Summary: Miss X complained the Council failed to provide her son, Child Y a place at an appropriate school to meet his needs and delayed issuing his amended Education Health and Care (EHC) Plan following an annual review in January 2022. The Council was at fault for the delay in issuing Child Y’s EHC plan following an annual review. The Council will pay Miss X £200 for the uncertainty and frustration caused by the delay. Miss X had a right of appeal to the tribunal over Child Y’s school place. The Council has already apologised to Miss X for poor communication which was appropriate.

The complaint

1. Miss X complained the Council failed to provide her son, Child Y a place at an appropriate school to meet his needs and delayed issuing his amended EHC Plan following an annual review in January 2022. Miss X said this caused unnecessary distress and uncertainty and Child Y had missed out on appropriate provision. Miss X also complained about poor communication from the Council which she says has caused her avoidable time and trouble.

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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 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)
4. 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.
5. 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)
6. 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

7. I considered:
• the information Miss X provided about her complaint;
• the information the Council provided in response to my enquiries;
• relevant law and guidance, as set out below; and
• our guidance on remedies, published on our website.
8. Miss X and the Council had the opportunity to comment on the draft decision. We considered their comments before making a final decision.

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What I found

Relevant law and guidance

9. A child with special educational needs (SEN) 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.
10. The EHC plan is set out in sections which include:
• Section B: The child or young person’s special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and/or type of school.
11. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
12. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
13. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman 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).
14. We cannot investigate complaints about the support set out in the EHC plan nor the educational placement named in it. Parents can appeal to the SEND Tribunal if they are unhappy with those aspects.

The Code of Practice

15. The Code says councils should review the plan at least annually. The review meeting will usually be led by the school, which should send the council a report of the meeting within two weeks.
16. Within four weeks of the review meeting, the council must decide whether it proposes to keep the EHC plan as it is, amend the plan or cease to maintain it. It must tell the child’s parents and school its decision. If the plan needs amending, the council should start the amendment process without delay and should issue an amended plan within 8 weeks of its notice to the parties that it proposes to amend the plan.

Suitable education

17. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
18. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
19. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
20. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
21. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

What happened

22. Child Y lives with his mother Miss X. In September 2018 Child Y moved to School 1, a mainstream secondary school. Child Y has had an EHC plan since August 2021. This investigation covers the period from January 2022 to October 2022.
23. An annual review of Child Y’s EHC plan dated September 2021 was held in late January 2022. This was attended by Miss X, School 1 SENCO, Director of Learning Support and Assistant Headteacher and five Council officers including service family coordinators and social workers.
24. The annual review report said:
• Child Y was attending School 1, but was not enjoying school;
• although Child Y’s attendance was recorded as 85%, there was concern over Child Y’s lack of progress in School 1 in the Autumn term 2021 as they had not completed many lessons and had refused to complete work;
• learning support assistant provision had been put in place but Child Y declined the help which made elements of the EHC plan hard to implement;
• School 1 had implemented actions to address Child Y’s difficulties, which had not been successful;
• the meeting concluded School 1 could not meet Child Y’s needs; and
• the Council would consider one to one provision and the associated cost and look into alternative specialist provision.
25. The Council arranged specialist educational provision for Child Y three days a week in mid-February 2022 to study functional skills, English and Maths. Child Y also attended School 1 for some lessons and, from September 2022, to sit mock GCSE exams.
26. In early March 2022 the Council responded to the annual review report it said it would issue an amended EHC Plan and name an alternative placement for Child Y.
27. In mid-March 2022 the Council issued Child Y’s draft EHC plan. In late April 2022 Miss X agreed to the content of the draft plan and said School 2 was her preferred school.
28. One month later, in late May 2022 the Council consulted School 2, which is a special school. In early June 2022 School 2 said it was not able to meet Child Y’s needs and the relevant school year was full.
29. In mid-June 2022 Miss X complained to the Council. She said:
• she received poor support and communication from the Council’s family services co-ordinator;
• in January 2022 School 1 admitted it could not meet Child Y’s needs and School 1 was not the correct placement for Child Y;
• Child Y had high anxiety about which school he would attend in September 2022 for Year 11 and he wanted to attend School 2;
• she would like Child Y to pass his GCSE Maths and English and one to one support would help to achieve that; and
• she was unhappy about Council delays in issuing Child Y’s EHC plan.
30. In late June 2022 the Council consulted School 3 which was a specialist education setting. In early July 2022 School 3 said it was not a suitable placement for Child Y because Child Y did not fit the profile for the current cohort of pupils and it could not meet Child Y’s needs.
31. In early July 2022 the Council sent Miss X its Stage 1 response, it said:
• Child Y attends School 1 which is named in Section I of Child Y’s EHC Plan;
• Miss X requested an alternative school place for Child Y at the annual review;
• Child Y’s draft EHC plan was issued in mid-March 2022 and Miss X responded in late April 2022 agreeing with the content of the draft plan and said School 2 was the preferred educational setting for Child Y;
• it accepted there was a delay in the specialist education panel (SEP) reviewing the request to consult School 2 but it sent the consultation to School 2 at the end of May 2022.
• School 2 said it could not meet Child Y’s needs so the SEP considered other options in June 2022, and agreed to consult school 3;
• the Council’s family services coordinator could not attend a recent school meeting about Child Y due to annual leave;
• the Council’s family service team were experiencing increased demand and a strategic partner was working with the Council to support actions from SEND reviews including improved communication; and
• it apologised for the delays, poor communication and frustration caused to Miss X.
32. In mid-July 2022 the Council issued Child Y’s Final EHC Plan and named School 1 for Child Y for September 2022. The letter set out Miss X’s right to appeal to the SEND Tribunal if she was unhappy with the content of Child Y’s EHC plan.
33. Miss X was unhappy with the Council’s Stage 1 response and asked the Council to consider the complaint at Stage 2. In mid-August 2022 the Council told Ms X its Stage 1 response was the Council’s final position. It told Miss X if she remained unhappy to contact us, which she did.
34. In mid-August 2022 the Council told Miss X it had allocated a new case worker. The new case worker contacted Miss X a week later.
35. In early September 2022 a further annual review was held with School 1. It was agreed that School 1 would adapt Child Y’s timetable to ensure he could attend Maths and English lessons and sit his mock GCSE exams.
36. In late September 2022 Child Y stopped attending School 1. Miss X said this was because Child Y needed one to one, face to face learning and could not sit his mock exams online.
37. In mid-October 2022 the Council arranged Child Y a placement two days a week at a specialist educational placement for Child Y to study English and Maths GCSE. This was in addition to the three days per week specialist provision Child Y had been attending since mid-February 2022.

My findings

Delay in issuing EHC Plan

38. The Council held Child Y’s EHC plan annual review meeting in late January 2022. This was within 12 months of his first EHC plan which was within the statutory timescales and so was not fault. However, the Council did not issue a final amended EHC plan until mid-July 2022, which was 10 weeks later than it should have done. This was fault. The delay caused Miss X frustration and uncertainty about which education setting Child Y would attend in September 2022, which was significant as Child Y was due to go into school year 11 in which he would sit GCSE exams. The fault also caused a delay in her getting appeal rights if she was unhappy with the school named in the plan, although she did not exercise her right of appeal.

School Placement

39. The Council was aware from the annual review meeting in January 2022 that it needed to find an alternative placement for Child Y, and it knew School 2 was Miss X’s preferred placement by late April 2022. In its complaint response, the Council accepted there was a delay in consulting schools after Miss X expressed a preference. This delay contributed to the delay in issuing the final amended EHC plan, for which I have already made a finding of fault.
40. There was no fault in the way the Council consulted with the two specialist schools, School 2 and School 3, but neither of them could meet Child Y’s needs.
41. It is unclear why the Council named School 1 in the final amended EHC plan in July 2022, given it had said it could not meet Child Y’s needs either, but Miss X had a right of appeal to the SEND Tribunal if she was unhappy with the school named. The Council did provide Miss X with the appeal rights in the final EHC plan letter it sent her in mid July 2022. Only the SEND Tribunal can say whether a school is suitable.

Alternative Provision

42. Following the annual review, Child Y received educational provision for two days per week at School 1 and three days a week special educational provision elsewhere.
43. Child Y stopped attending School 1 in late September 2022, and the Council put in place another specialist provision from mid-October 2022 for two days a week to replace the education provided by School 1.
44. This means the Council ensured Child Y had a full-time education for the period I have investigated. The Council was not at fault.

Communication

45. Miss X complained about poor communication and support from the Council’s family case coordinator when she did not attend a school meeting. The Council has already apologised for this and explained the Council officer was on annual leave. The Council has also put new provision in place with a strategic partner to help improve communication and has already apologised to Miss X for poor communication in its Stage 1 response. This example of poor communication was not sufficient to warrant a finding of fault and in any event the Council has already apologised which is an appropriate remedy.

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Agreed action

46. Within one month of the final decision the Council will pay Miss X £200 for delay in issuing Child Y’s EHC plan following the annual review which caused uncertainty and frustration.
47. Following other recent Ombudsman investigations, the Council is already taking action to address delays in the EHC plan process and is issuing guidance to relevant staff to reduce delays in consulting with schools, so no further recommendations are needed.

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Final decision

48. I have completed my investigation finding fault causing personal injustice. The Council have agreed to take action to remedy the injustice and prevent recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman