Summary: Mrs C complained the Council failed to secure a suitable school for her daughter, D, to attend from September 2022, and delayed putting alternative provision in place. She also complained the Council did not issue a final education, health and care plan, frustrating her right of appeal, and its communication was poor. We found the Council at fault for delays finalising D’s education, health, and care plan, and securing alternative provision. Because of the Council’s faults, D missed education and education health and care provision, and Mrs C’s rights of appeal to the SEND tribunal were frustrated.

The complaint

1. The complainant, who I will refer to as Mrs C, complained the Council failed to secure a suitable school for her daughter, D, to attend from September 2022 and delayed putting alternative provision in place. She also complained the Council did not issue a final EHC plan, frustrating her right of appeal, and its communication was poor.
2. The matters in this case are ongoing. I have considered the Council’s actions to December 2022. If Mrs C is unhappy about the Council’s actions since then, she can make a new complaint to the Council.

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The Ombudsman’s role and powers

3. 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)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
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:
• Mrs C’s complaint and the information she provided;
• documents supplied by the Council;
• relevant legislation and guidelines;
• the Council’s policies and procedures; and,
• the Ombudsman’s focus reports, ‘Not going to plan? - Education, Health and Care plans two years on’ and ‘Out of school, out of sight? Ensuring children out of school get a good education’.
8. Mrs C and the Council had the opportunity to comment on a draft decision. I considered their comments before making my final decision.

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What I found

Legislation and Guidance

9. A child with special educational needs 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. Part 3 of the Children and Families Act 2014, the Special Educational Needs and Disability Regulations 2014 and the SEND code of practice: 0 to 25 years give councils information about its duties.
10. A child with special educational needs may have an 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 which include.
• Section B: The child or young person’s special educational needs.
• Section F: The special educational provision required by the child or the young person.
• Section I: The name and type of the school or other institution to be attended by the child or young person and the type of that institution (or, where the name of a school or other institution is not specified in the EHC plan, the type of school or other institution to be attended by the child or young person).
11. EHC plans should be used to actively monitor children and young people’s progress towards their outcomes and longer term aspirations. They must be reviewed by the Council as a minimum every 12 months.
12. An EHC plan must be reviewed and amended in enough time before a child or young person moves between key phases of education, to allow for planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year of the transfer at the latest for transfers into or between schools. The key transfers include from primary school to secondary school.
13. Where the council proposes to amend an EHC plan, it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. The child’s parent or the young person should be informed that they may ask for a meeting with the local authority to discuss the proposed changes.
14. The parent or young person must have at least 15 days to comment and make representations on the proposed changes, including asking for a particular school or other institution be named in the EHC plan.
15. Following representations from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as quickly as possible and within eight weeks of the original amendment notice.
16. When a council issues a notice to amend an EHC plan, the final plan must be issued within eight weeks. The timescale from the annual review meeting to the final EHCP should take no longer than 12 weeks.
17. When sending the final amended EHC plan, the council must tell the child’s parent or the young person of their right to appeal and the time limit for doing so, of the need for them to consider mediation should they wish to appeal, and the availability of information, advice and support and disagreement resolution services.

Suffolk’s SEND service independent review

18. In September 2021, an independent review into Suffolk special educational needs was published. The review found the Council needed to make service wide improvements. Of relevance to this complaint, the review recommended:
• Complete a training needs analysis, with Family Services' officers, to identify gaps in knowledge and skills; develop appropriate training to ensure that all practitioners and managers are fully conversant with process, procedure, SEND legislation and person-centred planning and that practice is consistent across the county.
• Work with education leaders and parent carers to understand the increasing demand for specialist provision and use both SEND data and local intelligence and demographics to inform sufficiency planning.
19. In response to the review, the Council created an integrated action plan. Of relevance to this complaint, this included:
• Providing refreshed training on SEND procedures for appropriate staff.
• Using the data to pinpoint the nature and extent of needs which go unmet, across different localities and settings.
• Aggregating data on needs to evidence where provision is insufficient.
• Developing new sufficiency actions.
20. The Council provided an update on its progress in November 2022 and said it had:
• Delivered two whole-service training sessions on SEND and the law and decision making panels for SEND.
• Agreed the delivery of 1,317 new specialist school places either in new schools or units linked to mainstream schools by 2026. 826 of these new places were already open.
• Updated its sufficiency plan.

Council’s corporate comments, compliments, and complaints policy

21. The procedure consists of two stages:
• Stage one - Local Resolution. The relevant manager will respond in writing to the complaint within 20 working days.
• Stage two - Investigation. Within five working days the complainant will be notified if the complaint is to be investigated at stage two. If the complaint is not to be progressed to stage two, the complainant will be notified of the decision and the reason why within five working days.

What happened

22. This chronology includes key events in this case and does not cover everything that happened.
23. Mrs C’s daughter, D, has been diagnosed with global development delay and autism spectrum disorder. She has a range of health conditions and suffers with travel anxiety and sickness.
24. D’s primary school, School 1, held a review in October 2021.
25. In December 2021 and February 2022, the Council consulted three educational providers. Two providers said they were oversubscribed for September 2022 and the other one said it was full.
26. The Council issued a final amended EHC plan in February 2022. Section I of the plan said D should attend a specialist setting from September 2022.
27. In July 2022, D finished primary school, School 1.
28. The Council consulted with Mrs C’s preferred educational placement, School 2. School 2 is a school for children with special educational needs 12 miles from D’s home. School 2 responded in July 2022. It said it did not have any available places until September 2023.
29. The Council issued a final amended EHC plan in August 2022. This named School 3 from September 2022. School 3 is a school for children with special educational needs and is 40 miles from where D lives. Mrs C told the Council she had not received a draft plan before the final amended EHC plan was issued. The Council apologised for its error, retracted the final EHC plan and issued a draft. It gave Mrs C 15 days to comment. The Council said it understood the distance to School 3 was too great for D and explained if it did name it in the final EHC plan, it would ensure a bespoke package was available to meet D’s needs if needed.
30. The Council asked Mrs C if she had any letters from professionals about D’s travel sickness. It said it would be useful to have these on file.
31. Mrs C spoke to the Council. She confirmed she would like C to attend School 2 if she was assessed and accepted. They discussed providing D with tuition while they waited for a place to become available. Mrs C said D would need to have the same tutor each week and provided with full-time education.
32. The Council made a referral for D for full-time 1:1 tuition to a provider that supports children with special educational needs and disabilities. The Council asked the provider to arrange this from September 2022. In August and September 2022, the Council chased the provider for a start date.
33. Mrs C complained and responded to the Council’s draft amended EHC plan in August 2022. She queried the Council’s numbering of D’s EHC plans. She said she had received two final EHC plans in August, both named EHC plan five, and had since been sent draft amended EHC plan one. She complained School 3 was named in D’s August 2022 final EHC plan. She said the school could not meet D’s needs due to the distance she would have to travel to attend given her travel sickness and anxiety. Mrs C asked why the Council had asked for medical evidence to prove this when it accepted this was the case previously. She said School 3 was also unsuitable because it was a temporary placement until a place became available at School 2 and meant D would have to move again. Mrs C said she had asked the Council to provide D with tutoring from September 2022 and this was not in place.
34. The Council responded at stage one in September 2022:
• It advised D had an EHC plan and a draft amended plan had been issued. It apologised for misnaming the amended plan as draft amended plan one rather than five. It explained this was an administrative error.
• It said it had offered her a date for a co-production meeting.
• It explained its consultations had not identified an education placement that could meet D’s needs. It said it was working with School 3 and a tuition provider to arrange an interim package of education for D.
• It confirmed Mrs C’s preferred school, School 2, was at capacity and it had asked to observe D to see if it could meet her needs.
35. Mrs C told the Council she was unhappy with its response. She said neither School 3 nor the tuition provider had contact her about D’s education provision. She said D could not physically attend School 3 because it was too far, and D struggled with long journeys. She questioned why the Council had asked for medical evidence of D’s travel difficulties when it had previously accepted these without supporting evidence. Mrs C complained the manager who responded to her complaint was involved in the case and therefore had a conflict of interest.
36. The same manager that responded at stage one responded at stage two. The manager said the Council had completed its consideration of her complaint and apologised. It told her this was its final position. It signposted her to the Ombudsman.
37. The Council met with Mrs C in September and October 2022 to discuss the draft amended EHC plan. Following these meetings, the Council issued another amended draft EHC plan. This named School 3 in section I. Mrs C told the Council she wanted it to name School 2 not School 3 in the plan.
38. Mrs C asked the Council if it would pay for D to attend a farm school to promote social interaction. The Council said it would consider funding this but made it clear it was not agreeing to pay for sessions. The Council contacted the farm school to enquire about what it offered and the cost. It took Mrs C’s request to a decision-making panel.
39. In October 2022, School 3 contacted Mrs C about C attending from November 2022. Mrs C raised this with the Council. She said she understood D would not physically attend School 3 because of the travel distance.
40. Fifteen hours tuition was in place for D from the end of October 2022. The Council told Mrs C this would be in place until it found a suitable education placement for D.
41. In November 2022, Mrs C met with the Council to discuss C’s EHC plan. She asked the Council to remove School 3 from section I. Following this meeting the Council issued a final amended EHC plan. Mrs C queried whether this should have been a draft rather than a final plan. The Council said it understood from the meeting that Mrs C was happy to move forward with finalising the plan. The Council retracted the final plan and issued an amended draft EHC plan for Mrs C to comment on.
42. The Council told Mrs C the panel felt D’s attendance at the farm school could be achieve through a personal budget. It asked Mrs C how many hours or sessions a week would benefit D. It advised once it had this information, it would apply for a personal budget to fund the provision. Mrs C said she would visit the provider and see if D would benefit from attending.

Analysis

43. The Council held an annual review meeting for D in October 2021. It decided to amend C’s EHC plan. The Council had 12 weeks from the annual review meeting to issue the final EHCP and, as C was transitioning from primary to secondary education, it needed to be issued by the 15 February 2022. The Council took 18 weeks to issue the final amended EHC plan, a delay of six weeks. This delay was fault and frustrated Mrs C’s right of appeal to the SEND tribunal. The Council met the deadline of the 15 February 2022.
44. The Council issued a second final amended EHC plan in August 2022 without issuing a draft first for Mrs C to comment on, this was fault. When Mrs C raised this with the Council it retracted the second final amended EHC plan and issued a draft instead. The Council issued the draft EHC plan and amendment notice in August 2022. Once the amendment notice is issued, the Council has eight weeks to issue a final EHC plan. Therefore, the Council should have issued a final amended EHC plan by the second week of October 2022. Instead, the Council issued three further draft EHC plans, one in September, October and November 2022, and wrongly issued a final EHC plan which it retracted. As of December 2022, the Council had still not issued a final EHC plan, a delay of 11 weeks. This delay is fault and again frustrated Mrs C’s right of appeal. The Council’s failure to meet the statutory timescales is especially disappointing given the Council has delivered whole-service training sessions on SEND and the law.
45. The Council named School 3 in the draft EHC plans it has issued since August 2022. Mrs C states School 3 is unsuitable for D because of the travel distance to the school. As the Council did not correctly issue a final EHC plan naming School 3, Mrs C could not appeal against the Council’s decision. However, she told the Council she would not sent D to physically attend the school and the Council accepted it. The Council told Mrs C it would try to secure a place for D at School 2 from September 2023 and provide alternative provision until then. Not having a suitable education placement for D was service failure by the Council. The Council has started to address the availability of specialist placements following the 2021 independent review of its SEND services and reports, see paragraphs 17 to 19.
46. As the Council accepted Mrs C would not send D to School 2 because of the distance, it agreed to put alternative provision in place. The 2022/23 academic year started on 2 September 2022. Although the Council asked the tuition service to have tuition in place for D on this date, D did not start receiving it until the end of October 2022. The Council’s records show it chased the provider for a start date but ultimately, it was responsible for having provision in place for the start of the school term. Not securing provision from September 2022 was fault by the Council and because of this fault, D missed seven weeks education and EHC provision during a significant period in her education.
47. There was a delay between Mrs C asking the Council to consider funding sessions at a farm school for D and its response. Mrs C asked the Council to consider this in September and did not receive a decision until November 2022. This delay was fault. As Mrs C is yet to apply for a personal budget for D to attend the farm school, there is uncertainty about whether D missed provision because of this delay.
48. Five working days is the family service’s communication target, and the Council met this target in August, September, November, and December 2022. In October 2022, the Council did not achieve its target and twice there was around a fortnight between Mrs C contacting the Council and getting a response. This delay was fault by the Council and frustrated Mrs C. The Council apologised when it responded in November 2022. In response to enquiries, it explained the delay was because Mrs C’s worker was unexpectedly absent from work.
49. The Council followed its complaint procedure when it responded to Mrs C’s complaint. The procedure states at stage one the relevant manager will respond in writing to the complaint. This is what happened. The complaint response was delayed by two days, but this is not significant enough to make a finding of fault. When Mrs C asked the Council to consider her complaint at stage two, it decided not to progress the complaint and told Mrs C within five working days. It was the Council’s decision whether it progressed Mrs C’s complaint to stage two.

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Agreed action

50. Within one month of the final decision, the Council will:
• Issue D’s final amended EHC plan.
• Pay Mrs C £300 for distress, including frustrating her right of appeal and the time and trouble she went to chasing the Council.
• Pay Mrs C £1050 for the seven weeks D missed education and EHC provision in September and October 2022. This is to be used for D’s benefit.
• If Mrs C applies for a personal budget for D to attend the farm school and this is successful, the Council should backdate the personal budget to November 2022.
51. Within two months of the final decision, the Council will:
• Remind relevant staff of the timescales for issuing final amended EHC plans following the Council issuing an amendment notice and include this in future training.
• Review its procedure for covering cases when staff are absent.
• Review its procedure for considering provision requests to ensure these are dealt with in a timely manner.
52. The Council should provide the Ombudsman with evidence it has completed these actions.

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Final decision

53. I have completed my investigation and uphold Mrs C’s complaint. Mrs C and D were caused an injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman