Privacy settings

LGO logogram

Review your privacy settings

Required cookies

These cookies enable the website to function properly. You can only disable these by changing your browser preferences, but this will affect how the website performs.

View required cookies

Analytical cookies

Google Analytics cookies help us improve the performance of the website by understanding how visitors use the site.
We recommend you set these 'ON'.

View analytical cookies

In using Google Analytics, we do not collect or store personal information that could identify you (for example your name or address). We do not allow Google to use or share our analytics data. Google has developed a tool to help you opt out of Google Analytics cookies.

Medway Council (21 014 273)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 10 May 2022

The Ombudsman's final decision:

Summary: There was no fault in the time it took the Council to issue Y’s Education, Health and Care (EHC) Plan. The Council delayed for three weeks in formally notifying the school that it had been named in Y’s EHC Plan. This meant Y missed out on around three weeks of education. There was then a further period of delay but that was not because of the actions of the Council. The Council has agreed to pay Ms X £300 to remedy the injustice these delays caused Y. It has also agreed to pay her £100 to acknowledge the uncertainty and frustration this caused her and her husband.

The complaint

  1. Mr Z complains on behalf of Ms X about the actions of the Council in relation to her son, Y’s Education, Health and Care (EHC) Plan. Specifically, he complains the Council:
      1. failed to consult with the placement named in Y’s EHC Plan;
      2. named a nursery and not a school in the Plan;
      3. failed to explain why it took the action it did in relation to the placement named on Y’s Plan;
      4. failed to meet statutory timescales for issuing an EHC Plan; and
      5. denied him his right to an education.
  2. Mr Z said that as a result of the Council’s actions Ms X was caused distress and unnecessary time and trouble pursuing her complaint. He also says the family has been financially disadvantaged because Y’s father, Mr X had to look after Y and this impacted on his ability to run his business.

Back to top

What I have investigated

  1. I have investigated the complaint in paragraph 1d). I have also investigated the complaint in paragraph 1e) from the date the Council conceded the appeal on 8 September 2020. I have not investigated the other complaints and I explain the reasons why in paragraphs 15-17.

Back to top

The Ombudsman’s role and powers

  1. 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)
  2. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
  3. 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.
  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. 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.

Back to top

How I considered this complaint

  1. I considered the information provided by Mr Z about Ms X’s complaint. This included the complaints correspondence.
  2. I wrote to Mr Z and the Council with my draft decision and considered their comments before I made my final decision.

Back to top

What I found

Education, Health and Care (EHC) Plan

  1. Children with complex needs may require an Education, Health and Care (EHC) Plan. This is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care. This can include support needed in school.
  2. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act).
  3. In addition, under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.

Timescales for issuing the first EHC Plan

  1. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ 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. It says the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply).

The SEND Tribunal and the Ombudsman’s jurisdiction

  1. Certain decisions related to special educational needs (SEN) have a right of appeal to the SEND Tribunal. We would not normally investigate a complaint when someone can appeal to a tribunal, unless we consider it would be unreasonable to expect the person to appeal.
  2. Some of the decisions which are appealable and usually out of our jurisdiction include the educational placement named in the EHC Plan.
  3. Where a parent has appealed to the SEND Tribunal, we cannot investigate Council actions between the date the appeal right arose until the appeal is completed, where it is linked to the matters appealed. So, in these circumstances, the Council’s actions during that period are outside the Ombudsman’s jurisdiction. It also means we cannot seek a remedy for lack of education or provision during that period, if these matters are being appealed.

The Human Rights Act 1998

  1. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This includes respect for private and family life. The Act requires all councils to respect and protect individuals’ rights.
  2. The Ombudsman’s remit does not extend to making decisions on whether or not councils have breached the Human Rights Act – this can only be done by the courts. But the Ombudsman can make decisions about whether or not councils have had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.

The Public Sector Equality Duty

  1. The public sector equality duty requires all councils to have due regard to the need to:
    • eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Equality Act 2010;
    • advance equality of opportunity between people who share a protected characteristic and those who do not; and,
    • foster good relations between people who share a protected characteristic and those who do not.
  2. The broad purpose of the public sector equality duty is to consider equality and good relations into the day-to-day business and decision making of public authorities. It requires councils to reflect equality considerations into the design of policies and the delivery of services, including internal policies, and for these issues to be kept under review.

What happened

  1. On March 2020, a request to carry out an EHC Plan assessment was received by the Council. In April, the Council agreed to do so. At this stage, Y was four years old and due to start school that September. At the end of May, the Council decided it would issue an EHC Plan for Y.
  2. Ms X expressed a preference for one of two schools. The Council’s records stated it agreed that Y should be placed at one of them.
  3. The Council issued a draft EHC Plan on 1 June. At this stage, the Plan did not specify a named placement. This was in line with legislation. The Council began the process of consulting with schools. The parents’ two preferred schools refused Y a place. A third school (School C) stated it would offer Y a place from January 2021.
  4. The Council issued Y’s final EHC Plan at the end of July 2020. The Plan specified Nursery B from September to December 2020 and then School C from January 2021. The Council did not consult with Nursery B before naming it in Y’s EHC Plan. In August, Nursery B informed the Council it could not meet Y’s needs.
  5. In August 2020, Ms X appealed to the SEND Tribunal over the named placement. The Council informed School A on 4 September it was going to concede the appeal and name it on Y’s EHC Plan. The Council asked the school to contact Ms and Mr X to discuss Y’s starting arrangements with them.
  6. The Council issued Y’s final amended Plan on 8 September naming one of the parent’s preferred schools.
  7. In mid-September, Mrs X contacted School A to ask why it had not admitted Y. School A said it was waiting for formal notification from the Council.
  8. The Council sent School A formal written notification on 28 September. Y visited the school on 2 October and the school set Y’s start date for after the October half term.
  9. Ms X complained to the Council and then to the Ombudsman.

My findings

Complaints 1a), 1b) and 1c) Issues around consulting with schools and placement named on Y’s EHC Plan

  1. Ms X appeal rights to the SEND Tribunal were triggered on the date the Council finalised the Plan at the end of July. This means I cannot look at the Council’s actions from that date until it conceded the appeal on 7 September. They include which schools the Council consulted with and its communications with Ms X during this period.

Complaint 1d) Time taken to issue Y’s EHC Plan

  1. The Council issued Y’s EHC Plan at the end of July, around 17 weeks after Ms X requested the Council carry out an EHC assessment. This is in line with the statutory timescales and the Council was not at fault.

Complaint 1e) Y’s educational provision and discrimination

  1. The Council says it did not send School A formal notification because it had already informed it that it would be named on Y’s EHC Plan and it should contact Mr and Ms X about starting arrangements. However, the school would not do so without formal notification from the Council, although it did not make that clear at the time. When the Council became aware of the situation, it issued formal written notification to School A. Because of these circumstances, there was a delay of around three weeks before School A began the process to admit Y. As the Council should have issued the formal notification, these delays were the result of fault in the Council’s actions.
  2. It was likely that the school would always have needed a period of time to allow Y to visit the school and to prepare for his admission. Ultimately, the decisions around how long this would take were for the school to make and therefore are outside our jurisdiction. However, the delay in issuing the school with formal notification likely led to Y missing out on both his general education and his special educational provision for a three week period. The Council should make a financial payment to acknowledge this injustice.
  3. It is also clear the family experienced some uncertainty and frustration due to having Y at home for longer than necessary. However, I cannot say Mr X was unable to work at all and therefore lost earnings as a direct result of the Council’s fault. This is because there are many factors which could have impacted his business and his ability to work.
  4. The Council followed the statutory legislation during the process to issue Y’s EHC Plan. It failed to send the formal notice to the school in a timely manner but resolved this as soon as it became aware the school would not admit Y without the notice. Although this delayed Y started at the school for a short period, this does not equate to a failure on the Council’s part to have due regard to his human rights or its public sector equality duties. The Ombudsman cannot determine whether a breach of rights took place. Only the courts have the power to do this.

Back to top

Agreed actions

  1. Within one month of the date of the final decision, the Council has agreed to:
    • pay Ms X £300 (this is calculated at £100 for each missed week within the control of the Council) for the injustice caused to Y by the Council’s delay in issuing the school with formal notification it had named it on Y’s EHC Plan; and
    • pay Ms X £100 to acknowledge the uncertainty and frustration caused to her and Mr X by Y being out of school longer than necessary.

Back to top

Final decision

  1. There was fault leading to injustice. The Council has agreed to my recommendations, so I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page