Leicester City Council (22 007 433)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 22 Mar 2023

The Ombudsman's final decision:

Summary: Ms X complained the Council delayed contacting specialist schools and naming a specialist school for Child A in his Education Health and Care Plan. Ms X said this meant Child A did not have an appropriate setting for the start of the new school year. The Council was at fault for delays between February and April 2022 when it was consulting specialist schools. This meant Child A did not have a school place or the provision in their plan between September and mid-October 2022 which was fault. The Council will apologise and pay Ms X £300 to recognise the injustice caused by the lack of provision.

The complaint

  1. Ms X complained the Council delayed contacting specialist schools and naming a specialist school for her son, Child A in his EHC Plan. As a result of the delay Ms X said she was too late to appeal to the SEND Tribunal and caused her time and trouble contacting the Council. Ms X said Child A did not have an appropriate setting for the start of the new school year, September 2022. Ms X said this has caused distress for herself and Child A.

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Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. 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.
  4. 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)
  5. 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

  1. I considered:
    • the information Ms X provided and spoke to her about the 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.
  2. Ms 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

  1. 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.
  2. 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.
  3. Where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment. The whole process from the point when an assessment is requested until the final EHC plan is issued must take no more than 20 weeks (unless certain specific circumstances apply).
  4. There is a right of appeal to the SEND Tribunal if the parents is unhappy with the placement (or type of placement) named in Section I.
  5. In this case, there was a right of appeal when the Council issued a final EHC plan for Child A in February 2022, but it was reasonable for Ms X not to exercise that right. This is because the EHC plan named the current nursery to the end of that academic year and a type of placement (special school) after that. Ms X agreed with this. There was no specific placement named from September 2022 so there was nothing for Ms X to appeal against. On this basis, I have exercised discretion to consider the whole period complained about.
  6. 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.

Compulsory school age

  1. A child is of “compulsory school age” on 1 January, 1 April or 1 September following their fifth birthday. This means for a child born in September, although they will typically start school in the September in which they reach age five, they are not of compulsory school age until 1 January the following calendar year.

What happened

  1. Child A lives with Ms X. Child A was not of compulsory school age and attended a mainstream pre-school setting for 25 hours per week.
  2. In early October 2021 the Council received Child A’s formal EHC plan assessment request form. The assessment identified Child A had communication, concentration and social interaction delays.
  3. In late January 2022 the Council agreed Child A needed an EHC plan and to attend a special school. The Council also agreed its highest level of funding would be awarded to enable a mainstream school to meet Child A’s needs in the interim if a place at a specialist school had not been identified in time for a September 2022 start.
  4. A week later in early February 2022 the Council issued Child A’s draft EHC plan. The same day the Council consulted five special schools including Ms X preferred school, School 1. The special schools included Leicester City special schools and School 1 which was a Leicester County School. The Council made an administration error when it consulted School 1 as it did not immediately consult Leicester County Council. It rectified this mistake a week later.
  5. In mid-February 2022 the Council issued Child A’s final EHC plan. This named Child A’s current mainstream pre-school with transfer to a special school “when a place becomes available”.
  6. By late February 2022 all of the five special schools had responded to the consultation. Two schools said they could meet Child A’s needs but did not have space for September 2022, one school said it could not meet Child A’s needs, School 1 provided an incomplete response, and another school, School 2 said it may be able to meet Child A’s needs subject to approval by a special school placement panel.
  7. In March 2022 Ms X changed her school preference to a Leicester City special school, School 2. It is unclear why the Council did not seek approval from the panel and issue an amended EHC plan, naming school 2, at this stage.
  8. In March and April 2022 the Council pursued School 1 for a full response sending a further letter in late April 2022.
  9. In late May 2022 Ms X wrote to a local councillor. She said she had lost her right of appeal to the SEND Tribunal because of Council delays in contacting and obtaining responses from specialist schools.
  10. In early June 2022 the Council received Ms X’s letter to the Councillor and it responded to Ms X at the end of June 2022. The Council said:
    • it was working hard to secure a special school place for Child A;
    • School 1 had responded to the Council and it said it could meet Child A’s needs but it did not have any spaces at that time;
    • it had contacted a number of schools again for a placement in Autumn 2022;
    • it would contact Ms X as soon as it secured a placement and would keep in touch with Ms X over the summer; and
    • there was increased demand for specialist school places and it was working to increase the number of special school places, but that would take time.
  11. In late July 2022 Ms X complained to the Council, she said:
    • no specialist school had been identified for Child A for September 2022 and she had lost her right to appeal to the tribunal;
    • the Council made an error sending the School 1 consultation. It should have sent it to the County Council and not directly to School 1. This caused a delay of a week;
    • she was put to time and trouble chasing the Council for an update on the school consultation responses between February 2022 and the middle of May 2022;
    • in early March 2022, after a discussion with the Council, Ms X changed her first choice school to a city school; and
    • Child A will have no provision in September 2022 and will be at home.
  12. In mid-August 2022 the Council responded to Ms X’s complaint, it said:
    • it was still working hard to secure a special school place for Child A;
    • in early August 2022 the Council emailed several schools to find a placement for Child A in the Autumn term but both schools said no place was available;
    • the Council would pursue the schools that had not responded but because it was the school holidays it could take them time to respond;
    • it would keep Ms X updated on progress;
    • as an interim measure it would contact mainstream schools;
    • there was a high demand for special school placements; and
    • Ms X could escalate her complaint or complain to the Ombudsman.
  13. In early September 2022 Ms X complained to us.
  14. Two days later emails showed the Council was aware Child A was not attending the mainstream pre-school and was out of educational provision. It is not clear why Child A could not stay in the mainstream nursery. Council emails showed the Council was waiting for confirmation from a specialist nursery about availability and support it could provide Child A in the interim.
  15. Two days later in early September 2022 the Council held Child A’s EHC plan six month review. It was attended by Ms X, Child A’s mainstream pre-school, speech and language therapy (SALT) and the Council. The review discussed Child A’s progress and transfer to compulsory schooling.
  16. In late September 2022 the Council arranged an urgent meeting to discuss Child A’s placement. The same day a specialist nursery confirmed Child A had a place.
  17. In early October 2022 the Council issued a draft amended EHC Plan. This named the specialist nursery and then a transfer to a specialist school when a place became available.
  18. Between mid-October 2022 and the end of December 2022 Child A attended a specialist nursery placement 3 days a week. The Council said this ensured Child A received the provision in his EHC plan.
  19. Between early September and December 2022 the Council contacted School 1 and the County Council multiple times to secure a specialist placement for Child A and School 1 agreed to offer a place from January 2023.
  20. In mid November 2022 the Council issued Child A’s final EHC plan naming the specialist nursery and then a transfer to School1. In response to my enquiries the Council said there had been increased demand for specialist school places. It had already planned how to increase specialist placements, including expanding the number of places available at three specialist schools and was exploring possible expansion at two other specialist schools.

Communication

  1. In March 2022 Ms X rang the Council twice and spoke to a senior Council officer for an update on Child A’s specialist school consultation responses. The Council told Ms X it had only received one response which was negative.
  2. In early April 2022 Child A’s mainstream nursery contacted the Council for an update on Child A’s specialist school place. The Council confirmed it had received responses but could not discuss the content with the nursery because of data protection reasons.
  3. In mid-April 2022 the Council told Ms X about the four responses it had received and said it was still waiting for a response from School 1. It said it would keep Ms X informed and gave Ms X a direct contact number if she had further queries.
  4. In early May 2022 Ms X called the County Council about the response from School 1 and it said the response had been sent to the Council. Ms X said the information the Council gave her about which schools had provided responses and when was confusing. In mid May 2022 Ms X rang the Council again for an update and it told her it had not identified a specialist school place for Child A to start in September 2022.

My findings

EHC Plan Assessment

  1. The Council completed the SEN assessment and issued a final EHC plan within the 20 weeks' statutory timescale. It was not at fault.

School placement

  1. The Council consulted five specialist schools as soon as the draft EHC plan was issued, which was good practice. The Council did delay issuing School 1’s consultation by a week due to an administration error but this was not sufficient to amount to fault and, in any case, did not cause significant injustice.
  2. The Council received complete responses back from four of the consulted specialist schools and an incomplete response from School 1 by the end of February 2022. The Council failed to either chase School 1 for a full response in February 2022 or consult its panel with a view to naming school 2 in March 2022. There is also no record the Council consulted independent special schools. The Council allowed the matter to drift, which was fault. This meant school places that may have been available in February 2022 had been filled. The Council did take steps from April 2022 onwards, including over the summer holidays to identify a school place for Child A. It carried out further consultations, including consulting with mainstream schools as an interim measure, but it was not able to identify a specialist place for Child A to start in September 2022.
  3. It is not clear why Child A was not able to continue attending the mainstream nursery, but the Council was aware they were not attending in early September 2022 and took appropriate steps to arrange an alternative nursery place, which started in mid-October 2022. However, this meant Child A did not receive the provision in his EHC plan for 6 weeks from early September to mid October 2022. I will recommend action to remedy the injustice caused.
  4. The Council said the delay in identifying a school place was due to a lack of special school places in its area. It has explained the steps it is taking to increase provision and I am satisfied there is no need to recommend further action.
  5. The Council did secure a specialist nursery placement for Child A between mid-October and December 2022 for 3 days a week. The Council said this provision ensured Child A received the provision set out in his EHC plan for that period. The EHC plan does not specify Child A had to attend for 5 days and Child A was not at compulsory school age at that point. On this basis, I have not found fault. The Council issued a final amended EHC plan, which named a specialist nursery as the placement in section I. This gave Ms X a fresh right of appeal if she was unhappy with the placement.
  6. The Council secured a placement for Child A at School 1 starting in January 2023, which was when Child A reached compulsory school age.

Review delay

  1. The Council review of Child A’s EHC plan should have taken place in mid-August 2022. It took place three weeks later in early September 2022. Relevant professionals may not have been available in August 2022 because of the school holiday and the delay was not so significant that it amounted to fault. And there is no evidence this delay caused Child A an injustice.

Communication

  1. Ms X contacted the Council multiple times for updates on the school consultations. The Council had received consultation responses by late February 2022 but did not update Ms X until mid-April 2022. At that stage, it did not have the full response from School 1, and it did not immediately update Ms X when it received this. The failure to keep Ms X updated and respond to her requests for updates was fault. This fault meant Ms X was put to avoidable time and trouble contacting this Council and the County Council for information over a two month period when she was unsure what was happening about a school place for her son.
  2. There was no fault with the Council’s communication with Ms X after late June 2022.

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Agreed action

  1. Within one month of the final decision the Council will:
    • apologise and pay Ms X £100 for the delay in updating her on the school consultation responses between late February and June 2022, which caused her avoidable time and trouble contacting the Council for information;
    • apologise and pay Ms X a further £300, for the benefit of Child A, to recognise the injustice caused by missing the provision in his EHC plan for 6 weeks from September 2022.

This payment is based on £200 per month in line with our guidance on remedies. In deciding the level of payment, I have considered the specific support missed, whether Child A was likely to be able to catch-up when support was put in place, and the fact they were not yet of compulsory school age during the period in question.

    • remind relevant staff of the need to keep parents updated about the outcome of school consultations and respond to reasonable requests for information.

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Final decision

  1. I have completed my investigation finding fault causing 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

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