Summary: Mrs X complained that after issuing an Education, Health and Care (EHC) Plan for her son, the Council delayed in consulting schools and failed to provide him with suitable education or the support in the EHC Plan. The Council was at fault in failing to arrange the interim education set out in the EHC Plan. The Council has agreed a remedy for the loss of education. We cannot investigate some parts of the complaint because they are too closely bound up with Mrs X’s appeal about the named school placement.

The complaint

1. Mrs X complains, through her representative, that after issuing an Education, Health and Care (EHC) Plan for her son, G, in April 2022 which named the type of school as a maintained specialist school for children with Autistic Spectrum Disorder, the Council:
1. delayed in consulting schools; and
2. failed to provide G with suitable education or any of the support in his EHC Plan.
2. As a result she says her son missed out on education and support he should have had for around four months and his mental health suffered.

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What I have and have not investigated

3. Because of restrictions on our jurisdiction explained in paragraphs 5, 7 and 35 below, I cannot investigate the complaint about delays in consulting schools after the Council issued the final EHC Plan and Mrs X appealed. I have investigated whether the Council delivered the provision set out in the EHC Plan while she was appealing.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’, which we call fault. 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) The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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.
7. 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 Education, Health and Care Plan we cannot seek a remedy for lack of education after the date when the right of appeal arose if the appeal 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).
8. We can decide whether to start or discontinue an investigation into a complaint or part of a complaint that is within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended) For example we may decide not to investigate a complaint if we cannot achieve the outcome someone wants.

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How I considered this complaint

9. I discussed the complaint with Mrs X’s representative and considered the information she provided. I considered relevant law and guidance on special educational needs. I have considered the Ombudsman’s jurisdiction under the Local Government Act 1974, based on caselaw as it currently stands.
10. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
11. 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 the decision on this complaint with Ofsted.

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What I found

Education, Health and Care Plans

12. A child with special educational needs may have an Education, Health and Care (EHC) Plan, following an assessment of needs. This sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. Section F is for the special educational needs support to be provided. Section I names the education placement or type of placement. We cannot direct changes to the sections about education, or name a different school. Only the Tribunal can do this.
13. There is a right of appeal to the SEND Tribunal about the content of the final EHC Plan, including the support to be provided and the named placement or type of placement.
14. Statutory guidance 'Special educational needs and disability Code of Practice: 0 to 25 years' ('the Code') sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It includes timescales for completing EHC Plans and requirements for consulting schools.
15. The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable.
16. 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).
17. If a child’s parent or a young person asks the council to name a particular school in the EHC Plan the council must name the school unless:
• it would be unsuitable for the age, ability, aptitude or SEN of the child or young person, or
• the attendance of the child or young person there would be “incompatible with the efficient education of others, or the efficient use of resources”.
18. The council must consult schools, including the parents’ preferred school, and consider their comments very carefully before deciding whether to name a school in the child’s EHC Plan. The council must send the school a copy of the draft EHC Plan as part of the consultation. The school consulted should respond within 15 days.
19. Councils have a duty to ensure that the special educational provision set out in an EHC Plan is arranged. (Children and Families Act 2014 section 42)

What happened

20. Mrs X’s son, G, has special educational needs and a diagnosis of Autistic Spectrum Disorder (ASD). He was attending a mainstream school, School 1, but from September 2021 he had difficulties attending school and engaging with the education offered because of his level of anxiety. The School had a reintegration plan for G to try and encourage him back to school.
21. Following an EHC assessment, the Council issued a draft EHC Plan on 28 March 2022, inviting Mrs X to say which school she wished her son to attend. Mrs X contacted several schools. On 22 April she wrote to the Council to say her preferred school was an independent specialist school for pupils with ASD, School 2. She said all the other schools she had contacted were either full, not suitable or too far away.
22. The Council issued the final EHC Plan on 27 April. In Section I the Plan named the type of school as the “nearest state-funded special school for children with ASD: To be identified”. The EHC Plan also included the following provision in Section F:
• support from staff experienced in working with students with social communication difficulties and emotional needs;
• a temporary transition programme including individual tuition and remote learning sessions while the Council explores alternative placements.
23. In describing the transition programme, the EHC Plan said G would need a “very carefully managed transition package to help him re-engage with learning and returning to school”. It said while the Council was looking for alternative settings it would be important to explore with G whether he could still attend a lesson a day of his choosing in school. But if he was struggling to physically attend school for the lesson:

“it will be important for [G] to be introduced to the individual tuition sessions either in the community or in the home environment as well as remote learning sessions.”

24. G remained on roll at School 1. Shortly after the Council issued the final EHC Plan, School 2 agreed it could meet G’s needs and told the Council it could offer him a place from 16 May.
25. Mrs X appealed to the Tribunal on 20 May for the Council to name School 2 in Section I. She did not appeal against any of the SEN provision in Section F.
26. The Council started consulting schools in late June.
27. Through the appeal process, the Council agreed to name Mrs X’s preferred school. The Tribunal issued a Consent Order and the Council issued a final amended EHC Plan naming School 2. G started at School 2 in September 2022.

Temporary transition package

28. Shortly before the final EHC Plan was issued at the end of April 2022, the Council agreed to fund five hours a week for School 1 to provide some interim support while the Council continued to seek another placement. On 22 April the Council wrote to Mrs X to confirm it had agreed this funding. It said the School would refer to the professional advice provided from the EHC assessment when thinking about what type of interim support would be needed and would contact her about this.
29. On 8 June Mrs X wrote to her representative to say that on 17 May the Council’s Inclusion Officer had visited her and said she would speak to School 1 as the Officer felt it was impossible for G to take up the funded learning. G had not been able to go into the School because of his severe anxiety. Mrs X said the Inclusion Officer had said she was going to apply for funding for him to have some lessons at home, but she had not heard any more.
30. Mrs X’s representative said she would ask the Council to check with the School what it was doing to make the interim support available. The Council said School 1 had received the funding and so it should be arranging the interim support.
31. The Council says it offered five hours a week but Mrs X did not consider the offer suitable and so she declined. Mrs X says School 1 wanted G to go into school for the daily lesson but he could not do so because of his severe anxiety. She said the Council did not offer any of the individual tuition at home or in the community or any remote learning as set out in the EHC Plan.

Complaint

32. In late June 2022 Mrs X made a complaint to the Council about delay in consulting schools. She said School 2 had offered G a place and the delay was damaging to his mental health.
33. Mrs X was not happy with the Council’s response. In her second stage complaint she added that the Council had not put in place the interim provision in G’s EHC Plan while it was looking for a school placement.
34. In the Council’s final response to her complaint in September 2022 it said it understood the delay in naming a school placement had caused a lot of distress for the family and that no tuition was put in place for G during this time. It apologised for the impact this had on G and his family. It said it understood that during this period School 1 developed a re-integration plan to encourage G back into school but the parents did not feel it was appropriate for G. It said it had highlighted concerns with the SEND Team to ensure they send out consultations to potential schools in a timely manner.

Analysis and jurisdiction

35. Because of the law and caselaw referred to in paragraphs 5 and 7 above I cannot investigate the complaint about delay in consulting schools after the EHC Plan was issued. Mrs X appealed to the Tribunal for the Council to name School 2. The question of school consultations is too closely bound up with the matter under appeal for the Ombudsman to be able to investigate it.
36. I could investigate any delays in consultations up to the point when the EHC Plan was issued at the end of April 2022. However it was only a few days before this that Mrs X told the Council which her preferred school was. Even if the complaint is that the Council should have started consulting schools as soon as it had issued the draft EHC Plan this would have added an extra four weeks. If I were to investigate delays in this period I am unlikely to be able to conclude that if there was delay it had a significant impact on the outcome or affected when G was able to start at School 2. The Council has already issued a reminder to relevant staff about the importance of timely consultations. So I do not consider that investigating any delays in this period is likely to achieve a useful outcome for Mrs X. I do not propose to investigate this issue further.
37. I have been able to investigate the part of the complaint about lack of interim provision while the Council was looking for an alternative schools placement to name in the EHC Plan. This is because the Council had a duty to ensure the provision set out in the EHC Plan was arranged while Ms X was going through the appeal. I consider this issue is separate from the matter under appeal because the provision was not dependent on G attending School 1. It was for individual tuition at home or elsewhere out of school and for remote learning if he could not attend school. This applied from late April 2022, when the final EHC Plan was issued, to the end of term in July 2022, before G started at School 2 in September.
38. The Council agreed the funding for School 1 for the five hours a week interim support. But once it became clear early on that G would not be able to take up the lessons offered at school, I have seen no evidence to show that the Council took any steps to ensure the individual tuition out of school or the remote learning was put in place as required in the EHC Plan. Mrs X says the Council did not arrange this support and the Council has provided no evidence that it did. The only evidence I have seen during this period was supplied by Mrs X. This shows that the Council first did not get back to her about the home tuition after promising to do so, and then simply told her School 1 had received the funding and should arrange the education.
39. The Council had a duty to arrange the special educational provision set out in G’s EHC Plan. I consider its failure to do so was fault. As a result G missed out on education he should have had under the agreed transition package for around three months. The Council has confirmed the missing period of education and apologised for the impact this had, but has not so far offered any other remedy.

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Agreed action

40. To remedy the injustice to Mrs X and G the Council has agreed to take the following action within one month of the final decision on this complaint:
• send a further written apology to Mrs X for its failure to put in place the individual tuition and remote learning required under G’s EHC Plan;
• pay Mrs X £300 per month to recognise the loss of education to G for the period May to July 2022, making a total of £900;
• pay Mrs X £100 to recognise her unnecessary time and trouble in making her complaint. She would not have had to complain to the Ombudsman if the Council had offered her a remedy for the missing education through its own complaints process.
41. Where fault has resulted in a loss of educational provision, the Ombudsman normally recommends a remedy payment of between £200 and £600 per month to acknowledge the impact of that loss. The figure is based on the impact of the loss on the child and takes account of factors such as the child’s SEN, any educational provision made in the period, whether additional provision can remedy some or all of the loss and whether the period was a particularly significant one in the child’s education.
42. In this case I have recommended a payment of £300 per month because although the required provision was for only a few hours a week, it was at an important time when G should have been getting ready to transition back into education. The payment should be used for the benefit of G’s education.
43. The Council should provide us with evidence it has complied with the above actions.

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Final decision

44. I have found that the Council was at fault in failing to arrange the interim education set out in G’s EHC Plan. Some parts of the complaint are outside the Ombudsman’s jurisdiction. The Council has agreed a suitable remedy for the injustice caused by its failings and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman