Summary: Ms X complained about how the Council has managed her son’s education provision. She said the Council has: unfairly removed his placement, issued a proposal to cease his Education, Health and Care plan without her consent and delayed responding to her complaint. We find fault by the Council. To address the injustice cause by these faults the Council has agreed to apologise, make symbolic payments and agreed to service improvements.

The complaint

1. The complainant, Ms X, complains about how the Council has managed her son’s education provision. In particular she said the Council has:
• Unfairly removed his placement.
• Issued a proposal to cease his Education, Health and Care (EHC) Plan without her consent.
• Delayed responding to her complaint.
2. Ms X said this has caused her and her son significant stress and said this has had a significantly negative impact on her son’s progress.

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What I have and have not investigated

3. I have investigated whether there was any fault in the Council’s actions from January 2021 to February 2023. I have not investigated what happened between 2019 and 2021. This is because Ms X had the right to appeal against the named placement.

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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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. 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)
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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council. (Local Government Act 1974, sections 26B and 34D, as amended).
9. 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.
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 spoke with Ms X about her complaint. I considered all the information provided by Ms X and the Council.
12. Ms X 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

Education, Health and Care plans

13. Some children and young people with special educational needs and disabilities will have an EHC plan. The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs. This can include support needed in school.
14. 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).
15. The Council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act).
16. Where a Council is considering ceasing to maintain a child or young person's EHC plan it must:
• Inform the child’s parent or the young person that it is considering this.
• Consult the child’s parent or the young person.
• Consult the school or other institution that is named in the EHC plan.
17. Where, following the consultation, the Council decides to cease to maintain the child or young person’s EHC plan, it must notify the child’s parent or the young person, the institution named in the child or young person's EHC plan and the responsible Clinical Commissioning Group of that decision.
18. The Council must also notify the child’s parent or the young person of their right to appeal that decision and the time limit for doing so, of the requirement for them to consider mediation should they wish to appeal, and the availability of information, advice and support, and disagreement resolution services.

The Council’s complaints policy

19. The policy states the Council will acknowledge complaints within three working days and will provide a response within 20 working days at stage one. Where this is not possible, it will inform complainants at the earliest opportunity.
20. If complainants remain dissatisfied, they can have their complaint investigated by writing to the corporate director of the service involved. The timescale for a formal response is 20 working days. For more complex cases it will be a maximum of 65 working days.

What did happen?

21. This section sets out the key events in this case and is not intended to be a detailed chronology.
22. By way of background Ms X’s son, Mr Z, has an EHC plan and attended school A in 2019. But the Council’s notes stated Ms X said this placement was not suitable for Mr Z.
23. In August 2019, Ms X contacted the Council regarding Mr Z’s school placement. She asked how she could appeal against the named placement. But the Council said as the final EHC plan had been issued in May 2019, the two months where Ms X could have appealed had passed. The Council also advised Ms X to speak with the Tribunal team.
24. Ms X said during this time, Mr Z remained out of education. She said this was because the Council would not find another suitable alternative placement. Ms X complained to us (19017682) but Ms X was advised that we could not consider the complaint as she could appeal against the named placement.
25. An annual review was held in January 2021. It stated the EHC plan would be ceased as Mr Z had not attended school since July 2019. It noted that Mr Z would benefit from joining adult social care full time from the age of 18. But it said for him to access this, his EHC plan would have to be ceased. It also noted that it would contact Ms X to discuss this.
26. Mr Z’s EHC plan was finalised in August 2021, naming school B where he started the following month. The placement was agreed until December 2021 on the understanding that an early review would take place and that the case would return to the Council’s panel.
27. A review was held in October 2021. It stated the placement remained suitable, Mr Z was making good progress and Ms X wanted him to remain there. It was agreed that Mr Z would remain at school B until July 2022.
28. The Council sent Ms X a letter in June 2022. It said it proposed to cease Mr Z’s EHC plan. It said following receipt of the review, it appeared that Mr Z no longer required special education provision specified in his EHC plan. It said Ms X had 15 calendar days to submit her views on the proposal. It said if it did not receive a response, it would make a decision and notify her.
29. In the following month, school B told the Council it had offered Mr Z a place at its post-19 provision college, starting in September 2022. It said the placement had been going well. School B also said the EHC plan remained relevant and should continue in education post 19.
30. Ms X complained to the Council in July 2022 about the Council’s decision to cease the EHC plan. She said she had requested the formal decision so she could appeal but said this had been refused. She also said she had not been included in any decisions.
31. The Council responded to Ms X’s complaint under its stage one complaints procedure in August 2022. It said the decision to cease the EHC plan was made on the basis that there was no evidence that Mr Z was making progress in his education. It said for this reason, the Council’s panel declined the placement and said the Council was asked to explore options to support Mr Z’s transition to adult services.
32. Unhappy with the Council’s response, Ms X requested the Council reconsider her complaint.
33. The Council responded to Ms X in January 2023. It said because of the length of time that had lapsed since the review, it was decided that it would be inappropriate to cease the EHC plan.
34. Ms X told the Council the following month the college had confirmed a placement for Mr Z, which began in March 2023.

Analysis

35. For the reasons outlined in paragraph three of this statement, I cannot investigate what happened between 2019 and 2021. I can only consider whether there was any fault on the Council’s part, in its actions from January 2021 to February 2023. We would not normally investigate event that occurred more than 12 months before a person complains to us. But I have exercised discretion to investigate from January 2021 as I have seen no evidence to suggest Ms X was aware of the issues raised until June 2022 and Ms X complained to us in October 2022.
36. At the annual review in January 2021 which Ms X did not attend, the Council said it would cease the EHC plan as Mr Z had not attended education since July 2019. It said Mr Z would benefit from joining adult social care and said it would discuss this with Ms X. I have seen no evidence to suggest the Council discussed this with Ms X at the time. This is fault. The guidance states where a council is considering ceasing to maintain an EHC plan, it must inform the child or young person’s parent that it is considering this.
37. The Council did not advise Ms X of its decision to cease the plan until June 2022. It said Ms X had 15 calendar days to submit her views on the proposal. Whilst the Council has now decided that it would be inappropriate to cease the EHC plan, the delays and lack of communication is fault, and this has caused significant stress to Ms X.
38. The Council said the decision to cease the EHC plan was made on the basis that there was no evidence that Mr Z was making progress in his education. It said for that reason, the Council’s panel declined the placement. But the most recent review completed in October 2021 stated that Mr Z was making progress, the placement was appropriate, and the school requested the plan be maintained. I have seen no evidence to suggest the Council considered this review when making its decision. This is fault. Had this fault not occurred, I cannot say whether the placement would have been approved at the time. But this has caused uncertainty to Ms X and Mr Z and Mr Z was out of education between September 2022 and March 2023.
39. There is evidence of further fault as the guidance states within four weeks of a review meeting, the Council must notify the child’s parent of its decision to maintain, amend or discontinue an EHC plan. In this case, the review was held in October 2021 and the Council issued a proposal to cease the plan in June 2022.
40. Ms X told the Council in August 2022 that she was not happy with its stage one complaints response. The Council did not respond to Ms X until January 2023, when it issued the stage two response. This is fault and not in line with the Council’s complaint’s policy. This caused significant stress to Ms X at a time she was seeking answers from the Council.

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Agreed action

41. To remedy the injustice caused by fault, within one month of my final decision, the Council has agreed to:
• Apologise to Ms X and Mr Z for the faults identified in this statement.
• Pay Ms X £300 to acknowledge the distress caused by the faults identified in this statement.
• Pay Mr Z £500 to acknowledge the uncertainty caused to him when he was not in education.
42. Within two months of my final decision, the Council should issue written reminders to relevant staff to ensure they are aware of the guidance which states:
• Where a Council is considering ceasing to maintain a child or young person's EHC plan it must inform the child or young person’s parent that it is considering this.
• Councils must notify the child’s parent of its decision to maintain, amend or discontinue an EHC plan within four weeks of a review meeting.
43. The Council should provide us with evidence it has complied with the above actions.

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Final decision

44. 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