Summary: Ms Y complained the Council failed to follow the proper process for, or provide the support set out in, her son’s Education, Health and Care (EHC) Plan. She complained it failed to provide an appropriate school placement and did not communicate properly with her. We have found fault by the Council in the way it structured the EHC Plan, failed to make appropriate provision, delays in the process and communication failures, which caused injustice. The Council has agreed to remedy this by apologising, making payments to acknowledge Z’s loss of education and reflect Ms Y’s time and trouble, and making a service improvement.

The complaint

1. The complainant, who I am calling Ms Y, complains about the way the Council dealt with her son, who I am calling Z’s, Education, Health and Care Plan (EHC Plan) and his Special Educational Needs (SEN) provision.
2. Ms Y says the Council failed to:

• arrange the SEN support set out in Z’s EHC Plan;
• provide Z with an appropriate educational placement;
• follow the proper process when issuing his EHC Plan; and
• communicate properly with her.

3. Because of the Council’s failures, Z has missed out on SEN provision he should have received, impacting his wellbeing. The situation has put pressure on the family, causing them a lot of stress and considerable anxiety for Ms Y.
4. Ms Y wants the Council to arrange a suitable placement for Z and pay compensation for the SEN provision he has missed.

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What I have and have not investigated

5. 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)
6. I have investigated events from November 2020. Ms Y brought her complaint to us in November 2021. I do not consider there are good reasons why a complaint about things that happened before November 2020 could not have been brought to us before November 2021.
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. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. Where someone has appealed, we cannot investigate the matter under appeal. (Local Government Act 1974, section 26(6)(a), as amended)
9. I have not investigated the complaint about the content of Z’s plan. This is because I consider it reasonable for Ms Y to have exercised her right to appeal to the SEND Tribunal if she was unhappy with this.

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The Ombudsman’s role and powers

10. 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)
11. 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)
12. 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

13. I spoke to Ms Y, made enquiries of the Council and read the information Ms Y and the Council provided about the complaint.
14. I invited Ms Y and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

What should have happened

Education, Health and Care Plan (EHC Plan)

15. A child with special educational needs may have an EHC Plan. This sets out the child’s needs and arrangements for meeting them.
16. Councils have a duty to arrange the special educational provision set out in an EHC Plan. (Children and Families Act 2014 section 42)
17. We cannot direct councils to make changes to the special educational provision set out in the plan or to name a different school. Only the SEND Tribunal can do this.

Annual Reviews

18. The special educational needs and disability code of practice (the Code) provides statutory guidance about the procedure councils should follow when reviewing an EHC Plan. The Code says a council must:

• review an EHC Plan at least every 12 months;
• within two weeks of the review meeting, prepare and send out a report setting out any amendments it proposes to make to Plan;
• within four weeks of the review meeting, decide whether it will keep the Plan as it is, amend, or cease to maintain it. The Council must notify the child’s parent of its decision;
• start the process of amendment without delay, if the Plan needs to be amended;
• send the draft Plan to the child’s parent and give them at least 15 days to give views and make representations on the content; and
• when proposed changes to the draft Plan are agreed, amend the Plan and issue the final EHC plan as quickly as possible, and within eight weeks of the date the Council sent the proposed amendments to the parents.

19. Where the Council does not agree the changes suggested by the child’s parent it may still proceed to issue the final EHC plan.
20. In any case the Council must notify the child’s parent of their right to appeal to the SEND Tribunal and the time limit for doing so.

What information to include in an EHC Plan

21. The Code says the special educational provision required by the child should be set out in section F of the EHC Plan and must be detailed and specific and should normally be quantified, for example, in terms of the type, hours and frequency of support and level of expertise.

What happened

22. I have set out a summary of the key events below. It is not meant to show everything that happened.
23. Z has Special Educational Needs (SEN). He has a diagnosis of Autistic Spectrum Condition (ASC). He has had an EHC Plan since 2016.

School year 2019/2020

24. An annual review of Z’s EHC plan was carried out in March 2020.
25. A final amended plan was issued in June 2020. The setting was a named mainstream primary school additionally resourced for pupils with ASC (School A). The plan set out the following overarching SEN provision in section F:

• An educational placement with a broad and balanced curriculum, taking into account Z’s learning, language and social communication needs;
• A modified environment meeting the needs of a child on the autistic spectrum;
• Staff working with Z should have training in working with children with ASC and be familiar with approaches to support children with ASC;
• Low tech Augmentative and Alternative Communication support to enhance Z’s communication and speech;
• Z required adult assistance for most classroom activities and to enable him to access all aspects of the national curriculum. He would need assistance during transitions around new environments and busy periods;
• Regular sensory breaks and OT sensory diet implemented throughout the day;
• A setting with access to group and individual Speech and Language Therapy; and
• A high ratio of adults per class.

26. Further SEN provision in the plan included structured 1:1 or group adult-led activities tailored to Z’s learning needs.

Annual review - school year 2020/2021

27. In March 2021, Ms Y told the Council the June 2020 EHC Plan had not taken into account school and parent comments. Z needed further support and was not receiving sufficient 1:1 provision. Ms Y said she was calling for an emergency annual review.
28. A meeting of professionals working with Z, Ms Y and Z’s father took place on 23 March. Z’s parents told the meeting he needed more 1:1 support at school.
29. The annual review of Z’s plan was held on 1 April 2021. The Council noted Ms Y wanted Z to attend a special school. The school and the Educational Psychologist agreed this was appropriate as Z was making little progress. The Council decided to refer the request for a special school placement to its Complex Needs Panel meeting in May.

April 2021

30. The Council sent Ms Y a draft amended EHC plan on 8 April. In the covering letter it gave Ms Y the opportunity to comment on the proposed changes.
31. Ms Y replied with her comments on 20 April. She said:

• Z’s SEN provision in section F should be specific and quantified – setting out the type of support, level of expertise, number of hours and frequency;
• She wanted the Council to name School B, an independent special school, as Z’s placement; and
• The Council was required to consult with School B.

32. The Council told Ms Y her comments would be considered but might not be included in the final plan. Z’s current school (School A) would be named as his placement but the request for a special school placement had been referred to the Panel. If another school was identified, this would be named in an amended final plan.

May 2021

33. On 8 May Ms Y asked the Council why the final amended EHC plan had not yet been issued and about her request for a special school placement and consultation with School B. She chased the Council for a response on 11 May.
34. On 20 May, Ms Y asked the Council for an update on changes to the plan agreed on 14 May and the outcome of the Panel meeting. She said the Council’s communication needed to improve.
35. The Council sent Ms Y a further draft amended plan the same day. It also told her the Panel had considered a placement for Z at School C, but this school did not have any vacancies. It was waiting for School B’s response to the consultation and in the meantime, it would consult another school, School D. Z’s case would then be referred back to the Panel.
36. On 26 May the Council received the following responses to its consultations:

• School B said it could potentially meet Z’s needs pending further assessments. If the Council wanted to continue the consultation it should ask Z’s current school to arrange an assessment visit;
• School D said it did not have a place for Z in the appropriate key stage group; and
• School E (which Ms Y had asked the Council to consult) said it did not have a suitable peer group for Z.

June 2021

37. On 17 June Ms Y asked the Council for an update on a special school placement. She also asked whether Z would receive additional support in the meantime. The Council told her the consultation responses had been received and Z’s case would be considered by the Panel on 24 June.
38. Ms Y then queried the position with School B’s response. She asked why the Council had not progressed the consultation by arranging an assessment visit.
39. Ms Y chased the Council for an update on 28 June.

July 2021

40. The Council told Ms Y on 1 July the Panel had decided to await the outcome of a consultation with another special school, School F and maintain Z’s placement at his current school until then. The Panel also asked for consultations with special schools G, H, I, and J.
41. The Council also told Ms Y Schools D and E could not offer Z a place. The Panel had considered School B’s response, that it could potentially offer Z a place. But as School B was an independent school, the Panel had to consider the efficient use of resources and had asked for the consultations with other maintained special schools.
42. None of the other special schools consulted were able to offer Z a place. This included School G which said it could not meet Z’s needs.
43. On 15 July the Council told Ms Y it had considered all the consultation responses and decided to name School G, as Z’s placement in the final amended EHC Plan.
44. Ms Y and Z’s father both objected to School G. They said it was not suitable for Z. They wanted him to attend School B. Ms Y complained they were at the end of the summer term and a suitable school placement for Z in September 2021 had still not been arranged.
45. On 22 July, the Council told Ms Y it agreed School G was not suitable for Z. It said it would accept School B’s offer of a place.
46. But the Council had misunderstood School B’s response. As Ms Y pointed out, it had not offered Z a place for 2021. The earliest it could offer a place was September 2022.
47. On 29 July, the Council apologised to Ms Y and Z’s father for misleading them. It said it would continue to consult for a special school placement. In the meantime, it would issue a final amended EHCP naming Z’s current school, with support from School C (which had been considered by the Panel in May). The Council confirmed Ms Y had the right to appeal to the SEND Tribunal against Z’s placement at his current school.
48. Ms Y and the Council had further discussions on 29 July. The Council says it agreed:

• It would consult with Schools B and C in Autumn 2021 with a view to both schools observing Z and considering whether to make an offer;
• It would consider parental views before making a final choice;
• It would review Z’s support provided in his current school placement from September 2021;
• School C’s outreach team would observe Z in September 2021 before deciding how best to support him; and,
• The support for Z in his current placement could be considered by professionals after September 2021.

49. The Council issued a final amended EHC Plan on 30 July. This named his current school (School A) as his placement.

September 2021

50. The Council issued a further amended final amended EHC Plan on 7 September.

October 2021

51. Ms Y was unhappy about the arrangements proposed for Z’s provision from September 2021, the action being taken to find a special school placement, and the Council’s communication with her about this. She complained to the Council.
52. In its stage one complaint response, the Council said:

• It had had discussions with Ms Y about support from School C to supplement Z’s provision by his current school;
• School C had observed Z at school and felt it could not offer anything more than School A, whose staff had the skills to meet Z’s provision;
• It had discussed key worker provision for Z;
• It was consulting with School B about a place for Z in September 2022 and would also consult with other schools which could meet his needs; and
• In the meantime, Z would continue to attend School A with his current level of support.

53. Ms Y had further discussions with School A and the Council about the proposal for key worker provision for Z. On 27 October the Council confirmed the proposal would be referred to the Complex Needs Panel.
54. On 29 October it told Ms Y the Panel had agreed to additional funding for the delivery of key worker provision for Z.

November 2021

55. Ms Y was not satisfied with the Council’s response to her complaint. In its stage two complaint response the Council confirmed funding for a key worker for Z had now been agreed and this additional provision was being put in place. It said its caseworker was communicating with Ms Y about maintaining and amending Z's plan in light of their request for a special school placement, consultations with their preferred school and any other schools she wanted the Council to consult with.
56. Ms Y then complained to us.

My findings – was there fault by the Council causing injustice?

57. Ms Y was unhappy with the level of SEN provision for Z in his June 2020 EHC plan. But it is not for us to decide what provision should be included in an EHC Plan. Any dispute about this is a matter for the SEND Tribunal.
58. If Ms Y was unhappy with the provision for Z in his June 2020 EHC Plan, she had the right to appeal to the SEND Tribunal. Ms Y did not do so. I have explained why I have not investigated this issue in paragraphs 8 and 9.
59. For the reasons explained in paragraph 5 and 6 above, I have not investigated events which took place before November 2020.

SEN provision for Z from November 2020 to April 2021 (complaint a)

60. The SEN provision the Council was required to make for Z from November 2020 was set out in Section F of the June 2020 Plan. This included the “overarching provision” referred to in paragraph 13 above. But it then set out over five pages of further “provision” such as:

• Z should be offered regular opportunities for maintenance of new information to ensure he retains this skill and regular opportunities to generalise so he can use the skill or information across contexts, across materials and with multiple people;
• Staff to ensure practical opportunities and Z’s interests are incorporated into his learning to increase engagement. Class teacher to include this in her planned activities; and
•  Z will need adult to offer choices of what might happen next when he is learning this skill. Role-play can also be used to support engagement.

61. It appears large parts of professionals’ reports and general recommendations about support for Z were reproduced in Section F. But much of the five pages of information was included without any structure or explanation as to how or whether it was to form part of Z’s specific provision. And if so, without any detail about when, for how long and by whom this support was to be provided. This approach was repeated in the July 2021 final amended Plan.
62. The Council has told us, in addition to the specified provision in section F required to meet the child’s needs, it also adds in strategies as these are helpful to the child and staff. These are not direct provision but approaches and so not quantifiable.
63. But there is no structure in section F to separate the specified quantifiable provision from the several pages of strategies and approaches. In my view, the Council failed to take proper account of the requirements of the Code when drafting the structure of section F of Z’s Plan. I consider this was fault by the Council.
64. The lack of clarity makes it difficult to measure and monitor the provision in the plan for Z. And poor drafting means we cannot effectively investigate complaints about whether or not the provision has been made as there is no clear benchmark against which to measure a council’s actions.
65. But I do not consider this fault caused injustice for Ms Y and Z in the period from November 2020 to April 2021. School A was additionally resourced for pupils with ASC. It is clear Ms Y wanted the EHC Plan amended following the April 2021 annual review to provide Z with more 1:1 support and/or a new placement at a special school. But I have not seen any evidence, the Council was, or should have been, aware Z’s current SEN provision was not in place during the period from November 2020 to April 2021.

The Council failed to provide Z with appropriate support from April 2021 (complaint b)

66. My understanding is Ms Y and Z’s father, Z’s school and his Educational Psychologist all agreed, at the April 2021 annual review, his current school could no longer meet his needs and a special school placement should be arranged from September 2021. The Council appears to have accepted this as it promptly began the process of finding another placement for Z.
67. The June 2020 plan remained in place until a final amended plan was issued. I do not consider it was fault for the Council to continue to provide Z’s SEN support at his current school, as named in his EHC plan, while it searched for a place for him at a suitable special school.
68. But Ms Y had asked the Council to provide Z with additional 1:1 support at the annual review. And in June she had asked the Council about additional support for Z while it was trying to find him a suitable school place.
69. The Council does not appear to have considered or responded to this request until July 2021, when it said Z’s level of support would be reviewed in September 2021. Funding for a key worker to support Z was then agreed in October 2021.
70. In my view, having accepted in April 2021, Z’s current school could no longer meet his needs, it was fault by the Council not to consider whether it should make additional provision for Z while trying to find him a new placement.
71. The Council finally agreed in October 2021 to put additional 1:1 provision in place for Z. Its failure to consider doing so in April 2021 caused a delay in this support being arranged. It would have taken some weeks to put this in place, had it been considered and agreed in April 2021. I have assessed Z missed out on additional support in the school months from mid- May until November 2021, when it was finally put in place.
72. Where fault has resulted in a loss of educational provision, we normally recommend a remedy payment of between £200 and £600 a month to acknowledge the impact of that loss. The figure is based on the circumstances of each case, to reflect the particular impact on that child.
73. I have considered the impact on Z of the loss of educational provision. He is a child of primary school age with SEN. Although he was still receiving the SEN provision in his existing EHC Plan, he missed out on a number of school weeks of additional SEN support at a stage when children are developing essential literacy, numeracy and social skills. For these reasons, I consider the payment should be towards the middle of the scale.

The Council failed to provide Z with an appropriate educational placement (complaint c)

74. I consider the information I have seen shows the Council promptly began the process of arranging a special school place for Z. It referred the request to its Complex Needs Panel as required under its procedures. It then followed the Panel’s instructions about consultations with a number of special schools. The Council also consulted with schools suggested by Ms Y and Z’s father.
75. Ms Y’s preferred placement was at an independent school. This school was one of those consulted. It said it could potentially offer Z a place subject to further assessment. But I do not consider it had been established during the consultation period from May 2021 to July 2021 this was the only available option. I do not consider it was fault by the Council to continue consulting with other schools during this period.
76. The Council was unable to find a suitable special school placement available for Z in September 2021. But I consider it did all it reasonably could to do so, and I have not found fault with the Council in this respect.

The Council failed to follow the proper process when issuing Z’s EHC Plan (complaint d)

77. There was a short delay in completing the annual review on 1 April 2021, some two weeks outside the 12 month period from the last annual review in March 2020. But I do not consider this slight delay caused any injustice.
78. The Council told Ms Y it proposed to amend Z’s EHC plan and sent her the proposed changes within the required timescales. It allowed her the appropriate amount of time to submit her comments on the proposed amendments.
79. The final EHC Plan should have been issued within eight weeks of 8 April 2021 (the date on which the Council sent Ms Y the draft amended plan), that is by 3 June 2021. But the final plan was not issued until 30 July 2021.
80. The Council did not complete the amendments to Z’s EHC plan within the required timescale and the delay issuing the final plan was fault. There was no reason why the Council should not have named Z’s current placement (which is what it finally did in July 2021) while it continued to look for a permanent placement. As parents do not have the right to appeal to the SEND Tribunal until the final plan is issued, Ms Y’s right to appeal was delayed, together with the opportunity to ensure the provision for Z was appropriate.
81. Ms Y also had to spend a lot of time chasing the Council about the delays in issuing the final plan.

The Council failed to communicate properly with Ms Y (complaint e)

82. The information I have seen shows there were gaps in the Council’s communications with Ms Y. More specifically there were failures to:

• keep her updated about the outcome of referrals to the panel and the consultation process and the Council’s proposals for Z’s provision in the event a new school place could not be found by September 2021;
• explain properly why it had not proceeded further with Z’s parents preferred school at that stage;
• communicate with them about its proposal to name a school to which they objected (and which had said it could not meet Z’s needs), before then deciding not to name the school; and
• provide accurate information in July 2021 about the availability of a place for Z at their preferred school.

83. I consider these communication failures were fault. They caused Ms Y worry and uncertainty about the process and the provision for Z if a school place was not found in time for September 2021. She was put to time and trouble chasing the Council for information.

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Agreed action

84. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:

• apologise to Ms Y for its failure to provide additional support for Z from April 2021, its delays in completing the annual review process and communication failures;
• pay Ms Y £250 to acknowledge the opportunity she lost to appeal the provision made for Z because of the delay in issuing the final EHC Plan, and to reflect the time and trouble caused by the delays and communication failures. This figure is a symbolic amount based on the Ombudsman’s published Guidance on Remedies; and
• pay Ms Y £300 for each school month of education Z missed from 17 May to 5 November. I have assessed this as being four school months (excluding holidays) making a total of £1,200. This payment should be used for the benefit of Z’s education.

85. Within three months from the date of our final decision, the Council should:

• review the way it structures the content of section F (for example the use of headings and sub-headings to identify and separate the specified provision from strategies) with a view to making it clear to parents and all those working with the child which part of section F sets out the specified provision and which the strategies.

86. The Council should provide us with evidence it has completed these actions.

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Final decision

87. I have found fault by the Council regarding complaints (a), (b), (d) and (e), causing injustice. I have completed my investigation on the basis the Council will carry out the above actions to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman