Summary: Mrs X complained the Council delayed completing her son’s (Y’s) Education Health and Care Plan (EHCP) and communicated with her poorly. Mrs X says this delayed the appeals process, caused distress and disrupted her son’s education. We find the Council at fault for failing to finalise Y’s EHCP on time and not communicating effectively with Mrs X. We recommend the Council apologises to Mrs X and her son, makes a payment for distress and uncertainty, and takes action to improve its processes going forward.

The complaint

1. Mrs X complains the Council:
• Delayed issuing Y’s EHCP from 15 February 2020 to 9 July 2021. This meant Mrs X was unable to appeal its content sooner.
• Failed to name Mrs X’s preferred school in Y’s EHCP. She now needs to appeal this and feels it is creating further disruption to Y’s education.
• Communicated poorly throughout, resulting in her spending time chasing the Council.
• Moved Y to a part-time timetable from November 2020, impacting his education. Further, Mrs X had to take time off work and incurred additional costs staying home with Y.

Back to top

What I have investigated

2. I have investigated the delays in issuing Y’s EHCP and the Council’s decision to move him to a part-time timetable. I have also investigated the Council’s communications with Mrs X.
3. I have not investigated whether the Council is at fault for not naming Mrs X’s preferred school, or the provision set out in Y’s EHCP. I have explained why at the end of this decision.

Back to top

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. 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 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)
7. SEND is a tribunal that considers special educational needs. We cannot investigate a complaint when someone has appealed to a tribunal. However, we may investigate whether there may have been a delay in the process which led to the tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
8. 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.
9. 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

10. I discussed the complaint with Mrs X and considered the information she provided.
11. I considered the Council’s comments about the complaint and the documents it provided in response to my enquiries.
12. I considered the SEND Code of Practice, the Children and Families Act 2014, and the following Ombudsman’s focus reports:
• ‘Education, Health and Care Plans: our first 100 investigations’ published in October 2017.
• ‘Not going to plan? Education, Health and Care Plans two years on’ published in October 2019.
• ‘Out of school…out of mind? How councils can do more to give children out of school a good education’ published in 2011 and revised in 2016.
13. I considered Mrs X and the Council’s response to a draft decision.

Back to top

What I found

Education, health and care plans

14. The Children and Families Act 2014 sets out support for children with special educational needs and disabilities (SEND). The ‘Special educational needs and disability code of practice’ (the Code) gives more details about how councils, schools and others should carry out their duties.
15. A child with special educational needs may have an EHCP. This sets out the child’s needs and how they should be met. The EHCP is set out in sections. We cannot direct changes to the sections about education or the setting named. Only the SEND tribunal can do this.
16. Councils must ensure EHCP provision is met. We can look at complaints about this. We can investigate where a council has not ensured provision, or where there have been delays in the process.
17. The Code says councils must review EHCPs at least annually. The review should focus on a child’s progress towards achieving the plan outcomes and consider whether the outcomes and supporting targets remain appropriate. Councils can consider holding an early review if there is a change in the child’s circumstances.
18. Councils must give notice to all those invited and seek advice and information from all parties. Following the meeting, councils must share a report with all parties within two weeks setting out any recommendations and amendments.
19. The council has four weeks from the review meeting to decide whether to maintain or amend the EHCP. It must present proposed changes to parents with an opportunity to comment and begin any amendments without delay.
20. The Code explains a council should name the parents’ preferred school in the EHCP. The exception to this is if it would not be an efficient use of resources or would be prohibitive to the efficient education of others.
21. Where the young person is due to transition from primary to secondary education, the council should review the EHCP and issue a final amended plan by 15 February, before the transition in September. The amended plan will either specify a type of secondary education or name the educational setting.
22. Councils should also tell parents they have a right to appeal the final EHCP to the SEND Tribunal.

Children out of school

23. Section 19 of the Education Act 1996 says councils must make suitable full-time provision for children of school-age who are absent from school because of illness, exclusion or otherwise. The provision must be suitable for the child’s age, ability, and aptitude, including any special needs. The provision may be part-time where the child’s physical or mental health means full-time education would not be in their best interests.
24. There is no fixed definition of full-time education, but it is generally considered to be between 22 and 25 hours a week. If the council thinks a child will be unable to cope with full-time provision, it may decide to arrange part-time provision but there must be a clear medical reason for this. Some forms of provision, such as one-to-one tuition, need not be full-time because it is more concentrated.
25. The Ombudsman’s focus report, referred to in paragraph 12, made recommendations to councils about provision for children out of school. This included keeping all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.

CAMHS

26. Child and Adolescent Mental Health Services (CAMHS) is a health service for children, and their families, who need support for mental health issues. CAMHS also carries out assessments for conditions such as autism.

Principles of Good Administrative Practice

27. In 2018, the Ombudsman published a document setting out principles of good administrative practice and what we expect to see from Councils.
28. This document recommends councils explains and responds to any delays proactively. It also recommends councils deal with people helpfully, promptly, and sensitively, taking account of their personal circumstances.

What happened

29. Y has special educational needs and was due to move into secondary education in September 2020.
30. Y’s EHCP, of July 2018, said he required extra adult support with tasks, differentiated work, and occupational therapy provided through inclusive teaching. The annual review of 2020 mirrored this.
31. Y’s parents asked the Council for a specialist school setting. However, the Council decided mainstream education was appropriate for Y.
32. Y’s parents still wanted a specialist school but agreed to have a mainstream school named on his EHCP. Mrs X’s preferred mainstream school agreed to be named on Y’s EHCP provided it received extra funding to cover his provision.
33. The Council missed the statutory deadline of 15 February 2020 to finalise Y’s transitional EHCP.
34. Despite numerous chasers from Mrs X, the Council still had not finalised Y’s EHCP by the time he started secondary school in September 2020.
35. On 3 September 2020, Mrs X wrote to the Council setting out her frustration with the process. Mrs X explained she had already had to chase several times, including by going to the town hall in person, but the EHCP still had not been finalised. Mrs X explained she still believed Y should be in a specialist school. Mrs X said she wanted to use her right to appeal and asked that the EHCP be finalised without further delay so she could do this.
36. On 16 September the Council issued draft 2a of Y’s EHCP.
37. In November 2020, CAMHS consulted with the Special Educational Needs Coordinator (SENCO) at Y’s school. CAMHS discussed concerns the transition to secondary school had been overwhelming for Y and this had resulted in some safeguarding concerns. CAMHS and the SENCO agreed Y should be placed on a part-time timetable to prevent the issues from escalating.
38. The school reviewed Y’s EHCP again on 14 December 2020. Y’s school informed the Council it could no longer meet his needs and the Council agreed to consult with specialist schools.
39. Following advice from the SENCO and CAMHS during the review, the Council agreed Y would continue a part-time timetable until the end of the school year.
40. On 19 January 2021, the Council issued draft 2b of Y’s EHCP. On 5 February Mrs X wrote to the Council asking for this to be finalised.
41. By April 2021, the Council had still not finalised Y’s EHCP. The Council began to consult with local specialist schools to arrange a place for Y for the next academic year.
42. Between 19 April and 7 May, Mrs X called the Council three times for an update. Due to staffing capacity issues, Mrs X did not get a response.
43. Consultations were sent out to specialist schools on 14 May. Mrs X told the Council of her preferred two choices on that day.
44. On 17 May, one of the consulted schools declined to offer Y a place due to space issues.
45. Mrs X raised a complaint with the Council on 21 May. She said the failure to finalise Y’s EHCP meant she was unable to appeal to the SEND tribunal to get her school of choice.
46. Following visits to the schools, Mrs X named her preferred school on 27 May and it offered Y a place the following day. The other school Mrs X named on 14 May had also offered a place for Y by then, but the Council continued to consult with other schools.
47. On 15 June another school declined to offer Y a place as it felt unable to meet his needs. The Council decided to consult another four schools on 24 June.
48. On 25 June, the Council issued a third draft of Y’s EHCP, but this was an incorrect copy. Mrs X contacted the Council which then sent a correct copy.
49. By now, the Council had offers from both schools Mrs X named as her preferences on 14 May. Although Mrs X had a preference between these, the Council decided to name the other school as it felt it represented a more efficient use of public funds.
50. Y’s EHCP was finalised on 9 July 2021, now naming a specialist school, almost 17 months after the deadline of 15 February 2020.
51. The provision set out in Y’s EHCP mirrored that of his previous EHCP but also had a focus on helping him transition to his new school environment.
52. Mrs X has decided to keep Y out of the new school setting pending an appeal to the SEND tribunal to minimise disruption if the appeal is successful and he is given a place at Mrs X’s preferred school. Mrs X believed the provision and setting in Y’s EHCP was not appropriate for his needs and felt sending him to school at that stage could be further detrimental to his wellbeing.
53. I asked the Council to explain why it missed the deadline to finalise Y’s EHCP and what action it took to ensure he did not miss out on SEN provision.
54. The Council explained the delay was due to its Special Educational Needs Team going through a restructure.
55. The Council said it had since tightened its phased transfer process. It had also defined clearer actions for the case officers and administration team to ensure finalised EHCPs by the relevant deadlines in future.
56. To ensure Y was getting the relevant provision, the Council confirmed it gave his school a copy of the review notes and his draft EHCP. The Council says it also shared information about Y’s attainment from his primary school’s SENCO prior to him being offered a place.
57. I asked the Council when it was first made aware Y had been put on a part-time timetable and what it did to ensure his full-time needs were being met. The Council explained it was first made aware of this during the annual review in December 2020 and this was based on CAMHS advice. It explained it agreed at that point to seek consultations for specialist settings for Y.
58. The Council provided me with Y’s finalised EHCP, his previous EHCP, the review notes and the EHCP drafts. It also provided me with a chronology of the communication between Mrs X and the Council.
59. The Council responded to a first draft of this decision to accept the recommendations made.
60. Mrs X responded to explain she felt not all her issues had been addressed. Mrs X explained she had repeatedly asked the Council to finalise Y’s EHCP prior to July 2021 so she could appeal it and the continued delay added to her stress. Mrs X explained the Council failed, throughout the process, to properly consult on specialist provision and she feels the Council was trying to save money rather than deliver the right provision for Y. She also says the Council has failed to live up to promises to provide alternative provision.
61. Mrs X explained she felt the delay in finalising Y’s EHCP has set him back significantly and it should have been clear in 2019 that mainstream education would not be suitable. Mrs X also pointed out she suffered monetary losses due to Y being out of full-time education. Mrs X has been out of work to look after Y when he is not at school and has had to pay to feed and occupy him where this would previously have happened at school. Mrs X also says she spent a considerable amount of time chasing the Council.

Analysis

62. The Council was at fault for not finalising Y’s EHCP by 15 February 2020. This fault meant Mrs X was unable to bring an appeal to the SEND Tribunal until July 2021 which created significant distress and uncertainty for her and Y.
63. Mrs X believes finalising the EHCP when she asked for this would have meant Y was placed in a specialist school much sooner than he was. I can understand Mrs X’s frustration here, but I cannot second-guess the outcome of any appeals.
64. I have compared Y’s final EHCP from July 2021 with the review notes and drafts that came before it as well as the final EHCP from July 2018. There were changes between the provision set out in the earlier EHCP and the reviews and later EHCP, but these largely relate to transitional arrangements. For example, the EHCP for July 2021 focuses on getting Y used to the new school setting, but this would always have been the case.
65. There is not enough deviation between EHCPs for me to safely conclude the delay meant Y was not receiving provision he otherwise would have had. I appreciate Mrs X disagrees with the provision set out in the July 2021 EHCP, but I cannot say what should or should not be in this. I have to base my findings on the evidence that is available.
66. From December 2020, the Council knew Y was not in full time education. The guidance states children should be in full time education unless there is a clear medical reason for this.
67. The review notes from December 2020 show the Council took advice from CAMHS. CAMHS explained Y’s placement in a mainstream school had a detrimental impact on his emotional and wellbeing needs. The Council considered this and the recommendation of the SENCO before deciding a part-time timetable was in Y’s best interests at that stage.
68. I appreciate Y being placed on a part-time timetable would have put Mrs X in a very difficult situation, meaning she incurred additional costs and was unable to work. However, I cannot find fault with the Council where it has followed a proper decision-making process.
69. Mrs X has mentioned extra provision the Council agreed to look into for Y, including a block of Occupational Therapy. However, I could not say the Council was at fault for not securing provision unless it was actually named in Y’s EHCP. Any further complaint Mrs X may have in this respect appears to be premature; it was not part of her initial complaint to the Ombudsman and I cannot see the Council has had chance to investigate.
70. Mrs X considers Y would not have been placed on a part-time timetable if he was attending a specialist school. I have not seen any evidence that would allow me to conclude that was the case. There are too many variables here for me to be able to say the school setting caused Y’s health issues and the Council was at fault for this.
71. The chronology of communication the Council has sent me does not appear to be an exhaustive one, though the information Mrs X has provided adds to this. Submissions from both parties show numerous instances where the Council did not update Mrs X and she had to chase to find out what was happening, and ask for the EHCP to be finalised. There is enough evidence for me to find, on balance, there was fault in the Council’s communications with Mrs X.
72. The Council ought to have been aware this was a stressful time for Mrs X and having to chase updates on a delayed EHCP would have added to this and put her to avoidable time and trouble.

Back to top

Agreed action

73. To remedy the outstanding injustice, I recommended the Council should:
74. Within one month:
• Provide Mrs X and Y with a written apology for failing to finalise Y’s EHCP by the deadline of 15 February 2020, and for failing to keep Mrs X properly updated throughout the process.
• Pay Mrs X £750 to recognise the distress and uncertainty caused by the Council’s delay and poor communication.
75. Within three months:
• Provide evidence to the Ombudsman of the Council’s new process to ensure EHCPs are completed on time.
• Put a process in place to ensure parents are regularly updated by their designated caseworker throughout the EHCP review process and provide evidence of this to the Ombudsman.
76. The Council has accepted these recommendations.

Back to top

Final decision

77. I find fault with the Council for failing to ensure Y’s EHCP was finalised on time. I also find fault with the way the Council communicated with Mrs X.

Back to top

Parts of the complaint that I did not investigate

78. Mrs X has complained the Council failed to name her preferred school on Y’s EHCP. She does not believe the Council has properly evidenced the named school is a more efficient use of public funds. Mrs X has also said she believes the provision named on Y’s EHCP does not reflect his needs.
79. I have not investigated these parts of Mrs X’s complaint as I am not able to say what provision or educational setting should be named in an EHCP. Concerns about provision or named schools should be directed to the SEND Tribunal.

Back to top

Investigator's decision on behalf of the Ombudsman