Summary: Ms B and Mr C complained the Council failed to adequately assess and then meet their son’s special educational needs and as a result he missed out on appropriate education in a school for almost two years. There was fault which caused injustice. We make recommendations at the end of this statement for how the Council can remedy this injustice.

The complaint

1. I refer to the complainants as Ms B and Mr C. They were represented in bringing this complaint by Ms D. They complained the Council failed to adequately assess and then meet their son’s special educational needs and as a result he missed out on appropriate education in a school for almost two years.

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What I have investigated

2. I have considered the events from June 2020. I explain at the end of this statement why I have limited my investigation in this way.
3. Nor have I considered events from the point at which the complainants had a right of appeal to the SEND tribunal in November 2020.

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The Ombudsman’s role and powers

4. 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)
5. Nor can we investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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.
7. 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)
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)

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How I considered this complaint

9. I considered the complaint and documents provided by Ms D and spoke to her I asked the Council to comment on the complaint and provide information I sent a draft of this statement to Ms D and the Council and considered the comments from them and Ms B and Mr C.
10. 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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What I found

Summary of the relevant law, guidance and good practice

11. A child with special educational needs 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.
12. The Special Educational Needs and Disability Code of Practice (SEN code of practice) says an EHC plan should be reviewed every 12 months. Within four weeks of the review meeting, the local authority must decide whether it proposes to keep the plan as it is, amend the plan, or cease to maintain the plan, and notify the child’s parent or the young person. If the plan needs to be amended, the local authority should start the process of amendment without delay.

Summary of what happened

13. Ms B and Mr C’s son, X, had an EHC plan which specified he could attend a mainstream primary school. In 2019 Ms B and Mr C decided to withdraw X from school because of bullying and to educate him at home. In September 2019 X was due to transfer to secondary school. The EHCP named a mainstream school, school F as being able to meet his needs. That school was where the children who had bullied X in primary school attended. X remained home educated.
14. In June 2020 Ms B told the Council they considered an independent special school would be appropriate for X, school G. There was a review of X’s EHCP. Following this the Council said it intended to continue to name school F for X.
15. In September 2020 Ms B and Mr C sent X to school G for three days a week as they could not afford to send him for five days a week.
16. At the beginning of November the Council issued the EHC plan naming school F. Ms B and Mr C appealed. They arranged for further assessments to be carried out of X to gain an up-to-date understanding of his needs.
17. In April 2021 the Council conceded the appeal and agreed to name school G in the EHC plan. X started there full-time later in April

Analysis

18. Ms B and Mr C consider the final decision to name their preferred school indicates they were right all along and that a mainstream place was not going to be suitable for X. I understand their position, but it is not for us to consider what school meets X’s needs as that is for the tribunal. They rightly appealed against the Council’s decision on the provision for X. And, even though it was conceded before it came to be heard, the fact that they appealed means I have no jurisdiction to consider any events after that point.
19. I can consider how the Council considered their requests for a change in X’s educational provision before then. This was first raised in June 2020 and was followed later that month by a review. This was followed by a second meeting at the end of July. Ms B and Mr C considered that was only necessary because the officer had not made a proper record of the meeting. The Council commented the officer had mislaid the summary they had made of Ms B’s views but it was also to hear X’s views. I have seen the email from the officer requesting a second meeting which supports the position that this was needed because they had lost their note of the first meeting. This was fault. It meant the process was delayed at this point by five weeks.
20. The Council issued an amendment notice at the end of September. This was not proposing to change the named school. The advocates acting for Ms B and Mr C received it but they did not. The Council commented it was waiting for confirmation of Ms B’s email before issuing it. I do not understand why that would be necessary as there had already been extensive email communication. However, as the advocate did receive it in September this is not a significant point.
21. There was then correspondence about this at the end of October when the mix-up became clear. The Council then issued the final EHC plan at the beginning of November. This gave Ms B and Mr C the right to appeal which they did.
22. The question is whether there was fault by the Council, within the period I can consider, which led to injustice to Ms B and Mr C and X.
23. After the review meeting on 24 July the Council had four weeks to issue the amendment notice. The notice was issued on 25 September. That was nine weeks so a delay of five weeks. Once the amendment notice had been issued there is no set time-frame for the Council to do the amendments. Guidance says it should be completed as soon as possible. Once Ms D had been in touch with the Council at the end of Oct the final EHC plan was issued speedily so I do not consider there was any delay there.
24. Had there been no delay then the whole appeal process would have been moved forward by the five weeks I refer to above. This meant that X was only attending school for three days a week, and Ms B and Mr D were having to pay for that, for five weeks longer than they should. The Council should reimburse the cost of the fees for five weeks. It should also make a payment to reflect the loss of the two days a week education which X missed. A payment of £200 would be fair. It should also make a payment of £200 to Ms B and Ms D to reflect the additional stress the delay caused to them.
25. In June 2021 Ms D complained to the Council. The Council declined to consider the complaint as it considered the matters raised could have been considered as part of the tribunal process. This decision was not properly made. If a matter has been considered as part of a tribunal then it would be right for the Council to decline to consider it under its complaint procedures. But here the matters that were being raised as part of the complaint were more wide-ranging than the matters that were the subject of the appeal. The Council should have considered what matters were separable from those that were part of the appeal and which it could consider as a complaint.

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Agreed action

26. Within a month of the final decision the Council will reimburse Ms B and Mr C for five weeks of the fees they paid for X attending school G for three days a week. And for the period after the Council had agreed X should attend school G before it took over the fees. It will also make a payment to reflect the transport costs for the same period. And it should pay an additional £400 as explained in paragraph 24. It will also apologise to Ms B and Mr C for the faults found.
27. The Council should also provide evidence to us to show what action it has taken to ensure that its complaint process is not wrongly constrained in its application. It should do that within two months of the decision.

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Final decision

28. There was fault which caused injustice.

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Parts of the complaint that I did not investigate

29. Complaints should be made to us within a year of the complainant believing the Council may have done something wrong. Ms D complained to us in August 2021. They had complained to the Council in June 2021 after X had started at school G in April. There was a significant change in June 2020 when Ms B and Mr C said they would like X to attend school G. It is reasonable to exercise our discretion to consider events from that point which is slightly over a year before the complaint was made to us. But there is no basis to extend our investigation to earlier events as it would have been possible for a complaint to have been made sooner.

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Investigator's decision on behalf of the Ombudsman