agreed to apologise to Mrs X and S in writing for suggesting inappropriate schools and for issuing a final EHC plan in August naming the wrong school.
37. I am satisfied that the Council has already apologised for the delay in issuing a final EHC plan naming the right school, and for issuing a final EHC plan in April naming the wrong school.
38. Within four weeks of this decision, the Council has agreed to provide Mrs X written confirmation that the final EHC plan issued in July is the current final EHC plan, and the one issued in August is not valid.
39. Within four weeks of this decision, the Council has agreed to make a payment to Mrs X of £675 to reflect the injustice caused.
40. In arriving at this figure, I have considered the Ombudsman’s published guidance on remedies. I have taken into account the length of time involved, S’s vulnerability, and the impact of the delay on S and Mrs X. I have also taken into account: the uncertainty, frustration, and avoidable distress caused; denying Mrs X an opportunity to appeal; and Mrs X’s time and trouble. Further, I have taken account the impact of COVID-19 at the time of the delay.
41. Bearing those factors in mind, I consider a payment of £150 for each month of delay is proportionate and appropriate. £150 multiplied by the four and half months of delay is £675.
42. The Ombudsman will need to see evidence that these actions have been completed.
43. I have considered Ofsted’s Special Educational Needs and Disability (SEND) inspection of the Council (published 14 July 2021). This says that in 2018, Ofsted found 13 areas of significant weakness. The 2021 inspection was to re-visit those 13 areas.
44. Ofsted’s 2021 inspection found the Council had made significant progress in addressing only one of these 13 areas of significant weakness. Ofsted found “turbulence in staffing”. It said children’s transitions between schools were not positive experiences. It noted that poorly planned transitions lead to stress and anxiety for the children and their families.
45. Ofsted’s 2021 inspection also found parents struggled to get the advice and support needed, particularly at crucial times like moving between schools.
46. In October 2021, the Council published an update on its progress since Ofsted’s inspection (the Council’s ‘SEND Improvement Update’). The Council said as a result of Ofsted’s findings, the Department for Education had appointed a commissioner to hold the Council to account in making the required improvements.
47. The Council said the Department for Education and NHS England also requested that the Council prepares an Accelerated Progress Plan in conjunction with parents and carers. This plan is to demonstrate how the Council will resolve the 12 outstanding areas of significant weakness identified in the original Ofsted inspection in 2018. The Council’s update outlines what it will be doing to address those areas of significant weakness.
48. I find the issues underlying the fault in this case are being addressed in the appropriate manner by the appropriate bodies. I have therefore not proposed any improvements to the Council’s service.

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Final decision

49. I have completed my investigation. I uphold Mrs X’s complaint because I find fault causing her and her son injustice. The Council has agreed to take action to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman