Summary: Mrs Y complained about the significant delays by the Council in finalising her sons Education, Health and Care plan and consulting with schools. She said the Council failed to send its intention letter following the annual review and failed to provide her son with a suitable education. We find the Council was at fault. This led to Mrs Y’s son regressing significantly in mainstream school. The Council has agreed to our recommendations to address this injustice.

The complaint

1. The complainant, Mrs Y, complains about the significant delays by the Council and that:
• The Council have taken a year to finalise her child B’s Education, Health and Care (EHC) plan
• The Council failed to send its intention letter following the annual review
• The Council delayed consulting schools
• The Council failed to provide B with a suitable education.

2. As a result of the Council’s actions, B has regressed significantly in the last year in mainstream school.

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The Ombudsman’s role and powers

2. 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)
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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.
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
7. 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

8. I spoke with Mrs Y about her complaint and made enquiries of the Council. I considered all the information provided by Mrs Y and the Council.
9. Mrs Y and the Council had an opportunity to comment on my draft decision. I considered their comments before making my final decision.

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What I found

Law and Guidance

10. A child or young person with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the young person’s needs and what arrangements should be made to meet them. The council is responsible for making sure arrangements specified in the EHC plan are put in place.
11. The Special Educational Needs and Disability (SEND) Code of Practice is the statutory guidance which states:
• councils must review EHC Plans at least every year. The review considers if the current EHC Plan is appropriate and whether any changes are needed, including any changes to the education placement.
• within four weeks of the review meeting, a council must decide whether to keep, cease or amend the EHC Plan and must notify the parent. If amendments are needed, the council must start the amendment process without delay.
• the council must send the current EHC Plan and a notice setting out proposed amendments and give the parent at least 15 calendar days to comment. It must issue an amended plan as quickly as possible and within eight weeks of the original amendment notice.
12. If a child’s parent makes a request for a particular school, the local authority must comply with that parental preference unless:

• It would be unsuitable for the age, ability, aptitude or SEN of the child
• The attendance of the child there would be incompatible with the efficient education of others, or the efficient use of resources.

13. The nursery, school or college and, where relevant, the other local authority, should respond within 15 calendar days. Where a nursery, school of college identified is named on an EHC plan they must admit the child or young person
14. 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 did happen?

15. This section sets out the key events in this case and is not intended to be a detailed chronology.
16. Mrs Y’s son, B, has an EHC plan. B has a diagnosis of autism spectrum disorder, and mild to moderate Global Developmental Delay. B’s 2020 EHC plan named a mainstream school.
17. The Council sent Mrs Y a letter in January 2021. It said it did not accept the recommendations for changes to Bs EHC plan following an annual review in the same month. It also said the request for specialist provision had not been agreed.
18. Following an annual review in April 2021, the school said it was unable to meet B’s complex needs. It said it was requesting a specialist placement and named a preferred school. An educational psychology report also supported this.
19. The Council received the request for specialist provision in June 2021. In the same month, the panel agreed to amend B’s EHC plan.
20. In the following month, Mrs Y told the Council which schools she was happy for it to consult with. The Council consulted with Mrs Y’s preferred choice, school X.
21. Mrs Y asked the Council for an update in September 2021. The Council officer said she was no longer the case officer for B and gave Mrs Y the new case officer’s details. Mrs Y asked if the school were aware of this as she had not been updated.
22. Mrs Y continued to ask the Council for updates in September 2021. It said it was consulting to find suitable placements and would update her when it had received a response.
23. The Council said it started to consult other schools after school X confirmed it was full and could not admit B in October 2021. The Council consulted two other schools between October 2021 and February 2022. Mrs Y complained to the Council in February 2022. She said she was yet to receive Bs amended EHC plan from 2021 and the Council had delayed consulting with schools.
24. The Council told Mrs Y in the same month it would amend B’s EHC plan following the April 2021 review. It issued the final plan in March 2022. It named a specialist school to be identified and said B would have 1:1 support for 32.5 hours per week.
25. The Council asked the school if it required any additional support whilst it was looking for specialist placements. The school said it had increased funding, so B always had an adult with him. But it said it was unable to meet his needs as it did not have the space for B to be able to do his activities. It also said a specialist provision is what B needed.
26. The new case officer sought non-maintained and independent (NMI) approval in March 2022. This was because SEN placements had been consulted for a long time and NMI approval would give it the option to consult with independent placements.
27. The Council updated Mrs Y in the same month and asked if she preferred any specific non-maintained schools.
28. A transition review was held. It said B required a specialist placement.
29. The school chased the Council for a response to its email stating it could not meet B’s needs. It said it needed support with training for all staff, additional speech and language therapy (SALT) time and support, additional resources and additional funding. The Council asked the school to send a costed provision map to present to the panel.
30. The Council attended an annual review in March 2022. It sent Mrs Y a list of schools it would consult with in April 2022 and said it would re-consult with school X.
31. The Council continued to consult with schools in April and May. The Council’s notes show the schools consulted were either full or could not meet B’s needs.
32. The panel agreed to provide the additional funding requested of Bs current school in May 2022
33. Mrs Y told the Council she felt it was not progressing with finding B a school.
34. In May 2022, Mrs Y’s preferred choice, school X, said it could offer B a place but requested more funding. This was agreed and in June the Council confirmed to Mrs Y that it could offer B a start date of September 2022.
35. Mrs Y told the Council she had not received B’s 2022 draft EHC plan from the March review. The Council said it thought the school has sent it the annual review paperwork. It said it would follow it up with the school.
36. The Council sent Mrs Y the proposed amended EHC plan in July 2022.
37. The final EHC plan issued in July 2022 named school X.

My findings

38. The Council told us between April 2021 and June 2022, B was receiving his SALT provision as detailed within his EHC plan. It said B was provided with full time 1:1 funding for 32.5 hours per week. But the April 2021 annual review stated the school could not meet B’s needs as he needed access to a specialist setting with highly trained staff. It said B required a highly individualised curriculum with daily SALT provision. We would expect Council’s to act on this information and consider the extent to which provision is sufficient to meet B’s needs. But it did not ask the school if it required additional support until March 2022. This is fault as the Council took nearly a year to request the additional support.
39. Due to an error with the Council’s email system, the request for specialist provision in April 2021 was not considered and accepted by the Council’s panel until June 2021 when the school asked for a response. The Council consulted with school X the following month. But it then consulted with further schools four months later. The Council told us the delay was because of a change in case officer as well as a change in the consultation process.
40. Although the Council’s panel agreed to fund a specialist placement in June 2021, it took the Council nine school months to secure a place at school X. Between June 2021 and February 2022, the Council consulted with only three schools. School X initially took more than 15 calendar days to respond. The Council took 30 school days to follow up with school X. The records show the Council did not consider non-maintained or independent schools until March 2022. When consulted, these schools were either full or could not meet B’s needs.
41. We cannot say the Council is at fault for consulting schools which were full or could not meet B’s needs; it would not have known this without consulting. However, the LGSCO can criticise councils for not managing the consultation process efficiently and for allowing cases to drift. We would expect the Council to consult schools promptly and concurrently. Although councils are entitled to consult with maintained schools, it should also keep the possibility of independent or non-maintained provision under review. There is an unexplainable drift in B’s case which the Council cannot account for. This created injustice because B could have accessed extra provision sooner.
42. There is evidence of further fault because the Council should have issued a decision to maintain or amend the EHC plan within four weeks of the April 2021 review. As a result, Mrs Y lost the opportunity to exercise her appeal rights and it would have been open to Mrs Y to challenge the suitability of B’s school placement. Although the panel agreed to a specialist placement in June 2021, Bs EHC plan was not updated to identify a specialist school until March 2022.
43. The Councils response times and communication fell below our expected standards of service. It failed to update Mrs Y when it allocated a new case officer. This was fault which caused Mrs Y unnecessary stress, time and trouble in repeatedly contacting the Council.
44. The Ombudsman’s guidance on remedies recommends a payment in acknowledgement of missed provision of £200-£600 per school month. I consider an appropriate figure in this case to be £200 per month between June 2021 and February 2022 where there is an unexplainable drift in B’s case. In determining this, I have taken into account that B had not missed out on education entirely as he remained in school. But he missed out on the additional provision which he was entitled to receive.

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Agreed action

45. To address the injustice caused by fault, within one month of the date of my final decision the Council has agreed to:
• Apologise to Mrs Y
• Pay Mrs Y £250 for the unnecessary time and trouble she spent contacting the Council
• Pay Mrs Y £1200 for the educational benefit of B, to recognise the impact of its failings on B’s education.
46. Within two months, issue written reminders to relevant staff to ensure they are aware of:
• The Council’s duty to decide whether to keep, cease or amend the EHC plan within four weeks of the review meeting, and to notify the parents in writing.

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Final decision

47. There was fault by the Council. The actions the council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman