Summary: The Council failed to follow up its request for a school to bring forward an annual review of an Education, Health and Care plan within a reasonable timescale. This did not cause injustice to Mr X, as his son remained in a suitable school throughout.

The complaint

1. The complainant, who I shall call Mr X, complains the Council delayed considering his request for an alternative placement in October 2020 until the annual review in March 2021.
2. Mr X also complains the Council delayed making a decision after the annual review in March 2021.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
4. 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)
5. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
6. The SEND tribunal considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
7. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
8. Complaints about EHC plans may be within our jurisdiction depending on the complaint. We can investigate a complaint about an EHC plan if:
• The action relates to an administrative function of the council
• The action is taken by or on behalf of the council
• The action is not excluded by the provisions in paragraphs 4 or 6.
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 read the papers put in by Mr X and discussed the complaint with him.
11. I considered the Council’s comments about the complaint and any supporting documents it provided.
12. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal information and guidelines

13. 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. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
14. We can consider the other sections of an EHC plan. We do this by checking the Council followed the correct process, and took account of all relevant information, in deciding what to include. If we find fault affected the outcome, we may ask the Council to reconsider. We will not usually substitute our judgement for the judgement of professionals.
15. The Council is responsible for making sure that arrangements named in the EHC plan are in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.

Key facts

16. Mr X’s has a disabled son, Y. Y has an EHC plan and attends a specialist school.
17. In October 2020 there were emails between Mr X, Y’s school and the Council’s special educational needs team about Y moving to specialist residential college. The Council said in November 2020 it assumed Mr X requested the place for September 2023 when Y finished his current school. The Council said it then became aware the request to change the placement was immediate and on 30 November it asked Y’s school to arrange an annual review.
18. The Council says the school did not arrange for the annual review to be brought forward. The Council said it declined the request for the residential placement in February 2021. Mr X had no right of appeal against this decision as it was not made through the annual review process.
19. The annual review was due on 26 March 2021 but the Council did not receive the papers from Y’s school until 7 May 2021. The annual review did not name the residential placement and the Council told Mr X of his right of appeal on 15 June 2021. The SEND tribunal dismissed Mr X’s appeal in December 2021.

My analysis

20. It is clear there was some confusion about the request Mr X was making in Autumn 2020. Ideally the Council should have clarified with him exactly when he wanted the school placement from and advised him that he needed to request an emergency review to get a decision that gave him the right of appeal.
21. I do consider the Council should have chased up the school after it requested it bring the annual review forward. I consider this was fault, as once the Council recognised the annual review should be brought forward it should have ensured that the school did this.
22. There was a delay in getting papers from Y’s school. However, the SEND code of practice says that after a reassessment it should decide whether to issue an EHC plan within 10 weeks and finalise the EHC plan within 14 weeks. So, it seems to me there was no delay by the Council in issuing the decision after the annual review, as it was done within 14 weeks of the annual review in March 2021.
23. There was some fault by the Council. However, I do not consider it caused a significant delay or injustice to Mr X. Even if Mr X had received the EHC plan decision a few weeks earlier, it would not have altered the outcome of the appeal. Y has remained in a placement, which the SEND tribunal has been found to be suitable and so I do not consider any remedy is due on this complaint.

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Final decision

24. Subject to further comments by Mr X and the Council, I intend to complete my investigation of this complaint. This complaint is upheld, as there is evidence of delay but this did not cause injustice to Mr X and so no remedy is proposed.

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Investigator's decision on behalf of the Ombudsman