The Ombudsman's final decision:
Summary: Mr and Mrs X complained the Council delayed in issuing their child, Z’s Education Health and Care plan. They also complained about flaws in how the Council considered what educational provision Z needed and what school he should go to. The Council was at fault for failing to consider if Z needed an educational psychology assessment following a review of his plan. This did not cause a significant personal injustice because Mr and Mrs X paid for a private assessment before they were aware of the Council’s error. In the other matters complained about, the Ombudsman is either prevented from investigating, or the Council was not at fault.
- Mr and Mrs X complained about how the Council dealt with and reviewed their child, Z’s, Education Health and Care (EHC) plan. Specifically, they said:
- the Council failed to amend Z’s EHC plan in 2018 after they moved him to his current school.
- the provision set out in Z’s 2020 draft EHC plan was inadequate because it relied on out-of-date information;
- the Council took too long to issue Z’s final EHC plan in 2020;
- the Council did not name Z’s current independent school in the plan and instead explored mainstream options; and
- the Council failed to promptly pay Z’s school fees after February 2021.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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)
- The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply. Mr and Mrs X complained the Council unreasonably delayed in paying Z’s school fees after February 2021. They have not complained to the Council about the issue and it is reasonable for them to do so. I will therefore not investigate the issue.
- 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.
- 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.
How I considered this complaint
- I have considered:
- all the information Mr and Mrs X provided and discussed the complaint with them;
- the Council’s comments about the complaint and the supporting documents it provided; and
- the relevant law and guidance.
What I found
Relevant law and guidance
- The responsibilities of councils towards children and young people with special educational needs (SEN) are set out in the Children and Families Act 2014 and associated Regulations and statutory guidance, the SEND Code of Practice 2015 (The Code). One of the ways to meet the needs of children with SEN is to issue an Education, Health and Care (EHC) plan.
- Councils must review an EHC plan within 12 months from the date the plan was made (meaning the date the plan was finalised). They must then review the plan every 12 months after this as a minimum.
- Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. If a council decides to amend the plan, it should start the process of amendment “without delay”.
- Once the council has made the amendments, it must send a draft to the parent or young person for comment. The parent or young person has at least fifteen calendar days to suggest changes and express a preference for a school. If the parent requests an independent school, the council must consider the request but is not under a duty to comply with it. It should consider if naming the school would mean unreasonable public expenditure.
- Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the draft plan to the parents.
- Councils can name a specific school, or where it has not been able to identify a school, name a type of school (e.g. mainstream) in a final plan. If a council names a school with fees in a plan, it normally must pay those costs. However, where the child’s parents placed the child in the school themselves the council can name the school as a parental arrangement and does not have the pay the fees.
- Issuing the final plan gives the parents a right of appeal. Parents can appeal decisions including where a child should go to school and what SEN provision they need. This includes whether the council should ‘name’ a particular school, and therefore pay any school fees.
- Caselaw has established that where someone has appealed to the SEND Tribunal, the Ombudsman cannot consider the consequences of the issue appealed. We also cannot consider the effects of any issue ‘inextricably linked’ to the issue appealed. This applies from the date the appeal right arose to the date of the appeal is completed. This means there are periods where someone may have experienced injustice which are not remedied by the SEND Tribunal and cannot be remedied by the Ombudsman.
- The Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 (the ‘Amendment Regulations’) amended the timescales for some SEN duties. This included the timescales for annual reviews. From 1 May 2020 to the end of September 2020, the councils needed complete the processes ‘as soon as reasonably practicable’.
- Z has complex needs and in 2017 attended a mainstream school. In 2018, Mr and Mrs X moved Z to School A, an independent school. Some time later, the Council amended Z’s plan to name School A as a parental arrangement.
- In January 2020, School A held an annual review of Z’s EHC plan on behalf of the Council. Minutes of the review show School A felt Z needed new educational psychologist, Occupational Therapist (OT), and Speech and Language Therapist (SALT) assessments. This was because his needs had changed since the last assessments and the EHC plan was out of date.
- The Council sent Mr and Mrs X a draft amended plan in mid-April. Mr and Mrs X responded in late May to say the provision in the plan was inadequate because it was based on old information. They asked the Council to name School A in the plan.
- In late June, Mr and Mrs X paid for private OT, SALT, and educational psychologist assessments. Mrs X told me she and Mr X paid for the reports because those the Council would commission were not in-depth enough.
- A week later, the Council said it would not issue the final plan and name School A because it was consulting with mainstream schools. It would consider the outcome of the consultations against the cost of School A. It said it had made referrals to an Occupational Therapist (OT) and Speech and Language Therapist (SALT) to assess Z’s needs. It acknowledged there had been some delay due to the COVID-19 pandemic. In response to my enquiries, the Council said it had no evidence it considered whether to seek a new educational psychologist assessment.
- In late July 2020, the Council issued the final plan to avoid further delay. It named a type of school; mainstream. It told Mr and Mrs X it would consider three mainstream schools as well as School A and then reissue the EHC plan.
- Throughout August and September, the Council contacted mainstream schools to see if they would accept Z. In October, Mr and Mrs X appealed to the SEND Tribunal.
- In November 2020, Mr and Mrs X sent the Council the assessment reports they had commissioned.
- In early February 2021, the Council conceded the appeal. It said it would make Mr and Mrs X’s proposed EHC plan amendments and name School A. The amendments included significant changes to the evaluation of Z’s needs and SEN provision based on the reports Mr and Mrs X commissioned. In late February, the SEND Tribunal considered the agreement and confirmed it. The Council then issued the amended EHC plan.
- Mr and Mrs X remained unhappy and complained to the Council. They said:
- they had been happy with the SEN support and school choice up until the January 2020 annual review;
- the April 2020 draft EHC plan was based on out-of-date information so they had needed to pay for educational psychologist, OT and SALT reports;
- the Council delayed in issuing the final July 2020 EHC plan; and
- the Council had not named School A despite them asking it to do so, mainstream being unsuitable and it not having an alternative.
- it should have named School A as a parental arrangement in Z’s EHC plan promptly when it became aware Mr and Mrs X had moved him there in 2018. It apologised;
- it accepted there was fifteen weeks between it issuing the draft plan and the final plan. It apologised this took longer than the eight weeks timescale set out in the Code; and
- it had felt Z could attend a mainstream school so had been exploring that after issuing the final decision.
- 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. I have seen no reason to exercise discretion to investigate the Council's failure to amend Z’s EHC plan after he moved to School A as Mr and Mrs X could have complained about it at the time. In addition, they could have appealed to the Tribunal in previous years if they had wanted School A naming in Z’s EHC plan so the Council would be responsible for the school fees.
- From the date of Z’s annual review meeting in January 2020, the Council had four weeks to make its decision on whether to amend Z’s plan. It then had to begin making the amendments ‘without delay’ and issue the draft plan. The Council sent Mr and Mrs X Z’s draft EHC plan in mid-April, four months after the annual review. From that date, it had eight weeks to issue the final plan. It did so in late July, around fifteen weeks later. Overall, the Council took just over six months to issue the plan. Given the overall impact of the COVID-19 pandemic on councils from March 2020 and the easing which only required the Council to act ‘as soon as reasonably practicable’ from 1 May, I do not consider the length of time amounts to fault.
- Z’s January 2020 annual review shows School A recommended new educational psychologist, OT and SALT assessments to inform amendments to his EHC plan. In response, the Council acted appropriately by making referrals for OT and SALT assessments. However, the Council did not make a referral for an educational psychologist report and has no record of how it considered whether to seek one. The Council's failure to consider if it should commission an educational psychologist report was fault. However, the fault did not cause Z an injustice because Mr and Mrs X paid for an independent report, which informed the EHC plan the Council agreed to in February 2021 when it conceded the appeal to the Tribunal. I am satisfied the fault was one off human error and so have not made a recommendation to prevent it occurring again.
- Mr and Mrs X feel the Council should reimburse them for the cost of the private educational psychologist, OT and SALT reports they commissioned. However, they have confirmed they sought the reports because they felt the Council's reports would have not been sufficiently in-depth. Independent reports are frequently longer and more detailed than council commissioned versions, but that is not Council fault. Mr and Mrs X also made the decision to pay for the reports before the Council told them it made referrals for the SALT and OT assessments. This means they paid for the educational psychologist report before becoming aware the Council had not sought one itself. I am therefore satisfied, on the balance of probabilities, Mr and Mrs X would have commissioned the reports regardless of the Council's actions; the fault set out in paragraph 32 did not influence their decision. For that reason, I do not consider the fault caused Mr and Mrs X a significant personal injustice and will not recommend the Council repay their costs.
- Mr and Mrs X were unhappy the Council named a mainstream type placement in the July 2020 EHC plan instead of the independent School A. However, the Code states that councils only have to consider a request for an independent school; they do not have to comply with it. Records show the Council considered Mr and Mrs X’s request for School A but felt Z was able to attend a mainstream school. Ultimately, the Council named a mainstream type placement to give Mr and Mrs X their appeal rights to the SEND Tribunal while it explored mainstream options. The Council acted in accordance with the Code of Practice so was not at fault.
- Caselaw has made it clear we cannot consider matters that were considered at the SEND Tribunal or those that were inextricably linked to the matters considered at appeal. This applies from the date the appeal right arose to the end of the appeal. Mr and Mrs X’s appeal addressed Z’s placement. I therefore cannot investigate whether there was any fault in how the Council consulted with mainstream schools after it issued the plan in July 2020.
- Similarly, I cannot investigate Mr and Mrs X’s concerns that the EHC plan was insufficient to meet Z’s needs. They feel this meant he went without suitable provision until the Council issued the amended plan in 2021. Mr and Mrs X appealed the SEN provision set out in the EHC plan, so it is outside of our jurisdiction.
- I have completed my investigation. I have found fault but it did not lead to a significant personal injustice.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman