Summary: There was delay by the Council in consulting new school placements and in updating an EHC plan. However, it is not possible to say that without this fault Y would have started his new school or moved to residential provision sooner. There was poor communication by the Council with parents which led to a mismanagement of parents’ expectations. The Council will apologise, make a remedy payment and make service improvements.

The complaint

1. Mr X complains on behalf of son, whom I shall refer to as Y. Y has special educational needs (SEN) and the Council maintains an Education, Health and Care (EHC) plan for him.
2. Mr X complains:
• The Council took two years to find a suitable school placement.
• There was poor communication with the family.
• Social care was not sufficiently involved so residential placements were not properly considered with social care instead offering a ‘patchwork of additional support in the evenings and at weekends’.
• The Council failed to source a residential school placement or state necessary staffing ratios in the amended EHC plan.
• When consulting schools the Council wrongly stated this was due to parental preference.
3. As a result of the alleged fault Mr X says:
• The package offered (a day placement and short break provision) did not meet the family’s needs.
• They were put to time and trouble visiting unsuitable school placements.
• The family was under great stress, particularly during the period they were ‘shielding’ due to COVID-19.

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The Ombudsman’s role and powers

4. 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)
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), 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. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
9. Sometimes we will recommend a financial payment, this might be a symbolic payment which serves as an acknowledgement of the distress or difficulties a complainant has been through. Our remedies are not intended to be punitive.
10. 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)

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How I considered this complaint

11. I have considered information provided by Mr X and the Council including consultations with school, annual review and EHC documents.
12. I have spoken to Mr X by telephone.
13. I have considered relevant law and guidance.
14. 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.
15. Mr 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

16. Under the Children Act 1989, councils are required to provide services for children in need for the purposes of safeguarding and promoting their welfare.
17. When a council assesses a child as being in need, it supports them through a child in need plan. This should set clear, measurable outcomes for the child and expectations for their parent. Councils should review child in need plans regularly.
18. A child with special educational needs may have an Education, Health and Care (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 tribunal can do this.
19. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
20. 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)
21. 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)
22. Between 1 May until 25 September 2020, the Government relaxed the timescales in the SEND Regulations due to COVID-19. Amended Regulations removed the specific timescales set out in the SEND Code of Practice, replacing these with the requirement to complete actions ‘as soon as reasonably practicable’ whenever the COVID-19 exceptions applied.
23. 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.

Key events

24. The following is a summary of key events. It does not include everything that happened.
25. Y was attending a special school (School A) which described Y as having very complex needs.
26. In early 2020, School A said it could no longer meet Y’s needs and a new school should be found. It held an emergency review of the EHC plan. There is evidence of a Child in Need (CIN) review by social care at the same time which led to Y being placed on the waiting list for overnight short break provision. Y was already receiving daytime short breaks.
27. A potential school (School B) was identified which parents were due to visit, but in March 2020 schools closed to all except vulnerable pupils due to COVID-19 and visits were cancelled.
28. Y was clinically vulnerable and did not attend school as his parents wanted him to ‘shield’. He did not return to school until Easter 2021. He remained on roll at School A, with the School’s agreement, until a new placement was found.
29. Visits restarted in June 2020, but Mr and Mrs X wanted to delay school visits due to the risk of contracting COVID-19. The family also did not want to continue with short breaks during this time.
30. The Council issued an Amendment Notice and provided an amended draft EHC plan in September 2020, six months after the emergency review was held. This named School A. A multi-agency meeting was held in September. Y now had a disabled children’s team social worker.
31. Council records show by October Mr and Mrs X had visited three schools and felt School B was the ‘best fit’ for Y. However, School B declined to offer a place after an assessment. Other schools consulted also declined.
32. The Council issued a final amended EHC plan in early 2021 which continued to name School A. Mr X had a right of appeal if he disagreed with the contents of the plan, including the school named. He did not appeal.
33. The Council then consulted more schools, including School C. The Council noted it was consulting schools with residential provision as this may be required in future.
34. The next annual review of the EHC plan was held in Spring 2021. Again, a change of placement was recommended. Y had not attended school in a year, but his shielding period was due to end at Easter. The Council issued a decision to amend the EHC plan and stated the Amendment Notice would follow.
35. Mr and Mrs X expressed disappointment School B did not offer a place. They felt the Council had not put the need for a change of placement strongly enough, should have challenged School B’s decision, and had wrongly referred to the request as being due to parental preference. Mr X complained the process of finding a new school was taking too long. Looking ahead to post-16 Mr X said it had become apparent that a school with a residential option was needed
36. The Council explained School B’s reasoning and said once the amended EHC plan was finalised, following the recent annual review, they would provide a new right of appeal. The Council confirmed it was consulting schools with ‘residential options’. It did not say that it agreed residential was currently required on education grounds.
37. A CIN review noted Y had a short break offer but social workers needed to liaise with the SEN team about the new placement.
38. Mr X complained about delay and poor communication. The Council acknowledged some delay in responding. It explained it had to exhaust local options before it would consult independent and out of area schools. The Council explained it could not challenge an independent special school decision to refuse a place (School B was such a school) in the same way it could maintained schools or schools approved by the Department of Education under s.41 Education Act 1996.
39. In May 2021, the Council issued an Amendment Notice after the annual review. It told Mr X he would have a right of appeal when the Plan was finalised.
40. In June, a new social worker was allocated to Y’s case.
41. School C offered a place but this was put on hold pending an OFSTED re-inspection because the Council would not place a pupil in a school with an unsatisfactory OFTSED rating.
42. The SEN team and social worker agreed to consult School B for a residential placement to see if this led to a different response. However, School B still refused a place.
43. The social worker emailed the SEND team about Mr and Mrs X’s concerns about the school placement saying they were requesting 52-week provision. The social worker said this would be an Education, not Social Care, 52-week placement. The SEN team advised the social worker it did not offer 52-week placements.
44. In July, Mr X complained again. He said he was still awaiting the final EHC plan. He wanted to challenge School B’s decision not to offer a place. He said he was waiting for information how to ‘appeal’ or challenge the decision by School B.
45. An officer interpreted this as Mr X saying he intended to appeal to the SEND Tribunal and did not want his complaint to go to stage two.
46. In August 2021, the Council issued a final EHC plan that named School C as a day placement after an improvement in its OFSTED rating. Mr X had a right of appeal about this decision, but did not use it. Just prior to this decision Mr X had a CIN review when social care said it would complete a placement request for 38 week residential out of area schools. On receipt of the final EHC Plan Mr X asked the Council if the naming of a day placement was an oversight as they were expecting a residential placement. Mr X said he wanted the placement request for residential to continue.
47. The SEN team advised Mr X that as School C could meet Y’s educational needs, he would need to discuss residential placements with social care, or he could appeal to the SEND Tribunal.
48. Social care decided a residential school placement was not needed on social care grounds as Y’s care needs could be met via short breaks and other local support. This support would be monitored to ensure it met need.
49. A few weeks later, after further discussion, and another change of social worker, Mr and Mrs X said they could not manage Y’s care needs at home and asked for the Council to accommodate Y under s.20 Children Act 1989. Following this a residential school placement was agreed by social care.

Analysis

50. The Regulations and SEN Code of Practice do not set out a specific time frame when a request for a change of school must be actioned. Here an emergency review meeting was called in early 2020 which led to a recommendation from the current school for a change of placement. Timescales do apply once there has been an emergency review, in the same way as for an annual review.
51. The Regulations for annual review however changed between May and September 2020. The Council did not need to comply with the time limits for annual reviews if it is impractical to do so because of a reason relating to the incidence or transmission of coronavirus. This may explain the delay in processing the 2020 emergency review but does not explain that the change of placement took from February 2020 to August 2021. Even allowing for the interruption during COVID-19, this was excessive delay and was fault.
52. The Council issued an Amendment Notice in September 2020. It should then have issued the final plan within eight weeks but took four months. It still had not identified a new school by the time it issued the final plan.
53. Mr X did gain a right of appeal in early 2021 but did not use it. I consider this was reasonable as Mr X was expecting the plan to be amended again when a new school was found.
54. The Council issued another Amendment Notice after the next annual review meeting in 2021, this time the Council took three months to issue the final plan, when eight weeks is allowed.
55. In our Focus Reports on SEN complaints, we advise councils to consult several schools consecutively not sequentially to avoid unnecessary delay in making decisions. Given the advice the Council received at a relatively early stage from School A about the complexity of Y’s needs, and the type of school that would be required (that is one more specialist than School A), the Council should have consulted a wider range of schools including independent and out of area schools earlier. Some of the schools consulted pointed out that if School A could not meet Y’s needs, they also would be unable to.
56. However, even if more schools had been consulted earlier, I cannot say that Y would have moved to a new placement sooner. Only one school offered a place, and the Council would not have placed Y there until after the OFSTED reinspection. While there was delay and fault, I cannot say without the fault the outcome would have been different.
57. While Mr X has placed much emphasis on the consultation letters referring to parental preference, I find this was a simple error and would not have altered the decision by the schools. Consultations with schools are usually standard template letters and schools will respond based on whether they can meet the needs set out in the EHC plan.
58. Mr X was advised he could not challenge School B’s decision, this is correct independent schools have more control over which pupils they admit than other schools. The Council told Mr X he could use his right of appeal, although again the SEND Tribunal does not have the same powers to direct independent schools to accept a pupil against their wishes as it does over some other types of school.
59. There was confusion in the handling of Mr X’s complaint. Mr X was questioning how to challenge School B’s decision to refuse a place, his letter did not say he did not want his complaint to proceed because he was appealing the final Plan to the SEND Tribunal. I can see how the officer may have made that assumption, but detailed reading of Mr X’s correspondence shows this was an incorrect assumption. While this added confusion and delay, the Council did continue to address Mr X’s concerns.
60. The family also received mixed messages about whether residential was being considered. At the time Education offered a place at School C, social care was talking to the family about making a request for residential provision. Social care then clarified it was not recommending residential on social care grounds at that point.
61. It was only when Mr and Mrs X understood that residential placements funded by Education or Social Care had different criteria that they gave a clear request they wanted the Council to accommodate Y. Up to that point Y would not have been offered residential because the Council did not deem it necessary on educational or care grounds.
62. I can see that the last social worker took time to explain the processes to the family, which led to their request for s.20 care. As Mr and Mrs X were enquiring about residential options in early 2020, there was a missed opportunity to explain the processes to Mr and Mrs X at that time. This would have avoided later misunderstandings.
63. While I find there was poor communication and a failure to manage Mr and Mrs X’s expectations, the decisions that Y’s needs could be met through a day place at School C and short break provision were ones open to officers to reach. The Ombudsman is not an appeal body and does not have jurisdiction to question council decisions taken properly and fairly. (Local Government Act 1974, section 34(3), as amended)
64. Further, Mr X did have a right of appeal against the decision to name School C as a day place. We would have expected him to use the appeal right if he disagreed with the decision.
65. There was at least one multi-agency meeting, however given the delay in finding a new placement, the pressure on the family (particularly after a year of shielding) and the concerns raised at CIN reviews, I consider that closer joint working and more regular joint reviews between SEN and social care might have avoided some of the delay and confusion that arose here.

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Agreed action

Within four weeks of my final decision:

66. The Council will apologise to Mr and Mrs X and Y for the fault identified.
67. The Council will make a financial payment to acknowledge the delay, frustration and confusion caused as follows:
• £500 to Mr X
• £500 to Y.

Within two months of my final decision

68. The Council will review the lessons that can be learned from this complaint particularly regarding the time taken to identify a new placement. The Council should consider whether it needs to hold joint or more regular reviews in such cases to avoid drift; whether it has a sufficient supply of special school places; and whether it is consulting all potential schools at the earliest opportunity.
69. The Council will review how it advises parents who are considering residential school options to ensure clear information is given at an early stage, including about the differing roles of Education and Social Care and the ways placements can be funded.
70. The Council will provide a report to the Ombudsman of any service improvements it has identified as required and what action it intends to take to prevent a recurrence of the fault in future cases.

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Final decision

71. I have completed my investigation. There was delay by the Council in consulting new school placements and in updating an EHC plan. However, it is not possible to say that without this fault Y would have started his new school or moved to residential provision sooner. There was at times poor communication by the Council with parents which led to a mismanagement of parents’ expectations. The complaint is upheld.

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Investigator's decision on behalf of the Ombudsman