Summary: We did not uphold a complaint about delay in amending Y’s Education, Health and Care Plan. There was fault in complaint handling – delay and a failure to give an adequate explanation about concerns about naming School A for which the Council will apologise.

The complaint

1. Ms X complained West Northamptonshire Council (the Council) delayed in the Education, Health and Care (EHC) plan amendment process and in agreeing a placement meaning her son Y missed out on an appropriate placement for a year.
2. Ms X also complained about poor communication and a failure to explain why the Council kept changing its mind about School A.
3. Ms X said this caused avoidable confusion, distress and time and trouble and lost education for Y.

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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. Ms X’s complaint is about events in 2018 and 2019 so her complaint is late. However, I have investigated it because there was delay by the Council in responding to Ms X’s complaint. This was an appropriate reason for Ms X’s delay in complaining to us.
6. 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)
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 courts have established that if someone has lodged an appeal to a SEND Tribunal, we cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC Plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
9. 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)
10. 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

11. I considered the complaint to the Council, correspondence between Ms X’s MP and the Council and documents set out in this statement. I discussed the complaint with Ms X.
12. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

13. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance, the SEN Code of Practice (‘SEN Code’).
14. 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. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
15. Where a council proposes to amend an EHC plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
16. The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
17. 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 EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
18. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.

What happened

19. Y has social and emotional difficulties and has an EHC plan. In 2018, he attended a mainstream primary school where he received individual and small group support in line with the provision on his plan.
20. In November 2018, there was an internal email between council officers indicating Y had been excluded from school for physical aggression. The school said it could not meet Y’s needs. It arranged for an Educational Psychologist (EP) to provide updated advice. The EP’s report said the provision on Y’s EHC plan was appropriate and need not be changed, but he may need a new placement. The school arranged an urgent interim annual review in December. The record of the review indicated Ms X did not want Y to return and her preference was for him to move to School A (an independent special school). Officers told her the Council was not placing children at School A.
21. Y remained out of school. He attended an alternative placement based around creative outdoor learning (‘forest school’) which the Council was funding. He was also attending after school club to keep in touch with his friends. The records indicate officers offered home tuition for Maths and English, which Ms X refused.
22. An EHC officer replied to an email from Ms X about next steps, saying they would complete the annual review process, update Y’s EHC plan, send her a draft amended EHC plan and then consult with schools.
23. The EHC team sent a formal letter in December 2018 (an amendment notice) proposing to amend Y’s EHC plan following the annual review and updated advice from the EP. The letter invited Ms X to name her preferred school.
24. The Council consulted with several schools in January and February 2019 (both council and independent schools) including School A. (Ms X and a SEND officer had met during January and the latter had agreed to consult with School A, Ms X’s preference.)
25. School A responded to the consultation letter saying it could meet Y’s needs. However, Ms X and an SEND officer spoke in March with the latter saying the Council would not place Y at School A because of recent safeguarding concerns. The officer went on to say the Council noted Ms X did not want Y placed at a school far away from home and so the Council would name a different school on his EHC plan for September 2019 (School B). Y’s education continued to be at forest school.
26. The Council issued Y’s final EHC plan at the end of March naming School B. Ms X told me she lodged an appeal with the SEND Tribunal then the Council changed its mind and named School A before the hearing. She told me Y attended School A informally for two half days a week because the headteacher was helpful and sympathetic and Y continued to go to forest school for three days a week.
27. At the end of March 2019, the Council’s funding panel met and agreed funding for School A. The panel form said the proposed start date was March 2019.
28. Y’s EHC plan in June 2019 named School A. I understand Y started at School A in the Autumn Term of 2019.
29. Ms X contacted the Council through her MP in September 2020, mentioning the same issues as in her complaint to us and other complaints about different council services she has not pursued with us. The MP asked the Council to respond and it did so in September saying:
• It consulted with several schools, including her preferred school (School A) in February 2019
• School B also offered Y a place to start in September (it had no spaces available till then)
• It named School A on Y’s EHC plan in June 2019
• The Council has a duty to have regard to the efficient use of resources and it must adhere to the timescales in the consultation process
• It acknowledged her concern about the gaps in Y’s education. Y had been in school full-time since December 2019.
30. Ms X was unhappy with the above response and in October 2020, one of her relatives wrote to the Council on her behalf disputing what the Council had said. The letter said officers had told Ms X that the Council was not placing children at School A because it was ‘being investigated’. The relative’s letter went on to say that the schools under consultation all involved long taxi trips which were not appropriate for Y.
31. The Council treated the letter as a complaint and offered Ms X a virtual meeting to try and resolve matters. It wrote again when Ms X did not respond to the request and having heard nothing, the Council closed the complaint in December. Ms X contacted the Council shortly after saying she had not received the Council’s emails about the virtual meeting. I understand a meeting took place in January 2021, although the Council did not disclose a record of the discussion. There was a complaint response in June to follow up on some points, but it did not cover any of the complaints to us.
32. Ms X contacted the Council again as she was unhappy that her complaints about education had not been dealt with. The Council responded in November 2021, apologising for the delay in replying and saying Y’s placement was delayed because the Council was not placing pupils at School A because of ‘pending Ofsted involvement.’
33. Ms X said she was unhappy the EHC team changed their minds several times about whether Y could attend School A and this could not be solely down to an Ofsted inspection. She said the explanation was unacceptable. Ms X told me she was not seeking a payment for any loss of education for Y, just an explanation about why the Council kept changing its mind about School A.
34. The Council told me the reason was because of safeguarding concerns:

“The Local Authority did not consult or place any children or young people with School A during a period of time during 2019 due to several safeguarding concerns that had been raised by parents of children and young people attending the setting.

The Local Authority had to follow appropriate internal protocols to ensure the safety of the children and young people attending the setting. Following the investigations, it was proven that these claims were unfounded and no further action was taken.

The Local Authority accepts that this was not clearly communicated with parents until later in the process, at the time the claims were unsubstantiated and it was not appropriate to publicise the concerns that were raised.”

35. Ms X told me School B had always told her it was not the right setting for Y. She went on to say that council officers changed their minds several times about the placement during 2019.

Findings

Delay in the EHC plan amendment process and in agreeing a placement

36. Within four weeks of the review meeting in December 2018, the Council should have sent Ms X the amendment notice with proposed amendments to be in line with the SEN Code paragraph 9.176 (see paragraph 14). The records indicate the Council completed this action within the required time frame. The Council should have then completed the amending of Y’s EHC plan without delay and within eight weeks of sending the plan and proposed amendments to Ms X. Y’s final plan naming School B was issued at the end of March 2019. This was slightly outside the statutory time frame in the SEN Code paragraph 9.196 and Regulation 22(3) of the SEND Regulations, but it is not significant enough for me to find fault.
37. Events between the end of March and June 2019 when the case was under appeal to the SEND Tribunal are outside the scope of my investigation because of the legal case described in paragraph eight so I have not considered this period. This is because the Council’s decision not to name School A is the decision which Ms X appealed (Y’s placement)

Poor communication and a failure to explain why the SEN team kept changing its mind about School A.

38. I uphold this complaint. The Council delayed in responding to the complaint, for which it has already apologised.
39. The Council was not open about why it did not agree to place Y at School A. I accept it was appropriate to give Ms X details while safeguarding issues were under investigation, but the concerns were resolved by the time of the complaint. The Council was vague and misleading about the reason, suggesting it was due to Ofsted which was not accurate. This caused Ms X avoidable confusion. However, the Council has now given an adequate explanation. And, I see from the records Ms X was already aware of safeguarding concerns at the time so this lessens the injustice to her. However, the Council could still have told Ms X in the complaint response that safeguarding issues were the reason for not naming School A. This was poor complaint handling and was fault.

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Agreed action

40. I have not upheld Ms X’s complaint about delay in the process of amending the EHC plan so I did not recommend a remedy for this.
41. The Council has already apologised for the delay in responding to the complaint which is an appropriate remedy. Within one month of my final decision, it will also apologise for the failure to give an accurate explanation for the decision not to name School A on Y’s EHC plan of March 2019.
42. Ms X is not seeking a payment so I did not recommend one.

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Final decision

43. We did not uphold a complaint about delay in the process of amending Y’s Education, Health and Care Plan. There was fault in complaint handling – delay and a failure to give an adequate explanation about concerns about naming School A for which the Council will apologise. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman