Summary: Mr X complained the Council failed to carry out recommendations made at Tribunal, which led to Y being placed in a mainstream school that could not meet her needs for a full school year. He said this caused him significant inconvenience and negatively affected Y’s education. The Council was at fault when it failed to name a specialist school in Y’s EHC Plan within the deadlines set by the Tribunal. This caused Mr X and Y an injustice. The Council has agreed to issue an apology and a £800 financial award to be used for Y’s educational benefit.

The complaint

1. Mr X complained the Council delayed naming a suitable school for his daughter Y following the SEND Tribunal’s instructions to do so.
2. Mr X said this meant Y was placed in a mainstream school which could not meet her needs for a full school year.
3. Mr X said this caused Y emotional distress and negatively affected her educational development. He said this also caused him significant inconvenience and stress.

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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. 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.
6. If we are satisfied with an organisation’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

7. I made enquiries of the Council and considered the information it provided. This included Mr X’s summary of the complaint, Y’s EHC Plan, the Tribunal judgment, and complaint correspondence shared between Mr X and the Council.
8. I wrote to Mr X and the Council with the details of the draft decision. I did not receive comments before I wrote the final decision.

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What I found

Law

9. 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.
10. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for producing and reviewing EHC Plans.
11. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
12. As part of the assessment councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes:
• the child’s education placement;
• medical advice and information from health care professionals involved with the child;
• psychological advice and information from an Educational Psychologist (EP);
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and
• any other advice and information the council considers appropriate for a satisfactory assessment.

What happened

Background

13. Y is primary school aged and received a diagnosis of autism spectrum disorder in 2019. The Council produced a EHC Plan for Y in spring 2020.
14. In July 2020 Mr X appealed to the SEND Tribunal after the Council named a mainstream school in Y’s EHC Plan. Y began attending the mainstream school the following month, receiving teaching assistant support for 40 hours a week. We cannot investigate the contents of EHC Plans or the alternative provision Y received during the appeal as this is outside of our jurisdiction.
15. The Tribunal hearing took place on 7 December 2020 but the Council adjourned proceedings as neither of the schools proposed by Mr X (School A) or the Council (mainstream school) were suitable for Y’s needs.
16. The Tribunal extended the appeal to allow time to find an appropriate placement for Y to 12 March 2021.
17. The Council contacted Mr X in February 2021 with a list of specialist schools and Mr X told the Council he wanted School A named in Y’s Plan.
18. The Council approached various schools including School A and provided them with Y’s occupational therapy and speech and language therapy assessments. The schools were given 15 working days to advise whether they could meet Y’s needs.
19. The Tribunal held a second hearing on 8 March 2021. The Council told the Tribunal the specialist schools had not provided responses. The Tribunal noted that the mainstream school had adapted her provision and Y had made progress, but her needs were not being fully met and she required speech and language therapy and a placement at a specialist school. The Tribunal also noted that School A was not suitable for Y’s needs either.
20. The Tribunal instructed the Council to consult other specialist schools in the area and name a school within 2 weeks of the hearing and produce an amended plan within 5 weeks. The Tribunal recognised that COVID-19 would likely affect the Council’s ability find a suitable placement for Y before the next academic school year.
21. School A told the Council it did not have the capacity or resources to accept Y but another school told the Council it would accept Y. The Council says it approached Mr X at this point to discuss the situation, but Mr X still wanted his preferred school to be named in Y’s Plan.
22. Over the following months, Mr X chased the Council for updates on the situation but did not receive a meaningful response. The Council went on to produce Y’s final EHC Plan in July 2021 naming School A.
23. On 21 June 2021 Mr X complained the Council:
1. failed to name a suitable placement for Y within the set deadline;
2. ignored specialist advice stating Y’s needs could not be met in a mainstream school; and
3. failed to meet the deadline to complete the assessments recommended by Tribunal.
24. The Council responded on 7 July 2021. The Council told Mr X it approached several schools in March 2021 but some of the schools declined to accept Y and the impact of the COVID-19 pandemic delayed the schools from responding. The Council also said it received a positive response from a suitable school but Mr X preferred School A. The Council said it delivered Y’s EHC Plan 7 days after the deadline, which was not a significant delay and did not cause disadvantage to Mr X or Y.
25. The Council said it did not disregard the specialist assessments showing Y could not be taught at a mainstream school but conceded it could have submitted Y’s case before its complex case panel and this may have resulted in the Council instructing School A to accept Y on its register for a September 2021 start.
26. Y went on to attend School A from September 2021 onwards.
27. Mr X opted to bring his complaint to the Ombudsman as he remained unhappy with the Council’s actions. He said Y’s mainstream school reported she was distressed and unable to engage with lessons, causing him to spend time picking her up from school early. He maintained the Council unnecessarily delayed naming a school for Y, and this delayed her development.
28. In response to the Ombudsman’s enquiries the Council confirmed Y received a high level of support whilst it was attempting to finalise the Plan. The Council said it had only been able to place Y at School A due to working closely with the school to enable Y to join its register.

Findings

29. The crux of Mr X’s complaint is his unhappiness with the Council’s delay in naming a suitable school placement for Y. He further complained the Council disregarded professional advice showing a mainstream school could not meet Y’s needs. The Council has accepted there were delays and said they were caused partly by the COVID-19 pandemic. The law required the Council to produce an amended EHC Plan within 5 weeks of the date of the final hearing with a specialist school. The evidence shows the Council did not meet this deadline. This is fault. It is not possible to know the impact to Y if the Council had complied with the Tribunal’s ruling or submitted her case before the Complex Cases panel. However, the evidence indicates the Council was slow to take actions which might have meant Y received a suitable education earlier. It also clear from the Tribunal’s findings that Y’s needs were not being met, I consider it likely that Y’s educational development has suffered for the delay and deficit of provision. Further, Mr X has experienced an injustice due to the time and trouble spent chasing the Council regarding this matter.

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Agreed action

30. Within one month of the date of the final decision, the Council should issue Mr X with an apology for the time and trouble he experienced.
31. Within one month of the of the date of the final decision, the Council should provide a £800 financial award to be used as Mr X sees fit for Y’s benefit.

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Final decision

32. The Council was at fault when it delayed naming a suitable school in Y’s Plan. I have made recommendations to remedy the injustice this caused to Mr X and Y. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman