Summary: The complainant alleged that the Council misled her into thinking it would name her preferred school placement when issuing her daughter’s final amended Education, Health and Care Plan, that it delayed in implementing a Tribunal Order and delayed in holding an annual review in 2020. We find fault in some aspects of this complaint. The Council has accepted the recommended actions to remedy the injustice caused. We are therefore closing the complaint.

The complaint

1. The complainant, who I refer to as Mrs X, complained that:
1. the Council misled the complainant that it would name her preferred school, (School Y) in her daughter’s (D’s) final Education, Health and Care (EHC) Plan of August 2020, but it did not do so, naming instead D’s current school, (School Z);
2. the Council delayed in implementing the Tribunal Order of June 2021 and failed to arrange a social care assessment as ordered by the Tribunal; and
3. the Council failed to ensure there was an annual review in December 2020.
2. Mrs X says that the Council’s faults have caused her and D avoidable distress and D has missed out on suitable education.

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What I have investigated

3. I have looked at events from August 2020. Matters, which I have not investigated, are set out in the last paragraph of this statement.

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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 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)
6. SEND is a Tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
7. When investigating complaints, if there is a conflict of evidence, the Ombudsman may make findings based on the balance of probabilities. This means that during an investigation, we will weigh up the available evidence and base our findings on what we think was more likely to have happened.
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)
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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How I considered this complaint

10. I have obtained the Council’s comments on the complaint, which Mrs X has responded to. I have also spoken to Mrs X on the telephone.
11. I have taken into consideration the findings of the Ombudsman’s previous investigation which dealt with matters up to August 2020. That investigation found that the Council delayed in issuing D’s final amended EHC plan.
12. I issued a draft decision statement to Mrs X and to the Council, and have taken into account their further comments when issuing this final statement.

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What I found

13. A child with special educational needs (SEN) may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them.
14. The council has a duty to secure the provision in an EHC plan (Section 42 Children and Families Act 2014). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
15. We recognise it is not practical for councils to keep a close eye on whether schools are providing all the special educational provision for every pupil with an EHC plan. However, councils should show care in discharging the duty to arrange SEN provision and should investigate any complaints or concerns that provision is not in place.
16. The procedure for reviewing and amending EHC plans is in law and guidance. There should be a review within 12 months of issuing a plan and then within 12 months of any previous review. (SEN Code paragraph 9.168)
17. A council can delegate the arranging and holding of the review to a school or college. But councils must make sure these reviews take place. The council and school or college must co-operate to ensure a review takes place.
18. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
19. Where a council proposes to amend an EHC plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
20. The SEN Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
21. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
22. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.
23. Section 9.83 of the Code states that, once a school placement is named in the final Plan, the pupil must be admitted to that school. The Code at 9.78 to 9.80 encourages councils to work in partnership with parents when deciding on a suitable school placement.
24. In certain cases, councils can direct a school to take a pupil where it is considered its reasons for refusing admission are not reasonable
25. Councils should amend an EHC Plan within five weeks of the Tribunal order.
26. A Tribunal can order educational provision. But it can only make recommendations about health or social care provision. A parent/carer cannot appeal to a Tribunal if only dissatisfied with health or social care.

Background

27. Mrs X’s daughter, D, has been diagnosed with autistic spectrum disorder (ASD), mental health conditions and special educational needs. D has had an EHC plan since 2017.
28. D had been refusing to attend school (School Z) due to her mental health. So, in January 2019, Mrs X and the school agreed a reduced timetable for D. In June, D stopped attending school.
29. In September, Mrs X asked the Council for an emergency review of D’s EHC plan. At this time, the Council received a letter from a clinical psychologist which said school could become an overwhelming environment for D. He said D’s mental health was a significant barrier to her accessing the school environment, and that she would likely need significant support to resume her education.
30. In November, the Council reviewed D’s EHC plan. In February 2020, the Council sent its decision letter, saying it intended to maintain D’s EHC plan but would amend it to update the content.
31. In March 2020, Mrs X complained to the Council. Later that month, the Council sent Mrs X its proposed amended EHC plan. The Council also responded to Mrs X’s complaint.
32. The Council said Mrs X did not yet have a right to appeal the EHC plan but would have the right to appeal once the plan had been amended and finalised. It accepted that the proposed amended plan was late, given that the review was held in November 2019.
33. In July, the Council responded to further complaints from Mrs X. It said D remained on roll at School Z. It outlined the education provided to D, what efforts the Council had made to date to find an alternative placement and explained that COVID-19 had caused delays.
34. In August, the Council issued D’s final amended EHC plan, which gave Mrs X the right to appeal the content of the plan. Mrs X lodged her appeal against the plan in mid-September.
35. The previous Ombudsman investigation found fault by the Council in its delay in issuing the amended final EHC plan. But the previous investigation was not in a position to consider what injustice might have been caused by this delay because we did not have the Tribunal appeal decision. This decision was not known until June 2021 when the Tribunal ordered D to be placed at School Y as requested by Mrs X.
36. But the previous Ombudsman investigation did not find fault by the Council in offering D a part-time timetable after D stopped attending School Z in June 2020. This was because of D’s difficulties in accessing education.

Facts of this complaint-Findings

Complaint (1): that Mrs X was misled

37. In January 2020, Mrs X asked the Council to consider a change of placement and requested a place at School Y, an independent school. The Council agreed to consult School Y. D then had some taster sessions there. School Y said that these had gone well and said D needed to spend an assessment week at the school.
38. In August, the Council told Mrs X that it would consider placement at School Y after the assessment week and if School Y offered a place. Failing that, the Council said it would consider a placement at another specialist school. The Council said that it would name the current placement (School Z) in the meantime. But that the final EHC plan could be amended when a new placement was established.
39. The Council issued a final amended EHC plan naming School Z. Unfortunately, the assessment week at School Y could not go ahead because of Covid-19. School Y then said that it could not offer a placement after it had read D’s EHC plan.
40. Mrs X lodged an appeal to the Tribunal in September 2020. She says that the Council raised her expectations that it would name School Y prior to the issue of the final EHC plan. However, she says that at this stage the Council had not referred the case to the SEN funding panel and did not do so until October 2020. Mrs X believes that this only happened because she had appealed.
41. The Council says that, in response to School Y refusing a place for D, it offered an ASD Consultant to support the school and asked it to reconsider. School Y was unwilling to do so. School Y is not a school the Council could have directed it to admit D.
42. The Council says that it did not mislead Mrs X into believing that it would name School Y in the August 2020 final amended EHC plan. It considers it made it clear that it would only be able to offer a placement at School Y if School Y agreed this. But it did not and therefore it named D’s current school.
43. My view is that the Council did not commit itself to naming School Y prior to issuing the August 2020 EHC plan. It said it would offer a placement if School Y offered a place. But it told Mrs X that in the meantime it would name D’s current school.
44. The Council was also aware that it had already delayed in issuing the final amended EHC plan and therefore considered it best to issue, even if it could not name a more suitable placement, because this gave Mrs X the right of appeal to the SEND Tribunal. This was appropriate because, through the appeal process, Mrs X was able to successfully appeal, and an agreement reached that D should attend School Y.
45. So, while I accept that the Council raised Mrs X’s expectations, I do not consider it committed itself to naming School Y prior to the issue of the final EHC plan. On that basis, my view is that the Council has not been at fault.
46. However, the Council is at fault in its delay in issuing the final EHC plan. The annual review took place in November 2019, but it was not until August 2020 the final amended EHC plan was issued, some nine months later. My view is that the Council should have issued the final EHC plan by March 2020.
47. Had this happened, Mrs X would have been able to appeal sooner and would have achieved a placement for D at School Y sooner. I note that the Tribunal process took a long time to conclude (ten months). But D started at School Y at the end of May 2021, so it took nine months for the appeal process to achieve a suitable placement for her.
48. This appeal process took longer than normal, and six months is generally the time taken. So, but for the Council’s delays in amending the EHC plan, D could have started at School Y by the beginning of September 2020. So, on that basis, D has missed out on a suitable education between September 2020 to the end of May 2021, some eight school months.
49. I recognise that D received some education during this period. I have taken this into account when recommending a way to remedy D’s injustice.

Complaint (2): delay in amending the EHC Plan after the Tribunal Order of 21 June 2021 and failure to carry out a social care assessment

50. Mrs X has provided information about the Tribunal process. But the Ombudsman does not have the jurisdiction to comment on what happened during the appeal process.
51. However, the Tribunal’s Order of June 2021 referred to the social care assessment presented, as part of the appeal, as inadequate. The assessment said that D had no social care needs. The Tribunal recommended a fresh assessment of D as a possible child in need under section 17 of the Children Act 1989, also an assessment under section 2 of the Chronically Sick and Disabled Persons Act and an assessment of her transition to adulthood.
52. The Council’s SEN department told social care of these recommendations. It seems that social care did not agree to the Tribunal recommendation. The SEN department sought legal advice and were told that it should issue the amended final EHC plan and remove any provision which social care did not agree to.
53. The Council issued the final amended EHC plan on 2 September 2021.
54. The Council accepts that this plan was not issued within the required five weeks. But this period fell during the summer holidays and therefore D did not miss suitable education as a result. So, while there is some fault, D has not suffered an injustice as she has not missed out on suitable education.
55. However, the Council did not adhere to the Tribunal recommendation regarding social care. Mrs X could not appeal against the final amended EHC plan in respect of the Council’s failure to follow the Tribunal social care recommendation. It is not clear to me why social care acted as it did. Therefore, I do not consider I can make a finding on this. But I consider this is a complaint which the Council has not investigated.
56. I have recommended a way to resolve this.

Complaint (3): Failure to hold an annual review on time in November 2020

57. The Council says it was unaware that there had not been an annual review in November until officers met Mrs X in the December. Mrs X says that the Council was aware of the need for an annual review in November 2020 prior to the meeting of December.
58. The Council says that Mrs X did not want School Z to be involved in the review and therefore the Council agreed to arrange this itself. Mrs X wanted certain professionals to attend. They were not able to make the dates offered by the Council for January 2021, but could attend the review on 5 February.
59. Councils normally expect schools/colleges to set up an annual review and provide the relevant information. But councils must ensure reviews take place and, in this case, the Council agreed to arrange the review given Mrs X’s wish for School Z not to be involved.
60. While the November review was delayed, my view is that there were reasons for this, and therefore I do not find the Council at fault.

How the Ombudsman remedies injustice caused by fault

61. The Ombudsman’s guidance on remedies makes the following points:
• for injustice such as distress, harm or risk, the complainant cannot usually be put back in the position they would have been, but for the fault. Therefore, we usually recommend a symbolic payment to acknowledge the impact of the fault;
• there must be a clear and direct link between the fault identified and the injustice to be remedied;
• distress can include uncertainty about how the outcome might have been different;
• where the avoidable distress was severe or prolonged, up to £1,000 may be justified but we may recommend more in exceptional cases;
• where there has been a loss of education, the Ombudsman recommends between £200 to £600 per school month.

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Agreed actions

62. The Council will within six weeks of the date of the final decision statement:
1. apologise and pay £3,200 to Mrs X for the eight months of a loss of suitable education for D between September 2020 to May 2021 (£400 per school month) to be used for her educational benefit. I have recommended this rate because it seems that some education was available to D during this period;
2. pay Mrs X £300 for her avoidable distress caused by the delays in issuing the final amended EHC plan (the Council had already agreed £300 in the previous Ombudsman’s investigation); and
3. if Mrs X wants to make a formal complaint about social care’s actions in respect of its failure to accept the Tribunal recommendation, the Council has agreed to consider this under the statutory Children Act complaints procedure. Mrs X should make a written complaint about this to the Council within four weeks of the date of this final statement.

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Final decision

63. I consider there has been some fault causing an injustice to D and to Mrs X. The Council has agreed a way to remedy this and, therefore, I am closing the complaint.

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Parts of the complaint that I did not investigate

64. Mrs X remains dissatisfied with the Ombudsman’s previous decision in relation to the provision of education during the period of 2019 and August 2020. I have not investigated this because this has already been considered.
65. Mrs X had a right of appeal to the Tribunal in August 2020 which she exercised. The Ombudsman cannot investigate matters once an appeal right becomes available and the matters complained of are inextricably linked to the Tribunal appeal. This also includes the Ombudsman being unable to investigate the education provided during the appeal process.
66. But I have investigated Mrs X’s complaint that she was misled prior to the issue of the final EHC plan of August 2020 and I have considered the full impact of the delay in issuing this.

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Investigator's decision on behalf of the Ombudsman