Summary: Mrs D complains about the Council’s handling of her son F’s Education, Health and Care plan. She says it did not adhere to the Special Educational Needs and Disabilities Code of Practice. Mrs D says she had to pay for privately arranged therapy and F missed education due to the Council’s failures. We find fault by the Council for how it managed F’s Education, Health and Care plan. However, the Council has already offered Mrs D an apology and proportionate payment for the distress its actions caused.

The complaint

1. Mrs D’s complaint about the Council’s handling of her son’s Education, Health and Care (EHC) plan has several parts which are detailed below. I will refer to her son as F in this statement.
2. Mrs D says the Council did not adhere to the Special Educational Needs and Disabilities (SEND) Code of Practice (COP) when reviewing her son F’s EHC plan between November 2018 and September 2020.
3. Mrs D says the Council did not consider a range of schools for F to attend from 2019. Mrs D says the school that the Council did select could not meet his needs and the school told the Council this was the case.
4. Mrs D says the Council did not agree to pay for therapies privately arranged for F by Mrs D because it said the required provision was available at the education placement contained in F’s EHC plan. Mrs D says that even if F had attended the placement specified in his EHC plan, the school was unable to provide the relevant level of therapy F required in his EHC plan.
5. Mrs D says the Council is refusing to pay for the services of a professional adviser that Mrs D used to process her complaint to the Council, and assisted Mrs D in challenging issues with F’s EHC plan.
6. Mrs D says the Council has only offered a financial remedy for three months when F was out of education and did not receive the provision specified in his EHC plan, when in fact he did not receive his provision for twelve months.
7. Mrs D says the Council failed to take Mrs D and F’s views into consideration when deciding what provision would be included in F’s EHC plan.
8. Mrs D says the Council did not adhere to a signed mediation agreement.
9. Mrs D says that during the tribunal process, the Council lied in documents submitted to the SEND Tribunal and unnecessarily delayed the process.
10. Mrs D says the failures of the Council has caused her and her family distress and had a negative impact on their lives. She says F missed out of education for twelve months. Mrs D also said this has had a considerable financial impact as she has had to pay for privately arranged provision for F and a lead professional advisor.

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What I have investigated

11. I have investigated the complaints listed in paragraphs 2, 3, 5 and 7. Reasons for parts of the complaint I did not investigate are detailed later in this decision statement.

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The Ombudsman’s role and powers

12. 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.
13. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
14. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide there is not enough evidence of fault to justify investigating, or we could not add to any previous investigation by the organisation or further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6))
15. 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

16. I read the complaint and the Council’s responses.
17. I spoke to Mrs D on the telephone and considered material she provided.
18. I read relevant legislation and guidance.
19. I invited Mrs D and the Council to comment on the draft decision and considered any comments made in response.

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What I found

20. A child with special educational needs (SEN) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
21. Parents have a right of appeal to the SEND Tribunal if they disagree with the SEN provision, the school named in their child's plan, or the fact that no school or other provider is named.
22. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC Plan we cannot seek a remedy for lack of education after the date the appeal was submitted if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407)
23. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.

Annual reviews

24. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
25. 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)
26. 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)
27. The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
28. 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)
29. 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.

Reviews of F’s EHC plan

30. Mrs D said the Council did not follow legislation and the SEND COP when reviewing F’s EHC plan as it did not adhere to relevant timescales and did not review F’s EHC plan at all in 2019.
31. In response to Mrs D’s complaint, the Council said an annual review of F’s EHC plan took place on 6 November 2018. It said it sent out its notification to amend F’s plan on 30 November 2018, therefore meeting the statutory requirement to issue such a notification within four weeks of the annual review meeting.
32. Mrs D said she did not receive a notification to amend the EHC plan until much later.
33. The Council also said F’s draft amended EHC plan was not issued until 3 May 2019 and acknowledged this was some time after the decision was made to amend the EHC plan. It also said the final version of F’s EHC plan did not meet the required timescales.
34. The Council said that F’s EHC plan was not reviewed at all in the 2019/20 academic year, and it is unclear why it was not reviewed.
35. The Council accepted it was at fault and said it is arranging training for its staff and implementing new processes to prevent this happening again.
36. It also offered a financial remedy for the distress caused. The amount offered was £500 for Mrs D and £500 for F. It also offered a further £500 for the time and trouble taken by Mrs D in resolving the issues with the Council’s SEND team. It said the delays also led to a loss of education provision for three months which the Council has offered to pay Mrs D £600 per month, totalling £1800, to remedy the injustice caused.

Considering different schools

37. Mrs D said the Council only considered one school for F’s post-19 education and left it too late when consulting with another school. She said the placement the Council chose could not meet F’s needs, and the school told the Council that was the case.
38. The Council said it consulted with Mrs D’s preferred school and one other school, in addition to the school chosen by the Council.
39. The Council said it considered numerous factors when choosing the placement offered to F.

Payment for a lead professional advisor

40. Mrs D said she had to employ a lead professional advisor to assist her because of the Council’s failures to follow relevant legislation and guidance. She said the lead professional advisor assisted her to challenge and appeal F’s EHC plan and helped her through the complaints process. Mrs D said the Council is refusing to pay the costs incurred by Mrs D for employing the lead professional advisor.
41. In response to Mrs D’s complaint, the Council said that it was Mrs D’s choice to pay for an independent lead professional to advise her. It also said there was free independent advice available through other means.

Taking views into consideration when developing F’s EHC plan

42. Mrs D said the Council did not take her or F’s views into account when deciding what provision to include in F’s EHC plan.
43. The Council said Mrs D requested changes to Section A of F’s draft amended EHC plan to reflect her views and F’s history and hopes for the future.
44. It said F’s views were to be obtained by the school he was attending at that time, but it issued a final amended plan without making any changes so Mrs D’s right of appeal to the SEND Tribunal was not further delayed.
45. It said Section A was amended following the appeal to the SEND Tribunal.

Analysis

Reviews of F’s EHC plan

46. The Council has admitted it was at fault for not adhering to the SEND COP when reviewing F’s EHC plan. It has committed to making service improvements and offered a financial remedy. The remedies offered by the Council are suitable for the injustice caused and are in accordance with the Ombudsman’s guidance on remedies.

Considering different schools

47. The Council consulted with three schools for F to attend, including the one preferred by Mrs D, and made a decision taking into account relevant factors. I do not find fault with that approach. The suitability of the school place offered to F was a matter that was appealed to the SEND Tribunal, and the Ombudsman cannot investigate that.

Payment for a lead professional advisor

48. It was Mrs D’s choice to seek additional support through a lead professional advisor. The Council is not responsible for providing such services. There was free and independent advice available, and it was Mrs D’s choice to hire someone instead of using the free service. I do not find fault in the Council’s decision not to pay the costs of the lead professional advisor.

Taking views into consideration when developing F’s EHC plan

49. The Council had a plan in place to obtain F’s views for his EHC plan but issued it without having obtained those views, so it did not delay Mrs D’s right of appeal to the SEND Tribunal any further.
50. The EHC plan was not issued in time, as detailed earlier in this statement, and that fault has an impact on Mrs D and F’s views being considered. It was also fault by the Council to issue the EHC plan having not obtained the views of Mrs D and F, although I understand the Council not wanting to delay the right of appeal any longer. I do not consider there to be further injustice caused to Mrs D or F in this specific aspect of the complaint, that has not already been addressed earlier in this statement.

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Final decision

51. I close this investigation with a finding of fault against the Council for the reasons mentioned in this statement. The Council has already offered suitable personal remedies for the injustice caused and committed to making service improvements.

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Parts of the complaint that I did not investigate

52. Mrs D said she had to pay for private speech and language therapy (SALT) during the period F was out of school. She said even if F had attended his named school, it was unable to deliver the provision contained within his EHC plan.
53. The Council said that F’s named school could deliver F’s provision including his SALT needs. It said the school had agreed to deliver this via a different model. The Council said Mrs D decided not to take up this offer of provision whilst awaiting the outcome of tribunal proceedings.
54. Mrs D appealed to the SEND Tribunal about the provision contained in F’s EHC plan. If someone lodges an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. The SALT provision would have been supplied by the named school which Mrs D appealed to the SEND Tribunal about. Therefore, the therapy provision cannot be separated from the element that was appealed to the Tribunal and it is inextricably linked.

Education provision

55. Mrs D said F was out of education for twelve months, but the Council has only offered a financial remedy for three months. She said the school F was offered a place at, was not suitable, so she did not send him.
56. The Council admitted it was at fault for three months where F did not have an education placement due to its failures. It offered a financial remedy, as detailed earlier in this statement, of £600 per month, which totalled £1800. It also said the placement that was offered to F after the three months he was out of education was suitable, and his provision was available had he attended.
57. The remedy offered by the Council for the lost provision is suitable and in accordance with the Ombudsman’s guidance on remedies. Further investigation by the Ombudsman is not going to lead to a different outcome. The issues that led to the fault are mostly involving the Council’s failure to adhere to the SEND COP requirements around reviews of EHC plans. Service improvements for those issues have been considered in an earlier part of the complaint.
58. The suitability of the education placement F was offered was appealed to the SEND Tribunal, and the Ombudsman cannot investigate that. If Mrs D chose not to send F to the specified placement whilst awaiting the Tribunal, the Council did not have to provide an alternative.

Issues during the SEND Tribunal process

59. Mrs D said the Council lied in documents submitted to the SEND Tribunal and unnecessarily delayed the process. The Council denies this allegation.
60. I have considered the delays leading to the right to appeal an EHC plan to a tribunal elsewhere in this statement.
61. The way the Council conducts itself within the Tribunal is a matter for the Tribunal. The Tribunal makes case management directions, has powers to deal with non-compliance and can make costs orders.

Mediation

62. Mrs D said that the Council did not adhere to a signed agreement following mediation.
63. The Council said there had been delays completing the actions following the mediation meeting and it had not communicated these delays to Mrs D, despite her asking the Council for updates. It apologised.
64. It said once an appeal was lodged to go to the SEND Tribunal, the Council could no longer carry out the actions from the mediation.
65. Mediation is part of the Tribunal process and occurs after a right of appeal has become available to Mrs D. If the mediation fails, Mrs D can take the matter to the SEND Tribunal, which she did in this case.

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Investigator's decision on behalf of the Ombudsman