Summary: Miss X complained the Council delayed naming School A in her daughter’s Education, Health and Care plan resulting in unfair treatment and missed provision. We did not investigate the Council’s decision to name a type of school on the EHCP because Miss X had the right to appeal. However, we found the Council at fault because it did not address Miss X’s concerns of missed provision. We recommend the Council provide an apology, payment for distress and take action to prevent recurrence.

The complaint

1. Miss X complains the Council delayed naming School A on her daughter’s Education, Health and Care Plan (EHCP) from June 2019 to December 2019. She says this resulted in School A treating her daughter unfairly and failing to meet her EHCP provision from June 2019 to February 2020.

Back to top

What I have investigated

2. I have investigated whether the Council failed to ensure Y received her EHCP provision. At the end of this decision I have set out why I have not investigated other matters.

Back to top

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 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)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
7. 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.
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)

Back to top

How I considered this complaint

9. I spoke to Miss X and I reviewed documents provided by Miss X and the Council.
10. I gave Miss X and the Council an opportunity to comment on my draft decision. I considered their comments before making a final decision.

Back to top

What I found

Education, Health and Care Plans (EHCPs)

11. A council can name a school or a type of school in a final EHCP. A council should send a copy of the final EHCP to the parent and notify them of their right to appeal. If a parent is unhappy with the council’s decision they can appeal to the SEND Tribunal.
12. Councils have a duty to secure the provision in the EHCP. Councils can ask schools to arrange this but if a school refuses the council must do so. The Ombudsman will look for evidence a council was aware or should have been aware that provision was not in place. Where parents only raise concerns with a school, which is outside our jurisdiction, it is unlikely we can find the council at fault.

Council’s complaint policy

13. This says it is important to make a complaint as soon as possible, because the Council may not be able to consider a complaint about something that happened over 12 months ago.

What happened

14. Miss X’s daughter, Y, attended a mainstream school, School A. Miss X says she wanted Y to stay at School A but School A felt Y needed a special school.
15. The Council has provided a copy of Y’s EHCP dated 26 June 2019. This did not name a particular school but named the type of school; a mainstream setting. Y continued to attend School A.
16. The Council has also provided a copy of a letter dated 3 July 2019, addressed to Miss X. This refers to the enclosed final EHCP. It explains Miss X has a right to appeal and refers to websites providing further advice.
17. Y’s EHCP included the following specific provision:
• Weekly, 45 minutes to 1 hour, social communication and social skills group –individually at first.
• Weekly, 30 minute sessions, with a skilled adult (e.g. ELSA) on developing her emotional literacy. (ELSA- emotional literacy support assistant).
• Weekly 30 minute mentoring sessions with a skilled adult to identify and build on her strengths and self-worth.
• Life skills sessions (number and frequency not specified) until Y is emotionally ready to access the classroom environment.
• Y needs access to teaching from a qualified teacher wherever possible. Where this is not possible, Y needs access to a teaching assistant to ensure that she understands the work presented and so Y is not isolated at school.
• At the early stages of reintegration, Y needs adult support in class in relation to her anxiety. At times she may need one-to-one support but at other times she may be able to work independently.
• Y should be met in the mornings by a familiar adult. She also needs a check out at the end of the day.
• Y needs a safe place that she can go when she is feeling anxious.
• A planning meeting should be arranged with Y and her parents in order to set shorter term targets and agree monitoring and review arrangements. (Timing of meeting not specified).
18. I asked the Council for a chronology of contacts with Miss X and any actions taken by the Council to ensure Y received the provision in her EHCP from June 2019 to February 2020. I also asked for copies of any correspondence and records of any calls and meetings over the same period.
19. The Council’s chronology showed it had not contact with Miss X regarding any concerns over Y’s provision for the period. The limited documents the Council provided did not show any concerns raised either.
20. The Council provided a copy of Y’s EHCP dated 9 December 2019. This names School A. The provision mirrors the previous EHCP.
21. When I spoke to Miss X she said in January 2020 School A told her it would consider her complaint about the five month delay in naming it in the EHCP and two months loss of provision. It would consider whether it was responsible but if it found the Council responsible she would have to complain to the Council directly. Miss X said she understood this to mean she had to await the outcome of the School A’s complaint process before complaining to the Council.
22. At the end of February 2020 Miss X refused to send Y to School A as the family were unhappy about staff at the school chaperoning Y between lessons. Miss X said shortly after School A excluded Y from school and she went to court about this.
23. Miss X says School A provided its final complaint response in February 2021.
24. In March 2021 Miss X complained to the Council that it was indecisive and delayed naming School A with negative consequences. Further that she had raised concerns with the Council that School A was not meeting Y’s EHCP provision.
25. In April 2021 the Council told Miss X it would not consider her complaint as it was out of time.
26. Miss X explained to the Council she was awaiting School A’s response which she only received in February 2021.
27. The Council has provided a case note dated 22 April 2021 which says an email of 14 April 2021 from a Council officer “clearly evidences that the family were informed they should submit their complaint to SCC in a meeting dated 28 January 2020”.
28. The Council has also provided an extract of the meeting minutes of 28 January 2020 as referred in that email of 14 April 2021. These say:

“The Investigating Governor confirmed she would investigate the five-month delay related to the EHCP and then a further two months with no provision. However, [the Council officer] clarified that if this delay was shown to have been caused by SCC, the family would have to take this up via a separate complaints procedure directly with the LA.”

29. Because Miss X said she raised concerns with the Council and the Council had no record of these, I asked Miss X for evidence in support. She provided her notes of calls and meetings with Council officers and also copies of email correspondence. On review, I note the following points of relevance:
• 25 June 2019; Miss X emailed the Council with concerns over lack of support (unspecified) for Y at School A.
• 9 July 2019; Miss X emailed the Council that School A’s support was not consistent.
• 16 July 2019; Miss X says she met with the Council to discuss the lack of support.
• 8 August 2019; Miss X says she met with the Council to discuss the lack of support.
• 13 August 2019; Miss X emailed the Council with concerns over lack of support (unspecified).
• 18 September 2019; Miss X emailed the Council that School A was not meeting Y in the morning [as specified in the EHCP].
• 30 September 2019; the Council emailed Miss X that it had spoken to School A to say she had raised concerns and that she was to raise concerns with the school direct; the Council confirmed it did not discuss your concerns with the school.
• 30 September 2019; Miss X emailed the council with concerns over the attitude of School A’s 1:1 support.
• 10 October 2019; Miss X emailed the Council to say things were currently going fine at school.
• 17 October 2019; Miss X emailed the Council that she was unaware she could appeal the EHCP before a school was named.
• 20 November 2019; Miss X says she met with the Council to discuss the lack of support.
• 20 November 2019; The Council’s minutes of a meeting do not refer to any specific support as set out in the EHCP as having not been provided.
• 4 December 2019; Miss X says she met with the Council to discuss the lack of support.
• 11 February 2020; Miss X emailed the Council unhappy that School A were insisting on a specialist 1:1 but otherwise things were going smoothly.
• 14 February 2020; Miss X says she met with the Council to discuss the lack of support.
• 9 March 2020; Miss X says she told the Council School A had not provided ELSA sessions to Y in line with the EHCP.

Findings

30. Miss X’s complaint that the Council failed to ensure Y received the provision set out in her EHCP from June 2019 to February 2020 is out of time. However, she says she did not complain to the Council or Ombudsman earlier as she believed she had to await School A’s complaint response. I consider the Council’s note of the January 2020 meeting supports this, as it can be interpreted that Miss X had to complain to School A first. Taking this into account and, as it is still possible to investigate, I will exercise my discretion to investigate this complaint.
31. The Council refused to investigate Miss X’s complaint due to the time passed. The Council was entitled to reach this decision in line with its complaints policy, and so I do not find fault.
32. The Council was unable to provide any records of contact with Miss X wherein she raised concerns about Y’s EHCP provision, yet Miss X has provided evidence demonstrating significant contact took place. That the Council does not have records of key discussions and meetings is fault.
33. The evidence provided by Miss X shows she raised concerns with the Council about Y’s EHCP provision yet there is no evidence to show the Council acted on those concerns. This is fault.
34. There is a lack of independent or objective evidence that shows what provision Y missed over the period. However, I am satisfied there was a missed opportunity to resolve any issues, causing distress and uncertainty to Miss X.

Back to top

Agreed action

35. To remedy the injustice set out above I recommend the Council carry out the following actions:
36. Within one month:
• Provide Miss X with a written apology.
• Pay Miss X £300 for the missed opportunity and in recognition of the distress and uncertainty suffered.
37. Within three months:
• Identify why it cannot provide records of contacts with Miss X and if appropriate, take action to prevent recurrence. Then inform the Ombudsman of the outcome and any action taken.
• Provide training or guidance to the officers that liaised with Miss X, to ensure they understand the Council’s duty to secure EHCP provision and to act when made aware this is not being met.
38. The Council has accepted my recommendations

Back to top

Final decision

39. I find the Council at fault as it did not address Miss X’s concerns of missed EHCP provision. The Council has accepted my recommendations and I have completed my investigation.

Back to top

Parts of the complaint that I did not investigate

40. Miss X had the right to appeal the Council’s decision to name a setting rather than School A in Y’s June 2019 EHCP. The Council has evidenced it notified Miss X of her right to appeal and, even if she did not receive this, she could have sought third party advice. In comments on my draft decision Miss X explained she expected to resolve the issue through discussion with the Council and then ran out of time to appeal. However, this does not change my decision not to investigate. This is because Miss X could have chosen to appeal in time or asked the Tribunal to consider any late appeal.
41. I cannot investigate what happens in schools and so I cannot investigate Miss X’s complaint that School A treated Y unfairly.

Back to top

Investigator's decision on behalf of the Ombudsman