Summary: Mr F complains about the Council’s delay in completing an Education, Health and Care plan for his son. He also complains about a delay finding a special school and poor communications from the Council’s officers. The Ombudsman upholds the complaint. The Council has agreed to our recommendations.

The complaint

1. The complainant (whom I shall describe as Mr F), complains the Council:
• took more than twice as long as it should have to issue a final Education, Health and Care (EHC) plan for their son (whom I shall refer to as G);
• has not put in place the special school placement set out in its EHC plan;
• has been poor in its communications with them.

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What I have and have not investigated

2. For the reasons set out in paragraphs 6 and 7, I have not investigated the contents of G’s EHC plan. But I have considered delay in the EHC assessment process. I have also considered how the Council sought to meet the provision set out in the final plan.
3. Mr F complains about matters that happened over 12 months before his complaint to the Ombudsman (see paragraph 4). But the appeal process did not conclude until the beginning of August 2021 (and the Council had earlier refused a complaint). Mr F first approached the Ombudsman in Sep 2021. Given this chronology, I have decided I can investigate back to the original referral to the Council for an EHC assessment.

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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. 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)
6. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)
7. 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.
8. 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)
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. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr F;
• made enquiries of the Council and considered its response;
• spoken to Mr F;
• researched information about special school provision in the County;
• considered earlier Ombudsman decisions on complaints against the Council around EHC provision;
• sent my draft decision to Mr F and the Council and considered the responses I received.

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What I found

Legal and administrative background

Education, Health and Care Plans

11. A child with special educational needs may have an 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 SEND Tribunal can do this.

Timescales and process for EHC assessments

12. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the SEN Code’) sets out the process for carrying out EHC assessments and producing EHC plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. The SEN Code says:
• one of the principles underlying the SEN Code is that councils need to have regard to the views, wishes and feelings of the child and their parents, to support them in decision-making; and
• councils must ensure that children and their parents are involved in discussions and decisions about their support.
13. The SEN Code also says:

• the process of assessing needs and developing EHC plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable;
• as part of the assessment, councils must gather advice from relevant professionals. Those consulted have a maximum of six weeks to provide the advice;
• the whole process, from the point when an assessment is requested until issuing the final EHC plan is issued, must take no more than 20 weeks (unless certain specific circumstances apply); and
• councils must give the child’s parent 15 days to comment on a draft EHC plan.

14. Section I of an EHC plan sets out either a named school or type of setting. At the draft stage, parents can name a particular school. A council is then required to consult that school and must name that school unless one of the following conditions applies:
• the school requested is unsuitable for the age, ability, aptitude or special educational needs of the child or young person concerned, or
• the attendance of the child at the requested school would be incompatible with:

“(i) the provision of efficient education for others, or

(ii) the efficient use of resources.” (SEN Code paragraphs 9.79-9.80)

15. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance. Reviews should happen at least annually.

Home to school travel times

16. The Department for Education (DfE) issues statutory guidance for councils on Home to school travel and transport for children of compulsory school age. This:
• says, as a general guide, the maximum journey time to school, for a primary school pupil, should be 45 minutes; but
• notes it is not always possible to restrict the travelling time to 45 minutes.

The sufficiency duty

17. Councils have a duty to provide education to every child or young person of compulsory school age (age 5-16) in its area. It must keep its educational provision under review to ensure the provisions available are sufficient to meet the needs of its children and young people. The education provided must be suitable. The Education Act 1996 defines suitable education as “efficient education suitable to [a child’s] age, ability and aptitude and to any special educational needs he may have.”

What happened

18. G was born in 2016. In 2020 he was diagnosed with an autism spectrum disorder (ASD). On 24 March of that year, the nursery G was attending (located in a mainstream primary school, which I shall refer to as School B), requested the Council carry out an EHC assessment.
19. The Council decided to carry out an assessment and, by the beginning of May, sought advice to inform the assessment. It did not receive advice from its Educational Psychology Service until mid-December 2020. The day after it received this advice, its panel decided to proceed to produce a EHC plan for G.
20. Before issuing a draft plan, the Council asked a ‘specialist resource’ hosted at a mainstream school (School C), to observe G. School C’s staff observed G at School B. School C advised the Council that G’s needs were too complex to be met, long-term, in a unit hosted in a mainstream school. The Council says, therefore, it decided it was not in G’s best interest to move to School C, only to have to move again to a more specialist setting.
21. The Council issued its draft EHC plan on 22 April 2021 and a final plan on 7 May. It named School B as a suitable school.
22. Later in May, Mr F lodged an appeal. At the time of lodging the appeal, Mr F also complained. The Council did not accept the complaint, because Mr F was appealing the decision.
23. Towards the end of July, the Council agreed to change G’s EHC plan to show he needed a special school. It issued an amended final plan in early September.
24. G’s amended EHC plan named School B as an interim placement, until the Council found him a place at a special school. The Council says G moved from School B’s nursery to the school in September 2020. He started to attend full-time from 4 October 2021. The Council says School B has provided G with full time 1:1 support and a fully individualised timetable and curriculum since he started. The school also used resources developed to assist children with ASDs.
25. The Council began consulting two special schools near to where G and his family live: School D (Mr F’s preferred option) and School E. It checked with the schools about places in July and November 2021 and February, May, July and October in 2022. Both schools reported they had no spaces and admitting G would be to the detriment of the current students at the schools (see paragraph 14).
26. The Council has now secured a place for G at School D, due to start in September 2023.
27. The Council carried out an annual review of G’s EHC plan in May 2022. School B reported that G’s needs were significant and he could not access the full Year 1 curriculum. He had made some limited progress. But he needed “…more opportunities to develop his speech, language and communication skills in an environment that can support it e.g. sensory spaces”.
28. The Council issued a revised EHC plan in September 2022. This was amended to include details of planning for G’s transition to School D the following September.

Mr F contacts the Ombudsman

29. Mr F first contacted the Ombudsman in September 2021. One of Mr F’s complaints was about a lack of response to his attempts to contact the Council’s EHC coordinator. We asked the Council to consider the complaint. It acknowledged a change in coordinator and apologised for any frustration that had caused.
30. Mr F came back to us in November 2021, citing more problems with contacting the allocated coordinator. We asked the Council for an update. It advised G’s allocated coordinator was absent from work. So it would ask the team manager for another coordinator to contact Mr F. We asked the Council to consider Mr F’s complaint.
31. In July 2022 Mr F complained to the Ombudsman about the delay and the ongoing lack of a special school placement for G. We accepted the complaint. In response to my enquiries, the Council:
• acknowledged the delay in the EHC assessment and offered the family £300;
• advised that, in its consideration of alternative options to School D and School E, it was restricted in what schools it could consider, because of the DfE’s prescribed maximum home to school journey times of 45 minutes for primary age children (see paragraph 16). Schools D and E were the only appropriate special schools within the maximum journey times;
• its view was School B’s interim provision was “…an appropriate interim alternative”;
• it had advised G’s parents of the outcomes of each consultation with School D and School E. But, because of the lack of alternatives, the Council had not specifically discussed with G’s parents other possible options in providing the special school provision;
• advised that in the period of its delay in producing G’s EHC plan:
1. School D had not admitted any children withing the same age range or profile as G;
2. School E had admitted one child of the same age and profile as G (following a SEND Tribunal decision).
32. In relation to the wider issues the complaint highlighted, the Council advised:
• educational psychology capacity was a challenge for the Council. But the situation was steadily improving. It gave me figures showing the average waiting time for a report in November 2021 was 24 weeks. But by November 2022, this had reduced to 13 weeks;
• there had been £120 million of investment into new specialist provision locally. It had opened two new special schools, although neither of these were in the correct SEND category for G, nor near enough for him to attend.
33. I have checked earlier decisions we have made about the Council, about similar issues. In one complaint, the Council advised us of steps it was taking to improve its Educational Psychology Service’s response times. It had developed a partnership with a local university and had commissioned private providers.

Was there fault by the Council?

The EHC assessment

34. The Council should have produced its EHC plan by 12 August 2021. It completed its first plan on 7 May 2022. None of the exemptions allowed by the statutory guidance apply, so that is a delay of around 37 weeks.

Service failure

35. The Council is under a mandatory duty, in relevant cases, to seek advice from an educational psychologist. The law allows it six weeks to obtain that advice. There was a delay of around 30 weeks in the Council receiving the educational psychologist assessment, from its own Educational Psychology Service. That accounts for the majority of the delay in the EHC assessment.
36. The Council has explained steps it has, or is, taking to address delays in the process. In response to this complaint, it has shown average times for completing assessments has reduced.
37. The Ombudsman can make findings of fault where there is a failure to provide a service, regardless of the reasons for that service failure. So I accept the Council had challenges in meeting the statutory time limit for educational psychology reports, and that it is working on resolving them. But the delay was a service failure and, so, fault.

Finding a special school

38. The Council says G could not have started at a special school any sooner, as there were no places available, at the only available schools, until September 2023.
39. Sourcing a suitable place was not a straightforward matter to resolve. But, where there is no suitable maintained school available within the normal options, we would expect a council to consider alternatives. The Council says no others were available, because:
• the assessment by its specialist unit at School C was that it could not meet G’s needs long-term. So it made a decision moving G would not be in his best interests; and
• other suitable special schools are further away than the DfE’s guidance on maximum distance.
40. But:
• Mr F might have had a different view about whether providing the interim provision at the specialist unit might have been a benefit in the short-term and in G’s best interests; and
• the DfE travel guidance itself acknowledges there may be reasons why a council may depart from it.
41. I acknowledge the other options were not ideal. And that the interim provision at School B might have been the best available. But I would still have expected, in line with the principles set out in the SEN Code (see paragraph 12), for the Council to have had a conversation with G’s parents about this. I have seen no evidence the Council did this. I find the Council’s lack of consultation with the parents to be fault.
42. More generally, Mr F reported problems in contacting officers for updated. The Council’s response suggests the poor communications were at least in part because of officer turnover. My decision is that not having a procedure in place to deal with such situations was fault.

Did the fault cause an injustice?

43. The Council should have made its decision on G’s EHC plan in August 2020. The Council notes, during the delay, School E admitted a child of a similar age and profile to G. While we cannot say with certainty that G would have secured this placement, the uncertainty itself is a significant injustice.
44. From July 2021 the Council has accepted G needed a special school placement. The Council has told us its view was that School B was meeting G’s needs. However, this is inconsistent with advice from School B as evidenced in the records of the annual review in 2022. It noted some progress but said G still needed specialist provision. So, while I accept that while School B’s interim provision mitigated the injustice to an extent, it did not remove it.
45. The poor communications with Mr F were a key factor in his having to contact the Ombudsman. So this will have caused him some unnecessary time and trouble.
46. In relation to the other options, I have discussed the travelling time with Mr F. He says if the Council had discussed considering special schools further away, they would have decided to wait for a place at a school nearer to them. So my the fault in not consulting them on this option did not cause a significant injustice. But not consulting about a move to School’s C’s unit does cause some additional uncertainty.

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Agreed action

47. The Council has offered £300 for the delay in its assessment. Using the Ombudsman’s Guidance on Remedies as a guide, the Council’s proposal is insufficient to remedy the injustice caused to Mr F and G.
48. I recommended that, within one month of my final decision, instead of the Council’s proposal, it:
• write to Mr F apologising for the faults I have identified;
• pay Mr F £1000 as a symbolic payment for the uncertainty about whether they might have found G a special school place earlier, but for the delay;
• pay Mr F an additional £150 for the avoidable time and trouble the poor communications will have cause him.
49. Within three months of the final decision, I recommended the Council should:
• remind its relevant officers of the Code’s requirement for them to discuss with parents any alternative options before making decisions about these options;
• implement a procedure for providing parents with an alternative contact when, as here, officers are absent from work for an extended period.
50. The Council has agreed to my recommendations. It should provide us with evidence it has complied with the above actions.

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Final decision

51. I uphold this complaint. The Council has agreed to my recommendations, so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman